author: KELLY, Judge.

text:
    634 A.2d 228
    COMMONWEALTH of Pennsylvania v. John Alan METZER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed Nov. 24, 1993.

      Nathan Criste, Doylestown, for appellant.
    Troy Leitzel, Asst. Dist. Atty., Doylestown, for Com., appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   KELLY, Judge.

In this appeal we are called upon to determine whether the trial court erred in its sua sponte reconsideration of its decision to grant appellant’s motion in limine to exclude the results of a breathalyzer test after appellant’s counsel made his opening statement to the jury in reliance upon the initial ruling. We reverse judgment of sentence and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

On October 6, 1991, at approximately 3:35 a.m., appellant struck the rear of an automobile stopped for a red light at the intersection of Oxford Valley Road and Trenton Road in Falls Township. Officer Henry P. Ward of the Falls Township Police Department responded to the report of the traffic accident. Upon arriving at the accident scene, Officer Ward observed appellant walking back from a nearby 7-11 store. Officer Ward approached appellant and directed him back to his car in order to obtain appellant’s driver’s license, vehicle registration and automobile insurance. While speaking to appellant, Officer Ward noted that appellant’s eyes were bloodshot and glassy. Officer Ward also detected an odor of alcohol around appellant. However, Officer Ward also noticed that appellant had no difficulty speaking or producing his driver’s license and other relevant documents.

Based upon his observations, Officer Ward placed appellant under arrest and secured him in his patrol car. Officer Ward then transported appellant to the hospital for a blood test; however, appellant expressed a fear of needles. Therefore, he was taken back to the Falls Township Police Station for a breathalyzer test. The breathalyzer test was administered to appellant at 5:14 a.m., approximately one hour and forty minutes after the accident occurred. The breathalyzer test recorded appellant’s blood alcohol content to be 0.12%.

Appellant was subsequently charged with driving a motor vehicle while under the influence of alcohol to such a degree as to render him incapable of safe driving pursuant to 75 Pa. C.S.A. § 3731(a)(1) and driving a motor vehicle while having a blood alcohol content (BAC) of 0.10% or greater pursuant to 75 Pa.C.S.A. § 3731(a)(4).

Shortly before trial, appellant filed an omnibus pre-trial motion. In Part I of this omnibus pre-trial motion, appellant argued that he had been improperly charged with violating two subsections of the same statute, 75 Pa.C.S.A. § 3731 et seq., in one criminal information even though each subsection alleges a different manner and standard for violating the statute. In Part II of his omnibus pre-trial motion, appellant alleged that Officer Ward had failed to properly apprise him of his Miranda rights; thus, any statement that he made to Officer Ward must be suppressed. Appellant further alleged in Part II of his omnibus pre-trial motion that the breathalyzer equipment used to administer his breathalyzer test was improperly calibrated under the applicable rules and regulations of the Department of Transportation. Oral argument was held on appellant’s omnibus pre-trial motion. As a result of oral argument, appellant’s statements to Officer Ward were suppressed. However, the results of the breathalyzer test were not suppressed.

On the day of trial, appellant filed a motion in limine alleging that because the breathalyzer test was taken one hour and forty minutes after his arrest and the Commonwealth possessed no admissible evidence regarding the time at which he consumed his last alcoholic beverage on the morning of the accident, the Commonwealth was unable to relate back the results of the breathalyzer test to the time of the accident as required by recent Supreme Court cases, Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) and Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992). Thus, appellant maintained, the results of the breathalyzer test were inadmissible at appellant’s trial for violating of 75 Pa.C.S.A. § 3731(a)(1) and 75 Pa.C.S.A. § 3731(a)(4).

After oral argument was held on appellant’s motion in limine, the trial court reviewed the relevant case law and directed that the results of the breathalyzer test be excluded from evidence. The trial court then ordered the case to proceed to trial. The Commonwealth did not choose to appeal this ruling as it is permitted to do when it certifies that the exclusion of evidence substantially handicaps the prosecution. See Commonwealth v. Steding, 480 Pa. 485, 391 A.2d 989 (1978); Commonwealth v. Parrella, 416 Pa.Super. 131, 610 A.2d 1006 (1992); Pa.R.App.P. 311(d). A jury was then selected and the trial began.

In his opening statement to the jury, defense counsel stated that the Commonwealth’s evidence of appellant’s alleged intoxication consisted exclusively of the testimony of the driver of the other car, Charlene D. Rolland, and the testimony of the arresting officer, Henry P. Ward. After counsel had made their opening statements, the trial court called a recess, excused the jury for lunch and called counsel into his chambers. At this chambers conference, the trial court stated it was reversing its earlier ruling excluding the results of the breathalyzer test and directed that the breathalyzer results be admitted into evidence. At this point, appellant motioned for a mistrial. This motion was denied by the trial court. Instead, the trial court gave appellant the alternatives for dissipating any prejudice, which might have accrued to appellant, of either selecting a curative instruction or making another opening statement. Appellant selected the curative instruction alternative.

The jury returned from lunch and the trial court opened the proceedings with a curative instruction regarding the admission of some evidence that was not referred to in counsel’s opening statements. (N.T. 2/6/92 at 55-57). At the close of the Commonwealth’s case in which it presented the breathalyzer results together with the testimony of Ms. Rolland and Officer Ward, the trial court sustained appellant’s demurrer to the portion of the charge which stated that appellant had violated 75 Pa.C.S.A. § 3731(a)(4) by driving while having a BAC. of 0.10% or greater. Appellant was subsequently convicted of § 3731(a)(1), driving while under the influence of alcohol to such a degree as to render him incapable of safe driving, 75 Pa.C.S.A. § 3731(a)(1). Appellant filed timely post-trial motions which were denied. Appellant was sentenced to serve not less than forty hours nor more than one year in the county prison. Appellant was also fined three hundred dollars. The trial court stayed imposition of sentence pending the filing of an appeal. This timely appeal followed.

Appellant presents the following issues for our consideration.

A. DID THE COURT ERR BY ADMITTING INTO EVIDENCE THE RESULTS OF A BREATHALYZER TEST TAKEN ONE HOUR AND FORTY MINUTES AFTER ARREST WITHOUT PRESENTATION OF EXPERT TESTIMONY TO RELATE BACK THE RESULTS OF THE TEST TO THE TIME OF THE ACCIDENT?
B. DID THE COURT ERR IN ITS INSTRUCTIONS TO THE JURY REGARDING THE MEANING OR SIGNIFICANCE OF THE BREATHALYZER EVIDENCE FROM A SCIENTIFIC AND A LEGAL STANDPOINT?
C. DID THE COURT ERR BY REFUSING A DEFENSE REQUEST FOR A MISTRIAL FOLLOWING OPENING STATEMENTS AFTER REVERSAL OF A PRE-TRIAL RULING THAT NO BREATHALYZER EVIDENCE WOULD BE ADMISSIBLE?
D. WAS THE EVIDENCE PRESENTED SUFFICIENT TO SUSTAIN A VERDICT AS A MATTER OF LAW; AND WAS THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE.

Appellant’s Brief at 8.

For the purposes of clarity, we begin by addressing appellant’s third issue raised in this appeal. Appellant’s third issue concerns whether the trial court erred in failing to grant appellant’s motion for mistrial where the court sua sponte reversed its ruling granting appellant’s motion in limine to exclude the breathalyzer results after appellant’s counsel had relied upon the earlier ruling when commenting upon the evidence to be presented in his opening statement to the jury.

II. STANDARD OF REVIEW

At the outset, we note that an appellate court’s review of the grant or denial of a new trial is limited to determining whether the trial court abused its discretion or committed an error of law which controlled the outcome of the case. Commonwealth v. Morris, 513 Pa. 169, 175, 519 A.2d 374, 376 (1986). “The general conduct of a trial is committed to the broad discretion of the trial judge.” Commonwealth v. Thomas, 346 Pa.Super. 11, 20, 498 A.2d 1345, 1349 (1985) (citations omitted). A reviewing court will not find that a trial court abused its discretion in denying a motion for a new trial unless the trial court failed to remedy any prejudice which may have been caused to a defendant by an in-court statement or event. Commonwealth v. Tribblett, 242 Pa.Super. 164, 169, 363 A.2d 1212, 1214 (1976), citing Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972).

Courts are hesitant “to grant a motion for a mistrial, when the conduct complained of was not the product of the court, counsel, or the parties.” Tribblett, supra 242 Pa.Super. at 169, 363 A.2d at 1214, citing Commonwealth v. Gwyn, 441 Pa. 546, 272 A.2d 891 (1971); Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 (1971). “However, a new criminal trial is required when a judge’s remark is prejudicial; that is, when it is of such nature or substance or delivered in such a manner that it may reasonably be said to have deprived defendant of a fair and impartial trial.” Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985). “The presence or occurrence of certain errors at trial, including ... bias on the part of the judge ... requires automatic reversal.” Commonwealth v. Cherry, 474 Pa. 295, 307, 378 A.2d 800, 806 (1977), citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710 (1967). Additionally, “evidentiary rulings are committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion.” Commonwealth v. Apollo 412 Pa.Super. 453, 461, 603 A.2d 1023, 1027 (1992) (citing Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990)).

Ill’ PRE-TRIAL MOTION TO EXCLUDE EVIDENCE

A. MOTION IN LIMINE

A motion in limine is a pre-trial application before a trial court made outside the presence of a jury, requesting a ruling or order from the trial court prohibiting the “opposing counsel from referring to or offering into evidence matters so highly prejudicial to the moving party that curative instructions cannot alleviate an adverse effect on the jury. See Black’s Law Dictionary 914 (5th ed. 1979). See also Commonwealth v. Johnson, 399 Pa.Super. 266, 582 A.2d 336 (1990), appeal granted, 529 Pa. 617, 600 A.2d 534 (1991) (citing L. Packel & A.B. Poulin, Pennsylvania Evidence § 103.3 (1987)). The purpose of a motion in limine is two fold: 1) to provide the trial court with a pre-trial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and 2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. 75 Am.Jur.2d § 94 & § 98.

Further, a ruling on a pre-trial motion in limine provides counsel with a basis upon which to structure trial strategy. Blumenkopf, The Motion in Limine: An Effective Procedural Device With No Material Downside Risks, 16 N.Eng.L.Rev. 171 (1981). The motion in limine is an effective procedural device with no material downside risk. Id. at 171-72. Once the court has pronounced its decision, the matter before it will proceed unless the Commonwealth elects to appeal an adverse ruling. Commonwealth v. Cohen, 529 Pa. 552, 557, 605 A.2d 1212, 1215 (1992). For purposes of appealability, the court's ruling on a motion in limine is exactly the same as a pre-trial suppression order. Id. at 557, 605 A.2d at 1215. Thus, both a suppression order and a pretrial motion in limine excluding evidence are immediately appealable by the Commonwealth. Id. at 557, 605 A.2d at 1215.

B. MOTION TO SUPPRESS

It is well-settled law that motions to suppress evidence are decided prior to the beginning of trial. Commonwealth v. Berkheimer, 501 Pa. 85, 91, 460 A.2d 233, 236 (1983); Commonwealth v. Harmon, 469 Pa. 490, 494, 366 A.2d 895, 897 (1976); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, 308 (1963). Moreover, pre-trial rulings on the suppression of evidence are final. Pa.R.Crim.P. 323. In sum, suppression motions must ordinarily be made before the trial to the suppression court, they must be made with specificity and particularity as to the evidence sought to be suppressed and the reasons for the suppression, and the suppression court’s determination is to be final, except in the case of evidence not earlier available. Berkheimer, supra at 91, 460 A.2d at 236.

Although a motion in limine and a suppression motion are distinct from each other because a suppression motion specifically protects constitutional rights and a motion in limine precludes evidence constitutionally obtained but which is prejudicial to the moving party, their protections, at times, overlap. Commonwealth v. Cohen, supra 529 Pa. at 557, 605 A.2d at 1215. More importantly, however, both motions settle, before trial, issues regarding the exclusion or admission of evidence.

Our Supreme Court in Commonwealth v. Bosurgi, supra held “that a pretrial suppression order is, in its practical effect, a final order.....” Id. 411 Pa. at 64, 190 A.2d at 308. Further, that “the grant of a motion in limine ... is identical in effect, to a suppression order and characterized by identical indicia of finality.” Id. The court’s concern in its discussion in Bosurgi and its progeny was with the finality of the ruling for purposes of appeal. Implicit in the court’s discussion, however, is the importance of finality for purposes of trial strategy. Bosurgi, supra at 63, 190 A.2d at 308. See also Commonwealth v. Cohen, supra at 558, 605 A.2d at 1215.

From Commonwealth v. Bosurgi, supra, we glean the proposition that, from both the Commonwealth’s and the defendant’s perspective, a pre-trial suppression ruling is final for purposes of the admissibility of evidence at trial. The Commonwealth’s concern, of course, is whether it will be foreclosed entirely from prosecuting as a result of the suppression ruling or be so “substantially [handicapped]” as to be unable to present an effective prosecution. Commonwealth v. Bosurgi, supra. The trial would proceed, and if the Commonwealth did not prevail, it would be forever barred from challenging the pre-trial ruling. Thus, for purposes of fairness to the Commonwealth and in the interest of justice, the pre-trial suppression ruling must be final to allow the Commonwealth an opportunity to appeal. Id. 411 Pa. at 64, 190 A.2d at 308-09. Unlike the Commonwealth, the defendant may appeal post-trial from a pre-trial suppression ruling. Unless the Commonwealth appeals an adverse suppression ruling, the defendant proceeds with his case, basing his defense on the court’s pre-trial ruling, knowing that the ruling may be challenged post-trial should the verdict be rendered in the Commonwealth’s favor. Bosurgi, supra, at 64, 190 A.2d at 308.

Thus, the finality of the court’s pre-trial ruling plays a significant factor in both the Commonwealth’s and the defense’s trial strategy. Inherent in the finality of a pre-trial suppression ruling is knowing how to proceed therefrom. For the Commonwealth, an adverse ruling means it must immediately take an appeal. Likewise, the defense knows that it must either defend against the evidence and appeal post-trial or proceed in reliance upon suppression of the evidence.

Although an adverse ruling for the defendant is not immediately appealable, our courts have held pursuant to Pa.R.Crim.P. 323(j) that upon the presentation of new evidence, a trial court may reverse its own pre-trial suppression ruling. However, as our Supreme Court stated in Commonwealth v. Berkheimer, 501 Pa. 85, 91, 460 A.2d 233, 236 (1983), the pre-trial ruling may be reversed by the trial court only upon the presentation by the defendant of new evidence that was not available at the time of the suppression hearing and became available to defense counsel after trial had begun. Id. See also Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). Furthermore, the court must conduct another hearing to reconsider the suppression or admissibility of the evidence. Commonwealth v. Branch, 292 Pa.Super. 425, 437 A.2d 748 (1981). Absent the introduction of new evidence that was unavailable before the hearing, however, a pre-trial ruling may not be reversed at trial. Commonwealth v. Wanfield, 418 Pa. 301, 211 A.2d 452 (1965). Additionally, because our Supreme Court has held that a motion in limine is effectively the same as a motion to suppress, any ruling thereon is also “final, conclusive, and binding at trial,____” Pa.R.Crim.P. 323(j).

IV. TRIAL COURT PROCEDURES

Appellant contends that the trial court erred in failing to grant his request for a mistrial after it had reversed its ruling regarding the exclusion of the breathalyzer test results. Appellant argues that the trial court undermined counsel’s credibility before the jury by allowing evidence to be presented by the Commonwealth which, in his opening statement, defense counsel had asserted would not be produced by the Commonwealth. Appellant claims that the trial court further compromised his counsel’s ability to effectively advocate for his client by offering a curative instruction which told the jury that a piece of evidence that was excluded would now be included. We agree.

Instantly, counsel relied on the pre-trial judicial determination that the results of the breathalyzer test would not be used as evidence in the case against his client. He prepared his case accordingly. In his opening statement, he told the jury what evidence they would hear regarding the intoxication of his client. Appellant’s counsel posited that the evidence against his client consisted exclusively of the driver of the other car and the arresting officer’s testimony. Because the court had ruled that the results of the breathalyzer test would not be entered as evidence, counsel excluded it and affirmatively asserted that no other evidence of intoxication would be introduced. (N.T. 2/6/92 at 24-31).

Immediately after counsel had finished his opening statement, specifically emphasizing the lack of compelling evidence by the Commonwealth, the trial court called for a recess and dismissed the jury for lunch. The court then called counsel into his chambers and informed them that he had reconsidered his ruling upon the evidence and had decided to reverse it. As no new evidence had been brought before the judge by either counsel, nor had the Commonwealth appealed the trial court’s pre-trial ruling in the interim, the trial court’s sua sponte reconsideration of its earlier ruling was improper. See Commonwealth v. Berkheimer, supra; Commonwealth v. Wanfield, supra.

After the lunch recess, the court returned and expressly told the jury that evidence which had previously been ruled inadmissible would be presented to them. At that point, appellant’s trial strategy was eradicated. Counsel had before him a new case. Moreover, defense counsel was forced to defend against evidence that he had told the jury would be absent. The trial court effectively placed counsel in a compromised position, thereby prejudicing appellant’s opportunity for a fair trial. Also, defense counsel’s credibility was placed at issue before the jury and his ability to advocate for his client was seriously handicapped.

Foremost in defense counsel’s mind as he prepares his case is the evidence which will be presented against his client. A significant part of counsel’s strategy will be built upon what evidence he has to proffer and what he believes opposing counsel will present. Counsel will posture his defense accordingly. Pre-trial motions are designed to settle matters prior to trial so that counsel may come to trial prepared to present the case. A lawyer’s trial strategy, course of action, theory of the case, opening statement, examinations of witnesses, and closing statement all derive from the trial judge’s determination of pre-trial motions. Counsel has the right to rely on authoritative rulings made by the trial court prior to trial excluding evidence. Thus, when rulings are reversed absent new evidence, the course of the trial is irrevocably altered, and counsel has a new case.

The Commonwealth argues that the cautionary instruction issued by the trial court “cured” any harm the appellant may have suffered as a result of the trial court’s reversed evidentiary ruling. We cannot agree.

Determining whether prejudice has occurred is a fact specific inquiry. Commonwealth v. Smidl, 395 Pa.Super. 266, 577 A.2d 210 (1990) (trial judge committed reversible, prejudicial error by not delivering, sua sponte, an alibi instruction); Commonwealth v. Divomte, 262 Pa. 504, 506, 105 A. 821, 822-23 (1919) (trial judge committed error in his instructions to the jury regarding the governing law of the case). The purpose of a pre-trial motion in limine is to prevent prejudicial evidence from reaching the jury, based on the theory that “once the ‘skunk is in the box,’ the odor is ineradicable.” Blumenkopf, 16 N.Eng.L.Rev. at 173 (quotations omitted).

The court’s curative instructions must bé viewed in the context of what occurred, ie., what evidence was previously excluded and subsequently ruled admissible, and when it was ruled admissible. The breathalyzer test results may have been the strongest piece of evidence as proof of appellant’s intoxication. The trial court’s timing, immediately after counsel had made his opening statement, promoted the importance of the evidence. Moreover, the jury’s attention was drawn to the fact that appellant’s counsel wanted to keep that piece of evidence from the jury because he did not mention it in his opening statement and implicitly asserted that there was no such evidence:

You will hear testimony that the officer did not see any kind of stagger, did not see the defendant attempt to hold onto anything for balance, and that he had no apparent difficulty following the requests of the police officer in regard to his instructions given at the scene of the accident.
Ladies and gentlemen, there also will be testimony in this case regarding the communications that took place between the Commonwealth’s prosecutor and the defendant on this evening. And the defendant, I believe, will show that the responses provided by the defendant to the questions that were asked by the prosecutor were responsive; that when he was asked to do something, he did it; that when he was given a direction, he apparently understood it and followed it.
Ladies and gentlemen, the defense through the testimony that’s being presented here will suggest that there was nothing about the manner in which this man behaved on the evening of October the 6th, that would suggest that he was under the influence of intoxicating liquor; that there being no evidence of impaired ability to walk, talk, bend over or do any other normal coordinated activity that a person who had not been drinking would be unable to do.

(N.T. 2/6/92 at 28-29).

The prejudice to appellant occurred when the trial judge reversed his earlier ruling regarding the inadmissibility of the results of the breathalyzer test after appellant’s counsel had detrimentally relied on this ruling in his opening statement. Thus, the trial court’s improper reconsideration of its earlier ruling and its subsequent attempt to issue a curative instruction rendered appellant’s counsel incredible in the eyes of the jury. Therefore, appellant’s chances for a fair determination of his guilt or innocence to the charge against him by this particular jury were impermissibly compromised. Accordingly, the only remedy available to remove the prejudice to appellant was for the trial court to declare a mistrial and to relist the case for trial before a different jury. See Commonwealth v. Scarfo, 416 Pa.Super. 329, 382, 611 A.2d 242, 268 (1992) (a defendant is entitled to a fair determination of his guilt). Because the trial court failed to employ this remedy to dissipate the prejudice that accrued to appellant as a result of the trial court’s rulings regarding the admissibility of the breathalyzer results, appellant is entitled to a new trial.

V. ADMISSIBILITY OF BREATHALYZER RESULTS AT NEW TRIAL

The breathalyzer evidence, however, is not admissible at appellant’s new trial for violating 75 Pa.C.S.A. § 3731(a)(1). We are constrained to reach this result because after appellant’s motion in limine to exclude the results of the breathalyzer test was granted, the Commonwealth did not elect to appeal this ruling as it is permitted to do when a pre-trial ruling excluding evidence substantially handicaps its ability to prosecute a defendant. See Commonwealth v. Parrella, supra. Rather, the Commonwealth freely chose to proceed with its prosecution of appellant without the breathalyzer results as part of the evidence. As the Commonwealth must appeal an adverse pre-trial order granting a motion in limine to exclude evidence or be forever barred from contesting the ruling, see Commonwealth v. Cohen, supra, its failure to appeal the trial court’s initial exclusion of this evidence irrevocably established this ruling as the controlling legal rule of this case. Thus, the trial court’s subsequent reconsideration of its initial ruling excluding the breathalyzer evidence after appellant’s trial had commenced has no bearing on whether this evidence should be admitted at appellant’s new trial. Therefore, the Commonwealth is not entitled to utilize the breathalyzer results at appellant’s new trial. See Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977); Commonwealth v. Throckmorton, 241 Pa.Super. 62, 359 A.2d 444 (1976) (a suppression motion may be litigated after the grant of a new trial only if there has been no prior determination of the issue).

Our ruling regarding the non-admissibility of the breathalyzer evidence will not, however, preclude appellant’s retrial for violating 75 Pa.C.S.A. § 3731(a)(1), as the other evidence presented at trial, the testimony of Officer Henry Ward and the testimony of the driver of the other car, Charlene D. Rolland, when viewed in the most favorable light to the Commonwealth, could be sufficient to support a conviction of appellant. See Commonwealth v. Smith, 523 Pa. 577, 582, 568 A.2d 600, 603 (1989) (where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence to support conviction; the proper remedy in such a case is the grant of a new trial).

CONCLUSION

We hold that the trial court erred in its improper sua sponte reconsideration of its order excluding the results of the breathalyzer test after the Commonwealth failed to appeal this ruling and appellant’s counsel had made his opening statement in his reliance upon it. Accordingly, appellant’s motion for a mistrial should have been granted due to the prejudicial effect the trial court’s untimely reversal of its initial decision to exclude this evidence had on appellant’s counsel’s credibility in the eyes of the jurors. Thus, appellant is entitled to a new trial. Because the Commonwealth failed to appeal the trial court’s initial ruling excluding the breathalyzer results, this ruling is the law of this case and the breathalyzer results are inadmissible at appellant’s new trial.

The judgment of sentence is reversed; the case is remanded for a new trial. Jurisdiction is relinquished.

      . 75 Pa.C.S.A. § 3731(a)(1) states as follows:
      A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
      while under the influence of alcohol to a degree which renders the person incapable of safe driving;....

      . 75 Pa.C.S.A. § 3731(a)(4) states as follows:
      A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
      while the amount of alcohol by weight in the blood of the person is 0.10% or greater; or____

      . Although a motion in limine is generally made before trial, the trial court may elect to rule upon the application at a later time. The parties are prohibited from referring to the evidence at issue during trial until the court makes a final ruling. Despite the lack of finality of the ruling, there is no doubt in either parties’ mind that the evidence will remain outside the province of the jury until the court rules, but may, if the judge decides, be ruled admissible later in the trial. In that event, counsel will be prepared to proceed accordingly. Colbert, A Symposium on the Sanctuary Movement: The Motion In Limine: Trial Without Jury: A Government’s Weapon Against the Sanctuary Movement, 15 Holstra L.Rev. 5 n. 6 (1986).

      . We note that a criminal trial begins at the point where jeopardy has attached. See Commonwealth v. Bronson, 482 Pa. 207, 393 A.2d 453 (1978). In a criminal jury trial, jeopardy attaches when a juty is sworn, see Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398, cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987). In a bench trial, however, jeopardy attaches when the trial court begins to hear evidence. See Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987).

      . So, there will be some evidence which will be coming into the case which the lawyers have not referred to in their opening statements. Do not hold it against either lawyer because the particular lawyer did not mention every bit of evidence that was going to come in or whether the sum total of it all was, because they didn’t know I was going to change my mind and reverse my ruling.
      I believe it was appropriate that I do so in order to comply with what I believe the appropriate provisions in the law are. You needn’t concern yourself any further with it, other than to not hold it against either side because something may not have been mentioned in the lawyer’s opening statement that could have been mentioned....
      (N.T. 2/6/92 at 56-57).

      . Because of our disposition of appellant's third issue on appeal granting him a new trial and excluding the breathalyzer evidence from that trial, we need not address the other issues raised by appellant in this appeal.


source: Caselaw Access Project

author:
OLSZEWSKI, Judge:
      JOHNSON, Judge,

license: Public Domain

text:
    634 A.2d 237
    Ida M. WALKER, Appellee v. GRAND CENTRAL SANITATION, INC., and Nolan Perin, Both Individually and as President of Grand Central Sanitation Inc., Appellants.
    Superior Court of Pennsylvania.
    Submitted Aug. 31, 1993.
    Filed Nov. 29, 1993.

      Leonard N. Zito, Bangor, for appellants.
    William P. Exaros, Bethlehem, for appellee.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a jury verdict entered in favor of appellee, Ida Walker [“Walker”]. After a three-day trial, a jury found appellant Nolan Perin and his corporation, Grand Central Sanitation [“Grand Central”] liable for breaching an employment contract and for defaming Walker by making allegedly false statements to a potential employer. The trial court, viewing the same evidence as the jury, found for Grand Central on Walker’s discrimination claim under the Pennsylvania Human Relations Act. We reverse in part and affirm in part.

In the early 1980’s, Walker was employed by the Container Corporation of America as a buyer in charge of the company’s “bin truck division.” In this position, among other responsibilities, Walker oversaw an operation which involved the mass collection of old newspapers from different locations in the Philadelphia area. Through a fellow salesperson, Walker met Perin and his business associates (Perm’s brother and sister), who were interested in expanding Grand Central to include recycling among its established trash-hauling services. Walker met with the Perins to explain her understanding of the field, developed through her experiences with Container, and eventually the Perins asked her if she would be interested in working for Grand Central. After several oral discussions regarding salary and benefits, Walker accepted the Perins’ offer and began working for Grand Central in late 1984.

Walker was assigned to work in Grand Central’s subsidiary corporation, Pocono Independent Paper [“Pocono”]. Pocono handled the Perins’ new recycling venture, and it was Walker’s job to establish and maintain accounts for the new enterprise. Walker testified that she opened recycling accounts with various area businesses, most of which were not previous customers of Grand Central. Despite her successes, however, Walker’s efforts did not proceed without setbacks. She testified that on two occasions, the Perins became upset with her job performance: on one occasion, the Perins discovered a deficiency in an accounting system designed by her to set prices for Pocono’s recycling services which required the company to revamp the system. On another, Nolan Perin discovered a $50,000 mathematical error in a bid which Walker prepared for submission to a potential corporate client. Approximately three weeks after this incident, Walker’s employment was terminated, despite her protestations that the Perins had never criticized her performance in any formal way and her claim that she was personally responsible for doubling Pocono’s sales while she was in Grand Central’s employ. Perin, conversely, testified at length regarding his dissatisfaction regarding Walker’s handling of client accounts, such as those described above, and that his frustration with Walker led to her termination.

Walker, now unemployed, feverishly sought new employment, sending out “hundreds” of resumes. During her search, Walker contacted Rudolph Tolbert, an acquaintance who she met through the Pennsylvania Resources Council. Tolbert informed Walker that he was in the midst of developing an enterprise which would bid on certain recycling contracts in the Philadelphia area. Tolbert expressed interest in hiring Walker as part of his marketing team, and told her that he was in the process of assembling resumes for his development package. As part of this process, he contacted Perin for a reference regarding Walker’s performance at Pocono. Perin did not respond favorably, and Tolbert included Perm’s words in a letter to Walker:

Dear Ida,
I called Pocono Paper Stock several times, first speaking to Kris who could do nothing but verify that you had worked at PPS, but could not attest as to your job description or work quality.
On September 23, 1986, Mr. Nolan Perin returned my call. I advised Mr. Perin that I was trying to put together a team in preparation for bidding on City of Philadelphia contracts for the marketing of recyclables and that I was considering you to supervise a marketing team of four persons, one of whom would be a bookkeeping/clerical type.
Mr. Perin said that he “didn’t know if she can do it.” “[Pocono] didn’t have a lot of success with her. Maybe she could do it for someone else. Perhaps the Pocono position was beyond her capabilities.”
I asked Mr. Perin what your problem was as he saw it. He told me that you “had a problem meeting goals,” that you were “too liberal with personnel,” and that you “wouldn’t come into work Monday after working a hard week. I [Perin] just couldn’t make money operating like that ... maybe you can, but I can’t. I just got tired of it and let her go.”
With this kind of reference, I believe that it would be difficult to successfully respond to a Request for Qualifications from the City if you were a key member of the applicants’ group.
If you would like to discuss this further, you may call me at the above telephone number or at the Community Development Coalition [ ...].
Very Truly Yours,
Rudolph V. Tolbert

Although Tolbert never considered Walker for employment, his business venture never transpired. Tolbert also testified that he thought nothing less of Walker or her capabilities as a result of the recommendation. Furthermore, Walker adduced no testimony that any other person heard the publication or was affected by it. Based on the statements attributed to Perin in Tolbert’s letter, Walker brought this action claiming that he defamed her. The jury awarded her $23,500 on the defamation claim. Perin appeals this verdict claiming that the trial court should have granted, for various reasons, his motion for a judgment notwithstanding the verdict. He also raises several other arguments, which we address in turn.

I. DEFAMATION

Perin argues that the trial court should have directed a verdict or alternatively granted his motion for a judgment notwithstanding the verdict on the defamation claim because Perm’s statements are not capable of defamatory meaning and because Walker suffered no damage by their utterance. Our standards of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We may reverse only if we find an abuse of discretion or an error of law which controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). We must also consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to Walker, the verdict winner. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). We have summarized the evidence in this manner above and now proceed to Perm’s claims.

Perin claims first that his statements are incapable of defamatory meaning. Any defamation action begins with the court’s legal determination of whether the spoken words are capable of impugning the reputation of the person who alleges the defamation. Sobel v. Wingard, 366 Pa.Super. 482, 531 A.2d 520 (1987). A publication is defamatory if it is intended to harass the reputation of another so as to lower him or her in the estimation of the community or if it tends to deter third persons from associating or dealing with him or her. Id. at 485, 531 A.2d at 522; Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). When considering defamatory meaning, the court must determine what effect the statement is fairly calculated to produce and the impression it would naturally engender in the minds of average persons among whom it is intended to circulate. Corabi, 441 Pa. at 447, 273 A.2d at 907; Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). A statement which ascribes to another conduct, character, or a condition which would adversely affect her fitness for the proper conduct of her lawful business, trade or profession is defamatory. Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986). It is well established, however, that a statement which is a mere expression of opinion is not. Baker v. Lafayette College, 350 Pa.Super. 68, 504 A.2d 247 (1986).

Viewing Perm’s statements in the context in which they were made, it is clear that many of his statements were opinions. Perm’s assertion that he “did not have a lot of success” with Walker was nothing more than an assessment of her performance in light of his expectations. Likewise, his feeling that “I don’t know if she can do it,” the statement that Walker was “too liberal with personnel” and his conclusion that “I just can’t make money like that” cannot be interpreted as reflecting on Walker’s reputation within the business community because they express Perm’s subjective viewpoint. Whether Perin is “picky” or “unfair,” as Walker testified, is not subject to scrutiny. Perin is entitled to value Walker’s addition to his business in any way he wishes, so long as these áre his personal judgments. We find that these particular statements are not actionable as slander.

We cannot say the same for the remaining statements, however, for even if they could be viewed as part of Perm’s overall assessment of his business judgment regarding Walker’s performance, they “imply the existence of undisclosed defamatory facts justifying the opinion,” Baker v. Lafayette College, supra, 350 Pa.Super. at 79, 504 A.2d at 252, and thus are capable of defamatory meaning. For example, Perm’s statement that Walker’s position at Pocono might have been “beyond her capabilities” implies that Walker’s background or ability is somehow deficient for a position in the recycling/marketing field. This implication could tend to undermine the community’s confidence in her ability for potentially fallacious reasons. Moreover, Perm’s accusation that Walker did not show up for work on Mondays after working a hard week is not an opinion at all — it is a statement of fact which, if proven to be untrue, could have a devastating effect on Walker’s reputation. Since we must view the evidence in a light most favorable to Walker, we conclude that these comments, even though laden with opinions, were capable of defamatory meaning.

Perin claims next that judgment notwithstanding the verdict should have been granted because Walker suffered no damage; Tolbert’s venture never transpired and he was unaffected by the utterance of the words. Contrarily, Walker argues that since Perm’s statements impugned her business reputation, she was a victim of slander per se. She therefore contends that damages are presumed and any further inquiry into damages flowing from the statements is unnecessary. We cannot agree with Walker’s contention.

It is beyond any reasonable cavil that a publication in which the speaker imputes to another conduct, characteristics, or a condition that would adversely affect her in her lawful business or trade is termed a “slander per se.” Thomas Merton Center v. Rockwell Internad Corp., 497 Pa. 460, 442 A.2d 213, cert. denied, 457 U.S. 1134, 102 S:Ct. 2961, 73 L.Ed.2d 1351 (1982); Restatement (Second) of Torts, § 573. The exact effect, however, of characterizing a slander as “per se ” under Pennsylvania law is open for interpretation. At common law, slander per se entitled a jury to award any amount of damages without reference to whether the plaintiff proved the existence of any actual harm.

When one’s reputation is impaired, this affects one’s relations with others, including business, social, religious, and family. The impairment does interfere in a variety of unpredictable and unknowable ways with the enjoyment of life. Under the English and American common law, as heretofore explained, harm to reputation was presumed from the publication of a libel or a slander per se. Therefore, actual damages were normally assessable by the jury without proof by the plaintiff that there had been any impairment of reputation. Thus, general damages at common law were an estimate, however rough, of the probable extent of actual loss a person had suffered and would suffer in the future, even though the loss could not be identified in terms of advantageous relationships lost, either from a monetary or enjoyment of life standpoint.

Prosser, Torts, § 166(a) (notes omitted).

The Second Restatement of Torts, however, exhibits a concern for the relative inability of courts to control the amount of damages awarded by juries under the common law. It therefore requires a victim of slander per se to make some showing of general damage, although she need not prove “special damage,” i.e., monetary or out-of-pocket loss borne by the defamation. See Restatement (Second) of Torts, § 573.

One who is liable for a defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed.

Id., § 621. A comment to this section indicates that proof of actual damage is a requirement for all slander actions; the only difference between actions which are per se and those which are actionable only upon proof of an “innuendo” is that in per se cases a plaintiff need not establish pecuniary or economic loss. Id Under the Second Restatement, a plaintiff in a slander per se case must show “general damages”: proof that one’s reputation was actually affected by the slander, or that she suffered personal humiliation, or both.

In Pennsylvania, our legislature seemingly abrogated the common law rule of truly “presumed damage” when it codified the prerequisites for recovering in a defamation action. 42 Pa.C.S.A. § 8343 provides:

Burden of Proof
(а) Burden of Plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its communication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(б) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.

Id (emphasis added). Section 8343, however, only requires the plaintiff to prove special damage in cases where “the issue is properly raised.” Is the issue of special damage properly raised in a case of slander per se?

Although the statute does not expressly provide the answer, it presumably does not overrule the long line of cases in our Supreme Court which hold that a slander per se is actionable without proof of special damage. Halliday v. Cienkowski, 333 Pa. 123, 3 A.2d 372 (1939) (name-calling such as “Scotch-bitch,” “bastard,” and “bum” not actionable without proof of special damage); Solosko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1956) (Referring to a person as a “communist” in the community imputes criminal behavior and is actionable without proof of special damage); Fox v. Kahn, 421 Pa. 563, 221 A.2d 181 (1966); Baird v. Dun & Bradstreet, 446 Pa. 266, 285 A.2d 166 (1971). Thus, we can state firmly that a plaintiff who pleads and proves slander per se need not prove special damages in order to recover. But does she need to prove general damage?

The answer to such a fundamental question has proved to be quite elusive under Pennsylvania law. Notably, the United States Supreme Court has held that in defamation cases brought by private plaintiffs against media defendants, the First Amendment prohibits the states from awarding presumed or punitive damages, absent a showing of “actual malice.” Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Gertz court balanced the states’ interest in compensating a victim of defamation with the public interest in allowing the press constitutional “breathing room” to disseminate information to the public without fear of exacting state scrutiny.

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinions rather than to compensate individuals for injury sustained by the publication of false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

Gertz, 418 U.S. at 349, 94 S.Ct. at 3011-3012. In Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), a plurality of the Court held that the First Amendment limitation on presumed and punitive damage awards applies only when the defamatory publication involves a matter of public concern. Thus, under Gertz and Dun & Bradstreet, it is conceivable that the state could follow the common law rule in cases of libel and slander where a matter of “purely private concern” is at issue. Dun & Bradstreet, 472 U.S. at 761-762, 105 S.Ct. at 2946. On the other hand, there is nothing in these cases that would indicate that a state is ever required to award presumed damages. Therefore, the Supreme Court’s pronouncement on the subject does not resolve the question of whether damages can be presumed against Perm, a private person. The answer to the question is purely a matter of state law unaffected by the First Amendment.

This Court, however, has acknowledged the soundness of Gertz’s rationale. In Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984), we held that all libels whether libelous “on their face” or libelous only upon proof of an innuendo (libel per quod), are actionable without proof of special damage. Citing Gertz, we noted that “[g]iven these newly-articulated constitutional requirements of actual harm to the plaintiff and actual fault on the part of the defendant, there is no sense and no reason in jurisprudence to impose a further artificial restriction, in the form of the need to prove ‘special damages,’ on the defamed plaintiff who seeks recovery for a ‘libel per quod.’ ” Id., 334 Pa.Super. at 327, 483 A.2d at 473. We therefore eviscerated the distinction between libel per se and libel per quod and held that “[cjourts in libel cases should be guided by the same general rules that govern other types of tort recovery.” Id. at 329, 483 A.2d at 474. Unfortunately, Agriss was decided before Dun & Bradstreet, supra. Therefore, the basis upon which that case requires all libel plaintiffs to prove actual damage — Gertz’s constitutional limitation on awarding presumed damages — is not a valid basis on which to do so, at least in the case of a defamation involving a purely private matter. Thus, the question of whether certain classes of defamation plaintiffs are entitled to recover without proving general damages is conspicuously left unanswered. Agriss’ reference to Gertz, however, does indicate that this Court entertains a policy against allowing damages without any proof of actual harm. But is it the law?

Reference to cases on the subject offer little express guidance. In Solosko v. Paxton, supra, for example, our Supreme Court decided an interesting case in which the plaintiff, a prominent doctor, sued a man for accusing him, at community events, of being a communist. A jury returned a verdict in favor of the plaintiff for $10,000 and the defendant appealed, claiming that the plaintiff failed to prove special damage. The court wrote:

Generally speaking, damages for defamatory words when spoken are not recoverable in the absence of proof of special damages. Among the well established exceptions to this general rule are words, falsely spoken, imputing the commission of a crime involving moral turpitude, for which the party might be indicted and punished. Such words are held to be slanderous per se and proof of special damages in those instances is not required to support a recovery: Restatement, Law of Torts, 571, and cases cited in Pennsylvania Annotations thereto.

Id., 383 Pa. at 419, 119 A.2d at 232. The court therefore concluded that since being a member of the Communist Party at that time could arguably subject the plaintiff to criminal liability, he was not required to prove special damages at trial. The court, however, held that the jury verdict “under all the circumstances presented in [the] record,” was excessive. It therefore ordered a remittitur of $6,500. Id., 383 Pa. at 419, 119 A.2d at 233.

Paxton is enlightening, however, not for what it says, but for what it does. Although the Supreme Court does not indicate whether the plaintiffs damages were presumed by the mere utterance of the slanderous words, it does review the record for some objective basis upon which the jury award was based. If damages were truly “presumed,” the court would have no means by which to evaluate the jury award, because as Prosser notes, supra, no evidence of damages would ever have been presented to the jury. The Supreme Court’s very act of reviewing the record for ground upon which the jury may award damages implies what has never been said — the burden is on the plaintiff to establish at least general damages. See Wilson v. Benjamin, 332 Pa.Super. 211, 481 A.2d 328 (1984) (allegation that libel per se plaintiff failed to show damage fails where record supports finding plaintiff was injured by defamatory statements). Moreover, if a plaintiff in a slander per se case were not required to prove any damages whatsoever, why does a rule of Pennsylvania law provide that she need not prove “special” damages? Why not hold that an alleged victim of a slander per se has no duty to plead “damage” and leave it at that?

We are convinced, and therefore hold, that Section 621 of the Restatement (Second) of Torts accurately states the law of Pennsylvania with regard to damages in cases of slander per se. Namely, a defendant who publishes a statement which can be considered slander per se is liable for the proven, actual'harm the publication causes. This is consistent with our Supreme Court’s tendency to adopt the Second Restatement of Torts in defamation matters. See Agriss, supra, 334 Pa.Super. at 326, 483 A.2d at 473 (acknowledging same).

Moreover, our holding is consistent with our state’s policy of compensating, in full, a plaintiff who has proven her right to redress, while ensuring that we do so in a manner that is not unfair to the liable party:

[D]amages are to be compensatory to the full extent of the injury sustained, but the award should be limited to compensation and compensation alone. Expressed more concisely by Chief Justice Gibbon, speaking for the Court [...]:
“The rule is to give actual compensation, by graduating the amount of damages exactly to the extent of the loss.”
Moreover, except in those cases where public policy allows punitive damages, the loss sustained should be compensated with the least burden to the wrongdoer consistent with the idea of fair compensation to the injured.

Incollingo v. Ewing, 444 Pa. 299, 307, 282 A.2d 206, 228-229 (1971) (internal citations omitted). Requiring the plaintiff to prove general damages in cases of slander per se accommodates the plaintiffs interest in recovering for damage to reputation without specifically identifying a pecuniary loss as well as the court’s interest in maintaining some type of control over the amount a jury should be entitled to compensate an injured person. On one hand, a slander per se plaintiff is relieved of the burden to actually prove pecuniary loss as the result of the defamation; yet on the other hand, a jury will have some basis upon which to compensate her. Allowing the plaintiff to submit a claim for redress upon the presumption that she was damaged, especially in a case such as this, where the record is patently clear that no harm was suffered, requires the court to blindly follow a rule of law without regard to the reality of the situation presented. We cannot sanction, nor can we find that our Supreme Court has ever intended to sanction, such a rule.

Here, it becomes clear upon reviewing the record that the jury was not presented with evidence upon which it could base an award of damages, even if it could have found that Perm was not privileged to make the statements he did. The defamatory statement was spoken to one person, Tolbert, so that he could evaluate Walker and develop a marketing team for a venture that never transpired. Tolbert testified that he thought no less of Walker personally and that his opinion of her capabilities was unaffected by the defamation. There was no evidence that the words were repeated to anyone other than Tolbert or that they had any adverse effect on her job search. Walker did not testify that she suffered any adverse emotional reaction or that they impeded her ability to gain employment. These circumstances cannot, under Pennsylvania law, permit recovery for a slander per se.

Judgment notwithstanding the verdict should have been granted in favor of Perin and Grand Central. We therefore reverse the order of court and instruct the trial court to enter the JNOV.

II. BREACH OF CONTRACT

Perin also claims that no evidence supported the jury’s $5,500 verdict for breach of contract. Walker claimed that Perin agreed to pay her certain commissions and vacation salary at the time of hiring. For the same reasons that we granted Perin relief above, we must deny him here; Walker’s testimony and her demonstrative evidence provide a more than sufficient basis, even if not mathematically precise, upon which it could find that Perin was liable to Walker for a breach of contract in the amount of $5,500. We therefore affirm the trial court with respect to this issue.

We affirm in part, reverse in part, and remand for entry of a judgment notwithstanding the verdict with regard to the jury’s award for Walker’s defamation claim. Jurisdiction is relinquished.

Dissenting Statement by JOHNSON, J.

JOHNSON, Judge,

dissenting:

On this submitted appeal, I would affirm on the Opinion of the Honorable James C. Hogan. A plaintiff in Pennsylvania need not prove special damages or harm in order to recover. See Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). Judge Hogan properly viewed this to be a question for the jury. Accordingly, I must respectfully dissent.

      . 43 Pa.S.A. § 951 et seq. The trial court correctly held that Walker had no right to a jury trial under the Act, Murphy v. Cartex, 377 Pa.Super. 181, 546 A.2d 1217 (1988), and thus disallowed the jury to consider this claim.

      . In fact, Walker’s counsel admitted that he was uncertain whether any other potential employer received any recommendation from Perin whatsoever:
      Counsel: Yóur Honor, the count defamation we have to show that she made various applications through various people, including she then received a letter, and I can’t go any further than the letter. I have to bring Mr. Tolbert as to the defamation. In addition I think it is also relevant that she made hundreds of applications, of which we have lumped them all together, and it is our argument to the jury that in addition to Mr. Tolbert that there were other employers who received the same sort of response, and she was turned down for hundreds of jobs.
      The Court: Are you able to prove that?
      Counsel: No Your Honor, I can’t. As to Mr. Tolbert, then, I can do that because I have him.
      N.T. 11/18/91, at p. 203.

      . The jury also awarded Walker $5,500 on her breach of contract claim. This verdict is also challenged on this appeal and treated separately at p. 245, infra.

      . Until now, we have avoided a discussion of whether Perin could avail himself of a conditional privilege to defame Walker. Normally, a former employer has a conditional privilege to communicate defamatory information when asked by a prospective employer to evaluate the employee’s performance. Daywalt v. Montgomery, 393 Pa.Super. 118, 573 A.2d 1116 (1990); Geyer v. Steinbronn, supra, 351 Pa.Super. 536, 506 A.2d 901. Although our review of the record fails to reveal any factual basis for the jury's finding that the privilege was abused — the statement was made to one person who requested it and was not affected by it — we acknowledge that this is not our province. Any further discussion of privilege is unnecessary, however, since we have concluded that Walker could not recover on the basis that she suffered no damage.

      . Walker did present to the court two witnesses, who testified that Walker was depressed as a result of the statements. Since these statements were introduced for the purpose of Walker’s discrimination claim only, outside of the jury’s consideration, we cannot consider them for purposes of the defamation claim.

      . We need not review Perm’s remaining claims, whether the trial court should have severed Walker's discrimination claim because the jury could have been prejudiced by references to her race and whether the jury was prejudiced by a reference to Perin’s brother's alleged drug use, as they are rendered moot by our findings regarding Walker’s defamation claim above. The jury’s consideration of the breach of contract action could not have been affected by the allegedly prejudicial comments.


author: WIEAND, Judge.

text:
    634 A.2d 245
    COMMONWEALTH of Pennsylvania v. Kim T. ROGERS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Nov. 17, 1993.

      Scott W. Schreffler, Seneca, for appellant.
    Gerald L. Cassady, Dist. Atty., Franklin, for Com., appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge.

Without prior approval by the Pennsylvania Department of Transportation, Kim T. Rogers erected at his Dairy Queen Restaurant in Venango County a ninety-five (95) foot sign which penetrated the approach area to runway 02 at the Chess Lamberton Airport. Rogers was cited for violating 74 Pa. C.S. § 5701(a) and (b). After being found guilty before a district justice, Rogers appealed to the Court of Common Pleas of Venango County. There, following a trial de novo, Rogers was again found guilty of violating the statute. Post-trial motions were denied, and Rogers was ordered to pay a fine of three hundred ($300.00) dollars.. On appeal, Rogers argues that in the absence of an air easement or a zoning ordinance regulating the height of signs, the enforcement of Section 5701 of the Aviation Code was an unconstitutional taking of his property without just compensation. The Commonwealth argues, however, that 74 Pa.C.S. § 5701 is a proper exercise of the police power and, as such, can be enforced against Rogers without first making compensation.

The provisions of 74 Pa.C.S. § 5701 are as follows:

(a) Obstructions to aircraft within approach area. — A person who erects and maintains any smokestack, flag pole, elevated tank, radio station tower, antenna, building, structure, any object of natural growth or other obstruction to the operation of aircraft within an approach area that extends above an inclined plane without first obtaining prior approval thereof from the department commits a summary offense. Each day a violation of this subsection continues constitutes a separate offense.
(b) Structures in close proximity to airport. — A person who erects a new structure or adds to an existing structure in violation of guidelines or regulations adopted by the Federal Aviation Administration of the United States Department of Transportation, or who erects the structure with respect to the airport without, in either event, first obtaining prior approval from the department, commits a summary offense.
(c) Definition. — As used in this section the term “approach area” includes all that area lying within and above an inclined plane, starting at each end of each runway or landing strip of a public-use airport, as described by guidelines or regulations adopted by the Federal Aviation Administration of the United States Department of Transportation.

One who challenges the constitutionality of a statute bears a heavy burden. In Dansby v. Thomas Jefferson University Hospital, 424 Pa.Super. 549, 623 A.2d 816 (1993), the Superior Court observed:

Lawfully enacted legislation enjoys a presumption of constitutionality. All doubts relating to the constitutionality of a challenged enactment must be resolved in its favor. Edmonds v. Western Pennsylvania Hospital Radiology Associates, 414 Pa.Super. 567, 574, 607 A.2d 1083, 1087 (1992). A party raising a constitutional challenge bears the burden of rebutting the presumption of constitutionality by a “clear, palpable, and plain demonstration that the statute violates a constitutional provision.” James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 142, 477 A.2d 1302, 1304 (1984). See also: Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975).

Id. 424 Pa.Super. at 553, 623 A.2d at 818 (1993).

With respect to the takings clause of the United States Constitution, the United States Supreme Court has said:

The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” Most of our cases interpreting the Clause fall within two distinct classes. Where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982). But where the government merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole. See, e.g., Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123-125, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.

Yee v. City of Escondido, California, — U.S.-,-, 112 S.Ct. 1522, 1526, 118 L.Ed.2d 153, 162 (1992). Here, it is the second category of taking which is at issue, for appellant has alleged that a state statute has deprived him of economically beneficial or productive uses of his land. In such situations, “the Fifth Amendment is violated when land-use regulation ‘does not substantially advance legitimate state interests or denies an oumer economically viable use of his land.’ Lucas v. South Carolina Coastal Council, — U.S.-,-, 112 S.Ct. 2886, 2894, 120 L.Ed.2d 798, 813 (1992), quoting Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 112 (1980). Thus, “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Lucas v. South Carolina Coastal Council, supra at-, 112 S.Ct. at 2895, 120 L.Ed.2d at 815 (footnote omitted).

The state’s police power has been described by the Pennsylvania Supreme Court as follows:

The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. “It has long been recognized that property rights are not absolute and that persons hold their property ‘subject to valid police regulation, made, and to be made, for the health and comfort of the people....’” De Paul v. Kauffman, 441 Pa. 386, 393, 272 A.2d 500, 504 (1971), quoting Nolan v. Jones, 263 Pa. 124, 131, 106 A. 235, 237 (1919). It must be recognized that one who challenges the constitutionality of the exercise of the state’s police power, affecting a property interest, must overcome a heavy burden of proof to sustain that challenge. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928); Hadacheck v. Los Angeles, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Philadelphia v. Watt, 162 Pa.Super. 433, 57 A.2d 591 (1948).

Commonwealth v. Barnes & Tucker Co., 472 Pa. 115, 123, 371 A.2d 461, 465 (1977), appeal dismissed, 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). With respect to the police power of the state, the Court has observed further as follows:

Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent domain, compensation is given for property taken, injured or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property. Under the 14th Amendment, property cannot be taken except by due process of law. Regulation under a proper exercise of the police power is due process, even though a property in whole or in part is taken or destroyed. The conditions on which its legitimate exercise is predicated should actually exist or their happening be so likely that restraint is necessary, similar to a court issuing a restraining order for injuries done or threatened to persons or property. Likewise, there should be a reasonable and substantial relation between the thing acted on and the end to be attained, one that promotes health, safety or general welfare, necessary to the common good, and a reasonable demand for regulation, not one that is merely an unnecessary “experimentation [or interference] with the fundamental fights of the individual”: Truax v. Corrigan, 257 U.S. 312, 338 [42 S.Ct. 124, 131, 66 L.Ed. 254 (1921) ].
While the tribunal to determine the proper exercise is in the first instance the legislature, the ultimate decision rests with the courts. If after investigating there is doubt as to whether the statute is enacted for a recognized police object, or if, conceding its purpose, its exercise goes too far, it then becomes the judicial duty to declare the given exercise of the police power invalid: Nolan v. Jones, 263 Pa. 124, 127 [106 A. 235]; Miller v. Los Angeles, [195 Cal. 477] 234 Pac. (Cal.) 381 [ (1925) ]; Walls v. Midland Carbon Co., 254 U.S. 300 [41 S.Ct. 118, 65 L.Ed. 276 (1920)]. “The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts”: Lawton v. Steele, 152 U.S. 133, 137 [14 S.Ct. 499, 501, 38 L.Ed. 385 (1894) ]. The power of judicial investigation does not concern itself with the wisdom of the policy emanating from the legislative branch, or whether the best of all possible means of achieving the desired result has been selected. It is concerned only with the questions of whether the statute has a recognized police purpose, and whether it has a reasonable relation to the object to be attained.
Generally, the right concerns, as here, property and rights issuing out of it. No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power: C., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561 [26 S.Ct. 341, 50 L.Ed. 596 (1906) ]; Salem v. Maynes, 123 Mass. 372 [ (1877) ]; In re Cherry, 201 App. Div.N.Y. 856, 193 N.Y.S. 57, affirmed 234 N.Y. 607, 138 N.E. 465 [ (1922) ]. Property is held under the implied obligation that the owner shall use it in such way as not to be injurious to the community: Windsor v. Whitney, 95 Conn. 357, 111 Atl. 354 [ (1920) ].

White’s Appeal, 287 Pa. 259, 264-265, 134 A. 409, 411-412 (1926). See: Miller & Son Paving, Inc. v. Wrightstown Township, 499 Pa. 80, 88, 451 A.2d 1002, 1006 (1982) (“Reasonable restrictions are valid exercises of the police power and not unconstitutional takings under the power of eminent domain.”).

Pursuant to the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., Congress exercised its power under the commerce clause to regulate air commerce by providing that there is a “public right of freedom of transit through the navigable airspace of the United States.” 49 U.S.C. § 1304. See: Shipp v. Louisville and Jefferson County Air Board, 431 S.W.2d 867, 869 (Ky.1968), cert. denied, 393 U.S. 1088, 89 S.Ct. 880, 21 L.Ed.2d 782 (1969). See also: County of Westchester v. Town of Greenwich, Conn., 793 F.Supp. 1195, 1203 (S.D.N.Y.1992); Jackson Municipal Airport Authority v. Wright, 232 So.2d 709, 711 (Miss.1970). “Navigable airspace” is defined at 49 U.S.C. § 1301(29) to “include airspace needed to insure safety in take-off and landing of aircraft.” Thus, “[t]he navigable airspace of the United States has been incorporated into the public domain.” County of Westchester v. Town of Greenwich, Conn., supra. See also: City of Oakland v. Nutter, 13 Cal.App.3d 752, 761, 92 Cal.Rptr. 347, 352 (1970); Shipp v. Louisville and Jefferson County Air Board, supra.

It has been observed that “the right to create and maintain obstructions and hazards on private property adjoining an airport may be limited by operation of the Federal Aviation Act of 1958, which places airspace needed to insure safety in take-off and landing as well as the airspace above the prescribed minimum altitude of flight within the public domain.” 2A C.J.S., Aeronautics & Aerospace, § 73, at 209 (footnote omitted). It is also “generally recognized that a state, or a municipality acting pursuant to legislative authorization may, in the exercise of the police power, impose restrictions upon the height of buildings and other structures by reasonable and nondiscriminatory regulations where such restrictions have a substantial relation to the public health, safety, and welfare----” 8 Am.Jur.2d, Aviation, § 59, at 417 (footnote omitted). Nevertheless, the privilege to use the navigable air space does not automatically mean “freedom from liability for damage or demonstrable pecuniary loss to property owners below. Flights are not immune from private litigation, whether in the process of take-off or landing.” Martin v. Port of Seattle, 64 Wash.2d 309, 316, 391 P.2d 540, 545 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610 (1965). Thus, “[l]ow altitude flights which unreasonably interfere with the use and enjoyment of the land represent a trespass or partial taking creating a right to compensation.” County of Westchester v. Town of Greenwich, Conn., supra at 1203. See: United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). “Even when such flights fall within the navigable airspace, and therefore use of this low altitude airspace is authorized, compensation is still required for the taking.” County of Westchester v. Town of Greenwich, Conn., supra at 1204. See: Griggs v. County of Allegheny, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).

The Federal Aviation Act at 49 U.S.C. § 1501 requires that any person who proposes to construct or make alterations to a structure in close proximity to an airport must give notice of such proposed construction to the FAA. See: 14 C.F.R. § 77.13 (FAA regulations governing when notice of construction is required). The FAA then makes a determination as to whether or not the proposed construction constitutes a hazard to air navigation. However, such a determination by the FAA has no enforceable legal effect. “The FAA is not empowered to prohibit or limit proposed construction it deems dangerous to air navigation.” Aircraft Owners and Pilots Ass’n v. FAA, 600 F.2d 965, 967 (D.C.Cir.1979). See also: Air Line Pilots’ Association International v. FAA, 446 F.2d 236 (5th Cir. 1971). Rather, such regulation has been left to the states. Thus, although Congress has concerned itself with the hazards posed by tall structures, it has left untouched the legal enforcement of standards, which are peculiarly adapted to local regulation. Therefore, the states may legislate concerning such matters. See: Aeronautics Commission of Indiana v. State ex rel. Emmis Broadcasting Corp., 440 N.E.2d 700, 706 (Ind.App.1982). See also: Kupster Realty Corp. v. State, 93 Misc.2d 843, 848-850, 404 N.Y.S.2d 225, 230-231 (1978).

In Pennsylvania, the Aviation Code provides:

§ 5501. Ownership of space
(a) General rule. — The ownership of the space over and above the lands and waters of this Commonwealth is declared to be vested in the owner of the surface beneath, but the ownership extends only so far as is necessary to the enjoyment of the use of the surface without interference and is subject to the right of passage or flight of aircraft. Flight through the space over and above land or water, at a sufficient height and without interference to the enjoyment and use of the land or water beneath, is not an actionable wrong unless the flight results in actual damage to the land or water, or property thereon or therein, or use of the land or water beneath.

74 Pa.C.S. § 5501(a). See: Hinman v. Pacific Air Lines Transport Corp., 84 F.2d 755, 758 (9th Cir.1936), cert. denied, 300 U.S. 654-655, 57 S.Ct. 431, 81 L.Ed. 865 (1937); Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 533, 123 A.2d 636, 644 (1956).

The legislature in Pennsylvania has provided further as follows:

§ 5912. Power to adopt airport zoning regulations
(a) General rule. — In order to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the' conditions prescribed in this subchapter and in applicable zoning law unless' clearly inconsistent with this subchapter, airport zoning regulations for such airport hazard area. The regulations may divide the area into zones and, within the zones, specify the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow. A municipality which includes an airport hazard area created by the location of a public airport is required to adopt, administer and enforce zoning ordinances pursuant to this subchapter if the existing comprehensive zoning ordinance for the municipality does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow in an airport hazard area.
(b) Joint airport zoning board. — Where any airport hazard area appertaining to an airport is located outside the territorial limits of the municipality encompassing the airport, all of the municipalities involved may, by ordinance or resolution, create a joint airport zoning board which shall have the same power to adopt, administer and enforce airport zoning regulations applicable to the airport hazard area in question as that vested by subsection (a) in the municipality within which the area is located. Each joint airport zoning board shall have as members two representatives appointed by each municipality participating in its creation and, in addition, a chairman elected by a majority of the members so appointed.
(c) Definition. — As used in this section the word “airport” does not include facilities designated as heliports and which can be used only by rotary wing aircraft, nor airports which are private airports.

74 Pa.C.S. § 5912; and:

§ 5920. Acquisition of air rights
In any case in which it is desired to remove, lower or otherwise terminate a nonconforming structure or use, or the approach protection necessary cannot, because of constitutional limitations, be provided by airport zoning regulations, or it appears advisable that the necessary approach protection be provided by acquisition of property rights, rather than by airport zoning regulations, the municipality within which the property or nonconforming use is located, or the municipality or municipal authority owning the airport or served by it, may acquire by purchase, grant or condemnation, in the manner provided by the law under which municipalities are authorized to acquire real property for public purposes, such air right, aviation easement or other estate or interest in the property or nonconforming structure or use in question as may be necessary to effectuate the purpose of this subchapter. In the case of the purchase of any property or any easement or estate, or interest therein, or the acquisition thereof by the power of eminent domain, the municipality making the purchase or exercising the power shall, in addition to the damages for the taking, injury or destruction of property, also pay the cost of the removal and relocation of any structure or any public utility which is required to be moved to a new location.

74 Pa.C.S. § 5920.

Based upon these sections of the Aviation Code, appellant argues that Venango County was required to prevent the occurrence of airport hazards through either the adoption of zoning regulations or the obtaining of easements, and not by the enforcement of section 5701 of the Code. Appellant contends that, in the absence of zoning regulations or an easement over his land, his ownership rights in the airspace were superior to the right of the County to operate the Chess Lamberton Airport. Thus, appellant’s argument continues, he was free to make any necessary or beneficial use of his land which he desired, and any prosecution based thereon would constitute an unconstitutional taking of his property without just compensation. We disagree.

In Flowers Mill Associates v. United States, 23 Cl.Ct. 182 (1991), the issue was whether a determination by the FAA that construction would present a hazard to air navigation constituted a taking under the Fifth Amendment. In holding that no taking had occurred, the United States Claims Court reasoned:

The Fifth Amendment guarantees that private property shall not “be taken for public use, without just compensation.” U.S. Const, amend. V. This guarantee is reinforced by the “safety net” of the Tucker Act, 28 U.S.C. § 1491. Florida Rock Indus. v. United States, 791 F.2d 893, 901 (Fed.Cir.1986). Traditionally, this constitutional guarantee prohibits the government from exercising its power of eminent domain in the name of the public good without justly compensating private landowners. The same protections have been extended into the area of inverse condemnation where no formal exercise of the power of eminent domain occurs. Inverse condemnation encompasses regulatory takings, and the Supreme Court has held that just compensation must be paid for governmental regulations which accomplish the same end as an exercise of the power of eminent domain. English Evangelical First Lutheran Church v. Los Angeles County, 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987).
The Fifth Amendment is not designed to limit governmental interference with property rights per se; it functions rather to secure compensation in the event of otherwise proper interference. Id. at 313, 107 S.Ct. at 2384. The well-established general rule has been that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). There is no concrete formula which delineates the precise point at which a regulation ends and a constitutional taking begins. Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962). A court instead must rely on ad hoc, factual inquiries into the circumstances of each case. Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224, 106 S.Ct. 1018, 1025, 89 L.Ed.2d 166 (1986).
It is clear that legitimate regulatory action does not constitute a compensable taking merely because the result may diminish the value of property or prevent its most beneficial use. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Skaw v. United States, 740 F.2d 932, 939 (Fed.Cir.1984). Rather, the Supreme Court has articulated factors for consideration by a court when deciding whether a compensable taking has occurred. These factors include: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct, investment-backed expectations; and (3) the character of the governmental action. Penn Central, 438 U.S. at 124, 98 S.Ct. at 2659. The type of federal governmental action found to constitute a compensable taking generally involves activity which is equivalent to the physical invasion or destruction of substantial property rights.
[I]n this case, FAA’s determination that plaintiffs proposed construction in close proximity to an airport was a hazard to air navigation did not deprive the plaintiff of any property rights. FAA’s hazard finding was advisory only and not legally enforceable. A landowner is not required to obtain a permit from FAA before proceeding with development, and FAA has no power to prevent construction. Even assuming that the economic impact of the aviation regulations on • Flowers Mill would be great and that it would interfere with their distinct, investment-backed expectations, the FAA action cannot be the basis of a Fifth Amendment taking because of the voluntary nature of the regulatory scheme. Aircraft Owners and Pilots Ass’n v. FAA, 600 F.2d 965 (D.C.Cir.1979); Air Line Pilots Ass’n Int’l v. Department of Transp., FAA, 446 F.2d 236 (5th Cir.1971).

Flowers Mill Associates v. United States, supra at 188-189 (footnotes omitted). See also: 3775 Genesee St., Inc. v. State, 99 Misc.2d 59, 64-67, 415 N.Y.S.2d 575, 579-580 (1979); Kupster Realty Corp. v. State, supra. Compare: Fitzgarrald v. City of Iowa City, 492 N.W.2d 659 (Iowa 1992), cert. denied, — U.S. -, 113 S.Ct. 2343, 124 L.Ed.2d 253 (1993) (zoning ordinances did not constitute regulatory taking of land adjacent to airport even though market value of land had to some extent been diminished as a result of the ordinances).

By enacting 74 Pa.C.S. § 5701, the legislature empowered PennDot to enforce mandatory compliance with FAA regulations which are designed to identify potential hazards to air navigation. Owners of land adjacent to an airport are required to obtain approval from PennDot prior to erecting structures on their lands which would penetrate an approach area or which would otherwise create a hazard to aviation as identified by FAA regulations calling for notification prior to construction. See: 67 Pa.Code §§ 479.1-479.4. After a request for approval of proposed construction has been submitted, PennDot is charged with determining whether the proposed construction will constitute a hazard to aviation. Unlike the determination made by the FAA, PennDot’s determination is enforceable, rather than advisory. Thus, when a hazard is found to exist, PennDot may refuse to permit the proposed construction. See: Flowers Mill Associates v. United States, supra at 184-185. In order to ensure that landowners will comply with the requirement of prior approval by PennDot, the legislature has mandated that the failure to seek approval is a summary offense.

After careful review, we are persuaded that this statutory scheme, as established by section 5701 of the Aviation Code, is a proper exercise of the police power. The statute is designed to promote the public health, safety and welfare by establishing a framework through which PennDot can identify potential hazards and prevent the erection of obstructions to air traffic, thereby ensuring the safe operation of airports throughout this Commonwealth. That the Aviation Code also has provisions calling for counties and municipalities to protect airports through zoning regulations or the obtaining of air easements does not diminish the primary responsibility of PennDot to ensure the safety of air travel throughout the Commonwealth. PennDot’s authority under the Aviation Code is not dependent upon the duty of local governments to enact zoning laws to prevent airport hazards, but is independent of and primary to any determination made by local government authority. In this manner, PennDot can ensure that" the safety regulations promulgated by the FAA are applied uniformly throughout the Commonwealth to establish a minimum threshold of safety, irrespective of differing standards which may be adopted at the local level.

Finally and in any event, in the instant case it is clear that appellant, by virtue of his being prosecuted under section 5701 of the Aviation Code, has not been subjected to a taking of his property. Appellant was convicted for erecting a sign which violated FAA regulations without first obtaining the approval of PennDot as required by 74 Pa.C.S. § 5701. Because appellant did not seek prior approval, no decision was made by PennDot as to whether appellant should have been permitted to erect the sign. As such, there was no determination that appellant could not make full use of the airspace above his land as he desired. Appellant was prosecuted solely because he failed to obtain PennDot’s approval prior to erecting the sign. Had appellant complied with section 5701 and sought approval for construction of the sign, a decision refusing to allow the sign may have given rise to a claim that a “taking” had occurred under the Fifth Amendment and requiring compensation. Such an issue, however, is not presently before the Court and with respect thereto we express no opinion. Because appellant’s property has not been “taken” and because he was properly convicted of violating section 5701 of the Aviation Code, the judgment of sentence is, as it must be,

Affirmed.

      . The Chess Lamberton Airport is located partly in the townships of Franklin and Sandycreek and is owned and operated by Venango County.

      . Although the appeal in this case was filed prior to the entry of a judgment of sentence, Pa.R.A.P. 905(a) provides, in pertinent part, that "[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.” Accordingly, we will consider this appeal as properly taken from the judgment of sentence. See: Commonwealth v. Hamaker, 373 Pa.Super. 510, 512-513 n. 4, 541 A.2d 1141, 1142 n. 4 (1988).
      Neither party has objected to the jurisdiction of this Court to hear the appeal; and, therefore, pursuant to Pa.R.A.P. 741(a), we have not considered whether an appeal would more properly lie in the Commonwealth Court.

      . Appellant has not asserted a violation of the takings clause under Article 1, § 10 of the Pennsylvania Constitution. Accordingly we will confine our analysis to the takings clause of the Fifth Amendment of the United States Constitution. We note, however, that Article 1, § 10 of the Pennsylvania Constitution employs language similar to that of the Fifth Amendment, providing in pertinent part: ”[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” Pa.Constitution Article 1, § 10.

      . Findings by PennDot that hazards to aviation are presented by proposed construction may also affect the agency's decisions concerning the rating and licensing of airports as set forth at 74 Pa.C.S. § 5301(b)(1) (conferring upon PennDot the authority to ”[p]rovide for the examination, rating and licensing of airports.”).

      . A ruling by PennDot to deny a request for approval of construction in the vicinity of an airport will be subject to administrative review and hearing before a Department hearing officer and appellate review in the Commonwealth Court. See: 67 Pa.Code §§ 491.1-491.13. Moreover, an aggrieved landowner may bring an action for inverse condemnation to recover compensation if there has been a taking of land in violation of the Fifth Amendment of the United States Constitution or Article 1, § 10 of the Pennsylvania Constitution.