author: PER CURIAM:

text:
    546 A.2d 1209
    Chris DUNLAP and Brian Dunlap, Minors, by their Parent and Natural Guardian, Arlene HOFFMAN and Arlene Hoffman, in Her own Right v. STATE FARM INSURANCE COMPANY. Appeal of Brian DUNLAP.
    Superior Court of Pennsylvania.
    Argued May 26, 1988.
    Filed Aug. 23, 1988.

      Douglas Marshall, Philadelphia, for appellant.
    Mark C. Labrum, Philadelphia, for State Farm Ins. Co., appellee.
    Before BROSKY, ROWLEY and McEWEN, JJ.
   PER CURIAM:

This is an appeal from an order denying appellant’s petition to set aside an arbitrators’ award. For reasons stated infra, we now remand for further proceedings consistent with this opinion, and retain panel jurisdiction.

This matter arises from a motor vehicle accident which occurred on September 23,1983. Minor-plaintiff Chris Dunlap was struck and injured by an uninsured motorist, while his brother, minor-plaintiff Brian Dunlap, appellant herein, witnessed the incident, and allegedly suffered emotional distress therefrom.

Arlene Hoffman, the boys’ mother, filed a claim on behalf of both of her sons against her own carrier, appellee State Farm Insurance Company, pursuant to her policy’s uninsured motorist coverage. When the claim could not be resolved, Mrs. Hoffman filed, on behalf of her sons as well as in her own right, a petition to compel the appointment of arbitrators, also in accordance with her uninsured motorist coverage, which provided for the resolution of disputed claims by arbitration under the Pennsylvania Uniform Arbitration Acts of 1927 and 1980, upon the demand of the insured or the insurer. The petition to compel was granted, and, on August 20, 1987, the matter was heard before a board of arbitrators. The board found merit in Chris Dunlap’s claim, and awarded him twelve thousand dollars ($12,-000. 00) in compensation. The board, however, found no merit in Brian Dunlap’s emotional distress claim, and awarded him nothing.

A petition to set aside the arbitrators’ award as to appellant Brian Dunlap was filed in the Court of Common Pleas on September 23, 1987. The petition alleged that the arbitrators had committed numerous errors of law, entitling appellant to have the award as to him set aside. The court denied the petition on November 16, 1987, by order docketed November 19.

On November 19, 1987, a minor’s compromise petition was filed on behalf of Chris Dunlap for court approval of his award. The petition was granted by order of November 24, 1987, docketed December 2, 1987. This order was never reduced to final judgment.

On December 2,1987, a petition for reconsideration of the November 16 order, denying Brian Dunlap’s petition to set aside, was filed, followed by the filing of this appeal on December 9, 1987.

The provision governing appeals from court orders pertaining to statutory arbitration awards, is found at 42 Pa.C.S. § 7320, which states the following:

§ 7320. Appeals from court orders.

(a) General rule. — An appeal may be taken from:
(1) A court order denying an application to compel arbitration made under section 7304 (relating to proceedings to compel or stay arbitration).
(2) A court order granting an application to stay arbitration made under section 7304(b).
(3) A court order confirming or denying confirmation of an award.
(4) A court order modifying or correcting an award.
(5) A court order vacating an award without directing a rehearing.
(6) A final judgment or decree of a court entered pursuant to the provisions of this subchapter.
(b) Procedure. — The appeal shall be taken in the manner, within the time and to the same extent as an appeal from a final order of court in a civil action.

As can be discerned from a review of the above, a court order denying a petition to vacate, i.e. set aside, is not an appealable order under § 7320(a). Furthermore, while a petition to confirm the arbitration award in favor of Chris Dunlap was filed, and granted by the order of November 24, 1987, a petition to confirm the award denying appellant recovery has never been filed.

Moreover, were we to overlook appellant’s captioning of his appeal as from the November 16 order under Pa.R.A.P. 105(a), and treat this appeal as from the November 24 order confirming the arbitration award in favor of Chris Dunlap, we would still be lacking an appealable order. In Seay v. Prudential Property and Casualty Ins. Co., 375 Pa.Super. 37, 543 A.2d 1166 (1988), a panel of this court held that, while § 7320(a) designates certain orders as appealable, such as orders to confirm an award, see § 7320(a)(3), § 7320(a) must be read in conjunction with § 7316 of the 1980 Act, which provides the following:

§ 7316. Judgment or decree on award.

Upon the granting of an order of court confirming, modifying or correcting an award, a judgment or decree shall be entered in conformity with the order. The judgment or decree may be enforced as any other judgment or decree. Subject to general rules, costs of any application to the court and of the proceedings subsequent thereto, and disbursements may be imposed by the court.

(Emphasis supplied.)

The Seay Court held that, when § 7320 and § 7316 are read together, it is clear that the appealable orders listed in § 7320(a) must be reduced to final judgment as provided in § 7316 before any appeal may be taken. As the November 24 order was never reduced to judgment, this appeal would still be premature.

However, despite the absence of a final order at this point in time, we nonetheless do not find it appropriate to quash the instant appeal.

Just as § 7320 cannot be read apart from § 7316, the dictates of § 7313 and § 7314(d) outlining the procedure to be followed in order to confirm an arbitrator’s award, must be taken into account as well:

§ 7313. Confirmation of award by court

On application of a party, the court shall confirm an award, unless within the time limits imposed by this subchapter, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in section 731j (relating to vacating award by court) or section 7315 (relating to modification or correction of award by court).

§ 7314. Vacating award by court

* * * * * *
(d) Confirmation of award. — If an application to vacate the award is denied and no application to modify or correct the award is pending, the court shall confirm the award. (Emphasis supplied.)

Reading § 7313 and § 7314(d) together, it would appear that, once appellant’s petition to set aside i.e. vacate was denied, it was not appellant’s obligation to file an application to confirm the award denying appellant recovery, but, rather, the obligation of the trial court to enter an order confirming the award simultaneously with the order denying appellant’s petition to set aside. Furthermore, it is clear that, prior to that action by the trial court, it was not incumbent upon appellant to reduce anything to final judgment. Indeed, there is no order, at this time, which may be reduced to judgment pursuant to § 7320(a).

In light of the foregoing, we now remand this matter to the trial court with the following instructions:

(1) upon remand, the trial court shall enter an order, in compliance with § 7314(d), confirming the award denying appellant Brian Dunlap recovery;

(2) upon entry of an order confirming the award denying appellant recovery, appellant shall reduce that order to final judgment, as required by § 7316, § 7320(a), and the Seay case;

(3) appellant shall then have thirty (30) days from the reduction of the confirmation order to final judgment, to transmit to this court a certified supplemental record, establishing compliance below with parts (1) and (2) of these instructions. If the supplemental record is not received in this Court within thirty (30) days of the entry of final judgment, the instant appeal shall be dismissed.

Remand for further proceedings consistent with this opinion. Panel jurisdiction is retained.

      . Both parties, in their appellate briefs, refer to this matter as being governed by the Uniform Arbitration Act of 1927 only. A review of the policy, as contained within the record on appeal, indicates that both the 1927 Act and the 1980 Act are applicable. However, that aside, even if the parties are in agreement that this matter was to be resolved under the 1927 Act, that agreement does not, and cannot, dictate which act governs the taking of an appeal. Section 175 of the 1927 Act has been repealed, and Section 7320 of the 1980 Act now controls the manner and time for the taking of statutory arbitration appeals. Cf. Seay v. Prudential Property and Casualty Ins. Co., 375 Pa.Super. 37, 543 A.2d 1166 (1988) (where terms of insurance contract called for arbitration in accordance with provisions of 1927 Act, 42 Pa.C.S. § 7320 still governed appealability of order confirming arbitration award).

        Moreover, a review of 5 P.S. § 175 of the 1927 Act reveals that it closely tracks the language of 42 Pa.C.S. § 7320. Hence, were we to find that the provisions of the 1927 Act govern the taking of this appeal, we would nonetheless reach the same result infra.

      . Under the 1927 Act, 5 P.S. § 172 also provides that an order confirming, modifying, or correcting an award shall be reduced to judgment. As such, our result today would, again, remain unaltered were we to apply the 1927 Act to the appeal process governing statutory arbitration orders.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    546 A.2d 1212
    DONEGAL MUTUAL INSURANCE COMPANY, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant. DONEGAL MUTUAL INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 3, 1988.
    Filed Aug. 24, 1988.

      Joel D. Smith, Lancaster, for appellant (at 3084) and appellee (at 3235).
    Michael J. Hohenadel, Lancaster, for appellant (at 3235) and appellee (at 3084).
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, BECK, KELLY, POPOVICH and MELINSON, JJ.
   WIEAND, Judge:

The issue in this appeal is whether an uninsured pedestrian, who has been struck by an insured vehicle, is a member of the household of a cousin from whom the pedestrian rented a room in order to have a place to stay when he was in Harrisburg. This issue must be determined in order to decide whether it is the insurer of the offending motor vehicle or the insurer of the cousin’s non-involved vehicle which is liable for basic loss benefits under the now repealed No-fault Motor Vehicle Insurance Act. Before reaching this issue, however, we must first determine whether the trial court abused its discretion by allowing appellant to file a motion for post-trial relief nunc pro tunc after a panel of this Court had quashed an earlier appeal for failure to file exceptions to the trial court’s decision.

On January 1, 1981, Frederick Goldsborough, an uninsured pedestrian, was struck and injured in Harrisburg, Pennsylvania, by a vehicle insured by Donegal Mutual Insurance Company (Donegal). Basic loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act were paid by Donegal. On May 25, 1982, however, Donegal filed an action against State Farm Mutual Automobile Insurance Company (State Farm) seeking a declaratory judgment that State Farm was primarily liable for Goldsborough’s basic loss benefits. Goldsborough, it was alleged, had resided with and had been a member of the household of his cousin, Kathryn E. Chivis, who had lived in Harrisburg and whose vehicle had been insured by State Farm. State Farm denied such liability, contending that Goldsborough’s principal residence had been in Wyoming, Delaware and that he had merely rented a room from his cousin so that he would have a place to stay while he was temporarily in Harrisburg. By agreement of the parties, the dispute was submitted to the trial court for decision on the basis of pre-trial depositions. The trial court determined that Golds-borough had been a member of the Chivis household and held that State Farm was liable for the payment of basic loss benefits. The court’s order, dated August 1, 1984, appeared to be a final order; it contained no reference to the filing of exceptions and found in favor of Donegal and against State Farm. Judgment was entered, upon praecipe, in accordance with the trial court’s decision.

An appeal was filed by State Farm on August 29, 1984. This appeal, however, was quashed by a panel of the Superior Court, whose memorandum recited that in the absence of exceptions the appeal was premature. Thereafter, on October 3,1986, the trial court, on motion, allowed State Farm to file exceptions nunc pro tunc. Pursuant thereto, State Farm filed a motion for post-trial relief. This motion was denied on the merits on October 31, 1986, by an order which entered judgment in favor of Donegal and against State Farm. State Farm filed a timely appeal from this judgment.

Whether to permit the nunc pro tunc filing of a motion for post-trial relief in the nature of exceptions is clearly within the discretion of the trial court, and its decision will not be reversed in the absence of a manifest abuse thereof. Pokrzywnicki v. Kozak, 353 Pa. 5, 7, 44 A.2d 247, 248 (1945). See also: Haefele v. Davis, 373 Pa. 34, 40, 95 A.2d 195, 198 (1953); Hinnershitz v. United Traction Co., 206 Pa. 91, 97, 55 A. 841, 843 (1903); Brodsky v. Philadelphia Athletic Club, 277 Pa.Super. 549, 553, 419 A.2d 1285, 1287 (1980). An abuse of discretion in allowing the nunc pro tunc filing of a motion for post-trial relief is not merely an error of judgment. Only if “the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will” can it be said that the trial court abused its discretion. See: Garrett’s Estate, 335 Pa. 287, 292-293, 6 A.2d 858, 860 (1939). Indeed, the discretion which the trial court exercises in allowing a post-trial motion to be filed nunc pro tunc is such that it will seldom, if ever, be reversed on appeal. Even where a reviewing court would have decided differently, it will not interfere with the trial court’s exercise of discretion. In the instant case, there is no basis whatsoever for finding that the trial court abused its discretion. There is not the slightest suggestion of “partiality, prejudice, bias, or ill-will”; and, as we shall demonstrate, the trial court’s exercise of judgment was not only reasonable but eminently correct.

In cases where trial courts, sitting without a jury, have entered orders which appear to be final, both the Supreme Court and this Court have excused failures to file exceptions and have entertained the merits of appeals from such orders. See, e.g.: Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976) (where nothing on face of order would indicate that it is anything but a final order, failure to file exceptions will be excused); Altomare v. Altomare, 355 Pa.Super. 391, 393 n. 1, 513 A.2d 486, 487 n. 1 (1986) (failure to file post-trial motions excused where order appears final); In re Estate of Do rone, 349 Pa.Super. 59, 64, 502 A.2d 1271, 1274 (1985), aff'd, 517 Pa. 3, 534 A.2d 452 (1987) (failure to file exceptions excused where order neither comports with Rule 1517 nor contains suggestion that exceptions must be filed); Storti v. Minnesota Mutual Life Ins. Co., 331 Pa.Super. 26, 28, 479 A.2d 1061, 1062 (1984) (same). On other occasions, when the reviewing court has deemed the appeal premature, it has remanded for the purpose of allowing an aggrieved party to file exceptions nunc pro tunc. See, e.g.: Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 568, 322 A.2d 341, 342 (1974) (case remanded for filing of exceptions where decree was “final”); Slotsky v. Gellar, 455 Pa. 148, 151, 314 A.2d 495, 496 (1974) (case remanded in interest of justice to allow exceptions to be filed nunc pro tunc); Miller v. Miller, 359 Pa.Super. 183, 186-187, 518 A.2d 841, 842-43 (1986) (case remanded for filing exceptions to decree which was “final”). In all of these cases, the reviewing court overlooked minor, procedural error in order to preserve the right of appellate review.

In the instant case, the trial court had entered an order which did not suggest by its express language or by necessary implication that the order was not intended to be final. Not only did the order appear to be final, but a judgment was actually entered on the basis thereof. On appeal, a panel of this Court nevertheless determined that the trial court’s order was not final. It said: “Because no exceptions were filed ... this appeal is premature and must be quashed.” Thereafter, the trial court did what the panel of this Court might have done. It acted to preserve the right of appellate review by allowing exceptions to be filed nunc pro tunc. In this manner, the trial court was able to reconsider and pass upon the alleged errors which the appellant intended to argue on appeal; and, without prejudice to either party, the record in the trial court was readied for meaningful appellate review.

There was nothing in this Court’s quashing of the earlier, premature appeal which prevented the trial court from granting State Farm’s request for leave to file exceptions nunc pro tunc. Reviewing the merits of State Farm’s post-trial motion did not erode or undermine this Court’s prior decision which found an earlier appeal premature. For this Court to refuse to consider an appeal after the trial court had allowed appellant’s post-trial motion and then denied it on its merits would unfairly deprive appellant of any right of review of the trial court’s declaratory judgment. Because the trial court did not abuse its discretion by allowing post-trial motions to be filed nunc pro tunc and because elementary justice requires that State Farm have the right of appellate review, we consider the substantive aspects of this appeal.

Section 204 of the No-fault Act, supra, 40 P.S. § 1009.204 (repealed), established “categories and priorities as between insurers responsible for payment of benefits.” Schimmelbusch v. Royal-Globe Ins. Co., 247 Pa.Super. 28, 31, 371 A.2d 1021, 1023 (1977). This section provides, in pertinent part, as follows:

(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(2) an insured is the security under which the victim or deceased victim is insured;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident____

“In determining the applicable source of basic loss benefits under section 204’s priority system, the pertinence of each subsection must be considered seriatim — that is, the applicability of each preceding subsection must be excluded before the next may be considered.” Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 30, 457 A.2d 95, 97 (1983).

Although it is undisputed that Goldsborough himself was uninsured, Donegal contends that he was an insured under the policy of insurance which had been written by State

Farm to cover the vehicle owned by Kathryn Chivis. For purposes of interpreting the statute, we look to the definition of “insured” in Section 103 of the Act. There, we observe that

‘Insured’ means:
(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative of a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of a named insured if—
(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
(ii) in residence in the same household with a named insured.
An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

In the instant case, the issue is whether Goldsborough was “in residence in the same household with [Chivis].”

“The determination of one’s residency status for purposes of the [No-fault] Act constitutes a mixed question of law and fact and, therefore, the trial court’s finding is reviewable by this Court.” Boswell v. South Carolina Ins. Co., 353 Pa.Super. 108, 118, 509 A.2d 358, 363 (1986). This is peculiarly so where, as here, the trial court did not benefit from observing the witnesses but relied, as must we, upon a transcript of depositions taken prior to submission of the issue to the trial court for decision. See: Estate of McKinley, 461 Pa. 731, 734 n. 1, 337 A.2d 851, 853 n. 1 (1975); American Express Co. v. Burgis, 328 Pa.Super. 167, 172, 476 A.2d 944, 947 (1984); Bell v. Bell, 326 Pa.Super. 237, 239, 473 A.2d 1069, 1070 (1984).

The term “household” is defined as “[a] family living together.” Black’s Law Dictionary 666 (5th ed. 1979). See: Schurler v. Industrial Commission, 86 Utah 284, 289-91, 43 P.2d 696, 699 (1935). “The term ‘household’ is generally synonymous with ‘family’ for insurance purposes, and includes those who dwell together as a family under the same roof.” Black’s Law Dictionary 666 (5th ed. 1979). See: Van Overbeke v. State Farm Mutual Automobile Ins. Co., 303 Minn. 387, 391-93, 227 N.W.2d 807, 810 (1975). See also: Bartholet v. Berkness, 291 Minn. 123, 125-27, 189 N.W.2d 410, 412 (1971). The term does not apply to a relative, however close, who lives elsewhere; nor does it apply to a resident of the same residence who is not a member of the family, i.e., one who enjoys all the prerogatives of family life. State Farm Mutual Automobile Ins. Co. v. Snyder, 122 Ga.App. 584, 585-86, 178 S.E.2d 215, 216 (1970). See also: 6C Appleman, Insurance Law and Practice (Buckley ed.), § 4411. Thus, “one who, though related and living in the same home, maintains a separate apartment therein and divides the expense of maintenance” is not a member of the same household as an insured who resides there. 6C Appleman, Insurance Law and Practice (Buckley ed.), § 4411. Similarly, a son and daughter-in-law who live in the parents’ home but who have separate bedrooms and living rooms, who buy their own groceries and usually do not eat with the parents, and who divide utility bills with the parents, as a matter of law, are not members of the parents’ household. Hoff v. Hoff, 132 Pa.Super. 431, 1 A.2d 506 (1938). So also, a mother who resides in a building owned by her daughter, but who pays rent and utilities, has a separate entrance, has her own kitchen, and does her own cooking is not a member of the same household as her daughter. Drake v. Donegal Mutual Ins. Co., 422 F.Supp. 272 (W.D.Pa.1976). And, a son and grandson are not members of the grandfather’s household where they are living in the grandfather’s home under a temporary arrangement, where the son has stored rather than sold his furniture, and where the two families to a large extent maintain their separate identities. Mission Ins. Co. v. Ward, 487 S.W.2d 449 (Mo.1972). Something more than mere temporary sojourn is required. A.G. by Waite v. Travelers Ins. Co., 112 Wis.2d 18, 21-22, 331 N.W.2d 643, 645 (1983). Finally, a landlady who rents a room to a boarder and charges him for meals is not a member of the boarder’s household within the terms of a liability policy covering injuries to persons other than those of the same household. Umbarger v. State Farm Mutual Automobile Ins. Co., 218 Iowa 203, 254 N.W. 87 (1934). See also: Rivera v. State Farm Mutual Automobile Ins. Co., 34 D. & C.2d 797 (Montg. 1964), aff'd, 205 Pa.Super. 30, 206 A.2d 338 (1965) (averment that cousin was boarder is not admission that cousin was member of insured’s household).

In the instant case, the trial court determined that Goldsborough’s principal place of residence was in Wyoming, Delaware, where he lived with his mother for at least nine months of the year. When he frequently travelled to Baltimore, Harrisburg, Philadelphia, New York, and New Jersey, therefore, he did not change his residence. At the time of his accident, Goldsborough was staying in a basement room at 141 Eddington Avenue, Harrisburg, where his cousin, Kathryn Chivis, lived with her daughter, Quianna Agent, and Quianna’s father, Cornelius Agent. Goldsborough paid Chivis a room rental of thirty ($30) dollars per week. In addition to his right to occupy the room, Golds-borough was permitted to use the kitchen and laundry room and was allowed to watch television in the family room. However, he did not eat his meals with the family and was permitted to take from the refrigerator only food which he had purchased. Because there was not a separate entrance to his room, he was given a key to the front door. Thus, he was able to come and go freely as he pleased. Sometimes while in Harrisburg he slept in the room which he had leased, and sometimes he did not. He used his cousin’s address to establish eligibility to receive public assistance and food stamps, but, except for mail from the Pennsylvania Department of Public Welfare, he received only an occasional letter at this address. Kathryn Chivis testified that her family unit consisted of her daughter, her daughter’s father, and herself. She did not consider and did not want her cousin to be a part of her family, because his lifestyle was entirely different than theirs.

It seems clear from the evidence that Goldsborough was not “in residence in the same household” with his cousin as contemplated by the No-fault Motor Vehicle Insurance Act. Simply stated, his residence was elsewhere. He was not a part of the social unit which consisted of those who lived together as a family in the Harrisburg residence. Under the Pennsylvania No-fault Motor Vehicle Insurance Act, therefore, Goldsborough was not an insured of State Farm. It was Donegal and not State Farm which was primarily liable for the payment of basic loss benefits to Goldsborough. When the trial court determined otherwise, it erred.

Judgment reversed and now entered in favor of appellant.

      . Act of July 19, 1974, P.L. 489, No. 176 §§ 101-701, 40 P.S. §§ 1009.101-.701, repealed by Act of February 12, 1984, P.L. 26, No. 11 § 8(a), effective October 1, 1984.

      . On December 8, 1986, Donegal filed an appeal from the order of October 3, 1986, which had allowed State Farm to file its motion for post-trial relief nunc pro tunc. This appeal was untimely. It was filed sixty-six days after entry of the order appealed and thirty-eight days after final judgment had been entered in its favor. Donegal's appeal, therefore, is quashed. Its argument that the trial court erred by allowing post-trial motions to be filed nunc pro tunc, however, must be resolved if we are to consider the merits of State Farm’s appeal.

      . 40 P.S. § 1009.103.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    546 A.2d 1217
    Boyd MURPHY, Appellee, v. CARTEX CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1988.
    Filed Aug. 24, 1988.

      John C. Wright, Jr., Philadelphia, for appellant.
    Albert L. Blackman, Jr., Doylestown, for appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case concerns the interpretation and application of several provisions of the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.S.A. § 951 et seq. The appellee, Mr. Boyd Murphy, was hired by the appellant, Cartex Corporation, on July 10, 1979. Murphy’s position with Cartex was that of a urethane utility man on the production line in Cartex’s Doylestown plant. When Murphy was initially hired by Cartex, he did not reveal the fact that he suffered from epilepsy. However, within a few months Cartex became apprised of Murphy’s condition when Murphy suffered a seizure at work. Following this initial seizure, Cartex suspended Murphy and requested that he obtain the opinion of his physician concerning his physical ability to work for Cartex. After receipt of the physician’s letter, it is undisputed that Cartex offered to move Murphy from the production line into a position in the finishing department, where Murphy would have been able to have thirty minute break periods as opposed to the fifteen minute break periods afforded to production line employees. Murphy refused a position in the finishing department because it involved a lower salary.

Following Murphy’s initial seizure, Cartex continued to employ Murphy on the production line until March of 1982. During the thirty-two months that Murphy was employed by Cartex, he suffered approximately fifteen seizures while on the job. N.T. July 14, 1986 at 23. Unfortunately, in February of 1982, Murphy suffered a seizure while working which resulted in serious burns to his hands. As a result, on March 15, 1982, Cartex terminated Murphy’s employment, advising him that his epilepsy created an unacceptable risk of physical injury to himself and to his fellow workers.

In June of 1983, Murphy filed suit against Cartex. First, Murphy alleged that Cartex had breached the terms of its employment contract with Murphy by failing to allow him to exercise his “bumping privilege” as set forth in the Cartex employee handbook:

Job Bumping:

(6) If for a relatively permanent medical reason, as determined by the Company physician, full time working employees are unable to perform the required duties of the job and disqualify themselves, they shall be allowed a special bumping privilege, provided the job they wish to bump into does not contain like or similar conditions to those causing the difficulty.

Brief for Appellant, Exhibit 3. As a second cause of action, Murphy alleged that Cartex had violated the Pennsylvania Human Relations Act by denying him the bumping privilege as set forth above before terminating his employment. Murphy properly requested a jury trial pursuant to Pa.R. C.P. 1007.1(b). Cartex’s motion for summary judgment on both counts of Murphy’s complaint was denied by the trial court on May 6, 1986.

The jury trial commenced on July 14, 1986. Initially, the jury was provided with a view of the Doylestown plant. Thereafter, Murphy testified. Part of Murphy’s testimony established his belief that he could have safely worked in other departments of the Cartex Doylestown plant. Specifically, Murphy testified that he believed that he could have safely worked in the finishing department, the warehouse, and as a janitor. N.T. July 14, 1986 at 15. Murphy also read the above quoted provision of the Cartex employee handbook to the jury and testified that he was never given the opportunity to use the special bumping privilege. Id. at 18-19. Following the close of Murphy’s testimony, Cartex moved for the dismissal of the breach of contract claim. Cartex also requested the court to excuse the jury if it dismissed the breach of contract claim, contending that the PHRA does not provide for trial by jury. The trial court dismissed the breach of contract claim, but refused to excuse the jury. After Cartex presented its case, the jury awarded Murphy $16,812.00, representing his lost wages without interest. Cartex filed a timely motion for post-trial relief, requesting a judgment n.o.v. or a new trial. The trial court denied the post-trial relief requested by Cartex.

Cartex has presented the following issues to this Court for review:

1. Did the trial court err in finding that the verdict of the jury that Cartex had violated the PHRA was supported by sufficient evidence?
2. Did the trial court err in refusing to dismiss the jury following the dismissal of the breach of contract claim?
3. Did the trial court err in refusing to grant a new trial on the grounds that the jury was misled when it was not informed that the breach of contract claim had been dismissed?
4. Did the trial court err when it refused to grant a continuance to await the arrival of an expert witness for Cartex?

We will begin by addressing the third issue because it is upon this issue which we find reversible error. We recognize that a trial judge “has wide latitude in charging the jury as long as he fully conveys to the jury the law of the case.” Jackson v. Spagnola, 349 Pa.Super. 471, 480-481, 503 A.2d 944, 949 (1986). In Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985), this Court stated that “[i]n evaluating a claim of erroneous instructions to the jury, we must analyze the court’s charge in its entirety____ If a legally valid requested point for charge is sufficiently and adequately covered in the trial court’s instructions to the jury, it is appropriate to deny the request.” Id., 347 Pa.Superior Ct. at 6, 500 A.2d at 128. Cartex excepted to the failure of the trial court to explain to the jury that the breach of contract claim had been dismissed, and the following exchange took place on the record:

THE COURT: Why charge them?
MR. WRIGHT: The jury doesn’t know the handbook cannot be a contract and they can’t base their verdict on that part of it.
THE COURT: I did not charge them on that, did I? MR. WRIGHT: But don’t you think you should explain to them it has been dismissed and has to be based solely on the Act?
THE COURT: I said that is [sic] the only thing they had to consider was the Pennsylvania Human Relations Act. What else can I say?
MR. WRIGHT: 1 would except to that failure to explain that Count 1 had been dismissed.
THE COURT: All right.

N.T. July 15, 1986 at 157-158. It is undisputed that when the jury retired to deliberate, they were permitted to take a copy of the Cartex employee handbook with them.

Section 955 of the PHRA provides as follows:

It shall be unlawful discriminatory practice ...
(a) For any employer because of ... the non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.

43 Pa.S.A. § 955(a) (emphasis added). The term non-job related handicap has been defined in the PHRA as “any handicap or disability which does not substantially interfere with the ability to perform the essential functions of employment which a handicapped person applies for, is engaged in or has been engaged in.” 43 Pa.S.A. § 954(p). “A handicap or disability is not job-related merely because the job may pose a threat of harm to the employe or applicant with the handicap or disability unless the threat is one of demonstrable and serious harm.” 16 Pa.Code § 44.4. “A handicap or disability may be job-related if placing the handicapped or disabled employe or applicant in the job would pose a demonstrable threat to the health and safety of others.” Id.

There is no question that Murphy suffers from a handicap. Further, the parties do not dispute the fact that Murphy’s handicap was job-related with respect to his job as a urethane utility man on the production line. Murphy has never contended that Cartex violated the PHRA merely by terminating his job on the production line. Instead, Murphy has alleged that Cartex violated the PHRA by denying him a “privilege of employment”, that being the special bumping privilege contained in the Cartex employee handbook. 43 Pa.S.A. § 955(a). Simply stated, Murphy’s position is that Cartex committed an unlawful discriminatory practice by denying him the opportunity to bump into a different job within the Doylestown plant. Thus, the handbook bumping privilege was central to Murphy’s cause of action in this case.

At the beginning of this jury trial, Murphy’s breach of contract claim, based solely upon the handbook bumping privilege, was part of Murphy’s case. Following the opening statements of counsel, the jury was on notice that it was Murphy’s position that Cartex had violated its contractual promise to provide Murphy with the special bumping privilege. During Murphy’s testimony, he read the handbook provision to the jury and testified that the Cartex employee handbook “had the shop rules and different rules and regulations as to different things I could do as an employee of Cartex.” N.T. July 14,1986 at 13. Thereafter, the court dismissed the breach of contract claim and Cartex presented its first witness. However, the jury was not advised that it would no longer have to decide a contractual issue.

Mr. Ralph Dowdell, who testified first for Cartex, read to the jury the Equal Employment Opportunity Statement contained in the Cartex employee handbook. Id. at 43. Mr. Dowdell admitted on cross examination that he was familiar with the handbook’s special bumping privilege and he agreed that Murphy had never been allowed to bump into another job at the Cartex plant. Id. at 62. Finally, when the jury received instructions from the trial court, the court explained in general terms the provisions of the PHRA and its accompanying regulations. The trial court delivered the following instructions to the jury:

You will recall that there was, to a marked degree, a dispute as to whether or not the plaintiff could, in fact, continue to perform work for the Cartex Corporation without doing harm to himself or to the safety and welfare of others.
The plaintiff testified that he believes that he could do certain work and that he could work in other phases than what he was working at. For instance, he points out, as I recall his testimony, but it is for you to recall, not me, that he could do janitorial work, using that as an illustration.
The representative of the defendant corporation, Mr. Dowdell, testified that this is not so, that they reviewed all of the jobs; that while they agreed the manual, P-1, which you will take out with you, does provide for a bumping policy, and I think we all know what that is — someone with more seniority bumps someone else out of a job— that even to allow the plaintiff to bump into another position, his condition was such that modification and accommodations were not available to permit him to work without imposing a threat of harm to himself and safety to himself and others and, therefore, as to this dispute, we are dealing with a question of credibility ...

N.T. July 15, 1986 at 150-151.

We are not only bound to review a jury charge in its entirety, as we have done in the case presently before us, but we must also analyze the charge “against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985). A fair reading of the jury charge, against the background of the way in which this trial progressed, convinces us that the trial court failed to adequately explain the issues involving these parties. As this trial began, the jury was presented with the contention that Cartex Corporation had entered into a contract with Murphy to provide him with the special bumping privilege, and that the express terms of this contract were contained in the Cartex employee handbook. The idea that the employee handbook provisions amounted to binding contractual duties was reinforced by the trial testimony and by the contents of the trial court’s charge to the jury. When the trial court refused to explain to the jury that the breach of contract claim had been dismissed, we have no way of knowing how the jury explained to themselves the fact that they were not asked to decide the contract issue. Although they may have guessed that the trial court had dismissed this claim, it is just as likely that the jury believed that Cartex had decided not to contest this claim. Indeed, the jury may have concluded that Cartex had decided to admit to breaching its contract with Murphy, and with this view of the situation, the jury may have then proceeded to determine Murphy’s right to recover for an alleged violation of the PHRA. A jury charge must be “clear and precise and so couched as not to confuse the jury.” Dunlap v. Larkin, 342 Pa.Super. 594, 604-605, 493 A.2d 750, 756 (1985) (quoting Osterritter v. Holl, 259 Pa.Super. 112, 117, 393 A.2d 742, 744 (1978)). In the particular facts of this case, and in view of the importance of the employee handbook provision in Murphy’s cause of action under the PHRA, we find that the trial court erred in not explaining to the jury that the breach of contract claim had been completely dismissed from the case. We believe this omission by the trial court may have confused and misled the jury in such a way as to have been prejudicial to Cartex. Accordingly, we find it necessary to remand for a new trial.

Based upon our disposition of the third issue in this appeal, we find it unnecessary to address the remaining issues which appellant has raised in this appeal. We recognize, however, that our appellate courts have not addressed the issue of whether there is a right to a jury trial in actions brought pursuant to the PHRA. We believe that this is an issue which may be raised upon remand of the instant case and, for this reason, we will address it.

Whether there is a right to a jury trial in actions brought pursuant to the PHRA depends upon the proper interpretation of § 962(c) of the PHRA:

In cases involving a claim of discrimination, if a complainant invokes the procedures set forth in this act, the individual’s right of action in the courts of the Commonwealth shall not be foreclosed. If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by the act. If the court finds the respondent has engaged in such discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employes, granting of back pay, or any other legal or equitable relief as the court deems appropriate ...

43 Pa.S.A. § 962(c). Neither this nor any other provision of the PHRA states whether the proceedings authorized in the courts of common pleas may be tried before a jury.

Article I, Section 6, of the Pennsylvania Constitution provides:

Trial by jury shall be as heretofore, and the right thereof remain inviolate.

It has long been recognized that the Pennsylvania Constitution “only preserves the right to trial by jury in those cases where it existed at the time the constitution was adopted.” W.J. Dillner Transfer Co. v. Pennsylvania Public Utility Commission, 191 Pa.Super. 136, 149, 155 A.2d 429, 435, (1959). Jury trials are not available in proceedings created by statute unless the proceeding has a common law basis or unless the statute expressly or impliedly so provides. See Appeal of Watson, 377 Pa. 495, 105 A.2d 576 (1954), cert. denied, 348 U.S. 879, 75 S.Ct. 120, 99 L.Ed. 692 (1954); W.J. Dillner Transfer Co., supra; Commonwealth v. Marco Electric Manufacturing Corporation, 32 Pa.Commw. 360, 379 A.2d 342 (1977). The PHRA and the rights it confers were nonexistent at the time the Pennsylvania Constitution was adopted. Therefore, no right to a jury trial existed which the Constitution could preserve.

Having concluded that Murphy had no constitutional right to have a jury hear his PHRA claim, we also find, as a matter of statutory interpretation, that the legislature did not intend to provide a right to demand a jury trial in PHRA actions brought in the courts of common pleas. When ascertaining legislative intent, courts must consider the entire statute and avoid according an individual provision an interpretation which does not take into account related sections of the same statute. 1 Pa.C.S.A. § 1921(a); Causer v. Mandarino, 338 Pa.Super. 564, 488 A.2d 36 (1985). Under § 962(c), the Pennsylvania Human Relations Commission (“Commission”) is accorded exclusive jurisdiction in the first instance to hear and to determine claims of unlawful discriminatory practice under the PHRA. We believe that our legislature, in establishing the Commission with extensive general powers and duties, certainly intended that the Commission would be primarily responsible for hearing claims based upon alleged violations of the PHRA and for providing appropriate remedies. When the Commission determines that a violation of the PHRA has been proven, and awards relief as it determines to be appropriate, our supreme court has recognized:

We have made clear in our decisions that the Commission, when fashioning an award, has broad discretion and its actions are entitled to deference by a reviewing court. The Commission’s order will not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than can fairly be said to effectuate the policies of the Act.

Com., Pennsylvania State Police v. Corn., Pennsylvania Human Relations Commission, 512 Pa. 534, 538, 517 A.2d 1253, 1254 (1986). When the Commission adjudicates a claim of unlawful discriminatory practice under the PHRA, there is, of course, no right to request a jury trial.

Pursuant to § 962(c), the courts of common pleas have the jurisdiction to hear a claim brought pursuant to the PHRA only when the Commission fails to act upon a claim within a one year period or decides to dismiss a claim. There is nothing in the specific language of § 962(c) nor in the legislative history of § 962(c) to indicate any intent on the part of the legislature to provide for a materially different proceeding when PHRA claims are decided, not by the Commission, but by a court of common pleas. The involvement of a jury would constitute a material difference. See Elizabeth Township v. Municipal Authority of McKeesport, 498 Pa. 476, 447 A.2d 245 (1982) (Proceedings in the court of common pleas, under the Municipal Authorities Act of 1945, wherein the court was granted jurisdiction to hear challenges to rates set by municipal authorities, are to be conducted in the same manner as rate proceedings brought before the Public Utility Commission, and therefore, a jury trial is not available.) Moreover, we note that, although legal relief may be awarded by the court, most of the relief which is specifically enumerated in the PHRA is equitable in nature: enjoining further unlawful discriminatory practice, ordering the reinstatement or hiring of individuals, ordering the upgrading of employees, awarding back pay. See 43 Pa.S. § 959(f) and § 962(c). It is a general precept of the law that courts are uniquely qualified to fairly grant equitable relief.

Ordinarily, the propriety of affording equitable relief in a particular case rests in the sound discretion of the court, to be exercised according to the circumstances and exigencies of the case ... Equity looks to the whole situation and grants or withholds relief as good conscience dictates, and a court of equity is bound to look into all the facts and circumstances and determine what is fair, just, and equitable.

27 Am Jur 2d Equity § 102.

Finally, we are also cognizant of the fact that the PHRA was modeled after Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. In 1972, the U.S. Congress amended Title VII to expressly provide for bench trials in all Title VII cases brought in federal district courts. See 42 U.S.C.S. § 2000e-5(f)(4). However, prior to this amendment, federal courts had consistently held that there is no right to a jury trial in a Title VII case. See Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir.1972). We presume that our legislature was aware of the judicial interpretations and statutory amendments under Title VII when it eliminated the Commission as the only remedy for discrimination when the provisions of the PHRA are invoked, and provided, under certain limited circumstances, access to the courts of common pleas.

For all of the foregoing reasons, we are convinced that the legislature did not intend to create a right to demand a jury trial when it enacted § 962(c) of the PHRA.

Reversed and remanded for further proceedings consistent with this Opinion. Jurisdiction is relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

The majority has determined to reverse and remand for a new trial. I dissent. In my judgment, the evidence was insufficient to show a violation of the Pennsylvania Human Relations Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq. Therefore, I would direct that the verdict be vacated and that judgment n.o.v. be entered in favor of the appellant-employer.

The Pennsylvania Human Relations Act forbids denial of employment on the basis of a “non-job related handicap or disability.” This is defined as:

[A]ny handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in or has been engaged in.

Pennsylvania Human Relations Act, supra, § 4, as amended, 43 P.S. § 954(p). A “non-job-related handicap or disability” is further explained by regulation, 16 Pa.Code § 44.4, as follows:

(ii) A handicap or disability is not job-related merely because the job may pose a threat of harm to the employe or applicant with the handicap or disability unless the threat is one of demonstrable and serious harm.
(iii) A handicap or disability may be job-related if placing the handicapped or disabled employe or applicant in the job would pose a demonstrable threat of harm to the health and safety of others.

The record in the instant case demonstrates unequivocally that Boyd Murphy’s epilepsy was uncontrolled and that his continued employment posed a serious threat of injury to himself and others. His disability, therefore, was clearly job-related.

Shortly after Murphy had started working for Cartex Corporation, his supervisor became aware that Murphy was afflicted with epilepsy, for Murphy had a seizure on the job. Murphy was thereupon examined by his physician at the company’s request. Based upon the contents of a letter from the physician, Murphy was offered a position in another department pursuant to a special “bumping privilege” in the company’s policy. The offered position would have allowed Murphy to take the longer work breaks which his physician had recommended. Murphy rejected his employer’s offer because it involved a cut in wages. He assured his supervisor that he would take his medication as prescribed and that his seizures would not recur. Murphy worked on the production line for Cartex for a period of two and one-half years, during which he suffered approximately fifteen seizures while at work. The evidence also showed that Murphy had suffered several seizures outside the workplace, one of which had occurred while he was driving and had resulted in an automobile accident.

Throughout the period of his employment, Murphy assured his supervisor that the seizures could be controlled by medication and that he would take his medication regularly. His immediate supervisor testified that Murphy attributed his seizures to lack of sleep, poor diet, failure to take his medication, and stress. The testimony was that during seizures, Murphy had to be carried off the production line and that he then had to rest for varying periods of time. These interruptions interfered with the performance of his job and also with the abilities of those around him to perform their work. Murphy continued to work at Cartex until, finally, a seizure occurred which resulted in serious burns to Murphy’s hands. Murphy’s supervisor testified that Murphy’s continued employment would have posed a threat to the safety of himself and others.

The statute does not prevent an employer from discharging an employee who suffers from a handicap or disability which is job-related. There is no duty to employ a person who, because of handicap or disability, presents a safety risk to himself and other employees. Jenks v. Avco Corp., 340 Pa.Super. 542, 551, 490 A.2d 912, 917 (1985).

The Act has been interpreted to impose upon an employer a duty to make reasonable accommodations in order to utilize the productive capacities of a handicapped person to the fullest extent. Jenks v. Avco Corp., supra, 340 Pa.Superior Ct. at 550, 490 A.2d at 916. While conceding that his epilepsy was a condition which impaired his ability to work on the production line, Murphy argues that the company’s “bumping” policy required that it accommodate his epilepsy by offering him another job. Assuming, without deciding, that an employer’s duty to make reasonable accommodations extends not only to the job which an employee was hired to perform but to other available positions as well, the evidence in this case failed to show that there were any jobs available for which Murphy’s uncontrolled epilepsy would not have been an impediment.

Cartex’s bumping policy permitted an employee with a medical problem which interfered with the performance of his job to move to a different job and “bump” an employee with less seniority so long as the medical condition did not impede the employee’s ability to perform the duties of the new job. Murphy contended that he should have been permitted to take a position in the finishing department, the warehouse department, or in the maintenance department as a janitor. The evidence showed, however, that Murphy had been considered for these jobs prior to the decision to terminate him. The decision to terminate had been made only after Cartex had determined that there were no jobs available that Murphy could perform without danger to himself and others. In the finishing department work was done with electrically powered tools which, of necessity, posed a risk to an employee with uncontrolled epilepsy. Work in the warehouse included the loading and unloading of trucks on a four foot high loading dock, the handling of drums weighing five hundred pounds, the lifting and stacking on shelves of various materials weighing between thirty arid one hundred pounds, and the driving of a fork-lift truck. The janitorial duties required an employee to climb ladders and occasionally drive a vehicle. Duties in the warehouse and maintenance departments, moreover, were largely unsupervised so that employees were required frequently to work alone. Although appellant claimed the right to “bump” into these positions, he failed to present any medical evidence, in response to his employer’s testimony to the contrary, that his epilepsy was controllable and that he was physically able to fulfill the duties and responsibilities of other available positions without endangering himself or others.

Murphy argues that work conditions in the production room, which included heat, stress, overtime hours, and limited work breaks, contributed to his seizures. This contention, also, is not supported by medical evidence. Moreover, the evidence showed that Murphy had not complained or made known to his employer that he believed that his seizures were being brought on by the conditions under which he worked. Instead, he had continued to assert that he could control his seizures by medicine and rest. At the time of his discharge, however, his seizures were uncontrolled. He was terminated not because he was an epileptic but because he was unable to control his seizures in the workplace. There is no basis in the record to conclude that his seizures would be better controlled if he were assigned to another department.

Because appellee failed to show that other jobs were available which would eliminate the risk of harm to himself and others by virtue of uncontrolled epileptic seizures, I would hold that the Human Relations Act imposed upon his employer no duty to continue his employment. Appellee’s disability, because it constituted a substantial risk to the safety of himself and others, was clearly job-related. Therefore, Cartex could terminate Murphy’s employment. It was not required to continue his employment until serious harm occurred. Neither was it required to create for him a special job at which he could work without threat of harm from uncontrolled seizures.

I would reverse and enter judgment in favor of the appellant-employer.

      . Cartex’s Doylestown plant is involved in the manufacture of urethane foam products such as automobile seats and cushions for office furniture. N.T. July 14, 1986 at 39. On the production line, the urethane foam material is poured into molds and the molds are sent through an oven. Id. at 40. When the mold exits the oven, its temperature is about two hundred and seventy-five degrees. Id. As a mold exits the oven, an employee in the position of a "stripper” opens the mold. The urethane utility man then completes the opening of the mold and breaks off any excess foam on the mold. Id. at 9 and at 40.

      . The pertinent portions of the letter which Cartex received from Murphy’s physician are as follows:
      At your request, Boyd Murphy visited me in the office on 10-10-79. In reviewing his chart, he apparently has had a seizure disorder for many, many years, but in recent years has been in excellent control ... [I]t would appear that his recent seizure at your plant was the first he had had in several years.
      We discussed briefly the conditions under which he works. I am sure you would agree that his job is a very physically demanding one. I really cannot say whether in fact these factors were at work in prompting his first seizure in several years. I think it would be reasonable that his time on break at 9 and 12 a.m. be extended from 15 to 30 minutes, and Mr. Murphy has indicated that he would be more than willing to come in to work 15 minutes early and leave 15 minutes late, in order to compensate for that time lost on the job. We are checking the levels of medication in his blood to see if it is sufficient, but as he had been without seizures for many years prior to his recent episode, I really do not think his medication should be changed at this time.
      N.T. July 14, 1986 at 27.

      . During this time, Murphy also suffered several seizures while at home and he also suffered a seizure while operating a car which resulted in an auto accident. N.T. July 14, 1986 at 23.

      . Cartex presented the testimony of several Cartex employees who had been involved in the supervision of Murphy. Ralph Dowdell, Director of Personnel for Cartex Corporation, testified that, following Murphy’s serious hand injuries, he had considered other job opportunities for Murphy within the Doylestown plant and had determined that none of them assured enough safety to Murphy or to Murphy’s fellow employees. N.T. July 14, 1986 at 49. None of Cartex’s witnesses denied the fact that Murphy had not been allowed to try to use the special bumping privilege.

      . Indeed, without the handbook bumping privilege, it is unlikely that Murphy could have maintained a cause of action under the PHRA. See Carty v. Carlin, 623 F.Supp. 1181 (D.C.Md.1985) (Postal Service was not required to reassign handicapped employee as a reasonable accommodation under the Rehabilitation Act [29 U.S.C.A. § 701 et seq.l; duty to reasonably accommodate only contemplated accommodation of a qualified handicapped employee's present position, not reassignment or transfer of the employee to a different job or position.) See also Carter v. Tisch, 822 F.2d 465 (4th Cir.1987); Dancy v. Kline, 639 F.Supp. 1076 (N.D.Ill.1986); Alderson v. Postmaster General of United States, 598 F.Supp. 49 (W.D.Okla.1984).

      . We do not express any opinion on the merits of Murphy’s cause of action under the PHRA by our decision to remand in this case. Certainly, an employer may not deny an individual a privilege of employment because of epilepsy, if the individual’s epilepsy qualifies as a non-job related handicap or disability under the PHRA, its regulations, and interpretative case law. We are not unmindful of the struggle which epileptics must often encounter in the workplace:

        Epileptics are ineligible for "hazardous” jobs in the federal civil service unless they have been seizure-free without medication for two years ... The military will not consider applications from epileptics until they have been seizure-free without medication for five years. Many states render epileptics ineligible for driver’s licenses unless they have been seizure-free for a specified period of time ... Unable to drive to work, many epileptics have severely limited job opportunities. The unemployment rate among fully employable epileptics is more that two times the national average. The underemployment rate for epileptics is perhaps still higher ...

        Reynolds v. Brock, 815 F.2d 571 (9th Cir.1987). Our decision in this matter is based solely upon error in the trial court’s jury charge. "A trial judge may properly define all pertinent questions of law, but if he fails to clarify the issues and the application of the law to the facts, a fair trial is not present.” Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441, 443 (1963). Based upon this trial court error, we have concluded that disputed and admittedly complex questions of fact were never properly framed for the trier of fact in the instant case. Significant among those issues is whether Murphy could have safely performed a different job at Cartex’s Doylestown plant. We decline at this juncture to decide questions of fact which necessarily involve the resolution of conflicting evidence and witness credibility. This is not our role. As a result, we must remand for a new trial.

      . We reject the argument advanced by Murphy that Cartex waived any objection to the jury trial by failing to raise the issue prior to trial. See Molthan v. Temple University of Com. System of Higher Education, 778 F.2d 955 (3d Cir.1985) (Claimant bringing sex discrimination actions under both 42 U.S.C.A. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, et seq., had a right to demand a jury trial, even though there is no right to a jury trial in cases arising under Title VII, because both claims were based upon the same facts.)

      . See 43 Pa.S.A. § 957.

      . The proceeding before the Commission is "statutorily ... directed to be expeditious and informal, as are most administrative proceedings. There are none of the formal trappings, evidentiary protections, and strict procedures of a court of law. In addition, the members of the Commission necessarily need not be trained or learned in the law.” Pennsylvania Human Relations Commission v. Zamantakis, 478 Pa. 454, 458, 387 A.2d 70, 72 (1978) (citation omitted).

      . The evidence showed that Cartex employed other epileptics, but that in such cases the affliction was controlled and did not present a danger to the employee or others.

      . These tools included saws, sanders, buffers, and trimmers.

      . Ladders were involved in painting, washing windows, and changing light bulbs.


author: WIEAND, Judge: BECK, Judge,

text:
    546 A.2d 1226
    James KEARNS, a minor by his parents and natural guardians James KEARNS and Mary Alice Kearns, and James Kearns and Mary Alice Kearns, Individually v. Paul J. DeHAAS, Joan Marie Timko, City of Scranton and Scranton School District. Appeal of Paul J. DeHAAS.
    Superior Court of Pennsylvania.
    Argued April 6, 1988.
    Filed Aug. 24, 1988.

      John J. Byrne, Scranton, for appellant.
    John B. Beemer, Clarks Summit, for Kearns, appellees.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

On March 1, 1983, at or about 8:00 a.m., thirteen year old James Kearns, Jr. was struck by a car and severely injured while crossing Moosic Street in the City of Scranton while on his way to school. The car that struck Kearns was operated by Paul DeHaas. DeHaas had been traveling in an easterly direction on Moosic Street when Kearns ran directly into his path. In order to recover for the injuries which Kearns had sustained, his parents, James and Mary Alice Kearns, brought an action against DeHaas on behalf of their son and individually in their own right. The trial of this action was held before a jury which found that the causal negligence of defendant DeHaas was fifty-seven percent and that the causal negligence of the minor plaintiff was forty-three percent. Damages were assessed by the jury in the amount of $1.5 million; and, thereafter, the trial court molded the jury’s findings into a verdict for the plaintiffs in the amount of $855,000.00. DeHaas filed post-trial motions for judgment n.o.v. and/or new trial, and the Kearnses petitioned for the assessment of delay damages. The trial court denied DeHaas’s post-trial motions and awarded the Kearnses delay damages in the amount of $153,197.25. On appeal DeHaas raises numerous allegations of error on the part of the trial court. We will consider his contentions seriatim.

Following the accident in which the minor plaintiff was injured, criminal charges were brought against appellant, but these charges were dismissed following a preliminary hearing. Appellant asserts that these criminal charges were unwarranted, motivated by a desire to gain an advantage in the civil action, and supported by fabricated evidence. At the trial of this civil action, appellant offered to cross-examine several of plaintiffs’ witnesses regarding the criminal charges in order to demonstrate bias. The trial court sustained objections to such questions and disallowed all questions regarding the criminal prosecution. Appellant contends that this ruling was erroneous. He argues that he should have been allowed to cross-examine plaintiffs’ witnesses about the criminal proceedings in order to show bias, prejudice and interest. We disagree.

It is true that, as a general rule, evidence of interest or bias on the part of a witness is admissible and a proper subject for cross-examination. Panczak v. Commonwealth, Unemployment Compensation Bd., 48 Pa. Commw. 279, 283, 409 A.2d 929, 931 (1980). See also: Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). However, “[i]t is well established that the scope and limits of cross-examination are within the trial court’s discretion and the court’s rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law.” Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984). See also: Brennan v. St. Luke’s Hospital, 446 Pa. 339, 285 A.2d 471 (1971); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980). Moreover, it is within the trial court’s sound discretion to limit cross-examination which touches on collateral matters. Chiorazzi v. Commonwealth, Dept. of Highways, 411 Pa. 397, 400, 192 A.2d 400, 401 (1963). See also: McGoldrick v. Pennsylvania R.R. Co., 430 Pa. 597, 241 A.2d 90 (1968); Berkley v. Jeannette, 373 Pa. 376, 96 A.2d 118 (1953); Walley v. Iraca, 360 Pa.Super. 436, 520 A.2d 886 (1987). In the instant case, the trial court did not abuse its discretion by precluding appellant from delving into, on cross-examination, the collateral matter of the criminal charges which had been brought against appellant and dismissed. Cf. Eastern Express, Inc. v. Food Haulers, Inc., 445 Pa. 432, 285 A.2d 152 (1971) (in action arising from automobile collision, it was reversible error to admit testimony of police officer on cross-examination as to fact that he had arrested one of the parties for reckless driving); Gatling v. Rothman, 267 Pa.Super. 566, 407 A.2d 387 (1979) (in action arising from automobile collision, trial court abused its discretion in admitting testimony of investigating police officer on cross-examiniation as to fact that defendant had not received a motor vehicle citation).

At trial, plaintiffs called Scranton Police Officer William Donovan to testify regarding the observations which he had made upon inspecting the car which had struck the minor plaintiff. Specifically, Donovan’s testimony focused on the condition of the brakes of the car immediately following the accident. As part of his testimony, Donovan said that he had found no resistance when applying pressure to the brake pedal and had found no brake fluid in the master cylinder. Prior to giving this testimony, Donovan explained his familiarity with and experience in inspecting automobile brakes. The trial court ruled that the officer was competent to testify to these observations. As a further part of his testimony, Donovan described the presence of fluid on the floor mat of the car in question, and he opined that this fluid was brake fluid. Appellant objected on the grounds that, since no tests had been performed by Donovan to confirm the nature of the fluid, he was incompetent to render such an opinion. The trial court overruled appellant’s objection after inquiring of Donovan as to whether he had had any prior experience with brake fluid. The officer responded that he had had a similar experience with a vehicle which he had owned. Apparently satisfied that the officer was competent to render his opinion as to what the fluid in question was, the trial court allowed Donovan to continue. Appellant argues that the officer was not qualified to render an opinion as to the nature of the fluid found on the floor of the car and contends that the trial court abused its discretion by allowing such testimony. We disagree.

The general rule in this Commonwealth is that an investigating police officer, who was not actually a witness to an accident, is not competent to render an opinion as to the cause of that accident. Reed v. Hutchinson, 331 Pa.Super. 404, 409, 480 A.2d 1096, 1099 (1984). See also: Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Lesher v. Henning, 302 Pa.Super. 508, 449 A.2d 32 (1982). This rule is based on the fact that the officer has no firsthand knowledge of the accident, and, thus, his conclusions would be speculative at best. Reed v. Hutchinson, supra, 331 Pa.Superior Ct. at 410, 480 A.2d at 1099. Strictly speaking, however, Donovan was not offered as an expert and did not give expert opinion testimony. He testified as a fact witness, and the only issue for the trial court was whether he was sufficiently familiar with the nature of brake fluid to be able to recognize and identify it. The trial court did not err when it allowed Donovan to identify as brake fluid the substance found on the floor mat of the vehicle driven by appellant.

Appellant also contends that the trial court erroneously permitted Donovan to express an opinion regarding the cause of the accident. Specifically, appellant alleges that the officer was permitted to state an opinion that appellant may have seen the minor plaintiff but was unable to stop because he had no brakes. We agree with appellant that Donovan was not competent to give such testimony. He was not a witness to the accident and did not have knowledge of facts necessary to render such an opinion. However, our review of the record reveals that the trial court sustained appellant’s objection to such testimony. This, as we have observed, was a correct ruling. Appellant requested no further relief. Therefore, there is no basis for this complaint.

Appellant next challenges the testimony of Mary Alice Kearns, the mother of James Kearns, Jr., on grounds that she improperly relied upon hearsay statements made by various persons when she described her son’s condition. We disagree. After carefully reviewing the testimony of Mrs. Kearns, we conclude, as did the trial court, that her testimony regarding her son’s physical condition was based on her own observations. The references to which appellant objects as being hearsay were insignificant. We find nothing in the testimony of Mrs. Kearns which would entitle appellant to a new trial.

In cross-examining Mrs. Kearns, defense counsel used a medical report to assist him in phrasing questions. Following an objection, the trial court ruled that defense counsel could not use medical reports, which were not in evidence, in framing his questions. The court explained its ruling by stating: “You can’t ask a witness something on cross-examination in a positive way and then not produce your own testimony so that the jury can test the credibility of it.” Keeping in mind the wide discretion over the scope of cross-examination which the trial court possesses, we find no abuse of that discretion with respect to the cross-examination of Mrs. Kearns.

In Commonwealth v. Lobel, 294 Pa.Super. 550, 440 A.2d 602 (1982) this Court said “[w]hen the obvious purpose of cross-examination is to develop defendant’s own case, a ruling by the trial judge to limit cross-examination is not an abuse of discretion.” Id., 294 Pa.Superior Ct. at 556, 440 A.2d at 605. See also: Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970); Okotkewicz v. Pittsburgh Railways Co., 397 Pa. 303, 155 A.2d 192 (1959); Kline v. Kachmar, 360 Pa. 396, 61 A.2d 825 (1948); Greenfield v. City of Philadelphia, 282 Pa. 344, 127 A. 768 (1925). Furthermore, when a trial court so limits cross-examination, its ruling should only be reversed when it precludes the cross-examiner from affirmatively producing such evidence during his own case-in-chief. See: Packel & Poulin, Pennsylvania Evidence, Ch. VI, § 611.2, at 464 (1987). See also: Commonwealth v. Lobel, supra. In the instant case, the trial court did not preclude appellant from cross-examining Mrs. Kearns concerning her son’s physical condition. Rather, the court prevented appellant only from covertly introducing medical records into evidence under the guise of cross-examination. Moreover, the trial court’s ruling did not prevent appellant from producing affirmative evidence to show the minor plaintiff’s medical condition during his own case-in-chief. Indeed, it was defense counsel’s concession that no such evidence would be forthcoming, made in response to the court’s inquiry, which prompted the trial court to limit the cross-examination of Mrs. Kearns. Apparently it was appellant’s choice not to produce medical evidence during his case-in-chief. We find no abuse of discretion in the trial court’s decision to preclude appellant from indirectly producing such evidence during cross-examination.

Plaintiffs called Timothy Bruffey as a vocational expert at trial. Bruffey stated that he had relied on various medical, psychological and psychiatric reports in forming his opinion about the minor plaintiffs future employment prospects. Appellant contends that Bruffey’s testimony was improper because an expert witness may not base his opinion on hearsay documents which have not been admitted into evidence. In Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), however, a limited exception was created to the general rule that an expert’s opinion must be based on facts in the record. See: Packel & Poulin, Pennsylvania Evidence, Ch. VII, § 703 (1987). This exception has been explained by this Court as follows:

Following the guidance of the federal rules of evidence, our courts have liberalized the permissible bases for an expert’s opinion testimony. Federal Rule of Evidence 703 permits an expert to base his opinion on facts or data not admissible in evidence if those facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject ...” F.R.E. 703.
In Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), our Supreme Court applied the theory of Rule 703 in allowing medical witnesses to express an opinion on medical matters based in part on reports of others although the reports themselves were not in evidence if the reports were of the type the expert would rely upon in the practice of his profession. Id., 444 Pa. at 445, 282 A.2d at 698. Subsequent opinions of the Supreme Court and this Court reveal that the applicability of Thomas is not limited to the medical profession. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Maravich v. Aetna Life and Casualty Co., 350 Pa.Super. 392, 504 A.2d 896, 900-1 (1986) (in action on fire policy where arson is alleged, fire marshall giving expert testimony may rely on information supplied to him by firemen under his supervision); Steinhauer v. Wilson, 336 Pa.Super. 155, 158, 485 A.2d 477, 479 (1984) (construction expert may base cost estimates on figures provided by various contractors with whom he consulted).

Bolus v. United Penn Bank, 363 Pa.Super. 247, 271, 525 A.2d 1215, 1227 (1987). Having reviewed Bruffey’s testimony, we are persuaded that the reports on which he relied were of a type upon which a vocational expert would normally rely. Therefore, we agree with the trial court that Bruffey’s testimony was proper.

Timothy Bruffey was re-called by plaintiffs on the last day of trial to testify as an actuarial economist after the expert whom they had intended to use became ill. Appellant argues that the trial court should have excluded this testimony because defense counsel had not been supplied with a copy of Bruffey’s expert report before the day on which Bruffey testified. Appellant argues that because of this he was denied the opportunity for meaningful cross-examination.

“While the late disclosure of the identity or qualifications of an expert is to be condemned, the mere occurrence of such a circumstance does not per se create grounds for a new trial.” Kemp v. Qualls, 326 Pa.Super. 319, 330, 473 A.2d 1369, 1374 (1984) (emphasis in original). The preclusion of expert testimony is a drastic sanction which should not be applied unless the facts of a case make it absolutely necessary to do so. Id. See also: Gill v. McGraw Electric Co., 264 Pa.Super. 368, 381, 399 A.2d 1095, 1102 (1979). “ ‘[Assuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as a result of a dilatory disclosure.’ ” Kemp v. Qualls, supra, quoting Royster v. McGowen Ford, Inc., 294 Pa.Super. 160, 169, 439 A.2d 799, 804 (1982).

In the instant case, there was neither bad faith nor misrepresentation on the part of the plaintiffs. Their change in experts was made necessary by illness. Moreover, the record does not disclose that appellant was prejudiced. Although appellant would have been entitled to additional time to prepare to cross-examine the plaintiffs’ substituted expert witness, the record discloses that no such request was made. Appellant’s objection offered only the suggestion that a continuance be granted so that plaintiffs’ original expert could be deposed. Under these circumstances, we find no abuse of discretion in the trial court’s decision to allow Timothy Bruffey to testify for the plaintiffs as an actuary on the last day of trial.

More troubling is the testimony given by plaintiffs’ witness, George Gallacher. At trial, Gallacher, a photographer and investigator, was called to identify photographs which he had taken and a diagram which he had made of the accident scene. On cross-examination, Gallacher was asked to calculate how many feet per second a car would travel at the speed of 25 miles per hour. His answer was 36.66 feet per second. Defense counsel then asked Gallacher to draw a car on his diagram to represent the car which appellant had been driving at the time of the accident. An objection was lodged by plaintiffs’ counsel on the grounds that Gallacher was not an accident reconstruction expert. The trial court sustained the objection, stating: “Mr. Gallacher was called as a witness to identify the diagram and the photos he took, and not to be an expert on the recreation of the accident.” On redirect examination, however, Gallacher was permitted, over objection, to testify by referring to a Northwestern University study of average stopping distances of a standard passenger car. Information from this study was combined with the calculation which Gallacher had made on cross-examination. In response to direct questions by plaintiffs’ counsel, Gallacher was permitted to testify that a standard passenger car moving at a constant speed of 25 miles per hour would travel 73 feet over a two second period. He testified further that if the driver of such a car would perceive an object in his path 73 feet away, his average stopping distance, according to the Northwestern University study, would be approximately 59 feet. This information was illustrated by Gallacher by use of the diagram which he had prepared. The trial court permitted this testimony despite Gallacher’s admission that he had no knowledge concerning any of the variables which would have been required to render an opinion concerning the actual stopping distance of the car which appellant had been driving. Moreover, he lacked any expertise or knowledge about the study which would have permitted him to testify that the study was reliable. In its post-trial opinion, the trial court explained its reasons for allowing Gallacher to testify in this manner as follows:

We find that the witness’ testimony on redirect examination as to standard stopping distances was proper. Mr. Gallacher testified to a study prepared by Northwestern University [N.T. 99], stating standard figures for the stopping distances of an average car. Defendant argues that an expert is not allowed to state an opinion that is not based on the actual facts of the case. Despite defendant’s authority for this position, the fact is that Mr. Gallacher did not render an opinion as to the stopping distance in this case. Mr. Gallacher merely testified from a study based on standard test results and admitted not knowing any of the extensive information necessary to fender an opinion on the stopping distance of the DeHaas car. Indeed, defense counsel cross-examined the witness at great length on this lack of information. [N.T. 106-117]. Therefore, since Mr. Gallacher did not render an opinion as an expert on this issue, but merely testified as to the results of a study accepted in the industry, no error resulted.

We agree with appellant that the trial court abused its discretion and committed an error of law when it allowed Gallacher to testify concerning the Northwestern University study on average stopping distances of a standard passenger car.

In the first place, it was improper re-direct examination. The witness had not been called as an expert but merely to establish the accuracy of photographs and a diagram. The trial court had properly disallowed cross-examination of the witness about speeds and distances. It is difficult to comprehend, therefore, why plaintiffs were permitted to inquire on re-direct examination regarding speeds and stopping distances. The witness was not an expert, admitted that he was not an expert, and should not have been permitted to testify as such.

It is true that a duly qualified expert witness may rely upon accepted published authorities on the subject of his expertise. See: McDonough v. U.S. Steel Corp., 228 Pa.Super. 268, 272 n. 1, 324 A.2d 542, 544 n. 1 (1974). However, such authorities may not be received in evidence to prove the truth of the matters contained therein. See: Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 619, 537 A.2d 334, 339 (1988). The law does not permit a witness who has not been qualified as an expert and who has no knowledge of the facts of a case to read standard test results to the jury.

Moreover, standard tests are not admissible merely for general informational purposes. This Court has held that expert testimony on the dynamics of intra-family sexual abuse is not admissible merely because it has general informational value. Rather, such testimony must be relevant to facts at issue in the case being tried. Commonwealth v. McNeely, 368 Pa.Super. 517, 534 A.2d 778 (1987). The Court in McNeely reasoned as follows:

Expert testimony is relevant if it tends to make a fact at issue more or less probable and does not confuse, mislead, or prejudice the jury. [Commonwealth v. Gallagher, supra, [353 Pa.Super. 426] at 510 A.2d [735 at] 739 [1986]. Relevance is comprised of two fundamental components: materiality and probative value. “Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.” Probative value, on the other hand, deals with the tendancy [sic] of the evidence to establish the proposition that it is offered to prove. McCormick, Evidence, § 185, at 541 (Cleary 3rd ed. 1984).
It is beyond cavil to suggest that testimony of this nature is automatically relevant, and therefore admissible, in every child sexual abuse case. Rather, we emphasize that expert testimony discussing the general dynamics of child sexual abuse must be offered to further its proponent’s position on a specific issue at trial. The admission of such testimony in a vacuum, without relation to a particular factual dispute, is inappropriate.

Commonwealth v. McNeely, supra, 368 Pa.Superior Ct. at 520-524, 534 A.2d at 779-781. Similarly in the instant case, there could be no other purpose for the information shown in the Northwestern University study, which George Gallacher recited to the jury, than for its general informational value. The witness, Gallaeher, admitted that he had no specific knowledge of the facts involved in this case or of the condition of the car appellant was driving at the time of the accident. Therefore, the evidence was irrelevant. It was not and could not be applied to the facts of the instant case by this witness.

This testimony was also prejudicial to appellant. The clear and desired inference created by Gallacher’s calculations on redirect examination was that appellant should have been able to bring the vehicle which he was driving to a stop before hitting the minor plaintiff. The trial court should not have allowed such testimony from this witness. Not only was it clear that Gallaeher was not an expert on accident reconstruction, but more importantly he had no knowledge of when, or even if, appellant had perceived the minor plaintiff prior to the accident. Gallacher’s testimony as to stopping distance, therefore, had no relevancy to any factual issues in this litigation. The allowance of his testimony was a clear abuse of the trial court’s discretion and requires that appellant be granted a new trial.

The trial court also abused its discretion by permitting Patricia Morgan, another of plaintiffs’ trial witnesses, to state over repeated objections, her opinion that appellant was exceeding the 25 mile per hour speed limit just prior to hitting the minor plaintiff. Miss Morgan’s testimony as to the speed of appellant’s vehicle proceeded as follows:

Q. Now you learned today that the speed limit on Moosic Street is 25 miles an hour?
A. Yes.
Q. Did you observe the vehicle traveling in an easterly direction on Moosic Street long enough to give us your opinion as to whether it was exceeding 25 miles per hour?
A. Yes, I can give you my opinion.
Q. Can you give us your best estimate as to the speed?
A. I can’t cite specific miles per hour, no.
Q. So you are saying just to make sure I understand what you are saying. You do have an opinion as to whether the car was exceeding 25 miles an hour?
A. Yes.
Q. What is that opinion?
A. My opinion is that the car was traveling faster than I was and that I knew that I was doing the speed limit.
THE COURT: How fast were you going, Miss Morgan?
THE WITNESS: I know that I would have been doing the speed limit just because I always do, but as I found out today that the speed limit was 25 miles per hour, so I’m using that as a point of reference.
THE COURT: And what is your opinion referring to you own speed as to the speed of the car coming up the hill?
THE WITNESS: My opinion was that the car was traveling fast and I know fast is a—
BY MR. BEEMER:
Q. Was it traveling faster than 25 miles an hour?
A. I think so, yes.
THE COURT: As compared to your speed, Miss Morgan, what we’re talking about, was it slower than your speed or exceeding your speed?
THE WITNESS: It was exceeding mine.

This testimony constituted improper opinion evidence and should not have been allowed.

The Supreme Court has held that “while lay witnesses are permitted to express estimates of vehicle speed in numerical terms, terms such as ‘fast,’ ‘slow’ or ‘excessive’ and the like have been found to be conclusory in nature as well as lacking in evidentiary value.” Starner v. Wirth, 440 Pa. 177, 181, 269 A.2d 674, 676 (1970) (footnotes omitted). See also: Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982); Rosato v. Nationwide Insurance Co., 263 Pa.Super. 340, 397 A.2d 1238 (1979). Cf. Schilling v. Pittsburgh Railways Co., 394 Pa. 126, 129, 145 A.2d 688, 690 (1958) (trial court ruling refusing to allow witness to estimate speed of trolley car was “eminently correct” where witness could not testify in terms of miles per hour, but, rather, could only say the speed was “unusual” or “excessive”). Another requirement for such lay opinion testimony, as with all lay testimony, is that it be based on the personal knowledge of the witness. See: Lems v. Mellor, 259 Pa. Super. 509, 523, 393 A.2d 941, 949 (1978). See also: McCormick on Evidence, §§ 10 & 11 (3rd Ed.1984); Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985).

The opinion of Patricia Morgan that appellant was exceeding the speed limit prior to hitting the minor plaintiff was based on her belief that appellant was traveling at a higher rate of speed than she was. However, she also said that she had learned that the speed limit on Moosic Street was 25 miles per hour for the first time during trial. Upon receiving this information during trial, she used that figure as her point of reference in estimating appellant’s speed, concluding that since she always travels at the speed limit she was also doing so at the time of the accident. Thus, the opinion of Patricia Morgan was based in large part, not on her own personal knowledge and observation, but, rather on speculation regarding her own speed at the time of the accident. Moreover, she was unable to give a specific estimate of the speed at which appellant had been traveling. In our view, these deficiencies rendered the opinion given by Patricia Morgan too speculative. As such, the trial court should not have allowed the jury to hear and consider the witness’s opinion regarding the speed at which appellant’s vehicle was traveling. To do so was an abuse of discretion and, indeed, an error of law.

Having found that the trial court erred by allowing a fact witness to refer to a university study not directly relevant to any issue in dispute and by allowing a witness to give a speculative opinion concerning appellant’s violation of the speed limit, we are constrained to reverse and remand for a new trial.

The judgment of the trial court is reversed and the case is remanded for a new trial. Jurisdiction is not retained.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I join in the opinion of the majority, except for the analysis of the opinion testimony of Patricia Morgan, a lay witness.

Morgan testified that she habitually drives at the speed limit and, consequently, she assumed that she was driving at the speed limit of 25 miles per hour at the time of the accident. This testimony was sufficient to show Morgan’s speed. A witness who habitually drives at the speed limit should be permitted to assume that she was driving at the speed limit at the time of the incident. “The probative value of a person’s habit or custom, as showing what was done on a particular occasion, is not open to doubt____” Baldridge v. Matthews, 378 Pa. 566, 106 A.2d 809 (1954). While driving at that speed, she observed DeHass’ vehicle traveling in the opposite direction, before and at the moment of impact. It is reasonable that she could testify that he was driving faster than she was and therefore faster than the speed limit. Her opinion as to DeHass’ relative speed was rationally based on her perception and clearly helpful to the determination of the facts in issue. See generally, Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978); Packel, Pennsylvania Evidence § 701 (1987).

Morgan’s testimony was contradictory. She also testified that she was not sure if she had enough time to observe DeHass’ vehicle before the accident and that she was slowed down because traffic in her direction was going slowly. These contradictions go to credibility, not admissibility. I would not find that the trial court’s decision to admit Morgan’s testimony was erroneous.

In holding that Morgan’s testimony was speculative and inadmissible, the majority relies upon the general rule that, “while lay witnesses are permitted to express estimates of vehicle speed in numerical terms, terms such as ‘fast,’ ‘slow’ or ‘excessive’ and the like have been found to be conclusory in nature as well as lacking in evidentiary value.” Starner v. Wirth, 440 Pa. 177, 181, 269 A.2d 674, 676 (1970). However this general proposition is not without exceptions. In support of this proposition, Stamer cites Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960), which explains the rationale of the general proposition that has since been cited without reference to its exceptions, e.g. Stamer, supra; Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982). In Holton, the court distinguished between improper references by a witness to speed as ‘fast’ because of their conclusory nature, and proper references of relative speed. Holton held that when a witness observed an oncoming car traveling at one speed and then made another observation of the vehicle as it approached, the witness’ testimony that the automobile was traveling at an increased speed is testimony of a factual nature and admissible. I would find the rationale in Holton applicable. In Morgan’s situation, her opinion was based on her observation of DeHaas’ speed relative to her own, which observation was in turn based on her habit of traveling at the speed limit.

Moreover, if the use of the actual term, “fast” should not be permitted under these circumstances, it would be harmless error. Once the witness could testify that she was traveling at the speed limit and that DeHaas exceeded her speed, there is only one reasonable conclusion a jury could reach if it found her testimony credible.

      . The vehicle was owned by DeHaas’s girlfriend, Joan Marie Timko.

      . Also named as defendants in this action were Joan Marie Timko, the City of Scranton and the Scranton School District. Prior to trial, however, these parties were dismissed from the action by stipulation of counsel.

      . In connection with this argument appellant points out that the father of the minor plaintiff is a Pennsylvania State Policeman and that the same attorney representing the plaintiffs in this civil action also represented the Commonwealth at appellant’s preliminary hearing under the designation of special prosecutor.

      . Appellant has also argued three errors in the trial court’s charge to the jury. We have reviewed the jury charge in its entirety and find therein no additional grounds for granting relief. The specific allegations of error are adequately discussed and correctly decided in the opinion prepared by the trial court. Appellant’s final challenge is to the award of delay damages to the plaintiffs. Because we have determined that a new trial is necessary, we decline to review this issue in the present appeal.