author: MONTEMURO, Judge:

text:
    451 A.2d 499
    Barbara STARR, Appellant v. ALLEGHENY GENERAL HOSPITAL, Jan W. Maratta and Laibe A. Kessler.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      Joseph D. Shein, Philadelphia, for appellant.
    Gilbert S. Solomon, Pittsburgh, for Allegheny General, appellee.
    David H. Trushel, Pittsburgh, for Kessler, appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying appellant’s motion for a new trial. The facts in the instant case can be summarized as follows:

On July 19, 1973, appellant, Barbara Starr, was struck in the head with a glass bowl thrown by her husband. She was rushed to Sewickley Valley Hospital where she received emergency treatment. While in the emergency room, appellant suffered a grand mal seizure, losing consciousness. Following her recovery from the seizure, appellant was transferred to Allegheny General Hospital where she was placed under the care of Doctor Laibe A. Kessler and Doctor Jan W. Maratta. Appellant was diagnosed as suffering from a depressed skull fracture and following various medical tests and examinations, Dr. Kessler recommended corrective surgery to elevate the depressed fracture. Appellant agreed to the operation. The surgery was performed and appellant was placed in post-operative care. Appellant, sometime thereafter during her post-operative treatment at Allegheny General Hospital, developed blurred vision, slurred speech and experienced difficulty in coordinating her bodily movements. Appellant filed suit against Allegheny General Hospital, Dr. Kessler and Dr. Maratta alleging that injury to her cerebellum was the cause for her permanent partial incapacitation which resulted from the negligent post-operative treatment she received while under their care.

The case was tried before a jury which returned a verdict in favor of all the defendants below (appellees herein). Appellant’s motion for a new trial was denied and she has taken this appeal from that order. For the reasons stated below, we affirm the order of the lower court.

Appellant’s first contention is that the lower court erred in permitting a deputy court clerk to read the voir dire questions. Appellant refers to this procedure as “antiquated”, “archaic and blatently erroneous” which destroys “the very essence of the voir dire examination.” The essence of voir dire, in appellant’s view, is that someone “learned in the law” must conduct the examination before it can be found that the procedure does not violate due process. Appellant cites no authority for this proposition.

The purpose of the voir dire examination is to secure a competent, fair, impartial and unprejudiced jury. Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978); Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980); Commonwealth v. Fulton, 271 Pa.Super. 430, 413 A.2d 742 (1979). To achieve this goal the trial judge has broad discretion in determining the scope, manner and procedure of the voir dire examination, and his decisions will not be reversed in the absence of palpable error. Bentivoglio v. Ralston, 477 Pa. 24, 288 A.2d 745 (1972); Commonwealth v. Hoffman, 263 Pa.Super. 442, 398 A.2d 658 (1979); Commonwealth v. Cephas, 213 Pa.Super. 278, 247 A.2d 662 (1968).

Appellant does not argue that this procedure deprived her of the opportunity to ask certain questions or that the procedure caused a partial and prejudiced jury to be impaneled. Rather, appellant contends that a deputy clerk, reading questions approved by the court, is, in and of itself, inherently prejudicial. While the procedure employed in this case may not be the most judicious way to conduct a voir dire examination, we do not believe it to be violative of due process or an abuse of discretion by the trial judge. The court determined here what questions were to be asked and appellant was free to submit inquiries for the court’s approval. Further, the court was available, during the examination to rule on any objection raised by the parties. Since the scope of voir dire was structured by the court, the actual reading of the questions was but a ministerial act which did not impede the capacity of the examination to ferret out potential jurors incapable of rendering an impartial decision. We find, therefore, that the lower court did not abuse its discretion in permitting a deputy court clerk to read the voir dire questions to the veniremen.

Appellant’s second contention is that the lower court erred in refusing to include in the voir dire examination two of appellant’s proposed questions pertaining to possible jury bias. The questions denied were as follows:

11. Would any of you if you were otherwise satisfied under the evidence and by the charge of the Court that there was negligence on the part of one or more defendants in the present action which caused or substantially contributed to plaintiff’s injuries, hesitate to find a verdict and award damages against such defendant either because he is a physician or it is a hospital?
12. Do any of you have any feelings or beliefs whatsoever concerning the propriety of bringing a malpractice action against a physician or hospital?

Although a juror’s possible prejudice or bias concerning malpractice actions against physicians or hospitals is a relevant consideration which could affect a particular juror’s impartiality, the specific inquiries proposed by appellant in this case were rather ambiguously phrased. While questions of a general nature are the preferred mode of conducting voir dire, inquiring as to a juror’s “feelings or beliefs . .. concerning the propriety of bringing a malpractice action” or whether a juror would “hesitate” to find against a physician or hospital if the evidence established negligence on their part do not necessarily call for responses indicating a juror’s fixed opinion in such matters. As stated in Commonwealth v. McGrew, 375 Pa. 518, 524, 100 A.2d 467, 470 (1953):

“Neither the Commonwealth nor the defendant is entitled on the voir dire of the jury to inquire concerning what the jurors’ present impressions or opinions are. The only question ... is whether they have formed a fixed opinion.”
In a similar vein this court has found that:
“.. . a prospective juror’s ‘feelings’ concerning the presumption of innocence to which appellant was entitled were of no moment, except to the extent that those feelings were unalterable. Since appellant’s questions did not address the fixed nature of such feelings, it need not have been asked.” Commonwealth v. Legree, 256 Pa.Super. 128, 135, 389 A.2d 634, 637 (1978).

In the instant case, the questions as worded, invited confusion in addition to inappropriate responses not affecting the relevancy of a juror’s fixed inability to render an impartial judgment. Therefore, we find that the trial judge did not abuse his discretion in refusing to include appellant’s proposed questions in the voir dire examination.

Appellant’s next contention concerns the propriety of the lower court’s ruling permitting the appellant’s expert witness to be impeached by the contradictory testimony of another witness called by the defense. Appellant argues that the contradicted testimony involved a collateral matter which is never a proper subject for impeachment in this particular manner. While appellant has correctly stated the law, we do not find that the testimony contradicted by the defense witness involved a collateral matter.

Appellant’s expert witness, Dr. Milton Alter, testified on cross-examination by Mr. Trushel to the following:

Q. You are suggesting that the neurosurgeon asked your advice as to how he is supposed to technically perform this operation? Is that what you said?
A. What I said, counselor, is that we discuss technical aspects of the case. He discusses his technique and what he had to do in a particular case and what he found and how he managed it.
And I indicate that the results were with similar techniques in other patients that I have followed with him or that I have referred to him. There is an intimate, frequent, constant formalized, regular exchange of information between us.
And, I have had that privilege of that experience not only with Dr. Buchheit but with many neurosurgeons in all of the academic institutions where I have ever worked.
Q. Now, you told us that you have been at Temple University three years, I believe?
A. Yes, three years, or a little over three years.
Q. During that period of time, how many occasions have you had to have been called in on consultation on a case which involved the elevation of a depressed skull fracture with postoperative epidural venous bleeding?
A. If I may be allowed some latitude, I would estimate ten.
Q. And you would have been called on those cases by the neurosurgical service headed by Dr. Buchheit, is that right?
A. Yes.

Doctor William Buchheit, Chairman of the Department of Neurosurgery at Temple University Hospital, was later called by counsel for Doctor Kessler to rebut Dr. Alter’s testimony relating to his involvement in postoperative care of patients who had undergone an elevation of a depressed skull fracture.

Q. The question I want to ask you, Doctor, is if it is correct that Dr. Alter’s answer “That’s right”, that he would have been called in on many occasions in consultation for postoperative care relative to patients who have undergone an elevation of a depressed skull fracture, is that answer correct?
A. No, sir, it is not correct.
Q. What is not correct about it?
A. We do not ask the neurologist to see our patients following surgery.
Q. That is handled strictly by the department of neurosurgery?
A. Yes, sir, absolutely.
Q. Do you recall of any case of Dr. Alter having been called in on consultation of such cases?
A. No, sir, I have no recollection of it ever happening?
Q. All right. Now, Doctor Buchheit Dr. Alter was again asked another question .. . whether or not he had been called in consultation for postoperative care of patients suffering from epidural venous bleeding. His answer was that he was called in on consultation in at least ten cases involving patients who were suffering from postoperative epidural venous bleeding.
Doctor, is that answer correct?
A. No, sir, that is incorrect.
Q. What is incorrect about that answer?
A. Incorrect in both the number of cases and in the basic premise that we would call him. To the best of my recollection, in my entire professional career, I have only seen three patients in our institution with postoperative blood clots, epidural blood clots. Not ten. And, if I saw one, I wouldn’t call him anyhow.
Q. When you say ... so we understand, when you say postoperative epidural bleeding, would that include venous and arterial bleeding?
A. Yes, sir, of all origins.
Q. So, you have only seen three, and he hasn’t been called in on any of them?
A. That is correct.

Appellant attempted to undo the damage by recalling Dr. Alter to specify, through his office records, the exact number of cases involving postoperative care of depressed fractures he consulted on. Dr. Alter, claiming lack of time and poor record keeping, was only able to arguably present three cases relating to this type of postoperative care.

The thrust of appellant’s argument is that Dr. Alter was examined as to his qualifications before testifying as to his expert opinion and he was deemed competent to do so by the court and opposing counsel. Since there was no question concerning Dr. Alter’s competency to render an expert opinion in this particular type of medical malpractice action, appellant maintains that any subsequent attack on Dr. Alter’s qualifications involved a collateral matter. In other words, appellant’s argument is that once an expert is deemed competent to testify, further inquiry into this area is a side issue, not relevant to the issues in the case and not subject to contradiction by the testimony of another witness.

It is clear in Pennsylvania that a witness cannot be contradicted on collateral matters. Papa v. Pittsburgh Penn-Center Corporation, 421 Pa. 228, 218 A.2d 783 (1966). The rationale for this rule of evidence has been clearly set forth in Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288, 295 (1941):

No witness can be contradicted on everything he testifies to in order to “test his credibility.” The pivotal issues in a trial cannot be “side-tracked” for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germane to the issue trying. There is no rule more firmly established than this: “No contradiction shall be permitted on collateral matters.” (Emphasis in the original).

The application of these principles in the case at hand requires us to find that the contradicting testimony was properly allowed. It cannot be doubted that the main issue in this case was whether or not any or all of the appellees provided appellant with negligent care which caused her physical deficiencies. Dr. Alter was appellant’s only expert witness and necessarily, the success of appellant’s case, hinged on his testimony. The dispute concerning Dr. Alter’s actual participation in cases of post-operative care for patients with depressed skull fractures was certainly relevant to the extent of his experience in these matters and, to some degree, the basis upon which his expert opinion rested. Undoubtedly, this matter went to the very heart of the issue being tried. Although Dr. Alter was found to be competent to give an expert opinion in this case, such did not preclude further inquiry into the amount and extent of his experience underlying that opinion. Experts, notwithstanding their competency to render an opinion, are not all equally experienced and qualified. Once hurdling the initial determination of competency, we believe that challenging the relative scope of an expert’s experience is not a collateral matter.

Appellant further contends that the lower court erred in refusing to instruct the jury on res ipsa loquitur. Appellant is correct in asserting that res ipsa loquitur is applicable in a medical malpractice action. Jones v. Harrisburg Polyclinic Hospital, et al., 496 Pa. 465, 437 A.2d 1134 (1981); Gilbert v. Korvette’s, 457 Pa. 602, 327 A.2d 94 (1974) (specifically adopting Restatement of Torts 2d § 328D).

Section 328D provides:
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible eauses, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the influence may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

We have thoroughly reviewed the record in this case and cannot conclude that appellant’s injuries were of the type that would not have ordinarily occurred in the absence of negligence or that there is sufficient evidence to eliminate “other responsible causes” beyond the alleged negligence of the appellees. Therefore, the lower court did not err in refusing to instruct the jury on res ipsa loquitur.

Appellant’s fifth contention is that the lower court erred in permitting the appellees’ experts to testify as to the cause of appellant’s condition. This contention is based on allegations that the appellees’ expert reports were submitted in an untimely fashion and that the reports did not contain sufficient findings and conclusions pursuant to Allegheny County Local Rule 212. Appellant argues that although the expert reports do state that the appellant’s condition was not caused by the treatment she received while under the appellees’ care, the reports do not contain any theories as to what did, in their opinion, cause appellant’s condition.

One of appellant’s theories of causation developed at trial by Dr. Alter was that during postoperative treatment she experienced an epidural hemorrage in the area of the depressed fracture which created pressure and ultimately resulted in crushing or atrophy of the cerebellum. Another theory advanced by Dr. Alter was that bleeding located in the posterior fossa near the cerebellum was the cause. Dr. Alter testified as to the various symptoms that appellant experienced during post-operative treatment which, he maintained, supported his theories as to what, in fact, did happen and that the appellees, failing to recognize the same, were negligent.

The main thrust of the appellees’ experts’ testimony was that appellant’s theories of causation were not possible under the circumstances. They testified that appellant could not have suffered the injuries that she did as a consequence of the operation or the post-operative treatment. They also testified that, in their opinion, appellant’s condition was caused by the initial trauma, i.e., being struck in the head with the glass bowl and the subsequent seizure.

Generally, Allegheny County Local Rule 212 requires that any party who elects to call an expert witness at trial must list the name, address and a report by that expert in a pre-trial statement. The report must contain “findings and conclusions.”

The lower court, in permitting the appellees’ experts to render an opinion on causation placed emphasis on the fact that for six (6) years prior to trial appellant alleged that her condition was caused by hypoxia. This theory necessarily involved the operation itself and was not related to post-operative care. It was not until two months before the trial that appellant changed her theory to allege that her condition was caused by negligent post-operative care. Appellant was then permitted, over the objections by the appellees, to substitute Dr. Alter as her expert witness to assert that theory. The appellees submitted the names and reports by their experts just before and at the beginning of trial to rebut appellant’s theory.

Appellant contends that because of the last minute submission of the expert reports by the appellees and the inadequate findings and conclusions contained therein, she was prejudiced in not being able to adequately prepare for cross-examination to challenge the appellees’ experts opinions concerning causation. We do not agree.

The rationale for any pre-trial rule is to insure that the trial itself can proceed in a smooth and orderly fashion. This, of course, requires adequate preparation by counsel trying the case. Rule 212 facilitates preparation by requiring disclosure of the nature of an expert witness’ testimony before trial.

When the procedural history of this case is taken into consideration, along with the theories asserted by the appellees’ experts, we do not believe the lower court erred in permitting this testimony.

Notwithstanding the last minute alterations which preceded trial in this case, we find that the expert reports submitted by the appellees were sufficient. Although the reports did not specifically contain assertions to the effect that appellant’s condition was caused by the initial injury, there is no question that counsel for appellant was fully aware of that event and necessarily, in preparing the case, had to take into consideration the possibility that such injury was the cause precipitating her condition. Obviously, appellant was fully informed as to the incident, and certainly could not claim surprise at trial. Therefore the testimony was properly admitted. A finding to the contrary would be an overzealous application of Rule 212. See, Piekarski v. Club Overlook Estates, Inc., 281 Pa.Super. 162, 421 A.2d 1198 (1980).

Appellant’s next contention is that the lower court erred in refusing to remove a juror or alternatively declare a mistrial. Appellant, at trial, reported to the lower court that one of the jurors had complained to the tipstaff that because of the length of the trial he was losing a lot of money. Appellant’s counsel requested the court to remove that juror for cause and substitute an alternate or that he be withdrawn. The lower court refused.

The substitution or withdrawal of a juror is within the sound discretion of the trial judge, whose decision will not be reversed in the absence of an abuse of that discretion. Commonwealth v. Fennell, 444 Pa. 1, 278 A.2d 884 (1971). After reviewing the record, and specifically the alleged comments made by the juror, we find that the trial judge did not abuse his discretion in refusing to grant appellant’s motion to withdraw or substitute that juror.

Appellant’s final contention is that the lower court erred in refusing appellant’s request to instruct the jury on the issue of punitive damages. Appellant contends that punitive damages were appropriate in this case in light of false information contained in appellant’s discharge summary report signed by Dr. Kessler.

In Focht v. Rabada, 217 Pa.Super. 35, 38, 268 A.2d 157, 159 (1970) this court stated:

Pennsylvania has adopted the rule of punitive damages as set forth in § 908 of the Restatement of Torts and the comments thereunder. Section 980(1) provides: “Punitive damages are damages other than compensatory or nominal damages awarded against a person to punish him for his outrageous conduct.” Comment (b) to the above section states that “Punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with reckless indifference to the interests of others.” See Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355 (1963). Thus, the Pennsylvania rule allows the awarding of punitive damages when the act is done with reckless indifference as well as with bad motive.

Dr. Kessler admitted at trial that there were inaccurate statements in the discharge summary which he signed. However, our review of the record, does not show any evidence to demonstrate that Dr. Kessler’s actions were “outrageous,” badly motivated or recklessly indifferent. We conclude, therefore, that the lower court did not err in refusing to instruct the jury on punitive damages.

Order affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    451 A.2d 506
    Dorothy H. HARTLEB, Administratrix of the Estate of Philip Hartleb, Deceased, v. The OHIO CASUALTY INSURANCE COMPANY, Appellant. Betsy L. WHITE, Administratrix of the Estate of Harold Mayoros, Deceased, John Mayoros and Norma Mayoros, his wife, v. The OHIO CASUALTY GROUP OF INSURANCE COMPANIES, Appellant. Dorothy H. HARTLEB, Administratrix of the Estate of Philip Hartleb, Deceased, Appellant, v. OHIO CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1982.
    Filed Oct. 1, 1982.

      William J. Schaaf, Erie, for Ohio Casualty, appellant in Nos. 525 and 526 and appellee in No. 552.
    John Quinn, Erie, for Hartleb, appellant in No. 552 and appellee in Nos. 525 and 526.
    William T. Jorden, Meadville, for White, appellees in No. 526.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is a consolidated appeal which involves the question of whether proof of dependency is a prerequisite to recovery of work loss or survivors’ benefits under the No-Fault Motor Vehicle Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp.1980-81). The trial court granted summary judgment in favor of both plaintiffs-appellees on the work loss issue and in favor of the defendant-appellant on the survivors’ benefits issue. We affirm in part and reverse in part.

The facts in the instant case were set forth by the trial court in the following manner:

The two cases were filed against appellant, the Ohio Casualty Insurance Company. In Hartleb, the plaintiff’s decedent died as a result of injuries sustained in an auto accident. At the time of his death, the decedent was twenty-seven years of age and single. Decedent is survived by his mother, the administratrix of the estate, and four sisters. It is conceded that neither his mother nor his sisters were dependent upon the decedent for support.

In White, the plaintiff’s decedent also died as a result of an automobile accident. The decedent’s parents are handicapped and decedent contributed $60.00 per month towards their support but it was stipulated that they were not dependent upon the decedent.

In both cases, the plaintiffs initially requested payment of survivors’ benefits and work loss benefits pursuant to the insurance policies written by the defendant company and in effect at the time of the decedents’ deaths. However, the plaintiff in White has since withdrawn her demand for survivors’ benefits and now challenges only the defendant’s refusal to pay work loss benefits. Defendant has refused payment on the grounds that work loss benefits are payable only to dependent survivors of the deceased and, in each instance, it has been stipulated that the decedents’ survivors were not dependents. The trial court granted the work loss benefits but denied the survivors’ loss benefits. Final judgments were entered in the amount of $15,000.00 plus interest at 18% as work loss benefits in each case, and judgment was entered in appellant’s favor on the survivors’ loss issue. This consolidated appeal thus followed.

The issues before this Court are controlled by our recent decisions in Chesler v. Government Employees Insurance Company, 302 Pa.Super. 356, 448 A.2d 1080 (1982) and in Freeze v. Donegal Mutual Insurance Company, 302 Pa. Super. 344, 447 A.2d 999 (1982). In Chesler, this Court addressed the question of whether the mother of a decedent who was not financially dependent on the decedent at the time of death could collect survivor’s loss benefits under section 103 of the No-Fault Insurance Act. This Court concluded that the mother was entitled to such benefits when it stated the following:

“We hold today that the word ‘dependent ’ contained in the definition of ‘survivor’ in Section 103 of the No-Fault Act, does not modify the entire subsection, i.e. the words ‘child, parent, brother, sister,’ but was intended by the General Assembly to modify only the word immediately preceding it—‘relative.’ Because the lower court erred in arriving at a different reading of the Act its order denying appellant the survivor’s loss benefits she sought must be reversed.”
Chesler v. Government Employees Insurance Company, 302 Pa.Super. at 365, 448 A.2d at 1085. (Emphasis added).

In view of the above, decedent’s mother and four sisters in Hartleb were entitled to receive survivors’ benefits. Accordingly, we must reverse the trial court’s order which granted judgment in favor of the defendant on this issue.

With respect to the work loss benefits question, this Court’s decision in Freeze is controlling.

In Freeze, the decedent’s father instituted action on behalf of his son’s estate in order to recover work loss benefits. After examining the applicable statutes, we “h[e]ld .. . that the estate of a deceased victim is entitled to recover work loss benefits under the No-Fault Act.” 302 Pa.Super. at 354, 447 A.2d at 1004 (footnote omitted). Accordingly, the estates of both decedents in the instant appeal are entitled to recover work loss benefits.

Since this Court’s decision in Freeze, we also have elaborated on this issue:

“[I]f the Legislature had intended that ‘work loss’ benefits be recoverable by a decedent’s estate only after the establishment of ‘dependency,’ it would have so stated. See D. Shrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act, 109 & 110. Additionally, since insurance statutes are not among those types of statutes designated by our Legislature as requiring strict construction, we are to construe them liberally in order to effect their purpose. Mattia v. Employers Mutual Companies, [294] Pa.Super. [577], 440 A.2d 616 (1982). In assiduously reviewing the No-fault Act, this Court finds no requirement of proving ‘dependency’ in order to recover ‘work loss’. In fact, in defining ‘work loss,’ the No-fault Act nowhere mentions survivor or survivors; thus, no showing of ‘dependency’ is necessary. See Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. [181] at [187], 401 A.2d [1160] at 1162-1163 (“Historically, the courts of this Commonwealth have routinely . . . found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage for the insured.’ (Quoted with approval in Allstate Insurance Co. v. Heffner, supra, 491 Pa. [447] at [455], 421 A.2d [629 at] 633)). Moreover, appellant-Roger Miller does not request the Court to award the ‘work loss’ benefits to him as a survivor. Rather, Mr. Miller, in his capacity as duly appointed administrator, seeks to secure such benefits on behalf of his parents’ estates. Surely, such estate has suffered a ‘loss’ as that term is defined in the No-fault Act. 40 P.S. § 1009.103. Consequently, in conclusion, we hold that the decedents’ estates are entitled to recover ‘work loss’ benefits of the deceased victims under the No-fault Act, without first having to establish ‘dependency’ upon the deceased victims as a sine qua non to recovery.
Miller v. United States Fidelity and Guaranty Company, 304 Pa.Super. 43, 54, 450 A.2d 91, 97 (1982) (Footnote omitted).

Similarly in the instant case, since both parties are seeking “work loss” benefits on behalf of the estate, dependency need not be proven.

Appellant next argues that the court below erred when it concluded that the 18% overdue interest charge began to run from the date on which the work loss benefits were to be paid rather than from a date forty-five (45) days after an application was filed for those benefits. We cannot agree.

The relevant statute, Section 106 of the No-Fault Act, provides the legal framework for our examination of this issue:

“§ 1009.106 Payment of claims for no-fault benefits (a) In general.—
(1) No-fault benefits are payable monthly as loss accrues. Loss accrues not when injury occurs, but as allowable expense, work loss, replacement services loss, or survivor’s loss is sustained.
(2) No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained, unless the obligor designates, upon receipt of an initial claim for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period. If reasonable proof is supplied as to only part of a claim, but the part amounts to one hundred dollars $100) or more, benefits for such part are overdue if not paid within the time mandated by this paragraph. An obligation for basic loss benefits for an item of allowable expense may be discharged by the obligor by reimbursing the victim or by making direct payment to the supplier or provider of products, services, or accommodations within the time mandated by this paragraph. Overdue payments bear interest at the rate of eighteen per cent (18%) per annum. ...” (emphasis added)

According to appellant, “the work loss benefits should be payable over a fifteen-month period and any interest penalty should be calculated from the date in which such monthly payment is due” since the No-Fault Act indicates that “ ‘work loss’ benefits are to be provided by the insurance company up to a monthly maximum of $1,000 with a total maximum of $15,000. 40 P.S. Section 1009.202(b)”. Brief for appellant at 11. (Citation omitted). Appellant, however, ignores subsection (b)(2) which provides for work loss “up to a total amount of fifteen thousand dollars $15,-000.00.” Under the circumstances of this case, we conclude that the trial court did not err when it awarded the 18% interest payment because, obviously, there was no chance that the deceased victim would return to work.

The trial court refused to award appellees’ attorney’s fees since it concluded that appellant’s “refusal to pay the claims was based on good faith regarding a legitimate issue of law.” Trial Court’s Opinion at 2. Our review of this issue also leads us to the conclusion that the trial court did not abuse its discretion. The recent case law, Freeze, Chester, and Milter, lends credence to the trial court’s ruling.

The orders granting partial summary judgments are affirmed in part and reversed in part, and the case is remanded to compute the damages to which the survivors of decedent, Philip Hartleb, are entitled.

      . The relevant portions of Section 103 provide:
      “ ‘Survivor’ means:
      (A) spouse; or
      (B) child, parent, brother, sister or relative dependent upon the deceased for support.
      ‘Survivor’s loss’ means the:
      (A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and
      (B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury,
      reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.”
      40 P.S. § 1009.103

      . Section 103 defines “work loss” in the following manner:
      “ ‘Work loss’ means:
      (A) loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of this act; and
      (B) reasonable expenses of a victim for hiring a substitute to perform self-employment services, thereby mitigating loss of income, or for hiring special help, thereby enabling a victim to work and mitigate loss of income.”

       We note that a different result is not mandated by Midboe v. State Farm Mutual Automobile Insurance Co., 495 Pa. 348, 433 A.2d 1342 (1981) (plurality) (O’BRIEN, C.J., filed an Opinion in Support of Affirmance in which ROBERTS and FLAHERTY, JJ., joined; NIX, J., filed an Opinion in Support of Reversal; LARSEN, J., filed an Opinion in Support of Reversal in which KAUFFMAN, J., joined). There, the Court held that the appellant-mother of a deceased minor child was required to prove dependency on the deceased to recover basic loss benefits under the No-fault Act. Since the case dealt specifically with the appellant’s right to ‘survivor’s loss’ benefits under her No-Fault insurance policy, we find that it does not control the case sub judice.

       Section 103 of the No-fault Act defines ‘Loss,’ in pertinent part, as the ‘accrued economic detriment resulting from injury ... consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.’ Since injury means death, as well as non-fatal injury, Section 103 can be read to mean that work loss is an accrued economic detriment resulting from death. Heffner v. Allstate Insurance Co., supra, 265 Pa.Super. at 188, 401 A.2d at 1163.”

      . Even though the caption indicates that the parents of Harold Mayoros, the decedent, and the administratrix, Betty White, are parties to the action, the brief filed indicates that the parents are not arguing that they are entitled to collect work loss benefits in their own right. Brief for Appellant at 5; See also Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). Rather, the brief indicates that “the issue presented in this case is whether the estate of the deceased victim is entitled to receive the $15,000.00 work loss benefits.” Id. Additionally, we repeat that the parents of Harold Mayoros “have not pursued a claim for survivor’s benefits of $5,000.00 since it is stipulated that the $60.00 per month amount that their son sent to them did not make them dependent upon their son for support.” Brief for Appellant at 10. Thus, the Mayoroses have abandoned their claim that they are entitled to receive survivors’ benefits.

      . Section 202(b) provides:
      “(b) Work loss limits.—Work loss, as defined in section 103 [infra at ftn. 2] shall be provided:
      (1) up to a monthly maximum pf:
      (A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures; or
      (B) the disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with such obligor that such sum shall measure work loss; and
      (2) up to a total amount of fifteen thousand dollars ($15,000).... ”


author:
      POPOVICH, Judge:
      WIEAND, Judge,

text:
    451 A.2d 511
    INRYCO INC. v. HELMARK STEEL INC., Falcon Steel Company Inc. and Federal Insurance Company v. SAFECO INSURANCE COMPANY OF AMERICA. Appeal of CAUDILL, ROWLETT, SCOTT AND C.M. ASSOCIATES, INC.
    Superior Court of Pennsylvania.
    Argued March 30, 1982.
    Filed Oct. 1, 1982.

      Richard Ford Wells, Philadelphia, for appellants.
    Gene E.K. Pratter, Philadelphia, for appellees.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the court below which denied a petition filed by appellants, Caudill, Rowlett, Scott and C.M. Associates, Inc. “TO INTERVENE AND REQUEST RESCISSION OR MODIFICATION OF THE COURT OF COMMON PLEAS OF DECEMBER 16, 1980”. We must quash the appeal because it is interlocutory.

The facts in the instant case were set forth succinctly by the trial court and are as follows:

This litigation arises in the context of a claim by appelleerespondent, Inryco, Inc., for damages sustained during its participation in the Wyoming Valley West High School construction project. Litigation in the Philadelphia Court of Common Pleas between the respondent and its subcontractor on the project, Helmark Steel, Inc., was previously settled.

The disputes in this settled litigation came to trial before Judge Victor DiNubile in September, 1980. Prior to commencement of trial and thereafter, Judge DiNubile was involved in supervising settlement negotiations among the parties. The matter was finally resolved, with court approval, prior to the conclusion of trial.

An integral part of the judicially supervised settlement was the embodiment of the parties’ agreement, in a court order, that the entire record of the case be placed under seal and that all documents and deposition transcripts provided or received in the course of discovery be deemed “proprietary and confidential.” The order, the terms of which were evaluated and approved by Judge DiNubile, was signed by Judge Stanley M. Greenberg on December 16, 1980, providing, in pertinent part:

“3. The entire record of this case is hereby placed under seal.
4. All documents filed of record in this case, all documents provided or received in the course of discovery by any party in this action and all transcripts of depositions taken in this action shall be deemed to have been designated as proprietary and confidential, pursuant to the Stipulation and Confidentiality Order heretofore agreed to by the parties hereto on August 1, 1979 and September 2, 1980, which Stipulation and Confidentiality Orders shall continue in full force and effect, and all parties in this case shall continue to be bound by such Stipulation and Confidentiality Orders. ... ”

The case at bar is only one of several actions that arose from the construction of the Wyoming Valley West High School. Another such suit, Inryco, Inc. v. Wyoming Valley West School District, et al., Civil Action No. 80-0232 (hereinafter “the District Court action”), is presently in the United States District Court for the Middle District of Pennsylvania.

Petitioners-appellants were not parties in the instant captioned matter. However, as defendants in the District Court action, they alleged that the aforesaid order denied them the opportunity to review the Court of Common Pleas record and discover documents obtained therein. They contended that the purpose of the stipulation and confidentiality order entered pursuant to it was to interfere with discovery in the federal .action, and that if the order is not rescinded or modified so as to permit them to review the record in the Philadelphia action, they will be significantly prejudiced in the presentation of their defense to the claims of respondent, Inryco, Inc., in the District Court action.

The court denied appellants’ petition on June 24,1981, and this appeal followed.

Appellants first argue that the order appealed is a final one because “the practical effect of the June 24, 1981, order is to put CRS and CM ‘out of court’ ”. Brief for Appellants at 7. We cannot agree.

The legal standards which we must apply when examining whether an issue is interlocutory have been articulated according to the following:

“Often, in deciding to quash an appeal as interlocutory, we do not consider the merits of the case. If, for example, we find that an appeal is from an order dismissing exceptions, instead of from a judgment entered on the docket, we look no further. Penstan Supply, Inc. v. Hay, 283 Pa. Superior Ct. 558, 424 A.2d 950 (1981). It would be pointless in such a case to consider the merits. We are a court of limited jurisdiction, and unless a case is within our jurisdiction we have no power to decide it, no matter how compelling its merits might be. Toll v. Toll, 293 Pa. Superior Ct. 549, 439 A.2d 712 (1981).
Sometimes, however, the decision whether to quash an appeal is intertwined with a consideration of the merits, for ‘[t]he finality of an order is a judicial conclusion which can be reached only after examination of its ramifications.’ Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). This is especially so when the appeal is from an order denying a petition to intervene.
[‘][A]s a rule, an appeal will not lie from an order refusing leave to intervene, because such an order is not a final one, [but] cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner. Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912) (citations omitted).[’]
Unless we consider the merits—or ‘ramifications’—of a case, we cannot tell whether an order denying a petition to intervene is ‘a practical denial of relief to which the petitioner for intervention is entitled.’ See, e.g., Taub v. Merriam, 251 Pa.Superior Ct. 572, 380 A.2d 1245 (1977) (deciding appeal); Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Superior Ct. 101, 403 A.2d 113 (1979) (quashing appeal).

Boise Cascade Corporation v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 282, 446 A.2d 614, 615 (1982) (Emphasis added.)

When the above criteria are applied to the facts of the instant case, we must conclude that the order of the court below denying appellants’ petition to intervene did not constitute “a practical denial of relief” to which appellants are entitled. Id. Under the Federal Rules of Civil Procedure, appellants are entitled to conduct discovery. See F.R.Civ.P. 26. Additionally, even the trial court stated its order was “without prejudice to Petitioners’ right to re-apply to the Court on the basis that a particular witness’s deposition or a particular document included in the sealed record would not be otherwise available.” Record at # 12. Thus, because appellants have other remedies available to them, i.e., discovery in the federal courts and the right to re-apply to the state courts, appellants are not denied the relief they seek. See Richard Held Builders v. A.G. Allebach, 266 Pa.Super. 101, 403 A.2d 113 (1979); Boise Cascade Corporation v. East Stroudsburg Savings Association, 300 Pa. Super, at 281, 446 A.2d at 615 (“refusal to permit an intervention is a final order or decree as to the petitioner” where the denial of relief “can obtain in no other way”).

It appears that appellants rely heavily on the assertion that because the order of the Court of Common Pleas of Philadelphia County denied them immediate relief in that court, the petition therefore was final as to them. This is an interesting legal argument because appellants, in effect, have attempted to create a final order by filing a petition and then appealing the court’s denial of that petition after a final order had been entered. In the proceedings below, appellants were not parties to the original action which formed the basis of the instant appeal. The parties reached a settlement, and it was not until after a settlement was negotiated that appellants sought to invoke the court’s jurisdiction via a petition to intervene and rescind or modify the court’s order. At this point in the litigation, intervention was not proper.

We have said that a person not a party to the lawsuit may intervene “/ají any time during the pendency of an action. ” Pa.R.C.P. 2327 (Emphasis added). Because a settlement decree “binds parties with the same effect as a final decree issued after a full hearing on the merits”, the case was not pending when appellants filed their petition. Appeal of John, 300 Pa.Super. 293, 297, 446 A.2d 621, 623 (1982); See also In re Estate of Pitone, 297 Pa.Super. 161, 165, 443 A.2d 349, 352 (1982) (“Pending . . . [means] ‘an action or suit . . . from its inception until the rendition of final judgment.”).

Appeal quashed.

McEWEN, J., concurs in the result.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

I respectfully dissent from the majority’s decision to quash this appeal on the grounds that the trial court’s order denying intervention was interlocutory and not appealable. In my judgment, the order was final and, with respect to the instant action, put appellants out of court finally.

However, I agree with Judge Popovich that a person not a party to a lawsuit may intervene only “during the pendency of an action.” Pa.R.C.P. 2327. Here, appellants, who were not parties to the original action, sought to intervene approximately four months after the action had been finally settled and terminated. Under such circumstances, the trial court properly denied appellants’ petition to intervene. I would affirm the order denying intervention.

      . Judge DiNubile became unavailable sometime after the conclusion of the settlement negotiations, but before the court’s issuance of the final Order. He explained the circumstances of the case to Judge Greenberg and asked that he approve the stipulation and sign the order in connection with the settlement.

      . There is some dispute as to the exact nature and relationship of the herein captioned matter and the District Court action. Petitioners assert that the Common Pleas and District Court actions encompass identical questions of law and fact. Respondent contends otherwise. We do not find it necessary, or helpful to the resolution of the presented petition and answer, to resolve this dispute.

       In federal practice the appealability of an order denying intervention is stated in a manner similar to the rule of Frey’s Estate, supra. This approach has been criticized as ‘a fictional barrier insofar as it pretends to restrict appellate jurisdiction. Since the rule makes the initial question of jurisdiction turn on the merits of the question being raised, i.e., whether intervention was of right or invoked the sound discretion of the trial court, as a practical matter the appellate court must decide the merits whether it dismisses the appeal, affirms, or reverses.’ 3B Moore’s Federal Practice ¶ 24.15, at 564-65 (2d ed. 1976) (citations omitted). It has therefore been argued that all denials of intervention should be regarded as final orders. Id.; Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 748-51 (1968).”

      . In view of our disposition, we need not address the other issues appellant raises: (1) whether the trial court abused its discretion when it sealed the entire court record based solely upon the wishes of the parties to the litigation and when it denied appellants petition to intervene; and (2) whether the trial court had the power to modify or rescind its sealing order. Additionally, appellees argue that “there is no current justifiable dispute between or among the parties to this appeal concerning discovery.” Brief for Appellees at 15. It may well be that the lawsuits have been settled and that the issue is moot; however, we are unable to make such a determination from the state of the instant record. Gee v. Eberle, 279 Pa.Super. 101, 122, 420 A.2d 1050, 1062 (1980) (“The fact of the resale is ... not of record.”).


author: LIPEZ, Judge: WICKERSHAM, Judge,

text:
    451 A.2d 514
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert MURPHY and John Filler.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Burton A. Rose, Philadelphia, for appellees.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

This is a Commonwealth appeal from a pre-trial order dismissing all charges against the defendants, Philadelphia police detectives Robert Murphy and John Filler, on the ground that their due process rights were violated by a pre-arrest delay of 32 months. We vacate the order, reinstate all charges, and remand for disposition of defendants’ other pre-trial motions which remain outstanding.

The charges against detectives Murphy and Filler arose out of an alleged beating of Amos Singleton on December 23, 1975, after a preliminary hearing held at the 14th police district on robbery charges then pending against Singleton. Murphy and Filler appeared at the hearing as the arresting officers. After the hearing, defendant Murphy and another policeman, Officer Fleming, led Singleton out to take him back to his cell. Meanwhile Singleton’s lawyer, Daniel-Paul Alva, remained in the hearing room because he had another case listed.

After hearing sounds of a struggle outside, Alva ran out and saw Singleton doubled over. Alva questioned defendant Filler, who said Singleton had tried to escape. Murphy and Filler then decided to take Singleton to the 35th police district, in order to charge Singleton with escape. They also decided to ride to the 35th district in the back of the police van with Singleton.

Alva returned to the hearing room, where his other case was continued. Alva then drove his car quickly to the 35th district, arriving simultaneously with the police van and with Officer Fleming, who drove in a separate car. Defendants Murphy and Filler removed Singleton from the van. Singleton was unrecognizable, his entire face swollen and blood-covered. Murphy and Filler assisted Singleton into the Northwest Detective Division, which is in the same building as the 35th district. Sergeant Hill, who was on duty, ordered that Singleton be taken to the hospital, where he remained from December 23, 1975 to January 1, 1976, being treated for extremely serious injuries.

At the time Singleton had been led into the Northwest Detective Division, Mr. Alva immediately told Sergeant Hill, in the presence of defendants Murphy and Filler, that he wished to file a complaint charging the defendants with beating Singleton in the back of the van. Alva gave a detailed statement, the gist of which was that Singleton had no visible injuries of any kind when Alva saw the defendants take Singleton into the van with his hands cuffed behind his back, while Singleton had obviously serious injuries when he emerged from the van with the defendants.

Two police detectives and a lieutenant were assigned to investigate both Alva’s complaint and Singleton’s alleged escape. In separate interviews on the day of the incident, Murphy and Filler both claimed that Singleton’s injuries occurred during the alleged escape attempt, when Singleton kicked Officer Brennan and hit Murphy and Filler with an oil can, forcing Murphy and Filler to strike Singleton about the head with their blackjacks in order to subdue him. Both denied beating Singleton during the ride in the van. Other police witnesses were also interviewed. As a result of the investigation, Singleton was charged with escape and with assaulting Murphy, Filler and Corporal Brennan. Singleton was eventually acquitted of these charges.

On January 20, 1976 Singleton’s family filed a private criminal complaint with the Philadelphia district attorney’s office against Murphy and Filler, charging them with beating Singleton in the rear of the police van. On November 30, 1977 the district attorney’s office closed the investigation arising out of the Singleton complaint. About a month later, the district attorney’s office began a review of previously closed police brutality cases, including Singleton’s. Reinvestigation of the Singleton complaint led to the arrest of Murphy and Filler on the charges involved here on July 27, 1978.

After disposition of various pre-trial matters during the ensuing months, defendants filed omnibus pre-trial motions, raising numerous issues. One issue which was not raised was whether the pre-arrest delay violated due process. A hearing on the omnibus pre-trial motions began on March 19, 1979. On the first two days of the hearing, while defendants’ counsel argued other issues, the trial judge himself persistently raised the question of whether the prearrest delay in this case had violated the defendants’ due process rights. The prosecutor continually pointed out that the issue had not been raised by defendants and was consequently not before the court. Nevertheless, the trial judge eventually announced that he would hear evidence on the issue. Defense counsel was given the opportunity to gather evidence, which was presented over a period of several days, the hearing being concluded on March 28, 1979. On November 7, 1979 the trial judge filed an order dismissing all charges against defendants on the ground that the pre-arrest delay had violated their due process rights. The Commonwealth filed these appeals, which have been consolidated. Pa.R.A.P. 513. We vacate the dismissal order, both because the trial judge improperly raised the issue sua sponte, and because he decided it erroneously.

I.

Since Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975), which reversed this court’s decision because it was based on an issue this court had raised sua sponte, our Supreme Court has continually “criticized the practice of courts reaching for issues not presented by the litigants.” Commonwealth v. Branham, 467 Pa. 605, 607-08 n. 3, 359 A.2d 766, 767 n. 3 (1976) (citations omitted). In several instances, the reasoning of Wiegand has been applied to overturn trial court determinations based on issues raised sua sponte. Commonwealth v. Waters, 491 Pa. 85, 98, 418 A.2d 312, 318-19 (1980); Butler Area School District v. Butler Education Association, 481 Pa. 20, 21, 391 A.2d 1295 (1978); In re Duncan Trust, 480 Pa. 608, 613, 391 A.2d 1051, 1054 (1978); Coleman v. Board of Education of School District of Philadelphia, 477 Pa. 414, 423, 383 A.2d 1275, 1280 (1978); Wesolek v. Shaler Township, 56 Pa.Commw.Ct. 332, 335-36, 424 A.2d 1008, 1009 (1981). Most recently, in Witt v. Commonwealth, Department of Banking, 493 Pa. 77, 425 A.2d 374 (1981), the six participating justices unanimously agreed that the Commonwealth Court (which had sat as trial court in that case) had erred in deciding an issue sua sponte. The opinion in support of remand (Nix, J., joined by Flaherty and Kauffman, JJ.) stated, “We reaffirm our often stated admonition that courts should confine their consideration to issues presented by the parties and not usurp the role of the litigant in the management of the lawsuit. Cf. Weigand v. Weigand [sic], [supra ].” 493 Pa. at 82-83, 425 A.2d at 376. The opinion in support of affirmance (Roberts, J., joined by O’Brien, C.J. and Larsen, J.) explicitly agreed on this point. 493 Pa. at 79 n. *, 425 A.2d at 374 n. *. Here the trial judge raised the due process issue sua sponte, and that fact alone requires us to vacate his order.

II.

The trial judge’s determination of the due process issue was also incorrect on the merits. The primary guarantee against the bringing of overly stale criminal charges is the statute of limitations, which provides predictable, legislatively enacted limitations on prosecutorial delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The role of the Due Process Clause in protecting against oppressive pre-arrest or pre-indictment delay is limited. Id. An accused person who claims a due process violation from pre-arrest delay must show both that the delay caused him substantial prejudice, and that the prosecution’s reasons for the delay were improper. Only after the substantial prejudice is established should the court inquire into the reasons for the delay, for it is only such prejudice which “makes a due process claim concrete and ripe for adjudication.” United States v. Lovasco, supra; Commonwealth v. Daniels, 480 Pa. 340, 356, 390 A.2d 172, 181 (1978). We agree with the Commonwealth that the court below erred in finding that defendants demonstrated the requisite prejudice, and hence we need not reach the Commonwealth’s claim that the court also erred in its determination on the reasons for the delay.

The trial judge found in his opinion that the defendants were never questioned under any circumstances making it reasonable for them to conclude that they were suspects. The Commonwealth contends, and we agree, that this “finding” has no support in the record. In fact, the record flatly contradicts it.

As a result of Mr. Alva’s complaint, defendants were separately interviewed on the day of the incident as to whether they had beat Singleton in the rear of the van. Both Murphy and Filler placed on record their position that all of Singleton’s injuries had occurred during the alleged escape attempt at the 14th district, before Singleton got back into the van with them. Defendants named a number of police witnesses who would support their position that Singleton already had his injuries when he got into the van. All police witnesses named by the defendants were also interviewed at that time. It could hardly be clearer that defendants were put on notice at the time of the alleged crime that they were suspects, and they had full opportunity then to obtain whatever witnesses were available for their defense. See Commonwealth v. Crawford, 468 Pa. 565, 569-70, 364 A.2d 660, 663 (1976). Moreover, defendants were the subjects of a misconduct investigation by the Staff Inspectors Office for the alleged beating of Singleton in the van, and they needed exactly the same witnesses to defend against the misconduct charge.

In light of all this, the statement in the trial judge’s opinion that defendants “were never aware of any investigation of themselves with regard to the allegations of Singleton” is difficult to understand. As best we can determine, the trial judge apparently believed that defendants were deprived of an opportunity to locate witnesses in their favor and to record their own recollection of events, because they relied on the fact that the district attorney’s office, by ultimately deciding to prosecute Singleton for escape, had indicated acceptance of the defendant’s version of the events of December 23, 1975. By the time the decision to prosecute Singleton was made, however, defendants had already been accorded full opportunity to give their accounts and name their supporting witnesses when they were investigated immediately after the alleged beating in the van. The interviews with both the defendants and all the witnesses they named are preserved in the lengthy police investigation report, which the Commonwealth introduced in the court below. Moreover, the prosecution of Singleton provided defendants even more opportunities to record their own recollections, and to name their supporting witnesses, concerning the question of whether they had beat Singleton in the van, because defendants were extensively cross-examined on this point at a number of proceedings in connection with the prosecution of Singleton.

Besides being overwhelmingly contradicted by the record, the trial judge’s finding that defendants never knew they were being investigated seems completely gratuitous, going far beyond what defendants themselves tried to establish by the evidence presented at the hearing below. Defendants attempted to show that there were potential witnesses whose recollections had diminished since the time of the alleged beating. Defendants did not claim their own memories had faded since the time of the incident; nor did they contend that any memory loss had been suffered by any of the witnesses whom they had named during the investigations of themselves, or whom they had named at the various proceedings in the prosecution of Singleton. Instead, at the hearing below defendants presented the testimony of six other policemen, never previously mentioned as witnesses, who defendants recall were at the 14th police district on December 23, 1975. Of these six officers, four testified in the hearing below that they were not present at the scene on that day, or that they could not recall if they were. Of the two remaining, one officer testified that he witnessed the struggle in the 14th district yard, but could not recall whether he had seen Singleton’s face before Singleton was placed in the van. The other officer testified that while he did not witness the struggle, he saw Singleton’s face bleeding somewhat before being put into the van, but the officer could not recall how extensive Singleton’s injuries appeared at the time.

Clearly there is even less substance to defendants’ claim than the one our Supreme Court rejected in Commonwealth v. Daniels, 480 Pa. 340, 357, 390 A.2d 172, 181 (1978), stating: “Much more substantial claims of impaired memory have been rejected by other courts. See, e.g., United States v. Juarez, 561 F.2d [65,] 68-69 [ (7th Cir. 1977) ] and cases cited therein; United States v. Finkelstein, 526 F.2d 517, 526 (2d Cir. 1975), cert. denied sub nom. Scardino v. United States, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976).” Accordingly, we must vacate the lower court’s order, and remand for disposition of the pre-trial motions which have not been disposed of previously.

Order vacated, all informations against defendants reinstated, and case remanded for further proceedings.

WICKERSHAM, J., files a concurring opinion.

PRICE, J., dissents.

WICKERSHAM, Judge,

concurring:

I concur in the result.

The lower court dismissed all charges and ordered both defendants discharged on the ground that the 31 month delay between the crime and the defendants’ arrest violated due process. Defendants, who knew immediately after the incident that they might be subject to criminal prosecution, and were themselves complainants in a cross-prosecution against the complainant here, established, at most, that witnesses’ recollections were dimmed. This is a patently inadequate basis for dismissal.

The primary guarantee against bringing overly stale criminal charges is the statute of limitations; the Due Process Clause plays a limited role in protecting against prejudicial delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

In United States v. Marion, 404 U.S. 307 [92 S.Ct. 455, 30 L.Ed.2d 468] (1971), this Court considered the significance, for constitutional purposes, of a lengthy preindictment delay. We held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis of the language, history, and purposes of the Clause persuaded us that only ‘a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections’ of that provision. Id., at 320. We went on to note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide ‘ “the primary guarantee against bringing overly stale criminal charges.” ’ Id., at 322, [92 S.Ct. at 464] quoting United States v. Ewell, 383 U.S. 116 [86 S.Ct. 773, 15 L.Ed.2d 627] (1966). But we did acknowledge that the ‘statute of limitations does not fully define [defendants’] rights with respect to the events occurring prior to indictment,’ 404 U.S. at 324, [92 S.Ct. at 465] and that the Due Process Clause has a limited role to play in protecting against oppressive delay.
‘[W]e need not . . . determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.’ Id., at 324-325 [92 S.Ct. at 465-66] (Footnotes omitted).
Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.

Id. at 788-90, 97 S.Ct. at 2047-48.

      . The informations filed against defendants charged them with simple assault, 18 Pa.C.S. § 2701; aggravated assault, 18 Pa.C.S. § 2702; official oppression, 18 Pa.C.S. § 5301; and criminal conspiracy, 18 Pa.C.S. § 903.

      . Singleton was first taken to Albert Einstein Medical Center on December 23, 1975, but was transferred that evening to Philadelphia General Hospital. The diagnoses of the doctors who examined Singleton at Einstein and PGH included—among other things—multiple lacerations of the face, subcutaneous hematoma (secondary to trauma), fractured cheekbone, fractured leg, fractured finger, perforated eardrum, and myoglobinuria, which is a rare condition in which muscle injury is so severe that muscle tissue enters the urine.

      . While the Commonwealth’s brief points out that the due process issue was raised sua sponte by the trial judge, the Commonwealth has not requested that we overturn the order on that basis. We may do so, however, even without their requesting it. See Benson v. Penn Central Transportation Company, 463 Pa. 37, 42-43, 342 A.2d 393, 395-96 (1975). Although we find this a sufficient basis in itself to vacate the order, we are not precluded from going on to hold, as we do in part II, that the incorrect determination on the merits provides an alternative, independent basis for our decision. See Coleman v. Board of Education of School District of Philadelphia, 477 Pa. 414, 423, 383 A.2d 1275, 1280 (1978). This is an especially appropriate case to provide this additional independent reason for the decision, because some recent Supreme Court cases, while not overruling the unanimous ruling made in Witt v. Commonwealth, Department of Banking, supra, have created confusion and uncertainty concerning what the Court might do in the future in the area of sua sponte determination. See Pennsylvania State Association of Township Supervisors v. Thornburgh, 496 Pa. 324, 326-27 n. 2, 437 A.2d 1, 2 n. 2 (1981), rearg, den’d (opinion in support of affirmance by O’Brien, C.J., joined by Kauffman, J.); Snider v. Thornburgh, 496 Pa. 159, 175-76 n. 8, 436 A.2d 593, 601 n. 8 (1981) (opinion by O’Brien, C.J., fully joined by Kauffman, J., joined in pertinent part by Nix, J., joined in all except pertinent part by Larsen and Flaherty, JJ.).

      . Defendants’ brief points out that one federal district court has stated: “As we interpret United States v. Dukow, 453 F.2d [1328,] 1330 [ (3d Cir. 1972) ], either substantial prejudice to a defendant’s right to a fair trial, or delay as an intentional device by the prosecution to gain a tactical advantage over the accused, must be shown in order to make out a due process violation under the criteria of United States v. Marion [, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ].” United States v. Clark, 398 F.Supp. 341, 350 (E.D.Pa.1975) (emphasis in original). Examination of the Court of Appeals’ opinion in Dukow show that Clark correctly interpreted Dukow, but that Dukow itself misinterpreted the United States Supreme Court’s opinion in Marion. The statement in Dukow is inconsistent with both Marion and the U.S. Supreme Court’s later opinion in United States v. Lovasco, supra, and it is the Supreme Court’s opinions which are controlling. See Cox v. Dravo Corporation, 517 F.2d 620, 627 (3d Cir. 1975), cert. den’d, 423 U.S. 1020, 96 S.Ct. 457, 46 L.Ed.2d 392; cf. Mackey v. Adamski, 286 Pa.Super.Ct. 456, 465-66, 429 A.2d 28, 32-33 (1981); reconsideration den’d; see also United States v. City of Philadelphia, 644 F.2d 187, 192, n. 3 (3d Cir. 1980), reh’g den’d (1981).

      . The trial judge made no findings of fact at the conclusion of the hearing. While Rule of Criminal Procedure 323(i) is inapplicable to the hearing on the due process issue since it did not involve suppression of evidence, the better course would have been to make specific findings of fact and conclusions of law at the end of the evidentiary hearing below, in order to facilitate the proper deference by an appellate court to the trial judge’s fact-finding function. Cf. Commonwealth v. Jackson, 483 Pa. 101, 104-05, 394 A.2d 930, 931 (1978). The only factual “findings” we have here are those scattered throughout the trial judge’s opinion, written long after the hearing. Cf. Commonwealth v. Hunt, 280 Pa.Super.Ct. 205, 208 n. 2, 421 A.2d 684, 685 n. 2 (1980) (appellate review hampered because “the suppression judge did not make separate findings of fact and conclusions of law, but instead made a lengthy statement, in which observations concerning the evidence are scattered among discourses on the importance of adequate law enforcement and a variety of other topics”). This renders appellate review particularly difficult in a case such as this, in which the record runs to thousands of pages.

      . The Commonwealth attempted to make an additional showing that defendants were not prejudiced by the delay, by showing that defendants had available a number of witnesses who had given accounts supporting defendants’ position when defendants were being investigated, as well as at various proceedings in the prosecution of Singleton. When the Commonwealth placed these witnesses on the stand, the trial judge made a number of rulings which we do not understand. However, we do not believe we need consider whether the Commonwealth was successful in making an additional showing of lack of prejudice to the defendants. Any such showing would be superfluous, in light of the fact that defendants had not demonstrated anything even approaching substantial prejudice with their witnesses.


author: CERCONE, President Judge:

text:
    451 A.2d 520
    COMMONWEALTH of Pennsylvania v. Gary Darren STASIAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 17, 1981.
    Filed Oct. 8, 1982.

      Morton DeBroff, Pittsburgh, submitted a brief on behalf of appellant.
    Albert Nichols, District Attorney, Greensburg, submitted a brief on behalf of Commonwealth, appellee.

      Before CERCONE, P.J., and BROSKY, and MONTEMURO, JJ.
   CERCONE, President Judge:

Appellant was convicted in a non-jury trial of burglary, receiving stolen property, conspiracy, and possession of controlled substances with intent to deliver. Appellant’s omnibus pre-trial suppression motion was denied. Appellant’s post-verdict motions were denied and the appeal followed. Appellant received a sentence of three to six years for the burglary, conspiracy, and receiving stolen property convictions, and a suspended sentence for the violation of the Controlled Substance Act conviction. This appeal followed. We affirm.

Appellant raises three issues on appeal. First, whether the evidence was insufficient to support the convictions and whether the Commonwealth failed to prove the corpus delecti of any of the crimes with which the appellant was charged. Second, whether an extra-territorial arrest of appellant was unlawful. And third, whether the warrant-less arrest of the appellant was made without probable cause.

On September 21, 1978, at about 1:45 a.m., the Thrift Drug Store on Route 22 in Murrysville, Westmoreland County, was burglarized. An alarm was activated which alerted the Murrysville Police. In addition, two guards at the Beckwith Machinery Company which is located across the road, heard a noise which came from the direction of the Thrift Drug Store. One guard telephoned the police and reported that he had seen two people running in the parking lot away from the Thrift Drug Store: he described one as wearing a red shirt, and the other as wearing dark clothing. He also indicated that less than a minute after he had observed the individuals running from the store a light green “General Motors” or “Buick” automobile came from the direction in which the two had been running and headed west on Route 22. He did not state that he had seen the vehicle leave the drug store parking lot. A call went out on the police radio immediately after the guard reported the incident.

Officer Andrew Patrick received the call about the burglary while he was east of the Thrift Drug Store, but travelling in a west bound direction on Route 22. He proceeded westbound on Route 22 and passed by the Thrift Drug Store within a minute. At the Westmoreland-Allegheny County line he saw a vehicle in front of him also heading westbound which was already in Allegheny County. It was the only vehicle on the road.

As Officer Patrick caught up with the car, he observed that it was a light gray 1971 Buick with a black vinyl top. He stopped the car at a site approximately one mile past the county line and approximately two and one half miles from the drug store. He observed three men in the car. The front seat passenger was wearing a red shirt, and the passenger in the rear, appellant, was wearing black. Between the sounding of the burglar alarm and the stopping of the car less than four minutes had elapsed. When Officer Patrick approached the car and shined his flashlight inside he observed several bottles only partially concealed under the front seat. Some of the bottles were marked as having come from the Thrift Drug Store. The appellants were then arrested.

In testing the legal sufficiency of the evidence to support the verdict, the reviewing court is not permitted to substitute its judgment for that of the fact finder. The reviewing court is restricted to assessing the evidence in the light most favorable to the verdict winner, here the Commonwealth, and drawing all proper inferences that the evidence suggests in that party’s favor. Commonwealth v. Smith, 490 Pa. 374, 378, 416 A.2d 517, 519 (1980). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). We hold that the evidence was sufficient to support all the convictions.

Under the Crimes Code of Pennsylvania, a person is guilty of burglary if he enters a building or occupied structure with the intent to commit a crime therein, unless the premises are at the . time open to the public or the person who enters is licensed or privileged to do so. 18 Pa.C.S. § 3502(a). In order to prevail at trial, the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by the defendant; (2) with the contemporaneous intent on the part of the defendant of committing a crime therein; (3) at a time when the premises were not open to the public and the defendant was not then licensed or privileged to enter. Commonwealth v. Tingle, 275 Pa.Superior Ct. 489, 419 A.2d 6, 9 (1980). “[T]he specific intent to commit a crime necessary to establish the second element of burglary may ... be found in the Defendant’s words or conduct, or from the attendant circumstances together with all reasonable inferences therein.... A fact finder may conclude beyond a reasonable doubt that when one enters a building by force, he did so with the intent to commit a crime therein.” Id. The broken front door, the flight from the store by a man wearing dark clothing, the possession of bottles of drugs identified as being from the store, and the apprehension four minutes later of the appellant who was dressed in black were sufficient to establish the intent to commit a crime at the time of entry. Appellant argues further that there was insufficient evidence to convict him of this particular burglary, as opposed to a burglary at the same store which occurred only a few days earlier. This argument is without merit. The apprehension of the appellant within four minutes after the alarm was triggered, with the stolen bottles, allowed the factfinder to conclude beyond a reasonable doubt that the appellant was involved in the second burglary.

The essence of a criminal conspiracy is a common understanding, between two or more persons, to do an unlawful act. Commonwealth v. Madison, 271 Pa.Superior Ct. 382, 387, 413 A.2d 718, 720 (1979). See also 18 Pa.C.S. § 903. A conviction can be sustained without direct or explicit proof of the agreement. The conduct of the parties and the totality of the circumstances surrounding their activities can support an inference that a conspiracy existed. Id. The evidence in the instant case supports an inference that a conspiracy existed.

The elements of the crime of receiving stolen property are set out in 18 Pa.C.S.A. § 3925. This section provides:

(a) Offense defined.—A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition.—As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.

To sustain a conviction of receiving stolen property, evidence must establish that defendant “intentionally received” the property which includes possession or control, and that defendant “knew” that the property had been stolen. Com monwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980). Appellant contends that the evidence does not establish that he either had possession or control over the drugs or that he knew that they came from the September 21st burglary. As with the controlled substances conviction, appellant’s possession could have been constructive or joint. Appellant also contends that the evidence is insufficient to prove the charge of receiving stolen property because the drugs cannot be connected particularly with the September 21st burglary. The almost immediate apprehension of the appellant and possession of drugs taken from the drug store supports the inference that the drugs were taken in the September 21st burglary.

Appellant’s final conviction was for possession of controlled substances with-intent to deliver. The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30) provides as follows:

The following acts and the causing thereof within the Commonwealth are hereby [illegal]:
Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.”

In the instant case the Commonwealth must prove three elements—possession of and intent to deliver a controlled substance. This court in Commonwealth v. Thompson, 286 Pa.Superior Ct. 31, 428 A.2d 223 (1981), comprehensively outlined the elements required to prove possession:

The Commonwealth may meet its burden by showing actual, constructive, or joint constructive possession of the contraband. Proof of constructive or joint constructive possession of dangerous drugs requires evidence that the defendant, or in joint constructive possession cases, the defendant and others had both power to control and the intent to exercise control over the narcotics. A necessary prerequisite of intent to control is proof that he had knowledge of the existence and location of the narcotics. .. . Persuasive evidence of constructive possession, the requisite knowledge and intent may be inferred from examination of the totality of the circumstances surrounding the case.

Id., 286 Pa.Superior Ct. 34, 428 A.2d at 224.

Constructive possession may be inferred in the instant case by the totality of the circumstances, including in particular the following circumstances: a man in clothing similar to appellant’s was seen running from the site of the burglary, the drugs were located under the front seat, appellant was seated in the rear of the car, and the apprehension of appellant and the recovery of drugs occurred within four minutes after the break-in. As in Commonwealth v. Kishbach, 247 Pa.Superior Ct. 557, 373 A.2d 118 (1976), possession of a large quantity of drugs supports an inference that they were possessed with intent to deliver.

The third element of the crime of possession with intent to deliver which the Commonwealth must prove is that the substance which the appellant possessed were controlled substances. Appellant contends that the Commonwealth may only prove that an item is a controlled substance by having experts testify as to the chemical composition of the items. He contends that the Commonwealth failed to prove that the items were controlled substances because the Commonwealth did not offer expert testimony of this nature. This contention is contradicted by the holdings in two cases. In the recent case of Commonwealth v. Williams, 285 Pa.Superior Ct. 515, 428 A.2d 165 (1981), the appellant was charged with corrupting a minor “by exposing the victim to the use of narcotic drugs.” This Court held that “the existence of narcotic drugs does not have to be proven by chemical analysis and may be proven either by direct or circumstantial evidence.” Id. 285 Pa.Superior Ct. at 521, 428 A.2d at 167. Similarly, in Commonwealth v. Leskovic, 227 Pa.Superior Ct. 565, 307 A.2d 357 (1973), appellants had been convicted of dispensing dangerous drugs. This Court held that the conviction could be sustained without chemical analysis based on circumstantial evidence. In Leskovic, testimony by witnesses stating that appellants had sold them capsules called “Christmas trees,” evidence that the description by a witness matched the description of a particular barbituate and chemical analysis of a witness’s blood which revealed a quantity of barbituate in his blood stream was enough. In the instant case, labels on many of the bottles, some of which were unopened, identified the drugs contained therein as being controlled substances. Because these labelled bottles were unopened, and because only four minutes had elapsed between the burglary and apprehension, the fact-finder could reasonably infer that these bottles still contained the drugs which were indicated on the labels. Therefore, there was sufficient evidence to support the conviction for possession of controlled substances with intent to deliver.

The second issue which appellant raises on appeal is whether his extra-territorial arrest was unlawful. The suppression court held that the police made a lawful extra-territorial arrest while in hot pursuit and denied the motion to suppress evidence which was obtained pursuant to that arrest. In reviewing a ruling made at the suppression hearing to denying appellant’s motion to suppress, the appellate court’s task is:

... to determine whether the factual findings are supported by the record. In making this determination we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error...”

Commonwealth v. Patterson, 488 Pa. 227, 233, 412 A.2d 481, 484 (1980). The suppression court found that Officer Patrick was in hot pursuit of a felon or felons at the time he made the arrest in Allegheny County. The appellant contends that there is no factual support for this finding because the car in which appellant was travelling was not immediately visible to Officer Patrick.

The applicable statute is 42 Pa.C.S. § 8901 which provides as follows:

Any police officer of any political subdivision may arrest with or without warrant any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after commission of the offense. The police officer shall exercise under this section only the power of arrest which he would have if he were acting within the territorial limits of his political subdivision.

The issue in this case centers around the meaning of “pursuit” under 42 Pa.C.S. § 8901. The specific question to be answered is whether Officer Patrick was in “continuous pursuit” of appellant where the officer did not actually chase the appellant over the jurisdictional border but where he instead spied the fleeing vehicle after it had already crossed the county line.

The question of continuous pursuit has only been raised in two prior cases: Commonwealth v. Brown, 298 Pa.Superior Ct. 11, 444 A.2d 149 (1982); United States v. Getz, 381 F.Supp. 43 (E.D.Pa.1974). As Judge Wieand noted in Commonwealth v. Brown, supra, 298 Pa.Superior Ct. at 16, 444 A.2d at 152, “[t]here have not been a great number of cases dealing with pursuit in this Commonwealth. In most of the cases which have talked about ‘pursuit’, the officer has witnessed the violation and given chase.” See, e.g., Commonwealth v. Holderman, 284 Pa.Superior Ct. 161, 425 A.2d 752 (1981); Commonwealth v. Robb, 238 Pa.Superior Ct. 62, 352 A.2d 515 (1975).

The facts in the instant case closely resemble the facts in Commonwealth v. Brown, supra, and United States v. Getz, supra. In Brown, police responded to the report of a robbery. The victims identified one of the perpetrators by name. Police searched the neighborhood but were unable to find the robbers or identify the direction in which they fled. The police then proceeded to the residence of one of those identified as one of the assailants which was located less than a mile from the scene of the crime but outside the city limits. The suspect was apprehended at his home within thirty minutes after the police were initially notified of the crime. In Getz, after the police received notice of a felony and the location of the getaway car, they proceeded to the location, and not finding the felons there proceeded to another possible escape route. The officers then received a radio report that the getaway car had been sighted in another jurisdiction. They went to the latter location and arrested the appellant. Only 35 minutes elapsed between the initial radio report and the arrest. In both of those cases the convictions were sustained despite a challenge to the validity of the extra-territorial arrests.

The arrests in both cases were found to have been made in “pursuit” as it relates to 42 Pa.C.S. § 8901. The Court in Getz strongly refuted the appellant’s contention that “pursuit” requires a chase:

Defendants argue that the arrest was invalid because the officers were not in ‘hot pursuit.’ Apparently, defendants contemplate that only a fender-smashing Hollywood style chase scene would satisfy the requirement of the statute. We do not read the act so restrictively. The statute on it face provides only that the arrest may be effected beyond the territorial limit of the officers’ jurisdiction so long as ‘such officer continues in pursuit of the offender. . . ’ It does not specify that the officer must be in ‘hot’ pursuit. The phrase ‘continues in pursuit’ supports the conclusion that the statute contemplates ‘fresh pursuit.’ In the instant case [the officers] were in continuous pursuit of the evasive robbers from the time of the initial communication . . . until the arrest....., a period of time encompassing 35 minutes. The officers proceeded diligently in their search for the fleeing robbers and there was no hiatus or interruption in their efforts. Accordingly, we conclude that the arrest was made . . . while the officers were in pursuit of the felons within the purview of 19 P.S. § 11.

United States v. Getz, supra at 46.

This Court in Brown, supra, 298 Pa.Superior Ct. at 17, 444 A.2d at 152, found the interpretation of the Getz court persuasive, and held that 42 Pa.C.S. § 8901 contemplated “fresh pursuit.” This Court held that the extra-territorial arrest was legal where it was “fresh . . ., continuous .. ., and uninterrupted.” Id. 298 Pa.Superior Ct. at 19, 444 A.2d at 153. Thus, the holding in Brown that a 30 minute search which culminated in an extraterritorial arrest satisfied the “continuous pursuit” requirement of 42 Pa.C.S. § 8901 is dispositive of the question. There was no error in denying the motion to suppress the evidence as the fruits of an illegal arrest.

Lastly, since Officer Patrick was in pursuit of appellant and his companions at the time he spotted them and gave chase it can hardly be said that he did not have reason to stop and question them. Even before he arrested or stopped them, the Officer had probable cause to suspect their involvement in the burglary based on the make of the car, its direction and speed, the loneliness of the car on the road and its multiple number of passengers. Of course, when he saw that the individuals matched the description of those he sought and that there were drug containers partially secreted beneath the seat what was already ample cause for suspicion was only made the greater. Since he was properly in a position to make an arrest and there was probable cause to do so appellant’s contention of error must fail.

Affirmed.

      . Appellant’s two co-conspirators were also convicted. Their convictions were affirmed per curiam. See Commonwealth v. Strickler, 293 Pa.Superior Ct. 605, 435 A.2d 646 (1981).

      . It is unnecessary to address separately the issue of whether or not the Commonwealth failed to prove the corpus delecti of any of the crimes with which the appellant was charged because this question is resolved by discussing whether or not the evidence was sufficient to support the convictions. By definition, the corpus delecti of a crime is subsumed within the elements of a crime:
      In establishing a criminal case, it is incumbent upon the Commonwealth to show: (1) that a loss has occurred, (2) that the loss occurred through a criminal agency, and (3) that the accused was, in fact, the perpetrator of the deed. The corpus delecti of a crime consists of the first two factors or elements.

        Commonwealth v. Herman, 288 Pa.Superior Ct. 219, 230, 431 A.2d 1016, 1022 (1981).
      The only instance in which a separate discussion of the corpus delecti is relevant is when an appellant’s confession is introduced into evidence. The corpus delecti must be proven prior to and independent of the appellant’s confession. Commonwealth v. Herman, supra, 288 Pa.Superior Ct. at 231, 431 A.2d at 1022. This situation does not present itself here.

      . The facts of Commonwealth v. Silvers, 286 Pa.Superior Ct. 161, 428 A.2d 622 (1981), are similar to those of the instant case although not strictly on point. As in the instant case, the police officer in Silvers did not see the violation, but he instead saw a vehicle matching a description which was given over the radio. The opinion in Silvers, however, did not specify whether the appellant was within or without the officer’s jurisdiction at the time the officer first saw him. Therefore, we cannot rely on Silvers for an answer to the question in the instant case, which is whether the officer must have visual contact of the suspect and begin the chase while the suspect is still inside the officer’s jurisdiction or whether the “chase” may begin in the arresting officer’s jurisdiction where the suspect is first sighted across the border.