text:
    581 A.2d 937
    Charles J. EGENRIEDER, Administrator of the Estate of Robert A. Egenrieder, Deceased; Charlotte J. Clair, Administratrix of the Estate of Joyce E. Clair, Deceased; Joyce E. Fleske, Administratrix of the Estate of Vicky Ann Fleske, Deceased; Jacqueline M. Snyder, Administratrix of the Estate of Gregory M. Snyder, Deceased; and all others Similarly Situated, Appellants, v. The OHIO CASUALTY GROUP, West American Insurance Company, and Ohio Casualty Insurance Company.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1990.
    Filed Oct. 16, 1990.

      Richard C. Angino, Harrisburg, for appellants.
    Steven D. Snyder, Harrisburg, for appellees.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

This appeal arises from a class action suit, brought against certain providers of motor vehicle insurance, seeking post-mortem work loss benefits under the former Pennsylvania No-Fault Motor Vehicle Insurance Act.

It is undisputed that the availability of work loss benefits under the No-Fault Act has been interpreted to include benefits that become payable upon the death of the insured. The Pennsylvania Supreme Court, in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), affirmed an earlier decision of this court which determined that the survivors of persons whose death resulted from the use or maintenance of a motor vehicle were entitled to such work loss benefits. In addition, the Pennsylvania Supreme Court, in Freeze v. Donegal Mutual Insurance Company, 504 Pa. 218, 470 A.2d 958 (1983), determined that the estates of decedent insureds were also entitled to post-mortem work loss benefits. In Freeze, that court stated:

It follows then that, if work loss benefits do not terminate upon the death of a deceased victim, absent a statutory bar, those benefits are recoverable by the Deceased victim’s estate. This is the natural, logical and compelling extension of our holding in Heffner. Upon a close and careful examination of the No-Fault Act, we find no language which precludes the recovery of work loss benefits to the estate of a deceased victim.

Freeze, supra, 504 Pa. at 222, 470 A.2d at 960. The maximum entitlement to work loss benefits was determined, by statute, to be $15,000.

II

Following a hearing on plaintiffs’ motion for class certification, the Court of Common Pleas for Dauphin County, by order dated June 3, 1986, certified this case as a class action consisting of three subclasses, and identified Charles J. Egenreider and Joyce Fleske as representative plaintiffs. The three sub-classes created by the trial court were defined as follows:

(1) The first subclass shall consist of the estates of all decedents insured under policies of no-fault insurance issued by defendants whose deaths occurred as a result of the maintenance and use of a motor vehicle within Pennsylvania on or after May 16, 1981. The subclass shall also include the estates of such decedents who are residents of Pennsylvania and who died as a result of the maintenance and use of a motor vehicle outside of Pennsylvania during that period.
(2) The second subclass shall consist of the estates of all previously employed decedents who are Pennsylvania residents insured under the policies of no-fault insurance issued by defendants and sustained their fatal injuries as a result of the maintenance and use of a motor vehicle, whether within or outside of Pennsylvania, during the period from November 16, 1977, to November 15, 1979.
(3) The third subclass shall consist of the estates of all previously employed decedents who are Pennsylvania residents insured under policies of no-fault insurance issued by defendant, whose fatal injuries were sustained as the result of the maintenance and use of a motor vehicle, whether within or outside of Pennsylvania, prior to November 16, 1977, and whose estates received any no-fault payments from November 16, 1977, to November 15, 1979, as a result of decedent’s death.
The three subclasses shall further be limited to those estates which have not yet been paid work loss benefits.
The three subclasses shall further be limited to those estates whose decedents did not recover work loss benefits to the amount of $15,000 prior to their deaths.

Subsequent to the June 3, 1986, order defining the class as set forth above, several motions were filed to amend the subclasses. On June 16, 1986, the plaintiffs filed a motion requesting the court to expand subclasses two and three by removing the time limitations set forth in the class. The motion was denied by the trial court whose decision subsequently was affirmed by this court on appeal. Egenrieder v. Ohio Casualty Group, 365 Pa.Super. 400, 529 A.2d 1118 (1987). On June 27, 1986, defendants filed a motion to amend the class by severing defendant West American Insurance Company, defendant Ohio Casualty Group, and plaintiff Charles Egenrieder from the suit. The trial court granted this motion and following an appeal by plaintiffs, this court affirmed by order on December 1, 1987. Following this court’s affirmance of the order severing Charles Egenrieder from the suit, the sole remaining class representative was Joyce Fleske.

On September 18, 1987, defendant filed a motion to revoke class certification on the grounds that the only remaining representative plaintiff was barred by the statute of limitations. In response, petitions to intervene were filed by: J. Paul Haldeman; Roy W. Roddy; Paul H. Clark; Donald Harlacker; Mary Armstrong, and Grace T. Brennan. A hearing was held on the petitions to intervene on December 12, 1988, at the conclusion of which, argument was heard on the motion to revoke class certification.

In an opinion dated May 16, 1989, the trial court found that the claim of the sole remaining representative plaintiff was barred by the statute of limitations. The court determined that pursuant to the decision of the Pennsylvania Supreme Court in Cunningham v. Insurance Company of North America, 515 Pa. 486, 530 A.2d 407 (1987), cert. denied, 484 U.S. 1008, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988), the prior class action of Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983), only tolled the statute of limitations as to Erie Insurance Exchange.

Since the Nye action does not toll the statute on Fleske’s claim against Ohio Casualty and there is no action to toll the statute, Fleske’s claim exceeds the four year statute of limitations provided in the No-Fault Act, 40 P.S. § 1009.106(c), and thus is time-barred.

Trial court opinion, 5/16/89 at 3. After dismissing Fleske’s claim pursuant to the above, the trial court considered the petitions for intervention.

The trial court considered each of the five petitions to intervene separately on its merits.

The trial court denied the petition to intervene of J. Paul Haldeman. The court found that the petitioner failed to establish the domicile of the decedent at the time of her death and as such did not sustain his burden of proving all of the allegations in his petition to intervene.

The trial court denied the petition to intervene of Mary Armstrong. The court found that the petitioner failed to establish that the decedent was insured by defendant at the time of her death, and as such did not sustain her burden of proving all of the allegations in her petition to intervene.

The court denied the petitions to intervene of Roy W. Roddy and Paul H. Clark. The court found that the decedent’s estates that are represented by petitioners already have received $15,000 in post-mortem work loss benefits, and as such are not members of the class as described in the class certification order.

The court concluded that since the claim of the sole remaining representative plaintiff was found to be time-barred and hence invalid, and since none of the petitions to intervene were determined to be viable, there was no longer a party in the role of representative plaintiff and therefore defendant’s motion should be granted in toto. Petitioners timely filed this appeal to the above orders.

On appeal, appellants allege that the trial court erred in denying the petitions to intervene, of Haldeman, Armstrong, Roddy and Clark. Appellants also claim that since one or more of the above petitions were valid, there existed a representative plaintiff to lead the class action suit. Therefore, appellant argues that the trial court also erred in revoking class certification.

Ill

We first consider this court’s role in reviewing the denial of the petitions to intervene filed by Haldeman, Armstrong, Roddy, and Clark.

The initial issue to be decided is whether the orders denying the petitions were final and therefore appealable. If they are not, the appeals must be quashed. The decision as to whether to quash an appeal as interlocutory is often done without reference to the merits of the case since the very nature of many orders are obviously non-final. However, in some cases, including the one which we now consider, the decision whether to quash is intertwined with a consideration of the merits. This is due to the fact that the “finality and therefore the appealability of the orders is a judicial conclusion which can be reached only after an examination of its ramifications”. Richards v. Trimbur, 374 Pa.Super. 352, 358, 543 A.2d 116, 118 (1988) (citations omitted). The rule used to determine the appealability of orders denying a petition to intervene is well established in Pennsylvania. The Pennsylvania Supreme Court has stated:

‘[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)

Scharnitzki v. Bienenfeld, 368 Pa.Super. 610, 611, 534 A.2d 825, 825 (1987). Boise Cascade Corporation v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 281, 446 A.2d 614, 615 (1982), quoting Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912), it is the examination of the merits which determines whether there has been a practical denial of relief.

The trial court concluded that appellants either were not parties to the class action or in the alternative were not parties entitled to relief. If, upon an examination of the merits, we determine the trial court was correct, the order appealed from was not final as to the parties and therefore not appealable. We now turn to the merits of appellants’ petitions to intervene.

IV

The determination of who may intervene in an action and when that intervention may be prohibited is determined by Pa.R.C.P. 2327 and 2329. Rule 2327 states:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(1) the entry of a judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof; or
(3) such a person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

Appellants contend that it is “beyond dispute” that they are persons who have the right to intervene under 2327(3) and (4). Therefore, argue appellants, the only manner in which they can be excluded from intervening in the suit is by a showing that they fall into one of the three categories set forth in Pa.R.C.P. 2329, which reads as follows:

Upon the filing of the petition and after hearing, of which notice shall be given to all parties, the court, if the allegations of the petitions have been established and are found to be sufficient, shall enter an order allowing intervention; but an application for may be refused, if
(1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; or
(2) the interest of the petitioner is already adequately represented; or
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.

Appellants claim that since none of them are precluded by any of the categories listed above, their right of intervention is assured under Rule 2327. However, the trial court found that none of the appellant-petitioners established that they belong to any of the categories listed in Rule 2327. The core of this dispute is a disagreement over what constitutes the burden of proof necessary to support a petition to intervene under Rule 2327 and how broadly the court may interpret class definitions in a class action when determining petitioner compliance with Rule 2327.

V

We will first discuss the burden of proof issue and its relationship to two of the appellant-petitioners, Haldeman and Armstrong. Appellant-petitioners cite the standard of proof needed to support a petition to intervene under Rule 2327.

Once a petitioner seeking intervention presents a prima facie case for intervention, there is no requirement that he prove his case before intervention will be permitted, since otherwise he would be forced to try his case twice.

Standard Pennsylvania Practice 2d, § 14:250, at 412; 8 Goodrich Amram 2d, § 2329:1, at 396 (emphasis added). However, the “prima facie” case that appellant-petitioners refer to is not extended to the court’s acceptance of unproven factual allegations when determining the merit of petitions under Rule 2327. “The court is first required to determine whether the petitioner comes within one of the classes of persons entitled to intervene. If the petitioner is not such a person, the court must deny the petition to intervene.” 8 Goodrich Amram 2d, § 232.1 at 394 (emphasis added). The language of Rule 2329 itself supports such a conclusion. The rule reads, in part, that “the court, if the allegations of the petition have been established and are found to be sufficient, shall enter an order allowing intervention.” (emphasis added). By their arguments, appellants are attempting to limit the trial court’s discretionary power when deciding the merits of a petition to intervene.

The Haldeman Petition.

In order for the Haldeman petition to intervene to be granted, appellant-petitioner must establish as true all allegations properly needed to be included in that category of persons represented by Rule 2327(3) or (4). In order to be included under 2327(3) or (4), appellant-petitioner must be a member of the class acting as plaintiffs in this class action suit. All subclasses of the main class in this suit have as a requirement that the member be a resident pf Pennsylvania.

As discussed above, and in the trial court opinion, it is the appellant-petitioner’s burden to show that all the requirements of intervention under Rule 2327 are met. The trial court pointed to the fact that Haldeman offered only oral evidence with no supporting documentation. As executor of decedent’s estate, Haldeman should have access to such documentation. The court also found that the record suggests that the estate had applied for and received benefits under Delaware law. Additionally, the trial court found the following oral and documentary evidence indicative of non-residency:

[T]he benefits were paid pursuant to Delaware law, that the policy, the original no-fault application form, and the Acord form all listed a Rehoboth Beach Delaware address, that the car was titled in Delaware, and that the policy was issued as a Delaware policy and was billed as for a Delaware resident. Further, supporting documents were submitted showing the cremation bill which had been paid to a Delaware crematory, the Acord form listing the Rehoboth Beach address, and the no-fault application form signed by the decedent’s daughter which also lists the Rehoboth Beach address.

Trial court opinion, 5/16/89 at 6 (emphasis added). Following a review of the record, we determine that the question of decedent’s residency is, at the least, ambiguous. We therefore determine that Haldeman has failed to establish sufficiently the allegations contained in his petition. His petition to intervene is therefore denied.

The Armstrong Petition.

In order for the Armstrong petition to intervene to be granted, she must establish as true all allegations properly needed to be properly included in that category of persons represented by Rule 2327(3) and (4). In order to be included under 2327(3) or (4), appellant-petitioner must be a member of the class acting as plaintiffs in this class action suit. All subclasses in this suit have a requirement that decedents were insureds of defendant at the time of their death.

Appellee claims that the appellant-petitioner Armstrong introduced no credible evidence to show that decedent was in fact insured by the defendant Ohio Casualty Company. Armstrong’s offer of proof included testimony of the decedent’s daughter and a claim memorandum. Armstrong claims the trial court erred by not considering the claim memorandum. However, there is nothing in the trial court’s opinion to indicate that it had not done so. The trial court found that Armstrong “produced no evidence to support this claim except her bare hearsay assertions.” Trial court opinion, 5/16/89 at 12. Appellee argues that this memorandum is hearsay and as such is inadmissible. However, we need not reach this discussion. Even admitting Armstrong’s evidence for consideration, we determine it is insufficient to find that she has carried her burden of establishing that decedent was a member of the class in this suit. Appellee’s testimony and documentary evidence is simply the more credible in this case. As appellant Armstrong has failed to establish the allegations contained in her petition for intervention, it must be denied.

VI

The primary issue to be decided concerning the Roddy and Clark petitions is the interpretation of class definitions in a class action suit. It is therefore peculiar to the discussion of class action suits, and does not directly concern either the rules on intervention or the No-Fault Insurance Act.

The Roddy and Clark Petitions.

The estates represented by Roddy and Clark both have received the full $15,000 in work loss benefits for which they are entitled under the No-Fault Act. In this action they attempt to recover interest on the award and attorney fees claiming the award was not paid in a lump sum thirty days after notice to the insurer. While arguing that they are members of the class in this suit, appellants present evidence of the legislative intent in passing the No-Fault Act, and extensive case history to prove that interest and attorney fees are available for those receiving work loss benefits. We agree. There is no question of the right of decedent’s estates to receive interest and attorney fees under the No-Fault Act. However, the question before us is not one concerning the interpretation of the No-Fault Act. The question instead concerns the court’s ability to expand the membership of a class in a class action suit. This court has in the past interpreted class descriptions strictly rather than broadly. See Egenrieder v. Ohio Casualty Group, 365 Pa.Super 400, 529 A.2d 1118 (1987). Therefore, we will not expand the class definition in this case by reading into the class action claims for attorney’s fees and interest. Appellants were not prohibited from including these claims in their class description at the time the suit was initiated. To include them now would be unjust to appellee. Assuming compliance with the statute of limitations, Roddy and Clark, as well as any others with a claim of this type, can bring suit. We determine only that it can not be done in this action. As appellants Roddy and Clark are excluded from the existing definition of class membership in this case, their petitions to intervene in the instant action are denied.

VII

Having examined the merits of the petitions to intervene, we agree with the trial court that none are sufficient to establish a right of intervention under Pa.R.C.P. 2327. Therefore, the denial of the petitions by the trial court does not operate as a practical denial of relief obtainable in no other way. Thus, having determined that the orders are not final as to the appellant-petitioner, we quash these appeals. See Frey’s Estate, supra.

As the sole representative plaintiff has been dismissed from this suit and no petition to intervene has been allowed, the trial court’s order revoking class certification is affirmed.

Orders affirmed.

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

      . The sixth petition to intervene, filed by Grace Brennan, was withdrawn.

      . At this juncture, we note a procedural defect in this appeal. Counsel for appellants filed only one notice of appeal, listing all appellants at No. 327 Hbg.1989, from the May 16, 1989, order of the trial court. This is in violation of Pa.R.A.P. 512. This is not a joint appeal. The trial court entered separate orders denying each petitioner-appellant’s motion to intervene on different grounds. A separate appeal was required to be filed by each petitioner-appellant and the appeals would have been subject to consolidation for briefing and argument under Rule 513. However, we refrain from quashing on the basis of this defect on our own discretion. See General Electric Corporation v. Aetna Casualty and Surety Company, 437 Pa. 463, 263 A.2d 448 (1970).

      . Not being pursued in this appeal is the denial of the Petition to Intervene of Donald Harlacker.

      . The propriety of such rules governing interlocutory appeals is established by Pa.R.A.P. 311(a)(7).

      . Appellee asserts that the proper standard of review to begin the analysis of the instant case is set forth in Wilson v. State Farm Mutual Auto Insurance Company, 512 Pa. 486, 492, 517 A.2d 944, 947 (1987), which stated: “[i]t is well established that a 'question of intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review.’ (citations omitted).” Appellee is mistaken. The supreme court, in Wilson, is not considering whether the orders denying intervention are appealable as we are in the instant case. That determination in Wilson was accomplished at the superior court upon the initial appeal. Consequently, if we find that the orders in the instant case are appealable, we will continue with an analysis as to whether the trial court committed a manifest abuse of discretion.

      . Appellants do not argue that the facts averred on the petition support intervention under 2327(1) and (2). We also find nothing to support intervention under those sections.

      . The trial court looks to the No-Fault Act in deciding that the term residence as contained in the class descriptions should be interpreted as domicile. However, since we are determining only the appealability of the orders denying intervention at this point in our analysis, and are not applying an abuse of discretion standard to the trial court’s opinion, we only need to consider those portions of the trial court’s analysis with which we are in agreement. Since it is not necessary to distinguish between domicile and residence in this case, we will not do so. Therefore, we make no determination as to the propriety of the trial court going outside of the clear language of the class description to interpret an unambiguous term contained therein.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    581 A.2d 944
    COMMONWEALTH of Pennsylvania v. Lillian DUBIN, Appellee. COMMONWEALTH of Pennsylvania v. Stanley DUBIN, Appellee.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed Oct. 25, 1990.
    Petition for Allowance of Appeal Denied March 18, 1991.

      Andrea F. McKenna, Deputy Atty., Harrisburg, for Com.
    John S. Summers, Bala Cynwyd, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

In this prosecution for medicaid fraud, the Commonwealth has appealed from an order which, inter alia, granted defense requests for discovery and a bill of particulars and suppressed “documents, information or testimony” received from the defendant’s estranged wife. We will review only the order suppressing evidence.

When Dena Dubin, the estranged wife of Dr. Stanley Dubin, learned that her husband and his mother, Lillian Dubin, were being investigated for medicaid fraud, she called the Office of the Attorney General and volunteered to assist in the investigation. Thereafter, she delivered to representatives of the Attorney General her husband’s bank records, daily work sheets and copies of income tax returns which were stored in the home in which she and her husband had lived but which she then occupied alone. After Dubin and his mother were arrested, they moved to suppress this evidence. The suppression court, after hearing, held that the documents were privileged and ordered the same suppressed, as well as any trial testimony by the estranged wife.

The marital privilege is guaranteed by statute in Pennsylvania. The provisions of 42 Pa.C.S. § 5913 establish the incompetency of a husband or wife to testify against the other in a criminal proceeding. See: Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964), cert. denied, 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1964); Commonwealth v. Clark, 347 Pa.Super. 128, 500 A.2d 440 (1985). See also: L. Packel and A. Poulin, Pennsylvania Evidence, § 507.3 at 332 (1987); 2 Henry, Pennsylvania Evidence, § 699 (4th ed.1953); 41 P.L.E. Witnesses § 98; Comment, Spousal Testimony in Pennsylvania, 86 Dick.L. Rev. 491, 505 (1982). A spouse, however, may be a source of evidence against the other. In re Rovner, 377 F.Supp. 954 (E.D.Pa.1974), aff'd without op., 500 F.2d 1400, cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 802 (1975); Commonwealth v. Wilkes, supra; Commonwealth v. Blough, 369 Pa.Super. 230, 535 A.2d 134 (1987) (plurality opinion). See also: Comment, Spousal Testimony in Pennsylvania, 86 Dick.L.Rev. 491 (1982). “Facts which have been learned by competent witnesses are not to be excluded because the witness may have been put on the track of them by information coming incidentally or otherwise from the [defendant] or his wife.” Commonwealth v. Johnson, 213 Pa. 432, 433, 62 A. 1064 (1906). When such evidence is received, it is not the spouse who testifies against his or her marital partner. Id. See also: Welker v. New York Central Railroad, 275 Pa. 82, 118 A. 615 (1922).

The provisions of 42 Pa.C.S. § 5914 also render spouses incompetent to “testify to confidential communications made by one to the other,” unless the privilege is waived. To be protected as a confidential communication, knowledge must be gained through the marital relationship and in the confidence which that relationship inspires. Commonwealth v. Wilkes, supra; Seitz v. Seitz, 170 Pa. 71, 74-75, 32 A. 578 (1895); Commonwealth v. Rough, 275 Pa.Super. 50, 64, 418 A.2d 605, 612-613 (1980). See also: 41 P.L.E. Witnesses § 98. The prohibition goes only to using a spouse’s statements at trial; not to the action of the police in obtaining information. Commonwealth v. Jones, 501 Pa. 162, 167, 460 A.2d 739, 741-742 (1983). See also: In re Rovner, supra; Welker v. New York Central Railroad, supra; Commonwealth v. Johnson, supra.

In Commonwealth v. Wilkes, supra, the Supreme Court of Pennsylvania addressed the obtaining of evidence under circumstances similar to those in the instant case. There, the Commonwealth had alleged that the motive for defendant’s killing his son had been an illicit relationship which both were conducting with the same woman. Following the killing, the defendant’s estranged wife, while searching defendant’s home, discovered love letters which the defendant had written to the woman. These letters were delivered to the authorities and were later offered and received as evidence at defendant’s trial. The Supreme Court ruled that the evidence had been properly received. The letters were not privileged. They did not constitute a communication between the spouses, and their admission into evidence did not violate a confidence between them.

The evidence in the instant case is that Dena Dubin discovered her estranged husband’s bank records, income tax returns, daily work sheets, etc. while looking through the marital home to determine his financial status for use in a pending divorce action. The delivery of these records to the Attorney General was not equivalent to giving testimony against her husband and was not barred by 42 Pa.C.S. § 5913. See: Commonwealth v. Wilkes, supra. See also: Commonwealth v. Smith, 270 Pa. 583, 113 A. 844 (1921). The production of these documents also did not constitute a disclosure of confidential communications. The documents evidenced business transactions with third persons and were not confidential communications between spouses. See: Appeal of Robb, 98 Pa. 501 (1881); Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980), vacated on other grounds, 501 Pa. 15, 459 A.2d 727 (1983), Huffman v. Simmons, 131 Pa.Super. 370, 200 A. 274 (1938). See also: L. Packel and A. Poulin, Pennsylvania Evidence, § 507.1 at 332 (1987). Moreover, they were not direct communications between the spouses; and, therefore, the privilege had no application. Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657 (1926); Commonwealth v. Smith, supra.

We hold, therefore, that the suppression court erred when it suppressed the financial records of Dr. Dubin on grounds that they were inadmissible under the privilege applicable to spousal testimony.

Appellees contend, however, that Dena Dubin was an agent of the Commonwealth and that her conduct was equivalent to an unlawful intrusion by the Commonwealth into Dr. Dubin’s privacy. The suppression court did not consider this argument, although the argument was timely and properly made by counsel. Our independent review of the record, however, discloses no basis for a finding of such agency. The testimony was that Dena Dubin had examined the records of her estranged husband in order to ascertain his financial conditions for her own purposes in the pending divorce action. When she learned of the investigation being conducted by the Attorney General, it was she who made the contact and she who volunteered to deliver her husband’s records to the investigators. She also volunteered to deliver any information which she obtained in the divorce action and, in fact, called the Attorney General’s Office on several occasions to offer information which she had so obtained. The representatives of the Commonwealth did not instruct, direct or supervise Dena Dubin’s activities. They did nothing more than accept the records and information which she voluntarily gave to them. Therefore, the evidence failed to support appellees’ contention that the Commonwealth had conducted an unlawful search and seizure through a Commonwealth agent. See and compare: Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985); Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985); Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980).

Dena Dubin was the occupant of the marital home; and, after her husband had vacated the premises, she enjoyed control thereof. As such, she could consent to a search by representatives of the Commonwealth without violating rights guaranteed to her husband under the state or federal constitution. Similarly, she could search the premises herself and deliver financial records to representatives of the Commonwealth without violating her husband’s right to be free from unreasonable searches and seizures. With respect to such records, Dr. Dubin no longer had any reasonable expectation of privacy. See: United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Commonwealth v. Gibbons, 379 Pa.Super. 285, 549 A.2d 1296 (1988); Commonwealth v. Van Jordan, 310 Pa.Super. 516, 456 A.2d 1055 (1983); Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982); Commonwealth v. Reiland, 241 Pa.Super. 109, 359 A.2d 811 (1976). Cf. Commonwealth v. Cihylik, 337 Pa.Super. 221, 486 A.2d 987 (1985).

The trial court’s order suppressing the trial testimony of the defendant’s estranged wife was premature and must be vacated. A ruling on a possible waiver of the spousal privilege properly could not be made until the time of trial. After the suppression court had handed down its order in the instant case, the statutory privilege was amended, effective June 29, 1989, to provide as follows:

§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
(1) in proceedings for desertion and maintenance;
(2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them;
(3) applicable to proof of the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other; or
(4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape.

42 Pa.C.S. § 5913. Section 2 of the Act provides that it “shall apply to all criminal cases pending on the effective date of this act.” Consequently, it will be applicable upon trial of the instant case. Under this statute the defendant’s spouse may waive the marital privilege and, with the exception of those confidential communications protected by 42 Pa.C.S. § 5914, become a witness against her husband. In order to permit the trial court to make an appropriate ruling on such testimony, we will vacate the present order suppressing trial testimony by the defendant’s wife.

Although the Commonwealth has been given a right of appeal from an adverse ruling by a suppression court, it cannot use such an appeal as a vehicle to obtain review of pre-trial court orders pertaining to defense requests for discovery and/or a bill of particulars. Such orders are clearly interlocutory; they do not impair in any way the Commonwealth’s ability to prove its case. Consequently, the trial court’s decisions with respect thereto are not presently subject to review. See: Commonwealth v. Barnes, 463 Pa. 259, 344 A.2d 821 (1975); Commonwealth v. Frisoli, 277 Pa.Super. 396, 419 A.2d 1204 (1980). Cf. In re McGovern, 291 Pa.Super. 222, 435 A.2d 878 (1981) (discovery order in civil action not appealable).

The order of the trial court which suppressed documents and other information which had been delivered by Dena Dubin to investigators of the Attorney General is reversed. The order which suppressed the trial testimony of Dena Dubin against the defendant-appellee is vacated without prejudice to a reassertion of the marital privilege at the time of trial. Case remanded for further proceedings. Jurisdiction is not retained.

POPOVICH, J., concurs in the result.

      . The Court has jurisdiction to hear this appeal. The Commonwealth included in both its notice of appeal and its statement of jurisdiction a statement that the suppression order appealed from terminated or substantially handicapped the Commonwealth’s prosecution of the case. See: Commonwealth v. Hoffman, 367 Pa.Super. 79, 532 A.2d 463 (1987), allocatur denied, 518 Pa. 636, 542 A.2d 1366 (1987). See also: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).


author: HUDOCK, Judge:

text:
    581 A.2d 949
    COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth James MOBLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 6, 1990.
    Filed Oct. 31, 1990.

      J. Randall Miller, Asst. Public Defender, Altoona, for appellant.
    David Gorman, Asst. Dist. Atty., Hollidaysburg, for Com.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon the Appellant after he was adjudged guilty of several violations of the Controlled Substance Act (Act), 35 P.S. §§ 780-101-780-144, following the revocation of his probation without verdict, 35 P.S. § 780-117, and the denial of his motion to withdraw the pleas of guilty given pursuant to the Act. A timely motion for reconsideration and modification of sentence was denied by the trial court and Appellant was sentenced to a cumulative term of imprisonment of not less than fourteen nor more than thirty months. This direct appeal followed. We affirm.

The factual background leading to the revocation of Appellant’s probation without verdict and subsequent sentence is as follows: In September, 1987, Trooper Matthew Wright of the Pennsylvania State Police observed what he believed to be marijuana plants growing on Appellant’s rural homestead in Juniata Township after the helicopter in which he was a passenger had descended from an altitude of about 400 feet to an altitude of 25 to 50 feet in order to permit a visual inspection. The pilot then landed the helicopter on Appellant’s lawn approximately 25 feet from his house trailer. Appellant eventually admitted to Trooper Wright that he owned the plants seen from the helicopter, and led Trooper Wright to a shed on his property containing approximately ninety marijuana seedlings as well as various electrical equipment used to cultivate the plants.

Appellant was charged with the manufacture or possession, with intent to manufacture or deliver marijuana, the possession of marijuana, and the possession of paraphernalia. In October, 1987, counsel for Appellant filed an omnibus pre-trial motion which included, inter alia, a motion for probation without verdict. Over the strong objection of the Commonwealth, the trial court later decided to afford Appellant probation without verdict. An extensive colloquy was then conducted by the court in order to ascertain whether Appellant understood the nature of such a disposition and consented to the waiver of his rights which were involved in pursuing this disposition of the case. After Appellant demonstrated that he understood and consented, a plea of guilty was tendered to the trial court pursuant to § 780-117, supra. The terms of the probation without verdict mandated compliance with an after-care plan developed by Gateway Rehabilitation Clinic and required Appellant to abstain from the use or consumption of alcohol or any non-prescribed drug for a period of five years.

In November, 1988, Appellant suffered a work-related injury to his hand that required surgery and resulted in his temporary unemployment. On November 22, 1988, after drinking for the better part of the day, he ran a red light in the city of Altoona while riding his motorcycle and collided with an automobile. As a result of this accident, Appellant was charged with driving under the influence of alcohol, 75 Pa.C.S.A. § 3731. Based upon this charge, to which Appellant intended to enter a plea of guilty, the Commonwealth filed a written motion asking the court to terminate Appellant’s probation without verdict. Meanwhile, defense counsel, anticipating the revocation of probation without verdict, filed a motion seeking leave to withdraw the plea of guilty that Appellant previously tendered to the trial court. Hearing on this motion, as well as the Commonwealth’s motion to terminate probation without verdict, and Appellant’s guilty plea to the DUI charge, were all scheduled to be heard on July 3, 1989.

On that date the trial court, after accepting Appellant’s guilty plea to the DUI charge, granted the motion of the Commonwealth for termination of Appellant’s probation without verdict. Explaining that it was proper to apply the post-sentence test of “manifest injustice” to determine the merit of Appellant’s motion for leave to withdraw his guilty plea, the trial court then denied the motion. Appellant was then sentenced on all of the charges he then faced, including a term of imprisonment of not less than 45 days, nor more than eighteen months, on the DUI charge.

On appeal, Appellant first claims that the trial court applied the wrong test in determining whether to grant his motion for leave to withdraw his plea. As cogently recognized by the trial court, the question of what standard is to be applied when such a motion is filed, after a defendant’s case has been disposed by probation without a verdict, is an issue of first impression in this Commonwealth. After a careful review of the different standards applicable to such motions, depending upon when they were made, we conclude that the post-sentence standard is the appropriate test in the present factual situation. Thus, the trial court did not err in its determination of the standard to be applied.

In Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court of Pennsylvania, in articulating the standards to be utilized in evaluating whether a defendant should be entitled to withdraw a guilty plea, looked to the following ABA Standards:

(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty ... as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea. (Citations omitted).

Id., 450 Pa. at 191, 299 A.2d at 271.

Probation without verdict presents a unique problem when choosing between these two standards. Under the provision, a defendant must enter a plea of nolo contendere or guilty to gain entry into the program and that plea is accepted by the trial court. However, sentence is not entered and the record is expunged upon successful completion of the program. The dilemma arises when, as in this case, the defendant violates probation without verdict and then attempts to withdraw the guilty plea entered to qualify for the program. We conclude that while probation without verdict represents a disposition short of sentence, in actuality it has the same finality as a sentence in that it disposes of a criminal case, subject to the condition that the defendant abide by the terms of the probation. It is more akin to standard probation, which is a sentence, rather than a guilty plea where sentence has not yet been imposed. Where a defendant is admitted into the program, there is nothing more to be done by the court if defendant abides by all the conditions of the program, other than to expunge the record of the successful probationer. For all these reasons, we hold that the trial court did not err in applying the post-sentence standard in deciding Appellant’s motion.

Having determined that the post-sentence standard is the test to be applied in the instant case, we must now consider whether the trial court correctly utilized this standard when it denied Appellant’s motion to withdraw. When considering the propriety of a trial court’s denial of a motion to withdraw a guilty plea, we are bound by the determination of that court unless we find that it committed an abuse of discretion. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). As stated above, the post-sentence standard to be applied when determining a motion to withdraw is whether a manifest injustice would result from the denial of the motion. A showing of “manifest injustice” to justify a withdrawal of a guilty plea requires a showing that the plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982). No such showing has been made by Appellant in the present case. A review of Appellant’s plea colloquy, which was both extensive and detailed, clearly indicates that Appellant’s plea was voluntarily and understandingly tendered. See Commonwealth v. Cole, 387 Pa.Super. 328, 564 A.2d 203 (1989). Thus, the trial court correctly applied the post-sentence standard in denying the motion to withdraw the guilty plea.

Appellant next claims that the sentence imposed upon him by the trial court was unlawful, excessive, and lacked a sufficient basis in reliable, relevant information about the nature of the offense and the character of Appellant. Since the latter two allegations regarding the sentence implicate discretionary aspects of sentencing, Appellant’s right to appeal is not absolute. An appeal only may be granted if the appellate court, in its discretion, finds that there is a substantial question that the sentence imposed is inappropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b) (Purdon 1982); Commonwealth v. Walker, 390 Pa.Super. 76, 568 A.2d 201 (1989); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

While Appellant claims that the sentence fails to take into consideration his rehabilitative needs and it was manifestly excessive, he does admit that the cumulative sentence was within the statutory limits and within the sentencing guidelines established for the crimes to which he pled guilty. A challenge to the weight accorded sentencing factors does not raise a substantial question absent extraordinary circumstances. Commonwealth v. Osteen, 381 Pa. Super. 120, 552 A.2d 1124 (1988). We find no such circumstances to be present in the present case. Furthermore, a claim of excessiveness does not raise a substantial question where the sentence is within the statutory limits. Commonwealth v. Dungan, 372 Pa.Super. 323, 539 A.2d 817 (1988). Thus, these claims by Appellant do not raise a substantial question.

As stated above, Appellant also claims that the sentence imposed upon him was not sufficiently based on reliable and relevant information. More specifically, Appellant claims that the trial court’s statement that he was a “manipulator” and that he continued to drink while on probation were not supported by sufficient evidence. We note that a pre-sentence investigation report had been prepared for the court which would provide sufficient background information upon which the sentence was based. Moreover, the existence of such a report eliminates the need for an on the record articulation of the reasons for the sentence. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Thus, we conclude that this claim also fails to raise a substantial question.

Finally, Appellant claims that his sentence was unlawful because it consisted of two separate terms of imprisonment for the crimes of manufacture or possession with intent to manufacture a controlled substance and the use or possession of drug paraphernalia for the purpose of planting, cultivating, growing or manufacturing a controlled substance. In effect, Appellant is arguing that these two crimes should have merged for sentencing purposes. We do not agree.

The doctrine of merger has been abolished in Pennsylvania in all matters except for lesser included offenses. Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989). An offense is a “lesser included offense” if the elements of the lesser offense are identical to and are capable of being wholly subsumed within the elements of the greater offense and the factual predicate for the lesser included offense is part of the factual predicate required to establish the greater offense. Commonwealth v. Yates, 386 Pa.Super. 282, 562 A.2d 908 (1989). However, where one statutory provision requires proof of a fact which the other does not, an act which is in violation of both provisions will constitute two separate offenses which do not merge for sentencing purposes. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). In the present case, the statutory provision prohibiting manufacture or possession with intent to manufacture does not require proof of the use or possession of drug paraphernalia such that the offenses do not merge. Thus, the sentence imposed upon Appellant in the present case was not unlawful.

Judgment of sentence is affirmed.

      . It should be noted that, had we not been required to engage in the substantial question analysis mandated by 42 Pa.C.S.A. § 9781(b) and Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A., we would nonetheless conclude that Appellant’s arguments regarding the discretionary aspects of his sentence are meritless and relief is not warranted.

      . Because the legality of a sentence is always reviewable by this Court it is unnecessary to engage in a substantial question analysis as to this claim.


author: OLSZEWSKI, Judge.

text:
    581 A.2d 953
    COMMONWEALTH of Pennsylvania v. $126,730.50, $5,000.00, & $1,922 U.S. Currency and Two OneOunce Gold Bars Seized from Mark Trachtenberg. Appeal of Mark TRACHTENBERG.
    Superior Court of Pennsylvania.
    Submitted Sept. 6, 1990.
    Filed Oct. 31, 1990.

      Joel P. Trigiani, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   OLSZEWSKI, Judge.

This is an appeal from a forfeiture order. The Commonwealth filed four petitions on March 17, 1988, seeking forfeiture pursuant to 35 P.S. § 780-128. The items which the Commonwealth sought included $126,737.50 in cash, $5,000.00 in cash, $1,922.00 in cash, two one-ounce gold bars, and a 1982 Cadillac Eldorado. After a hearing, at which the Commonwealth presented extensive testimony and appellant presented no testimony, the trial court granted the Commonwealth’s petitions for forfeiture.

The facts of this case, as summarized by the trial court, are as follows:

Arlene Brown testified that she is the girlfriend of Frank Trachtenberg, the brother of Mark [appellant], and she assisted Frank in the sales of cocaine and assorted pills. In the course of her work she sold dilaudid (synthetic heroine) to Mark who re-sold the same for profit. She obtained these drugs through fraudulent prescriptions. According to her, Mark had other suppliers of dilaudid and tuinals (barbiturates). She further testified that on March 1, 1987 she and Mark were going to the track in his Cadillac and they made a stop for her to purchase approximately one hundred (100) dilaudids.

Trial court opinion, at 1.

After a State Police investigation, the two brothers, Frank and Mark, and Arlene Brown were arrested and indicted in Bucks County on narcotics charges. Appellant and Arlene Brown pled guilty to two counts of possession with intent to deliver and one count of conspiracy.

On March 30, 1990, the trial court properly refused appellant’s request to return the money, two gold bars and a Cadillac, and lawfully forfeited the same to the Commonwealth. In this timely appeal, appellant presents two questions for our consideration: (1) whether the Commonwealth proved by a preponderance of the evidence that money found in a safety deposit box was derived from illegal drug transactions, and (2) whether the Commonwealth proved by a preponderance of the evidence that the 1982 Cadillac Eldorado was used to facilitate drug transactions.

Appellant’s first issue concerns whether the trial court’s order of forfeiture of money found in a safety deposit box is based upon competent evidence. At the time of the seizure of appellant’s car, money, and gold bars by police, the forfeiture proceedings were governed by The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 1, as amended, 35 P.S. §§ 780-128 and 780-129. In regards to the burden of proof, the statute provides:

(e) At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used or possessed, the burden shall be upon the claimant to show:
(1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon:
(2) That the claimant lawfully acquired the property;
(3) That it was not unlawfully used or possessed by him;
(4) In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent.

35 P.S. § 780-129(e).

It is necessary for the Commonwealth to establish by a preponderance of the evidence that the money and two gold bars found in the safety deposit box were the result of criminal activity. To meet this burden, the Commonwealth introduced wire taps disclosing substantial sales of narcotics and conversations discussing the feasibility of concealing the contents of safety deposit boxes. We find that the Commonwealth successfully established that the money seized was money accumulated through the sale of narcotics. Appellant, however, failed to provide any evidence that the money was lawfully acquired. We find that the appellant’s money and two gold bars found in the safety deposit box were properly forfeited to the Commonwealth.

Appellant’s second issue concerns whether the trial court erred in ordering forfeiture of a 1982 Cadillac Eldorado. The applicable statute provides:

(a) The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
* * 4c * * #
(4) All conveyances, including aircraft, vehicles, or vessels, which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property ...

35 P.S. § 780-128.

The uncontradicted testimony of Arlene Brown describing the purchase of narcotics when she and appellant were going to the race track, establishes that the Cadillac was used to transport controlled substances. We find, therefore, that appellant’s vehicle was properly forfeited to the Commonwealth.

Although the issue of jurisdiction has not been raised by the parties, the Superior Court is the proper appellate forum for the forfeiture proceedings. Under the old drug forfeiture statute, 35 Pa.S. § 780-128 (repealed 1988), this Court routinely exercised appellate jurisdiction over drug-related forfeitures. The nature of the proceedings were quasi-criminal in rem proceedings initiated by the Commonwealth. This Court perceived no problem with exercising jurisdiction over the forfeiture cases under the old statute. The current drug forfeiture statute, 42 Pa.C.S. § 6802(a) does not contain the same language for the proceedings, but the nature of the proceedings and the underlying issue in the proceedings are the same. The proceedings are drug related and quasi-criminal in nature. The drug forfeiture proceedings properly belong in the Superior Court because the Court has jurisdiction and has developed expertise in the area.

The issue of appellate jurisdiction, however, does not present a problem in the present case. The issue of jurisdiction between appellate courts is waived and is within the discretion of the Court if the appellee does not raise it within forty days of the filing of the appeal. Pa.R.A.P. 741(a). The appellee has not raised the issue of jurisdiction within forty days and, therefore, has waived the issue.

After a thorough review of the record, the briefs, the applicable law and the opinion of the trial court, we find no merit to the issues raied in this appeal. Order affirmed.

      . This section has subsequently been repealed and replaced by 42 Pa.C.S.A. §§ 6801-02, which provides more extensive forfeiture remedies in cases involving the possession and sales of illegal drugs.

      . The statute was repealed on June 30, 1988, effective immediately. The provisions regarding the burden of proof were incorporated into the new statute, 42 Pa.C.S. § 6802(j) which provides:
      (j) Owner’s burden of proof.—At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under section 6801(a), the burden shall be upon the claimant to show:
      (1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon.
      (2) That the claimant lawfully acquired the property.
      (3) That it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.

      . Section 6802 provides in pertinent part:

        (а) General Procedure.—The proceedings for the forfeiture or condemnation of property, the sale of which is provided for in this chapter, shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant. A petition shall be filed in the court of common pleas of the judicial district where the property is located, verified by oath or affirmation of an officer or citizen, containing the following:
      (1) A description of the property seized.
      (2) A statement of the time and place where seized.
      (3) The owner, if known.
      (4) The person or persons in possession, if known.
      (5) An allegation that the property is subject to forfeiture to section 6801(a) (relating to loss of property rights to Commonwealth) and an averment material facts upon which the forfeiture action is based.
      (б) A prayer for an order that the property be adjudged forfeited to the Commonwealth and condemned and be ordered sold according to law, unless cause be shown to the contrary.


author: OLSZEWSKI, Judge:

text:
    581 A.2d 956
    COMMONWEALTH of Pennsylvania v. Timothy J. SULLIVAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1990.
    Filed Oct. 31, 1990.

      Ramy I. Djerassi, Philadelphia, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. A jury convicted Timothy J. Sullivan, appellant, of driving under the influence of alcohol or controlled substance, 75 Pa.C. S.A. § 3731; homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735; three counts of homicide by vehicle, 75 Pa.C.S.A. § 3732; and involuntary manslaughter, 18 Pa.C.S.A. § 2504. Sullivan was acquitted of the charge of accidents involving death or personal injury, 75 Pa.C.S.A. § 3742. Sullivan was sentenced to a term of imprisonment of not less than three and one-half years to not more than seven years in a state correctional institution and was fined $5,000.00.

Sullivan calls upon us to determine: (1) whether the trial court committed error when it admitted into evidence his statement to the police, “Oh, I’m drunk;” and (2) whether the result of the blood alcohol test was properly admitted into evidence. We affirm.

On November 7, 1986, Sullivan was driving westbound on State Road in Bristol Township, Pennsylvania, when he struck the victim who was walking on the shoulder of the road. The victim died four days later. Sullivan drove off but subsequently returned to the accident scene after the police had arrived. Police Officer Hadzick noticed that the right front of Sullivan’s vehicle was damaged and the right side of the windscreen was cracked. The vehicle also fit the description of the vehicle which witnesses stated had hit the victim. Sullivan asked the officer whether he had hit something. Officer Hadzick noticed an odor of alcohol emanating from Sullivan. When Sullivan could not produce his driver’s license, Officer Hadzick asked him to exit his vehicle.

Sullivan staggered out of his vehicle, and Hadzick had to support him to prevent him from stumbling. Sullivan was unable to walk to the rear of his vehicle without assistance, his eyes were glassy, his speech was slurred, and he said, “I think I struck a dog.” Officer Hadzick asked Sullivan to recite the alphabet; Sullivan could not. During this field sobriety test, Sullivan said, “Oh, I’m drunk.” Sullivan was arrested and a blood alcohol test revealed a .47 blood alcohol level.

I.

Sullivan argues that because he was subject to a custodial interrogation and had not received Miranda warnings, his statement, “Oh, I’m drunk,” should not have been admitted into evidence. We disagree.

We find that Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989), is dispositive of this issue. In Toanone, we stated that

[T]he United States Supreme Court has clarified that police need only give Miranda warnings while detaining a suspect by the side of a public highway when the suspect is actually placed under arrest or when the questioning of the suspect is so prolonged or coercive as to approximate the atmosphere of a station house interrogation. Thus, in the typical situation in which a motorist is temporarily ordered to remain by the side of his car, Miranda warnings are not essential.

Id. at 348, 553 A.2d at 1003 (citing Pennsyvlania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988)).

Sullivan argues that he was not subject to an ordinary traffic stop; the relevant question is whether he was in custody. Id. (citing Commonwealth v. Gonzalez, 519 Pa. 116, 122-124, 546 A.2d 26, 29-30 (1988) (plurality opinion) (other citations omitted)). Our review of the record reveals that he was not. Sullivan was not placed under arrest, forced to enter a police patrol car, subjected to coercion, nor subjected to prolonged questioning during the traffic stop. As in Toanone:

The defendant was asked a few question (sic) and directed to perform a few simple sobriety tests while standing at the side of his vehicle in a public area. Therefore, Miranda warnings were not required.

Id. Therefore, Sullivan's voluntary, spontaneous utterance of, “Oh, I’m drunk” after he could not recite the alphabet was properly admitted.

II.

Sullivan presents various reasons to support his assertion that the blood alcohol test result should not have been admitted. Initially, he argues that the Commonwealth’s failure to produce the chemist who performed the test on his blood violated his Sixth Amendment right to confrontation. We disagree. In Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989), we held that the right to confrontation was not violated when blood tests results were admitted without the presence of the technician who tested the blood. Id., 384 Pa.Superior Ct. at 355, 558 A.2d at 870. We reiterate:

... a blood-alcohol test is basic and routine, it is highly reliable and thus rises above mere opinion or conclusion to the level of medical fact.

Id., 384 Pa.Superior Ct. at 350, 558 A.2d at 867 (citations omitted).

Sullivan also argues that since the Commonwealth did not show that the chemist who performed his blood alcohol test was unavailable to testify, admitting the result of that test was error. Again, we disagree. In Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986) (plurality), we held that blood alcohol test results were properly admitted into evidence without the presence of the technician who performed the test. It is because a blood alcohol test is basic and routine and, therefore, highly reliable, that the safeguards ordinarily afforded by confrontation and cross-examination are not required. Id., 349 Pa.Superior Ct. at 229, 502 A.2d at 1361. See also, Commonwealth v. Seville, 266 Pa.Super. 587, 590, 405 A.2d 1262, 1264 (1979).

Sullivan distinguishes our holding in Karch and Seville from his case by alleging that since his blood alcohol test result was so high, it was not reliable. Sullivan also contends that since the chemist who tested his blood alcohol content left the employment of the testing laboratory because of the pressures of performing blood tests, his blood test result was unreliable and should not have been admitted. Sullivan cites no authority to support these arguments. A review of the notes of testimony reveals that the director of the testing laboratory testified regarding his own qualifications, he is a toxicologist, and regarding the qualifications of the chemist who tested Sullivan’s blood, who has a bachelor’s degree in chemistry and twelve years’ experience as a chemist. The director and a police officer testified regarding the chain of custody. Furthermore, the director described the type of blood test that was performed, his laboratory’s operating procedures, and how he interpreted the test results. Finally, he was extensively cross-examined by defense counsel.

We find that the blood alcohol test result was reliable and could be admitted. When determining whether blood alcohol test results were properly admitted, we are primarily concerned with the qualifications of the person performing the blood test and the equipment used, Commonwealth v. Zelinski, 392 Pa.Super. 489, 496, 573 A.2d 569, 573 (1990); whether the laboratory was licensed and approved by the Department of Health, [75 Pa.C.S.A. § 1547(c)(2)]; and the chain of custody, Kravontka, supra, 558 A.2d at 871. When the director of the testing laboratory testified, his testimony covered the aforementioned areas. Consequently, we find that the blood test result was reliable and was properly admitted; therefore, Sullivan’s argument fails.

As to Sullivan’s argument that the high result of the blood alcohol test renders it presumptively unreliable, we hold that such a contention goes to the weight of the evidence, not its admissibility. As noted above, evidence as to proper test procedure was presented. Sullivan introduced evidence through his own witnesses that such a high result, .47, would render most individuals unconscious. Cross-examination of the Commonwealth’s experts revealed the same information. Yet no expert opined that it would be impossible for an individual to function with such a high blood alcohol level. It is the prerogative of the fact-finder to believe all, part or none of the evidence presented. Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989). This admissible evidence was properly before this jury.

Judgment of sentence affirmed.


author: PER CURIAM:

text:
    581 A.2d 959
    COMMONWEALTH of Pennsylvania v. Patterson BAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 16, 1990.
    Filed Oct. 31, 1990.

      Daniel I. Herman, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com.
    Before POPOVICH, HUDOCK and HOFFMAN, JJ.
   PER CURIAM:

This appeal is from the order of the PCRA court below, which granted appellant leave to file a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania nunc pro tunc. For the reasons that follow, we must transfer the case to our Supreme Court.

On October 1, 1986, following a jury trial, appellant was found guilty of involuntary deviate sexual intercourse, statutory rape, corruption of minors, and indecent assault. Post-trial motions were filed and denied, and appellant was sentenced on October 14, 1987. On direct appeal, this Court affirmed the judgment of sentence in an unpublished Memorandum. Appellant did not file a petition for allowance of appeal with our Supreme Court. Thereafter, however, appellant did file a pro se petition under the Post Conviction Relief Act (PCRA), see 42 Pa.C.S.A. §§ 9541-9546. Present counsel then filed an amended petition. The petitions alleged, inter alia, that appellant was denied his right to petition the Supreme Court for allowance of appeal because trial counsel (who represented appellant on direct appeal) failed to inform him of that right. Appellant further alleged that counsel was ineffective in this regard, and sought leave to petition the Supreme Court for allowance of appeal nunc pro tunc.

The PCRA court held an evidentiary hearing on May 4, 1989, at which both appellant and his trial counsel testified. After considering this evidence, the PCRA court concluded that appellant did not knowingly and intelligently waive his right to petition for allowance of appeal. Accordingly, on January 30, 1990, the PCRA court entered an order granting appellant an opportunity to seek review of Superior Court’s affirmance of his judgment of sentence by permitting him to file a Petition for Allowance of Appeal to the Supreme Court nunc pro tunc. The order provides in its entirety as follows:

NOW, January 30, 1990, in accordance with the provisions of the appended Memorandum Opinion, the defendant is hereby GRANTED leave to file a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania nunc pro tunc. In that regard, the defendant shall have a period of thirty (30) days pursuant to Pa.R.A.P. 1113(a) commencing from the date of this Order to file the Petition for Allowance of Appeal with the Prothonotary of the Supreme Court of Pennsylvania.

Despite the fact that this order granted appellant the precise relief he sought—i.e., leave to file a petition for allowance of appeal to the Supreme Court nunc pro tunc, he improperly filed an appeal with this Court on February 22, 1990.

Although the appeal is not properly before us, it was timely filed (within the thirty days prescribed by the order) and a review of the Pennsylvania Rules of Appellate Procedure makes clear that quashal is inappropriate. Rule 751 governs situations such as this, where an appeal is timely but is taken to the wrong court:

Rule 751. Transfer of Erroneously Filed Cases
(a) General rule. If an appeal or other matter is taken to or brought in a court or magisterial district which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper court of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in transferee court on the date first filed in a court or magisterial district.

Id,. The definitional section of the Rules provides that the term “appeal” encompasses:

[a]ny petition or other application to a court for review of subordinate governmental determinations. The term includes an application for certiorari under 42 Pa.C.S. § 934 (writs of certiorari) or under any other provision of law. Where required by the context, the term includes proceedings on petition for review.

See id. Rule 102.

Here, in accordance with the PCRA court’s order, appellant’s “appeal” should have been captioned a “petition” for allowance of appeal, and should have been filed with the Prothonotary of the Supreme Court. In light of the fact that the “appeal” was timely but simply was filed in the wrong court, it is apparent from the Rules that the proper course is to transfer the case to our Supreme Court. Once transferred, the appeal would be governed by the Rules applicable to petitions for allowance of appeal. It should be noted that, because review by our Supreme Court is discretionary, the procedures governing such petitions are different from the procedures governing appeals as of right, see Pa.R.A.P. 1111—1123, and appellant, of course, is responsible for complying with these Rules.

We are aware that, in the past, our Supreme Court has held that Superior Court has improperly attempted to certify appeals to the Supreme Court, which should only have been reviewable by allowance of that Court. See, e.g., McCarthy v. Lower Gwynedd Township, 435 Pa. 75, 255 A.2d 569 (1969); Coston v. Upper Merion Township, 435 Pa. 67, 255 A.2d 565 (1969). These cases clearly are distinguishable. First, the cases involved an interpretation of former Supreme Court Rule 68V2, which governed appeals “in the nature of a certiorari.” Since the cases were decided, of course, the Judicial Code was enacted, and Rule 68V2 has been rescinded. The Rules governing allowance of appeal and transfer are now contained in the Rules of Appellate Procedure, which were not adopted until 1975. These Rules, in turn, are based on the Judicial Code. Thus, our reliance on the present Rules is proper.

Second, we should emphasize that we are not certifying an “appeal” to the Supreme Court, but merely transferring the appeal to the Supreme Court Prothonotary, where it would be treated as a petition for allowance of appeal. The ultimate decision whether or not to allow the appeal, of course, rests with the Supreme Court. Thus, unlike McCarthy and Coston, the transfer in this case in no way affects the Supreme Court’s discretionary power of review.

For the foregoing reasons, we transfer the case and record to our Supreme Court.

Case and record transferred to Supreme Court.

      . Prior to the listing of this case for submission, appellant’s counsel was contacted by this Court and informed of the jurisdictional defect. In response, counsel claimed that the appeal was properly here because the PCRA court, in its opinion, denied appellant relief on all of his other ineffectiveness claims. We cannot agree. Although it is true that the PCRA court discussed appellant’s other claims in its opinion, a review of the January 30, 1990 order that was entered indicates that the court did not dispose of the other claims, and the only action taken was to grant nunc pro tunc relief. Indeed, in its opinion, the PCRA Court was careful to explain the reasons why it discussed the remaining claims, and the limited nature of that discussion, as follows:
      According to the procedural approach established in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982), when a PCRA court determines that a petitioner has been denied his appellate rights and therefore grants the petitioner an appeal nunc pro tunc, the PCRA court should refrain from ruling upon the merits of the remaining claims for relief raised in the post-conviction collateral relief petition. See also Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989); Commonwealth v. Markle, 368 Pa.Super. 142, 533 A.2d 756 (1987). However, an exception to this general rule is made where the trial record is inadequate to provide a basis for review of the claim or where the claim was not ruled upon by the trial court. See Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Markle, supra; Commonwealth v. Miranda, supra. Consequently, we here make the following findings relative to the remaining claims of ineffectiveness raised by the defendant in the case sub judice in order to complete the record for appellate review.
      Trial Court Opinion at 9.

      . This Rule is based on 42 Pa.C.S.A. § 5103(a).


text:
    581 A.2d 961
    Cynthia L. McCULLOUGH, an Individual, and Michael McCullough, her Husband, Appellants, v. XEROX CORPORATION, a Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1990.
    Filed Oct. 23, 1990.

      John D. Hendricks, Pittsburgh, for appellants.
    Eric Falk, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and HOFFMAN, JJ.
   PER CURIAM:

Appellants Cynthia McCullough and Michael McCullough, her husband, filed a complaint in trespass on January 10, 1983 against appellee Xerox Corporation (“Xerox”). As stated by the trial court:

Plaintiff [Cynthia McCullough] commenced employment with the Defendant in August of 1979 as a technical representative. Her duties included repairing and cleaning photo copy machines using various chemicals. Plaintiff continued her employment until January of 1981 when she claimed she could no longer work. On or about December 7, 1981, she returned to work for the Defendant and commenced training to repair and clean model 800 typewriters sold by the Defendant. She continued to work until January 4, 1982 at which time she was terminated for the reason that her employer was unsatisfied with her progress on the model 800 typewriter.
During the period she was off work, Plaintiff was diagnosed as having sarcoidosis. The instant claim, as well as the Workmen’s Compensation claim, was based on Plaintiff’s theory that her sarcoidosis was caused and/or aggravated by the chemicals to which she was exposed during the course of her employment with the Defendant.

(Slip Op., Musmanno, J., 3/2/90, pp. 2-3.) Xerox filed preliminary objections to the complaint and appellant filed preliminary objections to Xerox’s preliminary objections. By Order dated April 6, 1983, all preliminary objections were withdrawn and Xerox was ordered to file an answer to appellants’ complaint. However, because of a pending workmen’s compensation claim, the April 6, 1983 Order also stayed the civil action pending final disposition of the workmen’s compensation claim.

Appellant/wife’s claim for workmen’s compensation benefits was dismissed by Order dated March 2, 1983. The decision of the referee was affirmed on appeal to the Worker’s Compensation Appeal Board, and the board’s decision was affirmed on appeal to the Commonwealth Court. The Supreme Court denied appellants’ petition for allowanee of appeal on August 31, 1987 (285 W.D. Allocatur Dkt.1986). Appellants then petitioned to have the stay of proceeding removed, which petition was granted by Order dated July 26,1989. Subsequently, Xerox filed a motion for summary judgment, which was "granted by Order dated December 19, 1989, and appellants’ complaint was dismissed with prejudice. Appellants’ motion for reconsideration was also denied, and this appeal followed.

On appeal, appellants argue they may pursue a cause of action at common law since there has been a determination by workmen’s compensation authorities that appellant/wife’s injuries are not recognized as compensable injuries under the Workmen’s Compensation Act (“Act”), 77 P.S. § 1 et seq.

There is no dispute the Act was enacted to provide the sole and exclusive means of recovery for all injuries arising out of accidents occurring within the course of employment. Taynton v. Dersham, 358 Pa.Super. 178, 516 A.2d 1241 (1986). The exclusive liability provision of the Act has obliterated the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer. Id.

In recent years, our Supreme Court has considered at length the exclusivity provisions of the Act and a like provision in the related Occupational Disease Act, 77 P.S. § 1201 et seq. Analyzing the exclusivity provisions of both Acts, the Court stated:

The clear language of both of these sections dictates that the only remedy available to an injured employee is statutory— While the language used by the legislature varies slightly between the two Acts, the same analysis of the historical underpinnings of the exclusive remedy doctrine applies equally to both. As we stated in [Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987)], the exclusivity provisions of these acts are “a version of the historical quid pro quo . that employers received in exchange for being subjected to a statutory no fault system of compensation for worker injuries.” Id. 514 Pa. at 37, 522 A.2d at 550.

Barber v. Pittsburgh Corning Corp., 521 Pa. 29, 35, 555 A.2d 766, 769 (1989).

Barber and Poyser, then, merely state clearly a fundamental corollary of the law of workmen’s compensation: a common law tort action by an employee against his employer for any work-related injury is barred by the exclusivity provisions of the Workmen’s Compensation Act.

Appellant, however, contends the Act has no applicability where appellant pursued a workmen’s compensation claim under the occupational disease section of the Act and that injury did not meet the technical and narrow definition of “occupational disease” as defined in the Act, and thereby appellant suffered a harm which cannot be compensated under the Act. Greer v. United States Steel Corp., 475 Pa. 448, 380 A.2d 1221 (1977). We do not find this contention supported by either the relevant case law or the facts of this case.

Section 108 of the Act sets forth myriad defined diseases as occupational diseases within the meaning of the Act, of which sarcoidosis is not a defined occupational disease. Not wishing to delimit occupational diseases to those defined explicitly, section 27.1 also encompasses:

All other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population.

77 P.S. § 27.1(n).

The workmen’s compensation referee made the following pertinent findings of fact:

5. Claimant was diagnosed as having sarcoidosis at Allegheny General Hospital in March, 1981.
6. All of the medical evidence in this matter established that sarcoidosis was not work-related.
8. As a result of said employment, claimant did not contract or sustain any occupational disease or pulmonary injury.
9. Claimant did not establish by credible evidence any or all of the following:
(a) She was employed in an occupation or industry which constituted an occupational disease hazard;
(b) She was exposed to an occupational disease hazard at her place of employment;
(c) The incidence of her alleged occupational disease is substantially greater in the occupation or industry of repairing and clearing photocopying machines or the 800 typewriter;
(d) The identity or description of the causative factors of her alleged occupational disease;
(e) The causative factors were significantly present in her employment; and/or
(f) She was exposed to this significant presence.
10. Claimant’s medical testimony is rejected. It is deemed equivocal, speculative, and unprobative.
11. Employer’s medical and expert testimony is preferred and relied upon.
$ s}: $ s}: >jc sj<
17. Claimant’s alleged disability is not work-related.
18. Claimant’s sarcoidosis is not work-related. Nor was it aggravated or accelerated by her employment with employer.
19. Claimant failed to sustain her burden of proof. Her evidence is rejected; employer’s is preferred.

Referee’s Decision, 3/2/83, pp. 11-12.

Thus, the referee made an adjudication that appellant had not satisfied the requirements to establish her sarcoidosis as an occupational disease under section 27.1(n), but, moreover, the referee determined appellant had failed to carry her burden of proof in establishing that her sarcoidosis was in fact work-related. In essence, appellant suffered not from a statutory limitation, but from an evidentiary failure. We agree with appellee that failure to meet the definition of occupational disease does not exclude a claimant from compensation under the workmen’s compensation system. See generally Pawlosky v. WCAB, 514 Pa. 450, 525 A.2d 1204 (1987). Such definitions are merely procedural means of creating a non-conclusive presumption that an injury was work-related. Failure to establish the presumption is not dispositive; the claimant may still go forward in making out a case for workmen’s compensation absent the presumption.

For the above reasons, we find appellants’ argument without merit and continue to find the workmen’s compensation system the exclusive remedy of injured employees, and we find appellants’ reliance on Greer, supra, misplaced. We also cite with approval a portion of the trial court’s Opinion distinguishing Greer from the case at bar.

Facially, Greer, supra, appears to support Plaintiffs’ position. An examination of the procedural posture of the case, however, reveals that no hearing was ever held on the merits of the claim. In Greer, the trial court denied the employer’s motion for judgment on the pleadings and the employer appealed. The Superior Court reversed and granted judgment on the pleadings for the employer, and the employee appealed. Although the Supreme Court reversed the entry of judgment in favor of the employer, it did so because of uncertainty regarding factual questions which made it inappropriate to grant judgment on the pleadings. The Court further held that:
“It may well be appropriate for the court below to grant a stay pending administrative action in accordance with the doctrine of primary jurisdiction.” Greer, 380 A.2d at 1223.
The instant case is thus clearly distinguishable from Greer, supra, in that there has been an actual determination on the merits by the Workmen’s Compensation Referee, the Workmen’s Compensation Appeal Board and the Commonwealth Court of Pennsylvania, all of which were adverse to the Plaintiff.
Initially, Plaintiff-wife filed a claim petition requesting compensation for occupational disease under Section 108 of the Pennsylvania Workmen’s Compensation Act. Plaintiff was given full and complete opportunity to present testimony and medical evidence. She submitted not only two medical reports, but a deposition of one of her examining physicians. The Workmen’s Compensation Referee entered findings of fact and conclusions of law and denied her claim. Importantly, the Referee did not find that Plaintiff-wife had no cause of action, nor did the Appeal Board. Specifically, the Referee found that the sarcoidosis was “not work related,” and that “Plaintiff did not sustain any occupational disease or pulmonary injury as a result of said employment.” See, Referee’s Decision at 3, Findings of Fact Nos. 6 and 8.
The Plaintiff appealed this decision of the Referee alleging that he erred because the record did not support his findings. She also claimed that he failed to enter any finding of fact concerning her “restrictive pathways disease”, and that he “capriciously” disregarded competent evidence. The Appeal Board found that the Referee rejected her medical testimony as equivocal and speculative. The Board found that the Referee had lawfully exercised his discretion in rejecting Plaintiff’s medical testimony and affirmed the Referee’s decision on the basis that Plaintiff had failed to meet her burden of proof. The Appeal Board’s decision was affirmed by the Commonwealth Court.
In essence, Plaintiff is asking this Court to permit her to relitigate the exact issue which has already been decided adversely to her, i.e., was her employment the cause of her injuries?

(Slip Op. at 4-6.)

The trial court found appellants were precluded from reasserting their cause of action at common law by virtue of the principles of collateral estoppel. We agree. Collateral estoppel principles apply to judgments from workmen’s compensation boards in subsequent common law tort actions. Frederick v. American Hardware Supply, 384 Pa.Super. 72, 557 A.2d 779 (1989). “The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Muhammad v. Strassburger, 374 Pa.Super. 613, 618, 543 A.2d 1138, 1140 (1988) (quoting Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983)), allocatur granted, 520 Pa. 618, 554 A.2d 510 (1989).

A plea of collateral estoppel is valid if: 1) the issue decided in the prior adjudication was identical to the one presented in the later action; 2) there was a final judgment on the merits; 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989).

This Court’s examination of the record persuades us the referee’s decision, subsequently affirmed on appeal by the WCAB and by Commonwealth Court, has estoppel effect in this case. It is undisputed the litigant parties are identical. Appellant argues, however, the issue presented to and decided by the referee was a narrowly defined statutory one, i.e., had appellant suffered an occupational disease injury. In light of our previous discussion, though, this argument is without basis. As we stated, the referee found unequivocally appellant’s injury was not work-related, and appellant had failed to sustain her burden of proof. This failure was grounded not in appellant’s inability to establish her sarcoidosis as an occupational disease injury, for her claim proceeded without that determination, but rather, in appellant’s inability to prove the causation of her injury was aggravated, accelerated or related in any way to her work for Xerox. This was the central issue in appellant’s workmen’s compensation claim, just as it is instantly, and appellant was afforded a full and fair opportunity to litigate the issue before the referee. As that judgment is now final, appellants are estopped from pursuing the identical issue in a common law tort action. To find otherwise would be to undermine the concept of workmen’s commpensation which has served the workers and economic structure of our society so well.

Order affirmed.


author: CAVANAUGH, Judge: GOODHEART, J.

text:
    581 A.2d 1378
    Michell ORSINI, Appellant, v. STATE FARM INSURANCE CO., Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Oct. 29, 1990.

      Thomas J. Barnes, Philadelphia, for appellant.
    Mark C. Labrum, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment entered on a verdict in favor of the appellee-insurance company in a suit against it for alleged failure to pay for reasonable and necessary rehabilitative services under 75 Pa.C.S.A. § 1712, which provides for first party benefits for injury arising out of maintenance and use of motor vehicles. Claim was made for five orthopedic devices for a total cost of $410.20. Appellee paid all but $180.25 of these charges challenging the reasonableness of the submitted bills. After trial before the Honorable Bernard J. Goodheart, a verdict for the appellee was entered. The sole claim on appeal is that the verdict was against the weight of the evidence. We have reviewed the record as well as the briefs of counsel and affirm the judgment of the trial court. In doing so we adopt the opinion of the Honorable Trial Judge in support of the verdict and file it herewith.

Judgment affirmed.

HUDOCK, J., concurs in the result.

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

Civil Trial Division

July Term, 1988

No. 2705

OPINION OF THE COURT

February 21, 1990

GOODHEART, J.

Plaintiff, Michelle Orsini, a secretary at the law firm representing her in this matter, was injured as the result of an automobile accident in 1986. (N.T. pp. 49-50). At the time of the accident, Plaintiff was insured by Defendant, State Farm Insurance Company, pursuant to the requirements of the Pennsylvania Motor Vehicle Financial Responsibility Law. 75 Pa.C.S.A. § 1701 et seq., (N.T. p. 53).

As a result of the injuries sustained in the accident, Plaintiffs doctor prescribed certain orthopedic items, in-eluding two heating pads, a back brace device, neck brace and pillow. (N.T. p. 50).

The following devices, including prices, were supplied and delivered to the Plaintiff by Statewide Surgical Supply Company:

a) . Fitted soft foam contoured cervical collar $25.20
b) . Soft foam cervical pillow 25.20
c) . 4" x 13" electric moist heat pad 69.30
d) . Fitted lumbar sacral molded corset 175.00
e) . 13" x 27" electric moist heat pad 115.50 $410.20

(N.T. p. 13, Exhibit P-1).

State Farm received an invoice in the amount of $410.20 from Statewide Surgical Supply for the items delivered to the Plaintiff. (N.T. pp. 53-54). State Farm paid a total of $229.95 of the $410.20 invoice to Statewide Surgical Supply, in the following manner:

Sta State
tewide Farm
Surgical Invoice Paid
a) . Cervical collar $25.20 $9.95
b) . Cervical pillow 25.20 13.75
c) . 4" x 13" pad heat 69.30 41.95
d) . Lumbar corset sacral 175.00 95.00
e) . 13" x 27" pad heat 115.50 69.30
$410.20 $229.95

(N.T. p. 54, p. 67).

Plaintiff sued for recovery of $180.25 (the difference between Statewide Surgical’s invoice of $410.20 and the amount State Farm paid, $229.95), because of State Farm’s non-payment of medical supplies delivered to the Plaintiff by Statewide Surgical Supply Company. Plaintiff also seeks recovery of attorney’s fees in the amount of $5,811.75, for time expended on this case. (Exhibit P-3).

Under the Pennsylvania Motor Vehicle Financial Responsibility Law, a motor vehicle insurer shall include coverage providing for a medical benefit of $10,000.00. 75 Pa.C.S.A. § 1711. The medical coverage must provide for the “reasonable and necessary medical treatment and rehabilitive services, including but not limited to ... medical supplies and prosthetic devices____” 75 Pa.C.S.A. § 1712(1). “In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the first party benefits ... the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended.” 75 Pa.C.S.A. § 1798(b),

As the finder of fact, this Court finds that State Farm acted in a reasonable manner and with a reasonable foundation in fulfilling its obligation under the Pennsylvania motor vehicle insurance laws.

In determining amounts to pay for medical supplies in the Philadelphia region, State Farm utilizes a standard price list developed by Omni-Med Consultants Incorporated, an independent medical investigation company based in Horsham, Pennsylvania. (N.T., p. 61). Omni-Med developed the list based on information from medical supply distributors and hospitals in the Philadelphia area, as well as direct prices from the manufacturers of such items. (N.T. p. 73). This price list developed by Omni-Med Consultants was utilized by State Farm in determining the amount to pay Statewide Surgical Supply in this matter. (N.T. p. 60).

Additionally, the Court notes that during 1986 and 1987, Statewide Surgical Supply paid the manufacturers of orthopedic devices, the following prices for the specific items in controversy:

a) . Cervical collar $2.75
b) . Cervical pillow 3.95
c) . 4" X 13" heat pad 30.00
d) . Lumbar sacral corset 19.00
e) . 13" X 27" heat pad 45.00

(N.T. p. 15).

The amounts State Farm paid to Statewide Surgical were both reasonable and necessary.

By determining that State Farm’s payment and action were reasonable, the attorney fees provisions of the Motor Vehicle Financial Responsibility Law do not apply and Plaintiff is therefore not entitled to an award of attorney’s fees.

      . The case was heard in Common Pleas Court after an appeal from an arbitration award in favor of appellant for the amount of the claim plus an award of $1700.10 for attorney’s fees.

      . We are cognizant of the supreme court’s ruling in Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987) and Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989) which indicate that challenges to the weight of the evidence are not appealable. See also,
        Commonwealth v. Steele, 522 Pa. 61, 559 A.2d 904 (1989). However, we do not believe that the court intended, by the passing statements made in these two cases, to abrogate all review for weight of the evidence. Such review has always been available in the trial and appellate courts of this Commonwealth. Until such time as more definite instruction on this issue emanates from our supreme court, we will continue to review verdicts for weight of the evidence where the issue is properly raised. See Commonwealth v. Eddowes,, 397 Pa.Super. 551, 580 A.2d 769 (1990) (supreme court statement on nonreviewability is dictum and weight of evidence claim is treated on its merits); Contra Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990) which held that under Commonwealth v. Nelson, supra, and Commonwealth v. Wallace, supra, we are precluded from entertaining challenges to the weight of the evidence.