author: JOHNSON, Judge:

text:
    534 A.2d 508
    James MITCHELL v. Sheila RANDALL and Royce Howard, Appellants.
    Superior Court of Pennsylvania.
    Argued April 23, 1987.
    Filed Dec. 8, 1987.

      Shelly J. Leibel, Philadelphia, for appellants.
    Neil Mittelman, Philadelphia, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Sheila Randall appeals from an order of the Court of Common Pleas of Philadelphia County finding James Mitchell to be the father of her son, Aaron Randall, born July 9, 1981. We affirm.

On November 9, 1983 appellee James Mitchell filed a petition for visitation alleging that he was the father of Aaron Randall. Sheila Randall filed an answer denying that Mitchell was the father and named Royce Howard as the biological father of the child. On March 8, 1984, the Court ordered Human Leukocyte Antigen (HLA) Blood tests of all parties involved. At a hearing conducted on February 20,1985, before the Honorable Jerome A. Zaleski, the blood test results of Mitchell and Howard were not admitted into evidence; thereafter, Judge Zaleski, by an order dated February 21,1985, denied appellee’s petition for visitation. A petition for reconsideration was filed and denied by Judge Zaleski on March 14, 1985. No appeal was filed by appellee.

On March 29, 1985, appellee filed the instant petition to confirm paternity. Appellants filed an answer raising the defense of res judicata as a result of the denial of appellee’s petition for visitation. On April 1, 1985, a Petition to Confirm Acknowledgment of Paternity/Waiver of Trial was filed by Randall requesting that Howard be acknowledged as the father of the child since Howard had formally executed an Acknowledgment of Paternity.

On October 18, 1985, the trial court ordered that Mitchell would not be precluded from introducing evidence of paternity at trial. Randall’s appeal from this order was quashed by our court on February 3, 1986. After hearings were conducted on May 19 and 29, 1986, the trial court by order dated July 8, 1986, granted Mitchell’s petition, finding him to be the father of the child at issue. From this order, a timely appeal was filed.

Two questions are presented on appeal:

I. Do the doctrines of res judicata and collateral estoppel bar reconsideration of a paternity claim when the issue was litigated and a final order was entered during a prior proceeding before a court of competent jurisdiction?
II. Did the lower court err in admitting the deposition testimony of Dr. William C. Sherwood, when Dr. Sherwood admitted and testified that he did not perform the HLA Blood Studies and related testing in question?

Appellant contends that since a paternity determination is a prerequisite for the grant of visitation, the initial denial of the petition for visitation is necessarily determinative of paternity. Therefore, the trial court erred in refusing to utilize the doctrines of res judicata and collateral estoppel by permitting a new trial to determine paternity.

In order for res judicata to apply to bar relitigation of an action, the court which previously addressed the matter on the merits must be of competent jurisdiction and there must be a concurrence of four conditions: (1) identity of issues, (2) identity of causes of action, (3) identity of persons and parties to the action, and (4) identity of the quality or capacity of the parties suing or sued. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983).

In general “res judicata” is used to express three effects a final judgment may have on a subsequent suit: merger, bar and collateral estoppel. Id. Merger and bar arise when the second suit between the same parties involves the same cause of action as is involved in the first suit. Id. If the plaintiff wins, the cause of action merges into the judgment, precluding another suit on the same cause of action. Id. If the defendant loses, the cause of action is destroyed and he is barred from a second suit. Collateral estoppel, however, only operates when the second suit involves some of the same questions determined in the first suit but brought on a different cause of action.

We hold that an action brought on a Petition for Visitation and a Petition to Confirm Paternity are distinct causes of action involving separate issues. This case began with Mitchell’s Petition for Visitation. To establish his right to visitation Mitchell had to first establish that he was the father of the child. The trial court denied the Petition for Visitation, it did not find Mitchell to be the father nor did it exclude him. At most, the trial court found only that Mitchell was not entitled to visitation. The general rule is that the doctrine of res judicata cannot be applied to preclude a claim absent a final judgment on the merits of a previous action. Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 327 A.2d 72 (1974). General Accident Fire and Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982).

In the first proceeding, Howard was not named until his identity was raised in Randall’s Answer to the Petition. Howard then testified at the first hearing that he was the father of the child. However, for reasons not appearing of record, no blood test results were introduced into evidence. In the record of the trial court, accordingly, at the conclusion of the first hearing, there was still no determination of the identity of the child’s father. The decision to deny Mitchell’s petition for visitation did not result in a finding that Howard, who was not a party to that action, was the father of the child. Opinion 10/3/86 at 5. Opinion 10/31/86 at 4.

The trial court found neither res judicata nor collateral estoppel to be applicable to the issue of paternity. Instead the trial court determined that an exception to issue preclusion existed pursuant to the Restatement (Second) of Judgments § 28(2)(b) and (5).

The trial court stated:

The resolution of paternity is an issue of utmost importance that impacts on both property interests as well as familial interests. Moreover, a finding of paternity has long-term economic impact on both parents and children; and, more importantly, the creation of lifelong emotional bonds involved in the parent-child relationship. Accordingly, an incorrect decision based upon a technical but necessary doctrine must yield to an opportunity to introduce reliable test results especially where such a test can conclusively exclude a party from parentage claims as well as where one of the parties in a subsequent action was not a party to the initial proceeding.

Opinion, 10/31/86 at 4.

At the second proceeding to confirm paternity, the blood test results were admitted which conclusively excluded Mr. Howard as the father pursuant to 42 Pa.C.S.A. § 6136, and the finding that Mr. Mitchell had a probability of paternity of 98.72% from his HLA test was submitted with the other evidence presented to determine if Mr. Mitchell had met his burden of proof. See Olson v. Dietz, 500 A.2d 125 (Pa.Super.1985).

Opinion 10/31/86-at 5.

The trial court, therefore, determined:
to allow relitigation of the paternity question to avoid an inequitable administration of the paternity laws; and to prevent an adverse impact of an incorrect paternity decision on the public interest. That impact being where Ms. Randall was claiming that Mr. Howard was the father, and despite Mr. Howard’s acquiescence in her assertion, he had already been scientifically excluded as the father of the child.
The public interest in assuring that children know who their biological parents are far outweighs the possible application of either res judicata or collateral estoppel to the facts of this case.

Opinion 10/31/86 at 5.

Upon thorough review of the record this Court is satisfied as was the trial court that Mitchell met his burden of proof establishing paternity. We find no error.

Randall claims that the lower court erred in admitting the testimony of the medical expert because he did not actually perform the HLA blood tests. The admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion. Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984). The trial court admitted the medical expert’s deposition testimony pursuant to 42 Pa.C.S.A. § 5936(b) without objection as to expert status of the doctor. Miller v. Kriner, 341 Pa.Super. 293, 491 A.2d 270 (1985). Our review of the record convinces us that an adequate foundation was laid for the introduction of the expert testimony. Appellant advances no case law or statute that would vitiate blood test results because the witness did not himself draw blood from the subjects or perform the tests but delegated these tasks to qualified technicians under his supervision. We find this issue to be without merit.

Having found no merit to either of appellant’s arguments, the order of July 8, 1986 granting James Mitchell’s Petition to Confirm Paternity and finding him to be the father of Aaron Randall is accordingly affirmed.

Order affirmed.

      . Pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. § 6131 et seq.

        . This appeal was docketed at 2918 Philadelphia, 1985.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    534 A.2d 511
    COMMONWEALTH of Pennsylvania v. R.C. JOHNSON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1987.
    Filed Dec. 8, 1987.

      J. Michael Considine, Jr., Devon, for appellant.
    Nicholas Casenta, Jr., Assistant District Attorney, West Chester, for Com., appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

R.C. Johnson, Jr. was tried by jury and was found guilty of operating a vehicle while under the influence of alcohol and operating a vehicle with a blood alcohol content in excess of .10%. Post-verdict motions were denied, and Johnson was sentenced to pay a fine of three hundred ($300.00) dollars and the costs of prosecution and to undergo imprisonment for not less than thirty days nor more than twenty-three months. This appeal followed.

On March 30, 1985, at or about 11:55 p.m., Officer John Hackman of the West Whiteland Township Police, observed Johnson’s car cross the double yellow line while negotiating a curve on Route 100 in West Goshen Township, Chester County. Hackman followed Johnson’s vehicle as it left Route 100 and travelled from West Goshen Township into West Whiteland Township. When it continued to swerve and weave on the roadway, Hackman stopped the vehicle and asked Johnson for his driver’s license and registration. Hackman observed that Johnson’s speech was slurred, that his eyes were bloodshot, and that he emitted an odor of alcohol. When Johnson was unable to produce his license or registration, Hackman asked him to step out of the vehicle. There, Hackman administered three field sobriety tests — the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test — all of which Johnson failed. Hackman then arrested Johnson and transported him to the township police station. Hackman thereupon administered two breath tests which resulted in blood alcohol content readings of .13% and .12%.

On appeal, appellant contends that the trial court’s instructions regarding the significance of the results of the alcoholic content of his blood were confusing and misled the jury. However, an appellate evaluation of a trial court’s charge to the jury must be based on an examination of the charge as a whole in order to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983); Commonwealth v. Tolassi, 489 Pa. 41, 57, 413 A.2d 1003, 1010 (1980). Error cannot be predicated on isolated excerpts from a charge, but must be predicated on the charge as a whole. Commonwealth v. Sweger, 351 Pa.Super. 188, 194, 505 A.2d 331, 334 (1986); Commonwealth v. Smith, 343 Pa.Super. 435, 443, 495 A.2d 543, 547 (1985). Jury instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations. Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985).

The trial court defined the offense of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1) in the following manner:

Under the Vehicle Code of Pennsylvania, a person is guilty of the crime of operating a motor vehicle while under the influence of alcohol to a degree which renders him incapable of safe driving if you find the following. First of all, the term under the influence of alcohol used in this instruction does not mean that the Commonwealth must prove that the Defendant was drunk or intoxicated. Instead, the meaning of the term includes not only the well-known and easily recognized conditions and degrees of intoxication, but also any abnormal mental or physical condition which results from use of alcohol and tends to deprive the Defendant, Mr. Johnson, of that clearness of intellect and control which he should possess in the absence of such condition, in the absence of the alcohol, provided that the condition renders him incapable of safe driving.
Now, let me give that to you again. The term under the influence of alcohol does not mean that the Commonwealth must prove that the Defendant was drunk or intoxicated. Instead, the meaning of the term includes not only the well-known and easily recognized conditions and degrees of intoxication — and again this is where you can apply your own experience and your own common sense to the easily recognized and degrees of intoxication — but also any abnormal mental or physical condition which results from use of alcohol and tends to deprive the Defendant of that clearness of intellect, mind, and control of himself which he would possess in the absence of such condition, provided that the condition renders him incapable of safe driving.
If the evidence convinces you beyond a reasonable doubt that the Defendant was driving a vehicle while under the influence of alcohol and that he was under such influence to a degree which rendered him incapable of safe driving, you should find him guilty. If you do not find the concurrence of all of these factors, you must find him not guilty.

(N.T., 1/22/86, pp. 209-210.) This instruction was a correct statement of the law. See: Commonwealth v. Griscavage, 512 Pa. 540, 545, 517 A.2d 1256, 1258 (1986); Commonwealth v. Horn, 395 Pa. 585, 590-591, 150 A.2d 872, 875 (1959). Nowhere did the trial court suggest or convey to the jury that a blood alcohol content of .10% or more was sufficient to convict.

The trial court charged the jury as to the offense defined in 75 Pa.C.S. § 3731(a)(4) as follows:

Now, in the alternative, the Commonwealth says that Mr. Johnson is guilty of violating Subsection 4 of the statute which simply says the amount of alcohol by weight in his blood was .10 percent or greater. I don’t really think there are any terms that I can define in that for you or that I should have to. It’s very simple. If you find from all of the credible testimony that the amount of alcohol registered in Mr. Johnson’s breath was .10 percent or greater, then you should find that the Commonwealth has met its burden and you may find the Defendant guilty. On the other hand, if you find that the amount of alcohol is less than .10 percent, then you must find the Defendant not guilty. And, of course, .the key, as it is in the first part, is at the time he was driving the vehicle. So, that is what you are looking for.

(N.T. 1/22/86, pp. 210-211.) This, too, was a correct statement of the law. A driver violates this subsection if, at a time when he operates a motor vehicle, the alcoholic content of his blood by weight exceeds 0.10 percent. Nothing further was required for a conviction under this Subsection. See: Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986); Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986).

At trial, appellant denied that he was under the influence of alcohol when he was arrested and presented expert medical testimony which suggested that at the time of his arrest he was suffering from adult type, onset diabetes. Dr. Philip Kistler, appellant’s expert and treating physician, opined that appellant’s diabetic condition on the night of his arrest could have accounted for his erratic driving behavior and other symptoms which Officer Hackman observed. Dr. Kistler also testified that acetone, which is found in the blood of diabetics, was probably present in appellant’s blood on the night of his arrest and could have affected the amount of measured alcohol in his blood. Appellant’s second expert, Stanley J. Broskey, a forensic chemist/toxicologist, testified that acetone could affect the readout on the intoximeter by as much as .02%. However, Officer Hack-man testified that the Intoximeter 3000 model, which had been used to test appellant’s breath, was equipped to detect acetone in the breath of a diabetic and would register an “interfering substance message” for concentrations of acetone greater than .02%. The readout for each breath test performed on appellant, he said, did not indicate the presence of acetone.

Appellant now contends that the trial court failed to instruct the jury adequately regarding the possible effect of acetone in the blood of an undiagnosed diabetic. This claim is without merit. The trial court expressly instructed the jury to consider the testimony of appellant’s experts concerning acetone and its effects on the Intoximeter 3000. The trial court, however, left it to the jury to decide whether there was acetone in the blood of appellant at the time of his arrest, and the effect, if any, which the presence of acetone had on the reading of the Intoximeter 3000.

Appellant also contends that the trial court erred by failing to direct its instructions on reasonable doubt specifically to his defense that the intoximeter results had been influenced by acetone. The trial court did properly instruct the jury that the Commonwealth had the burden of proving each and every element of the offense beyond a reasonable doubt, and appellant did not object to the court’s instructions or request additional instructions. Therefore, he has waived this claim and cannot now complain about the absence of a specific instruction by the trial court regarding the Commonwealth’s burden of proof with respect to his acetone defense. See: Commonwealth v. Rounds, 510 Pa. 524, 527, 510 A.2d 348, 349 (1986); Commonwealth v. Clair, 458 Pa. 418, 421-422, 326 A.2d 272, 273-274 (1974); Commonwealth v. Romanelli, 336 Pa.Super. 261, 271, 485 A.2d 795, 800 (1984); Pa.R.Crim.P. 1119(b).

In Swain v. Alabama, 380 U.S. 202, 203-204, 85 S.Ct. 824, 826, 13 L.Ed.2d 759, 763 (1965), the United States Supreme Court first recognized that a “State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” In order to prove such a violation, however, the Court required that a defendant prove the establishment of a pattern by which the prosecution, in numerous cases, had peremptorily stricken veniremen of a particular race. Id. at 222-226, 85 S.Ct. at 837-839, 13 L.Ed.2d at 773-776.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court reaffirmed the principle announced in Swain but reexamined the evidentiary burden placed on a defendant who wishes to challenge the government’s use of peremptory challenges as racially discriminatory. In Batson, the Supreme Court relaxed the evidentiary burden on a defendant by holding that a prima facie case of purposeful discrimination can be established solely by facts pertaining to the defendant’s trial. Id. at 96-98, 106 S.Ct. at 1722-1724, 90 L.Ed.2d at 87-88.

In Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986), a panel of this Court held that Batson was to be applied retroactively to cases pending on direct appeal at the time Batson was decided. In Griffith v. Kentucky, — U.S. —, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the United States Supreme Court also addressed the retroactivity of Batson and held that its ruling in Batson was to be applied, as a matter of federal constitutional law, to all cases, state or federal, which were pending on direct appeal or not yet final.

In the instant case, appellant, who is black, was tried and found guilty on January 22, 1986. No objection was made during the selection of the jury that the Commonwealth was exercising its peremptory challenges in a racially discriminatory manner. Similarly, the issue was not raised in defendant’s initial post-verdict motions. While those post-verdict motions were pending, the Supreme Court of the United States, on April 30, 1986, rendered its decision in Batson. On May 20, 1986, appellant filed an addendum to his post-verdict motions, in which he claimed for the first time that the Commonwealth had exercised its peremptory challenges in a racially discriminatory manner. The trial court found that appellant’s claim had been waived by his failure to object to the Commonwealth’s peremptory challenges at the time when the jury was being selected. Appellant now argues that he is entitled to an evidentiary hearing to explore the possibility that the Commonwealth’s peremptory challenges were exercised improperly.

Although appellant’s case had not become final at the time when Batson was decided, appellant’s failure to preserve his objection to the manner in which the Commonwealth exercised its peremptory challenges precludes later review.

The question as to whether we should foreclose an issue because of the absence of a timely objection is not one of retroactivity but rather one of issue preservation. These are two mutually exclusive concepts. The determination of the retroactivity of a principle goes to the question of whether that principle is at issue in the case; i.e., its applicability to the trial in question. The question of issue preservation assumes the applicability of the principle but precludes consideration of that question because of procedural defects in the raising of the claim. The failure to interpose an objection is clearly the type of factor which raises a question of issue preservation and it is not one of the concerns relevant in a determination as to the appropriateness of retroactive application.

Commonwealth v. Hill, 492 Pa. 100, 105, 422 A.2d 491, 494 (1980) (Opinion in Support of Affirmance) (footnotes omitted) (emphasis added). In short, the failure to raise an issue, objection, or argument in a timely manner during trial forecloses further review of an alleged error in post-trial motions or at the appellate level. See: Commonwealth v. Horsey, 481 Pa. 470, 393 A.2d 1 (1978); Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976); Commonwealth v. Riley, 462 Pa. 190, 340 A.2d 427 (1975); Commonwealth v. Clair, supra.

The Supreme Court’s decision in Batson v. Kentucky, supra, did not announce a new constitutional right. That right had been established in 1965 by the Supreme Court’s decision in Swain v. Alabama. The Supreme Court’s decision in Batson merely relaxed the evidentiary burden on a defendant who claimed that the government’s peremptory challenges had been exercised in a racially discriminatory manner; it did not alter the right which had originally been recognized in Swain. Thus, when the jury was selected for appellant’s trial, he could have interposed a proper and viable objection to the manner in which the Commonwealth was exercising its peremptory challenges. Because he failed to object, his claim that the exercise of the Commonwealth’s peremptory challenges was racially discriminatory has been waived. Such waiver is not obviated by the retroactive application of Batson. Cf. Commonwealth v. McCormick, supra 359 Pa.Super. at 476, 519 A.2d at 450 (retroactive application of Batson limited to cases where the objection to Commonwealth’s use of peremptory challenges has been properly preserved).

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(1).

      . 75 Pa.C.S. § 3731(a)(4).

      . This subsection is as follows:
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

      . This subsection is as follows:
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of a person is 0.10% or greater.


author: OLSZEWSKI, Judge:

text:
    534 A.2d 515
    COMMONWEALTH of Pennsylvania, Appellee, v. David Thomas SHINN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1987.
    Filed Dec. 8, 1987.

      Richard L. Hughey, Media, for appellant.
    William R. Toal, III, Assistant District Attorney, Media, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered by the trial court which found appellant guilty of driving with a suspended driver’s license (75 Pa.C.S.A. § 1543). Appellant presents three issues for our review: (1) whether appellant’s driving privileges had been restored at the time he was charged with violation of 75 Pa.C.S.A. § 1543(b) (extension of existing suspension); (2) whether the Commonwealth failed to establish beyond a reasonable doubt that appellant had notice of the suspension of his operator’s license; and (3) whether the doctrine of equitable estoppel bars the Commonwealth from claiming that appellant was operating a motor vehicle while under license suspension. We find that appellant has failed to establish his entitlement to relief on any of these claims; accordingly, the judgment of sentence is affirmed.

Appellant was arrested on April 24, 1985 for driving while under the influence of alcohol. Although the charges arising from this arrest were ultimately dismissed, appellant’s operating privileges were nonetheless suspended for one year because appellant refused to take a breathalyzer test. On January 2, 1986, appellant was stopped for failure to stop at a stop sign. Upon checking with the Department of Transportation (“Department”), the police officer discovered that appellant’s driving privileges were suspended. A hearing was held before a district justice and appellant was found guilty. Appellant appealed to the trial court which found that appellant operated the vehicle with a suspended license and sentenced appellant to ninety days’ imprisonment and a $1,000 fine. This timely appeal followed.

Appellant first contends that his driving privileges had been restored and that on January 2, 1986 (the date appellant was charged with driving with a suspended driver’s license), he was not operating a vehicle with a suspended driver’s license. Specifically, appellant argues that his license had been restored because the district justice dismissed the charge under Section 1547(b) (suspension for refusal to submit to a chemical test) and the Department accepted his payment of the license restoration fee. We disagree.

First, the district justice’s dismissal of the criminal complaint against appellant did not affect the Department’s suspension of his operating privilege for violation of 75 Pa.C.S.A. § 1547(b). A driver’s operating privilege can be suspended pursuant to 75 Pa.C.S.A. § 1547 by the Department for refusal to submit to a chemical test regardless of the disposition of any criminal charges against the driver of the vehicle because the proceeding is civil and totally separate from the criminal proceeding. See Hando v. Commonwealth, 84 Pa.Commw. 63, 478 A.2d 932 (1984); Wisniewski v. Commonwealth, 73 Pa.Commw. 318, 457 A.2d 1334 (1983). See also 75 Pa.C.S.A. § 1547(b) (“... upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.”) (emphasis added). The trial court correctly addressed appellant’s contention by stating:

Contrary to the Defendant’s contention, the inclusion of the citation for a violation of 1547 on the criminal complaint was merely excess verbage [sic]. The police were not required to add this information to the complaint and the dismissal of the complaint had no effect on this charge. The statute shows that the entire procedure is an administrative step and does not contemplate an appearance before the District Justice.

Trial, ct. op. at 2.

Second, appellant’s payment of the restoration fee to the Department did not automatically restore his operating privilege. Section 1541 of the Vehicle Code provides:

(b) Eligibility for restoration of operating privilege.— Any person whose operating privilege has been revoked or suspended shall not be eligible for the restoration of the operating privilege until the expiration of the period of revocation or suspension.

75 Pa.C.S.A. § 1541(b) (emphasis added). In the instant case, appellant’s period of suspension was from May 13, 1985 until May 13, 1986. We find that the trial court correctly concluded that appellant’s payment of the restoration fee in August of 1985 did not alter the period of suspension on his operating privilege.

Appellant next contends that the Commonwealth failed to establish beyond a reasonable doubt that appellant had actual notice of the suspension of his operator’s license. Appellant maintains that he received the initial notice from the Department, dated May 13, 1985, but that he assumed his driving privilege had been restored since he believed that the district justice had dismissed the Section 1547(b) charge and that the Department had accepted his restoration fee. In essence, appellant argues that further notice of his suspension should have been given by the Department.

In order to attain a conviction under Section 1543(b), the Commonwealth must prove beyond a reasonable doubt that the defendant had actual notice of the suspension of his operator’s license. See Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985). In Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), our Supreme Court stated that evidence that a notice of suspension had been mailed, standing alone, is not sufficient to prove beyond a reasonable doubt that the defendant had actual notice of his suspension. “However, where there is additional evidence, for example that the defendant returned his license to the Bureau of Traffic Safety [Department] pursuant to 75 Pa.C.S. § 1541, then the evidence may be sufficient to demonstrate actual notice.” Martin, 346 Pa.Super. at 143, 499 A.2d at 351.

In the case at bar, we find that the trial court properly held that appellant had actual notice of his license suspension. First, appellant concedes, in his brief, that he received notice of the suspension from the Department in May of 1985. Secondly, appellant surrendered his license to the Department in response to the notice of suspension he received in May of 1985. Finally, appellant did not have his driver’s license when he was stopped for a traffic violation on January 2, 1986. Rather, appellant handed the police officer a New Jersey driver’s license in appellant’s name. The fact that appellant was driving without his license in January of 1986 indicates that he was aware of his legal inability to drive at that time. See Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), appeal denied, 514 Pa. 638, 523 A.2d 345 (1987). Appellant’s contention that the Department had a responsibility to give him a second notice of his license suspension is unfounded. Accordingly, we are satisfied that the trial court properly found that the Commonwealth proved beyond a reasonable doubt that appellant received actual notice of his suspension.

Appellant’s last contention is that the doctrine of equitable estoppel bars the Commonwealth from claiming that appellant was operating a motor vehicle while his operating privilege was suspended. Specifically, appellant maintains that the doctrine of equitable estoppel applies because the Department induced him into believing that the district justice dismissed the Section 1547(b) charge and that his driving privilege had been restored.

Appellant, however, fails to cite any authority applying the doctrine of equitable estoppel in a criminal matter. In Commonwealth v. Weddington, 514 Pa. 46, 522 A.2d 1050 (1987), our Supreme Court stated: “Laches is an equitable concept which has no place in the criminal law.” Id., 514 Pa. at 50, 522 A.2d at 1052. Similarly, equitable estoppel is a doctrine sounding in equity. See Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983). Accordingly, the doctrine of equitable estoppel has no place in the criminal law. For this reason, appellant’s claim must fail.

Judgment of sentence affirmed.

      . We note that the trial court entered judgment of sentence prior to the filing and disposition of post-trial motions. This Court has consistently condemned this practice since it is in contravention of established procedural law. See Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982); Commonwealth v. Straff, 295 Pa.Super. 205, 441 A.2d 421 (1982). The proper procedure is to permit a defendant to file timely post-trial motions after the verdict is rendered, but before sentence is imposed. See Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981); Comment to Pa.R.Crim.P. 1123.
      In the instant case, however, we find that appellant was not prejudiced by this procedural error. See Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987) (although trial court improperly pronounced verdict and sentence simultaneously, appellant was not prejudiced since appellant's post-trial motions were eventually ruled upon by the trial court). On April 14, 1987, the trial court permitted appellant to file post-trial motions nunc pro tunc and appellant filed a motion for new trial and a motion in arrest of judgment on that same day. We recognize that neither the docket entries nor the record contain an order disposing of appellant’s post-verdict motions. Nonetheless, we find it unnecessary to remand the case to the trial court for consideration of the merits of appellant’s post-trial motions since the trial court’s March 23, 1987 opinion addressed the arguments that appellant raised in his post-trial motions. Even though the trial court’s opinion was filed before appellant filed his post-trial motions, the trial court’s opinion disposes of the identical issues that were later raised in appellant’s post-trial motions.


author: CIRILLO, President Judge:

text:
    534 A.2d 518
    CENTURY NATIONAL BANK AND TRUST CO., Formerly The National Bank of Beaver County v. Daniel L. GILLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1987.
    Filed Dec. 3, 1987.

      Harvey W. Daniels, Monaca, for appellant.
    William H. McNees, Jr., Beaver Falls, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Beaver County denying appellant Daniel Gillin’s petition to set aside a sheriff’s sale of commercial property which he owned. We affirm.

Appellee (bank) filed a complaint in mortgage foreclosure against appellant (Gillin) and another individual (Fath) previously owning an interest in the subject property. Appellant did not respond to the bank’s complaint. The bank then sent a notice of intention to take a default judgment to Gillin in care of Rose Johnson with whom the bank had reason to believe Gillin was living. A default judgment was then entered against both guarantors of the note and a sheriff’s sale was scheduled. Notice was again sent to Gillin at Rose Johnson’s address. At the sale, Fath’s bid was accepted. Appellant filed a petition to set aside the sale eight days later alleging lack of notice of the sale and improper service. These arguments are advanced on appeal.

The bank timely filed an answer and new matter to the petition and, twenty-one days later when no further responsive pleading was forthcoming from Gillin, proceeded pursuant to Pa.R.C.P. 209(b) to file a praecipe to rule Gillin to proceed. The rule was returnable on October 22, 1986. Appellant filed an answer to the bank’s new matter on October 23, 1986. On November 20 the bank filed a praecipe to list the matter for argument on petition and answer, again citing Pa.R.C.P. 209(b), and requesting that all averments of fact responsive to the petition and properly pleaded in the answer and new matter be deemed admitted. Following argument, the order of the court was entered denying appellant’s petition. As a basis for deeming admitted under Rule 209 the facts in the bank’s response to the petition, including the averments contained in its new matter, the court’s opinion recites the fact that petitioner’s answer to new matter was filed one day after the rule returnable date. Key among these facts which the court deemed admitted were that petitioner had received notice both of the bank’s intention to take a default judgment and of the scheduled sheriff’s sale.

Appellant asks that we set aside the sale of his property because service of the notice of sheriff’s sale was not proper under Pa.R.C.P. 3129. Appellant argues that Rose Johnson, who signed the receipt for mail service, was neither an adult member of appellant’s household nor appellant’s authorized agent for service and that, therefore, appellant did not receive notice of the sale consistent with the policy reasons expressed in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), in light of which the notice provisions of Pa.R.C.P. 3129 were amended in March 1986. Appellee asserts that the fact of notice and proper service, as established by the court’s deeming such averments admitted pursuant to Pa.R.C.P. 209(b), estops the appellant from raising these issues.

This appeal presents a mixed question of law (deemed admissions pursuant to Pa.R.C.P. 209, 42 Pa.C.S.A.) and fact (denial of petition). This court, in reviewing the action of the trial court, must give appropriate deference to its determination, but is duty bound to modify erroneous applications of the law. 16 Standard Pennsylvania Practice 2d §§ 91:47, 91:48. Therefore, while the arguments advanced by appellant deal strictly with the merits of the trial court’s determination, the application of the law, specifically Pa.R. C.P. 209, is necessarily implicated as the matter was brought to hearing and the merits determined, at least in part, in accordance with Rule 209. Appeal was taken from denial of a petition to set aside a judicial sale, putting the validity of the order at issue on appeal. The docket is of record and may be properly considered by this court in determining whether the procedure followed, which culminated in the order to deny the requested relief, was proper, regardless of the merits of the case.

We find no abuse of discretion in the trial court’s determination of the merits. However, while it is certainly within the sound discretion of the trial court to decide the issues of notice and propriety of service, those issues must have been properly before the court for decision. In this case we find the action of the trial court to have been premature. This procedural error was not prejudicial to the interests of appellant and was, therefore, harmless.

The procedure relied upon by appellee in putting the issue before the court, and by the court in deciding the merits of appellant’s petition, is set forth in Pa.R.C.P. 209 which reads:

Rule 209. Duty of Petitioner to Proceed After Answer Filed
If, after the filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

In the instant case the bank filed its answer and new matter in response to appellant’s petition on September 11, 1986. Twenty-one days later, having had no response from the appellant, the bank sought and was granted as of course a rule to show cause why the moving party should not proceed, which rule was returnable October 22, 1986. Appellant took no action by that date and did not respond to the rule thereby waiving the hearing required by Pa.R.C.P. 209(b). At this point the rule should have been either discharged or made absolute, presumably at the behest of the bank, in accordance with local practice. The issuance of a rule to show cause why a party should not take certain action does not compel the party to take such action until the rule is made absolute. 56 Am.Jur.2d § 34; 3 Standard Pennsylvania Practice 2d § 15:39. A rule must be caused to be made absolute; it is not self-executing. Had it been made absolute, appellant would have had fifteen days to proceed with the taking of depositions or to list the matter for argument on petition and answer. Failure of appellant to do so would have entitled appellee to the relief later requested of and granted by the trial court pursuant to Pa.R.C.P. 209(b), namely to deem admitted all properly pleaded averments of fact responsive to the petition. Triffin v. Thomas, 316 Pa.Super. 273, 462 A.2d 1346 (1983).

The trial court deemed the appellee’s facts admitted because appellant’s answer to the bank’s new matter was not filed until one day after the rule returnable date. This was error in that the rule to show cause obtainable of course under Pa.R.C.P. 209 does not contemplate the filing of responsive pleadings, only the taking of depositions or listing for argument. In fact, such a rule is not available until fifteen days after the close of the pleadings. Just as “petition and answer” as used in Rule 209 refers to the pleadings used to raise the issues for determination by the court, “answer” denotes all pleadings responsive to the petition. It is an impermissive and hypertechnical interpretation of “answer” in Rule 209 to permit the taking of a rule to show cause prior to the close of the pleadings. Further, such an interpretation in a case where new matter is appended to the answer triggers the mechanisms of Rule 209 prematurely. Pleadings are concerned with identifying disputed facts; Rule 209 is designed to come into play thereafter to prevent delay in a determination of the merits by placing on the moving party a duty to submit the case for argument on the pleadings or to take depositions as to such facts as are disputed.

These errors in proceeding to put the matter before the trial court led to the erroneous admission of the facts of the bank’s response to the petition. Acceptance of these facts effectively foreclosed appellant’s contentions regarding notice and service, despite oral argument on the merits, and we believe the court’s consideration of these admitted facts to have been dispositive of the petition.

However, we find the errors in this case harmless for the following reasons: First, the misimpression of the correct procedure under Rule 209 seems to have been shared by both parties. Second, irregularity in the bank’s procedure is not specifically raised on appeal. Third, because of the timing of the bank’s various filings, appellant had as much time at each stage of the process as Rule 209 allows. Specifically, if both parties presumed the rule returnable date marked the end of the period during which appellant could respond (a view erroneously endorsed by the court), appellant had more than the requisite fifteen days to take the action called for in Rule 209. He took no action and, therefore, the listing for argument by the bank did not in any way prejudice appellant’s case. Fourth, despite the fact that petitioner’s answer to the bank’s new matter was not timely filed (42 days after the filing of the answer and new matter) the 20-day time limit for the filing of responsive pleadings, Pa.R.C.P. 1026(a), is not mandatory and a late filing may be permitted at the trial court’s discretion where the opposing party will not be prejudiced and justice so requires. Pa.R.C.P. 126; Urban v. Urban, 332 Pa.Super. 373, 481 A.2d 662 (1984). The record reflects the filing of appellant’s answer to new matter. The bank did not move pursuant to Rule 1017(b)(2) to have the pleading stricken. The trial court did not specifically disallow the filing, and, in fact, permitted argument on the issues raised therein. It appears from the court’s opinion that consideration was given to all issues raised in all of the pleadings.

The order of the Court of Common Pleas of Beaver County is affirmed.

      . This rule was termed "Rule to Proceed” by the bank and this phrasing may be, in part, responsible for the subsequent error in procedure under Pa.R.C.P. 209. We note in passing that this misconception appears to be shared by at least one procedural rules service. 1 Goodrich-Amram 2d § 209.3.

      . Appellant states that this pleading was mailed to the prothonotary on October 22, 1986. While mailing is permitted, Rule 205.1 clearly provides that such a document is not "filed" until received. The docket reflects receipt and filing on October 23, 1986.

      . Pursuant to Pa.R.C.P. 1017, "pleadings” includes new matter and an answer thereto.

      . See 1 Goodrich Amram 2d § 209:2, n. 96.


author: ROWLEY, Judge:

text:
    534 A.2d 522
    Shelby WASHKO, Appellant, v. Alan Lee PLATZ.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1987.
    Filed Dec. 4, 1987.

      Thomas S. Talarico, Erie, for appellant.
    Will J. Schaaf, Erie, for appellee.
    Before ROWLEY, DEL SOLE and JOHNSON, JJ.
   ROWLEY, Judge:

This is an appeal from an order sustaining the defendant’s preliminary objections, striking off the plaintiff’s complaint, and dismissing the plaintiff’s “suit.” We affirm in part and reverse in part.

Plaintiff/appellant was injured in an automobile accident. Her attorney, a licensed lawyer in the state of Ohio, filed a complaint on her behalf in Erie County, Pennsylvania against defendant/appellee. The defendant was served, and his counsel filed preliminary objections in the nature of a motion to strike off the complaint because of lack of conformity to law or rule of court. Defendant argued that there were three defects in the complaint: 1) the complaint demanded relief for a specific dollar amount rather than in an unspecified amount that was either more or less than $10,000 in violation of Pa.R.C.P. 1021; 2) the complaint was not endorsed with the name and address of an attorney within the Commonwealth in violation of Pa.R.C.P. 1025; and 3) the complaint was not properly verified as required by Pa.R.C.P. 1024.

Within fifteen days after the preliminary objections were filed and sent by defendant’s counsel to plaintiff’s Ohio counsel in Cleveland, an appearance was entered on plaintiff’s behalf by an Erie County law firm, and an amended complaint correcting the defects in the original complaint was filed. Defendant then filed supplemental preliminary objections in which the original preliminary objections were incorporated and an additional averment was included stating that since the initial complaint was a “nullity,” the amended complaint could not carry the same term and number as the initial complaint.

Following oral argument, the trial court made an order granting the defendant’s motion to strike off the complaint and dismissing the suit. The trial court also filed an opinion in which he stated that failure to have the complaint endorsed with the name and address of an attorney licensed to practice law in Pennsylvania rendered the initial complaint a nullity and for this reason he dismissed the complaint. This appeal followed.

The issue before us on appeal is one of first impression for an appellate court of this Commonwealth: does the endorsement of a complaint filed in Pennsylvania by an attorney authorized to practice law in a jurisdiction other than Pennsylvania constitute a substantive defect thereby rendering the complaint a nullity and subject to dismissal, or is the error a formal one only and therefore curable?

The rule in question provides as follows:

Every pleading of a party represented by an attorney shall be endorsed with the name of the attorney, and every pleading of a party not represented by an attorney shall be endorsed with the name of the party, together in each case with an address within the Commonwealth.

Pa.R.C.P. 1025. The sole purpose of this rule is to provide an address to the defendant to which further pleadings can be mailed. Goodrich Amram 2d § 1025:1. Failure to comply with the rule, therefore does not substantively affect the complaint.

Especially on the facts of this case, the failure to comply with Rule 1025 is only a formal defect. There is no question that an address for service of subsequent pleadings was included in the complaint. Also there can be no question that counsel for appellee was able to and did send his preliminary objections to the address included in the complaint, and they were received. Therefore, the purpose of Rule 1025 was satisfied, even though there was not formal compliance with the rule. We conclude that the defect was strictly a formal one, and as such, it should be curable.

Not only do we conclude that the failure properly to endorse the complaint is a curable, formal defect, but we also are unpersuaded that an endorsement by an attorney not licensed to practice in the Commonwealth renders the complaint a nullity. Some of the authority (which is not binding authority for this Court) cited by appellee and the trial court to support the conclusion that the original complaint was a nullity is distinguishable on its facts. For example, in Dauphin County Bar Association v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976), nowhere does the Court even suggest that proceedings conducted by lay persons are a nullity. Rather, in Mazzacaro, the Court simply held that a casualty adjuster was not authorized by his casualty adjuster’s license to conduct settlement negotiations for third party claimants against tortfeasors, and that such conduct by the adjuster, who was not an attorney, constituted the unauthorized practice of law. For this reason, the injunction barring the adjuster from conducting the negotiations was affirmed. Similarly, In the Matter of Arthur, 15 B.R. 541 (E.D.Pa.1981), Winters v. Sheporwich, 83 D & C 484 (1952), and Blair v. Motor Carriers Service Bureau, Inc., 40 D & C 413 (1939), are distinguishable because all involved the performance of legal services by someone other than an attorney unlike the case before us. Moreover, in at least two cases, Pennsylvania trial courts have granted leave to amend where the only defect is that someone other than an attorney licensed to practice in Pennsylvania and having an address within the county where the action was brought has been representing a party. Riverside Foundry, Inc. v. Poe Machine & Engineering Corp., 3 D & C 2d 379 (1955); Goldstein v. Marriott, 14 D & C 635 (1930).

Appellee has not suggested any compelling reason for the conclusion that when an attorney licensed to practice law in a sister state endorses a complaint filed in Pennsylvania, that the complaint must be considered a nullity and stricken without any opportunity to amend the complaint by correcting the defect. We recognize that it is appellee’s contention that unless an attorney is authorized to practice law in Pennsylvania, any actions taken by him on behalf of another in the Pennsylvania courts is the unauthorized practice of law, and therefore, those actions must be considered a nullity. Because they are a nullity, there can be no amendment; rather the case must begin anew.

While appellee is correct that an attorney licensed to practice law only in a sister state is prohibited from practicing law in Pennsylvania unless a license to practice in Pennsylvania is obtained, there is no Pennsylvania appellate authority to support the conclusion that a complaint filed in Pennsylvania by such an attorney must be considered a nullity and that no opportunity to amend the defect can be provided. Considering that the Rules of Civil Procedure are to be liberally construed, Pa.R.C.P. 126, we hold that where an attorney licensed to practice law in a foreign jurisdiction endorses a complaint filed in Pennsylvania, and consequently, the form of the complaint is not in compliance with Pa.R.C.P. 1025, the formal defect in the complaint does not render it a nullity; rather, the complaint may be amended to correct the defect. Only if the defect is not cured after an opportunity to amend the complaint has been provided, may the complaint be stricken.

In the case before us, the trial court was correct in determining that the original complaint contained a formal defect, i.e., endorsement by a foreign attorney. Therefore, to the extent that the court’s order directed that the original complaint be stricken, the order is affirmed. However, the trial court should not have granted the preliminary objections to the amended complaint, stricken the amended complaint, and dismissed the “case.” Therefore, to the extent that the trial court’s order struck the amended complaint, the order is vacated.

That portion of the order striking the original complaint is affirmed; that portion of the order striking the amended complaint and dismissing the “case” is vacated. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.


author: KELLY, Judge: HOFFMAN, Judge,

text:
    534 A.2d 524
    COMMONWEALTH of Pennsylvania v. Ruben MASCITTI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1987.
    Filed Dec. 2, 1987.

      Michael D. Mason, Assistant Public Defender, Meadville, for appellant.
    John M. Dawson, District Attorney, Meadville, for Com., appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

Appellant, Ruben Mascitti, appeals from judgment of sentence of ten to twenty years imprisonment imposed upon his conviction of involuntary deviate sexual intercourse, statutory rape, corruption of minors, and endangering welfare of children following a jury trial.

Appellant contends on appeal that: 1) the trial court erred in failing to quash the charges of corruption of minors and endangering the welfare of a child based upon the alleged expiration of the statute of limitations period for the offenses; 2) the trial court erred in sua sponte vacating appellant’s negotiated nolo contendere plea; and 3) the trial court abused its discretion in denying appellant’s trial counsel’s motion for declaration of a mistrial and for permission to withdraw as counsel following an in-chambers hearing regarding counsel’s belief that appellant intended to commit perjury. We find no merit in the contentions and accordingly affirm.

The details of this case may be briefly stated as follows. Appellant married the victim’s mother in 1975, when the victim was three years old. In November 1979, appellant began sexually abusing his then six-year-old step-daughter. The abuse occurred in the family home in Crawford County, Pennsylvania, and included acts of intercourse and oral sex.

In September 1982, appellant moved to Florida to seek employment. One month later, his wife and the child victim joined him in Florida. In December 1983, the child victim and her mother came to Pennsylvania intending to make a brief visit; however, the visit became an extended stay. In June 1984, the child victim revealed to her mother the facts regarding the repeated sexual abuse inflicted upon her by her stepfather. Charges were filed against appellant in July 1984, and appellant returned to the Commonwealth for arraignment in August 1984.

Appellant initially entered a plea of nolo contendere to the charges on January 15, 1985. Sentence was deferred until completion of a pre-sentence report. On February 5, 1985, following review of the pre-sentence report and examination of the appellant regarding assertions of innocence made by appellant to the probation officer, the trial court sua sponte vacated appellant’s plea and scheduled the case for trial.

An in-chambers hearing was held prior to trial during which counsel for appellant informed the trial court that he had reason to believe that appellant intended to take the stand and commit perjury. The court then proceeded to question appellant. Apparently unsatisfied with appellant’s responses, the court directed that counsel continue representation but that appellant would have to testify by narrative rather than direct examination if appellant chose to testify at trial. The trial court also admonished appellant regarding the consequences of committing perjury. Counsel’s motions for declaration of a mistrial and for permission to withdraw as counsel were denied. Trial commenced, and appellant chose not to testify in his own defense. A verdict of guilty was returned. Post-verdict motions were denied. Sentence was imposed, and the instant timely appeal followed.

I.

Appellant first contends that the trial court erred in failing to quash the charges of corruption of minors and endangering the welfare of children based upon the alleged expiration of the statute of limitations period. Appellant argues that although he was in fact continuously absent from the Commonwealth from September 1982 to July 1984, the running of the statute of limitations period was not tolled by operation of 42 Pa.C.S.A. § 5554(1), because appellant left the Commonwealth legitimately to seek new employment in Florida and not to escape prosecution, and at no time did he seek to hide his identity or whereabouts. (Appellant’s Brief at 13). We cannot agree.

Appellant’s argument assumes the existence of a mens rea or motivation exception or limitation to Section 5554(1) of the statute of limitations tolling statute, which we do not find in the plain language of the statute:

§ 5554. Tolling of statute.
Except as provided by section 5553(e) (relating to disposition of [summary] proceedings within two years), the period of limitation does not run during any time when:
(1) the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth; ____

Rather, the plain and unambiguous language of the statute provides that the statute of limitation period is tolled whenever an accused is continuously absent from the Commonwealth.

We have neither the authority nor the inclination to adopt the novel theory propounded by appellant. “Where as here, the words of the statute are clear, the letter thereof will not be disregarded under the pretext of pursuing an unstated legislative intent. 1 Pa.C.S.A. § 1921(b); City of Pittsburgh v. Royston Service, Inc., 37 Pa.Cmwlth. 394, 390 A.2d 896 (1978).” Commonwealth v. Duncan, 279 Pa.Super. 395, 398, 421 A.2d 257, 259 (1980). Appellant’s first contention is without merit.

II.

Appellant’s second contention is that the trial court erred in sua sponte vacating appellant’s plea of nolo contendere based upon appellant’s denial during an interview with a probation officer for the preparation of the pre-sentence report of sexual contact with the child victim, and appellant’s election not to respond to the court’s inquiry as to whether the denial had been made and whether there was in fact a factual basis for the plea. Appellant argues that regardless of what appellant said to the probation officer, the plea should not have been vacated because a plea of nolo contendere does not involve an admission of guilt even though the plea subjects the appellant to conviction and imposition of sentence as if a guilty plea had been entered. (Appellant’s Brief at 15). We do not agree.

The entry and acceptance of plea agreements is governed by Pa.R.Crim.P. 319 which provides in pertinent part:

Rule 319. Pleas and Plea Agreements

b) Plea Agreements
(1) The trial judge shall not participate in plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

(Emphasis added).

The decision of whether to accept or reject a plea agreement is within the sound discretion of the trial court. Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975); Pa.R.Crim.P. 319(b)(3). The trial court concluded that the plea had been improvidently accepted and decided to vacate the plea agreement. We find no abuse of the trial court’s sound discretion in this area. Appellant’s second contention is, therefore, without merit.

III.

Appellant’s third and final contention is that the trial court erred in failing to grant trial counsel’s motion for the declaration of a mistrial and for permission to withdraw as counsel. Appellant contends that the trial court’s order denying counsel’s motion for a mistrial effectively denied him his right to testify on his own behalf. He argues that: the order improperly bound him to his plea negotiation version of the facts; he did not indicate during the in-chambers hearing that he intended to commit perjury; as a result of the ruling at the hearing, he was uncertain as to what he could testify to without risking perjury charges; because trial commenced immediately after the hearing, he was unable to seek effective assistance of counsel regarding whether he should testify; trial strategy was hindered by the uncertainty as to whether appellant would testify; and, the admissions disclosed during plea negotiations should not have been used against appellant as the basis for the order imposed. (Appellant’s Brief at 18-23). We find no merit in appellant’s arguments in support of this contention.

A.

After a jury was selected, but prior to opening argument, appellant’s trial counsel requested an in-chambers hearing with the judge, appellant, co-counsel, and both counsel for the Commonwealth. At this hearing, counsel for appellant disclosed that appellant had informed him that he intended to take the stand and deny all sexual contact with the child victim (just as he had done earlier when interviewed by the probation officer drafting the pre-sentence report). However, during plea negotiations appellant had authorized counsel to reveal to the Commonwealth confidential admissions made by appellant which were in direct conflict with a claim of complete innocence. (N.T. 3/12/85 at 3-7). Counsel concluded that appellant’s proposed testimony was, therefore, perjurious. Appellant did not deny making the statements to counsel indicating that some sexual contact had occurred, nor did he deny telling counsel he intended to take the stand and deny all sexual contact. Following an extended discussion with appellant regarding his proposed testimony, the trial court concluded as follows:

All right. We’ve got to go forward with this matter in some manner. So here’s what we’re going to do. I’m going to try to protect Mr. Truax. I’m going to protect your rights as much as possible. But we’re in somewhat of a bind under the circumstances. I don’t know what you’re going to testify to. You have told me today that you did tell and that it, in fact, was true that you had sexual contact, including probably an admission of the statutory rape charge, although denying the deviate intercourse.
Now we’ll go ahead with this trial. I’m not going to require Mr. Truax to call you as a witness since he can’t be sure whether you’re going to testify until you’ve testified whether you’re going to testify truthfully or not under the circumstances. I will permit you to testify. And it’s entirely up to you what you want to testify to, I suppose, although I don’t recommend perjury. And I’m sure that the District Attorney, if he feels that you have perjured yourself, will charge you with that and you’ll have those additional charges to face.
But in order to protect Mr. Truax, if you decide to testify, you will testify in a narrative form. In other words, he can just say, ‘You tell your story,’ and you can tell it. And if you tell a story which is untruthful when compared with what you have said here today, I will not permit Mr. Truax to argue that version to the jury.
I know that somewhat ties his hands as counsel. But on the other hand, I don’t think that I can let him argue something that you have admitted isn’t true if you so testify. If you want to take the stand and tell the truth, he can argue anything he wants to from your testimony. The truth as it has been developed here. I’m accepting this as the true version.

(N.T. 3/12/85 at 12-13). (Emphasis added).

Counsel for appellant then made the following motion:

MR. THOMAS: I would on behalf of Mr. Truax, I would ask the Court to consider that the jury has been sworn in this case and to declare a mistrial and relieve Mr. Truax as counsel for the defendant in view of the testimony that has developed in this hearing.
THE COURT: I’m going to deny that request because we don’t know what Mr. Mascitti is going to do when he takes the stand at this point or whether he’s going to take the stand. I’m just cautioning him on what’s going to happen if he does, and depending on the way he testifies. The jury has not yet been sworn and I suppose we could dismiss them. But I’m not going to do that. The victim in this case has gone through preparing herself I suppose to some degree psychologically to testify at least on two occasions. And I think it would be grossly unfair to her to do anything else. I think I’m adequately protecting Mr. Truax, and certainly, if the Disciplinary Board goes after him, I’ll go to bat on his behalf because I think he has acted totally properly in this matter.

(N.T. 3/12/85 at 14-15). It is the denial of this motion which forms the basis for appellant’s third contention on appeal.

B.

Appellant’s assertion that the trial court bound appellant to his plea negotiation version of the facts is clearly not supported by the record. The trial court indicated that despite minor discrepancies between appellant’s plea negotiation and in-chambers hearing versions of the facts, the court was prepared to permit appellant’s in-chambers hearing version to be presented to the jury and to permit counsel to use such evidence in closing argument.

The order requiring appellant to testify by narrative and the admonishment by the court regarding potential perjury charges was based on the court’s conclusion that despite appellant’s in-chambers hearing testimony, neither counsel nor the court could be certain of what appellant would say if he took the stand. Despite appellant’s qualified admissions during plea negotiations and also at the in-chambers hearing to sexual contact with the victim, appellant had denied all sexual contact to the probation officer drafting the pre-sentence report and had informed counsel prior to trial that he would deny all sexual contact when he testified. The court quite reasonably concluded that it would not know what version of the facts appellant would testify to until appellant testified.

Under Pennsylvania law, “in all criminal prosecutions for criminal offenses a man hath a right to be heard by himself and counsel.” Pa.Const. Art. I, sec. 9; Commonwealth v. Osborn, 364 Pa.Super. 505, 510 n. 1, 528 A.2d 623, 625 n. 1 (1987). Undeniably, an accused has a constitutional right to effective representation by learned counsel who knows and will protect the accused’s rights zealously; however, our system also requires that lawyers act ethically, within the bounds of the law, so that they may be perceived as officers of the court who are committed to the proper administration of justice, and not as subverters of justice. See Commonwealth v. Stenhach, 356 Pa.Super. 5, 13, 514 A.2d 114, 118 (1986). It is axiomatic that the right to effective counsel does not include the right to compel counsel to knowingly assist or participate in the commission of perjury or the creation of false evidence. Commonwealth v. Alderman, 292 Pa.Super. 263, 269, 437 A.2d 36, 39 (1981); accord Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

The dilemma created by an appellant who informs counsel of his intent to present perjurious testimony has engendered active debate in the legal profession. We limit our review, however, to the narrow issue presented instantly— whether the trial court abused its discretion in directing appellant to testify (if at all) by the narrative approach rather than declaring a mistrial, permitting counsel to withdraw, and appointing new counsel. The narrative approach utilized by the trial court in this case has been used with approval in the courts of our sister states. See State v. Fosnight, 235 Kan. 52, 679 P.2d 174 (1984); People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 (1980); People v. Lowery, 52 Ill.App.3d 44, 366 N.E.2d 155 (1977). We find no abuse of discretion in the trial court’s decision to direct that the narrative approach be followed in the instant case.

We note that declaring a mistrial, permitting withdrawal of counsel and providing appointment of new counsel in the instant case could not resolve the ethical dilemma created by appellant’s erratic, pendulum shifts between qualified admissions of guilt and outright denials of all sexual contact with the child victim. Consequently, grant of the motion for withdrawal of counsel and declaration of a mistrial would merely have shifted the dilemma from present counsel to new counsel, and would have unduly prolonged the adjudication process and its deleterious effects on the child victim. See generally Meyers, The Legal Response to Child Abuse, 24 Fam.L.J. 149, 182-84 & nn. 109-112 (1986) (discussing the need to minimize the trauma caused by the drawn out criminal adjudication process); Arther, Child Sexual Abuse, Vol. 37, No. 2, Juv. & Fam. Ct.J. 1, 30-31 (1986) (same). The trial court quite properly rejected this approach.

C.

Appellant argues that as a result of the ruling: he was uncertain as to what he could testify to without risking perjury charges; he was unable to seek guidance from counsel; and counsel’s strategy was hindered by the uncertainty as to whether he would testify. These arguments are of dubious relevance to the issue of whether the motions for mistrial and withdrawal of counsel were properly denied; they are, in any event, without any merit.

The following excerpts from the hearing transcript are demonstrative of the clarity of the trial court’s ruling: If you want to take the stand and admit that you had sexual contact and explain whatever mitigating circumstances you feel existed you may do that.

******
I don’t know what you are going to testify to. You have told me today that you did tell it and that it, in fact, was true that you had sexual contact, including probably an admission of the statutory rape charge, although denying the deviate intercourse.
******
I will permit you to testify. And it’s entirely up to you what you want to testify to, I suppose, although I don’t recommend perjury. And I’m sure that the District Attorney, if he feels that you have perjured yourself, will charge you with that____
******
If you want to take the stand and tell the truth, [counsel] can argue anything he wants from your testimony. The truth as it has been developed here. I’m accepting this as the true version.

(N.T. 3/12/85 at 9, 12-13). We note that appellant did not express any of his alleged uncertainties on the record during the hearing. Similarly, there is no indication appellant expressed his alleged uncertainties to counsel.

It is the accused’s decision whether to testify or to remain silent. Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 227 n. 4, 520 A.2d 424, 431 n. 4 (1987). In making this decision, an accused cannot reasonably expect counsel to anticipate every desire, question, or misapprehension of fact which might linger unexpressed in his client’s mind; we will not find counsel ineffective for failing to answer questions which were never asked. Cf. Commonwealth v. Johnson, 355 Pa.Super. 123, 136, 512 A.2d 1242, 1249 (1986). This is not a case where an accused’s questions went unanswered, or where a necessary continuance for consultation regarding unforeseen developments was denied. Any doubt or uncertainty experienced by appellant was the result of his failure to present his questions to the court or to counsel, and not the result of the trial court’s order.

We reject utterly any notion that the trial court’s order created uncertainty as to whether appellant would testify. To the contrary, the trial court merely presented appellant with clear options and the consequences attendant thereto. Any uncertainty as to whether appellant would testify was solely the product of indecision and vacillation by appellant, not the order of the trial court. Moreover, we note that appellant has not indicated any specific manner in which trial tactics were hindered. Cf. Commonwealth v. Duffy, 355 Pa.Super. 145, 156, 512 A.2d 1253, 1258-59 (1986) (we reject appellant’s cryptic allegation of “tactical disadvantage.”).

D.

Finally, appellant argues that the admissions which appellant consented to disclose to the Commonwealth during plea negotiations should not have been permitted to be used against him after the plea agreement had been rejected by the trial court. Dictum in previous decisions of this Court indicate that admissions made during the course of plea bargaining are not admissible against the accused at a later trial as evidence of guilt if no bargain is struck or if the bargain is rejected by the trial judge. See Commonwealth v. Wolf, 353 Pa.Super. 483, 510 A.2d 764 (1986); Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983); Commonwealth v. Cohen, 133 Pa.Super. 437, 2 A.2d 560 (1938).

In Commonwealth v. Calloway, supra, this Court explained its approval of the prohibition based upon the public policy of encouraging plea bargaining. This Court noted, however, that the rule was limited to cases where the accused made the statement under an actual and reasonable expectation to negotiate a plea at the time of the discussion. In both Commonwealth v. Calloway, supra, and Commonwealth v. Wolf, supra, this limitation was found not to have been met.

Appellant’s argument does not require this Court to pass upon the dictum in Cohen, Calloway, and Wolf In the instant case, the admission was considered solely for the purpose of determining the validity of counsel’s assertion that withdrawal was necessary because his client intended to commit perjury. Whether or not appellant’s admission was admissible at trial as evidence of appellant’s guilt, or subsequently in a potential perjury trial, we find that neither the rule, nor the public policy which the rule is presumed to advance, warrant expansion of the rule to apply to the instant case. Succinctly, the public’s arguable interest in promoting plea negotiations is not of sufficient magnitude to warrant suppression of the statements made during plea negotiations when the result of suppression would be to compel an attorney to be an unwilling participant in an accused’s perjurious designs. Thus, even if we were to assume, arguendo, that appellant’s argument was relevant to the issue of whether the trial court abused its discretion in failing to grant counsel’s motion for a mistrial and to permit withdrawal as appellant’s counsel, we would find the argument to be without merit. Each of appellant’s arguments have been rejected; the third and final contention on appeal is found to be without merit.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed.

HOFFMAN, J., files concurring and dissenting opinion.

HOFFMAN, Judge,

concurring and dissenting:

I concur in the majority’s finding that the lower court properly denied appellant’s motion to quash. I dissent, however, from the determination that the lower court properly vacated, sua sponte, appellant’s plea of nolo contendere. Accordingly, I would reverse the judgment of sentence, and remand the case to the trial court for reinstatement of appellant’s nolo contendere plea and resentencing. Because I would order the lower court to reinstate the plea, I would find it unnecessary to address appellant’s final contention.

Appellant contends that the lower court erred in vacating his previously-accepted plea of nolo contendere because it based its order on appellant's failure to admit his involvement in the offense. He argues that even though a plea of nolo contendere subjects him to sentencing as «/he pleaded guilty, such a plea “does not require an admission of guilt by the defendant.” For the reasons that follow, I agree and would find that the lower court erred in imposing a requirement that an appellant must admit to the existence of a factual basis for the crimes charged to be entitled to preserve a plea of nolo contendere. Accordingly, I would hold that the lower court abused its discretion in vacating the plea.

On January 15, 1985, appellant appeared before the Honorable P. Richard Thomas, President Judge of the Court of Common Pleas of Crawford County. Pursuant to a plea arrangement, appellant entered a plea of nolo contendere to charges of statutory rape and corruption of minors. When asked by the court whether he knew what a plea of nolo contendere meant, appellant replied: “It means that I am not admitting the charges, but I don’t have a defense against them.” N.T. January 15, 1985 at 9. Appellant’s plea was accepted, and sentencing was deferred pending completion of a pre-sentence report.

On February 5, 1985, appellant appeared before the Honorable Robert L. Walker for sentencing. After reviewing the pre-sentence report and questioning appellant, the sentencing court determined that appellant’s plea had been improvidently accepted by President Judge Thomas. The court then issued an order, sua sponte, striking the nolo contendere plea and scheduling the case for trial.

In its opinion, the sentencing court made plain that the only reason it vacated the nolo contendere plea was because appellant refused to admit to a factual basis for the crimes charged. The court noted that, “a review of the pre-sentence investigation indicated that defendant had told the investigator that he had had no sexual contact whatever with the victim.” Lower Court Opinion at 2. The court reasoned that this denial disentitled appellant to the benefit of the plea:

We were quite frankly reluctant to sentence someone to prison who denied any involvement with the crime____ Since the defendant refused to either admit or deny his involvement in the offense which he was free to do, we vacated his plea, refused to impose sentence and permitted him to stand trial.
... [W]e still feel a great reluctance to sentence a defendant who flat out denies his involvement.

Id. In requiring that appellant admit to a factual basis, the sentencing court treated the nolo contendere plea as if it were equivalent to a guilty plea.

The majority, without discussion, holds that the sentencing court did not abuse its discretion in vacating the plea agreement. The majority thus implicitly approves of the court’s determination that a defendant must admit to a factual basis for the crime charged in order to preserve a nolo contendere plea. I disagree with the conclusion that the court can require a defendant to provide such a factual basis.

A plea of nolo contendere is one “by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.” North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 166, 27 L.Ed.2d 162 (1970) (footnote omitted); Commonwealth v. Boyd, 221 Pa.Superior Ct. 371, 373-74, 292 A.2d 434, 435 (1972) (quoting Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347 (1926)). See also 2 W. LaFave & J. Israel, Criminal Procedure § 20.4, at 636 (1984) (plea LaFave & J. Israel, Criminal Procedure § 20.4, at 636 (1984) (plea of nolo contendere is device by which defendant may assert that he or she does not want to contest issue of guilt or innocence). “Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency.” North Carolina v. Alford, supra at 35 n. 8, 91 S.Ct. at 166 n. 8. See also Commonwealth ex rel. Warner v. Warner, 156 Pa.Superior Ct. 465, 466, 40 A.2d 886, 887 (1945) (plea of nolo contendere is implied confession of guilt only). Such a plea may not be entered as a matter of right; the plea “must be accepted and approved by the trial judge.” Commonwealth v. Boyd, supra, 221 Pa.Superior Ct. at 373, 292 A.2d at 435. See also Pa.R.Crim.P. 319.

Once the plea has been accepted by the trial judge, “it is not the province of the court to occupy itself with the question of guilt or innocence.” Commonwealth v. Boyd, supra, 221 Pa.Superior Ct. at 374, 292 A.2d at 435. The effect of such a plea upon the case, however, is equivalent to that of a guilty plea. Id. See also 2 W. LaFave & J. Israel, supra § 20.4, at 637. Thus, “[cjonviction and sentence [may] follow upon it in the same manner as upon a plea of guilty — ” Commonwealth v. Smith, 151 Pa.Superior Ct. 113, 130, 30 A.2d 339, 346 (1942). Moreover, “[t]he procedures for receiving the plea are the same, the defendant may receive the same sentence, and the nolo plea is like a guilty plea in terms of its finality, its effect as a waiver of claims unrelated to the plea, and the circumstances in which withdrawal of the plea would be permitted.” 2 W. LaFave & J. Israel, supra (footnotes omitted).

Here, appellant entered a plea of nolo contendere. The colloquy between President Judge Thomas and appellant demonstrates that appellant understood precisely the nature of this plea. The court then accepted the plea. Under Pennsylvania law, the plea operated as an implied admission of guilt, see, e.g., Commonwealth ex rel. Warner v. Warner, supra, and thus subjected appellant to conviction and sentence. Commonwealth v. Smith, supra. Unlike a guilty plea, however, once appellant’s plea was accepted, the lower court could not inquire further regarding whether a factual basis existed for the plea. Commonwealth v. Boyd, supra. Accordingly, I would hold that the lower court abused its discretion in vacating the plea simply because appellant refused to admit his guilt both in the pre-sentence report and in open court.

Moreover, I note that even if Pennsylvania law permitted the court to seek to establish a factual basis for a plea of nolo contendere, I would hold that the court erred in requiring the defendant himself to establish the basis by direct admission. As LaFave and Israel have noted, even in those jurisdictions that require that a factual basis be established, “the factual basis must be established other than by direct inquiry of the defendant.” 2 W. LaFave & J. Israel, supra § 20.4, at 637 n. 9. See also North Carolina v. Alford, supra at 35 n. 8, 91 S.Ct. at 166 n. 8 (under federal rules, requirement that factual basis exist applies only to guilty pleas; “it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt”). The rationale for the distinction is obvious: if a defendant were required to admit guilt directly, it “would nullify the benefit of the nolo plea.” 2 W. LaFave & J. Israel, supra.

For the foregoing reasons, I would reverse the judgment of sentence, and remand the case to the trial court for reinstatement of appellant’s nolo contendere plea and re-sentencing.

      . We note that appellant has not challenged, the record does not disclose, and we do not consider the adequacy of the steps counsel took prior to bringing the perjury issue to the attention of the court. We note that in Nix v. Whiteside, supra, the United States Supreme Court stated that it is universally accepted that before taking any other action, counsel should attempt to dissuade the client from the unlawful course of conduct. 475 U.S. at 169, 106 S.Ct. at 996, 89 L.Ed.2d at 136. The transcript of the in-chambers hearing does refer to a limited waiver of confidentiality in connection with the in-chambers hearing, but provides no details regarding the waiver. (N.T. 3/12/85 at 3).

      . Commonwealth v. Cohen, supra, was decided upon other grounds; the discussion of the rule was purely dictum. See Commonwealth v. Calloway, supra, 459 A.2d at 799. In both Commonwealth v. Calloway and Commonwealth v. Wolf, this Court found that the admissions at issue were not, in fact, made under the actual and reasonable expectation that a plea was being negotiated. Thus, the cases constitute persuasive rather than binding precedential authority in Pennsylvania. The rule and its application continues to engender active debate. See State v. Boyle, 198 N.J.Super. 64, 486 A.2d 852 (1984) (declining to adopt the rule, discussing its limitations, and collecting cases).

      . We note that it is one thing to authorize the disclosure and consideration of confidences and/or admissions made during plea negotiations to prevent counsel, as an individual and as an officer of the court, from being compelled to foster an accused’s perjurious designs; it, of course, would be quite another to permit the confidences or plea negotiation admissions to be introduced as evidence of appellant’s guilt at trial or in a subsequent perjury trial. The latter situations are not presented in this appeal, and therefore, need not be considered.

      . The rule itself is limited and subject to exceptions. See e.g. State v. Hansen, 633 P.2d 1202 (Mont.1981) (cross-examination regarding plea bargain admission of having intercourse with victim without victim’s consent was properly permitted after accused took stand and denied that any non-consensual intercourse occurred); People v. Jackson, 24 Ill.App.3d 700, 321 N.E.2d 420 (1974) (accused was properly cross-examined regarding plea bargain admissions after accused asserted on direct examination that he was offered a plea bargain but rejected it); see also State v. Boyle, supra at note 2.


author: DEL SOLE, Judge:

text:
    534 A.2d 533
    Gordon S. SMITH, Appellant, v. Joseph BARKER and National Construction Co., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Dec. 9, 1987.

      Lee Albert, Philadelphia, for appellant.
    Jeffrey H. Quinn, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

The instant action was commenced by the Plaintiff-Appellant Gordon Smith, to recover damages for personal injuries and pecuniary losses suffered as the result of an automobile accident which occurred on December 12, 1976. The Defendant-Appellee, Joseph Barker was the driver of the motor vehicle which struck Mr. Smith, Appellee was driving the motor vehicle as the servant of National Construction Co. A jury trial resulted in a verdict in Appellant’s favor in the amount of $42,500 in damages. The Appellant filed post-verdict motions seeking a new trial and he also sought Delay Damages pursuant to Pa.R.C.P. 238. On December 5, 1986, the trial court denied these motions and entered judgment in favor of Mr. Smith in the amount of $42,500. No Delay Damages were awarded.

Appellant presents us with five questions: (1) Whether the trial court erred in failing to award a new trial in that the verdict was so inadequate and should shock the conscience of the Court? (2) Did the trial court err in allowing Appellee to withhold testimony taken via video deposition for preparation at trial? (3) Should facts regarding liability relevant to the issue of damages be allowed at trial where liability is conceded by Appellee? (4) Did the Appellant suffer substantial irreparable harm as to warrant a mistrial, as a result of questions and comments made by defense counsel and the court concerning Appellant’s case during trial? (5) Did the trial court err in failing to assess Rule 238 Delay Damages?

It is well established law in the Commonwealth that a decision to grant a new trial because of any impropriety in the verdict is well within the discretion of the trial court and in the absence of a clear abuse of its considerable discretion will not be disturbed on appellate review. Reitz v. Donise Enterprise, 319 Pa.Super. 76, 465 A.2d 1060 (1983). Our Court has set forth the following criteria to determine when a verdict can be set aside as inadequate:

A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded. (Citations omitted).

Slaseman v. Myers, 309 Pa.Super. 537, 540-541, 455 A.2d 1213, 1215 (1983).

Our careful review of this record fails to show that the jury’s verdict was the product of passion, partiality, prejudice or corruption. Moreover, the Appellant does not assert such in his appeal to this court. Appellant’s entire argument is based on his dissatisfaction with the amount of the award.

At trial, Mr. Smith offered the videotaped deposition of his medical expert Dr. Steven Silberstein regarding his medical damages, and his own testimony concerning his pain and suffering and pecuniary losses. Many of Mr. Smith’s alleged physical injuries were subjective in nature (headaches and dizziness). “The duty of assessing damages is within the province of the jury” and as trier of fact, they weigh the veracity and credibility of the witnesses and their testimony. Lewis v. Pruitt, 337 Pa.Super. 419, 431, 487 A.2d 16, 22 (1985). In light of the evidence and above stated guidelines, we cannot conclude that the jury’s verdict of $42,500 was unreasonable or inadequate, warranting the grant of a new trial.

The Appellant’s next argument is quite novel, but totally meritless. He asserts that it was error for the trial court to permit the Appellee to withhold the cross examination of Appellant’s expert witness, Dr. Silberstein, at trial, and to allow the defendant not to present the video depositions prepared by defendant of Drs. Cook and Simon. He argues the court’s rulings on these matters constituted an abuse of discrection and therefore a new trial should be granted. Dr. Silberstein’s testimony was presented via a video tape in a deposition recorded in preparation for trial. Although defense counsel had cross-examined the witness at the time of the deposition, he chose not to present that cross examination to the jury at trial.

Appellants seem to be advancing the same theory herein as the appellants in Pascone v. Thomas Jefferson University, 357 Pa.Super. 524, 516 A.2d 384 (1986), allocatur granted, 515 Pa. 623, 531 A.2d 431 (1987), namely that once a deposition is taken in preparation for trial, it must be presented to the jury. In Pascone, our Court held that such a conclusion would be in direct contradiction of Pa.R.C.P. 4020(d), and that the trial court did not abuse its discretion in barring the plaintiff-appellant from introducing the video deposition of the defendant-appellee’s medical expert. Similarly, the trial court herein in no way committed an abuse of its discretion by permitting Appellee to withhold the video taped cross-examination of Dr. Silberstein from the jury. Essentially, the testimony of Appellant’s medical expert went unchallenged and uncontraverted.

The third issue presented is whether the trial court erred in preventing Appellant from introducing evidence of Appellee leaving the scene of the accident. The trial court ruled that this evidence was irrelevant, as the Appellee had admitted liability and the only issue before the jury was that of damages. Our review of the record reveals that the jury did hear evidence regarding the accident that clearly established the causal connection between the collision and Appellant’s injuries. The collateral facts surrounding the accident including Appellee’s post-accident behavior would only have distracted the jury from properly assessing Appellant’s damages. Therefore, the trial court did not err in preventing the introduction of this evidence.

Next Appellant asserts that a new trial is warranted based upon the court’s questioning of Appellant, Appellee’s attorney’s questions to Appellant, and because of statements made by Appellee’s attorney during closing arguments.

Naturally, in a case of this nature, a significant issue at trial was the amount of income earned by Appellant following his accident. Testimony revealed a disparity in Appellant’s corporate tax returns (he was president and sole shareholder of a corporation called Gordon S. Smith Associates), and his personal income tax return. (N.T. 131-133). The trial court asked a few questions of Mr. Smith, in an attempt to remedy the confusion regarding the amount of his actual compensation. “It is well settled that a trial court always has the right and sometimes even the duty to interrogate witnesses, in order to clarify evidence, or to elicit new information that is necessary to ensure a fair trial.” Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674, 687 (1982). Unless the trial judge’s questioning amounts to an abuse of discretion, so that “prejudice, bias, capricious disbelief or prejudgment” is discernible a new trial will not be granted. Id. Having examined the instances in which the trial judge is alleged to have abused its discretion, we find that the requisite criteria are absent.

Similarly, we do not find that the trial court erred in failing to grant a new trial, because of the questions posed to Appellant by Appellee’s attorney, and the statements made by him during closing arguments.. Again, the subject matter of the questions concerned the discrepancies in Appellant’s personal income tax returns; the remarks during closing arguments which Appellant objected to were sustained by the court and curative instructions were given to the jury.

It is the duty of the trial court to review the entire record and if it concludes that the judicial process has effected a serious injustice, only then should it grant a new trial. This Court will reverse the trial court’s ruling only upon the conclusion that it acted capriciously or abused the discretion vested in it. Lamb v. Gibson, 274 Pa.Super. 7, 417 A.2d 1224 (1980). The trial court’s opinion thoughtfully considered these alleged errors and we can find no basis for holding that the trial court abused its discretion in denying Appellant’s motion for a new trial.

Finally, we turn to Appellant’s request and the court’s subsequent denial of Delay Damages under Rule 238. Following the verdict for Appellant in the amount of $42,500, on July 25, 1986 he requested that the court award Delay Damages in the amount of $29,750.00, and that a molded verdict be entered in this matter in the amount of $72,250 in favor of Appellant Smith. The court’s December 5, 1986 order entered judgment upon the jury’s verdict in the sum of $42,500. We find that the trial court erred in its failure to award Delay Damages and remand this issue to the trial court for a determination of the amount of Delay Damages due Appellant.

Appellee asserts that the recent Pennsylvania Supreme Court decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) is applicable to the instant case. We disagree. Craig states the following:

[a]s we have indicated above, the suspension of the mandatory provision of Rule 238 is to be given prospective effect only. Those parties whose cases are now in the appellate or post-trial process, who have not asserted attacks on the Rule 238 aspect of the damage award, may not now assert such challenges. (Emphasis added).

Id., 512 Pa. at 66, 515 A.2d at 1353. Craig is given prospective effect only and was filed on October 8, 1986. The verdict in this case was rendered on July 22, 1986 and the request for Delay Damages was presented on July 25, 1986. Prior to the filing of his brief, Appellee in no way questioned or attacked the application of the Rule. Therefore, since this case was already in the post-trial stage when the decision in Craig was rendered, the trial court should have awarded Delay Damages to Appellant.

Judgment affirmed in part, remanded in part for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellant’s post-trial motions were filed and docketed by the post-trial motions clerk in Philadelphia, on July 31, 1986 in compliance with Philadelphia Civil Rule 240(C). These post-verdict motions are a part of the original record certified to this Court. Therefore, Appellant is in substantial compliance with our holding in Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986), requiring that the original record certified to this Court must include all documents filed in the trial court, and a certified copy of all docket entries relating thereto regardless of the office in which they were filed and docketed. Appellant’s post-trial motions should have also been included on the original docket sheet as of the date filed. In spite of this error we will consider the merits of the appeal.

      . Rule 238 of the Pennsylvania Rules of Civil Procedure states that delay damages in the amount of 10% shall be computed on verdicts rendered, which are 125% greater than the last written offer. The jury rendered a verdict in favor of the plaintiff, Gordon Smith, in the amount of $42,500.00. The only written offer in this case was $20,-000.00. In this case, the jury verdict is clearly in excess of that amount.