author: HESTER, Judge:

text:
    473 A.2d 1097
    Linda CASELLI and George Caselli, Husband/Wife, Appellants, v. John WANAMAKER, Philadelphia and Estee Lauder, Inc.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1983.
    Filed March 30, 1984.

      Seymour Wasserstrum, Philadelphia, for appellants.
    Eric A. Weiss, Media, for appellees.
    Before McEWEN, HESTER and LIPEZ, JJ.
   HESTER, Judge:

Appellants, Linda and George Caselli, filed a Complaint in Trespass and Assumpsit against appellees, John Wanamaker, Philadelphia and Estee Lauder, Inc., in the Court of Common Pleas of Philadelphia County. Appellant, Linda Caselli, purchased a jar of European Performing Cream sold by appellee Wanamaker and manufactured by appellee Estee Lauder. Appellants allege that Linda Caselli sustained multiple injuries to her eyes following application of this cream to her face. Appellants complaint was filed in the Civil Division of the Court of Common Pleas of Philadelphia County; however, it was later submitted by the Arbitration Commission for arbitration. The panel of arbitrators filed an award for appellees and against appellants. Appellants appealed to the Civil Division of the Court of Common Pleas of Philadelphia County and thereby acquired a trial de novo.

Neither appellants nor their counsel appeared for trial on March 5, 1982. Appellees and their counsel were present. Appellants’ counsel directed substitute counsel, who was unfamiliar with the case, to appear at trial and inform the court that counsel was not prepared to go to trial. Substitute counsel was similarly not prepared for trial; however, he attempted on the day of trial to settle the case. When settlement did not occur, appellees filed a motion for non-suit. A nonsuit order resulted and appellants filed this appeal.

In the interest of a more comprehensive understanding of the background of this case, we shall discuss the method of dispensing trial notices in Philadelphia County. Effective March 1, 1982, four days prior to trial here, the assignment of a trial date was to appear first in The Legal Intelligencer one (1) week prior to and again on the day of trial. Cases listed for trial or as back-up cases not heard on the assignment date would become the first cases for trial the following day.

The edition of The Legal Intelligencer dated February 22, 1982 notified the parties herein that their case was scheduled for trial on March 5, 1982. The Legal Intelligencer reprinted the trial date in its March 5th edition.

Pennsylvania Rule of Civil Procedure 216(A) sets forth grounds justifying a trial continuance:

Rule 216. Grounds for Continuance
(A) The following are grounds for continuance:
(1) Agreement of all parties or their attorneys, if approved by the Court;
(2) Illness of counsel of record, a material witness, or a party. If requested a certificate of a physician shall be furnished, stating that such illness will probably be of sufficient duration to prevent the person from participating in the trial;
(3) Inability to subpoena or to take testimony by deposition, commission, or letters rogatory, of any material witness, shown by affidavit which shall state;
(a) The facts to which the witness would testify if present or if his deposition should be taken;
(b) The grounds for believing that the absent witness would so testify or give his deposition;
(c) The efforts made to procure the attendance or deposition of such absent witness; and
(d) The reasons for believing that the witness will attend the trial at a subsequent date, or that his deposition can and will be obtained;
(4) Such special ground as may be allowed in the discretion of the court.

Appellants do not contend that a continuance was supported by those grounds set forth in Rule 216(A)(1), (2) and (3). Rather, they propose that counsel’s preoccupation with two unrelated civil proceedings before different judges in the same court warranted the granting of a continuance.

Indeed, trial counsel’s previous court commitment does constitute justifiable grounds for granting a continuance under Rule 216. Budget Laundry Company v. Munter, 450 Pa. 13, 298 A.2d 55 (1972); Nerkowski v. Yellow Cab Company of Pittsburgh, 436 Pa. 306, 259 A.2d 171 (1969). However, unless the prior commitment is timely made known to the court, it will not justify a continuance. Budget Laundry, supra; Nerkowski, supra.

In Nerkowski v. Yellow Cab, the Pennsylvania Supreme Court found the lower court to have abused its discretion in allowing trial to proceed ex parte where defense counsel was absent due to his commitment to try an unrelated case at the same time. The original defense counsel in Nerkowski was compelled to withdraw from the case three days prior to the call of the trial list on January 10, 1969 due to his appointment by the Governor of Pennsylvania to the bench of the Court of Common Pleas of Allegheny County. Thereafter, the defendant hired new counsel one day prior to the call of the list. On January 10, 1969, the day of the call of the list, new counsel requested a one-week postponement to facilitate preparation. This request was denied. On January 13, 1969, the day of trial, new counsel’s second request for a continuance was filed and denied.

In finding the lower court’s denial of a continuance to constitute an abuse of discretion, the Nerkowski court was impressed with the short delay requested, the absence of plaintiff’s objection to a continuance, the understandable unfamiliarity of new counsel with the case, and the unexpected and unforeseeable appointment of prior counsel to the bench.

In Budget Laundry, the Pennsylvania Supreme Court complied with the holding in Nerkowski. The case in Budget Laundry was listed for jury trial for the term commencing January 11, 1971, and was scheduled to be called on the jury trial list dated January 19, 1971. On January 19, 1971, the calendar control judge was informed that the defendant’s counsel was before another judge of that same court and scheduled to commence trial in the federal district court immediately thereafter. The calendar control judge disregarded the excuses and immediately commenced jury selection. A representative from the firm of defendant’s counsel again sought a continuance on the following day when the parties were to begin presenting their cases. The second request for a continuance was denied and trial proceeded ex parte.

In reversing both the trial and Superior Courts, the Pennsylvania Supreme Court in Budget Laundry deemed the commencement of an ex parte trial an unduly harsh consequence of defense counsel’s unavailability. The court first noted the impossibility of assigning a certain trial date early in proceedings. Instead, civil division cases reached a trial list on a specific date but the commencement of trial depended upon its position on the list and the disposition of other cases on that same list. In Budget Laundry, jury selection did not begin until eight days following the date the case reached the trial list. The Supreme Court was of the opinion that that was an unreasonably long period to expect counsel to forego proceeding to trial in unrelated cases due to that case reaching the trial list. Furthermore, the Budget Laundry court did not expect counsel’s partner to be sufficiently familiar with the case to try it in his stead. The court recognized that plaintiff’s counsel did not object to the request for a continuance, that a continuance would not have prejudiced plaintiffs as trial was certain to occur within the same term, and that conflicts arising from simultaneous proceedings occur so infrequently that once they do arise the court should accommodate counsel.

Budget Laundry and Nerkowski direct trial courts to grant a continuance where one party’s counsel has a conflicting court schedule, where trial is not delayed for an unduly long period, and where the other party neither objects to the continuance nor is prejudiced should one be granted.

Here appellant’s counsel was committed to trial before another judge in the same court. With that trial having commenced prior to trial here, a few days’ continuance should have accommodated appellant’s counsel. Under those circumstances, it is difficult to imagine any prejudice suffered by appellee. Furthermore, there is no indication that appellee objected to appellant’s request for a continuance. It appears, therefore, that a continuance was incorrectly denied by the lower court.

We would be remiss, however, were we not to address one factor setting this instant matter apart from Budget Laundry and Nerkowski. Although appellant sought a continuance due to counsel’s unavailability, these grounds were not conveyed to the lower court. In fact, the lower court indicates that once settlement negotiations proved fruitless and counsel remained unavailable, appellant’s substitute counsel consented to the entry of a nonsuit. In both Budget Laundry and Nerkowski, a continuance was requested and grounds in support of said continuance were proposed.

In Dublin Sportswear v. Charlett, 485 Pa. 633, 403 A.2d 568 (1981), we learn that commitment to unrelated trials occurring simultaneously is grounds for a continuance providing the court, which is to rule on the request for the continuance, is apprised of the conflict at the earliest possible moment. The defendants’ counsel in Dublin Sportswear had commitments in two proceedings in addition to the one at issue. At the call of the list on November 7, 1975, counsel advised plaintiff’s counsel only of his conflict; he did not call the conflicts to the court’s attention. Upon receiving notice from plaintiff’s counsel that trial was likely to commence on November 12, 1975, defense counsel again informed opposing counsel of his conflict and that he would not be prepared to commence trial until November 13, 1975. When defense counsel did not appear for trial, the trial judge called him. At that moment, for the first time, defense counsel informed the court of his scheduling conflict. Despite having a justifiable excuse for a continuance, counsel’s failure to communicate his conflict to the court at the call of the list or at least when the actual trial date became apparent, properly resulted in the commencement of trial in one party’s absence.

As alluded to above, we do not find this matter entirely within the parameters set by Budget Laundry and Nerkowski due to the fact that appellant’s counsel did not make known to the court the grounds for continuance. In that sense we find Dublin Sportswear to be controlling. We recognize, of course, that unlike Dublin Sportswear, appellant’s substitute counsel did convey the fact that counsel was not ready to proceed to trial. Insofar as that action is insignificant, however, it does not satisfy the burden of justifying a continuance. It is significant that substituted counsel did not explain counsel’s absence; he merely informed the court that he was not ready for trial. Accordingly, we affirm.

Order affirmed.

McEWEN, J., did not participate in the consideration or decision of this case.

      . It is true that Pa.R.C.P. 216(C) requires the filing of a written application for a continuance at least one week prior to the first day of the trial period if cause for continuance is known “at the time of publication or prior call of the trial list.” Despite appellant’s oral request for a continuance on the day of the call of the trial list, Rule 216(C) is not necessarily violated. Appellant did indeed have at least two unrelated trial proceedings pending simultaneously in the Court of Common Pleas of Philadelphia County. There is no indication, however, that appellant knew prior to trial that both cases would reach trial on the same date. They may have been on the same trial list or contemporaneous trial lists, but the possibility presented itself that one trial could terminate prior to the commencement of another trial. Budget Laundry correctly points out that last minute settlements or quick trials of other cases on the list could leave counsel with a moment’s notice of commencement of trial. As a result, it would be unfair to find appellant in violation of Rule 216(C), despite his failure to file a timely application for continuance; whether a conflict existed may have been unknown to him until the day of trial. Indeed, in both Budget Laundry and Nerkowski, counsel made their first request for a continuance from the Calendar Control Judge on the day of the call of the list.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    473 A.2d 1100
    Lottie KASHETTA v. Andrew KASHETTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 12, 1983.
    Filed March 30, 1984.
    Petition for Allowance of Appeal Denied June 12, 1984.
    Andrew Kashetta, in propria persona.
    John Brooks Randle, Scranton, for appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

Lottie L. Kashetta filed an action in divorce in the Court of Common Pleas of Lackawanna County against Andrew A. Kashetta, her husband since October 14, 1939. The complaint of Lottie L. Kashetta was filed in June of 1981 whereas Andrew A. Kashetta had filed a divorce action in August of 1976 to No. 1596 September Term 1976, which action was discontinued on the 5th day of June, 1981.

On June 29, 1981, Andrew A. Kashetta filed preliminary objections to the complaint in divorce, which preliminary objections were dismissed by order of July 17, 1981 by President Judge Edwin M. Kosik. Thereafter, Andrew Kashetta filed a motion to set aside the order of July 17, 1981, which motion was denied July 31, 1981 by court order. Thereafter, Andrew Kashetta filed a notice of appeal to this court from the July 17, 1981 order. We will quash this appeal as being interlocutory. As we said in Lyons v. Bechtel Corporation, 294 Pa.Super. 596, 440 A.2d 625 (1982):

Appellants have brought this appeal alleging that the order of the court below determined a question of jurisdiction and is thus appealable pursuant to Pa.R.A.P. 341, Final Orders. Though orders dismissing a litigant’s preliminary objections predicated upon forum non conveniens are considered questions of jurisdiction, Schachtel v. Bloche, 272 Pa.Super. 32, 414 A.2d 654 (1980), the order of the court below denied appellants’ preliminary objections on procedural grounds, not on the merits. Therefore, the lower court order was interlocutory and unappealable. Grier v. Scientific Living, Inc., 253 Pa.Super. 113, 384 A.2d 1254 (1978).
The court below, by Judge Greenberg, has made no jurisdictional determination on the basis of forum non conveniens or otherwise. Appellants, erroneously, argue that the amended order of September 25, 1980 overruled their preliminary objections on the merits and not for procedural defects. Though the language of Judge Greenberg’s order might be considered ambiguous, Judge Greenberg’s opinion of October 10, 1980 is unquestionably clear that the dismissal was procedural and not on the merits. The court’s decision was simply to overrule the preliminary objection, not because it found jurisdiction to be proper but because appellants failed to timely file their preliminary objections. Thus, Grier, supra, is controlling and requires that this appeal be quashed.

Id., 294 Pa.Superior Ct. at 598, 440 A.2d at 626 (footnote omitted).

So too, in the case sub judice, the order of the court below denied appellant’s preliminary objections on procedural grounds not on the merits. Therefore, the lower court order was interlocutory and unappealable.

Appeal quashed and case remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . In this appeal appellant raises the following issue:
      Whether Andrew Kashetta is deprived of due process and equal protection of the laws secured by the U.S. Constitution, Amendments 5 and 14.
      Brief for Appellant at 2.


text:
    473 A.2d 1102
    Loretta M. COLOSIMO, Administrator of the Estate of Dennis J. Colosimo, Appellant, v. NATIONWIDE INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed March 30, 1984.

      James D. Wolfe, Johnstown, for appellant.
    James F. O’Malley, Johnstown, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   PER CURIAM:

The sole issue presented in this appeal is whether the estate of the deceased victim is entitled to recover work loss benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter No-fault Act). The lower court denied appellant’s claim for these benefits. We hereby reverse.

Dennis J. Colosimo was killed in an automobile accident on December 8, 1979. At the time of the accident, the decedent had been employed; however, no one was dependent upon him for support. Appellant, as administrator of the decedent’s estate, sought payment of work loss benefits under the personal automobile insurance policy which the victim had maintained with Nationwide Insurance Company, appellee herein. Appellant’s claim was denied. The lower court ruled that a no-fault survivor was necessary for appellant to maintain an action for work-loss benefits. Since appellant concededly had no survivors according to the language of the No-fault Act, the lower court dismissed the complaint. Following the denial of exceptions, a timely appeal was filed.

The No-fault Act established a comprehensive compensation system for persons who sustain losses resulting from automobile accidents. “Basic loss” benefits, that is, benefits provided in accordance with the No-fault Act for the net loss sustained by a victim, are available to “any victim or any survivor of a deceased victim” of an automobile accident. One type of “basic loss” covered by the No-fault Act is “work loss,” which is defined as:

(A) loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of this act; and
(B) reasonable expenses of a victim for hiring a substitute to perform self-employment services, thereby mitigating loss of income, or for hiring spbcial help, thereby enabling a victim to work and mitigate loss of income.

40 P.S. § 1009.103. Appellee argued, and the lower court agreed, that the decedent’s estate was not entitled to receive work loss benefits, which are limited to a victim or any “survivor” of a deceased victim as defined by the No-fault Act.

This issue is not new to this Court. In Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), we specifically addressed the question of whether a deceased victim’s estate was eligible for work, loss benefits. Therein, the administrator of an eleven-year-old’s estate sought to recover work loss benefits. A panel of this Court (Hester, J. dissenting) unequivocally held that the estate of a deceased victim was entitled to recover work loss benefits under the No-Fault Act. Freeze and its progeny permitted estates of deceased victims to recover work loss benefits based upon the intendment of the No-fault Act to compensate deceased victims for the economic losses sustained as a result of their fatal injuries. See Ohrin v. Erie Insurance Exchange, 307 Pa.Super. 236, 453 A.2d 12 (1982); Anfuso v. Erie Insurance Group, 306 Pa.Super. 567, 452 A.2d 870 (1982); Hartleb v. Ohio Casualty Ins. Co., 305 Pa.Super. 231, 451 A.2d 506 (1982); Miller v. U.S. Fidelity and Guar. Co., 304 Pa.Super. 43, 450 A.2d 91 (1982); Reynolds v. Nationwide Mutual Ins. Co., 303 Pa.Super. 31, 449 A.2d 62 (1982); Wingeart v. State Farm Mut. Auto. Ins. Co., 302 Pa.Super. 524, 449 A.2d 40 (1982); Chester v. Government Employees Ins. Co., 302 Pa.Super. 356, 448 A.2d 1080 (1982).

The Pennsylvania Supreme Court was recently confronted with this issue when it granted review of our decision in Freeze. A majority of that court held that a deceased victim’s estate is entitled to work loss benefits. In so ruling, it opined:

... a person who dies as a result of injuries sustained in a motor vehicle accident is, within the meaning of the No-fault Act, a victim. That an injured victim is entitled to basic loss benefits under the Act is beyond question. The fact that a “victim” dies as a result of his injuries and becomes, a deceased “victim”, makes him no less a “victim” entitled to benefits under the provisions of the Act. A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned; the events of a victim’s death activates the rights of statutory survivors to benefits under the Act. However, the activation of survivors’ rights does not diminish or erase the victim’s rights even though he now be a deceased victim, (footnotes omitted).

Donegal Mutual Ins. Co. v. Freeze, 504 Pa. 218, 470 A.2d 958 (1983). Thus, the Supreme Court has determined that the right to work loss benefits survives the death of the victim and inures to the benefit of his estate.

The above decision controls the instant case and mandates our reversal of the lower court’s ruling that the estate of Dennis Colosimo is not entitled to recover work loss benefits.

Judgment reversed and case remanded for further proceedings to determine the amount of work loss benefits to be awarded to appellant. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq.

      . 40 P.S. § 1009.103.

      . 40 P.S. § 1009.201(a).

      . A “survivor” is designated as a:
      (A) Spouse; or
      (B) Child, parent, brother, sister or relative dependent upon the deceased for support.
      40 P.S. § 1009.103.


text:
    473 A.2d 1103
    COMMONWEALTH of Pennsylvania v. Robert Reed HOLLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed March 30, 1984.

      Smith B. Gephart, Harrisburg, for appellant.
    Katherene E. Holtzinger, Assistant District Attorney, Harrisburg, for Com., appellee.

      Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   PER CURIAM:

On August 11, 1982, appellant Robert Reed Holler entered a plea of guilty to a charge of criminal conspiracy and not guilty to a charge of possession with intent to manufacture or deliver a controlled substance. On the same date, after trial without a jury, verdict was deferred pending submission of briefs. On September 29, 1982, the lower court rendered a verdict of guilty to the possession charge, and, being advised that appellant desired to waive his right to appeal that decision, pronounced sentence. Appellant was sentenced to two concurrent terms of two and one-half (2V2) to five (5) years imprisonment. Appellant filed this timely appeal.

Appellant states the first issue as follows:

A. Did the Sentencing Court err by failing to place on the record the reasons for the sentence imposed upon Robert Reed Holler?

Brief for Appellant at 3.

The standards that this court follows in sentencing cases are clear:

It is settled that the imposition of a proper sentence is a matter vested in the sound discretion of the sentencing judge. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). In exercising this discretion, however, the judge must rely on full and accurate information and must state on the record the reasons for the sentences imposed. Commonwealth v. Riggins, [474 Pa. 115, 377 A.2d 140 (1977) ]; Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). This statement of reasons must show that in imposing sentence, the judge attached weight to the factors set forth in the statutory guidelines for sentencing, and carefully considered the facts concerning the circumstances of the offense and the character of the defendant. Commonwealth v. Wicks, supra. If the sentencing judge fails to state the reasons for the sentences on the record, we will vacate the sentences and remand for resentencing. See Commonwealth v. Young, [272 Pa.Super. 82, 414 A.2d 679 (1979) ]; Commonwealth v. Wicks, supra. Commonwealth v. Maxwell, 280 Pa.Super. 235, 242, 421 A.2d 699, 703 (1980).

Commonwealth v. Bryner, 285 Pa.Super. 305, 307-08, 427 A.2d 236, 237 (1981) (quotations omitted).

It is within this framework of prior case law that we must review the transcript of the sentencing proceedings held on September 29, 1982. We find that the sentencing court failed to comply with the mandates of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); hence, we must vacate the sentence and remand for resentencing.

The lower court failed to sufficiently state on the record its reasons for imposing the instant sentence. Our review of the transcript reveals only the following comments concerning the sentence imposed:

I don’t see any excuse for his conduct in this business. He came from a fairly good home, good background. He is not out of the ghetto. He was out to make some big money by selling drugs.
He didn’t confess or give himself up. He got caught red-handed. He didn’t have a choice once he got caught. I can’t find any extenuating circumstances.
Any less of a sentence with a drug quan[t]ity, with the sale of a drug of this nature would depreciate the seriousness of the offense and would seriously effect deterring others.

N.T., 9-29-82, at 8-9.

These comments fail to show that the court evaluated factors pertinent to the individual circumstances and character of the appellant. Reference should be made to the individual’s prior criminal record, his age, his personal characteristics and his potential rehabilitation. Commonwealth v. O’Brien, 282 Pa.Super. 193, 197, 422 A.2d 894, 896 (1980). The court’s reference to the appellant’s “good background” is insufficient to establish that it considered the individual circumstances of appellant’s case. See Commonwealth v. Taylor, 290 Pa.Super. 362, 364, 434 A.2d 794, 795 (1981) (“the decisions of our court and the Supreme Court insist that the trial judge explain in detail the reasons for the sentence imposed____”).

The court also failed to state whether it considered alternatives to a sentence of total confinement as required by 42 Pa.C.S.A. § 9721. The sentencing court merely stated that “any less of a sentence ... would depreciate the seriousness of the offense and would seriously effect deterring others.”

Upon imposing a sentence of total confinement, the sentencing judge must do more than merely echo one of these requirements____ The responsibilities [the Sentencing Code] imposes on the sentencing judge do not fade away and disappear upon utterance of the formula that “a lesser sentence would depreciate the seriousness of the crime.” The judge must state, with reference to the record, why he believes that would be so. Only thus will the “appellate courts [be enabled] to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.” Commonwealth v. Riggins, supra, 474 Pa. at 131, 377 A.2d at 148.

Commonwealth v. Farrar, 271 Pa.Super. 434, 452-53, 413 A.2d 1094, 1103-04 (1979).

The fact that the lower court later provided a somewhat more extensive list of reasons for the sentence in the opinion it filed pursuant to Pa.R.A.P. 1925(a) does not cure its failure to articulate these reasons at the time of sentencing. See Commonwealth v. Harris, 311 Pa.Super. 216, 457 A.2d 572 (1983); Commonwealth v. Giles, 303 Pa.Super. 187, 449 A.2d 641 (1982).

Because the lower court failed to articulate its reasons for imposing the instant sentence, we must remand for resentencing.

The second issue appellant presents for our consideration is:

B. Was the sentence to confinement of not less than two and one half (2V2) years nor more than five (5) years so manifestly excessive as to constitute an abuse of discretion?

Brief for Appellant at 3.

It is clear that our scope of review as to the propriety of a sentence is narrow. Sentencing is a matter within the sound discretion of the lower court and will only be disturbed when it exceeds the statutorily prescribed limits or is manifestly excessive as to constitute too severe a punishment. Commonwealth v. Burtner, 307 Pa.Super. 230, 453 A.2d 10 (1982); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979).

Given this strict standard of review, the failure of the lower court to articulate a significant statement of reasons for sentence, and the absence of the pre-sentence investigation from the record, we hesitate to find that the lower court abused its discretion in imposing the instant sentence. Since we are remanding for resentencing based on appellant’s first issue, we find it unnecessary to finally decide this issue.

We note, however, that the lower court seemed to base the sentence almost solely on the seriousness of the offense. While we understand the lower court’s concern for the control of drug trafficking, we must recognize that Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) emphasized that sentencing may not focus solely on the nature of the crime. See Commonwealth v. Kraft, 294 Pa.Super. 599, 440 A.2d 627 (1982). The court must also consider the individual character and circumstances of the offender. Instantly, we note that the appellant is a young man with a learning disability. He had a good work record and this was his first offense. While neither his age nor his disability excuse his criminal behavior in this instance, they are factors that should be considered in imposing sentence.

We also note that the psychological evaluation of appellant favors rehabilitation of appellant in a setting different than that chosen by the court. “[Appellant] does not show a typical criminal profile, but is rather a more anxious, somewhat depressed, insecure individual. If found guilty, I believe a work related program away from ‘hard-timers’ would be helpful for his rehabilitation. A closely supervised probation with some psychological counseling might prove just as beneficial.” Reproduced Record at 30a. Of course, the court is not bound by the psychological evaluation. We feel, however, that the court should explain its reasons for a disposition of appellant’s case that differs so radically from that suggested by the psychologist.

Finally, we are concerned with appellant’s role in this offense. While it is clear that appellant was the intermediary and sole “contact” between the informant and the supplier, it is equally clear that appellant was not the “dealer.” In spite of this fact, appellant received a sentence of two and one-half (2V2) to five (5) years imprisonment in a state correctional institution whereas the “dealer” was sentenced to eleven and one-half (IIV2) to twenty-three (23) months in a county jail. We understand that the dealer cooperated with the Commonwealth in a number of drug arrests in exchange for a lesser sentence. Also, the appellant’s co-defendants were sentenced by a different judge than the judge who imposed sentence on appellant. We recognize that it was not incumbent upon the lower court to be guided by the sentence a different court imposed on appellant’s co-defendants. Commonwealth v. Neal, 258 Pa.Super. 375, 383, 392 A.2d 841, 845 (1978). Also see Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982). Nevertheless, we would also point out that there should not be a great disparity in the sentences imposed on co-defendants unless facts exist to warrant the unequal sentences. See Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Parry, 306 Pa.Super. 390, 452 A.2d 781 (1982). If the court believes that sufficient factors exist to warrant the disparity in the sentences, the reasons therefore should be articulated on the record. Commonwealth v. Sinwell, supra.

We find it necessary to remand the case to the lower court for resentencing because the lower court failed to articulate reasons for the sentence imposed. While we do not decide the excessiveness issue, we suggest that the court consider the factors we have mentioned and all other relevant factors before pronouncing its new sentence. We direct the court to clearly articulate its reasons for the sentence it imposes and indicate why it has rejected alternative sentences.

Judgment of sentence is vacated. Case is remanded for resentencing. Jurisdiction is relinquished.

DEL SOLE, J., concurs in the result.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended, Act of April 28, 1978, P.L. 202, No. 53, § 7(2), 18 Pa.C.S.A. § 903.

      . Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, Act of October 26, 1972, P.L. 1048, No. 263, § 1; Act of December 30, 1974, P.L. 1041, No. 340, § 1; 35 Pa.S.A. § 780-113(a)(30).

      . Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended November 26, 1978, P.L. 1316, No. 319, § 1; Act of October 5, 1980, P.L. 693, No. 142, § 401(a).


author: CIRILLO, Judge:

text:
    473 A.2d 1365
    In re the Interest of Eugene HAYNES and Gena Haynes. Appeal of POTTER COUNTY CHILDREN AND YOUTH SERVICES. In re In the INTEREST OF Eugene HAYNES and Gena Haynes, Appellants.
    Superior Court of Pennsylvania.
    Argued May 25, 1983.
    Filed Nov. 4, 1983.

      John B. Leete, Coudersport, for appellant (at No. 1275) and for participating party (at No. 1276).
    Perry S. Patterson, Coudersport, submitted a brief on behalf of appellants (at No. 1276) and for appellees (at No. 1275).
    Basil John Freeman, Port Allegany, no appearance nor briefs submitted on behalf of participating parties.
    George Stenhach, Coudersport, no appearance nor briefs submitted on behalf of Babcock, participating party.

      Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

The unfortunate situation presented in this case is the result of a petition filed ten years ago on July 19, 1973, in the Juvenile Court docket of the Court of Common Pleas of Potter County. The petition alleged that Gena Mae Haynes and Eugene Paul Haynes were “deprived children.” That same day, a court order awarded temporary custody of these two children to the Child Welfare Services of Potter County pending further hearing or judicial disposition. Nothing further occurred in this matter until eight years later, on April 9, 1981, when a petition for court-ordered voluntary placement of said children was filed. On April 21, 1981, pursuant to an informal hearing, a motion to withdraw this petition was granted. On April 30, 1981, a petition seeking an adjudication of dependency of said children was filed. On May 11, 1981, the natural mother, Mazie M. Halliday, filed a petition for a writ of habeas corpus to compel the Potter County Children and Youth Service to return her two minor children to her. On May 22, 1981, a petition to intervene was filed by the childrens’ foster parents, the Meslers. Both children had been placed with the Meslers by the Children and Youth Services of Potter County. Subsequently, pursuant to the request of Potter County Children and Youth Services, the habeas corpus action and the juvenile court dependency action were consolidated. After various continuances, both matters were heard in a bifurcated hearing. Then, by order dated June 9, 1981, President Judge Harold B. Fink, ordered that the two children remain in the foster home for three to six months with increased visitation; the ultimate custody of the children to go to the natural mother at the end of this transitional period. Subsequently, a petition for re-hearing was filed with a request for reconsideration by the court. After a hearing, on December 7, 1981, the court entered an order denying reconsideration of the initial order. From this order, the Children and Youth Services of Potter County appealed. We affirm.

A petition to adjudicate dependency is under the purview of the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. The underlying purpose of the Juvenile Act is as follows:

§ 6301. Short title and purposes of Chapter.
(a) Short title. — This chapter shall be known and may be cited as the “Juvenile Act.”
(b) Purposes. — This chapter shall be interpreted and construed as to effectuate the following purposes:
(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.
(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.

(emphasis supplied)

The position of this Court has been that a child should grow up as a part of its natural family. In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). Accordingly, the state should not intrude upon, and weaken the family. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). This Court has also held that its most compelling objective is to preserve family unity whenever possible; accordingly, the Juvenile Act provides that a child may not be found dependent absent clear and convincing evidence and may not separate a child from parents unless such separation is clearly necessary. In Interest of Pernishek, 268 Pa.Super. 447, 408 A.2d 872 (1979); In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981); In Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981); 42 Pa.C.S.A. § 6335. The clear and convincing standard that this court applies is used to determine whether proper parental care and control is available. 42 Pa.C. S.A. § 6302. Therefore, only if the court concludes by clear and convincing evidence that such care and control is not available will it adjudicate a child dependent, and, if such a finding is not made, custody must be given to the parents immediately. Therefore, in determining whether a child is dependent, the court must ascertain what sort of parental care the child will receive if custody is given to the parents. In Interest of Ryan Michael C., 298 Pa.Super. 417, 440 A.2d 535 (1982).

The thrust of the agency’s appeal is not that the court’s findings of fact were improper, but rather that the evidence presented at the two hearings provided clear and convincing evidence of dependency. We disagree. Initially, we are appalled by the circumstances in which the natural mother was originally deprived of these children, without a hearing and in violation of her due process rights and the mandates of the Juvenile Act.

Our review of the lower court’s findings of fact from the first hearing reveal that the appellee natural mother has had a rather unstable life in the past. She has been married twice and has also had numerous boyfriends. It seems that some of these men have had violent natures. The mother has also had a drinking problem, but has been “dry” for a year. Additionally, she suffers from a nerve disease.

The record from the second hearing reveals that the appellee has married again, to David Babcock with whom she had been living previously for one year. Mr. Babcock, who is employed full time, hopes to obtain a permanent position at his present place of employment. The appellee has successfully abstained from alcohol abuse. In addition, both the appellee and her new husband sincerely and deeply love the children.

In support of its argument, the appellant cites that the lower court judge found that the mother has had three other children who have been adopted; that one of the subject children, Eugene, feels that his mother prefers his sister; and that the appellee has not always cared properly for the hygiene of her son, i.e., changing his clothes and bathing him. Eugene Haynes also testified that his mother and step-father “yell at each other”; that he would run away if placed with his natural mother; and that his bed has been sold and he sleeps on a mattress on the floor when he stays with his natural mother.

While some of appellant’s assertions are irrefutable, others were contradicted at the hearing. For instance, the lower court judge found as fact that the appellee has had three other children who have been adopted; that Eugene does feel that his mother prefers his sister to him; and that his natural mother does not always properly care for his hygiene. However, the appellee’s sister testified that Eugene was well cared for and that his mother and step-father got along fairly well. She also testified that her sister and her husband had purchased new beds for the children. The appellee testified that she did not favor Eugene over his sister.

More importantly, we have carefully reviewed the record in this case and it clearly shows that the natural mother and her husband now have a stable environment in which to care for these children. The appellee and her husband both testified that they love and want the children with them and that they appreciate that there will be problems with the children regarding their adjustment to a different home situation. In addition, there is nothing in the record of any substance which would indicate that the appellee could not provide the proper care and control of her children. Therefore, we find that the agency has not met its burden and has not proved by clear and convincing evidence that the natural mother could not care for these children.

Appellant’s next contention is that the court should have given greater weight to the interest of the children. This Court has specifically held that under the Juvenile Act the court is not free to apply a general standard, such as “the best interest of the child,” but is confined by the restrictive definitions of who is a delinquent or a deprived child. Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974); In Interest of Pernishek, supra. Appellant further asserts that the appellate decisions do not provide guidelines as to what role the interests of children have. This is emphatically untrue. This Court specifically held in In the Matter of Jackson, 302 Pa.Super. 369, 376, 448 A.2d 1087, 1090 (1982), “A finding of dependency is not the same thing as a determination of the best interests of the child; the question is whether the child is presently without proper parental care and, if so, whether that care is immediately available.” (Emphasis in original). As we discussed previously, we cannot say that the natural mother cannot provide the proper care for these children. Therefore, appellant’s argument is without merit.

Order affirmed.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978. Substantially a reenactment of Act of December 6, 1972 (No. 333), § 1 (11 P.S. § 50-101).

      . § 6335. Release or holding of hearing
      (a) General rule. — After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention or shelter care shall not be later than ten days after the filing of the petition. If the hearing is not held within such time, the child shall be immediately released from detention or shelter care. A child may be detained or kept in shelter care for an additional single period not to exceed ten days where:
      (1) the court determines at a hearing that:
      (1) evidence material to the case is unavailable;
      (ii) due diligence to obtain such evidence has been exercised; and
      (iii) there are reasonable grounds to believe that such evidence will be available at a later date; and
      (2) the court finds by clear and convincing evidence that:

      (i) the life of the child would be in danger;

      (ii) the community would be exposed to a specific danger; or
      (iii) the child will abscond or be removed from the jurisdiction of the court.
      The court shall direct the issuance of a summons to the parents, guardian, or other custodian, a guardian ad litem, and any other persons as appearing to the court to be proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition. The summons shall also be directed to the child if he is 14 or more years of age or is alleged to be a delinquent. A copy of the petition shall accompany the summons.
      (emphasis added)

      . § 6302. Definitions
      The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
      “Dependent child." A child who:
      (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals____

      . See footnote 2, supra. This is the second case in Potter County arising from an apparent practice of the then Child Welfare Services of Potter County and the then President Judge of the county in or around 1973-74. This Court has already handed down a decision in the first such case in Hurlburt v. Potter County Children and Youth Services, 297 Pa.Super. 621, 442 A.2d 341, 1982, Memorandum Opinion. In that case, this Court affirmed the order of the lower court which mandated the return of the subject children to their parents.

      . The deposition of Dr. Widad Bazzoui disclosed that the boy suffers from a hyper-active condition which causes him to be extremely active and to engage in behavior which results in criticism from peers and parents or teachers. This criticism causes affected individuals to feel rejected and they lose faith in themselves. Dr. Bazzoui had been working with the child’s foster mother to help her deal with his condition. He said that a parent who is not aware of the condition would find a child like this very difficult to deal with.
      It is interesting that the appellant argued that the lower court did not give enough consideration to this doctor’s deposition, but our review of his testimony further convinces us that with the proper help, which has already been given to the foster mother, there is no reason why the children’s natural mother cannot be instructed on how to deal with her children and their condition.


author: MONTGOMERY, Judge:

text:
    473 A.2d 1369
    Barbara S. KEMP, Administratrix of the Estate of Martin Kemp, Deceased, Appellant v. Donald QUALLS, M.D., Stanley B. Steinberg, M.D., Mieczsaew Lopusniak, M.D., and Lankenau Hospital.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1983.
    Filed Feb. 24, 1984.
    Reargument Denied May 8, 1984.
    Petition for Allowance of Appeal Denied Aug. 21, 1984.

      Morton B. Wapner, Philadelphia, for appellant.
    James J. McCabe, Jr., Philadelphia, for Qualls and Stein-berg, appellees.
    William H. Pugh, IV, Norristown, for Lopusniak, appellee.
    Ralph L. Hose, Ardmore, for Lankenau Hosp., appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellant,. Barbara S. Kemp, instituted the instant action in trespass in the lower court claiming that the Defendant-Appellee physicians and hospital were negligent in failing to diagnose and treat a condition which allegedly caused the death of Martin Kemp, the Appellant’s decedent. A trial was held before a jury which returned a verdict in favor of the Appellees. The Appellant now appeals the lower court’s subsequent denial of her motion for a new trial. On this appeal, she claims that the lower court erred in several evidentiary rulings at trial.

The pertinent facts of record show that on February 7, 1971, Martin Kemp was admitted as an inpatient in the Appellee, Lankenau Hospital, while receiving care from Dr. Qualls, another Appellee. The admission and treatment by the physicians was for low back pain suffered by the decedent. During the course of the admission, Dr. Qualls brought Dr. Lopusniak, also an Appellee, into the case as a consulting specialist in connection with the decedent’s high blood pressure problem. The decedent was subsequently discharged from Lankenau Hospital on February 28, 1971. On March 6, 1971 he was admitted to Cooper Medical Center in Camden, New Jersey, where he died only six days later as the result of pulmonary emboli.

Two of the Appellant’s contentions on this appeal involve the admission and use at trial of certain medical records resulting from the decedent’s stay at the Cooper Medical Center. During the course of the trial, the Appellant called Dr. Theodore Rodman as a medical expert. Dr. Rodman expressed the opinion that the Appellees Qualls and Lopusniak acted negligently in failing to diagnose the decedent’s pulmonary emboli. In response to questions, Dr. Rodman stated that he had reviewed the records of the Cooper Medical Center before arriving at his opinion. During the course of cross-examination of Dr. Rodman, counsel for Appellees Qualls and Lopusniak questioned the witness concerning matters in the Cooper Medical Center records in an apparent effort to demonstrate that several physicians who had treated the decedent, subsequent to treatment rendered by the Appellees, had failed to diagnose pulmonary embolism as the cause of decedent’s symptoms. It appears that in this effort the Appellees’ cross-examination was intended to demonstrate the obscurity of the decedent’s symptoms and the difficulty of diagnosing pulmonary embolism.

The Appellant first contends that the Cooper Medical Center records, which contain diagnostic opinions of doctors who treated the decedent at that facility, were not relevant to show Appellees’ compliance with a reasonable standard of medical care. In reviewing this claim, we must initially recognize that the information from the Cooper Medical Center records was elicited during cross-examination of the Appellant’s medical expert. It is well-established that the scope and limits of cross-examination are within the trial court’s discretion and the court’s rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law. Gatling v. Rothman, 267 Pa.Super. 566, 407 A.2d 387 (1979). Further, it is clear that the right of cross-examination extends beyond the subjects testified to in direct testimony and includes the right to examine the witness on any facts tending to refute inferences or deductions arising from matters the witness testified to on direct examination. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980). Every circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge is a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination. Commonwealth v. Britton, 251 Pa.Super. 335, 380 A.2d 807 (1977).

We find that the lower court did not abuse its discretion in allowing Dr. Rodman to be cross-examined concerning the diagnoses by physicians at the Cooper Medical Center which were contained in the hospital records he had reviewed in preparing for his own testimony at trial. Dr. Rodman testified on direct examination that decedent’s symptoms, as exhibited at Lankenau Hospital, were a “red flag” which indicated that decedent was suffering from pulmonary emboli. The Cooper Medical Center records lacked any diagnosis of pulmonary emboli by physicians who treated the decedent subsequent to the treatment rendered by the Appellees. Obviously, such evidence would have tended to diminish the impact and reliability of Dr. Rodman’s assertion that the symptoms of pulmonary emboli should have been absolutely clear to a physician exercising reasonable care in the circumstances then present. We must reject the Appellant’s contentions that the Appellees relied on the Cooper medical records to affirmatively establish their own compliance with a reasonable standard of care. It is clear that the Appellees’ counsel used these records instead to refute Dr. Rodman’s assertion that the Appellees were negligent in failing to diagnose the problem as the cause of decedent’s symptoms.

The Appellee next argues that the lower court should not have allowed cross-examination involving the Cooper Medical Center records because they allegedly constituted inadmissible hearsay. However, our review of the record shows that the documents in question were not offered to prove the truth of the matters asserted therein, in this case the specific diagnoses reached by the treating physicians at the Cooper Medical Center. Instead, as explained above, the correctness of the diagnostic opinions of the doctors from Cooper Medical Center was not made an issue in the case, but rather the opinions were used for purposes of cross-examination to elicit evidence of the difficulty of diagnosing a pulmonary embolism condition. We agree with the lower court which concluded that in these circumstances the records in question were probative and relevant. Accordingly, we reject the claims that the records in question should have been excluded from evidence by the lower court because they constituted inadmissible hearsay.

The Appellant next argues that the lower court erred in refusing to admit certain testimony proffered through witness Daniel Brown. The excluded testimony consisted of statements purportedly made by the decedent to Dr. Lopusniak in a telephone conversation, while the decedent was in the presence of Mr. Brown, and statements made by the decedent to Brown which purported to repeat what Dr. Lopusniak had stated to the decedent during the same telephone conversation. After an objection to Mr. Brown’s testimony was sustained by the court, the parties had discussions in chambers about the testimony of the witness. The Appellant’s counsel related to the court that he wanted to ask questions as to Mr. Brown’s discussions with the decedent, and explained he planned to ask these questions to determine the “state of mind” of Mr. Kemp with regard to his condition, for two reasons. First, he stated that he wanted to show that the decedent had a fear of impending death, allegedly a documented symptom in cases of pulmonary embolism. Second, he asserted that he wanted to show Mr. Kemp’s reaction to his purported inability to obtain satisfactory answers from Dr. Lopusniak, a situation which allegedly caused the decedent to consult other doctors. In an offer of proof, Appellant’s counsel asserted that the witness would testify that he dialed a telephone call to Dr. Lopusniak on behalf of the decedent, and after the call was completed by Mr. Kemp, the witness discussed with the decedent what had been discussed during Mr. Kemp’s conversation with the doctor. The following colloquy in the record is germane:

COUNSEL FOR APPELLEE: (Interposing) You said [Mr. Brown] discussed with him, with Dr. Lopusniak, or with Mr. Kemp?
COUNSEL FOR APPELLANT: With Mr. Kemp. Mr. Kemp, after the conversation was over, had discussed with him what, in effect, Dr. Lopusniak said, which was, “There is nothing more I can do for you. See me Friday.”
COUNSEL FOR APPELLEE: Now, who is talking to Dr. Lopusniak?
COUNSEL FOR APPELLANT: The phone call was made by Mr. Brown. Mr. Brown is not going to say that he was listening in to the conversation, or anything like that,
THE COURT: He dialed the phone?
COUNSEL FOR APPELLANT: He dialed the phone and got Dr. Lopusniak’s office on the telephone; or perhaps got Dr. Lopusniak on the phone. He then was in the room while Mr. Kemp was talking to Dr. Lopusniak. And immediately thereafter, Mr. Kemp stated to this witness that the doctor told him that, “There is nothing more I can do. See me Friday.” Or words to that effect. “I don’t know what else I can do for you.” And he said, “I’m disgusted. I think I had better get another doctor.”

The lower court allowed the Appellant to direct questions to Brown concerning the decedent’s fear of impending death, and also permitted the witness to relate that he placed a call to Dr. Lopusniak’s office and then gave the telephone to the decedent, but sustained all objections to the testimony of the witness concerning the words stated to him by the decedent concerning the decedent’s alleged telephone conversation with Dr. Lopusniak.

There can be no question that the testimony available from Mr. Brown concerning his conversations with the decedent with respect to any alleged statements by Dr. Lopusniak during the phone call would constitute hearsay. Hearsay evidence is defined as in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion. Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 240 A.2d 71 (1968). Such evidence is clearly inadmissible unless it falls within a recognized exception to the hearsay rule. Baldino v. Castagna, 308 Pa.Super. 506, 520, 454 A.2d 1012, 1019 (1982). The Appellant concedes that any testimony by the witness concerning what the decedent reported to him that Dr. Lopusniak had said would clearly constitute “double hearsay”. Appellant’s only argument regarding the admissibility of such testimony was that it falls under the exception to the hearsay rule relating to admissions against interest by a party. Not only do we find a lack of merit in that assertion, as the witness did not himself hear Dr. Lopusniak make any statements, but we find that this argument was not raised before the lower court at the time the testimony in question was offered. In such circumstances, such a claim was clearly waived, and we cannot consider it on appeal.

As to the testimony of Brown concerning what he overheard the decedent say during the telephone call, the Appellant argues that such testimony should have been admitted under the “present sense impression” exception to the hearsay rule. We would examine the merits of that claim but for our recognition of the Appellant’s apparent abandonment of the arguments raised in the lower court to justify admission of the testimony, and the clearly new argument in support of admission raised for the first time on this appeal. As noted above, Appellant sought to be permitted to question Mr. Brown regarding the decedent’s statements of a fear of impending death, a purported symptom of pulmonary embolism. This examination was permitted by the lower court, despite objections by the Appellees. Therefore, we are left with Appellant’s only other argument to the lower court regarding this subject. Appellant urged that he be permitted to have Mr. Brown relate his conversations with the decedent to show the latter’s purported inability to obtain satisfactory answers from Dr. Lopusniak, which allegedly caused him to seek other medical attention. Despite having taken this position in the lower court, the Appellant, in her brief to our Court, offers the following new rationale to support her alleged right to question Mr. Brown regarding his conversations with the decedent on the day in question: “The statements which Mr. Brown overheard Mr. Kemp tell Dr. Lopusniak were not being admitted to show the truth of what they asserted but simply to show that Dr. Lopusniak had been informed of the complaints and symptoms of which Mr. Kemp was suffering. This of course, was relevant to show whether Dr. Lopusniak responded with reasonable care in his treatment of this patient.” Our review of the record discloses no mention of the argument by the Appellant that the testimony was being offered for such a purpose. Further, the argument raised in the lower court to support the admission of the testimony in issue is not maintained on this appeal. Thus, the question of whether or not the testimony could have qualified as a present sense impression exception to the hearsay rule is of no consequence. The Appellant has abandoned the arguments for relevancy offered below and seeks to rely on new arguments for the first time on this appeal. It is well-established that a party may not successfully advance a new and different theory of relief for the first time on appeal, while failing to assert on appeal other grounds which were submitted for the same purpose in the lower court. Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982); In re S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980). Therefore, we must reject the Appellant’s contention that the lower court erred in refusing to permit Mr. Brown to testify as to Mr. Kemp’s statements relating to the telephone call to the office of Dr. Lopusniak.

The Appellant’s final argument is that the lower court erred when it permitted the Appellee Qualls to use Dr. John Lachman as an expert witness. The Appellant served pretrial interrogatories upon the Appellee Qualls to obtain information as to the identities and qualifications of any expert witness expected to be called to testify at trial. It is argued that the undisputed late notice received by the Appellant with regard to Dr. Lachman should justify the award of a new trial.

The record shows that Dr. Lachman’s identity as a potential expert witness was not provided to the Appellant’s counsel until April 11, 1980, three days prior to the first day of trial in the case. Further, it appears that Dr. Lachman’s qualifications, in the form of his curriculum vitae, were not provided by the Appellee to the Appellant until April 23, 1980, the day before Dr. Lachman was called to testify.

While the late disclosure of the identity or qualifications of an expert is to be condemned, the mere occurrence of such a circumstance does not per se create grounds for a new trial. In Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979), a case cited by the Appellant, this Court declared that to preclude expert testimony, in the circumstance of late disclosure of information about him to the adverse party, is a drastic sanction, and unless necessary under the facts of the case, may be the basis for finding an abuse of discretion by the trial judge. Our Court also considered whether the sanction of preclusion of expert testimony should be granted, due to untimely response to pretrial interrogatories, in the case of Royster v. McGowan Ford, Inc., 294 Pa.Super. 160, 439 A.2d 799 (1982). There it was stated: “... [AJssuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as the result of a dilatory disclosure”. 294 Pa.Super. at 169, 439 A.2d at 804.

In this case, it is apparent that the Appellant has not demonstrated any real prejudice flowing from the Appellee Quail’s untimely disclosures of Dr. Lachman’s identity and qualifications. The Appellant had thirteen days in which to investigate the reputation and purported expertise of the witness prior to his testimony. Moreover, the lower court expressly offered to accommodate any difficulty caused to Appellant’s counsel by the late disclosures concerning Dr. Lachman. In light of these facts, we cannot hold that the lower court erred in refusing to exercise the serious sanction of precluding the witness from testifying at trial.

The order of the lower court is hereby affirmed.

      . Defendant, Stanley B. Steinberg, M.D., was dismissed from the case . by agreement of all counsel during proceedings before the lower court. Thus, he is not involved in the present appeal.

      . Federal Rule of Evidence 803, which lists exclusions from the hearsay rule, defines a hearsay statement falling under the present sense impression exception as: “A Statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” In Commonwealth v. Farquharson, 467 Pa. 50, 68, 354 A.2d 545, 554 (1976), the Court explained the following with respect to a statement alleged to be a declaration of present sense impression:
      “We are also not persuaded that this testimony can qualify as a declaration of present sense impression. Under this exception the necessity for the presence of a startling occurrence or accident to serve as a source of reliability is not required. The truthfulness of the utterance is dependent upon its spontaneity. It must be certain from the circumstances that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes. Restated, the utterance must be 'instinctive, rather than deliberate’. Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974).”


author: WIEAND, Judge:

text:
    473 A.2d 1375
    COMMONWEALTH of Pennsylvania v. Byron Bruce FERRIER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1983.
    Filed March 9, 1984.

      Robert W. Lambert, Indiana, for appellant.
    Gregory Allen Olson, District Attorney, Indiana, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Where a sentence of imprisonment is suspended indefinitely and it is clear that the sentencing court did not intend to place the defendant on probation, may the court subsequently “vacate” its earlier order, revoke the suspended sentence, and reimpose a sentence of imprisonment? We hold that it cannot. Therefore, we reverse the judgments of sentence which required appellant to serve terms of imprisonment.

On June 28, 1981, Bryon Bruce Ferrier entered pleas of guilty to forgery, a felony of the second degree, and to two felony counts of retail theft. He was sentenced on July 27, 1981 to pay fines totalling $300.00, together with the costs of prosecution, and to undergo imprisonment for consecutive terms of five to ten and three and one-half to seven years. The terms of imprisonment were suspended, however, and Ferrier was placed on probation for consecutive periods totalling fifteen and one-half years.

On August 5, 1981, the trial court caused amended sentencing orders to be entered. These orders imposed the same sentences as had previously been imposed, but eliminated any reference to probation. The sentences of imprisonment were suspended upon the sole conditions that Ferrier “comply with an agreement to maintain his employment and to obey all the laws of the Commonwealth of Pennsylvania.”

Ferrier was subsequently convicted of robbery in Westmoreland County. After a hearing on April 8, 1983, the Court of Common Pleas of Indiana County revoked the suspended sentence which it had imposed on August 5,1981 and ordered Ferrier to serve consecutive prison terms of five to ten and three and one-half to seven years. No reasons for the sentences were given. Ferrier’s petition to modify these sentences was denied, and this direct appeal followed.

At the time when appellant was convicted of robbery in Westmoreland County, he was not on probation in Indiana County. By its orders suspending sentences on August 5, 1981, the Court in Indiana County had deliberately removed any reference to probation.

The Sentencing Code, at 42 Pa.C.S. § 9721, directs a sentencing court to “select one or more of the following alternatives, [imposed either] consecutively or concurrently:

(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.”

The sentencing court’s amending order of August 5, 1981 imposed a fine, but it did not include any of the other sentencing alternatives. An indefinitely suspended sentence of imprisonment was not one of the alternatives available to the court.

Indefinitely suspended sentences were condemned by the Supreme Court in Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964), where the Court said:

“Theories of implied probation and indefinite suspension of sentence are not only contrary to the clearly expressed intention of the legislature, but are also violative of true principles of probation and, as in this case, promote confusion where none should exist.”

Id., 414 Pa. at 474, 200 A.2d at 774. Although the Duff Court ascertained the intent of the legislature from earlier sentencing statutes, the same legislative intent is apparent from 42 Pa.C.S. § 9721(a). An indefinitely suspended sentence is not a sanctioned sentencing alternative. Moreover, it is as true now, as it was when Duff was decided, that an indefinitely suspended sentence violates “true principles of probation” and causes confusion where none should exist.

The Commonwealth argues that we should follow the reasoning employed by this Court in Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979) and hold that a sentence of probation can be implied from the fact that the court imposed a sentence of imprisonment and then suspended it. This argument is not valid. It overlooks the fact that the only change effected by the amended sentencing orders of August 5, 1981 was to remove and eliminate those portions of the original sentences which had placed appellant on probation for a definite period. It is apparent, therefore, that the sentencing court did not intend to place appellant on probation. Where, as here, the sentencing court has deliberately rejected probation, a reviewing court cannot close its eyes to the sentencing court’s intent and blindly place an interpretation on the sentencing order which the court has rejected.

It was the suspended sentences imposed by the Court on August 5, 1981 which the Court, on April 8, 1983, attempted to revoke in favor of sentences of imprisonment. It is this latter sentence which is presently subject to review and not the order of August 5, 1981. Therefore, we cannot remand for clarification of the suspended sentence, as a panel of this Court did in Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981), where it remanded to the trial court to clarify an order which had indefinitely suspended sentence. It is now too late for that course. We must decide whether the sentencing court’s order revoking an indefinitely suspended sentence and imposing belatedly a sentence of imprisonment was a legal exercise of the court’s sentencing powers.

On August 5, 1981, appellant had been sentenced to pay fines of $300, plus costs of prosecution. Although the sentencing court also included language requiring appellant to serve terms of imprisonment, that portion of the order was effectively nullified by the later portion of the order which suspended the term of imprisonment. Without including a term of probation in the sentence, the court’s language suspending imprisonment effectively eliminated and nullified a sentence of imprisonment. Only the imposition of the fine remained as a valid sentence.

On April 8, 1983, there was no probation which the court could revoke. To attempt to revoke the earlier sentences, which had required the payment of fines, and impose new sentences, which included not only fines but terms of imprisonment as well, was to attempt to sentence twice for the same offense. This violated principles of double jeopardy and cannot be permitted to stand. See: Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972); Commonwealth v. Grady, 309 Pa.Super. 187, 455 A.2d 112 (1982); Commonwealth v. Coleman, 271 Pa.Super. 581, 414 A.2d 635 (1979); Commonwealth v. Tomlin, 232 Pa.Super. 147, 336 A.2d 407 (1975).

The judgments of sentence entered on April 8, 1983 are reversed and set aside.

      . The sentences imposed by the court were as follows:
      No. 208,
      ORDER OF COURT
      AND NOW, July 27, 1981, the defendant having entered a plea of guilty to the offense of forgery, graded a felony of the second degree, the plea having been entered June 29, 1981, it is the sentence of this Court that he shall pay the cost of prosecution in the amount of sixty-eight dollars and fifty cents [$68.50]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; and that he shall undergo imprisonment in Western Correctional Institution at Pittsburgh, Pennsylvania, for a period of not less than five years nor more than ten years. This sentence is suspended and he is placed on probation for the minimum sentence on condition that he comply with an agreement to maintain his employment and to obey all the laws of the Commonwealth of Pennsylvania.
      BY THE COURT,
      /s/ Robert C. Earley Judge.
      No. 133,
      ORDER OF COURT
      AND NOW, July 27, 1981, the defendant having entered a plea of guilty to the offense of retail theft, rated a felony of the third degree, the plea having been entered June 29, 1981, it is the sentence of this Court that he shall pay the cost of prosecution in the amount of sixty-eight dollars [$68]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; and that he shall undergo imprisonment in the Western Correctional Institution at Pittsburgh, Pennsylvania, for a period of not less than three and one half years nor more than seven years. This sentence to run consecutive to and to begin at the expiration of the sentence at No. 208 Criminal Sessions 1981. This sentence is suspended and he is placed on probation for the minimum sentence to run consecutive to the probation imposed at No. 208 Criminal Sessions 1981 on condition that he maintain his employment and obey all the laws of the Commonwealth of Pennsylvania.
      BY THE COURT,
      /s/ Robert C. Earley Judge.
      No. 134,
      ORDER OF COURT
      AND NOW, July 27, 1981, the defendant having entered a plea of guilty to the offense of retail theft, the plea having been entered June 29, 1981, it is the sentence of this Court that he shall pay the cost of prosecution in the amount of sixty-eight dollars [$68]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; and that he is placed on probation under the supervision of the Pennsylvania State Probation Department for a period of seven years. This sentence is to run consecutive to and to begin at the expiration of the sentences imposed at No. 208 and No. 133 Criminal Sessions 1981.
      BY THE COURT,
      /s/ Robert C. Earley Judge.

      . The amended sentencing orders were as follows:
      COMMONWEALTH vs. BYRON BRUCE FERRIER
      IN THE COURT OF COMMON PLEAS INDIANA COUNTY, PENNSYLVANIA
      No. 208 Crim. 1981

        AMENDED ORDER OF COURT
      AND NOW, August 3, 1981, the defendant having entered a plea of guilty to the offense of forgery, graded a felony of the second degree, the plea having been entered June 29, 1981, it is the sentence of this Court that he shall pay the cost of prosecution in the amount of sixty-eight dollars and fifty cents [$68.50]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; and that he shall undergo imprisonment in Western Correctional Institution at Pittsburgh, Pennsylvania, for a period of not less than five years nor more than ten years. This sentence is suspended on condition that he comply with an agreement to maintain his employment and to obey all the laws of the Commonwealth of Pennsylvania.
      BY THE COURT,
      /s/ Robert C. Earley Judge.
      COMMONWEALTH vs. BYRON BRUCE FERRIER
      IN THE COURT OF COMMON PLEAS INDIANA COUNTY, PENNSYLVANIA .
      No. 133 Crim. 1981
      AMENDED ORDER OF COURT
      AND NOW, August 3, 1981, the defendant having entered a plea of guilty to the offense of retail theft, rated a felony of the third degree, the plea having been entered June 29, 1981, it is the sentence of this Court that he shall pay the cost of prosecution in the amount of sixty-eight dollars [$68]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; and that he shall undergo imprisonment in the Western Correctional Institution at Pittsburgh, Pennsylvania, for a period of not less than three and one half years nor more than seven years. This sentence to run consecutive to and to begin at the expiration of the sentence at No. 208 Criminal Sessions 1981. This sentence is suspended on condition that he maintain his employment and obey all the laws of the Commonwealth of Pennsylvania.
      BY THE COURT,
      /s/ Robert C. Earley Judge.
      COMMONWEALTH vs. BYRON BRUCE FERRIER
      IN THE COURT OF COMMON PLEAS . INDIANA COUNTY, PENNSYLVANIA
      No. 134 Crim. 1981
      AMENDED ORDER OF COURT
      AND NOW, August 3, 1981, the defendant having entered a plea of guilty to the offense of retail theft, the plea having been entered June 29, 1981, it is the sentence of this Court that he shall pay the cost of prosecution in the amount of sixty-eight dollars [$68]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana

        County in the amount of one hundred dollars [$100]; and in view of the sentences imposed at No. 208 and No. 133 Criminal Sessions 1981 no further sentence is imposed.
      BY THE COURT,
      /s/ Robert C. Earley Judge.

      . No. 208 Criminal Sessions 1981,
      ORDER OF COURT
      AND NOW, April 8, 1983, the Court Order dated August 3, 1981, is hereby vacated and it is ordered and directed that the defendant’s suspended sentence is hereby revoked and the following sentence is imposed:
      It is ordered and directed that the defendant shall pay the cost of prosecution in the amount of sixty-eight dollars and fifty cents [$68.50]; that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; that he shall undergo imprisonment in the Western Correctional Institution at Pittsburgh, Pennsylvania for a period of not less than five years nor more than ten years. In furtherance of this sentence it is directed that he shall be taken to the Western Diagnostic and Classification Center located at the State Correctional Institution at Pittsburgh, Pennsylvania. Credit to be given for any time served on account of this offense. And he stands committed until this sentence is complied with.
      BY THE COURT,
      /s/ Robert C. Earley President Judge.
      No. 133 Criminal Sessions,
      ORDER OF COURT
      AND NOW, April 8, 1983, the Order of Court dated August [3], 1981, is hereby vacated, said Order having a suspended sentence at the above term and number and the following Order is hereby imposed:
      It is ordered and directed that the defendant pay the cost of prosecution in the amount of sixty-eight dollars [$68]; that he pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]; and that he shall undergo imprisonment in the Western Correctional Institution of Pittsburgh, Pennsylvania, for a period of not less than three and one half years nor more than seven years. This sentence to run consecutive to and to begin at the expiration of the sentence imposed at No. 208 Criminal Sessions 1981. In furtherance of this Order he shall be taken Western Correctional Institution at Pittsburgh. Credit to be given for any time served on account of this offense and he stands committed until this sentence is complied with.
      BY THE COURT,
      /s/ Robert C. Earley President Judge.
      No. 134 Criminal Sessions 1981,
      ORDER OF COURT
      AND NOW, April 8, 1983, the Court Order dated August 3, 1981, is hereby vacated by virtue of the fact the suspended sentence has been revoked and it is ordered and directed that the defendant shall pay the cost of prosecution in the amount of sixty-eight dollars [$68]; and that he shall pay a fine to the Commonwealth of Pennsylvania for use of Indiana County in the amount of one hundred dollars [$100]. In view of the sentence imposed at No. 208 and No. 133 Criminal Sessions 1981 no further sentence is imposed.
      BY THE COURT,
      /s/ Robert C. Earley President Judge.

      . The record discloses no reason for the amended order, and the fact that the only change effected was to eliminate any reference to probation suggests that the sentencing court determined that probation was unnecessary. The sentencing judge has declined to prepare an opinion in which he might have suggested his reasons for eliminating probation.


text:
    473 A.2d 1379
    Frances GRUBE, Appellant, v. Manrico TRONCELLITI, M.D.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1983.
    Filed March 23, 1984.

      Roger S. Spalding, Philadelphia, for appellant.
    A. Arthur Hanamirian, Philadelphia, for appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from the judgment entered on the order of Court of Common Pleas of Montgomery County, per the Honorable Mason Avrigan, denying appellant’s motion for new trial and motion in arrest of judgment. We find that the trial court erroneously applied the law and therefore grant a new trial.

The appellant herein instituted a medical malpractice action on August 3, 1978, by filing a complaint in Trespass with the Administrator of the Arbitration Panels for Health Care in accordance with the Pennsylvania Health Care Services Malpractice Act (hereinafter “Act”).

In May of 1980, a hearing was conducted before a three member arbitration panel as required by Section 402 of the Act. 40 P.S. § 1301.402. The arbitrators decided unanimously to award the appellant $140,000.00. Thereafter, the appellee, Dr. Manrico Troncelliti, took an appeal de novo to the Court of Common Pleas of Montgomery County in accordance with Section 509 of the Act. 40 P.S. § 1301.-509.

On September 15, 1980, the case was called to trial, but after jury selection, appellee’s counsel became ill and a mistrial was declared. On September 22, 1980, the Pennsylvania Supreme Court decided Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), in which Section 309 of the Act, 40 P.S. § 1301.309, was found to be unconstitutional.

The instant case proceeded to trial on September 29, 1980, before a judge and jury. At the close of the case in chief, appellant made a motion to read into the record the findings of fact and the decision of the arbitrators as provided by Section 510 of the Act, 40 P.S. § 1301.510. The appellee objected to the introduction of such evidence on the basis of Mattos and the trial court sustained the objection. At the close of the trial, a verdict was returned in favor of the appellee. The appellant’s post-verdict motions were denied and this appeal followed.

Appellant raises only one question for our consideration. Did the trial court err in refusing to permit the appellant to introduce the decision and findings of fact of the arbitrators at the de novo trial? We find the trial court was in error.

In order to establish the groundwork for our analysis herein, it is helpful to look to two cases in which our supreme court dealt with attacks on the Act; i.e., Mattos v. Thompson, supra; and its progenitor, Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978).

In Parker, the court upheld the validity of the compulsory arbitration provisions of the Act. The appellants therein raised several grounds upon which they sought to have the Act found unconstitutional. Two questions decided by the Parker court are most pertinent herein. First, they decided that Section 309, 40 P.S. § 1301.309, requiring the parties to proceed first to arbitration prior to receiving a trial by jury, did not violate the provision of the Pennsylvania Constitution guaranteeing the right to a trial by jury. Id., 483 Pa. at 120, 394 A.2d at 938. Second, they decided that Section 510 of the Act, 40 P.S. § 1301.510, did not offend Article I, Section 6 of the Pennsylvania Constitution (by putting evidence before the jury which would interfere with their function as the final arbiter of fact).

In specifically upholding the validity of Section 510, the court said:

While this section admittedly is designed to discourage the meritless appeal it does not foreclose the right to seek' a jury resolution of the controversy nor does it abridge or curtail any of the incidents of that right. This section speaks only to the admissibility of the decision and the findings of fact of the arbitrators. It neither places that information in the status of a presumption nor does it shift the burden of going forward with evidence or change the burden of persuasion. The jury remains the final arbiter of the issue raised and the facts presented.

Id. 483 Pa. at 122-23, 394 A.2d at 941.

Less than two years later, the court rendered its decision in Mattos v. Thompson, supra, in which Section 309 of the Act was again challenged on constitutional grounds; specifically, it was contended that:

(1) The arbitration process created by the Act is filled with such interminable delay that it violates the guarantees in the state constitution of access to the courts, justice without delay and the right to jury trials.
(2) By requiring litigants to try a complicated and expensive malpractice action in arbitration prior to being permitted a jury trial, the Act places an onerous and impermissible condition on the right to jury trials.
(3) The Act and its procedures deny medical malpractice victims procedural due process guaranteed by the fourteenth amendment to the United States Constitution because the physician member of the panel has an impermissible financial interest in the outcome of the litigation.

Id., 491 Pa. at 388, 421 A.2d at 191. The court considered the empirical evidence presented by the appellant and found that it supported the first and second contentions. They held:

We are compelled, therefore, to declare unconstitutional section 309 of the Act, 40 P.S. § 1301.309, giving the health care arbitration panels ‘original exclusive jurisdiction’ over medical malpractice claims because the delays involved in processing these claims under the prescribed procedures set up in the Act result in an oppressive delay and impermissibly infringes upon the constitutional right to a jury.

Id., 491 Pa. at 396, 421 A.2d at 196. The language employed leaves little doubt as to the scope of the court’s decision. Only Section 309 was found to be unconstitutional. The court was not called upon to decide, nor did they decide, the constitutionality or continuing efficacy of those remaining provisions of the Act pertaining to arbitration. It is the latter question which is before us in the present case.

We note initially that the Act contains a severability clause, Act of October 15, 1975, P.L. 390, No. Ill, § 1007, which expresses the legislative intent that the provisions of the Act are to be separable. We further note the general principle of construction embodied in the Statutory Construction Act, 1 Pa.C.S.A. § 1925, which is coextensive with the more specific provision.

Our courts have frequently faced the problem of whether or not to sever partially valid and partially invalid statutory provisions. The authoritative case of Saulsbury v. Bethlehem Steel Company, 413 Pa. 316, 196 A.2d 664 (1964), is particularly instructive. In Saulsbury, the court stated that:

In determining the severability of a statute or ordinance, the legislative intent is of primary significance. However, the problem is twofold: The legislating body must have intended that the act or ordinance be separable and the statute or ordinance must be capable of separation in fact. The valid portion of the enactment must be independent and complete within itself. See, Sutherland, Statutory Construction, Vol. 2 (3d ed. 1943) §§ 2403, 2404, and cases cited; also, Cooley, Constitutional Limitations, Vol. 1, (8th ed.) Chapter VII, at 368.

Id., 413 Pa. at 321, 196 A.2d at 667. (emphasis in original). See also Commonwealth v. Liquor, 46 Pa.Commw. 490, 407 A.2d 83 (1979); G.H. McShane, Co. v. Travelers Indemnity Co., 262 Pa.Super. 80, 396 A.2d 654 (1978). In the case of Section 510, 40 P.S. § 1301.510, the legislature, by inclusion of the severability clause, has expressed its intent that the constitutional provisions should stand even as their unconstitutional adjunct has fallen. Once the legislature has expressly indicated an intention that certain legislation should be severable, that intention must be given great weight.

In Commonwealth, Department of Education v. First School, 471 Pa. 471, 370 A.2d 702 (1977) a non-public school aid program, which had been declared unconstitutional for parochial schools, was found by the court to be valid for non-sectarian schools. In First School, as in the instant case, the General Assembly expressed its intent that the legislation be severable. Justice Roberts, speaking for the court, addressed the severability issue in footnote 16:

16. Whether or not one part of a statute can survive the excision of another part which has been held invalid is a question of statutory construction, and in determining it the court searches for the intention of the legislature. In the present instance the legislature has expressed its intention [by including severability clause]____ While such an expression of legislative intent is not always conclusive, ordinarily it is but little short of a mandate. Rieck-McJunkin Dairy Co. v. Milk Control Commission, 341 Pa. 153, 162, 18 A.2d 868, 871-72 (1941). (Emphasis in original).

Id. 471 Pa. at 479, 370 A.2d at 706. Since the General Assembly in the case at bar waited until after the Act had been challenged in court to express an intention that the Act be severable, their expression should be considered “little short of a mandate.”

The more difficult question is whether Section 510 is capable of separation in fact. Section 309 found to be unconstitutional in Mattos was the section of the Act that granted arbitration panels “original exclusive jurisdiction” of medical malpractice claims. What remained after Mattos was a voluntary arbitration procedure for handling medical malpractice claims rather than a mandatory one. Section 510 of the Act permits the finding of the panel to be admitted into evidence at a subsequent trial. The purpose of this section was to discourage meritless appeals and prevent the arbitration process from being used as a dress rehearsal. In our view this purpose is equally applicable whether the arbitration process is mandatory or voluntary.

In light of the great weight which must be afforded the expressed intention of the legislature and because Section 510 is capable of separation in fact, we must conclude that Section 510 remains valid. Consequently, we conclude that the trial court erred in not permitting the appellant to place the findings of the arbitration panel before the jury and that the error necessitates a new trial. Thus, the judgment of the trial court is vacated and the case remanded for a new trial.

Vacated and remanded. Jurisdiction is not retained.

      . Act of October 15, 1975, P.L. § 390, No. Ill, § 101 et seq., 40 Pa.C.S.A. § 1301.101 et seq.

      . § 1301.509 Judicial review
      Appeals from determinations made by the arbitration panel shall be a trial de novo in the court of common pleas in accordance with the rules regarding appeals in compulsory civil arbitration and the Pennsylvania Rules of Civil Procedure.

      . § 1301.309 Jurisdiction of arbitration panel
      The arbitration panel shall have original exclusive jurisdiction to hear and decide any claim brought by a patient or his representative for loss or damages resulting from the furnishing of medical services which were or which should have been provided. The arbitration panel shall also have original exclusive jurisdiction to hear and decide any claim asserted against a nonhealth care provider who is made a party defendant with a health care provider.

      . § 1301.510 Admissibility of record on appeal
      Where an appeal is taken the decision, and findings of fact, if any, of the arbitration panel shall be admissible as evidence before the court; provided, however, that any award of damages shall not be admissible as evidence.

      . Section 1007.1. Severability. — If any provision or clause of this act or the application thereof to any person or situation is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severable.

      . § 192S. Constitutional construction of statutes
      The provisions of every statute shall be severable. If any provision of any statute or application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statutes are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.