text:
    633 A.2d 1195
    Shirley COCHRAN, Administratrix of the Estate of William A. Cochran, Deceased, and Shirley Cochran, In Her Own Right, Appellant, v. GAF CORPORATION, Raymark Industries, Celotex Corporation, Successor-In-Interest to Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Keene Building Products Corporation, Eagle-Picher Industries, Inc., Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Garlock, Inc., A-Best Products Company, Pittsburgh Corning Corporation, Armstrong World Industries, Inc., Nicolet Industries, Inc., Successor-In-Interest to Keasby & Mattison, H.K. Porter Company, Inc., Combustion Engineering, Successor-In-Interest to Dietrich Company, Fibreboard Corporation, General Refractories Company, Inc., A.P. Green Refractories Company, Carey-Canada, Inc., Successor-In-Interest to Carey Canadian Mines, Ltd., and Quebec Asbestos Corp., Anchor Packing Company, Universal Refractories, Division of Theim Corporation, A Subsidiary of Koppers, Ferro Engineering, Division of Oglebay Norton Company, Foseco, Inc., Allied Glove Corporation, BMI, Inc., Harbison-Walker Refractories, Inc., Pittsburgh Gage Company, F.B. Wright Company, Earl B. Beach Company, George V. Hamilton, Inc., North American Refractories Company, Division of Eltra Corporation, and Kaiser Refractories, Division of Kaiser Aluminum & Chemical Corporation, Hedman Mines, Ltd., Argo Packing Company, Flexitallic Gasket Corporation, Foster Wheeler Corporation, in its Own Right and as Successor-in-interest to Forty-Eight Insulations, Inc., Nichias Corporation, Safety First Industries, Inc.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Nov. 1, 1993.

      Antonio D. Pyle, Pittsburgh, for appellant.
    Gary Roberson, Pittsburgh, for Owens-Corning, appellee.

      Concetta A. Silvaggio, Pittsburgh, for A-Best Products & Combustion Engineering, appellees.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

This is an appeal from an order entering summary judgment in favor of manufacturers of asbestos products on grounds that the action against them was barred by the statute of limitations. After careful review, we affirm.

William A. Cochran was employed by Jones & Laughlin Steel Corporation from 1943 to 1944 and from 1949 to 1982 as a boilerhouse attendant, steel worker and bricklayer. During the course of his employment, Cochran was allegedly exposed to various asbestos-containing products. In the summer of 1981, Cochran aggravated a prior work related injury and was admitted to the hospital on June 3, 1981, with a diagnosis being made of “acute lumbrosacral spike strain with radiculitis.” Chest x-rays taken upon admission, however, disclosed a mass in one of his lungs. A lung resection was performed on June 17, 1981, and produced a postoperative diagnosis of “adenocarcinoma right upper lobe,” a form of lung cancer. Histologic tissue slides disclosed asbestos bodies.

Cochran returned to work following discharge from the hospital, but he retired in 1982. When he applied for social security benefits, he was examined by Dr. Milton Bilder. Dr. Bilder’s report suggested that Cochran was suffering from pulmonary emphysema and also disability resulting from the surgery for cancer and other “definite pulmonary function defects.”

Cochran re-entered the hospital in March, 1985, when a second lung resection was performed. The postoperative diagnosis was an adenocarcinoma of the left lower lobe. Following this surgery, Cochran consulted a lawyer, who arranged for an examination by Dr. Howard E. Reidbord of the histologic slides of tissue which had been removed during the 1981 and 1985 resections. Dr. Reidbord, having observed the asbestos bodies in the slides of tissue removed in 1981, concluded that both carcinomas “were, to a significant degree, related to his exposure to and inhaling of asbestos fibers [which] are well recognized as being a significant contributing factor in the high incidence of lung cancer in workers exposed to asbestos.”

On September 27, 1985, Cochran and his wife commenced an action for damages against numerous manufacturers of asbestos products. Cochran died on December 31, 1985. A suggestion of death was filed in March, 1988, and Cochran’s widow, as administratrix of his estate, was substituted as a party plaintiff. On or about November 13, 1991, George V. Hamilton, Inc. and A-Best Products Company, Inc., defendants, moved for summary judgment on grounds that the action was barred by the statute of limitations. Owens-Corning joined the motion. On November 18, 1991, the trial court, per the Honorable I. Martin Wekselman, entered an order granting the motion for summary judgment and dismissing the action. Plaintiff appealed.

In her argument in this Court, appellant does not contend that the carcinomas removed in 1981 and 1985 were separate diseases. See and compare: Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), and Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992). She contends, rather, that both were part of the same disease but argues that the statute of limitations should not begin to run until 1985, when Dr. Reidbord examined the tissue slides from the 1981 surgery and found the presence of asbestos bodies. We shall consider the case in the manner in which it has been presented.

It is well settled that the statute of limitations will begin to run on one’s cause of action “as soon as the right to institute and maintain a suit arises.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). “[A] party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Id. The “discovery rule” is an exception to the rule which arises from the inability of an injured person, despite the exercise of due diligence, to know of the injury or its cause. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992).

Regarding creeping disease cases, this Court said in Ingenito v. AC &S, Inc., 430 Pa.Super. 129, 131-132, 633 A.2d 1172, 1174-75 (1993):

In creeping diseases cases, it has been held, the statute of limitations begins to run when the injured person “knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 136-137, 471 A.2d 493, 500 (1984) (footnote omitted). “A court presented with an assertion of applicability of the ‘discovery rule, must, before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra at 85, 468 A.2d at 471. “ ‘The standard of reasonable diligence is an objective or external one that is the same for all individuals.’ ” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985), quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982). “We evaluate the plaintiffs conduct in terms of what he should have known at a particular time by following a course of reasonable diligence. If a party has the means of discovery within his power but neglects to use them, his claim will still be barred.” Burnside v. Abbott Laboratories, supra 351 Pa.Super. at 292, 505 A.2d at 988. See: DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super 492, 508, 460 A.2d 295, 303 (1983). A plaintiff does not need to know that he has a cause of action, or that he has suffered an injury due to another party’s wrongful conduct. “ ‘[0]nce [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.’ ” Burnside v. Abbott Laboratories, supra at 291, 505 A.2d at 987-988, quoting Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984) (emphasis omitted). A diligent investigation may require one to seek further medical examinations as well as competent legal representation. Souders v. Atlantic Richfield Co., 746 F.Supp. 570, 573 (E.D.Pa.1990), citing United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259, 270 (1979).
The polestar of the Pennsylvania discovery rule is not a plaintiffs actual acquisition of knowledge but whether the information, through the exercise of due diligence, was knowable to the plaintiff. Owens v. Lac D'Amiante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa.1987), aff'd, 833 F.2d 306 (3d Cir.1987). The failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law. Id. See also: Bickford v. Joson, M.D., 368 Pa.Super. 211, 533 A.2d 1029 (1987), allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988).

In the instant case, Cochran knew, at the latest in June, 1981, that he had lung cancer. That his cancer was causally related to his prior exposure to asbestos could have been ascertained by the exercise of reasonable diligence. The cause was to be found in the tissue removed during surgery and thereafter preserved in slides. If Cochran had consulted a physician and/or a lawyer in 1981, as he did in 1985, the presence of asbestos bodies in the tissue could have been ascertained. Indeed, even such consultation was unnecessary. By making inquiry of the surgeon who performed the surgery or the hospital where the surgery was conducted, the presence of asbestos bodies could have been ascertained. The exercise of due diligence required that inquiry be made. The failure to make inquiry when information was available was the failure to exercise due diligence as a matter of law. Ingenito v. A C & S, Inc., supra 430 Pa.Super. at 131, 633 A.2d at 1174. See also: Owens v. Lac D’Amiante Du Quebec, Ltee., supra. Under the circumstances of this case, the trial court properly determined that Cochran had failed “to use all reasonable diligence to be properly informed of the facts and circumstances upon which a ... right of recovery [was] based and to institute suit within the prescribed statutory period.” Love v. Raymark Industries, Inc., 430 Pa.Super. 142, 144, 633 A.2d 1185, 1187 (1993), quoting Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra 503 Pa. at 84, 468 A.2d at 471.

Affirmed.

FORD ELLIOTT, J., files a Dissenting Opinion, in which DEL SOLE and KELLY, JJ., join.

FORD ELLIOTT, Judge,

dissenting:

The reasons for my dissent, generally, have been thoroughly discussed in my dissenting Opinion in Ingenito v. A C & S, Inc., et al., 430 Pa.Super. 129, 633 A.2d 1172 (1993). That same reasoning applies with equal force in this case. Therefore, I will only undertake a review of relevant facts in this case which I believe demonstrate that summary judgment was improperly granted by the trial court on the record before it.

My review of the record leads me to conclude that there were certainly questions of fact as to whether decedent exercised due diligence in ascertaining his injury and its cause. The majority focuses upon the fact that decedent was diagnosed with lung cancer in 1981, and that during his surgery tissue was removed, and preserved in slides that indicated the presence of asbestos bodies. Thus, because the evidence was available as of 1981, decedent failed to exercise due diligence in ascertaining the cause of his cancer at that time, according to the majority. Indeed, a jury might very well agree that decedent failed to exercise due diligence.

However, a jury could just as well conclude that, under the circumstances, decedent acted reasonably in not ascertaining his injury until 1985. Following decedent’s 1981 surgery he was discharged with a diagnosis of “adenocarcinoma of the right upper lobe of the lung” or lung cancer, generally. At that time decedent was smoking one' to one and one-half packs of cigarettes per day and had been since 1947. There was never any discussion with decedent that his lung cancer was work-related. In fact, following the 1981 surgery; decedent had no significant medical problems until 1985, when he was again admitted to Montefiore Hospital after chest X-rays revealed a second lung mass. It was during this admission that any reference to asbestos exposure was first noted on the medical records. Interestingly, by this time appellant had not smoked in three years. Immediately following the 1985 surgery, decedent retained an attorney to investigate the matter. It was then that Dr. Reidbord was consulted and the asbestosis was confirmed. Suit was filed within two months of Dr. Reidbord’s investigation. I believe that all these factors could well support a jury conclusion that decedent acted with due diligence in ascertaining his injury and the cause thereof.

The majority’s conclusion, that decedent failed to exercise due diligence when he did not inquire as to the cause of his cancer following the 1981 surgery, fails to consider the record in a light most favorable to appellant as we are required to do. See Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991). Considering the record in a light most favorable to appellant, we must consider that at the time of the 1981 surgery nothing was mentioned to decedent about the tissue slides or that the cancer could be work related. Recall, decedent was cleared to return to work following the surgery. It is not unreasonable to infer that decedent assumed the lung cancer was related to his smoking habit and thus made no further inquiries as to causation at that time. The inference is bolstered by the fact that the one significant change appellant made in his lifestyle following the 1981 surgery was to stop smoking. Later, in 1985, when decedent again was forced to undergo a second lung surgery and asbestos was first mentioned in the medical records, decedent immediately sought legal counsel to investigate the matter. I believe these facts cannot be interpreted, as a matter of law, as a failure to exercise due diligence.

As I discussed at length in Ingénito, unless the record clearly demonstrates that decedent knew or should have known that his cancer was asbestos related, then such a diagnosis, at most, triggers a duty of due diligence. Whether decedent exercised due diligence is a matter, based on this record, that is “best determined by the collective judgment, wisdom, and experience of jurors.” Petri v. Smith, 307 Pa.Super. 261, 272, 453 A.2d 342, 347 (1982).

DEL SOLE and KELLY, JJ. join in this Dissenting Opinion.

      . Prior to 1982, Cochran also smoked approximately one to one and one-half packs of cigarettes per day.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    633 A.2d 1199
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel R. GORDON.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Nov. 17, 1993.

      Carolyn L. Darringer, Asst. Dist. Atty., Reading, for Com., appellant.
    Franklin W. Noll, III, Reading, for appellee.
    Michael S. Sherman, Harrisburg, amicus curiae.
    Before WIEAND, CIRILLO and HESTER, JJ.
   HESTER, Judge:

This is a direct appeal from the entry of a Berks County Court of Common Pleas order granting an arrest of judgment to Daniel R. Gordon. The Commonwealth maintains that the trial court improperly interpreted controlling case law and statutory authority in granting appellee’s motion. We agree and reverse the order.

The facts in this case, as found by the trial court, follow.

This is a speeding case. The defendant was given a citation charging him with driving a motor vehicle on January 1, 1992 at 73 m.p.h. in a 55 m.p.h. zone in violation of § 3362(a)(2) of the Vehicle Code.
The defendant pleaded “Not Guilty”, a summary trial was held before the appropriate District Justice and at the conclusion of the trial the District Justice found the defendant guilty as charged and sentenced him to pay the statutory fines and costs.
The defendant filed a timely appeal from the judgment of the District Justice and on September 23, 1992, the matter came before us for a trial de novo in the Court of Common Pleas.
At that trial de novo the Commonwealth showed that the defendant’s speed had been checked by a state policeman using a radar device of a type approved by the Secretary of Transportation. The Commonwealth also showed that YIS, Inc., was a radar testing station approved by the Secretary.
At this point the Commonwealth offered into evidence a document which purported on its face to be a Certificate from YIS, Inc., stating that the radar device in question was of a type approved by the Department of Transportation and had been checked for accuracy by YIS, Inc., within sixty (60) days of the alleged violation. This document also showed that turning fork # 1620 had been tested and found accurate. Finally, the document had what appeared to be a signature following the words “Signature of Person Making Test or Calibrating”, and what appeared to be another signature following the words “Signature of Engineer or Metrologist in Charge of Official Testing Station”.
The defendant objected to the admission of this document on the ground that the Commonwealth had established no basis for its admission.
The state police officer was the only witness called by the Commonwealth. He testified that he had first seen the document in question on the morning of the summary trial and that he did not recognize the signatures appearing on the document. He did not identify the signatures a being the signatures of the person who tested the device or of the engineer in charge of the testing station, or for that matter of anyone employed by YIS, Inc.

Trial Court Opinion, 3/8/93, at 1-2.

The trial court overruled the defendant’s objection and admitted the document into evidence. The defendant moved to have all charges against him dismissed. The motion was denied, and he was found guilty as charged. He then filed a motion for a new trial or arrest of judgment. In support of his motion, defendant argued that the trial court erroneously admitted the certificate offered into evidence by the Commonwealth as the Certificate of Radar Accuracy from YIS, Inc. The court adopted the defendant’s argument and reasoned that the certificate was authenticated improperly because the trooper who testified could not identify the signatures of the individuals who had signed the certificate. Since the Commonwealth stated that it would produce no more information than that which it already had offered into evidence, the court opined that there was no reason to grant a new trial. Instead, it arrested judgment. This appeal followed.

The Commonwealth argues that the trial court misinterpreted the statutory requirements and the existing case law regarding the classification and approval of speed testing devices. It maintains that correct procedures were followed in the use of the device by Trooper Focht and in the presentation of the certificate of accuracy into evidence. Upon appeal by the Commonwealth from an order arresting judgment, we

must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crime[ ] charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968).

Commonwealth v. Wilcox, 400 Pa.Super. 463, 465-466, 583 A.2d 1208, 1209 (1990), citing Commonwealth v. Robinson, 351 Pa.Super. 309, 311-312, 505 A.2d 997, 998 (1986), quoting Commonwealth v. Nelson, 245 Pa.Super. 33, 36, 369 A.2d 279, 280 (1976).

The section of the Vehicle Code which deals with speed timing devices provides in relevant part:

The department may, by regulation, classify specific devices as being mechanical electrical or electronic. All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The certification and calibration of electronic devices under subsection (c)(3) shall also include the certification and calibration of all equipment, timing strips and other devices which are actually used with the particular electronic device being certified and calibrated. The devices shall be tested within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and tests were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S. § 3368(d) (emphasis added).

The holdings of our courts have long reflected the literal application of the above statute. Specifically, with respect to the admissibility of the Certificate of Radar Apparatus accuracy, (“Certificate”), we consistently have held that in a speeding prosecution, the Certificate is admissible to prove the accuracy of the radar apparatus, but not to prove that the apparatus was of a type approved by the Secretary of the Department of Transportation, (“Secretary”). We reiterated that the Certificate is prima facie evidence of the accuracy of the machine, thereby placing the burden of proof on the motorist to establish that the machine was not accurate. See Commonwealth v. Perdok, 411 Pa. 301, 192 A.2d 221 (1963).

In Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980), we clarified the requirements which need to be established prior to the introduction of the Certificate under section 3368 of the Vehicle Code:

The Certifícate of Electronics Device (radar) Accuracy must be signed by the person who performed the tests and the engineer in charge of the testing station, must show that the device was accurate when tested and the results thereof, and must show, on its face, that the particular device was tested within sixty (60) days of the date it was used to calibrate the particular defendant’s speed.

Id., 276 Pa.Super. at 424, 419 A.2d at 530. In Gernsheimer, the motorist argued that the Certificate was not admissible because it did not contain an official seal. The court held that an official seal was not required by 75 Pa.C.S. § 3368(d). Furthermore, the court held that as long as evidence is admitted which proves that the testing center was approved by the Secretary, and as long as the Certificate is signed by the appropriate, designated individuals, the -Commonwealth had met its burden with regard to the requirements of 75 Pa.C.S. § 3368(d).

In addition, we stated that in cases where an electronic device has been used to calibrate a defendant’s speed, before the Commonwealth may introduce the results into evidence, it must offer proof that the agency testing the accuracy of the device is approved by the Secretary, the Certificate must be signed by the individual who performed the test and the engineer in charge of the station, and the Certificate must show on its face that the device was tested and bear the results of that testing. Furthermore, the device must have been tested within sixty days of the date it was used to calibrate the speed in question.

In Commonwealth v. Cummings, 338 Pa.Super. 149, 487 A.2d 897 (1985), the sole issue was whether the Commonwealth could introduce into evidence a photocopy of the Certificate of stopwatch accuracy in accordance with the statutory hearsay exception for business and public records, 42 Pa.C.S. § 6109(b), in satisfaction of 75 Pa.C.S. § 3368(d). We held that a copy was not admissible because the Commonwealth did not authenticate the document as required by 42 Pa.C.S. § 6108(b). Specifically, the trooper could not testify whether the photocopy was a true copy of the original: therefore, it could not be authenticated. Furthermore, we held that the Certificate did not qualify as a business or public record under § 6109(b). We reasoned that since 75 Pa.C.S. § 3368(d) applies specifically to offers of proof in speeding eases, it takes precedence over the general requirements of the Official Documents Law, 42 Pa.C.S., 5328, in speeding cases.

In Commonwealth v. Denny, 372 Pa.Super. 317, 539 A.2d 814 (1987), a motorist argued that the Certificate was inadmissible because the Commonwealth failed to present independent evidence that the testing center was approved by the Department of Transportation. We held that independent evidence of the certificate itself must be offered in order to prove that the testing station is approved by the Secretary. “This independent evidence may consist of either a separate document from the Secretary under seal or a citation to the Pennsylvania Bulletin which lists the station as an approved testing station.” Id., 372 Pa.Super. at 323, 539 A.2d at 816.

In Commonwealth v. Hamaker, 373 Pa.Super. 510, 541 A.2d 1141 (1988), there was no dispute that the device had been approved by the Department of Transportation and that it had been tested at an approved station, and according to the Certificate, the device had been tested within sixty days of the violation. Rather, the motorist argued that the Certificate was not admissible because the trooper who used the device to clock the motorist’s speed had failed to perform the recommended field checks on the day the violation was recorded. We held that the Commonwealth was not required to furnish additional proof of the accuracy of speed timing device under field cheeks listed in operator’s manual. See 75 Pa.C.S. §§ 3363, 3368(d). Therefore, we held that appellant’s attempt to challenge the validity and accuracy of the calibration test result failed.

In Commonwealth v. Nernberg, 402 Pa.Super. 411, 587 A.2d 317 (1991), a motorist argued that the Certificate was inadmissible because there was no indication that the signatures of the individuals who signed the Certificate were authorized to represent the testing station which tested the accuracy of the radar device, as required by the statutory language found in 75 Pa.C.S. § 3368(d), “from the station.” We held that the language contains no such requirement and added that it would be “unreasonable to conclude that those persons conducting accuracy calibrations on behalf of YIS, Inc., an official testing station, were in any way unauthorized to do so merely because no officer of YIS, Inc., was also a signatory to the certificate.” Id., 402 Pa.Super. at 414, 587 A.2d at 318-319.

While it is clear that none of these cases adequately address the issue at hand, nonetheless, they are proffered by appellee in support of his novel approach to challenge the implied requirements of the statue. However, none of these cases stands for the proposition for which they are offered, and none of them represents binding precedent. Therefore, they cannot be offered to support the appellee’s argument or uphold the trial court’s decision to arrest appellee’s judgment.

However, a review of these cases establishes that our focus must be on the literal interpretation of the statutory language. We have set forth a clear message, based on an equally clear statute. There are no implied requirements. It is with this standard in mind that we address the fallacies of the arguments presented by appellee. Appellee correctly states that the proof of accuracy of the electronic device is an essential element of the Commonwealth’s case, and cites Commonwealth v. Simons, 214 Pa.Super. 337, 257 A.2d 694 (1969), in support. He argues that the Commonwealth is required to prove that the Certificate, which is offered as proof of accuracy of the radar device and offered into evidence, is authentic. In Cummings, we rejected the offer of a photocopy into evidence where the Commonwealth could not authenticate the document. Simply stated, we required that photocopies be authenticated properly before they could be entered into evidence. We have no quarrel with appellee’s statements or his recitation of the Commonwealth’s requirements based upon precedent.

While this is not an issue instantly, the language in Cummings forms the basis for appellee’s contention that the certificate of accuracy was inadmissible since the Commonwealth did not offer independent proof as to the origin or the identity of the signatures on the document. Appellee contends that our holding in Cummings implies that because we require the Commonwealth to authenticate a photocopy of the Certificate before it can be admitted into evidence, the Commonwealth also is obligated to authenticate the signatures of the individuals who are required to sign the Certifícate before it can be offered into evidence. Appellee argues that this verification is necessary to satisfy the requirement to prove that the document, in fact, is a YIS Certificate of Accuracy.

Our review of the statute and the existing case law reveals that there is no requirement to authenticate the signatures on the Certificate before the document can be admitted into evidence. In fact, appellee’s conclusion represents a direct contradiction of the existing law. The statute regards the original Certificate as prima facie evidence of the fact that the calibration and test were made within the required time period. Therefore, as written, the statute does not require proof that the Certificate offered into evidence is a valid YIS Certificate. Our case law merely requires authentication that the document offered into evidence is, indeed, a photocopy of the original Certificate.

Appellee also cites Gernsheimer and Nernberg for the proposition that the Certificate must be signed by the individual conducting the calibration test and the engineer. We acknowledge that the presence of these signatures is mandatory. Instantly, however, this is not an issue as the Certificate offered into evidence complied with this requirement. Neither of these cases nor the statute which guides the holdings support appellee’s contention that the law requires proof that the signatures which appear on the Certificate are those of the individuals that they purport to be, before the Certificate can be admitted into evidence. Once again, we reiterate that the document is prima facie evidence. Accordingly, the burden would be on the defendant to disprove the validity of the signatures on the document.

Likewise, appellee mistakenly relies upon our holding in Commonwealth v. Denny, supra, for support. We conclude that the language in Denny is not binding precedent on this case since it does not address the specific issue raised herein. Instantly, the Certificate was not offered as proof that either the testing station or the radar device was approved by the Secretary. Herein, the trial court took judicial notice of these facts based upon independent evidence which was provided.

Therefore, neither the statutory authority nor the case law require authentification of the signatures. The Commonwealth presented the original Certificate of accuracy to the trial court, offered a photocopy into evidence, presented independent evidence to the court which proved that the testing center and the electronic device were approved by the Secretary, and documented that the device had been tested within sixty days prior, to the violation. Furthermore, the officer testified that he had conducted the field tests which were' recommended by the manufacturer to insure the accuracy of the instrument on the day of the violation. The officer also testified that the vehicle was isolated on the roadway and that he never lost sight of the vehicle once it was clocked.

The record reveals that the Commonwealth fully complied with all necessary requirements. We conclude, therefore, that the Certificate of accuracy properly was admitted into evidence. Furthermore, we conclude that the Commonwealth has proven beyond a reasonable doubt that appellee was driving in excess of the speed limit, 75 Pa.C.S. § 3362; the speed timing device was approved by the Secretary, 75 Pa.C.S. § 3368(d); and the speed timing device had been tested for accuracy by an approved testing station, 75 Pa.C.S. § 3368(d). Accordingly, we find that the Commonwealth presented sufficient evidence to convict appellee as charged.

The order arresting judgment is reversed. Case is remanded for sentencing. Jurisdiction is relinquished.

       The Commonwealth proved these facts by reading the provisions of the Pennsylvania Bulletin into the record. These provisions stated that the radar unit used, a Falcon manufactured by Kustom Electronics, Inc., was of a type approved by the Secretary of Transportation and that the radar testing station, YIS, Inc., was a radar testing station approved by the Secretary. We can, and did, take judicial notice of the contents of the Pennsylvania Bulletin.

      . Herein, the Commonwealth produced the original Certificate at trial for inspection and validation. The photocopy was offered into evidence, with the approval of the defense, so that the state police could retain the original document.

      . These field tests are recommended by the manufacturer, but not mandated by law. See Commonwealth v. Hamaker, 373 Pa.Super. 510, 541 A.2d 1141 (1988).


author: POPOVICH, Judge:

text:
    633 A.2d 1204
    Estate of Bertha KLETT, Wayne Rodgers, Executor and/or Wayne Rodgers, Individually, Appellant, v. Carol EBOCH, Her Heirs and Assigns and Other Unnamed Parties, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed Nov. 8, 1993.

      Robert B. Manchester, Bellefonte, for appellant.
    Alan Kirk, Clearfield, for appellees.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

We are asked to review an order of the Court of Common Pleas of Clearfield County entering judgment in favor of the defendant, Carol Diane (Klett) Eboch, quieting title to a parcel of real estate against the plaintiffs/appellants, Estate of Bertha Klett, Wayne Rodgers, Executor and/or Wayne Rodgers, individually. We affirm.

This dispute was presented to the court below on a “case stated” basis, with the facts relevant to resolution of the matter agreed to by both sides. In 1945, a 5-year-old, Carol Diane (Klett) Eboch, was conveyed property by a benefactor, the reason for which was unknown. The deed was properly recorded. On May 1, 1951, the same property was transferred to Carol’s sister Donna Mae (Klett) Botwright, and recorded, but to which, according to the sworn affidavit of Donna, Carol never affixed her signature. The identity of the person who did execute the deed on behalf of Carol was not disclosed.

Thereafter, by deed recorded 1958, Donna conveyed the subject property to her and Carol’s mother, Bertha Walton Klett. During Bertha’s lifetime, she made declarations that the property at issue belonged to her. Upon Bertha’s death in December of 1990, her will was probated and devised the subject property to her grandson/executor, Wayne Rodgers. With the grant of letters of administration to Wayne, a Complaint By Devisee To Quiet Title was filed and alleged that the decedent occupied the property and held it out as her own for approximately 36 years, including approximately 21 years during which Carol was in her majority. Therefore, the executor argued, “even if there was a gift of property in question to the Defendant which was not negated by the later transfers to Donna Mae Klett and from thence to Bertha ... it still effectively reverted to ... Bertha ... by the principle of adverse possession.” Paragraphs 10 & 11.

All parties admitted that, save for the “hostility” criterion, all other elements of adverse possession had been established. Nonetheless, Carol denied having any knowledge of her ownership of the property until after her mother’s (Bertha’s) death, some 40 years after the 1951 transfer to Donna.

By opinion and order dated March 10, 1993, the court found that the “hostile” element necessary to prove adverse possession was missing from the equation since Carol was “unaware” that her ownership interest in the property was at risk. Without any knowledge that her mother’s ownership interest to the premises was in doubt, the court felt that: “To divest Defendant of her rightfully owned property would ... cause a grave injustice.” This appeal followed.

Initially, the plaintiffs/appellants contend that with the parties’ stipulation that all items of adverse possession were met, except for the element of hostility, the law permits the absent element of “hostility” to be implied. See Tioga Coal Co. v. Supermarkets General Corp., 519 Pa. 66, 546 A.2d 1, 3 (1988), wherein the Supreme Court refined the adverse possession rule to allow for the “implying” of hostility, regardless of the subjective state of mind of the trespasser, where all other elements of adverse possession have been established.

However, as true as the allowance of the Tioga Court to imply hostility in an adverse possession case is, we must not lose sight of the fact that the Court also wrote that the conduct of the interloper must be that which places the “record owner” on “notice” that his or her title to land is being undermined by actual, continuous, exclusive, visible, notorious and distinct possession by another; to-wit:

According to the dominant view among commentators on the law of real property, the requirements for acquiring title by adverse possession come down to a simple test. Has the adverse possessor so acted on the land in question as to give the record owner a cause of action in ejectment against him for the period defined by the statute of limitations? It matters not what the motives or the state of mind of the possessor are. What matters is the possessor’s physical relationship to the land over a sufficient length of time. Of course, if the possessor has the record owner’s permission, that changes the picture.
The possession is then no longer hostile in a legal sense, and no right to title will accrue to the possessor. But this, the argument runs, is precisely because the record owner has no cause of action against one whom he has permitted to occupy the land. The special situation shows the correctness of the underlying test.
The attractions of this view of adverse possession are great. It is securely tied to the statute of limitations, the foundation of the doctrine, which defines the period after which the record owner will lose his cause of action to recover the land from the trespasser. This view provides a workable test. By excluding inquiry into the possessor’s state of mind, it confines attention to external and verifiable facts. It may even promote the settling of land titles and the alienability of the land by more easily resolving disputes over titles.
Helmholz, “Adverse Possession and Subjective Intent,” 61 Wash.Univ.Law Quart. 331 (1983).
... most jurisdictions ‘deem the animus of the possessor irrelevant. Rather, they look to the actual physical facts of the possession to determine if such circumstances of notoriety exist so that the true owner is put on notice. ... ’
# # % # # ❖
Pennsylvania follows the majority view. See, e.g., Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972)....

519 Pa. at 71-73, 546 A.2d at 3 & 4 (Emphasis added). See also Concurring Opinion by Justice Larsen, who added that “where possession is sufficiently open and notorious to put the true owner on notice of an adverse claim, that possession is hostile.” Id. at 76, 546 A.2d at 5 (Emphasis added). Accord Sutton v. Miller, 405 Pa.Super. 213, 592 A.2d 83, 90-91 (1991). Where the situation is otherwise, e.g., possession held under rather than against the record title owner it cannot ripen into title. See Sutton, supra, 405 Pa.Super. at 226, 592 A.2d at 90; 3 Am.Jur.2d, Adverse Possession § 9 (1986).

In the same vein, our Supreme Court held that the act of hostility necessary to render possession adverse must be “brought home” to the owner of the property as a condition precedent to its effectuation. See Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174 (1955), a case in which one Robert N. Donaldson by deed of 1927 conveyed a tract of land to his daughter, Clara B. McClure, a portion of which he continued to use as his homestead until his death in 1931. It was admitted that Robert N. Donaldson was not aware that the portion of the tract used by him had been transferred to his daughter. Also, it was not contested that the segment of realty on which his homestead rested, which sat adjacent to the lot given to Clara, was devised to his son Walter for the duration of Walter’s life, with remainder to his children/the defendants.

Walter continued to occupy the portion conveyed to him from the date of his father’s death in 1931 until his own demise in 1950. His children continued to do the same until the date of trial. After Clara died in 1936, her heirs conveyed the property conveyed by her father to the plaintiffs. The plaintiffs brought an action in ejectment and the trial court directed a verdict in their favor. On appeal, our Supreme Court affirmed. In doing so, it wrote, in relevant part, that:

Where, as here, the parties holding legal title were unaware of the ownership and the parties in actual possession were likewise in ignorance of the record legal ownership, how can it be argued that there was any element of hostile possession until all the parties apparently become aware of such legal ownership of the disputed land....
While the word “hostile” has been held not to mean ill mil or hostility, it. does imply the intent to hold title against the record title holder. Clara B. McClure was the record title holder after the conveyance to her of the disputed land by her father in 1927. The entire case of the defendants is to the effect that she never knew that this portion of the lot had been conveyed to her. This brings the case clearly within the principle laid down in Milnes v. Van Giler, 197 Pa. 347, 47 A. 197, which holds that the grantee must have notice of the hostile intent of the grantor or those claiming through the grantor, in this case being the predecessors in title of the defendants, to wit, Robert N. Donaldson, and Walter E. Donaldson.
This principle that notice of the hostile intent must be brought home to the grantees, is particularly applicable where the vendor continues in possession after the conveyanee of the land to the grantee. It has long been the law in Pennsylvania that as between a grantor and a grantee in a deed, the continued possession of the grantor after the date of the delivery of the deed can never give rise to title by adverse possession unless and until the privity between the vendor and vendee is severed by some unequivocal act. Olwine v. Holman, 23 Pa. 279.
To create any possible title by adverse possession it has been held that the grantor must manifest his intention to hold adverse to the grantee by some act of hostility to the title of his vendee. Ingles v. Ingles, 150 Pa. 397, 24 A. 677, 678.
This act of hostility to the title of the vendee, to make the continuous possession of the vendor adverse and hostile, must be brought to the knowledge of the owner of the property. Caldwalader v. App., 81 Pa. 194, 211.
The possession of the vendor, Robert N. Donaldson, is considered the possession of the vendee, Clara B. McClure, until such hostile act takes place. Since there was no evidence in this case of any such hostile act on the part of Robert N. Donaldson or of Walter E. Donaldson, adverse possession in this case never began to run during the lifetime of either of these parties.
[Ingles v. Ingles, supra] ... reaffirmed the position that the possession of the vendor is the possession of the vendee and “until some unequivocal act is done by the vendor, the knowledge of which is brought home to the vendee, tending to show that the former holds adversely, no question of the statute of limitations can arise.”
A similar situation existed in the case of Owens v. Peters, 126 Pa.Super. 501, 191 A. 399. * * * [T]he Court applied the doctrine that possession of the grantor in the deed was the possession of the grantee and that there was not sufficient evidence manifested to the grantee of any act of hostility tending to show that the grantor was holding adverse or hostile to the title of the grantee. * * * The Court pointed out that the defendants had failed to meet the burden to prove adverse possession.

383 Pa. 174, 118 A.2d at 177, 178 (Emphasis added).

Viewing the remarks of Tioga and Vlachos in tandem, we garner the following precepts therefrom: In order for the element of “hostility” to be satisfied (by either actual proof or implicitly allowing for its satisfaction where all other elements of adverse possession have been met), the party claiming the benefits of adverse possession must show that his/her/its conduct was directed against the “record title owner” such that the “record title owner” would be placed on notice (“aware”) that a challenge (“disseised”) of legal title is being asserted, awareness of which would be recognized by a reasonable person in like circumstances. Id. Absent the elements of “record title” and “awareness” assignable to the true owner, the conduct of the interloper will not be considered sufficient to trigger the running of the statute of limitations for adverse possession purposes.

Instantly, as mentioned in Tioga, Carol (initial grantee and subsequent grantor to her sister Donna) was not the “record title holder” at the time that her sister (grantee/grant- or) and mother (grantee) occupied the property for adverse possession purposes. Further, and most importantly, neither her sister nor mother “brought home” to Carol that her interest in the homestead (conveyed without authorization and never confirmed thereafter by acquiescence in the absence of knowledge of one-time ownership) was in jeopardy.

Carol never knew that she had an interest (inchoate or otherwise) in the homestead until after her mother’s death. As such, consistent with rationale of Vlachos, supra, and the cases cited therein, the possession of the vendees (Carol’s sister and mother) is considered the possession of the vendor, Carol. Therefore, the 21-year period needed to elapse to activate the doctrine of adverse possession was not met. The absence of “notice” on the part of Carol (one-time grantor/vendor) as to her interest in the property in dispute undermines the application of adverse possession as a vehicle for the appellants to secure legal title to the property. No conduct was manifested by her sister or mother to make Carol aware of her interest to cause her to inquire preceding her mother’s death.

The appellants point to Kribbs v. Downing, 25 Pa. 399 (1855), to bolster their argument seeking ownership of the decedent’s property. In Kribbs, one Cook and Parker claimed entitlement to the same tract of land, out of which grew a forcible eviction of one and a criminal prosecution of the other. These complaints resulted in a compromise in which Cook was to receive 50 acres, while Parker was to receive title for the whole and make Cook a conveyance for the 50 acres. Cook and those plaintiffs claiming under her remained in possession of the 50 acres up to the date of trial. Possession by Cook and the plaintiffs spanned nearly fifty years from the date of claimed acquisition (1806) and trial (1855).

It was alleged that the agreement between the parties had been procured by fraud in 1805, a question left to the jury to decide in the 1855 trial. The Court acknowledged that the passage of time and the death of the parties privy to the agreement “disarmed the accused parties of the power of self-defense, and cloud the lips of the witnesses who might have testified in their favour.” 25 Pa. at 404. This lapse in time, observed the Court, impaired the ability of the true owner of the property from rebutting a claim impugning title to the property. If such were permitted, the security of property would be jeopardized. This statement was followed by language which has been seized by the appellants to buttress their contention that, even assuming the perpetration of a fraud upon the appellee/Carol during her youth, her inactivity until after her mother’s death should be viewed as acquiescence to the validity of the disputed transfer; to-wit:

When a person, against whom a fraud has been perpetrated, lies by for twenty-one years without causing it to be investigated, he will not then be permitted to show it. From so long an acquiescence, the presumption of law is conclusive that all was done rightly.

Id. Interestingly, the Court went on to discount the fraud argument (brought by the plaintiffs as successors to Cook’s title to the 50 acres in dispute) as an improper ground for recovery. Instead, the Court held that the lower court’s directing a verdict for the plaintiffs was correct, but on the basis that “the long possession of the plaintiffs makes them amply secure in the enjoyment of the 50 acres against any claim that can possibly be made.” Id. at 405. Thus, adverse possession would appear to be the predicate for the Court’s remark on the question of ownership properly lying with the plaintiffs.

At bar, unlike in Kribbs, we do not have a scenario in which the grantor and grantee had compromised on the transfer issue. For example, reliance had been placed by Cook (the plaintiffs’ predecessor in title and grantee) on the compliance of Downey (the defendant’s predecessor in title and the grant- or) in doing what he had agreed to do. As a result, the complaining party in Kribbs could not be said to be “unaware” of her interest in the disputed property; such is not the case sub judice. As such, we do not find Kribbs to be instructive in the resolution of our case.

We look, instead, to the logic and precepts referred to in Tioga and Vlachos to hold that the absence of conduct attributable to Carol’s sister or mother to place her on “notice” that an interest in the homestead was being assailed renders inapplicable the doctrine of adverse possession, i.e., “hostility” element was neither proven nor may we “imply” its satisfaction by law under the unique facts of this case. Accordingly, finding no merit to the challenge of the order appealed and the presence of no abuse of discretion assignable to the court below, we affirm.

Order affirmed.

      . We would note that when title to the property at issue was transferred to Carol, at the age of 6, the law allowed her to retain ownership of the realty. See Appellee’s Brief at 17, wherein it is written:
      In general, minors may acquire and hold real or personal property. Mobely v. Oeker, 3 Yeates 200 (1801). With respect to the twenty-one (21) year adverse possession statute, minors are given ten (10) years after removal of the disability within which to assert their rights. 42 Pa.C.S.A. § 5501, § 5530 [& § 5533],
      A deed of a minor is generally binding upon her, i.e., it remains subject to her ratification or avoidance until after she becomes of age. The deed is not held to be void, but merely voidable. Logan v. Beaty, 21 A. 1083, 142 Pa. 442, [sic] (1891). The appellee was conveyed the subject property in 1945 when she was approximately five (5) years old. Subsequently, without her knowledge, consent or approval and without counsel or guardian, by Deed dated May 1, 1951, and not executed by the appellee, the property was conveyed by her to her sister, Donna Mae Klett (Botwright) at a time when the appellee was approximately eleven and one-half (11)4) years. A subsequent record affidavit by Donna Mae Klett Botwright now confirms that Carol Diane Klett Eboch, the appellee, did not execute the Deed in question and was not present at the time.
      Without the appointment of a guardian to handle the affairs of Carol during her minority, as to the realty in question, it appears highly suspect that the conveyance from Carol (then age 11) to her sister Donna would be considered proper. See 20 Pa.C.S.A. § 5101 et seq. of the Decedents, Estates and Fiduciaries Code.

      . With the disposition of the adverse possession argument in favor of the appellee/Carol, we see no need to address the remaining two issues raised by the appellants, each being intertwined in the issue responded to on appeal.


author: CIRILLO, Judge:

text:
    633 A.2d 1210
    COMMONWEALTH of Pennsylvania, v. Charles KANE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Nov. 23, 1993.

      Peter Rosalsky, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We vacate and remand.

On October 5, 1988, appellant Charles Kane was charged with possession and possession with intent to deliver a controlled substance. While awaiting trial, Kane committed another offense on November 8, 1989. In July of 1992, Kane was sentenced for the October 5 offense. Kane was convicted of the second offense on May 3, 1990 and sentenced for that offense on July 16, 1990. The events may be outlined as follows:

October 5, 1988 — commission of first offense
November 8, 1989 — commission of second offense
May 3, 1990 — conviction on second offense
July 16, 1990 — sentencing on second offense
July 8, 1991 — conviction and sentencing on first offense

Thus, Kane was sentenced on his second offense prior to conviction for his first offense. When sentencing Kane on his first offense, the court utilized the recidivist provision of 18 Pa.C.S. § 7508(a)(3)(i) and sentenced Kane to serve a term of imprisonment of three to six years and to pay a fine of $10,000.00. Section 7508(a)(3)(i) provides:

A person convicted of violating ... The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves [cocaine] ... shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and fine as set forth in this section:
(i) upon the first conviction when the amount of the substance involved is at least 2.0 grams and less than ten grams; ... and upon conviction for another offense subject to sentencing under this section: three years in prison and $10,000.00....

18 Pa.C.S. § 7508(a)(3)(i) (emphasis added).

On appeal, Kane contends that the sentencing court incorrectly ruled that the enhancement provision applied. Kane was sentenced for his second offense prior to his sentencing for the first offense; however, at the time of sentencing on the first offense, Kane indeed had a prior conviction.

In order to be subject to the recidivist penalty under this section, the prior conviction must precede the current offense for which the defendant is being sentenced. “[F]or a prior conviction to serve as an enhancer ... the conviction must precede the commission of the later offense.” Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), affirmed 533 Pa. 294, 621 A.2d 990 (1993). Here, the prior conviction (May, 1990) did not precede the commission of the current offense, the offense for which Kane was sentenced under the enhancement provision (October, 1988). Id.

Due to the fortuitous delay in trial on the first offense, the application of the law works in Kane’s favor. As this court en banc recently observed:

[Defendant] does not fall within that class of persons for which the enhancement penalty was intended.
It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone except the incorrigible one, who after being reproved, “still hardeneth his neck.” If the heavier penalty prescribed for the second violation ... is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Commonwealth v. Tobin, 411 Pa.Super. 460, 463, 601 A.2d 1258, 1260 (1992), affirmed 533 Pa. 322, 623 A.2d 814 (1993) (quoting Commonwealth v. Sutton, 125 Pa.Super. 407, 413, 189 A. 556, 558 (1937)); see also Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989) (“When the term ‘conviction’ is used in a statute, it means ‘the ascertainment of the guilt of the accused and judgment thereon by the court,’ ” stating our ancient rule in Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915)); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), affirmed 533 Pa. 322, 623 A.2d 814 (1993); Commonwealth v. Eck, 411 Pa.Super. 465, 601 A.2d 1261 (1992) (en banc), alloc. denied, 533 Pa. 607, 618 A.2d 398; Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992). See generally 39 Am.Jur.2d Habitual Criminal § 6 (“It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.”).

The Commonwealth argues that the statutory language requires that the sentencing court focus upon the defendant’s status at sentencing. The Commonwealth contends that since at the time of sentencing on Kane’s first offense, July 8 1991, he had already been convicted of his second offense, he was, therefore, a second offender. This argument is, at first glance, appealing. Arguably, a defendant may be sentenced twice as a first offender depending upon the time span between offenses, convictions and sentencing. Were we to adopt the Commonwealth’s view, however, the basis for recidivist penalties would be lost. An enhanced penalty would then be grounded on fortuitous delay or scheduling rather than the underlying philosophy of recidivist penalties. See Sutton, supra; see also Commonwealth v. Wolfe, 349 Pa.Super. 415, 419, 503 A.2d 435, 437 (1986) (“The point then of enhancement provisions is to punish those more who have persisted in criminal activity despite the salutary effect of penal discipline.”); Commonwealth v. Mourar, 349 Pa.Super. 583, 593, 504 A.2d 197, 203 (1986) (“Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.”).

Assuming, arguendo, that there exists more than one interpretation of the statute, it has been stated that

[w]hen a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty, and if there is doubt, the defendant must be given the benefit of the doubt.

Eyster, 401 Pa.Super. at 488, 585 A.2d at 1033 (quoting Commonwealth v. Wolfe, 349 Pa.Super. 415, 418-19, 503 A.2d 435, 437 (1986) (citations omitted)). See also 1 Pa.C.S. § 1928(b) (penal provisions of a statute shall be strictly construed).

Consistent with the theory underlying the principle of recidivist penalties, the rules of statutory construction and the pronouncements in this Commonwealth, we conclude that in order to apply recidivist or enhancement provisions for sentencing purposes under the statute in question, a defendant must be convicted of the prior offense before the commission of the. subsequent offense. Accordingly, the judgment of sentence is vacated and the case is remanded for resentencing.

Vacated and remanded. Jurisdiction relinquished.

      . Section 7508 was amended on December 19, 1990, P.L. 1451, No. 219, § 4, 18 Pa.C.S. § 7508(a)(3)(i) (Supp.1992). The amended section reads:
      (3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act ... shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
      (1) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 ...; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense; three years in prison and $10,000....
      18 Pa.C.S. § 7508(a)(3)(f) (Supp.1992).
      The parties here agree that the pre-amendment language is applicable. The offense in question occurred prior to the 1990 amendment, in October of 1988, and, therefore, we will apply section 7508 as it read prior to the 1990 amendment.

      . We note that this is the majority rule in this country. See Dickerson, 404 Pa.Super. at 259, 590 A.2d at 771, citing Annot. 24 A.L.R.2d 1247.

      . The term "convicted” means "found guilty” and not "found guilty and sentenced.” Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984).


text:
    633 A.2d 1212
    FEDERAL KEMPER INSURANCE COMPANY, Appellant, v. Lana D. WALES.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed Nov. 23, 1993.

      Christina M. Veltri, York, for appellant.
    Tom Lang, York, for appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Federal Kemper Insurance Company appeals from the June 25, 1992 order sustaining preliminary objections of appellee, Lana D. Wales, and dismissing this declaratory judgment action. The trial court determined that it lacked subject matter jurisdiction due to the fact that the question whether appellee was entitled to uninsured motorist benefits under an insurance policy issued by appellant was subject to the arbitration provision in her policy.

Appellant instituted this action seeking a declaration that appellee was not entitled to uninsured motorist benefits under its policy as the result of a two vehicle traffic accident on June 19, 1989. Appellee was injured seriously while a passenger in an automobile owned and operated by her daughter and insured by appellant. The car was struck in the rear by a truck being operated by one of appellee’s fellow employees, Wayne S. Spangler, Jr. At the time, the vehicle in which appellee was a passenger was exiting her employer’s parking lot at the end of the work day. She applied for and received workmen’s compensation benefits for injuries sustained as a result of the accident. Appellee then instituted an action against Spangler. He was insured by State Farm. The trial court in that action determined that appellee was precluded from bringing the action against Spangler due to the exclusory provision of the workmen’s compensation law, which states:

If disability or death is compensable under this act, a person shall not be liable to any one at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong. 77 P.S. § 72.

Wales v. Spangler, No. 90. S.H.-00887-01, York County Court of Common Pleas. That decision was not appealed.

Appellee then notified appellant she was claiming uninsured motorist benefits under its policy due to the fact she was unable to institute an action in tort against Spangler. This, in her opinion, rendered Spangler uninsured. In response, appellant instituted this declaratory judgment action.

Appellee filed preliminary objections contending that the issue of whether Spangler is uninsured is subject to arbitration. The trial court agreed and dismissed the action. This appeal followed. Appellant contends that the trial court’s decision regarding the arbitrability of this matter must be reversed. It acknowledges that coverage issues are generally subject to arbitration, see Brennan v. General Accident Fire & Life Assurance Corp., 524 Pa. 542, 574 A.2d 580 (1990); Giant Markets, Inc. v. Sigma Marketing Systems, Inc., 313 Pa.Super. 115, 459 A.2d 765 (1983), but suggests this is not a coverage issue since appellee is not seeking uninsured motorist benefits under the policy language. Appellant contends appellee is seeking uninsured motorist benefits on public policy grounds and asks us to determine that the trial court should have decided the matter.

Specifically, appellant contends that the issue of whether Spangler was insured is so clear that appellee’s claim is not actually one involving insurance coverage under the policy language and that it is unfair to require it to submit to arbitration. Appellant further argues that appellee cannot establish that Spangler fits within the definition of uninsured motorist. Appellant posits that appellee’s only argument is that its insurance policy violates public policy for not including within the definition of uninsured motorist a tortfeasor who is an insured co-employee and the fact that Spangler had insurance, which appellee cannot refute, leads to the conclusion he was not uninsured. As appellee’s claim is premised solely upon public policy, appellant continues, it asks us to determine that the trial court did have jurisdiction over the matter.

There is no dispute as to the facts. Spangler was insured under a policy issued by State Farm. He was not an uninsured motorist. Nothing transpired that converted Spangler from an insured to an uninsured motorist. The provisions of the Pennsylvania Workman’s Compensation Statute prevent appellee from proceeding in tort against Spangler. This does not render Spangler an uninsured motorist.

There are no issues to submit to arbitration. It is beyond dispute that Spangler was insured. His policy was in effect at the time of the accident. The arbitrators do not possess the authority to amend the State Farm policy covering Spangler or the Federal Kemper policy covering the vehicle wherein appellee was a passenger. The solution to appellee’s situation lies with the Pennsylvania Legislature, not the judicial system.

Appellee argues that Brennan v. General Accident Fire and Life Assurance Corp., supra, mandates that the within issue be submitted to arbitration. We do not agree. The Pennsylvania Supreme Court there stated: “The instant dispute, in its broadest sense, involves a disagreement as to the amount of damages which Appellant would and could possibly receive under the policy. This Court has held, since the insurance policy was written by the Appellee (General Accident), any ambiguity will be interpreted against the Appellee.” Id., 524 Pa. at 549, 574 A.2d at 583. There was no question of coverage in Brennan. The issue was the amount to be recovered. There is no such dispute before us. Appellee contends she is entitled to recover uninsured motorist benefits under the terms of the Federal Kemper policy. The other motorist involved was not uninsured. We repeat, there is no issue to submit to arbitration. There is no ambiguity in the Federal Kemper policy to be interpreted. As with underinsurance situations, the inability to recover does not convert the insured tortfeasor into an uninsured motorist. Therefore, there is no coverage issue, and the trial court may not decline to assume jurisdiction in favor of arbitration. The court must reach a conclusion on the merits of the declaratory judgment action.

In view of the foregoing, we are constrained to reverse and remand for disposition in accord with this adjudication. Order reversed. Jurisdiction relinquished.

      . The arbitration provision contained in the policy at issue reads as follows:
      If we and an "insured” do not agree:
      1). Whether that person is legally entitled to recover damages from the owner or operator of an “insured motor vehicle”; or 2). As to the amount of damages;
      Either party may make a written demand for arbitration. Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act.
      Reproduced record at 15a.


author: DEL SOLE, Judge:

text:
    633 A.2d 1214
    Thersa M. (Wells) VAN COUTREN v. John J. WELLS, II, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Nov. 3, 1993.

      Arthur W. Boyce, Maryland, for appellant.
    Darryl Cunningham, York, for appellee.
    Before DEL SOLE, FORD ELLIOTT and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order ruling that Appellant, the paternal grandfather of the subject children, does not have standing to seek general physical custody of them, and directing that he transfer custody to the children’s mother at the end of the school year. We affirm.

Appellee is the mother of three minor children, born in 1977,1979 and 1984, who are the subject of the instant custody proceeding. Appellee was married to Appellant’s son until their divorce in 1988. Custody of the children was awarded to mother and they resided with her until May of 1991 when they went to live with their father. Sadly, the children’s father, Appellant’s son, became seriously ill. The father then moved his children with him to his mother’s home in New York. In late June of 1992, Appellee learned of this move and on June 29, 1992, through her counsel she wrote to father requesting an opportunity to see the children and for their return if father’s illness proved fatal. Father died on July 7, 1992. After mother was told of his death a few days later she traveled to New York but was denied access to her children.

A custody action was promptly begun by mother, but a separate custody action was instituted in New York by the children’s paternal grandfather, Appellant, who alleged in his petition that the children had resided with him since the death of their father. Following hearings on jurisdictional issues, the New York court remanded the matter to Pennsylvania for resolution. Preliminary to a full custody hearing, the trial court found that the children’s grandfather did not allege that the children were dependent. Nor did he establish, according to the trial court, that he was in loco parentis, since the children resided with him only following the father’s death in opposition to mother’s demand for their return. Accordingly the court ruled that under these facts and the recent decision of Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992), the grandfather lacked standing to seek general custody. His appeal of this decision is presently before us.

In Gradwell the maternal grandparents sought legal custody of their granddaughter from the child’s natural parents and against the paternal grandfather who had physical custody of the child pursuant to a temporary order. The court ruled that the grandparents had no standing to seek custody of the child. It noted that Sections 5311, 5312 and 5313 of the Domestic Relations Code, 23 Pa.C.S. §§ 5301 et seq., provide grandparents and great-grandparents with a right of action for partial custody or visitation under certain circumstances, which include the death of a parent, 23 Pa.C.S. § 5311. However, the court ruled that this statute provides a right of action only for partial custody or visitation under certain circumstances; “it does not provide a right of action for custody.” Id. at 128, 610 A.2d at 1004. The court thus concluded that the grandparents lacked standing to seek custody of the child. See Hill v. Divecchio, 425 Pa.Super. 355, 625 A.2d 642 (1993).

Custody disputes between parties, other than parent versus parent, are characterized as “third party” disputes. In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). “Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parent.” Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993) This is so because a parent’s prima facie right to custody should not be subject to challenge without a clear and convincing showing that the child is not receiving proper parental care. This may properly be done through a dependency proceeding. Gradwell v. Strausser, supra. Thus, the appropriate manner for a “third party” to obtain custody of a child is through a dependency proceeding. Id.

One exception exists to the above stated principle, that is where there is proof that a party stands in loco parentis to the child.

The phrase ‘in loco parentis’ refers to a person who puts himself[7herself] in the situation of assuming the obligation incident to the parental relationship without going through the formality of a legal adoption. The status of ‘in loco parentis’ embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.

Rosado v. Diaz, 425 Pa.Super at 161, 624 A.2d at 196, citing Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531, 533 (1968).

Appellant herein acknowledges that he does not enjoy loco parentis status because he did not care for the children prior to their father’s death, Appellant’s Brief at 13. Nevertheless he maintains that he has standing by virtue of the fact that mother agreed father could have custody, that father, who was the custodial parent at the time of his death, named Appellant the legal guardian of the children under the terms of his last will and testament, and that the children have resided with Appellant since their father’s death. Appellant also maintains that the provisions of Pa.R.C.P. 1915.6, 42 Pa.C.S.A., and 23 Pa.C.S.A. § 5351, which speak to the joinder of parties support his position.

Rule of Civil Procedure 1915.6 directs, as does 23 Pa.C.S.A. § 5351, that a party who has physical custody of a child be joined as a party in any custody proceeding involving the child. And, although such a person may file, a counterclaim for custody, partial custody or visitation, See Pa.R.C.P. 1915.6(a)(3), these provisions do not grant a party standing to seek custody, where such standing would not otherwise exist. Thus although a person who has physical custody of a child who is the subject of a custody dispute must be joined as a party to the action, it remains that this third party lacks standing to seek custody as against a natural parent unless there is a prima facie right to custody.

Appellant argues that he has a prima facie right to custody since he was named by the terms of the custodial parent’s will as the children’s guardian. We disagree. As was stated in Rosado v. Diaz, supra. The “exception to this third-party-lack-of-standing-preclusion is proof that such a ‘party stands in loco parentis.’ ” 425 Pa.Super. 151, 624 A.2d at 195. It is only this loco parentis status which grants a third party a prima facie right to custody sufficient to maintain standing in a custody action against a natural parent. As we have stated no such claim was made here.

The designation of Appellant as the children’s guardian in the father’s will has no bearing on his standing in this matter. The ability to name a guardian of one’s children is governed by 20 Pa.C.S.A. § 2519. It provides in relevant part:

(a) Guardian of the person. — A person competent to make a will, being the sole surviving parent or adopting parent of any unmarried minor child, may appoint a testamentary guardian of the person of such child during his minority ...

The statute allowing for the appointment of a testamentary guardian, speaks only to a situation where there is only one surviving parent. The children in this case, thankfully, did not lose both parents. Their mother is alive, willing to care for them, and there has been no allegation made that she is unable to perform this duty or that the children are dependent.

Under the circumstances of this case where the children’s natural mother seeks custody and where the children’s grandfather does not stand in loco parentis to the children, and no dependency action- is proceeding, the trial court did not err in dismissing the grandfather’s claim for general custody on the basis of a lack of standing.

Judgment affirmed.

      . The children’s paternal grandmother, Florence Wells, was divorced from Appellant at this time. Appellant was remarried and living with his present wife, Victoria Wells.