author: CERCONE, Judge.

text:
    656 A.2d 519
    COMMONWEALTH of Pennsylvania v. Gary L. WEST, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed March 28, 1995.

      Rachel L. Morocco, Asst. Public Defender, Greensburg, for appellant.
    Karen A. Gelety, Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before McEWEN, POPOVICH and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence entered by the trial court on August 4, 1994. We affirm.

In the evening of November 19, 1993, Edith Basile and her son were at her home in Jeannette, Pennsylvania. While Ms. Basile was sleeping, appellant entered her home. Ms. Basile encountered appellant in a hallway and told him to leave the premises. She then escorted appellant to the front door at which time she noticed that the door was locked. After retrieving her keys from the dining room, Ms. Basile unlocked the front door and allowed appellant to depart. Ms. Basile again walked through the dining room and noticed that the dining room window had been broken. Approximately ten minutes later, appellant attacked Ms. Basile in her kitchen. At that time, appellant struck Ms. Basile causing injuries to the left side of her face, her neck, her stomach and arms. Ms. Basile’s injuries caused her to be hospitalized From November 20th through the 26th. When officers arrived at the scene, they found Ms. Basile covered in blood and also found blood throughout the house. An expert testified at trial that some blood found at the scene matched appellant’s blood type.

Ms. Basile described her assailant. The officer recognized the description as matching appellant, who lived next door. At the time of his arrest, appellant had a bandage on his left finger with blood flowing from the wound. At trial, an expert testified that blood obtained from the scene was found to be consistent with appellant’s blood type.

A jury convicted appellant of burglary, criminal trespass, aggravated assault, simple assault, and recklessly endangering another person. The trial court sentenced appellant to not less than four nor more than eight years imprisonment after which appellant filed the instant timely appeal.

Appellant raises one issue for our review:

DID THE TRIAL COURT ERR IN NOT GRANTING THE APPELLANT’S MOTION FOR A MISTRIAL WHEN THE COMMONWEALTH ATTEMPTED TO INTRODUCE TESTIMONY CONCERNING A FINGERPRINT CARD FROM A PREVIOUS FILE CONCERNING THE DEFENDANT AT THE JEANNETTE POLICE DEPARTMENT, JEANNETTE, PENNSYLVANIA?

Specifically, appellant challenges the following testimony by Patrolman Albert Rivardo, III:

Q. Was any other information provided to Detective Brant at that time?
A. [Patrolman Rivardo]: Yes. Due to the description given by the victim at that time, it was common knowledge that Mr. West, seated right there, had been living at 110 Chestnut, which is one house over from Miss Basile. The description given fit Mr. West, and I obtained a fingerprint card, which was on file at our police department, and that was given to Detective Brant for comparison.....

Id. at 172. Appellant moved for a mistrial arguing that this testimony created an unfair and prejudicial inference that he had been involved in prior criminal activity.

Initially, we note that the admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Wallace, 522 Pa. 297, 309 n. 15, 561 A.2d 719, 725 n. 15 (1989). Evidence is admissible if, and only if, it is relevant: the evidence must logically or reasonably tend to prove or disprove a material fact in issue, to make such a fact more or less probable, or afford a basis or support for a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Ingram, 404 Pa.Super. 560, 576, 591 A.2d 734, 742 (1991), appeal denied, 530 Pa. 631, 606 A.2d 901 (1992). Accord Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975).

The law is well established that the prosecution may not introduce evidence of a defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. Commonwealth v. Lyons, 382 Pa.Super. 438, 451, 555 A.2d 920, 924 (1989). In determining whether this fundamental precept has been transgressed, the operative question is whether the jury “could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Groce, 452 Pa. 15, 19-20, 303 A.2d 917, 919 (1973), cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973) (emphasis added). Accord Commonwealth v. Claffey, 264 Pa.Super. 453, 455-56, 400 A.2d 173 (1979). The testimony in this case warrants no such inference.

In Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596 (1986), our Supreme Court discussed the inferences raised when police possess a picture of an accused:

Leaving aside the fundamental logic that a previous record does not prove present guilt, the possession by police of one’s photo does not ineluctably prove a previous conviction. At the most it proves only that police had a photo of the defendant on file.
When an identification is made from police files, the photos become an integral and inseparable part of the evidence. When the initial identification is challenged at trial and their reliability and fairness put to question, they become evidence subject to examination by the jury. At the time it is difficult, if not impossible, consistent with the truth, to shield the fact that a defendant’s picture was obviously on file prior to his identification. Even when the file photos are not challenged and the photos are not shown to the jury, but somehow they have been eluded to during the course of the trial, it is a small deduction to conclude that for some reason, the defendant had prior police contact of some kind. However, as we emphasized above, prior contact with the police in itself proves nothing. It does not prove a prior record or previous crime, it only proves a previous contact.

Id. at 161, 512 A.2d at 598-99. We find the Supreme Court’s reasoning in Brown to. be instructive in the instant case.

Here, Patrolman Rivardo testified that to determine the identity of- the perpetrator, he obtained “a fingerprint card, which was on file at our police department^]” He did not disclose the reason why police possessed a record of appellant’s fingerprint, nor did he elaborate as to the nature of the police file containing such records. In light of the general nature of Patrolman Rivardo’s reference to the fingerprint card, we are not convinced that a jury could reasonably infer prior criminal activity from this testimony.

At most, a jury could reasonably conclude from Patrolman Rivardo’s testimony that appellant had prior contact with the police department. However, as the Supreme Court held in Brown, a prior contact does not prove a prior record or previous crime. Accordingly, we cannot find that the trial court erred in denying appellant’s motion for a mistrial. See, e.g., Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986) (fact that defendant’s parole officer testified that he knew defendant previous to crimes for which defendant is now on trial did not expressly or by reasonable implication convey to the jury that he had a previous criminal record); Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973) (police officer’s passing reference to defendant’s previous confinement “in prison” did not supply sufficient basis for a reasonable inference of prior criminal activity); Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989) (deputy’s testimony that he had approximately thirty to fifty contacts with defendant in past two or three years does not imply prior criminal activity)..

Judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3502.

      . Id. § 3503.

      . Id. § 2702.

      . Id. § 2701.

      . Id. § 2705.

      . Even if the jury reasonably could have inferred prior criminal activity from Patrolman Rivardo's testimony, we agree with the trial court that such error was harmless in light of the overwhelming evidence against appellant. This evidence includes appellant's own admission that he had entered Ms. Basile’s house without permission so that he could sleep off a hangover. N.T. 6/6-9/94 at 252.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    656 A.2d 522
    Amelia DORICH, Appellant, v. Richard D. DiBACCO, D.P.M.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1995.
    Filed March 28, 1995.

      Denis W. Krill, Erie, for appellant.
    Michael J. Sweeney, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and SAYLOR, JJ.
   JOHNSON, Judge:

Amelia Dorich appeals from the order denying her petition for removal of judgment of non pros pursuant to Pa.R.Civ.P. 3051. We affirm.

The trial court’s certified docket reflects the following: On September 30, 1987, Dorich commenced this medical malpractice action by filing a praecipe for a writ of summons, which was served on Richard D. DiBacco, D.P.M., on October 1, 1987. On December 22, 1987, Dorich filed a complaint seeking to recover for injuries sustained as a result of allegedly negligent surgery performed by DiBacco, her podiatrist. On January 15, 1988, DiBacco filed an answer and new matter. On February 10, 1988, and April 29, 1988, DiBacco filed a notice of service of interrogatories directed to Dorich.

Over three and a half years later, on January 31, 1992, the court permitted Dorich’s counsel to withdraw. On June 24, 1992, DiBacco filed a motion for summary judgment. In consideration of DiBacco’s motion, on July 30, 1992, the court directed that counsel for Dorich enter an appearance within ten days or Dorich would suffer a judgment of non pros. The court also directed Dorich to file a preliminary expert report. On August 10, 1992, Dorich filed her expert’s preliminary-report.

On September 24, 1992, DiBacco again filed a motion for summary judgment. On November 24, 1992, the court denied DiBacco’s motion and further ordered that discovery be completed within 30 days and that the matter be placed on the next available trial list following the close of discovery.

On January 21,1993, the court granted Dorich an additional 30 days to obtain counsel to represent her. On February 24, 1993, Dorich, pro se, filed a motion for a continuance. The court issued a rule to show cause on Dorich’s motion. On March 5, 1993, DiBacco answered the rule to show cause. No further entries were made to the docket on that date. However, Dorich claims that, by order dated March 5, 1993 (the March 5 order), docketed March 21, 1994, the trial court granted her motion to open discovery, permitting her an additional 60 days to complete discovery.

On March 12, 1993, DiBacco filed a motion for judgment of non pros. On March 23, 1993, Denis W. Krill, Esquire, entered an appearance on behalf of Dorich. That same day, Dorich conducted discovery for the first time by filing a notice of service of interrogatories and a notice of service of request for production of documents. We note that, at that point in time, over five years had passed since Dorich filed her complaint. On April 1, 1993, Dorich filed a brief in opposition to DiBacco’s motion for judgment of non pros. In addition, she requested attorney’s fees, arguing that, in light of the March 5 order, DiBacco’s motion had been filed in bad faith. Dorich then continued to conduct discovery. However, on September 30, 1993, -the trial court granted DiBacco’s motion for judgment of non pros and denied Dorich’s request for attorney’s fees.

On October 7, 1993, Dorich filed a petition for removal of judgment of non pros. Oddly enough, while this petition was pending, the docket indicates that the court, by order dated March 5, 1994, docketed March 21, 1994, granted Dorich’s motion to open discovery. Nevertheless, on August 11, 1994, the court denied Dorich’s petition for removal of judgment of non pros. Dorich now appeals.

For purposes of appellate review, we have renumbered Dorich’s issues. Dorich contends that the trial court abused its discretion by denying her petition for removal of judgment of non pros because (1) she had justifiable reasons for the delay and DiBacco has not demonstrated that he was prejudiced by the delay; (2) the court failed to accord her the procedural due process rights set forth in Erie County Local Rule of Court 310 and Pa.R.J.A. 1901(c); (3) the court relied upon erroneous facts regarding the lack of discovery undertaken pursuant to the March 5 order permitting her additional time to complete discovery; (4) the court entered judgment of non pros against her after granting her additional time to complete discovery; and, (5) DiBacco’s actions effectively moved this case to trial, thereby acting as a waiver of his claim for judgment of non pros.

When reviewing claims such as this, it is well-established that

“[a] request to open a judgment of non pros is by way of grace and not of right and its grant or refusal is peculiarly a matter for the trial court’s discretion. We are loathe to reverse the exercise of the court’s equitable powers unless an abuse of discretion is clearly evident.” Before a petition to open a judgment of non pros may be granted, the moving party must 1) promptly file a petition to open, 2) present a reasonable explanation or excuse for the default or delay that precipitated the non pros, and 3) establish that there are sufficient facts to support a cause of action.

Abraham Zion Corp. v. After Six, Inc., 414 Pa.Super. 611, 616-17, 607 A.2d 1105, 1108 (1992), appeal denied, 533 Pa. 628, 621 A.2d 576 (1993), quoting Narducci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988). In this case, Dorich promptly filed her petition seeking to open the judgment of non pros within one week after the court entered the judgment. However, Dorich must also satisfy the two remaining prongs of the above-stated test before relief may be granted.

First, Dorich argues that the trial court abused its discretion when it denied her petition because she had justifiable reasons for any delay on her part, and DiBacco did not establish that he was prejudiced by the delay. A plaintiff has an affirmative duty to prosecute her action within a reasonable time. Penn Piping, Inc. v. Insurance Co. of N. Am., 529 Pa. 350, 603 A.2d 1006 (1992). Before a court may dismiss an action for lack of docket activity, it must be demonstrated that (1) a party has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and, (3) the delay has caused prejudice to the adverse party, which will be presumed in cases involving a delay for a period of two years or longer. Id. In cases where the delay was ■ caused by bankruptcy, liquidation or other operation of law, or where the case was delayed awaiting significant developments in the law, there will be an automatic determination that a compelling reason for the delay has occurred. Id. Other compelling reasons may be determined on a case-by-case basis. Id.

Here, more than five years had passed from the time Dorich filed her complaint on December 22, 1987, until she first began to conduct discovery in this case on March 23, 1993. The only activity by Dorich during that five year period is the filing of a preliminary expert report on August 10, 1992, by order of the court. Thus, we find that she demonstrated a lack of due diligence in failing to proceed with reasonable promptitude. In addition, because this delay exceeded two years, we will presume that the delay caused prejudice to DiBacco. Penn Piping, supra, 529 Pa. 350, 603 A.2d 1006.

Nevertheless, Dorich maintains that the delay was justified because she was unable to work as a result of DiBacco’s negligence and, thus, economically unable to obtain the liability and damage expert witnesses needed to take her case before a jury. Dorich cites no authority, nor are we aware of any, which holds that the inability to obtain expert witnesses provides a compelling reason for delay. Moreover, we find that Dorich’s proffered explanation for her delay cannot be compared with the situations cited in Penn Piping, requiring-a determination that a compelling reason for delay exists. Each of the examples provided by the Penn Piping Court effectively removed the case from the plaintiffs control. Here, there is no evidence that Dorich did not maintain control of her case. Therefore, we cannot conclude that Dorich provided a compelling reason for her delay. Accordingly, the trial court properly entered judgment of non pros against Dorich for lack of activity on the docket. Id. Furthermore, because Dorich did not provide a compelling reason for her delay, we find that the trial court did not abuse its discretion when it denied Dorich’s petition for removal of judgment of non pros. Abraham Zion, supra, 414 Pa.Super. 611, 607 A.2d 1105.

Next, Dorich claims that the trial court abused its discretion in denying her petition because the court failed to accord her the procedural due process protections set forth in Erie County Local Rule of Court 310 and Pa.R.J.A. 1901(c). Pa.R.J.A. 1901, in pertinent part, provides:

(a) General Policy. It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.
(b) Primary Responsibility for Implementation of Policy.
(1) Each court of common pleas is primarily responsible for the implementation of the policy expressed in subdivision (a) of this rule and is directed to make local rules of court for such purposes applicable to the court....
í¡; # i-: i-: & i[:
(c) Minimum Standards. Before any order terminating a matter on the ground of unreasonable inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on such proposed termination ....

Erie County Local Rule 310 provides:

Rule 310. TERMINATION OF ACTION OR PROCEEDING BECAUSE OF INACTIVITY.
* # * * * *
The Prothonotary shall list for general call the first week of October of each year civil matters in which no steps or proceedings have been taken for two (2) years or more prior thereto and shall give notice thereof to counsel of record and to the parties for whom no appearance has been entered, as provided by Pa.R.J.A. No. 1901(c). If no action is taken or no written objection is docketed in such a matter prior to the commencement of the general call, the Prothonotary shall strike the matter from the list and forward a general order dismissing the matter with prejudice for failure to prosecute under the provisions of this Rule to the Administrative Judge of the Civil Division. If no good cause for continuing a matter is shown at the general call, an order shall be entered forthwith by the Court for dismissal.

Dorich asserts that the trial court, in denying her petition, relied upon Penn Piping, supra, 529 Pa. 350, 603 A.2d 1006, which, she maintains, is not applicable to this matter. Specifically, Dorich argues that, in that case, there was no local rule of court implementing standards under Pa.R.J.A. 1901 to terminate inactive cases. However, in the present case, Erie County Local Rule of Court 310 was promulgated to implement the standards of Pa.R.J.A. 1901.

The note following Rule 1901, in pertinent part, provides:

The general policy set forth in Subdivision (a) is based on an administrative consideration, not substantive or procedural standards applicable to speedy trials in either civil or criminal cases.... [This Rule] is intended to foster elimination of stale cases from the judicial system where the parties have failed to proceed and which are carried as open matters because of the failure on the part of any party to seek dismissal or otherwise to bring the matter to a conclusion.

Pa.R.J.A. 1901, Note (emphasis added). Thus, an examination of this note reveals that the local rules of court enacted pursuant to Pa.R.J.A. 1901 and a motion for non pros filed by a private party are alternative and equally appropriate means of obtaining dismissal based upon a lack of docket activity. Here, DiBaceo chose to file a motion for judgment of non pros.

Furthermore, in Gates v. Servicemaster Commercial Serv., 428 Pa.Super. 568, 631 A.2d 677 (1993), appeal denied, 537 Pa. 610, 641 A.2d 310 (1994), the plaintiff argued that she was entitled to rely upon a procedure established in a Dauphin County local rule as being the sole method of dismissing a case due to prolonged inactivity. This Court determined that the local rule “did not preclude individual litigants to a suit from asserting their common law right to a reasonably prompt conclusion to a case. Consequently, the presumption afforded by Penn Piping, supra, was not superseded by [the local rule’s] method for dismissing inactive cases.” Id. 428 Pa.Super. at 581 n. 2, 631 A.2d at 683 n. 2. Therefore, pursuant to Gates, the holding of Penn Piping is not superseded by the enactment of local rules such as Erie County Local Rule 310. Rather, Penn Piping applies, even in counties which have adopted local rules in accordance with Pa.R.J.A. 1901, where the non-delaying party asserts his right to a reasonably prompt conclusion to a case by petitioning for a judgment of non pros. As a result, Dorich’s claim that Penn Piping is not applicable to this matter is meritless, and we cannot find that the court committed an abuse of discretion by denying Do-rich’s petition to remove the judgment of non pros.

In Dorich’s next two issues, she contends that the trial court abused its discretion by denying her petition seeking to open the judgment of non pros because (1) the court relied upon erroneous facts regarding the lack of discovery undertaken pursuant to the March 5 order, permitting her additional time to complete discovery, and (2) it was unfair and inconsistent to enter a judgment of non pros against her after the court granted her additional time to complete discovery.

She complains that her counsel “took several, immediate steps to undertake substantial formal discovery” in compliance with the March 5 order. Appellant’s Brief at 24 (emphasis omitted). However, as noted above, Dorich first conducted discovery in this case on March 23, 1993, after DiBacco filed his motion for judgment of non pros and more than five years after Dorich filed her complaint. This Court recognized in Gates, supra, 428 Pa.Super. 568, 631 A.2d 677, that a plaintiffs motion to compel discovery filed subsequent to defendant’s motion for judgment of non pros does not break the continuity of unexplained docket inactivity. Gates, at 575, 631 A.2d at 680. Thus, we need not concern ourselves with discovery undertaken by Dorich subsequent to DiBacco’s motion for judgment of non pros. Furthermore, even if we were to consider the discovery which Dorich conducted, we cannot conclude that, given this unexplained docket inactivity for a period exceeding five years, the trial court abused its discretion by re-examining the docket and entering judgment of non pros against Dorich.

Finally, Dorich maintains that DiBacco’s actions effectively moved this case to trial, thereby acting as a waiver of his claim for judgment of non pros. “[A] party seeking non pros may waive the right thereto if his or her conduct indicates a willingness to try the case on its merits.... ” Neshaminy Constructors, Inc. v. Plymouth Township, 132 Pa. Cmwlth. 229, 237, 572 A.2d 814, 818 (1990). In this case, Dorich claims that DiBacco waived his right to a judgment of non pros by filing two motions for summary judgment and by responding to Dorich’s discovery requests following the filing of his motion for judgment of non pros.

The trial court found that DiBacco’s “motions [for summary judgment] pertained to [Dorich]’s failure to identify an expert, not to dispense [with] the case on the merits.” Trial Court Opinion, dated September 29, 1993, at 7. In the motion for summary judgment filed June 24, 1992, DiBacco averred that he was entitled to judgment as a matter of law because Dorich, who failed to identify an expert to testify on her behalf, would be unable to prove that his actions were the proximate cause of her injuries without expert testimony. In the motion for summary judgment filed September 24, 1992, DiBacco averred that Dorich’s preliminary expert report did not set forth “with a reasonable degree of medical certainty” that DiBacco caused Dorich’s injury and, thus, DiBacco was entitled to judgment as a matter of law. After thorough review, we agree that neither of DiBacco’s motions for summary judgment sought to dispense with the case on the merits. Moreover, we are not persuaded that DiBacco, by responding to Dorich’s discovery requests as he was required to do under the Pennsylvania Rules of Civil Procedure, acted in a way inconsistent with his request for a non pros. See Neshaminy, supra, 132 Pa.Cmwlth. 229, 572 A.2d 814; Blackburn v. Sharlock, Repcheck, Engel and Mahler, 433 Pa.Super. 581, 641 A.2d 612 (1994). The parties knew that the non pros was being actively sought. Therefore, we cannot find that the trial court abused its discretion in concluding that DiBacco had not waived the right to seek a non pros.

Having found no merit to Dorich’s contentions, we affirm the order denying her petition for removal of judgment of non pros.

Order AFFIRMED.


author: HOFFMAN, Judge:

text:
    656 A.2d 527
    COMMONWEALTH of Pennsylvania v. Robert STEINMETZ, Appellant
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1995.
    Filed March 31, 1995.

      Anthony J. Martino, Bangor, for appellant.

      John M. Morganelli, Dist. Atty., Bethlehem, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence entered June 6, 1994 for driving under the influence of alcohol, pursuant to 75 Pa.C.S. § 3731(a)(1), (4). Appellant, Robert Steinmetz, presents the following issues for our review:

1. Whether the lower court erred in holding that the officer had lawful grounds to stop and approach the appellant’s vehicle so as to justify the arrest and subsequent seizure of evidence?
2. Whether the lower court erred by improperly allowing the jury to consider the opinion of the medical expert to relate the blood alcohol test back to the time of the stop when that opinion was based upon assumptions as to facts not in the record?

Appellant’s Brief at 14. For the reasons set forth below, we reverse and remand.

On June 14, 1992, at approximately 6:21 p.m., Police Officer Dan Monick of the Palmer Township Police Department observed appellant driving a vehicle which did not have a driver’s side-view mirror. Unable to determine whether the car was equipped with a rear-view mirror, Officer Monick stopped the vehicle. As appellant produced his driver’s license and registration, Officer Monick detected an odor of alcohol on appellant’s breath. The officer also observed that appellant’s eyes were glassy and bloodshot. Appellant was asked to exit the vehicle and undergo field sobriety testing. At the conclusion of the tests, appellant was arrested and taken to the Bethlehem D.U.I. Center, for blood analysis. The results, obtained from a blood sample drawn at approximately 7:40 p.m., revealed a blood-alcohol content of .156%.

On December 9, 1993, following trial by jury, appellant was convicted of driving under the influence of alcohol. Post-verdict motions were filed and subsequently denied. Appellant was sentenced to a term of thirty (30) days to two (2) years imprisonment and ordered to pay all applicable costs as well as a fíne of seven hundred and fifty dollars ($750.00). Appellant was also required to surrender his driver’s license and complete fifty (50) hours of community service. This timely appeal followed.

Appellant contends that the evidence of intoxication produced at trial, should have been excluded as evidence derived from an unlawful stop.

An officer may conduct a lawful traffic stop if he or she reasonably believes that a provision of the Motor Vehicle Code has been violated. 75 Pa.C.S. § 6308. Commonwealth v. McElroy, 428 Pa.Super. 69, 630 A.2d 35 (1993).

In the instant case, Officer Monick noticed that the car driven by appellant did not have a side-view mirror. The failure to equip a car with a side-view mirror does not constitute a Motor Vehicle Code violation. However, 75 Pa. C.S. § 4534 provides in pertinent part:

No person shall operate a motor vehicle or combination on a highway unless the vehicle or combination is equipped with at least one mirror, or similar device, which provides the driver an unobstructed view of the highway to the rear of the vehicle or combination.

75 Pa.C.S. § 4534. Here, the position of a passenger seated in the rear of the car, prevented Officer Monick from determining whether appellant’s car also lacked a rear-view mirror. In order to find out whether the car was properly equipped pursuant to 75 Pa.C.S. § 4534, Officer Monick conducted a traffic stop.

We note that a search is not conducted nor is the Fourth Amendment implicated when a police officer observes the plainly viewable interior of a vehicle. Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985). Further, where an officer observes a Motor Vehicle Code equipment violation from a vantage point at which he is entitled to be and subsequently conducts a traffic stop, the Fourth Amendment is not violated. Wayne R. LaFave, Search and Seizure A Treatise on the Fourth Amendment, § 2.5. However, if a vehicle in motion is stopped before the officer observes the equipment violation, the officer must first have probable cause to conduct a lawful stop, or the Fourth Amendment is implicated and any evidence discovered would be a fruit of the illegal seizure of the vehicle. Id.

In the instant case, there were no objective facts to indicate that appellant’s car had no mirror. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975) (an investigative stop of a moving vehicle is valid only where objective facts exist to create a reasonable belief that criminal activity is afoot). Instead, the officer assumed that as the car did not have a driver’s side-view mirror, it might also lack a rear-view mirror. The officer further concluded that he could conduct a traffic stop to investigate the matter further. This court has unequivocally held that mere suspicion is not a substitute for probable cause to conduct a search or a seizure. Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). See also Commonwealth v. Landamus, 333 Pa.Super. 382, 482 A.2d 619 (1984) (mere fact that vehicle may have been involved in commission of crime does not automatically authorize its search and seizure). Cf. Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1988) (plain view of clown’s wig which officer believed had been used in robbery spree justified search and seizure of automobile). Consequently, as the officer’s observations taken together amounted to nothing more that mere suspicion that a Motor Vehicle Code violation had occurred, the traffic stop was unlawful and all evidence derived therefrom is inadmissible at trial. Accordingly, as evidence derived from the traffic stop was improperly included at trial, we reverse and remand for a new trial.

Reversed and remanded for a new trial. Jurisdiction relinquished.

      . Following our disposition of appellant's claim that the traffic stop was unlawful, we need not address the appellant's claim concerning relation-back testimony.


author: POPOVICH, Judge:

text:
    656 A.2d 529
    BURRELL CONSTRUCTION & SUPPLY CO., Standard Terminals, Inc., Burrell Trucking, Inc., Burrell Industrial Supply Co., Continental Development Co., Penn Builders Supply Co., River Sand & Supply Co., Appellees, v. Glenn F. STRAUB, Spring Industries, Inc., Burrell Industries, Inc., d/b/a Burrell Industries, Ohio River Sand & Gravel, a # 1 Concrete, and Tri-State Asphalt Corporation, Appellants. BURRELL CONSTRUCTION & SUPPLY CO., Standard Terminals, Inc., Burrell Trucking, Inc., Burrell Industrial Supply Co., Continental Development Co., Penn Builders Supply Co., River Sand & Supply Co., Appellees, v. Glenn F. STRAUB, Spring Industries, Inc., Burrell Industries, Inc., d/b/a Burrell Industries, Ohio River Sand & Gravel, a # 1 Concrete, and Tri-State Asphalt Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1995.
    Filed March 31, 1995.

      Larry A. Zink, Canton, OH, for appellants.
    Vincent P. Szeligo, Pittsburgh, for appellees.
    Before ROWLEY, P.J., and McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Westmoreland County entering judgment against appellant and an appeal bond issuer in the amount of an appeal bond.

Appellant raises the following questions for review:

I. Whether the trial court erred, as a matter of law, in overruling appellant’s Petition for Modification of the July 29, 1992 Final Decree with regard to the dollar amount Straub was to pay to fund the Escrow Agreement since an accord and satisfaction agreement liquidated Burrells’ liability to the Fund?
II. Whether the trial court erred, as a matter of law, by entering judgment on the appeal bond in an amount in excess of the original judgment amount and the amount affirmed by this court on appeal?
III. Whether the trial court erred, as a matter of law, in not granting the appeal bond issuer’s petition to correct judgment?
IV. Whether the trial court erred in modifying the July 29, 1992 Final Decree to provide that payments were to be made directly to Burrell when there has been no judicial determination that withdrawal liability existed against Straub?
V. Whether the trial court erred in allowing the Western Pennsylvania Teamster’s Fund to argue a position at the oral hearing when they did not file a petition to intervene?

Examination of the record reveals the following:

This appeal involves breach of contract claim brought by appellee, Burrell, et al., against appellant Straub, et al. On June 9, 1988, the appellee/sellers and appellant/buyers entered into a written agreement providing for the sale of appellees’ highway construction business to appellants for $15 million.

At the closing, the parties renegotiated certain parts of the agreement. One modification was the reduction of the purchase price by $1 million on the condition that the appellant/buyers sign an escrow agreement. The buyers were to fund an escrow account, to be established at Mellon Bank, with $1 million. The $1 million was to be used to pay potential liability that appellees may incur as a result of their discontinuance of payments to the Western Pennsylvania Teamsters and Employers Pension Fund (“The Teamster’s Fund”).

Appellant/buyers never established the escrow fund with Mellon Bank. As a result, appellee began making withdrawal liability payments to the Western Pennsylvania Teamsters Fund to avoid any penalties that could be assessed against them under the MPPAA. On June 6, 1990, appellee brought an action requesting injunctive relief and damages because of appellants’ alleged breach of the escrow agreement. Appellee’s petition for a permanent injunction was denied, but the breach of contract claim remained along with a separate action, filed by appellee on September 10, 1990, seeking a declaratory judgment. These two actions were consolidated on November 1, 1990.

On July 29, 1992, Judge Daniel Ackerman, after a bench trial, found that appellants breached the escrow agreement. Judge Ackerman ordered appellants to pay $1 million to Mellon Bank to fund the escrow account and required Mellon Bank to pay plaintiffs the sum of $179,552.49 (the amount of withdrawal liability appellees had paid to the Teamster’s Fund prior to bringing suit against appellants). Mellon Bank was also ordered to pay any future withdrawal liability from the escrow account to the Teamster’s Fund.

In August 1992, appellant secured an appeal bond in the amount of $1.2 million pending their appeal to this court. This bond was issued by Ohio Farmers Insurance Company (“Ohio Farmers”). On July 22, 1993, we filed our memorandum opinion (No.’s 1417 and 1418 Pittsburgh 1992, “Burrell I”) wherein we affirmed the judgment of the trial, court. We held that appellant’s failure to fund the escrow agreement was a breach of contract that caused damages to appellees. Specifically, we stated:

... [W]e would also affirm the judgment entered in favor of appellees on the basis that the breach of the escrow agreement by [appellant] Straub was the sole cause of the imposition of withdrawal liability upon appellee Burrell ... (Sup.Ct. Opinion, Nos. 1417 and 1418 PBG 1992, July 22, 1992, at 6) ... The escrow agreement at issue herein, which appellant Straub insisted at trial he did not fund only because he knew that appellee would not have any withdrawal liability so long as Straub continued to employ the same individuals and contribute to the respective Plans, was designed to permit appellee to avoid all withdrawal liability pursuant to the exception created by Section 4204 [of the MPPAA] (Id. at 8) ...
Thus, the failure of appellant Straub to fund the escrow account as required by the asset purchase and escrow agreements was a breach of contract which caused damage to appellee. (Footnote omitted). The trial court, therefore, properly ordered Straub to fund the escrow and properly directed the trustee, Mellon Bank, to pay any withdrawal liabilities imposed by the respective Plans since those liabilities were the direct result of appellant’s deliberate breach of the terms of the escrow agreement. (Id. at 11).

Subsequently, we denied appellant’s petition for reargument and our supreme court denied allocatur.

Appellee then filed a petition to enter judgment on the amount of the appeal bond. A hearing was held on this motion, and appellee presented evidence that established that the potential withdrawal liability could be greater than the amount of the appeal bond. Counsel for the Teamster’s Fund, Mr. Vincent Szeligo, was present at this hearing, and he presented the court with evidence as to how the possible liability could be in excess of the amount of the appeal bond. Appellant objected to the Teamster’s Fund being present because it had not filed a motion to intervene. Judge Ackerman found that Mr. Szeligo’s testimony was useful in establishing the amount of potential liability. Moreover, he found that the Teamster’s Fund was not seeking to protect any interest, making a motion for intervention unnecessary.

Judge Ackerman granted appellee’s motion and filed an order entering judgment in the amount of the appeal bond on April 29, 1994. This order entered judgment in favor of appellee against both appellant and Ohio Farmers. The order also entered judgment in favor of Ohio Farmers against appellant but conditioned the judgment in favor of Ohio Farmers upon Ohio Farmers paying an amount of money directly to appellee and funding the escrow account with the remainder of the money. Appellant filed a notice of appeal to this court on May 26, 1994, but never filed a petition to reconsider the April 29, 1994, judgment. Ohio Farmers filed a petition to correct judgment on June 29, 1994. Judge Ackerman filed his Rule 1925 opinion on this same day.

Appellant’s first allegation of error is that the trial court erred in denying his petition for modification of the July 29, 1992, final decree because an agreement for withdrawal liability between appellee and the Teamster’s Fund was an accord and satisfaction. We disagree.

“The doctrine of the ‘law of the case’ provides that where an appellate court has considered and decided a question on appeal, that court will not, in a subsequent appeal of another phase of the same case, reconsider its previous ruling.” Syno v. Syno, 406 Pa.Super. 218, 229, 594 A.2d 307, 313 (1991), citing Roskwitalski v. Reiss, 338 Pa.Super. 85, 487 A.2d 864 (1985), appeal denied 514 Pa. 619, 521 A.2d 933 (1986).

Here, our prior decision in Burrell I, clearly determined the same issue that appellant is now asserting. The trial court correctly stated that, despite all the complexities, this was basically a breach of contract action in which appellant had failed to fund an escrow as required by the terms of the agreement. Appellant is once again asking us to determine that it is not required to fund an escrow account for potential withdrawal liability that appellee may incur. However, appellant is attempting to have us revisit the issue by claiming that an accord and satisfaction had occurred between appellee and the Teamster’s Fund which released it from liability. Appellant has recharacterized the issue in an attempt to have this court reconsider our prior holding. Such a strategy will not merit review. See, Commonwealth v. Tick, 431 Pa. 420, 246 A.2d 424 (1968) (holding that issues raised in a prior appeal, even though couched in different terms, does not preclude application of the law of the case doctrine).

Appellant next contends that the trial court erred, as a matter of law, by entering judgment on the appeal bond in an amount in excess of the original judgment amount. We disagree.

Pa.R.A.P. 1731 provides:

[A]n appeal from an order involving solely the payment of money shall, unless otherwise ordered pursuant to this chapter, operate as a supersedeas upon the filing with the clerk of the lower court of appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid ...

Pa.R.A.P., Rule 1731, 42 Pa.C.S.A.

Pa.R.A.P. 1751 establishes the proper form for an appeal bond and requires that a bond should provide that appellant will be liable for costs, interest and damages for delay that may be awarded. Pa.R.A.P., Rule 1751, 42 Pa.C.S.A. A court may enter judgment in the amount of an appeal bond if appellant is not successful on appeal. Mountain City Savings & Loan v. Bell, 413 Pa. 67, 197 A.2d 608 (1963).

Instantly, the trial court considered extensive evidence in determining that it was proper to enter judgment in the amount of the appeal bond. Appellee established, at the April 29, 1994, hearing that the amount of liability could potentially be in excess of the $1.2 million bond that was posted because of interest, penalties and attorney’s fees. Also, the appeal bond issued by Ohio Farmers provided that damages for delay and interest could be assessed against appellant as provided for by Pa.R.A.P. 1751. The trial judge could properly enter judgment in the amount of the appeal bond. Bell, supra.

Next, appellant contends that the trial court erred as a matter of law for failing to correct the judgment entered against appellant in favor of Ohio Farmers on April 29, 1994. We disagree.

A court can modify one of its orders as provided by 42 Pa.C.S.A. § 5505:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such has been taken or allowed.

42 Pa.C.S.A. § 5505.

Reconsideration, by the trial court, of an order which is the subject of an appeal, can be granted only when “an application for reconsideration of the order is filed in the trial court ... within the time provided or prescribed by law . Pa.R.A.P. No. 1701(b)(3). An order is considered entered on the date that the order is filed with the prothonotary. Van-leer v. Lemer, 384 Pa.Super. 558, 559 A.2d 577 (1989), citing Pine Township Citizen’s Association v. Pine Township Board of Supervisors, 27 Pa.Cmwlth. 533, 367 A.2d 740 (1976).

Here, the order entering judgment on the appeal bond, against both appellee and Ohio Farmers, was filed on April 29, 1994. Ohio Farmers did not file a petition to correct the judgment until June 29, 1994, which was well after the thirty day period prescribed by 42 Pa.C.S.A. § 5505. Additionally, appellant never filed a petition to correct the judgment and Ohio Farmers never filed an appeal from the order entering judgment on the bond. Thus, appellant improperly contends that the lower court should have modified its judgment after the expiration of the applicable statutory period. This claim is without merit.

Appellant’s fourth allegation of error is that the trial court erred in modifying the July 29, 1992, final decree to provide that payments were to be made directly to appellee. Appellant has failed to cite any legal authority in support of this contention. Our Rules of Appellate Procedure require that “[t]he argument shall be ... followed by such discussion and citation of authorities as are deemed pertinent.” Pa. R.A.P. 2119(a); Nimick v. Shuty, 440 Pa.Super. 87, 99, 655 A.2d 132, 138 (1995). Arguments that are not properly developed are waived. Id. (citation omitted).

Here, appellant simply gives a rambling discourse as to why payments should not have been made directly to appellee. There is no citation of legal authority and no proper development of the argument. Accordingly, this argument is waived.

Appellant’s final allegation of error is that the trial court erred in allowing the Teamster’s Fund, a non-party, to argue a position at the hearing to enter judgment on the appeal bond when the Teamster’s Fund was not a party.

Evidence is admissible when it is relevant to a fact sought to be proved. Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991), citing Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). Relevant evidence is evidence that tends to establish facts in issue or advances the inquiry resulting in the evidence having probative value. Id. 599 A.2d at 681, citing Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981). Relevant evidence will be excluded when its probative value is outweighed by the danger of unfair prejudice or confusion. Id.

Here, counsel for the Teamster’s Fund presented evidence that made it highly likely that potential liability may be in excess of the amount of the appeal bond. Judge Ackerman determined that this testimony would assist him in making his determination as to whether judgment should be entered in the full amount of the appeal bond. Because this evidence assisted the Judge Ackerman in making his determination, it was properly admitted.

Appellant erroneously contends that Pennsylvania Rules of Civil Procedure pertaining to intervention of parties are applicable to this case. Pa.R.Civ.P. 2327 and Pa.R.Civ.P. 2328 provide that a non-party may intervene in action if they may be affected by the judgment in the action in which they wish to intervene and file an appropriate petition with the court. Pa.R.C.P. Nos. 2327, 2328, 42 Pa.C.S.A.

Instantly, appellant contends that counsel for the Teamster’s Fund was improperly allowed to present testimony at the hearing on appellee’s petition to enter judgment on the appeal bond because the Teamster’s Fund had not filed a petition to intervene. The Teamster’s Fund was not seeking to intervene but instead was only informing Judge Ackerman as to how appellee’s potential liability could be in excess of the amount of the appeal bond. Judge Ackerman properly stated that the Teamster’s Fund was not attempting to protect any interest. Thus, a motion to intervene was unnecessary. Accordingly, the lower court did not err in allowing the Teamster’s Fund to provide testimony at the hearing to enter judgment on the appeal bond.

Order affirmed.

      . The Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. § 1381 et seq. which amended the Employee Retirement Income Security Act (“ERISA”) provides that employers who cease making payments to pension plans can be assessed “withdrawal liability,” i.e. the withdrawing employer will be assessed payments under the MPPAA in order to fulfill funding requirements for a pension fund.

      . Bell was decided under 12 P.S. § 1149 (1953), the precursor to Pa.R.A.P. 1731(a). This rule provided that an appeal bond in the amount of 200% of the judgment had to be posted.


author: WIEAND, Judge:

text:
    656 A.2d 534
    Cathy L. SNYDER and Kenneth Snyder, Appellees, v. POCONO MEDICAL CENTER and Rose Galozzo, R.N., Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Decided Jan. 23, 1995.
    Reargument Denied April 3, 1995.

      James M. Penny, Jr., Philadelphia, for appellants.
    John R. Vivian, Jr., Easton, for appellees.
    Before ROWLEY, P.J., and WIEAND and SAYLOR, JJ.
   WIEAND, Judge:

In this appeal the controlling issue is whether the exclusivity clause of the Worker’s Compensation Act is applicable to bar a tort action against a hospital and its nurse by an employee who was exposed to tuberculosis during the course of her employment and who later discovered that the hospital’s employee health monitoring program, available only to employees of the hospital, had failed to detect timely and treat properly her disease. After careful review of the facts and the applicable law, we hold that the employee’s sole remedy was for benefits under the Worker’s Compensation Act and that an action in tort against the employer-hospital and a co-employee nurse was barred.

In 1977, while employed as a respiratory therapy technician at the Pocono Medical Center, Cathy L. Snyder learned from Rose Galozzo, R.N., the hospital’s infection control nurse, that she may have been exposed to a patient who had tested positive for tuberculosis. Upon recommendation of Nurse Galozzo and pursuant to the hospital’s employee health program, Snyder submitted to a tine test. When the test results were positive, Galozzo recommended that Snyder undergo periodic chest x-rays. These x-rays, however, were consistently negative. Therefore, no other measures or treatments were recommended or offered. In April, 1986, while at work, Snyder became ill and was taken to the hospital’s emergency room where she was diagnosed, for the first time, as having adrenal failure. Subsequent tests, including an adrenal biopsy, confirmed that her adrenal glands had been destroyed.

Snyder subsequently filed a civil action against Pocono Medical Center and Rose Galozzo, contending that she had received negligent treatment while participating in the hospital’s employee health program. At trial, Snyder’s doctor traced her condition to her earlier exposure to tuberculosis and opined that prompt detection and proper treatment with INH ionization would have prevented the spread of the disease throughout Snyder’s body. Because of her condition, the evidence was that Snyder would be required to take adrenal replacement medication for the rest of her life. A jury returned a verdict in favor of Snyder. Post-trial motions were denied, and this appeal followed.

When we review an order denying a motion for judgment n.o.v., all of the evidence and reasonable inferences therefrom must be viewed in the light most favorable to the verdict winner. Schneider v. Lindenmuth-Cline Agency, Inc., 423 Pa.Super. 73, 77, 620 A.2d 505, 507 (1993). Judgment n.o.v. may be granted only where no two reasonable persons could disagree that the verdict was improper. Robertson v. Atlantic Richfield Petro. Products Co., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988). “If, however, the law permits no recovery upon the facts which have been alleged and which the jury may justifiably have found, a judgment n.o.v. is properly granted.” Henze v. Texaco, Inc., 352 Pa.Super. 538, 541, 508 A.2d 1200, 1202 (1986).

In general, the Worker’s Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1, et seq. (the “Act”), provides the sole and exclusive remedy for an employee who seeks to recover for an injury sustained during the course of his or her employment. Wagner v. National Indemnity Co., 492 Pa. 154, 159, 422 A.2d 1061, 1064 (1980). The exclusivity provision, set forth in Section 303 of the Act, is as follows:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. § 411(1) and (2) ] or occupational disease as defined in section 108 [77 P.S. § 27.1],

Act of June 2, 1915, P.L. 736, § 303(a), as amended, 77 P.S. § 481(a) (footnotes omitted). This provision limits an employer’s tort exposure and grants an employee a statutory remedy for all work related injuries. “In exchange for the right to compensation without the burden of establishing fault, employees gave up their right to sue the employer in tort for injuries received in the course of employment.” Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 98-99, 465 A.2d 1069, 1072 (1983). An employer must assume liability under the Act regardless of fault in exchange for insulation from a potentially larger verdict in a common law action. Lewis v. School Dist. of Philadelphia, 517 Pa. 461, 471, 538 A.2d 862, 867 (1988).

Where an employee’s injury is compensable under the Act, the compensation provided by the statute is the employee’s exclusive remedy. See: Id. See also: Santiago v. Pennsylvania Nat’l Mut. Casualty Ins. Co., 418 Pa.Super. 178, 186, 613 A.2d 1235,1242 (1992); Kosowan v. MDC Industries, Inc., supra 319 Pa.Super. at 97, 465 A.2d at 1072. Except in certain cases involving intentional torts, the Act also provides the exclusive remedy for compensable injuries caused by a fellow employee. Act of June 2, 1915, P.L. 736, § 205, as amended, 77 P.S. § 72. A compensable injury includes “any injury to an employee regardless of his [or her] previous physical condition in the course of [ ] employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury; .... ” Act of June 2, 1915, P.L. 736, § 301(c)(1), as amended, 77 P.S. § 411(1). The Act also supplies the exclusive remedy where an employee is injured while on the employer’s premises for the purpose of furthering the employer’s business interests. Act of June 2, 1915, P.L. 736, § 301(c)(1), as amended, 77 P.S. § 411(1). See also: Thomas Jefferson University Hasp. v. WCAB, 144 Pa.Commw. 302, 601 A.2d 476 (1991). Tuberculosis is defined as an occupational disease for which the liability of an employer is determined by the terms of the Occupational Disease Act so long as the disease is contracted in the course of employment. Act of June 21, 1939, P.L. 566, § 108(m), as amended, 77 P.S. § 1208(m).

Snyder contends that her action in tort is not an attempt to obtain a remedy for the contracting of tuberculosis. She argues, rather, that the redress which she seeks is for the additional injuries suffered because of the negligence of the hospital and Nurse Galozza in failing to diagnose and treat her condition promptly. However, the Worker’s Compensation Act clearly establishes that it is the exclusive remedy for all work related injury and disease suffered in the course of employment and related thereto, including those injuries caused by the negligence of the employer or a fellow employee.

Appellee’s reliance on the “dual capacity” doctrine is misplaced. Under this doctrine an employee may sue his or her employer in tort if the employer occupies a second capacity, independent and unrelated to its status as employer, which confers independent obligations upon the employer. Heimbach v. Heimbach, 401 Pa.Super. 119, 121-122, 584 A.2d 1008, 1009 — 1010 (1991), allocatur denied, 528 Pa. 611, 596 A.2d 157 (1991). The doctrine was first announced by the Supreme Court in Tatrai v. Presbyterian University Hosp., 497 Pa. 247, 439 A.2d 1162 (1982). However, in Lewis v. School Dist. of Philadelphia, supra, 517 Pa. 461, 538 A.2d 862, and Heath v. Church’s Fried Chicken, Inc., 519 Pa. 274, 546 A.2d 1120 (1988), the Court retreated from its analysis in Tatrai, which had considered whether the employer was acting in a manner independent of its status as employer so as to impose upon the employer a separate duty, and adopted a narrower approach, which focused on whether the employee was acting outside the course of his or her employment at the time of the injury. See: Callender v. Goodyear Tire and Rubber Co., 387 Pa.Super. 283, 295, 564 A.2d 180, 186 (1989), allocatur denied, 525 Pa. 593, 575 A.2d 560 (1990). Under this analysis an employee who has been injured while performing a job-related task or while present on his or her employer’s premises pursuant to his or her employment is required to accept the remedies provided by the Worker’s Compensation Act. Heimbach v. Heimbach, supra 401 Pa.Super. at 122, 584 A.2d at 1010.

This caused a panel of the Superior Court, in Heimbach v. Heimbach, supra, to postulate that the “dual capacity” doctrine had been totally abrogated. Id. at 122, 584 A.2d at 1010. Even if this exceeds the present thinking of the high court, however, it seems readily apparent that the present case is not ruled by Tatrai.

In Tatrai, the plaintiff-employee, who worked as an operating room technician for the defendant-hospital, became ill during working hours. Because the Employee Health Service was closed, she reported to the hospital’s emergency room, a facility open to the public, for treatment. There, she was placed on an x-ray table. While the table was being rotated to an upright position, the foot broke, and the employee fell and was injured. The Court determined that when the plaintiff went to the emergency room, a facility open to the public, she did not go as an employee but as a member of the public. To such a person, the Court held, the Worker’s Compensation Act was inapplicable. Tatrai v. Presbyterian University Hosp., supra, 497 Pa. 247, 439 A.2d 1162 (Concurring Opinion by Roberts, J., joined by O’Brien, C.J., Larsen and Flaherty, JJ.)

Later, the Supreme Court explained and limited its holding in Tatrai when it decided Budzichowski v. Bell Telephone Co. of Pa., 503 Pa. 160, 469 A.2d 111 (1983). In that case, the plaintiff, a telephone installer, was initially injured when he fell on the job. When he reported to the employer’s medical dispensary, a facility not open to the general public, the staff doctors, who were employed by the same company as the plaintiff, treated him for muscle strain, prescribed muscle relaxers and ordered him back to work. Later, the plaintiff was diagnosed by an independent surgeon as having “aseptic nectosis” (deterioration of the bone) in his right femur. Therefore, the employee sued his employer and the dispensary doctors for having provided negligent medical care. The Supreme Court affirmed an order of summary judgment in favor of the employer and the fellow employee-doctors. Tatrai, the Court said, did not control the outcome because

[i]n Tatrai, the controlling factor was that the employee went to and was injured in the emergency room which served the general public. Thus, there was “no basis for distinguishing [Ms. Tatrai] from any other member of the public injured during the course of treatment.” 497 Pa. at 255-256, 439 A.2d at 1166 (concurring opinion by Roberts, J. in which O’Brien, C.J. and Larsen and Flaherty, JJ. joined). The treatment received by appellant at the Bell dispensary was not available to the general public and would not have been available to appellant but for his employment relationship with Bell.

Budzichowski v. Bell Telephone Co. of Pa., supra 503 Pa. at 167-168, 469 A.2d at 114-115 (emphasis added). Because of this factual distinction, the Court held that the plaintiffs injury had been related to his employment and that his exclusive remedy was that prescribed by the Worker’s Compensation Act.

The facts of the instant case are akin to those in Budziehowski In 1977, Nurse Galozzo held the position of infection control nurse in Pocono Medical Center’s Infectious Disease Control Department. That department had established an employee health program to monitor employees who had been exposed to certain contagious diseases, including tuberculosis. When Galozzo approached Snyder to inform her that she may have been exposed to tuberculosis, Galozzo was acting in her official capacity and pursuant to the guidelines established by the hospital’s employee health program. Subsequent monitoring of Snyder, in the form of a tine test and chest x-rays, were also offered as part of the employee health program. The same protocol was offered to all employees who were thought to have been exposed to tuberculosis. The program, however, was not a service available for or offered to the public. Because Pocono Medical Center acted as an employer and not as part of a separate and distinct relationship, the Court’s holding in Budzichowski is controlling. As a matter of law, Snyder’s exclusive remedy for her work related injuries was that provided by the Worker’s Compensation Act.

The holding in Tatrai, the Supreme Court has made clear, must be limited to the peculiar facts of that case. Where, as here, the employee contracts tuberculosis while employed by the hospital and is monitored and treated by the hospital in a program available only to employees, the employee’s remedies, even if he or she was treated negligently, are limited to those provided by the Worker’s Compensation Act. Because of the nature of its business, the hospital-employer had a vested interest in monitoring employees who were exposed to contagious diseases so that further contamination of its patients and staff could be prevented. In establishing an employee health monitoring program the hospital was not attempting to confer an independent benefit upon Snyder, but was furthering its own interest in curtailing the spread of diseases. Snyder participated in Pocono Medical Center’s employee health monitoring program pursuant to her employment, and her injury was in the course thereof. Her remedies, therefore, were limited to those provided by the Worker’s Compensation Act.

Judgment reversed and now entered in favor of appellants.

      . In view of this holding, we do not decide whether the action was also barred by the statute of limitations or whether the trial court erred by allowing damages for lost earning capacity where the plaintiff-employee continued to work in her capacity as a respiratory therapist.


text:
    656 A.2d 539
    COMMONWEALTH of Pennsylvania v. Demar DANIELS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Decided March 28, 1995.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before McEWEN, POPOVICH and CERCONE, JJ.
   CERCONE, Judge.

This is a direct appeal from a judgment of sentence entered after appellant pled guilty on drug related charges. We vacate the judgment of sentence and remand for further proceedings.

The trial court has aptly explained the events underlying this appeal in the following manner:

On July 19, 1993 City of Pittsburgh Narcotics Detectives were conducting an investigation in the Garfield Section of the city of Pittsburgh. The officers received information from an informant that some individuals were holding small amounts of crack cocaine on their persons. After making sells they would go inside 5304 Cornwall Street to retrieve more crack cocaine to sell. Based on the information received the officers set up a surveillance. They observed the Defendant’s brother, Kendall Daniels, exit 5304 Cornwall Street and engage in conversation with an unknown black male. The Defendant’s brother then retrieved an object from Ms right pants’ pocket, displayed it to the black male, and they then engaged in exchange for currency.
The officers made an investigatory stop of Defendant’s brother and found crack cocaine on his person after a pat down search. The Defendant’s mother came out of the [residence] at 5304 Cornwall Street and inquired what the problem was. The officers indicated to the Defendant’s mother that her son Kendall had crack cocaine on him and asked her if they could have consent to search her residence, which she agreed to.
Once inside the residence they met the Defendant, Demar Daniels, in an upstairs room. The officers informed the Defendant of his [Miranda ] warnings and told him of their purposes for being inside the premises, the officers asked the Defendant if there were any drugs inside the house to which he responded “yes, in the bedroom in my pants’ pocket.” The officers, along with the Defendant’s mother, retrieved in a pair of shorts which contained nineteen (19) pieces of suspected crack cocaine which were individually wrapped. The Defendant was placed under arrest, again read his [Miranda ] warnings after which he admitted in a written statement the possession of the crack cocaine and stated to the officers that “I have only been selling for a week.” The items seized were submitted to the Allegheny County Crime Lab, tested and determined to be positive for 3.46 grams of cocaine base.

Trial Court Opinion filed November 28, 1994 at 2-3.

Appellant was subsequently charged by information with two counts of violating the Controlled Substance, Drug, Device and Cosmetic Act: (Count One) possession of a controlled substance and (Count Two) possession with intent to deliver. Pursuant to a plea bargain agreement, the lower court accepted appellant’s guilty plea at a colloquy conducted on September 1, 1994. At the colloquy, the assistant district attorney indicated that the Commonwealth had agreed to recommend the minimum mandatory sentence in exchange for appellant’s guilty plea. Appellant waived a pre-sentence report, and the lower court sentenced him to serve, on count two, a term of incarceration of one (1) to two (2) years, plus a fine of five thousand dollars ($5,000), with five (5) years of probation to run consecutively to the period of imprisonment.

Appellant has perfected the instant appeal which presents two issues for our consideration:

I. Did the lower court err in imposing the mandatory fine of $5,000.00 pursuant to 18 Pa.C.S. § 7508 insofar as the Commonwealth did not give notice that it intended to seek the mandatory fine, nor did the Commonwealth in fact request the imposition of the mandatory fine; and was counsel ineffective for not challenging the imposition of the mandatory fine on these specific grounds?
II. Was the lower court’s imposition of the mandatory fine illegal insofar as it did not comply with the terms of the plea agreement?

Because of our resolution of the second issue, we need not address the first claim.

Appellant’s contention that the sentence imposed was illegal because it did not comply with the terms of the negotiated plea agreement was never raised before the trial court in that precise formulation. However, a challenge to the validity of the sentence imposed pursuant to a plea bargain goes to the legality of the sentence and as such is a non-waivable matter. Commonwealth v. Anderson, 434 Pa.Super. 309, 313, 643 A.2d 109, 111 (1994). We note, moreover, that defense counsel immediately objected to the imposition of the fine, but that her argument was cut short by the trial judge who merely noted the exception for purposes of appeal. N.T. 9/1/94 at 13.

Appellant pled guilty to possessing 3.46 grams of cocaine with intent to deliver pursuant to section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act. Because the Commonwealth chose to invoke the mandatory sentencing provisions set forth at 18 Pa.C.S.A. § 7508, the the trial court applied the following statute:

Drug trafficking sentencing and penalties (a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(i) 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 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense; three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; ----

18 Pa.C.S.A. § 7508(a)(3)® (emphasis added). Section 7508 requires the Commonwealth to give “reasonable notice,” after conviction and before sentencing, of its intention to proceed under the statute. Id. § 7508(b). Additionally, the statute specifically states:

Mandatory sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided herein. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act[, 35 P.S. §§ 780-117, 780-118] shall not be available to a defendant to which this section applies.

Id. § 7508(c) (emphasis added; footnote omitted).

The Commonwealth has the sole discretion to invoke the mandatory minimum sentencing provisions for drug trafficking offenses. Commonwealth v. Biddle, 411 Pa.Super. 210, 219, 601 A.2d 313, 318 (1991). By its own terms, the statute does not oblige the Commonwealth to provide a defendant with any particular form of notice. It only requires that notice which is “reasonable” under the circumstances of a specific case shall be afforded “after conviction and before sentencing.” 18 Pa.C.S.A. § 7508(b). Where a defendant enters a guilty plea, waives the pre-sentence report, and agrees to immediate sentencing, the Commonwealth’s opportunity to provide “reasonable notice” after conviction and before ■sentencing is necessarily abbreviated. Here, the assistant district attorney stated at the beginning of the colloquy: “In return for the defendant’s plea of guilty we are seeking just the mandatory minimum of one to two years.” N.T. 9/1/94 at 2. We agree with the trial court’s conclusion that, in the context of this case, the A.D.A.’s statements during plea negotiations afforded appellant with “reasonable notice” of the Commonwealth’s intention to invoke the mandatory minimum sentencing statute. Trial Court Opinion filed November 28, 1994 at 4.

We also agree with the trial court’s finding that nothing in the A.D.A.’s announcement of intention to proceed under section 7508 indicated that he was only invoking part of that statute or that he even considered its provisions to be severable. Furthermore, the statute itself clearly states that once invoked, the defendant shall be sentenced to a minimum prison term and a fine. 18 Pa.C.S.A. § 7508(a)(3). However, the basis for appellant’s claim of error is not that section 7508 can be interpreted in a disjunctive manner. Appellant contends that the mandatory sentence imposed was illegal as applied in this case because it did not comply with the specific terms of the negotiated plea agreement explained on the record at the colloquy. We are constrained to agree.

As a general proposition, sentencing is a matter vested in the sound discretion of the trial court and will remain undisturbed on appeal, absent an abuse of that discretion. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc), appeal denied, 535 Pa. 615, 629 A.2d 1377 (1993) .

Upon acceptance of a plea agreement, however, the trial court is bound to comply with the terms of that agreement. Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985). A sentence recommendation is among the “terms” of a plea bargain. Commonwealth v. Coles, 365 Pa.Super. [562, 565-66, 530 A.2d 453, 455 (1987), appeal denied, 522 Pa. 572, 559 A.2d 34 (1989) ] (citing Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975)). Therefore, a negotiated sentence is binding on the court where the sentence is plainly set forth on the record, understood and agreed to by the parties and approved by the trial court. Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991) (en banc), appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991).

Commonwealth v. Anderson, 434 Pa.Super. at 316, 643 A.2d at 113.

In the instant case, the record is clear that the Commonwealth intended to invoke the mandatory minimum sentencing provisions of § 7508. In response to the lower court’s query as to whether there was any agreement, the Assistant District Attorney stated:

[By the A.D.A.]: Yes, Your Honor. In return for the defendant’s plea of guilty, we are seeking just the mandatory minimum of one to two years.

N.T. 9/1/94 at 2. The lower court then inquired whether the Commonwealth also sought a term of probation. The A.D.A. replied in the affirmative and also stated that the length of probation was for the court to set. Id. The following exchange then occurred:

The Court: All right. You understand that Mr. Daniels? The Defendant: Yes.

Id. The record thus clearly demonstrates that appellant was explicitly apprised of the fact that the plea bargain’s terms included incarceration for a specific period to be followed by a span of probation, the length of which was at the discretion of the court. However, the assistant district attorney did not state on the record that the plea bargain also involved a five thousand dollar fine. Nor is there any testimony of record which indicates that appellant was informed outside the colloquy that the mandatory minimum sentencing provisions of section 7508 required both imprisonment and a fine. Therefore, the record contains no basis on which we can conclude that appellant’s plea was “plainly set forth on the record, understood and agreed to by the parties and approved by the trial court” as required by Commonwealth v. Anderson, supra, 434 Pa.Super. 309, 643 A.2d 109.

Indeed, the fact that defense counsel did not expect the lower court to impose any fine at all is demonstrated by her immediate objection to this aspect of the sentence. N.T. 9/1/94 at 13. The trial judge responded at this juncture that the fine was not discretionary, and that the sentencing court has no authority to ignore any portion of section 7508 once the statute comes into play. Id. We agree with the trial court’s interpretation of section 7508. See Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991), appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991) (sentencing court must strictly comply with provisions of 18 Pa.C.S.A. § 7508(a)(3) when that statute is invoked by the Commonwealth). However, it is clear from the record that appellant was never apprised, either during the colloquy or at any other time, that he would be subject to both imprisonment and a fine.

Pennsylvania Rule of Criminal Procedure 319 governs guilty pleas and requires the court to conduct an on-the-record inquiry to determine whether a guilty plea is voluntarily and understanding^ entered. To this end, the court must ask questions in six particular areas, including whether the defendant is aware of the permissible range of sentences and/or fines for the offenses charged. Pa.R.Crim.P., Rule 319(b)(2), 42 Pa.C.S.A., Comment ¶ 2(5) (citing Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977) and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976)). A decision to plead guilty cannot be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehends the maximum punishment that might be imposed for his conduct. Commonwealth v. Persinger, 532 Pa. 317, 323, 615 A.2d 1305, 1307 (1992). Under the circumstances of this case, we must conclude that it was error for the lower court to accept appellant’s guilty plea as the accused was not fully informed on the record regarding the maximum sentence that would be imposed under the mandatory minimum sentencing statute invoked by the Commonwealth. Id. See also Commonwealth v. Flood, 426 Pa.Super. 555, 627 A.2d 1193 (1993), appeal denied, 537 Pa. 617, 641 A.2d 583 (1994) (manifest injustice necessary to withdraw guilty plea after sentencing may be premised upon accused’s demonstration that the plea was invalid, i.e., involuntary or unknowing).

Furthermore, the record fully supports the conclusion that appellant did not receive the expected benefit of the sentence for which he bargained. This is evidenced by two facts: the assistant district attorney did not explicitly state that the Commonwealth sought any fine, and defense counsel was clearly surprised when the trial court imposed the fine. See N.T. 2/1/94 at 2, 13. Upon acceptance of a plea agreement, the trial court is bound to comply with the terms of that agreement. Commonwealth v. Anderson, supra, 434 Pa.Super. 309, 643 A.2d 109. Under the facts of record in this case, the trial court was not justified in accepting appellant’s guilty plea.

The judgment of sentence is vacated and the lower court’s acceptance of appellant’s guilty plea is reversed. The case is remanded for trial. Jurisdiction is relinquished.

      . 35 P.S. § 780-101 St ssq.

        . Id. § 780-113(a)(16).

      . Id. § 780-113(a)(30).

      . Appellant did not file a post-sentencing motion attacking the validity of the guilty plea or requesting to withdraw the plea. However, for cases in which the determination of guilt has occurred on or after January 1, 1994, a motion challenging the validity of the guilty plea is now optional. Pa.R.Crim.P., Rule 1410 B(l)(a)(i), 42 Pa.C.S.A.