author: CIRILLO, President Judge Emeritus:

text:
    675 A.2d 324
    Linda M. MIKETIC, M.D., Appellant v. Richard L. BARON, M.D. and Orlando F. Gabriele, M.D.
    Superior Court of Pennsylvania.
    Argued Feb. 29, 1996.
    Filed April 17, 1996.

      Paul R. Yagelski, Pittsburgh, for appellant.
    Martha H. Munsch, Pittsburgh, for appellees.
    Before CIRILLO, P.J.E., and SAYLOR and EAKIN, JJ.
   CIRILLO, President Judge Emeritus:

Linda Miketic, M.D. (Dr. Miketic) appeals from an order entered in the Court of Common Pleas of Allegheny County granting judgment on the pleadings in favor of appellees Richard Baron, M.D. (Dr. Baron) and Orlando Gabriele, M.D. (Dr. Gabriele). We affirm.

Dr. Miketic, a specialist in radiology, filed a complaint in defamation against Drs. Baron and Gabriele. Dr. Miketic alleges in her complaint that she was employed on a year to year basis by the Radiology Department of the University of Pittsburgh School of Medicine (the University) and at SRT Radiologists (SRT), a clinical practice plan within the University. Dr. Gabriele was Dr. Miketic’s immediate supervisor. Dr. Baron, to whom Dr. Gabriele reported, was the Chairman of the Department of Radiology. In January, 1994, Dr. Miketic was told that her faculty appointment at the University and her employment agreement with SRT would not be renewed and would terminate on June 30, 1994. Upon receiving this notification, Dr. Miketic availed herself of the University’s appeal process. Initially, Dr. Miketic demanded a written statement of the reason for her non-renewal. Upon receiving such a statement, Dr. Miketic filed an appeal to an internal appeals committee.

A hearing was held, at which Dr. Miketic was shown a two page letter dated November 23, 1993, written by Dr. Gabriele and addressed to Dr. Baron. Dr. Miketic’s complaint alleges that the letter contained false, disparaging, and defamatory statements, and that Dr. Gabriele published these statements to Dr. Baron, and that both Dr. Gabriele and Dr. Baron provided it to the Dean of the University’s School of Medicine and to the University appeals panel. In her complaint, Dr. Miketic claims that the letter reported the following:

a. That Dr. Miketic engaged in gross insubordination;
b. That Dr. Miketic acted as though she was not subject to Dr. Gabriele’s or Dr. Baron’s authority;
c. That Dr. Miketic falsely identified herself as Chief of Oncologic Radiology using a title she had no authority to use;
d. That Dr. Miketic was unable to maintain appropriate and professional rapport and communication with colleagues in the Department of Radiology;
e. That Dr. Miketic did not make herself available to the Department of Radiology;
f. That Dr. Miketic was unreasonable;
g. That Dr. Miketic lacked concern for prior commitments by Department of Radiology supervisory personnel;
h. That Dr. Miketic was not responsive to colleagues;
i. That Dr. Miketic would not respond to Dr. Gabriele’s instructions;
j. That Dr. Miketic would not respond to Dr. Baron’s instructions;
k. That Dr. Miketic felt that she was responsible to a higher authority outside of the Department of Radiology; and
l. That Dr. Miketic had a long history of the above-stated problems.

Drs. Baron and Gabriele filed an amended answer and new matter to Dr. Miketic’s complaint, and thereafter filed a motion for judgment on the pleadings. Oral argument was held on this motion, and the Honorable Bernard J. McGowan entered judgment on the pleadings in favor of Drs. Baron and Gabriele. Specifically, the trial court concluded that Drs. Baron and Gabriele had an absolute privilege to state their position regarding Dr. Miketic’s non-renewal. In so finding, the trial court rejected Dr. Miketic’s claim that a conditional privilege should apply. The court found that even if a conditional privilege were to apply, Dr. Miketic alleged no facts in her complaint which would support an abuse of a conditional privilege.

Dr. Miketic raises the following issue for our consideration: Did the trial court err in granting judgment on the pleadings by misreading appellant’s defamation complaint as setting forth only two actionable publications, both of which it found to be absolutely privileged?

Specifically, Dr. Miketic argues that the publications were conditionally privileged as opposed to absolutely privileged, that the trial court failed to analyze her allegation that publication was made to the dean of the University, and that her complaint adequately alleged abuse of the conditional privilege.

When reviewing the grant of judgment on the pleadings, we employ the following standard:

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Thus, “[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.” An appellate court must accept as true all well-pleaded facts of the party against whom the motion is made, while considering against him only those facts which he specifically admits____ Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings.

American Motorists Ins. Co. v. Farmers Bank, 435 Pa.Super. 54, 58, 644 A.2d 1232, 1234 (1994) (quoting Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471-72 (1992) (citations omitted)).

By way of background, in an action for defamation, the plaintiff must prove: (1) the defamatory character of the communication; (2) publication by the defendant; (3) its application to the plaintiff; (4) understanding by the recipient of its defamatory meaning; (5) understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm to the plaintiff; and (7) abuse of a conditionally privileged occasion. Maier v. Maretti, 448 Pa.Super. 276, 671 A.2d 701, 704 (1995) (citing 42 Pa.C.S.A. § 8343(a)); see also Elia v. Erie Ins. Exchange, 430 Pa.Super. 384, 388, 634 A.2d 657, 659 (1993) , alloc. denied, 537 Pa. 662, 644 A.2d 1200 (1994); Agriss v. Roadway Exp., Inc., 334 Pa.Super. 295, 304, 483 A.2d 456, 461 (1984). When relevant to the defense, the defendant has the burden of proving (1) the truth of the defamatory communication; (2) the privileged character of the occasion on which it was published; and (3) the character of the subject matter of defamatory comment as of public concern. Elia, 430 Pa.Super. at 390, 634 A.2d at 660 (citing 42 Pa.C.S.A. § 8343(b)).

“Depending upon the importance of the publisher’s actions to society, the privilege may be absolute or conditional/qualified.” Elia, 430 Pa.Super. at 390, 634 A.2d at 660.

Liability for publication of defamatory matter may be defeated by a privilege to publish the defamation. One who publishes defamatory matter within the scope of an absolute privilege is immune from liability regardless of occasion or motive. Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1968). However, such a privilege may be lost if the publisher exceeds the scope of his privilege by publishing the defamation to unauthorized parties. It is a question of law whether privilege applies in a given case, but a question of fact for the jury whether a privilege has been abused. Montgomery v. City of Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); see also Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984).

Agriss, 334 Pa.Super. at 308, 483 A.2d at 463 (emphasis added).

We initially examine the trial court’s conclusion that Drs. Baron and Gabriele had an absolute privilege to state their position concerning Dr. Miketic’s non-renewal to the appeals committee. In Yetter v. Ward Trucking Corp., 401 Pa.Super. 467, 585 A.2d 1022 (1991), alloc. denied, 529 Pa. 623, 600 A.2d 539 (1991), a defamation action arose out of statements communicated to the appellant in a letter written by an employee of the appellee trucking company. There, we stated:

Consistent with a policy favoring private resolution of disputes between employers and employees, Pennsylvania law recognizes the absolute privilege of employers to publish defamatory matter in notices of employee termination. Thus, a letter articulating the reasons for an employee’s termination which is published only to the employee “ ‘may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal.’ ” Agriss, supra, 334 Pa.Super. at 310, 483 A.2d at 464[.j The purpose of the absolute privilege is to encourage the employer’s communication to the employee of the reasons for discharge by eliminating the risk that the employer -will possibly be subject to liability for defamation. Where the privilege is abused by the employer’s publication of the defamatory material to unauthorized parties, the employer is no longer immune from liability.

Id. at 470, 585 A.2d at 1024 (citations omitted) (emphasis added). In Yetter, there were no allegations that the appellee communicated the contents of the letter to anyone other than the appellant; the dismissal of the appellant’s complaint was affirmed by this court, which found that an absolute privilege applied.

Similarly, in Sobel v. Wingard, 366 Pa.Super. 482, 531 A.2d 520 (1987), the appellee wrote to the appellant informing him that his services as a teacher would no longer be required because of problems with lesson plans, the taking of attendance, and the preparation of the day’s activities reports. This court, in affirming the trial court’s order sustaining preliminary objections to the appellant’s complaint, concluded that the remarks in question did not constitute defamation. We further stated:

In addition, ... [a]n employer has an absolute privilege to publish defamatory matters in notices of employee terminations. DeLuca v. Reader, 227 Pa.Super. 392, 323 A.2d 309 (1974); Agriss, supra. This absolute privilege was extended in Agriss to include publications of defamatory material in warning letters. Moreover, evaluations of an employee by an employer are deemed to be consented to by the employee. Baker v. Lafayette College, 350 Pa.Super. 68, 504 A.2d 247 (1986). Consent is an absolute privilege. Baker, supra.

Sobel, 366 Pa.Super. at 486, 531 A.2d at 522. See Baker, supra (appellant college professor’s consent to publication of formal evaluations of his performance by another professor gave the appellee college an absolute privilege against appellant’s defamation claim); Agriss, supra (the publication of appellant employee’s warning letter, under the collective bargaining agreement between employee and appellee trucking company, was held to be absolutely privileged).

In light of this line of cases, the trial court concluded that an absolute privilege applied to the statements provided to the appeals committee. A review of Dr. Miketic’s complaint reveals that the publication/letter was not addressed to her or initially made known to her. Also, there is nothing in Dr. Miketic’s complaint to indicate that she consented to such a publication/evaluation. The question arises of whether or not to extend the absolute privilege to the instant set of facts.

We find it helpful to explore the original purpose of the absolute privilege. “The privilege, which includes judges, lawyers, litigants and witnesses, had its origin in defamation actions premised upon statements made during legal actions.” Panitz v. Behrend, 429 Pa.Super. 273, 277, 632 A.2d 562, 564 (1993), alloc. denied, 539 Pa. 694, 653 A.2d 1232 (1994). The Pennsylvania Supreme Court explained:

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests.

Binder v. Triangle Publications, Inc., 442 Pa. 319, 323-24, 275 A.2d 53, 56 (1971); accord Rolla v. Westmoreland Health System, 438 Pa.Super. 33, 36, 651 A.2d 160, 162 (1994); Panitz, 429 Pa.Super. at 277, 632 A.2d at 564.

The above cited law reflects the narrow scope intended for the grant of an absolute privilege. While there is certainly a strong argument in favor of finding that Drs. Baron and Gabriele had an absolute privilege to publish the letter at issue, we need not reach that question, as we find that the law more closely supports a finding of a conditional privilege.

In Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980), a panel of this court upheld the trial court’s grant of appellees’ (university’s and professor’s) motion for judgment on the pleadings. There, appellant, a student, brought an action against the appellees for allegedly defamatory statements made in a letter from the professor to the university ombudsman concerning the student’s request that the school reopen a decision regarding her failed attempt at a Ph.D. Specifically, this court found that the communication was not capable of defamatory meaning. Id. at 534, 419 A.2d at 587. This court further concluded that, as a matter of law, “even if the communication were capable of defamatory meaning, we agree with appellees’ claim that the publication was made on a conditionally privileged occasion relieving appellees of any liability.” Id.

In making such a finding, our court stated:

Communications made on a proper occasion, from a proper motive, in a proper manner, and based upon reasonable cause are privileged. Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 285 A.2d 166 (1971); Dempsky v. Double, 386 Pa. 542, 126 A.2d 915 (1956).
“ ‘An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.’ ” Rankin v. Phillippe, 206 Pa.Super. 27, 30, 211 A.2d 56, 58 (1965), quoting, Restatement of Torts § 596 (1939).
Thus, proper occasions giving rise to a conditional privilege exist when (1) some interest of the person who publishes defamatory matter is involved; (2) some interest of the person to whom the matter is published or some other third person is involved; or (3) a recognized interest of the public is involved. Keddie v. Pennsylvania State University, [412 F.Supp. 1264 (M.D.Pa.1976) ]; MacRae v. Afro-American Co., [172 F.Supp. 184 (E.D.Pa.1959) ].

Beckman, 276 Pa.Super. at 534-36, 419 A.2d at 587-88. In determining that “a proper occasion resulting in a conditional privilege” existed in Beckman, this court found that the professor and ombudsman, both individually and as members of the university, had strong interests in the qualifications of those granted a Ph.D.

Once a matter is deemed conditionally privileged, the plaintiff must establish that the conditional privilege was abused by the defendant. Elia, 430 Pa.Super. at 392, 634 A.2d at 661; Chicarella v. Passant, 343 Pa.Super. 330, 337, 494 A.2d 1109, 1113 (1985). This court recognized in Beckman that:

Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.

Beckman, 276 Pa.Super. at 536, 419 A.2d at 588 (citations omitted); accord Elia, 430 Pa.Super. at 392, 634 A.2d at 661. We concluded in Beckman that the pleadings failed to demonstrate as a matter of law that the professor’s evaluation of the student/appellant’s academic skills was a result of intentional, reckless or wanton conduct. Beckman, 276 Pa.Super. at 536, 419 A.2d at 588.

In Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990), it was specifically stated that the conditional privilege “applies to private communications among employers regarding discharge and discipline.” Id. at 122, 573 A.2d at 1118 (emphasis added). There, this court upheld a summary judgment ruling in favor of appellees (a supervisor and hospital), concluding that the supervisor’s communication to a personnel director and the payroll department of her suspicions concerning the appellant’s alteration of appellant’s time card was conditionally privileged. “A publication is conditionally privileged if the publisher reasonably believes that the recipient shares a common interest in the subject matter and is entitled to know.” Id. Specifically, this court found that the members of the payroll department and the personnel director shared the supervisor’s interest in appellant’s activities and had a common interest in the matters published. In recognizing that the plaintiff/appellant had the burden of pleading and proving abuse of privilege, 42 Pa. C.S.A. § 8343, this court concluded that the appellant failed to show any abuse of the privilege, the only indication being a vague statement in the complaint that the supervisor “wickedly intended” to cause the appellant harm; there was no suggestion of “spite, malice, or improper purpose.” Id. at 124, 573 A.2d at 1119.

Recently, in Maier, supra, this court had another occasion to apply the law of conditional privilege. There, the appellant, an employee of Sears who was terminated, claimed that appellee, her supervisor, defamed her in a report to the branch manager and the personnel director. In upholding summary judgment in favor of the supervisor, this court found that the communication in question was not defamatory. Additionally, we concluded that, regardless of whether or not the communication was defamatory, the supervisor’s report to the branch manager and personnel director was conditionally privileged and the appellant did not allege any genuine issue of material fact regarding the abuse of that privilege.

In the present litigation, appellant was suspended for refusal to work on Sundays and had filed an EEOC complaint; therefore, both appellee as appellant’s supervisor and Sears’ branch manager and personnel director had a common interest in appellant. As a supervisor, appellee correctly believed the branch manager had a right to know about incidents involving appellant. Furthermore, this court in Rutherfoord v. Presbyterian-University [, 417 Pa.Super. 316, 612 A.2d 500 (1992) ] concluded that communications among management-level persons concerning employee’s job performance were necessary for the operation of the department and therefore privileged.[]

Maier, 448 Pa.Super. at 286, 671 A.2d at 706.

Applying the principles set forth above, we find that the instant case is an example of an occasion giving rise to a conditional privilege. Dr. Baron, a publisher of the letter, and Dr. Gabriele, recipient and publisher of the letter, clearly shared an interest in Dr. Miketic’s performance, behavior, and attitude. As her superiors, they possessed a common concern in the matters published. The same holds true for the dean of the medical school and the members of the appeals panel who, due to their role in reviewing the decision not to renew Dr. Miketic’s appointment, shared an interest in Dr. Miketic’s supervisors’ evaluation of her job performance.

As stated earlier, once a matter is deemed conditionally privileged, the plaintiff must establish that the defendant abused that privilege. Elia, supra. We agree with the trial court and find, as a matter of law, that Dr. Miketic’s complaint failed to demonstrate facts which would support a finding that the publication was a result of malice or improper purpose. Specifically, Dr. Miketic’s complaint alleges an abuse of privilege in a series of legal conclusions.

Pennsylvania is a fact pleading state. Smith v. Brown, 283 Pa.Super. 116, 423 A.2d 743 (1980). “Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint.” Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 418 Pa.Super. 178, 183, 613 A.2d 1235, 1238 (1992); see Pa.R.C.P. 1019. Here, the complaint sets forth very few facts; Dr. Miketic does not adequately plead facts supporting abuse of privilege. Rule 1019(a) has been interpreted to mean that the complaint must not only apprise the defendant of an asserted claim, but it must also synopsize the essential facts to support the claim. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 234, 622 A.2d 355, 357 (1993). See Pennsylvania Public Utility Com. v. Zanella Transit, Inc., 53 Pa.Commw. 359, 417 A.2d 860 (1980) (general conclusions of law violate the requirement of Rule 1019(a) mandating the pleading of material facts).

In her complaint, Dr. Miketic alleges that Drs. Gabriele and Baron made/disseminated the statements “knowing them to be untrue and/or in reckless disregard of the truth,” that the letter was disseminated “for an improper purpose,” and that the dissemination was done “willfully and maliciously.” There is no underlying factual bases for the states of mind Dr. Miketic ascribes to the defendants. The trial court, therefore, did not err in granting judgment on the pleadings in favor of Drs. Baron and Gabriele. American Motorists, supra.

Affirmed.

      . According to the complaint, Dr. Miketic had fortuitously come across this letter in early December, 1993 when she requested a copy of her curriculum vitae from Dr. Gabriele’s secretary. The secretary gave a computer disk full of documents to Dr. Miketic, which contained the letter at issue. At the time Dr. Miketic initially discovered the letter, according to the complaint, she was unsure whether the letter had been disseminated, or whether it was a draft document or final document.

      . In her statement of questions involved, Dr. Miketic raises five sub-issues relating to her main issue on appeal. We need not reiterate these, as each is subsumed by the above-stated issue.

      . The question of whether the communications at issue are capable of a defamatory meaning is not an issue before this court. We note that Drs. Baron and Gabriele initially filed preliminary objections in the nature of a demurrer alleging that the complaint failed to state a cause of action for defamation because it failed to allege, as a matter of law, publication of false statements capable of a defamatory meaning. The trial court overruled these preliminary objections.

      . Dr. Miketic claims that the trial court misread her complaint and failed to realize that she had also alleged publication by Drs. Baron and Gabriele to Dr. Bernier, Dean of the University's Medical School. We find, however, that the trial court characterized the publication as being by "both defendants through various academic officials to the appeals committee." Thus, the trial court apparently considered the alleged publication by the appellees to the Dean.

      . Without performing an in-depth analysis of this issue, this court stated in Rutherfoord: “We agree that each alleged defamatory statement was conditionally, if not absolutely, privileged, and, therefore, was not actionable as a matter of law." Rutherfoord, 417 Pa.Super. at 330, 612 A.2d at 507 (footnote omitted).

      . Additionally, we note that Dr. Miketic alleges in the complaint that she "believes” the defendants published the defamatory statements to “others.” The "others” are not named. See Jaindl v. Mohr, 432 Pa.Super. 220, 637 A.2d 1353 (1994), aff'd, 541 Pa. 163, 661 A.2d 1362 (1995) (a complaint for defamation must identify exactly to whom the allegedly defamatory statements were made).


source: Caselaw Access Project

license: Public Domain

text:
    675 A.2d 331
    COMMONWEALTH of Pennsylvania v. Frank R. GENOVESE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 29, 1996.
    Filed April 18, 1996.

      Daniel J. Brabender, Jr., Erie, for appellant.
    Matt Hayes, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CIRILLO, President Judge Emeritus and SAYLOR and EAKIN, JJ.
   CIRILLO, President Judge Emeritus:

Frank Genovese appeals from the judgment of sentence entered following the trial court’s order denying his motion to modify or reconsider the sentence requiring him to pay restitution of $192.92 for damage to the victim’s car following his conviction of the summary offense of careless driving. We affirm.

Genovese, while driving at an excessive rate of speed through the parking lot of Wegman’s grocery in Millcreek Township, cut through the handicapped parking space so as to avoid driving around the established island and stopping at the stop sign located in the lot. Proceeding through the space, Genovese nearly collided with the vehicle driven by the victim, Gary Virostek, who was backing out of his parking space. Genovese stopped, got out of his car, and ran toward Virostek shouting obscenities. Subsequently, Genovese got back into his car, put it in reverse, and backed his car into the left front fender of Virostek’s vehicle, which was stationary at the time. The township police arrived and cited Genovese with careless driving on private property in violation of a Millcreek Township ordinance. 75 Pa.C.S.A. § 3714; Millcreek Township Ordinance No. 80-20 (amended 1992, for the purpose of enforcing 75 Pa.C.S.A. § 3714 on private property).

A trial de novo was held before the Honorable Stephanie Domitrovitch, who, after a hearing, found Genovese guilty of violating the ordinance. The trial court sentenced Genovese to pay a fine of $25.00, and further ordered him to pay restitution to the victim in the amount of $192.92 for the damage to the car. Following the denial of his motion to modify or reconsider the sentence, Genovese filed this appeal asking us to consider:

1. Whether the trial court abused its discretion by ordering the appellant to pay restitution as part of a sentence following a conviction for careless driving, a traffic offense under the Vehicle Code?
2. Whether the appellant has been denied due process by which to litigate the civil action concerning damages in this case?

Genovese argues that the trial court abused its discretion by ordering him to pay restitution as part of a sentence for a violation of the Motor Vehicle Code, and that the order of restitution violates his right to due process because it thwarts his opportunity to litigate a civil action regarding damages.

Initially, we note that Genovese does not claim that the damage to the victim’s car was not caused by his actions, or that the amount awarded was improper. The crux of his argument is that restitution is a creature of statute and, therefore, the trial court is powerless to order a defendant to make restitution without an express legislative direction. Genovese interprets 18 Pa.C.S.A. § 1106 of the Crimes Code and 75 Pa.C.S.A. § 6502(c) of the Motor Vehicles Code (regarding the inapplicability of the Crimes Code) to assert that the legislature clearly intended that restitution is only applicable for crimes committed under Title 18 (the Crimes Code) and not for convictions under Title 75 (the Vehicle Code). We disagree with both his interpretation and his conclusion.

In 1978, the legislature amended Section 1106 and added the words “or by a district justice” to the definition of “crime” as used in the section. 18 Pa.C.S.A. § 1106(h). The additional language makes it clear that restitution may be ordered for any offense punishable by a district justice. See supra at n. 2. Summary offenses, including those under the Vehicle Code are punishable by a district justice, see 42 Pa.C.S.A. § 1515 (district justice has jurisdiction over all summary offenses), and a district justice can order restitution up to the undisputed dollar amount of the property loss so long as it is less than the jurisdictional amount stated in 42 Pa.C.S.A. § 1515(a)(3) (the jurisdictional limit for district justices is currently $8,000). 18 Pa.C.S.A. § 1106(d). Restitution for property damage resulting from summary motor vehicle violations, therefore, is not excluded under this section and may be ordered following conviction of the offense in an appropriate case.

Genovese also argues that restitution is penal in nature and section 6502(c) of the Vehicle Code specifically states that the Crimes Code is not applicable to “penalties” for convictions for summary offenses. Appellant, however, seeks to expand the scope of this section. The actual language of section 6502(c) provides as follows:

(c) Title 18 inapplicable. — Title 18 (relating to crimes and offenses), insofar as it relates to fines and imprisonment for convictions of summary offenses, is not applicable to this title.

75 Pa.C.S.A. § 6502(c) (emphasis added).

Restitution, however, is not a fine, but is an “equitable remedy under which a person is restored to his or her original position prior to loss or injury; [it is the] restoration of anything to its rightful owner [or] the act of making good or giving equivalent for any loss, damage or injury.” BLACK’S LAW DICTIONARY 1313 (6th ed. 1990). Restitution, by definition, as it relates to property damage, can be made by either the return of the original property or the payment of money necessary to replace, or to repair the damage to, the property. Although restitution is penal in nature, it is “highly favored in the law” and is encouraged “so that the defendant will understand the egregiousness of his conduct, be deterred from repeating this conduct, and be encouraged to live in a responsible way.” Commonwealth v. Harner, 533 Pa. 14, 22, 617 A.2d 702, 706-07 (1992). See also Fuqua, supra (the primary goal in sentencing a defendant to pay restitution is rehabilitation).

A fine, on the other hand, is solely a pecuniary punishment which is imposed as a penalty. BLACK’S LAW DICTIONARY 632 (6th ed. 1990). In Pennsylvania, however, before a fine can be imposed, the court must consider what effect the fine will have on the defendant’s “ability to make restitution or reparations.” Pa.R.Crim.P. 1407(c). Thus, since restitution is neither a fine nor imprisonment, this argument must fail.

Our supreme court recently construed 18 Pa.C.S.A. § 1106, stating:

We believe that this statute is clear on its face and applies only for crimes to property or person where there has been a loss that flows from the conduct which forms the basis of the crime for which the defendant is held criminally accountable.

Harner, at 21-22, 617 A.2d at 706.

Instantly, Genovese was convicted of careless driving, an offense which occurs when a person “drives a vehicle in careless disregard for the safety of persons or property.” 75 Pa.C.S.A. § 3714; Millcreek Township Ordinance No. 80-20. Genovese’s act of backing into the victim’s car following the altercation is evidence of a careless disregard of the safety of property and the victim’s damages of $192.92 arose directly from this conduct.

In conclusion, the Vehicle Code violation of careless driving is an offense punishable by a district justice, 18 Pa.C.S.A. § 1106(h), restitution is not a fine or imprisonment which would make Title 18 inapplicable, 75 Pa.C.S.A. § 6502(c), and Genovese’s conduct leading to the conviction was the direct cause of the property damage. Harner, supra. Additionally, ordering restitution for this summary offense would emphasize the danger to persons and property that driving erratically through crowded parking lots encompasses. Id. We find, therefore, that restitution is appropriate in this case.

Lastly, Genovese claims that he has been denied due process by which to litigate a civil action concerning the damages and which would involve issues such as comparative negligence, etc. We need not reach the merits of this claim, however, since Genovese’s argument consists only of a bald assertion unsupported by any citation to authority. The argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority. Pa.R.A.P. 2119(a). See Estate of Lakatosh, 441 Pa.Super. 133, 656 A.2d 1378 (1995). When the appellant fails to adequately develop his argument, meaningful appellate review is not possible. This court will not act as new counsel, Lakatosh, supra, and we will not consider this issue further. See also Commonwealth v. Maris, 427 Pa.Super. 566, 629 A.2d 1014 (1993); Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228 (1992), appeal denied, 532 Pa. 655, 615 A.2d 1311. We note, however, that the award of restitution does not affect appellant’s right to defend in a civil action. See 18 Pa.C.S.A. § 1106(g); see also Fuqua, supra (an order of restitution, although it will reduce the amount of damages recoverable in a civil action arising from the incident, is not an award of damages).

Judgment of sentence affirmed.

      . Local municipalities may enact summary offense traffic ordinances not otherwise covered under the Vehicle Code. 75 Pa.C.S.A. §§ 6102(b) and 6109.

      . Section 1106 states in pertinent part:
      § 1106. Restitution for injuries to person or property.
      (a) General rule. — Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime ... the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
      (h) Definitions. — As used in this section the following words shall have the meanings given to them in this subsection:

        "Crime.” — Any offense punishable under this title or by a district justice.

      18 Pa.C.S.A. § 1106 (emphasis added).

      . This court previously rejected the same argument. See Commonwealth v. Fuqua, 267 Pa.Super. 504, 510 n. 10, 407 A.2d 24, 27 n. 10 (1979) (restitution is appropriate sentence in cases involving violation of Motor Vehicle Code).

      . Following conviction for a summary offense, the fine which may be imposed is $300.00, unless a different amount is indicated for the specific offense. 18 Pa.C.S.A. § 1101(6).


author: BROSKY, Judge.

text:
    675 A.2d 334
    Robert W. WELC, Administrator of the Estate of Kerri Ann Welc, Deceased; and Robert W. Welc and Mary Ann Welc, as Individuals and Parents of Kerri Ann Welc, Deceased, Appellants, v. Christopher Ryan PORTER and Julie Porter and Danny Book McGee.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1995.
    Filed April 19, 1996.

      William M. Radcliffe, Uniontown, for appellants.
    Monica Maghrak, Pittsburgh, for McGee, appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the trial court which sustained appellee’s preliminary objections in the nature of a demurrer and dismissed him from the case. The sole issue presented for our review is whether a minor passenger owes a duty of care to a third-person who is injured as a result of the negligent conduct committed by the driver of the vehicle in which the passenger is riding. For the reasons set forth below, we affirm.

Before addressing this issue, it is necessary to briefly recount the pertinent facts giving rise to this appeal. This case has its genesis in an automobile collision which occurred on April 1, 1994. Two vehicles were involved in the accident; one was operated by Christopher Porter, the other by George Bortz, IV. Appellee, Danny McGee, was a passenger in Porter’s truck. Shelley Bortz and Kerri Ann Welc were passengers in Bortz’ car and were severely injured in the crash. Welc’s injuries were ultimately fatal.

Appellants, Robert and Mary Ann Welc, thereafter instituted wrongful death and survival actions against Christopher and Julie Porter. The Welcs later amended their complaint to include separate causes of action against McGee. McGee filed preliminary objections in the nature of a demurrer. The trial court sustained the objections and dismissed the complaint against McGee.

The Welcs appealed the trial court’s interlocutory order; this appeal was later discontinued. The Welcs thereafter requested that the trial court amend its order to include the express determination of finality in accordance with Pa.R.A.P., Rule 341, 42 Pa.C.S.A., so that the order could be appealed. The trial court granted the application and entered an amended order on May 15, 1995. Appellants timely appealed therefrom.

Appellants challenge the trial court’s decision to grant the demurrer. In determining whether the objections were properly sustained:

We must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). Accord Clayton v. McCullough, 448 Pa.Super. 126, 128-129, 670 A.2d 710, 712 (1996). We will evaluate appellant’s arguments and the trial court’s decision with this standard in mind.

Appellants’ causes of action sound in negligence. To adequately set forth a cause of action in negligence appellants must demonstrate, inter alia, that appellee owed the decedent a duty of care which is recognized by law and that he breached this duty. Alumni Association v. Sullivan, 524 Pa. 356, 360, 572 A.2d 1209, 1210-1211 (1990); Clayton v. McCullough, 448 Pa.Super. at 129, 670 A.2d at 712. With regard to the question of whether a recognized duty of care exists, appellants have not referred us to any Pennsylvania cases, nor has our own research uncovered any such authority, in which a minor passenger of a vehicle has been held liable for injuries sustained by a third-person as a result of the driver’s negligent operation of the vehicle.

We are not wholly bereft of guidance in this matter, however, as there are a few appellate decisions which have considered the duties owed by adults and minors to third-persons. This court has also had the opportunity to consider the duty which a passenger owes to a third-person. A review of these cases is therefore instructive.

Our Supreme Court has held that there can be no liability on the part of an adult social host who serves alcoholic beverages to his or her adult guests even though the host may know that the guest will drive while intoxicated. Klein v. Raysinger, 504 Pa. 141, 148, 470 A.2d 507, 510-511 (1983). This holding was subsequently applied to situations involving minors. Consequently, the Supreme Court has determined that a minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol. Kapres v. Heller, 536 Pa. 551, 557, 640 A.2d 888, 891 (1994). The Court has further indicated that a minor who furnishes alcohol to another minor is not liable to third-parties injured by the intoxicated minor. See Sperando v. Commonwealth, Department of Transportation, 537 Pa. 352, 352, 643 A.2d 1079, 1079 (1994) (reversing, based on Kapres v. Heller, the Commonwealth Court’s decision that a minor was liable to a third-person who was injured as a result of his provision of alcohol to the minor driver). This court has also recognized that an adult passenger does not owe a duty to a third-person where the driver of the vehicle in which he is riding is intoxicated. Clayton v. McCullough, 448 Pa.Super. at 130-131, 670 A.2d at 713.

In light of the above decisions, it is clear that liability cannot be imposed against appellee based on his participation in the procurement and ingestion of alcoholic beverages with Christopher Porter. See Kapres and Sperando, supra. Moreover, it would be anomalous for this court to find that appellee, who was a minor at the time of the accident, owed a duty to appellant based on his status as a passenger in the vehicle when a similar duty has been deemed lacking on the part of an adult passenger. We thus conclude that appellee owed no duty to the decedent. Our holding is consistent with the decisions of our sister states which have generally acknowledged that absent the existence of a special relationship, joint enterprise, joint venture or a right to control the vehicle, a passenger owes no duty to protect third-persons or other passengers from the negligent acts of the driver. See, e.g., Dennison v. Klotz, 12 Conn.App. 570, 578, 532 A.2d 1311, 1317 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988); Akins by and through Akins v. Hamblin, 237 Kan. 742, 743, 745-746, 703 P.2d 771, 773-774, 776 (1985); Sanke v. Bechina, 216 Ill.App.3d 962, 963-964, 160 Ill.Dec. 258, 259, 576 N.E.2d 1212, 1213 appeal denied, 142 Ill.2d 665, 164 Ill.Dec. 928, 584 N.E.2d 140 (1991); Danos v. St. Pierre, 383 So.2d 1019, 1022 (La.App.1980), affirmed, 402 So.2d 633, 637 (La.1981); Brown v. Jones, 200 Mich.App. 212, 215-216, 503 N.W.2d 735, 736-737, appeal denied, 444 Mich. 909, 512 N.W.2d 318 (1993); Olson v. Ische, 343 N.W.2d 284, 288 (Minn.1984); Lind v. Slowinski, 450 N.W.2d 353, 356-357 (Minn.App.), review denied (2/21/90); Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978); Hale v. Allstate Insurance Co., 639 P.2d 203, 205 (Utah 1981); Price v. Halstead, 177 W.Va. 592, 597, 355 S.E.2d 380, 385-386 (1987).

Appellants nonetheless urge us to hold appellee liable pursuant to the concert of action theory set forth in the Restatement (Second) of Torts § 876(a) and (b) (1977). Although these provisions have been addressed by this court, see, e.g., Goldberg v. Delta Tau Delta v. Goldberg, 418 Pa.Super. 207, 215-216, 613 A.2d 1250, 1254-1255 (1992), allocatur denied, 534 Pa. 639, 626 A.2d 1158 (1993) and Jefferis v. Commonwealth, 371 Pa.Super. 12, 18-19, 537 A.2d 355, 358-359 (1988), these pronouncements are not controlling as the discussions either did not command a majority or constituted dicta. Moreover, these sections heretofore have not been expressly adopted. Clayton v. McCullough, 448 Pa.Super. at 130-131, 670 A.2d at 713; Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 22, 495 A.2d 963, 970 (1985). We need not decide whether to adopt section 876 of the Restatement because appellants have failed to set forth sufficient facts which justify the imposition of liability on this basis.

The Restatement provides, in relevant part:

§ 876 Persons Acting in Concert
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he: (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself....

Restatement (Second) of Torts, § 876(a) and (b) (1977). Several other states have had the opportunity to consider whether to impose liability upon a minor or adult individual under section 876(b). In those jurisdictions which permitted recovery, all involved situations where the plaintiff pled or proved facts which clearly demonstrated that the passenger or defendant actively encouraged the driver to commit the tortious conduct. See, e.g., Cobb v. Indian Springs, Inc., 258 Ark. 9, 17, 522 S.W.2d 383, 387 (1975) (substantial encouragement or assistance in the driver’s tortious conduct could be found where the defendant was respected as an authority figure by the minor driver and he encouraged him to demonstrate the vehicle’s performance ability); Sanke v. Bechina, 216 Ill.App.3d at 964-965, 971, 160 Ill.Dec. at 260-261, 264, 576 N.E.2d at 1214-1215, 1218 (passenger’s encouragement that driver ignore a stop sign and exceed the posted speed limit fell squarely within the conduct contemplated by section 876); Cooper v. Bondoni, 841 P.2d 608, 611-612 (Okl.Ct.App.), cert. denied (11/17/92) (minor passengers gave substantial assistance and encouragement to minor driver’s negligent operation of his vehicle where they provided him with alcoholic beverages and urged him to pass a truck while climbing a hill in a no-passing zone); Aebischer v. Reidt, 74 Or.App. 692, 696, 704 P.2d 531, 532, review denied, 300 Or. 332, 710 P.2d 147 (1985) (minor passenger gave substantial assistance and encouragement to minor driver’s operation of his vehicle in an impaired condition by continuously refilling a marijuana pipe and permitting him to smoke therefrom); and Price v. Halstead, 177 W.Va. at 600, 355 S.E.2d at 389 (passenger’s conduct substantially assisted or encouraged the driver’s continued use of alcohol and drugs by providing these substances to him while he drove the vehicle). In comparison, liability has not been imposed in those jurisdictions where it was established that the passengers were merely companions who did nothing to substantially encourage or assist the driver in his or her voluntary consumption of alcohol and operation of the vehicle while intoxicated. See, e.g., Cully v. Bianca, 186 Cal.App.3d 1172, 1178, 231 Cal.Rptr. 279, 282-283 (1986) (other than passengers’ accompaniment of driver after they obtained and drank tequila, the plaintiff pointed to no facts indicating that the passengers gave substantial assistance and encouragement to the driver); Slicer v. Quigley, 180 Conn. 252, 260, 429 A.2d 855, 859 (1980) (aside from the minor passenger’s actions in drinking and driving with driver for two hours before the accident, there was no evidence that the passenger had given substantial assistance or encouragement to the driver to drive while intoxicated); Stock v. Fife, 13 Mass.App. 75, 82 n. 10, 430 N.E.2d 845, 849-850 n. 10, review denied, 385 Mass. 1103, 441 N.E.2d 1043 (1982) (facts did not permit recovery under section 876 where there was no showing that the passengers forced, pressured, or induced the driver to drink); Olson v. Ische, 343 N.W.2d at 289 (the kind of substantial encouragement needed to impose liability under section 876 was not present where the driver and passenger each drank voluntarily and the passenger accompanied the driver on his trip); Lind v. Slowinski, 450 N.W.2d at 357 (passengers did not give substantial assistance and encouragement to the driver where the passengers’ and driver’s consumption of alcohol was entirely voluntary); Cecil v. Hardin, 575 S.W.2d at 272-273 (passenger’s conduct in voluntarily consuming alcohol with the driver and in acquiescing in the driver’s decision to drive his own car fell far short of the substantial encouragement and assistance required to justify liability under section 876). See also Clayton v. McCullough, 448 Pa.Super. at 131, 670 A.2d at 713 (no recovery was possible under section 876 where there were no factual averments indicating that the passenger gave substantial assistance or encouragement to the driver to engage in tortious conduct).

As made plain by the language of section 876(b) and the authorities which have applied it, an individual who is simply a passenger in a vehicle operated by a driver who has voluntarily ingested alcohol cannot be held responsible for the driver’s negligent conduct. Rather, liability can only be imposed where a plaintiff avers sufficient facts indicating that the passenger substantially assisted or encouraged the driver’s tortious conduct. In this case, appellants seek to recover from appellee because he and Porter procured and voluntarily drank beer while Porter drove his mother’s truck. However, appellants do not aver that appellee engaged in any conduct that substantially assisted or encouraged Porter to consume alcohol and operate his vehicle in a negligent or reckless manner. Appellants therefore cannot recover under section 876(b) of the Restatement.

We reach a similar conclusion with regard to appellants’ attempt to assert a cause of action pursuant to section 876(a). To establish that the driver and passenger acted in concert, it must be shown that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. See Restatement (Second) of Torts, Section 876(a), comment a. As previously discussed, appellants alleged that appellee and Porter voluntarily drank beer and that Porter drove his mother’s truck in a negligent manner. These facts do not present the type of situation where it can be said that the driver and passenger acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. See, e.g., Stock v. Fife, 13 Mass.App. at 82 n. 10, 430 N.E.2d at 849-850 n. 10; Olson v. Ische, 343 N.W.2d at 289; Clayton v. McCullough, 448 Pa.Super. at 131-132 n. 1, 670 A.2d at 713 n. 1 (all of which found the facts insufficient to set forth a cause of action under section 876(a) where the passengers and drivers voluntarily consumed alcohol and the passengers merely accompanied the drivers at the time of the accidents).

Appellants further argue that we should recognize a cause of action under section 877 of the Restatement (Second) of Torts. Again, we need not decide whether to adopt this provision because appellants’ factual averments are insufficient to set forth a cause of action on this theory. Section 877 provides, in relevant part:

§ 877 Directing or Permitting Conduct of Another
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he: (a) orders or induces the conduct, if he knows or should know of circumstances that would make the conduct tortious if it were his own____

Restatement (Second) of Torts, § 877(a) (1977). Appellants have failed to set forth any facts which show that appellee ordered or induced Porter to drink beer and drive while in an intoxicated state. Therefore, no liability can exist pursuant to section 877(a). See Clayton v. McCullough, 448 Pa.Super. at 131-132 n. 1, 670 A.2d at 713 n. 1 (facts indicating that intoxicated driver was taking passenger to a particular destination at the passenger’s request were insufficient to justify the imposition of liability under section 877).

Appellant next posits that liability should be imputed to appellee based on an agency or joint enterprise theory. With regard to the imposition of liability on this basis, our Supreme Court has observed:

It is only when the driver is the servant or agent of the passenger at the time of the negligent act and that act is committed within the scope of the servant’s or agent’s employment, or when the driver and the passenger are business partners and the operation of the vehicle is in furtherance of the partnership business, that the negligence of the driver will from the mere relationship of the parties be imputable to the passenger. In all other cases, the test is ... [whether] the passenger ha[d] a right to share in the control of the vehicle[.] Responsibility is commensurate with authority____ Negligence in the conduct of another will not be imputed to a party if he neither authorized such conduct, nor participated therein, nor had the right or power to control it.

Rodgers v. Saxton, 305 Pa. 479, 488, 158 A. 166, 169 (1931). This court has also noted that, to establish a joint enterprise, it is not sufficient to prove that parties were merely riding together or that one had accepted a ride for pleasure or that there existed some common purpose between the driver and passenger to be served in the use of the vehicle. Baugh v. McCallum, 140 Pa.Super. 276, 280, 14 A.2d 364, 367 (1940).

In connection with their agency theory, appellants averred that an agency relationship existed because Porter was driving appellee home at the time of the accident. Bald allegations of agency are conclusions of law which we are not required to accept as true in evaluating the propriety of the demurrer. Scarpitti v. Weborg, 530 Pa. 366, 368, 609 A.2d 147, 148 (1992); Clayton v. McCullough, 448 Pa.Super. at 132, 670 A.2d at 713. Moreover, agency cannot be inferred from the mere fact that one does an act for another. Clayton v. McCullough, 448 Pa.Super. at 132-133, 670 A.2d at 714. The fact that Porter agreed to drive appellee home is thus insufficient to prove agency.

Appellants’ joint enterprise theory likewise fails. Appellants allege that a joint enterprise existed because the boys shared a common purpose in drinking and driving and because appellee had a right to control the operation and direction of Porter’s truck. As indicated above, a common purpose, in and of itself, is insufficient to establish the existence of a joint enterprise. Baugh v. McCallum, supra. Rather, the test is whether the parties had a right of equal control. Rodgers v. Saxton, supra. We will accordingly focus on the right of control of the vehicle rather than upon the boys’ common purpose.

Regarding the assertions of joint control, these allegations are conclusions of law which are not supported by any factual averments. We are not required to accept appellant’s conclusions of law. Scarpitti v. Weborg and Clayton v. McCullough, supra. Further, the fact that appellee drove the truck earlier in the evening with Porter’s permission simply does not give rise to an inference that appellee had a right to control the operation and direction of the truck at the time of the collision.

The complaint demonstrates that appellee and Porter each consumed alcohol to the point of intoxication while on a pleasure ride. Although this conduct might be considered morally reprehensible, it does not justify the imposition of liability on appellee pursuant to a joint enterprise theory. See Danos v. St. Pierre, 383 So.2d at 1022; Stock v. Fife, 13 Mass.App. at 80-84, 430 N.E.2d at 849-851; Brown v. Jones, 200 Mich.App. at 219, 503 N.W.2d at 738; Olson v. Ische, 343 N.W.2d at 288-289; Cecil v. Hardin, 575 S.W.2d at 271-272; Price v. Halstead, 177 W.Va. at 596, 355 S.E.2d at 385 (all of which declined to find that a joint enterprise existed where, as here, the facts demonstrated that the minor or adult passengers voluntarily consumed alcoholic or other intoxicating substances with the driver while pleasure riding).

In sum, we conclude with certainty that appellants have no right of recovery against appellee under Pennsylvania law. The trial court’s grant of appellee’s preliminary objections and dismissal of the complaint against him was therefore proper. Finding no basis on which to disturb the decision of the lower court, we affirm.

Order affirmed.

      . The track driven by Christopher Porter was owned by his mother, Julie. Porter apparently operated the track with his mother’s permission. Prior to the accident, Porter and McGee, who were minors, provided a third minor with money for the purpose of purchasing beer from the Route 51 Beer Distributor. The boys then consumed the beer.

      . Shelley Bortz commenced a separate action against the Porters, McGee and the beer distributor. McGee filed preliminary objections and was dismissed from Bortz’ action. Both Bortz and McGee appealed therefrom; their appeals are respectively pending before this court at No. 00971 Pittsburgh 1995 and No. 01099 Pittsburgh 1995.

      . McGee filed a separate appeal, docketed at No. 01098 Pittsburgh 1995, from this order. McGee also filed a motion to quash the Welcs’ appeal; his motion was denied. A motion to consolidate all of the parties’ appeals was likewise denied.

      . As noted in Baker v. Sudo, 194 Cal.App.3d 936, 942-943, 240 Cal.Rptr. 38, 42, review denied (12/2/87), Cully was superseded by statute on other grounds.

      . Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54, 58 (1988) overruled Slicer on other grounds.


author: HOFFMAN, Judge:

text:
    675 A.2d 341
    COMMONWEALTH of Pennsylvania, Appellant v. Martin ROCHE.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1996.
    Filed April 23, 1996.

      Ralph A. Germak, McAlisterville, Assistant District Attorney, for Commonwealth, appellant.
    Arthur L. Gutkin, Conshohocken, for appellee.
    Before McEWEN, P.J., and SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an April 17, 1995 trial court order in effect quashing the Commonwealth’s writ of certiorari. Appellant, the Commonwealth of Pennsylvania, now raises the following issue for our review:

WHETHER A POST-HEARING DISMISSAL OF SUMMARY CHARGES ON CONSTITUTIONAL GROUNDS (DOUBLE JEOPARDY) ERRONEOUSLY ENTERED BY THE DISTRICT JUSTICE AS A “NOT GUILTY” VERDICT IS APPEALABLE BY THE COMMONWEALTH.

Appellant’s Brief at 3.

On October 7, 1994, a state trooper issued appellee Martin Roche a citation for speeding along a road in Juniata County, Pennsylvania. The trooper also advised appellee that he would receive a citation for driving with a suspended license once the trooper was able to confirm from PennDOT that appellee’s license was under suspension. On October 17,1994, appellee pled guilty to the speeding charge by mailing in the citation along with the appropriate fine. Subsequently, appellee received a citation for driving with a suspended license and pled “not guilty” to the charge.

On January 13, 1995, a hearing before a district magistrate was held on the suspension charge, at which appellee made a pre-trial motion to dismiss on the basis that the proceeding unconstitutionally subjected him to double jeopardy because he had already pled guilty to the related speeding charge. Rather than decide the motion immediately, the magistrate took the motion under advisement, proceeded to hear all the evidence on the suspension charge, and then wrote on the transcript at the conclusion of the hearing “Defendant was found Not Guilty — (double jeopardy).”

The Commonwealth subsequently appealed the magistrate’s finding by filing a writ of certiorari with the trial court. On April 3, 1995, the trial court held a hearing, at which the district magistrate testified that she had found appellee not guilty based on the procedural double jeopardy issue rather than on the factual underlying merits. After the hearing, on April 17, 1995, the trial court concluded that even though the district magistrate’s finding was based on the procedural double jeopardy issue, the trial court had no jurisdiction to hear an appeal from the “not guilty” finding. The Commonwealth’s timely appeal to this Court followed.

The Commonwealth now argues that the trial court erred in interpreting the district magistrate’s finding as a “not guilty” acquittal which precluded a further appeal by the Commonwealth. Essentially, it argues that the district magistrate’s testimony at the trial court hearing indicated that her “not guilty” verdict was equivalent to a pretrial dismissal, which is appealable by the Commonwealth.

Our supreme court has recognized that “[t]he prosecution may not appeal from a verdict of ‘not guilty' entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding.” Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981). It is also well-settled under Pennsylvania law that “jeopardy attaches in a non-jury trial when the court begins to hear evidence.” Commonwealth v. Walczak, 440 Pa.Super. 339, 347, 655 A.2d 592, 595-96 (1995).

However, this Court has also recognized that to determine whether action taken by the trial court has constituted an “acquittal” for double jeopardy purposes, “the form of the [factfinder’s] action is not controlling ... we must determine whether the ruling of the [factfinder], whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Commonwealth v. McDonough, 533 Pa. 283, 290, 621 A.2d 569, 573 (1993) (citations omitted). Thus, “if the defendant deliberately chooses to seek dismissal of the proceedings on a basis unrelated to the factual guilt or innocence of the offense charged, the [factfinder]’s [ ] dismissal on defendant’s motion does not prevent the government from appealing or seeking retrial.” Commonwealth v. Adams, 349 Pa.Super. 200, 209, 502 A.2d 1345, 1350 (1986) (emphasis omitted).

In the instant case, the district magistrate declined to immediately rule on the double jeopardy claim on appellee’s pretrial motion to dismiss, but filled out the citation form at the end of the hearing by writing “not guilty-double jeopardy.” At the subsequent hearing before the trial court, the district magistrate testified that she decided the case based on appellee’s double jeopardy argument, and that she would have found appellee guilty on the suspension charge if not for his double jeopardy argument. N.T. 4/3/95 at 36. Under these circumstances, we find that although jeopardy attached when the magistrate heard evidence on the suspension charge, the district magistrate’s order was based on grounds completely unrelated to appellee’s factual guilt or innocence and thus was appealable to the trial court. See Adams, supra (although jeopardy attached after jury was sworn during trial, termination of trial on defendant’s motion to dismiss did not involve determination of guilt and innocence, and charges were properly reinstated on reconsideration); McDonough, supra (fact that court entered order stating appellant was found “not guilty” was irrelevant when court resolved matter independent of the factual elements of the offense charged, and dismissal of charges was thus appealable by the Commonwealth). Consequently, the trial court should have determined whether the district magistrate’s double jeopardy dismissal was proper.

Thus, we reverse the trial court order and remand for the trial court to review the validity of the district magistrate’s dismissal. Should the trial court determine that the double jeopardy dismissal was improper, it should reinstate the suspension charge and remand to the district magistrate to enter judgment on the merits of the charge based on the evidence already heard in the prior proceeding.

Reversed and remanded with directives. Jurisdiction is relinquished.

McEWEN, P.J., dissents.

      . 75 Pa.C.S. § 3362.

      . 75 Pa.C.S. § 1543.

      . Although the issue of whether the district magistrate erred in dismissing appellee’s suspension charge on double jeopardy grounds is not before us, we refer the district magistrate and the trial court to our recent opinion in Commonwealth v. Geyer, 442 Pa.Super. 143, 658 A.2d 824 (1995), appeal granted, 543 Pa. 709, 672 A.2d 305 (1995), where we found no double jeopardy problem when a defendant pled guilty to a speeding charge and later was convicted of driving with a suspended license.

      . We recommend that the district magistrate decide such a motion in the future either in advance of taking any evidence or, in the alternative, after coming to a verdict on the merits so that the trial court can reverse the disposition of the motion if erroneous and simply reinstate the district magistrate’s verdict.


author: DEL SOLE, Judge: BECK, Judge,

text:
    675 A.2d 343
    COMMONWEALTH of Pennsylvania v. William GLENN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed April 25, 1996.

      Peter Rosalsky, Philadelphia, for appellant.
    Tracey Rible, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge:

Following a bench trial, William Glenn was convicted of possession of 2.34 grams of cocaine, possession with intent to deliver cocaine, and carrying a firearm without a license in a vehicle. A motion for new trial and/or for arrest of judgment was denied. Appellant was sentenced to a term of imprisonment of not less than 3 years nor more than 6 years pursuant to the mandatory minimum sentencing provisions of 18 Pa. C.S.A. 7508(a)(3)(i). Appellant timely filed the instant appeal.

The trial court summarized the facts as follows:

Basically, Philadelphia Police Officer O’Connor testified that on January 3, 1993, at 1:10 a.m., he stopped William Glenn for a speeding violation at 48th and Sansom. (N.T. 5/6/94, p. 21). As Officer O’Connor approached the vehicle, he observed Glenn pulling his hand from his pocket. The officer then observed a silver object in Glenn’s hand. The officer, with the aid of a flashlight identified the silver object as a gun. (N.T. 5/6/94, p. 22). O’Connor immediately placed the defendant under arrest.
In the search incident to the defendant’s arrest, O’Connor found a brown paper bag which contained a Newport cigarette pack. Inside the cigarette pack was 35 vials of cocaine all sealed with pink caps. (N.T. 5/6/94, p. 22).
The Commonwealth offered testimony from Officer Brennan of the Philadelphia Police Department, Narcotics Unit. Officer Brennan testified that the 35 vials were all “heavy, five-dollar vials.” Furthermore, the vials were packaged together, without the presence of smoking paraphernalia, and the defendant was armed and in possession of currency consistent with recent sales.
Taking all these factors into consideration, Officer Brennan opined that the narcotics were possessed with intent to deliver, and not possessed for personal use.
The Court, acting as the trier of fact, found Officer Brennan to be a credible witness, and subsequently determined that the defendant possessed all 2.34 grams of cocaine with the intent to distribute. (N.T. 5/6/94, p. 36; p. 40).

Trial ct. op. filed 6-6-95 at 2-3.

Appellant initially argues that the trial court erred by curtailing confrontation and cross-examination of a Commonwealth expert witness. It is well settled that the scope and the limits of cross-examination are within the trial court’s discretion, and the trial court’s ruling with regard to the limits of cross-examination will not be reversed absent a clear abuse of that discretion or an error of law. Commonwealth v. Birch, 532 Pa. 563, 616 A.2d 977 (1992).

Officer Brennan of the Philadelphia Police Department was qualified as an expert for the Commonwealth in the area of narcotics use, distribution, packaging and sales. Officer Brennan opined that because Appellant had in his possession 35 vials of heavy, five-dollar vials, packaged together, without the usual paraphernalia of crack smokers, with a gun and $114.00 in small bills, Appellant possessed the drugs with the intent to deliver.

To challenge the Commonwealth’s expert opinion, the defense strategy was to present the testimony of other drug experts whose opinions contradict the conclusions of Officer Brennan. The defense obtained the prior sworn testimony from other criminal proceedings of Philadelphia Police Officers Morrone and King who have been qualified as drug experts. The defense claims that Officer Morrone testified previously that the demarcation line between simple possession and possession with intent to deliver was about 35 one hundred milligram vials, and that a heavy user could use 30 fifty-five milligram vials in about eight hours. He also contends that Officer King testified in other proceedings that a heavy user could easily use 25 vials (of unspecified weight) in a day or two.

Appellant argues that the proposed presentation of the Morrone/King expert testimony does not present a hearsay concern because the testimony was not presented for the substantive use of proving the matter asserted. The testimony was only presented for use as a confrontation device to challenge the opinion of Officer Brennan. Appellant further contends the fact that he presented his own defense drug expert, Michael Perrone, does not vitiate the harm caused by the trial court’s refusal to allow him to present the Morrone/King transcripts because the Commonwealth vigorously cross-examined the defense drug expert as a “hired gun”. Appellant posits that it was crucial for the defense to confront Officer Brennan with the expert testimony of Officers Morrone and King since they are fellow police officers of Officer Brennan and would not have a bias towards the defense. Appellant also claims that he merely wanted to confront Officer Brennan with an adverse expert witness with apparent inconsistent standards used by other acknowledged experts.

Appellant acknowledges that no precedent exist to bolster this novel contention. Nevertheless, he argues that the proposed presentation of prior sworn testimony of expert witnesses from different proceedings for cross-examination should be analogized to the cross-examination of expert witnesses with learned treatises. It is undisputed that the prior recorded testimony of Officers Morrone and King in other cases would not be considered a learned treatise. But, Appellant posits that the same policies underlying the use of learned treatises in cross-examining expert witnesses applies to the circumstances in the case before us. In Commonwealth v. Jackson, 401 Pa.Super. 258, 585 A.2d 36 (1991), we stated:

Under Pennsylvania law, and in common usage as well, treatises are systematic expositions in writing including methodical discussion of facts and principles. Learned treatises are highly reliable because they are written for professionals, they are subject to scrutiny and testing by experts in the field, and the writers are unlikely to be partial with regard to any specific litigation. See, e.g., Packel & Poulin, Pa. Evidence § 803.18 (1987); Webster’s New College Dictionary (1980 Ed.).

Id. at 265, 585 A.2d at 39.

Appellant cites Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), wherein this court commented:

The law in this Commonwealth is well settled that an expert witness may be cross-examined on the contents of a publication upon which he or she has relied in forming an opinion, and also with respect to any other publication which the expert acknowledges to be a standard work in the field. In such cases, the publication or literature is not admitted for the truth of the matter asserted, but only to challenge the credibility of the witnesses’ opinion and the weight to be accorded thereto. Learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury. (Citations omitted).

Id. at 621, 537 A.2d at 339.

Appellant’s argument is unpersuasive. Even though he asserts that the Morrone/King expert testimony was not being offered to prove the truth of the matter asserted, the transcripts could not be used to cross-examine Officer Brennan. The proposed Morrone/King transcripts may be expert testimony, but they are not publications or standard works in the field of narcotics use, distribution, or packaging and sales. The proffered expert transcripts are not systematic expositions in writing or methodical discussions of facts and principles.

The Commonwealth cites United States v. Jones, 712 F.2d 115 (1983), wherein the Fifth Circuit Court of Appeals addressed this issue. In that case, the government presented the testimony of an FBI agent as an expert witness in -gambling operations. On cross-examination of the expert government witness, defendants’ counsel sought to introduce the prior testimony, from another trial, of a different FBI gambling expert. The court excluded this evidence and the defendants argued that the prior testimony should have been admitted under the learned treatise exception to the hearsay rule. Kejecting the defendants argument, the Court of Appeals opined:

The learned treatise doctrine is confined to published works that have been subjected to widespread collegial scrutiny. It has never been extended to allow admission of the prior testimony of another expert. The construction urged by the appellants is missing the element of trustworthiness that is inherent in the learned treatise exception. We decline to adopt it.

712 F.2d at 121. We embrace the reasoning set forth by the Court of Appeals as it reflects our view on this issue as well. Thus, the trial court’s exclusion of the Morrone/King transcripts was not a reversible error, nor an abuse of discretion.

Next, Appellant claims that the trial court erred by refusing to hear defense evidence at the sentencing hearing involving “apportionment” of the drugs he possessed into those intended for his personal consumption and those intended for delivery. We note that the old procedure under Pa.Crim.P, Rule 1123, 42 Pa.C.S.A. for filing post-verdict motions was followed in this case. Rule 1123 has been rescinded effective as to cases in which the determination of guilt occurs on or after January 1, 1994. Since Appellant was adjudicated guilty on July 14,1994, Rule 1123 would not apply. The procedure under new Pa.R.Crim.P.Rule 1410, 42 Pa. C.S.A. for filing post-sentencing motions effective as to cases where the determination of guilt occurs on or after January 1, 1994 should have been applied in this case. No post-sentence motion requesting reconsideration or modification of sentence was filed in this case. We held in Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995), that new Rule 1410 does not eliminate the need to preserve challenges to the discretionary aspects of a sentence through such a motion. Even though the Rule characterizes a motion to modify sentence as “optional,” the rule states that only issues presented to the trial court before or during trial are deemed preserved for appellate review where no post-sentencing motion is filed. Pa.R.Crim.P.Rule 1410B(l)(e), 42 Pa.C.S.A. We also stated that the amendment of Rule 1410 has not changed the requirement of Rule Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. that issues not raised in the lower court cannot be raised for the first time on appeal.

We commend the Commonwealth for not arguing that the issue here is waived since no post-sentencing motion was filed in the trial court. The issue here is not a challenge to the discretionary aspects of the sentence as in Jarvis, supra. The issue here involves the right of the defense to present additional evidence regarding possession of drugs for personal use and the amount to be delivered to determine whether a mandatory minimum sentence applies. This is a legal matter much like issues involving the calculation of prior record scores. See Commonwealth v. Johnson, 421 Pa.Super. 433, 618 A.2d 415 (1992) (where issue on appeal is improper calculation of a prior record score or an offense gravity score, a direct appeal lies because these are legal questions, and a discretionary review is not appropriate).

Instantly, the defense raised the sentencing question before the trial court prior to the sentencing and the court denied the request to present evidence of personal use of drugs and the amount intended for delivery. The record created is sufficient to provide meaningful appellate review of the issue on appeal which should be an important consideration of counsel. See R.Crim.P., Rule 1410, 42 Pa.C.S.A., comment (Miscellaneous) ¶ 6.

Appellant contends that he should have been permitted the opportunity to demonstrate at sentencing that he possessed with intent to deliver less than two grams of cocaine, thereby avoiding the mandatory minimum sentencing requirements of 18 Pa.C.S.A. § 7508. Section 7508(b) of the mandatory minimum sentencing statute provides:

Proof of sentencing. Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional' evidence and shall determine, by a preponderance of the evidence, if this section is applicable. (Emphasis supplied).

18 Pa.C.S.A. § 7508(b).

When rendering its verdict, the trial court stated that it accepts the fact that 2.34 grams of cocaine was involved in the case and found Appellant guilty of simple possession and possession with intent to deliver. Two months later, at a hearing on motions for new trial, arrest of judgment and sentencing issues, defense counsel requested to present witnesses that would have testified that Appellant was a drug addict at the time of his arrest. The defense argued that it has the right to present evidence that Appellant intended to use some of the drugs himself and he would have delivered less than 2.0 grams of crack cocaine which would make the mandatory minimum sentence statute inapplicable to Appellant’s case. The court refused to allow the defense to call the witnesses, but it permitted defense counsel the opportunity to state on the record the names of witnesses and an offer of proof regarding their proposed testimony. The trial court then stated:

THE COURT: All right. We will put all that on the record and the Court is going to deny the presentation of this issue and the Court is going to conclude that under the law the 2.34 grams total weight of the mixture of cocaine and what else was in there I guess reducing agents stands for proposition [sic] and the minimum mandatory sentencing act has been met since the Court concluded this was for distribution.
THE COURT: At this point here what I’d like to do, I would like to do this. I have read this 7508 section before and what I want to do is go over it again and list this for next week for sentencing---- And I will come back next week with the ruling on 7508 in regards to this case and we will sentence at that time.

(N.T. 7-14-94 at 29-30).

At the sentencing hearing a week later, the court made the following ruling:

THE COURT:....
Next, the Court is ruling that the Court’s verdict is not a split verdict or that the Court is not to consider evidence as to parts which were for personal use, if any, and parts of the total weight which I think was 2.37 or 2.33 I forget exactly what it was which is about 50, 60 percent over the 2.0 grams which triggers the mandatory of crack cocaine so Mr. Nolan would like me to rule that at least that less than two grams was being used for transfer or sale or whatever, you call it what you want. And that a significant or an ample amount to bring that total for delivery under two grams was used or was to be used for personal use as well. Now, we have no statement in that area at the present time. Federal Courts under present law which is obviously different than ours has or calls for a judge to have the option or mandates the judge to determine how much of the total is delivery and how much of the total is for personal use and their guideline system while it’s similar to ours is somewhat different because whatever is determined for delivery is plugged into that area which coincides with their defense gravity score and their total weight of narcotics score I guess you would call it. The Court is not going to follow that procedure but for the purpose of sentencing there [sic] is going to at this time deny by putting on testimony it will put on the record that Mr. Nolan stands ready and able and necessary estimation capable of showing this Court that the 2.33 or 2.37 grams of crack was this crack cocaine or powder cocaine?
MR. NOLAN: Crack cocaine.
THE COURT: That less than two grams of that was for transfer because some of it was for personal use by Mr. Glenn. So we’ll have that on the record as well and that’s where we stand.
MR. NOLAN: I understand your ruling, your Honor. I believe that I put on the record last week the offer of proof that I would have what I would have presented if the Court allowed so I think I’m preserving that.
THE COURT: I’m making no ruling on the sufficiency of that, but what I’m saying is that you stand ready to present that information to the Court and in your estimation there is sufficient additional information and the Court doesn’t personally have to show that the amount confiscated, less than two grams of that was for transfer of sale of this is use.
MR. NOLAN: So I understand the Court is basically denying my request to put that evidence on?
THE COURT: Correct, denying your request for the Court to have a hearing considering that.

(N.T. 7-7-94 at 6-8).

In its written opinion, the trial court reviewed the sufficiency of the evidence, even though the issue was not raised, and it stated: “[t]he Court, acting as the trier of fact, found Officer Brennan to be a credible witness, and subsequently determined that the defendant possessed all 2.34 grams of cocaine with the intent to deliver.” (Trial ct. op. filed 6-6-95 at 3). With respect to the mandatory minimum sentencing issue, the trial court expressed:

The court rejects defendant’s argument that the court should breakdown the amount intended for distribution and the amount intended for personal use. The defendant urges the court to subtract one (1) gram from the total 2.34 grams because the defendant contends that this is the amount he intended for his own personal use.
However, the totality of the evidence fails to establish conclusively that there was a separate amount intended for the defendant’s personal use. On the contrary, the officer on the scene seized 35 identical vials which were all together in a brown paper bag inside a cigarette pack. The officer did not find any separate packages of cocaine that could be shown to be for the defendant’s personal use.
Thus, the court correctly included all 2.34 grams of cocaine in determining the sentence, and imposed a sentence pursuant to the provisions of the Drug Trafficking Sentences and Penalty Act (18 Pa.C.S. § 7508(a)(3)(i)).

(Trial ct. op. filed 6-6-94 at 5).

The Commonwealth cites Commonwealth v. Jones, 413 Pa.Super. 482, 605 A.2d 825, alloc. denied, 531 Pa. 652, 613 A.2d 557 (1992) for the proposition that the sentencing court is unauthorized to change the facts that supported the verdict. In Jones, a case also involving possession of cocaine with intent to deliver, the trial court initially imposed a mandatory minimum sentence of three to six years after finding that the defendant possessed all 26.401 grams of cocaine with intent to deliver found in the defendant’s home. Defense counsel filed a motion to reconsider, and one year later, the trial court reexamined the facts and determined that the defendant only possessed 2.722 grams of cocaine and defendant’s son possessed the remainder of the cocaine. This new finding required a lower mandatory minimum sentence. On appeal, we reversed holding that the lower court reassessed the facts at the time of sentencing in order to impose a more lenient sentence which is not permitted and ignores the mandatory minimum sentence requirements.

The Commonwealth argues further that the present case is also controlled by Commonwealth v. Mayes, 436 Pa.Super. 1, 647 A.2d 212 (1994), where the trial court convicted the defendant of possession of 2.34 grams of crack cocaine and possession with intent to deliver. In an effort to avoid the mandatory minimum sentence, the defendant’s counsel asked the court if he could present evidence regarding the portion of the 2.34 grams of cocaine the defendant intended to use for his own drug habit. The court was willing to hear the evidence, but no hearing took place due to counsel’s unavailability. Subsequently, post-verdict motions were denied and the sentencing hearing began. Defense counsel stated that he did not intend to present evidence regarding the amount of crack cocaine the defendant intended for personal use; defense counsel only presented argument on the matter. The court, during the sentencing hearing, found as facts, based upon trial testimony, that defendant was a drug user and seller and that he did not necessarily possess with intent to deliver in excess of 2.0 grams of cocaine. The court decided not to impose the mandatory minimum. On appeal, we reversed the sentence because no evidence was presented at trial, during post-trial motions or at the sentencing hearing regarding the amount of crack cocaine defendant allegedly intended for his personal consumption. Therefore, we concluded that the trial court was required to impose the mandatory minimum sentence since the amount determined at trial to be possessed was 2.34 grams of cocaine and there was no finding at trial that a specific portion of the drugs was intended for defendant’s personal use.

The instant case is distinguishable from Commonwealth v. Jones, supra, and Mayes. In Jones, supra., the trial court made a finding that the defendant possessed all the drugs found in her house. The court then altered its finding after the conviction (determining that she did not possess all of the drugs) when it reconsidered the sentence. In Mayes, the trial court found that the defendant possessed over 2.0 grams of cocaine but failed to impose the mandatory minimum. Since no evidence was produced at trial, during post-verdict motions or at the sentencing hearing regarding the defendant’s personal use, we concluded that the court had no basis for failing to impose the mandatory sentence.

In the case at bar, however, the court never made a finding at trial regarding the amount of cocaine for personal use or for delivery; it merely rendered a general verdict of guilt on both charges. (N.T. 6-6-94 at 129). The trial court then refused to allow the defense to present evidence at the hearing on post-verdict motions and prior to sentencing regarding Appellant’s personal consumption. Appellant did not testify during the trial; however, he displayed his arms to the Commonwealth’s expert witness, Officer Brennan, who stated that Appellant’s arms had track marks on them consistent with drug use. Officer Brennan testified that all of the drugs possessed by Appellant were for distribution, and the defense expert testified that it would be just as likely that the drugs were possessed for mere possession as for possession with intent to deliver. Despite this evidence, the trial court would not hear the defense evidence on the issue of apportionment.

When this case proceeded at the trial level, the trial court did not have the benefit of this court’s decision in Commonwealth v. Carroll, 438 Pa.Super. 55, 651 A.2d 171, alloc. denied, 541 Pa. 649, 664 A.2d 539 (1995). The trial court in Carroll made a general finding that the defendant was guilty of both possession and possession with intent to deliver a controlled substance. No evidence was presented nor was a request made for a finding regarding the amount of heroin possessed for personal use and the amount intended for delivery. At the sentencing, evidence was presented that the defendant had a twenty-five year history of heroin abuse and he- also abused cocaine. The sentencing court found from a preponderance of the evidence that less than 2.0 grams of heroin was intended for distribution and the remainder of the drugs was for personal use. Since the amount for delivery was less than 2.0 grams of heroin, the court did not impose the mandatory minimum sentence. The Commonwealth appealed and we affirmed. We made the following relevant statements:

Moreover, a sentencing court may not reassess the facts upon which it previously relied to establish guilt. Commonwealth v. Jones, 413 Pa.Super. 482, 487, 605 A.2d 825, 828 (1992), allocatur denied, 531 Pa. 652, 613 A.2d 557 (1992). However, before imposing a mandatory minimum sentence, a sentencing court must determine whether the offense for which the defendant was convicted falls within the parameters of the sentencing scheme. This requires a separate determination by the sentencing court....
In the instant case, additional evidence was offered at the sentencing hearing, and from this evidence the court determined that the amount of heroin in Carroll’s possession which was intended for delivery to others was less than 2.0 grams. By a preponderance of the evidence, therefore, the court found that the statutory section imposing a mandatory sentence was inapplicable. A review of the record leaves no doubt that the finding of the sentencing court is supported by the evidence.

Id. at 58-59, 651 A.2d at 173.

In Carroll, we concluded:

In the case sub judice, there was nothing in the evidence at trial or in the findings of the trial court which determined the amount of heroin which Carroll had intended for personal use. Therefore, the sentencing court received additional evidence to assist it in determining whether a mandatory minimum sentence should apply. This was not merely proper; it was mandated by statute. In addition to evidence that Carroll used forty dollars worth of heroin per day, the evidence was that he was severely underweight, in poor health and had been admitted to the Veteran’s Administration Hospital in Coatesville for treatment as an addict. Indeed, the sentencing court observed that appellee’s habit was such that he readily could have consumed himself all of the heroin found in his possession.
This is not a case in which the trial court has reconsidered its verdict or reassessed the evidence. See: Commonwealth v. Jones, supra. Appellee’s conviction for possession with intent to deliver has not been altered. Pursuant to 18 Pa.C.S. § 7508(b), however, it was appropriate for the trial court to determine at sentencing whether the amount of narcotics which appellee intended for delivery equalled or exceeded that which made applicable the mandatory sentence provision of the statute.

Id., at 60-61, 651 A.2d at 174.

When the parties argued oral post-verdict motions, the trial court would not allow the defense to present the witnesses to testify that Appellant intended to consume some of the drugs and he intended to deliver the remainder. The court only permitted defense counsel to make an offer of proof on the record. At the sentencing, the court ruled that no hearing would be held with respect to personal use and what amount was for delivery. It is clear from the record that the court was of the view that it did not have to accept evidence regarding personal consumption and precluded evidence in that area. Contrary to the Commonwealth’s position, the trial court did not make a finding at trial, during post-verdict motions, or at the sentencing that the 2.34 grams of crack cocaine was for delivery. It was not until the trial court wrote its opinion that it became clear that the court made a factual finding that all of the crack cocaine possessed by Appellant was for distribution. The trial court erred as it relied solely on the evidence presented at trial to make that determination. The law requires the trial court to consider the evidence presented at trial and any additional evidence presented at post-trial proceedings relevant to Appellant’s personal use of drugs. The court shall then determine, by a preponderance of the evidence, if the mandatory minimum sentence is applicable. Since that procedure did not occur in this case, we must remand for resentencing.

Judgment of sentence vacated and case remanded for resentencing in accordance with this Opinion.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I dissent because I conclude that the trial court did not err in refusing to permit appellant to present apportionment evidence prior to sentencing. I would affirm the judgment of sentence.

The record supports the trial court’s finding that the Commonwealth established at trial by a preponderance of the evidence that appellant possessed more than two grams of cocaine with the intent to deliver. The question is whether under the applicable statute the trial court was required at the time of verdict to make a record of that finding. And if the trial court failed to do so, whether the trial court was required to hear additional testimony at the time of sentencing regarding apportionment.

Following a bench trial, appellant was found guilty of possession of cocaine and possession of cocaine with the intent to deliver (“PWI”). At the time the court announced the verdict, the court made its finding that the amount of cocaine involved was 2.34 grams. The court, however, did not specify what if any portion of that amount was possessed solely for personal use. Prior to sentencing, appellant petitioned to present evidence to prove that he possessed less than two grams of cocaine with the intent to distribute. The trial court refused to consider this additional evidence. In accordance with 18 Pa.C.S. § 7508, the court then imposed the mandatory minimum sentence for possession with intent to deliver over two grams of a controlled substance.

In its opinion in support of the sentence, the trial court stated that, based upon competent evidence at trial, the appellant possessed the entire 2.34 grams with an intent to deliver, not for personal use. The trial court set forth the evidence presented at trial from which its conclusion was drawn, including the Commonwealth expert’s testimony that the packaging and amount were consistent with an intent to deliver, not with personal use, and the fact that appellant had a gun and a large sum of cash, but no paraphernalia.

Appellant insists that the statute mandates that at sentencing, the trial court consider additional evidence regarding the applicability of the mandatory minimum sentence. The statute provides:

Proof of sentencing. Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

18 Pa.C.S. § 7508(b) (emphasis added).

The majority remands for new sentencing proceedings to permit appellant to introduce evidence of apportionment. The majority concludes that the court did not make a timely finding at the point of the verdict that all of the cocaine was possessed with the intent to deliver; therefore, the appellant must be afforded an opportunity at sentencing to present apportionment evidence.

I find nothing in the statute that requires the trial court to make a record finding as to apportionment at the time of verdict. If, as in this case, the judge heard evidence at trial sufficient to decide the apportionment question, additional evidence on the question at sentencing is unnecessary and a waste of judicial resources. The statute permits the trial court to make its decision based upon the evidence presented at trial, and any necessary evidence presented at sentencing. Thus, at the time of sentencing, the trial court has the discretion to decide whether at trial sufficient evidence was presented to establish the applicability of the mandatory minimum sentence by a preponderance of the evidence or whether to permit the defendant to present additional evidence. The statute only requires the court to hear additional evidence if necessary, and to make its finding known at sentencing.

The majority relies upon Commonwealth v. Carroll, 438 Pa.Super. 55, 651 A.2d 171, allocatur denied, 541 Pa. 649, 664 A.2d 539 (1995), for its conclusion that the trial court was legally required to hear additional evidence to determine the applicability of the statutory mandatory minimum sentence. Carroll is readily distinguishable from the instant case.

The defendant in Carroll was caught with over two grams of cocaine in his possession and was convicted of possession and PWI. As in the present case, the court did not specifically state at verdict how much was possessed with intent to deliver and how much, if any, was possessed solely for personal use. Prior to sentencing, the trial court agreed to hear additional evidence by defendant regarding his serious drug addiction and heavy use. Based thereon, the court concluded that less than two grams of the total amount was possessed with the intent to deliver, and refused to impose the mandatory minimum. The Commonwealth appealed. This court affirmed, explaining that because no evidence had been presented at trial upon which the court could determine the quantity of drugs possessed by the defendant with the intent to deliver, the court was permitted and indeed required to hear additional evidence at sentencing in order to determine whether the mandatory minimum sentence applied.

In the present case, by contrast, the Commonwealth presented ample evidence at trial upon which the court could conclude, by a preponderance of the evidence, that appellant possessed over two grams of cocaine with the intent to deliver. Nothing in the statute or case law requires that if at the time of verdict, the court does not make a specific finding regarding the quantity possessed with intent to deliver, then the court may not properly announce such a determination later, at sentencing, without hearing additional evidence. I find the trial court’s determination to be supported by sufficient competent evidence and, therefore, I would affirm.

      . Appellant was previously convicted of a drug trafficking offense which increased the mandatory sentence from one to three years imprisonment.

      . It appears that the cover pages of the hearings dated July 7, 1994 and July 14, 1994 were transposed. The July 7, 1994 transcript contains the notes from the sentencing and the July 14, 1994 notes contain the notes from the hearing on post-verdict motions.

      . I agree with the majority’s conclusion that the trial court properly prohibited appellant from cross-examining the Commonwealth’s expert witnesses about testimony in unrelated drug cases.