author: BECK, Judge: SPAETH, President Judge,

text:
    503 A.2d 448
    COMMONWEALTH of Pennsylvania v. Herbert HESS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 8, 1985.
    Filed Jan. 10, 1986.

      Robert B. Stewart, III, Huntingdon, for appellant.
    Stewart L. Kurtz, District Attorney, Huntingdon, for Com., appellee.
    Before SPAETH, President Judge, and BECK and MONTGOMERY, JJ.
   BECK, Judge:

This is an appeal from a judgment of sentence for driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(1). We affirm.

Two policemen observed appellant swerve his pickup truck into an oncoming lane of traffic. Appellant returned to the proper lane, but again swerved into the opposite lane, nearly striking an approaching vehicle. The policemen radioed the nearby State Police barracks and Trooper Kuny responded. The trooper drove his car behind appellant’s and noticed appellant’s car wandering over the road.

Trooper Kuny pulled appellant to the side of the road. The trooper smelled alcohol and noticed that appellant’s eyes were bloodshot. Appellant failed two field sobriety tests. Appellant could not walk straight on a “fog line” and appellant could not count slowly on his fingers. Appellant was then placed under arrest for driving under the influence of alcohol.

Appellant claims that the court erred in not suppressing the results of a breathalyzer test taken with the Intoxilyzer Model 4011-AS. He asserts that at the time the test was administered the two statutory preconditions for admission into evidence of the test results were not satisfied. 75 Pa.C.S. § 1547(c)(1). In order for the results to be admitted into evidence the testing device has to be approved for usage by the Department of Health and the procedures for administering the test have to be promulgated jointly by the departments of Health and Transportation.

The narrow question is whether the two preconditions of subsection 1547(c)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(c)(1) (Supp.1985) (amending 75 Pa.C.S. § 1547(c)), must be satisfied prior to administration of the test or prior to trial.

The answer becomes clear when we examine the General Assembly’s reasons for enacting the preconditions. The preconditions were established to assure that the results of the test were sufficiently reliable to have probative value. The preconditions involve the integrity of the device itself and the procedure for using it. It cannot be said that the reliability of the test result is vitiated if approval of the device and the procedures comes after the administration of the test. Whether or not the test has probative value is important at the guilt-determining phase of the procedure, not necessarily before. See Commonwealth v. McGinnis, 336 Pa.Super. 601, 486 A.2d 428 (1984).

Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980), is directly on point. The principle established in Benson is identical to the one in the case sub judice. In both cases the inquiry focuses on the reliability of test results. We are not persuaded by appellant’s argument that the cases are distinguishable. Both cases involve a device that measures the blood alcohol content in a person after the person exhales into the device. Appellant’s argument that Benson can be distinguished because it was decided prior to the 1982 amendment to 75 Pa.C.S. § 1547(c) is without merit. The Code under both the 1976 and 1982 versions of subsection 1547(c) provides preconditions, although not identical, to assure the reliability of blood alcohol tests at the guilt-determining phase of the proceeding.

Benson stands for the proposition that under subsection 1547(c) of the Vehicle Code as written in 1976 the precondition must be satisfied at the time of trial and not at the time the test is administered. We now hold that under subsection 1547(c) of the Vehicle Code as amended in 1982, the preconditions for admissibility of the test results must likewise be satisfied at the time of trial and not at the time the test is administered.

Appellant next complains that the court erroneously instructed the jury that if the jury found that the test results were accurate, then a conclusive presumption would be raised that appellant was incapable of driving. Appellant asserts that this conclusive presumption relieved the Commonwealth of its burden to prove every element of the offense of 75 Pa.C.S. § 3731(a)(1).

We disagree. In evaluating a jury charge for prejudicial and reversible error, the charge must be construed as a whole. “ ‘Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls.’ ” Commonwealth v. Rhem, 283 Pa.Super. 565, 575, 424 A.2d 1345, 1350 (1980) (citation omitted), reargument denied, February 11, 1981. The charge taken as a whole made clear that the test results raised a nonconclusive presumption which the jury was free to accept or reject as it saw fit. Further, the judge charged that the presumption was not conclusive and that the testimony relating to the test result should be weighed with all the other testimony. Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204; Benson; Commonwealth v. Gearhart, 253 Pa.Super. 238, 384 A.2d 1321 (1978).

Appellant objects finally to the amount of the fine imposed as part of the court’s sentence. Judge Newton C. Taylor ably resolved this issue in his opinion. Clearly, the court complied with the mandates of subsections 9726(c) and (d) of the Sentencing Code, 42 Pa.C.S. § 9726(c) and (d), in imposing a fine.

Judgment of sentence affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I am unable to agree with the majority’s conclusion that “[t]he charge taken as a whole made clear that the test results raised a nonconclusive presumption which the jury was free to accept or reject as it saw fit.” Majority op. at 450. Regarding the test results, the trial court charged the jury that:

This evidence should be considered by you under the following guidelines: the test result requires you to find that the defendant was under the influence of alcohol. What this means is that the test result, if accepted by you as accurate and reliable, is conclusive evidence that the defendant was under the influence of alcohol and requires you to so find. You should consider the test result together with all of the other evidence in the case.
Now, if you conclude that you will accept the test result, then, in view of the fact that the test result was .10 or higher, that means that you must then assume and presume that the defendant was incapable of safe driving, because if you find that he was under the influence, then ipso facto, he was incapable of safe driving.
R.R. at 65.

These instructions were improper in a case, like this one, brought under 75 Pa.C.S. § 3731(a)(1). See Commonwealth v. Gearhart, 253 Pa.Super.Ct. 238, 384 A.2d 1321, 1323 (1978). Under § 3731(a)(1), the Commonwealth must prove that appellant was under the influence of alcohol and incapable of safe driving; it is not relieved of this burden by the intoxilyzer test results.

I should reverse and remand for a new trial.

SPAETH, President Judge, wrote this opinion before the expiration of his term on the Court.

      . The device and the procedures for administration and for insuring the device’s accuracy had been approved by the Department of Transportation at the time of administration of the test to appellant. The Department of Health approved the same well before the time of trial.

      . The trial court’s error may have occurred because the court apparently thought that appellant was charged under 75 Pa.C.S. § 3731(a)(4), which provides that "[a] person shall not drive, operate or be in actual control of the movement of any vehicle while ... the amount of alcohol by weight in the blood of the person is 0.10% or greater.” See slip op. of trial ct. at 7.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    503 A.2d 450
    COMMONWEALTH of Pennsylvania v. Theodore P. RUSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1985.
    Filed Jan. 17, 1986.

      Joshua D. Lock, Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WICKERSHAM, ROWLEY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his conviction for official oppression, claiming that possible jury exposure to a newspaper article identifying him as an “ex-bondsman” entitles him to a new trial, and that the Commonwealth did not establish an essential element of the crime — that appellant was acting in an official capacity. We find appellant’s arguments to be meritless and affirm the judgment of sentence of the court below.

This case arose when appellant, a bail bondsman, apprehended his bail jumping principal, George Carroll, in Philadelphia. Appellant transported Carroll to Harrisburg in the trunk of a car, and drove through that city with the bail-jumper tied to the roof of the car as an example to others tempted to flee justice to appellant’s financial detriment. During appellant’s trial ah article about an automobile accident involving appellant appeared in a local newspaper. The article referred to appellant as an “ex-bondsman.” This is not sufficient reason to grant appellant a new trial. The article did not concern the case against appellant, and appellant offers no showing of prejudice. Additionally, the trial court instructed the jury to consider only the evidence offered in the courtroom. There is no reason to believe they did not comply with that instruction.

Appellant argues that he was not acting in an “official capacity” when he apprehended Carroll because he is not a public official. Performance of the crime of official oppression is not limited to persons commonly thought of as public officials. The evil that the law seeks to prevent is the unlawful abuse of official authority. See Commonwealth v. Checca, 341 Pa.Super. 480, 491 A.2d 1358 (1985); See also Commonwealth v. Stumpo, 306 Pa.Super. 447, 456, 452 A.2d 809, 814 (1982) (“there is no requirement that the forbidden acts be those which only an official can perform”). It applies to any “person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity.” 18 Pa.Cons.Stat.Ann. Sec. 5301 (Purdon 1983).

Appellant, as surety on Carroll’s bail bond, was entitled to “take his principal into custody in order to deliver him to the property authority ... (s)o long as the bounds of reasonable means to effectuate the apprehension (were) not transgressed____” Smith v. Rosenbaum, 333 F.Supp. 35, 39 (E.D.Pa.1971). When he apprehended Carroll, appellant was acting as surety on Carroll’s bond, as a bail bondsman. In this capacity appellant had authority to take Carroll into custody. Appellant violated the statute when he abused that authority.

Judgment of sentence affirmed.

      . 18 Pa.Cons.Stat.Ann. Sec. 5301 (Purdon 1983).


author: HOFFMAN, Judge:

text:
    503 A.2d 932
    Suzanne BILLMAN, a minor, by Helen E. BILLMAN, her guardian, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN and the Travelers Insurance Company.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Jan. 21, 1986.

      William P. Coffin, Easton, for appellant (at 657) and appellee (at 745).
    Jeffrey P. Hoyle, Lansdale, for appellants (at 745) and appellees (at 657).

      Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

These are cross-appeals from the judgment entered in favor of appellant, Suzanne Billman, pursuant to the lower court’s order granting her motion for summary judgment in the amount of $6,955.15. Appellant contends that the lower court correctly granted her motion for summary judgment, but erred in refusing to award her (1) interest on the $6,955.15, (2) interest on the sum of $15,000 previously paid to her in partial settlement of her no-fault claims, and (3) attorney’s fees. Cross-appellants, the Pennsylvania Assigned Claims Plan and The Travelers Insurance Co. (The Travelers), disagree, contending that the lower court erred in granting appellant’s motion. We vacate the lower court’s judgment, reverse its order, and remand for further proceedings.

On August 4, 1981, appellant, a minor, was injured in an automobile accident while a passenger in her brother’s uninsured motor vehicle. Through her guardian, appellant applied to the Pennsylvania Assigned Claims Plan seeking uninsured motorist benefits and basic loss benefits under the No-fault Motor Vehicle Insurance Act (No-fault Act). Her claim was assigned to The Travelers. Appellant then brought suit against cross-appellants for failure to pay her claims. The Travelers subsequently paid appellant $15,000 in uninsured motorist benefits as partial settlement of her claims. However, the Travelers refused to pay the $6-955.15 in medical expenses claimed by appellant as basic loss because those expenses had already been paid by her mother’s Blue Cross/Blue Shield coverage. On November 8, 1984, cross-appellants filed a motion for summary judgment alleging that they were not liable to pay basic loss benefits when the medical bills constituting that basic loss had already been paid by Blue Cross/Blue Shield. On January 2, 1985, appellant filed a cross-motion for summary judgment, contending that she should be awarded basic loss benefits in the amount of $6,955.15 and interest thereon, interest on the uninsured motorist benefits previously paid, and attorney’s fees. The lower court entered an order granting appellant’s motion on February 12, 1985, but denying her requests for interest and attorney’s fees. These cross-appeals followed.

The first issue that we must address is whether the lower court erred in finding that appellant was entitled to receive basic loss benefits although her medical expenses had already been reimbursed by Blue Cross/Blue Shield. This issue turns upon the construction of 40 P.S. 1009.108(a)(3) of the No-fault Act, which provides:

[I]f an individual receives basic loss benefits through the assigned claims plan for any reason other than because of the financial inability of an obligor to fulfill its obligation, all benefits or advantages that such individual receives or is entitled to receive as a result of such injury, other than life insurance benefits or benefits by way of succession at death or in discharge of familial obligations of support, shall be subtracted from loss in calculating net loss.

(Emphasis added). Basic loss benefits are paid on the net loss sustained by a victim. Id. § 1009.103. Cross-appellants contend that the Blue Cross/Blue Shield payments made for appellant’s medical bills constitute benefits that should be subtracted from appellant’s total loss in order to determine the basic loss benefits that she is entitled to receive. Because appellant has only claimed loss for her medical expenses, and Blue Cross/Blue Shield has paid all of those expenses, cross-appellants contend that no basic loss benefits are due. Appellant, however, argues that because the payments were made pursuant to her mother’s Blue Cross/Blue Shield policy, they were made “in discharge of a familial obligation of support.” Therefore, she argues that those payments are exempt from set-off under § 1009.108(a)(3).

The lower court agreed with appellant’s contention and cited Killeen v. Travelers Insurance Co., 721 F.2d 87 (3d Cir.1983), in support thereof. The facts in the instant case are very similar to those in Killeen. In that case, an uninsured minor victim of a motor vehicle accident submitted a claim for hospital and medical expenses to the assigned claims plan. Her assigned insurer refused to pay basic loss benefits to her on the ground that Blue Cross/Blue Shield reimbursement had already been provided. The minor’s father had purchased the Blue Cross/Blue Shield policy to fulfill his support obligations under a divorce decree, which required him to pay for the child’s medical expenses. The Circuit Court recognized that allowing such a double recovery was at odds with one of the stated purposes of the Act, “to have a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims,” 40 P.S. § 1009.102(a)(4) (emphasis added), but felt compelled to comply with the plain language of § 1009.108(a)(3), supra, and the set-off exemptions contained therein. See 1 Pa.C.S.A. § 1921(b) (“when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”). The Circuit Court then found that the Blue Cross/Blue Shield payments were made in discharge of the father’s support obligations. The court further found that the manner in which the father chose to fulfill his obligation, whether by purchasing insurance or paying for medical expenses out-of-pocket, did not affect the exemption from set-off. Accordingly, the court held that the child was entitled to recover basic loss benefits although Blue Cross/Blue Shield had already provided payment for her medical and hospital expenses.

Although this is an issue of first impression in the courts of this Commonwealth, we find it unnecessary to decide whether we will adopt the rationale of Killeen for the following reasons. Summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P. 1035(b). Furthermore, summary judgment may be entered only in a matter that is clear and free from doubt. Spain v. Vicente, 315 Pa.Superior Ct. 135, 138, 461 A.2d 833, 835 (1983). In the instant case, cross-appellants contend that summary judgment was inappropriate because a genuine issue of fact exists concerning the nature of the Blue Cross/Blue Shield policy. We agree.

The party who moves for summary judgment has the burden of showing that there is no genuine issue as to any material fact and must submit affidavits or other evidence in support of the motion. Genesis Leasing Co., Inc. v. Minchoff, 315 Pa.Superior Ct. 437, 444, 462 A.2d 274, 277 (1983). Although appellant alleges that the Blue Cross/Blue Shield payments were made pursuant to her mother’s policy, and, therefore, in discharge of a familial obligation of support, this allegation is contained only in her motion for summary judgment and is not supported by any evidence in the record. In the absence of such support, we find that the lower court erred in granting appellant’s motion for summary judgment.

We may readily dispose of appellant’s remaining contentions. Appellant argues that she is entitled to receive interest on her overdue basic loss benefits pursuant to 40 P.S. § 1009.106(a)(2). Because we have found that the lower court erred in awarding appellant such benefits, we need not address this issue.

Similarly, appellant contends that she is entitled to attorney’s fees under 40 P.S. § 1009.107(3). As entitlement to no-fault benefits is a prerequisite to the recover of attorney’s fees under § 1009.107(3), we also need not address this issue.

Finally, appellant contends that she is entitled to receive interest pursuant to § 1009.106(a)(2), supra, on the $15,000 previously paid to her by The Travelers in settlement of her claim for uninsured motorist benefits. We disagree. A settlement agreement is binding upon the parties. See Klein v. Cissone, 297 Pa.Superior Ct. 207, 215, 443 A.2d 799, 803 (1982). In the instant case, the parties agreed, in pertinent part, as follows:

3. The parties to this action are willing to enter into a partial settlement of this action —
******
(c) The Travelers Indemnity Company as paying agent for the Travelers Insurance Company has unconditionally offered Draft No. 04135401 in the amount of Fifteen Thousand ($15,000.00) Dollars to Petitioner’s Attorney as payment of the maximum uninsured motorist claim allowed under the applicable section of the No-Fault Act, Title 40 Pa.C.S.A. Section 1009.101 et seq., payable to Suzanne Billman, a minor, to File No. 1982-C-6266. ******
(e) All parties have stipulated and agreed to litigate further plaintiff’s outstanding claim and issue of medical expenses in the amount of Six Thousand Nine Hundred Fifty Five and 15/ioo ($6,955.15) Dollars plus interest through Cross Motions for Summary Judgment to File No. 1982-C-6266.

See Petition for Partial Settlement of Action. After reviewing the settlement agreement, we believe that appellant relinquished any further claim concerning her uninsured motorist benefits and, therefore, is barred from seeking interest on those benefits.

For the foregoing reasons, we vacate the judgment of the lower court, reverse its order granting appellant’s motion for summary judgment, and remand for further proceedings.

Judgment vacated, order reversed, and case remanded for proceedings consistent with this memorandum. Jurisdiction is not retained.

SPAETH, President Judge, joined in this opinion before the expiration of his term on the court.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101-701, repealed, Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.
      Section 108 of the No-fault Act provides for recovery by motor vehicle accident victims where no basic loss insurance policy applies to the claim. 40 P.S. § 1009.108(a). Uninsured victims submit their claims to the assigned claims plan. Each claim is then assigned to one of the participating insurers. Id. § 1009.108(b). The assigned insurer is obligated to pay no-fault benefits to the uninsured claimant "as if [the insurer] had issued a policy of basic loss insurance. " Id, (emphasis added); see also Tubner v. State Farm Mutual Auto Insurance Co., 496 Pa. 215, 218-19, 436 A.2d 621, 622-23 (1981). Basic loss benefits include uninsured motorist coverage. Tubner v. State Farm Mutual Auto Insurance Co., supra.

      . This partial settlement agreement was approved by the lower court pursuant to Pa.R.Civ.P. 2039(a), which provides that "[n]o action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.” See Order of the Lower Court filed January 27, 1984.

      . Cross-appellants seek to distinguish Killeen from the instant case, arguing that no support obligation exists in the absence of "a specific court order for a parent to provide [a] child with a policy of health and medical insurance.” See Brief for Appellees/Cross-Appellants at 22. We find this distinction unpersuasive. A "parent has the obligation to pay for medical care outside of any order of support." Commonwealth ex rel. Warner v. Warner, 198 Pa.Superior Ct. 124, 131, 181 A.2d 888, 892 (1962).

      . Section 1009.106(a)(2) provides as follows:
      No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained, unless the obligor designates, upon receipt of an initial claim for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period____ Overdue payments bear interest at the rate of eighteen per cent (18%) per annum.

      . Section 1009.107(3) provides as follows:
      If, in any action by a claimant to recover no-fault benefits from an obligor the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.


author: CIRILLO, Judge:

text:
    503 A.2d 936
    COMMONWEALTH of Pennsylvania v. Bruce Stewart BURCHARD, Appellant and Daniel Joel Van Slochem, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Jan. 24, 1986.

      Theodore Simon, Philadelphia, for Burchard, appellant (at 985).
    William J. Honig, Norristown, for Van Slochem, appellant (at 986).
    Phyllis R. Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee (at 985 and 986).
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   CIRILLO, Judge:

This is a consolidated appeal from the judgments of sentence entered by the Court of Common Pleas of Chester County. Appellants, Daniel Van Slochem and Bruce Burchard, were arrested and charged with possession of controlled substances, possession of controlled substances with intent to deliver, and criminal conspiracy. Following a bench trial, they were convicted on all counts.

In March of 1979, the Pennsylvania State Police obtained a search warrant for a Chester County residence; Burchard and Van Slochem were identified as residents of the house. The warrant authorized the seizure of marijuana, related narcotics paraphernalia, and records and monies of narcotic transactions. Probable cause for the issuance of the warrant was based in part on information provided to the State Police by a confidential informant and in part on other information gathered as a result of an investigation.

The State Police arrived at the residence and knocked at the kitchen door. Burchard, alone in the house, peered through a curtain hanging on the door. The troopers identified themselves and stated their purpose. Discerning no attempt by Burchard to open the door, and believing that the marijuana and other drug related items could easily be destroyed, the officers decided to enter by force. After the troopers made several attempts at breaking in the door, Burchard voluntarily admitted them. Fifteen to twenty minutes later, Van Slochem arrived at the residence. The search revealed: 788 pounds of marijuana; 552 grams of hashish; $1,580.00 in cash; drug paraphernalia including scales, cigarette papers, boxes of sandwich bags, and a variety of weapons.

Appellants filed omnibus pre-trial motions alleging inter alia, an illegal search and seizure and illegally obtained statements. In particular, appellants challenged the validity of the warrant vis-a-vis the sufficiency of the affidavit. At the hearing on the suppression motion, appellants’ statements were suppressed as was certain physical evidence. All items of contraband were allowed into evidence.

A non-jury trial followed the suppression hearing. During trial the contraband that was the subject of appellants’ motion to suppress was admitted into evidence without any objection by appellants. Burchard and Van Slochem were convicted on two counts of possession of a controlled substance, two counts of possession of a controlled substance with intent to deliver, and one count of criminal conspiracy. Post-trial motions were denied. Appellants were sentenced to ten to twenty-three months imprisonment and directed to pay the costs of prosécution.

These appeals were certified to the court en banc to resolve the following issue: when a pre-trial suppression motion is denied, must a defendant object at trial to the admission of that evidence in order to preserve the suppression issue for appeal?

Our Courts have repeatedly held that issues must be preserved at each and every stage of review; otherwise, they are deemed waived and cannot subsequently be raised on appeal. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 1123(a); Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983) (issues raised in post-trial motions, but not briefed or argued were waived); Commonwealth v. Giles, 500 Pa. 413, 456 A.2d 1356 (1983) (issues not included in post-verdict motions were waived); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982) (brief raising allegations of error, in absence of written post-verdict motions, preserves no issue for appellate review); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (plurality) (only those issues included in post-verdict motions are preserved for appellate review); Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (timely objection to sentencing court needed to preserve sentencing issue {see now Pa.R.Crim.P. 1410)); Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976) (when there is a timely objection to prosecutor’s statements which is sustained, but there is no request for a mistrial or curative instruction, issue is waived; defendant was granted all requested relief); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985) (issues raised in post-trial motions, but not briefed, argued, or addressed by trial court, are waived); Commonwealth v. Broadie, 489 Pa.Super. 394, 489 A.2d 218 (1985) (failure to file a motion to modify sentence waives all issues except legality of sentence); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984) (failure to timely challenge jury array results in waiver of any objection to jury); Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1029 (1984) (advancing a new or different theory of relief for the first time on appeal results in a waiver of that issue); Commonwealth v. Russell, 326 Pa.Super. 346, 473 A.2d 1383 (1984) (failure to make specific objection where jury instructions have been timely offered and refused, issue is waived).

The doctrine of waiver is now a critical procedural mechanism that fosters meaningful appellate review. With the abolition of principles such as “basic and fundamental error,” the necessity of raising a specific objection at each and every stage of a proceeding is of paramount importance. Indeed, in the criminal context, failure to preserve an issue for appeal may give rise to a finding of ineffective assistance of counsel. See, e.g., Commonwealth v. West, 334 Pa.Super. 287, 482 A.2d 1339 (1984); Commonwealth v. Boyd, 315 Pa.Super. 308, 461 A.2d 1294, aff’d in part, rev’d in part on other grounds, 504 Pa. 32, 470 A.2d 540 (1983). Without the stringent application of the waiver doctrine,

[ajppellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review. The ill-prepared advocate’s hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error. The diligent and prepared trial lawyer— and his client — are penalized when an entire case is retried because an appellate court reverses on the basis of an error opposing counsel failed to call to the trial court’s attention. Failure to interpose a timely objection at trial denies the trial court the chance to hear argument on the issue and an opportunity to correct error. It also tends to postpone unnecessarily disposition of other cases not yet tried for the first time. See Pa.E.C.P. 214(d).

Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Conversely, the specific objection requirement ensure[s] that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

Id., 457 Pa. at 258-59, 322 A.2d at 116-17 (footnotes omitted). Accord Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

With these considerations in mind, we turn to the case sub judice. The trial court held, and the Commonwealth argues, that appellants waived the right to have the validity of the search warrant reviewed on appeal because at trial appellants failed to object to the introduction of the physical evidence seized pursuant to the now challenged search warrant. A pre-trial suppression motion and post-trial motions addressed the legitimacy of the warrant.

The trial court was constrained from reaching the merits of the suppression issue by Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979). Humphreys involved the admissibility of photographs; a pre-trial suppression motion was denied and, as here, the accused failed to object when the Commonwealth offered the photographs at trial. A three-judge panel of this Court found:

This issue has not been preserved for appellate review. Appellant challenged the admissibility of these photographs in a pre-trial motion to suppress in post-trial motions [sic], but when the Commonwealth offered the photographs at trial, appellant’s counsel stated that he had no objection. Issues not preserved at each stage of review, by a specific allegation of error, are waived and cannot be raised ifi an appeal. Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); see Commonwealth v. Ryan, 475 Pa. 559, 381 A.2d 138 (1977) (appellant contended that the trial testimony of two witnesses should have been suppressed as the fruit of a confession held illegal at a pre-trial suppression hearing, and the court held that the issue was waived because appellant did not object at trial to the admission of the testimony of the witnesses.)

Id., 267 Pa.Superior Ct. at 326-27, 406 A.2d at 1064-65 (footnotes omitted).

While the learned trial judge was correct in his assessment of the current state of the law, we hold that a defendant need not object to the introduction of evidence at trial in order to preserve a suppression issue for appellate review. Our holding in no way should be interpreted as abrogating the necessity for preservation of an issue by way of a timely suppression motion, post-verdict motions and raising the issue on appeal. Equally important is the need to advance the same theory of relief at each and every stage of review by a specific allegation of error. See Kimmel v. Somerset County Commissioners, 460 Pa. 381, 333 A.2d 777 (1975); accord Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982). Accordingly, to the extent that Commonwealth v. Humphreys, supra is inapposite to our decision today, it is overruled.

Humphreys’ reliance upon Commonwealth v. Ryan, 475 Pa. 559, 381 A.2d 138 (1978), and Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975), is misplaced. In Ryan, the testimony sought to be excluded was not the subject of the pre-trial suppression motion; without an objection at trial, the court found the issue waived. Bronaugh presented a situation in which an issue was not preserved for review due to a failure to raise the issue in post-trial motions. Analytically, therefore, the waiver rule of Humphreys’ is unsound.

Apart from Humphreys, the rationale for the waiver doctrine as set forth in Commonwealth v. Clair, supra; Dilliplaine v. Lehigh Valley Trust Co., supra, supports our position. None of the considerations stated for the rule compel a finding of waiver since these were met at other stages of the proceedings: the suppression court made a ruling on the validity of the search warrant, and the denial of the suppression motion was again raised in post-trial motions and on appeal.

“It is fundamental that a rule of law should not be applied where its application fails to serve the purposes for which it was designed.” Commonwealth v. Beatty, 500 Pa. 284, 291, 455 A.2d 1194, 1198 (1983). Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979), illustrates the application of this principle. In Myers, four out of five co-defendants filed pretrial motions to suppress certain testimony. Matherly, the fifth defendant failed to file a suppression motion and failed to object to the witness’s testimony. The Supreme Court held:

In the case before us, where four of the five co-defendants raised the issue at the trial level, these reasons have been satisfied. The trial court did rule on this precise issue and appellant, Matherly, does not raise any points on this issue which were not presented before the trial court. It is important to note that this was a consolidated trial in which Matherly was being tried along with the other four appellants. Any objection by Matherly’s attorney during the trial would have been a futile act, since the trial court had already ruled that Howell would be competent to testify during the trial. The law does not require the performance of futile acts. Under these circumstances Matherly is entitled to relief as are the other four appellants.

Id., 485 Pa. at 524, 403 A.2d at 87. Admittedly, Myers presents an extreme scenario, and we do not condone the lapse in trial advocacy of Matherly’s attorney. However, where as here a rule does not serve the purpose for which it is designed, it should not be applied.

Pa.R.Crim.P. 323(j) is itself consistent with our holding. Rule 323(j) provides:

(j) If the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its suppressibility.

The rule explicitly states that the hearing court’s determination “shall be final, conclusive and binding at trial,” subject to certain exceptions. In Commonwealth v. Walker, 477 Pa. 370, 383 A.2d 1253 (1978), Justice Manderino, speaking for only two Justices of the Court, addressed the waiver issue in conjunction with Rule 323(j).

The prosecution, however, argues that appellant has waived his right to raise this issue because no objection was made to the admission of the statements during trial. An objection at trial, however, would have been a useless act. Rule 323(j) of the Pa.R. of Crim.P. states:
“If the court determines that the evidence is admissible such determination shall be final, conclusive and binding at trial except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its admissibility.” (Emphasis added.)
Under the above rule the determination made pretrial is final, conclusive, and binding at trial. The trial judge cannot overrule the admissibility determination made by the pretrial suppression judge. Accordingly, the appellant cannot be said to have waived an issue which he was precluded from raising during the trial.

Walker, 477 Pa. at 374, 383 A.2d at 1255. While Walker's common sense, literal interpretation of Rule 323(j) is not precedent, we find its analysis persuasive. Cases not directly addressing the issue sub judice have indicated a similar, strict interpretation of the Rule. Commonwealth v. Berklaimer, 501 Pa. 85, 460 A.2d 233 (1983); Commonwealth v. Throckmorton, 241 Pa.Super. 62, 359 A.2d 444 (1976); Commonwealth v. White, 228 Pa.Super. 23, 324 A.2d 469 (1974) (allocatur denied).

Nothing we have stated thus far should be construed as limiting a defendant’s right to object to the admissibility of “evidence at trial upon any ground except its suppressibility.” Pa.R.Crim.P. 323(j). Moreover, the hearing judge’s determination is not necessarily final if there is “a showing of evidence which was theretofore unavailable.” Id. See also Commonwealth v. Berkheimer, supra (suppression court’s determination is final except in the case of evidence not earlier available); C.f. Commonwealth v. Branch, 292 Pa.Super. 425, 437 A.2d 748 (1981) (allocatur denied) (Rule 323(j) does not suggest a suppression court itself is precluded from reopening a hearing to receive additional testimony). Finally, as the comment to Rule 323(j) states: “Paragraph (j) does not change the Massachusetts or ‘humane’ rule (whereby a defendant may raise the issue of voluntariness of a confession to the jury following denial of a motion to suppress) which is followed in the Commonwealth.” See Commonwealth v. Motley, 472 Pa. 421, 372 A.2d 764 (1977); Commonwealth v. Joyner, 441 Pa. 242, 272 A.2d 454 (1971).

Underlying our decision today is a deep-rooted principle of Pennsylvania jurisprudential thought: “[a]bsent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case.” Bersani v. School District of Philadelphia, 310 Pa.Super. 1, 4, 456 A.2d 151, 153 (1982). Accord Jaden Electric Division of The Fairfield Co. v. Wyoming Valley West School District, 342 Pa.Super. 587, 493 A.2d 746 (1985); Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 479 A.2d 1027 (1984); Melendez v. City of Philadelphia, 320 Pa.Super. 59, 466 A.2d 1060 (1983); Walker v. Pugliese 317 Pa.Super. 595, 464 A.2d 482 (1983); Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645 (1981); Commonwealth v. Eck, 272 Pa.Super. 406, 416 A.2d 520 (1979); Annot., 20 A.L.R. Fed. 13 (1974); Annot., 132 A.L.R. 14 (1941). Such a rule ensures “some degree of finality to determinations of all pre-trial applications so that judicial economy and efficiency can be maintained.” Commonwealth v. Griffin, 257 Pa.Super. 153, 157, 390 A.2d 758, 760 (1978). Under this rule, the trial court, when presented with an objection to evidence previously determined to be admissible, has no authority to reverse an earlier finding of the suppression court except under the circumstances set forth in Rule 323(j). Therefore, any objection by a defendant would be futile. “The law does not require the performance of futile acts.” Commonwealth v. Myers, 485 Pa. at 524, 403 A.2d at 87.

“The binding nature of [a suppression] determination, however, is limited to the time of ‘trial’ in its popular sense, that is, through verdict and until the case goes into the hands of the court en banc.” Commonwealth v. Bonser, 215 Pa.Super. 452, 455, 258 A.2d 675, 678 (1969) (allocatur denied). Cf. Commonwealth v. Monarch, 330 Pa.Super. 165, 178, 479 A.2d 491, 497 (1984) (Tamilia, J., concurring and dissenting) (suppression matters should not be relitigated at trial, but trial judge should have the opportunity to correct suppression errors in post-trial proceedings). A court en banc hearing post-verdict motions sits as a “higher tribunal” than a trial court, Commonwealth v. Bonser, supra, and may be more accurately characterized as a quasi appellate court. Its function “is to review the rulings of the suppression hearing judge and the trial judge ... and [to] serve[ ] as the initial step in the appellate review of trial proceedings.” Commonwealth v. Oakes, 481 Pa. 343, 347, 392 A.2d 1324, 1326 (1978) (citations omitted).

The court en banc, when reviewing post-verdict motions in accordance with Pa.R.Crim.P. 1123(a), has the power to reverse prior erroneous rulings; this authority aids in deterring unnecessary appeals. Commonwealth v. Norris, 256 Pa.Super. 196, 389 A.2d 668 (1978). The post-verdict process

serves not only the immediate interest of the defendant but also the interest of facilitating effective appellate review. See Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974). Even where the court en banc finds no reversible error, its review frequently serves to crystalize the issues and provide an appellate court, should an appeal be taken, with the findings, conclusions and reasoning of the court of common pleas with respect to an asserted issue.

Commonwealth v. Oakes, 481 Pa. at 348, 392 A.2d at 1327. Accord Pa.R.A.P. 1925; Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974); Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983); Commonwealth v. Norris, supra. The reasoning of the trial court is often critical to our review. Cf. Commonwealth v. Sirbaugh, 339 Pa.Super. 351, 488 A.2d 1160, (1985) (case remanded for a “statement, in the form of an opinion, setting forth the reasoning of the trial court with regard to the various rulings made thereby.”); Commonwealth v. Hicks, 328 Pa.Super. 233, 236, 476 A.2d 978, 980 (1984) (without a Rule 1925 opinion, we do not have the benefit of the trial judge’s discussion of the issues presented in the post-trial motions); see also Commonwealth v. Davis, 313 Pa.Super. 355, 459 A.2d 1267 (1983) (when trial judge sits as trier of fact, he must evaluate credibility and weight of witnesses’ testimony); Commonwealth v. Mack, 313 Pa.Super. 372, 459 A.2d 1276 (1983) (when trial court’s findings are supported by the record, we must accept the findings). Commonwealth v. Zimmerman, 264 Pa.Super. 307, 399 A.2d 1064 (1979):(our function is not to weigh the evidence and substitute our judgment, but rather to determine whether the verdict is supported by the record, or whether the trial court committed error). “[T]o hold that the court en banc could not [for example] grant a new trial ... would eliminate the need for post-trial argument and deprive the appellate courts of the benefit of a review by the court en banc.” Commonwealth v. Bonser, 215 Pa.Super. at 456, 258 A.2d at 678. Moreover, the court’s review is not limited to rulings of the trial judge, but also extends to rulings of the pre-trial suppression hearing judge. Commonwealth v. Oakes, supra; Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973); Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970); Commonwealth v. Bonser, supra.

The term “en banc” envisions all or a majority of the judges on a particular court. In re Hanover Township School Directors, 290 Pa. 95, 137 A. 811 (1927). The Judicial Code does not specifically define a court en banc, but rather provides that the “composition of a court en banc shall be as specified by general rules.” 42 Pa.C.S. § 326(a). According to our rules of criminal procedure, Rule 1123(e) states:

(e) The trial judge shall determine whether post-verdict motions shall be argued before himself alone or before a panel sitting as a court en banc. Whenever the trial judge hears the motions alone, he may make any rulings that could be made by a court en banc.

The Rule gives the trial judge the discretion to determine whether post-verdict motions will be argued before a panel of judges sitting as a court en banc or argued before himself. If the judge decides to hear the motions alone, a fortiori, the single judge sits as a court en banc. Inasmuch as “a court en banc has the authority to rehear and, if necessary, reverse pretrial rulings made by trial judges, ..., it follows that a trial judge sitting alone also has such power.” Commonwealth v. Hutson, 240 Pa.Super. 245, 247, 363 A.2d 784, 785 (1976) (citation omitted). See also Commonwealth v. Alvarado, 333 Pa.Super. 63, 66, 481 A.2d 1223, 1224 (1984) (“when the trial judge hears the motions alone, he may make any rulings that could be made by a court en banc, Pa.R.Crim.P. 1123(e)).”

Consequently, we must remand this case to the trial court to consider the suppression issue raised in post-trial motions; specifically, the trial court is directed to review the issue of the validity of the search warrant, as it is determinative of the suppression issue. If it is determined that the physical evidence should have been suppressed, then the judgment of sentence shall be vacated and appellants shall be entitled to a new trial. On the other hand, if it is determined that the suppression motion was properly decided, the judgment of sentence shall be reinstated and appellant may then appeal anew.

We have reviewed each of the remaining assignments of error and find them to be without sufficient merit to warrant reversal.

Vacated and remanded; jurisdiction is not retained.

SPAETH, President Judge, joined in this opinion before the expiration of his term on the court.

      . 35 P.S. § 780-113(a)(16).

      . Id. at § 780-113(a)(30).

      . 18 Pa.C.S. §§ 903(a)(1), (2).

      . Neither appellant owned the premises identified in the warrant. However, a lease on the premises was signed by Burchard. Further testimony revealed that both appellants alternately paid rent for the subject premises, cars owned by each were parked at the residence, and they were seen performing repair work on the residence’s driveway. While the warrant was being executed, Van Slochem arrived home with a bag of groceries.

      . It is equally important to preserve issues at each stage of review in the civil context. See, e.g., Kovach v. General Telephone Company of Pennsylvania, 340 Pa.Super. 144, 489 A.2d 883 (1985) (matters raised for the first time on appeal are not properly preserved for appellate review); Neshaminy Water Resources Authority v. Delaware Unlimited, Inc., 332 Pa.Super. 461, 481 A.2d 879 (1984) (issues not raised in trial court may not be raised on appeal).

      . The doctrine of basic and fundamental error permitted an appellate court to review issues, specifically those concerning jury instructions, where no exception was taken; if the court found fundamental and prejudicial- error, a new trial may be granted. See Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968).

      . See infra p. 465.

      . Of the seven justices participating in the Walker decision, three dissented, two concurred in the result and one joined in Justice Manderino’s Opinion.

      . Pa.R.Crim.P. 1123(a) provides:
      (a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or a trial, unless the trial judge, upon cause shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued or heard. If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.

      . Black’s Law Dictionary (5th ed. 1979) defines en banc as follows:
      En banc ... In the bench. Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are usually necessary to hear an appeal. In the United States, the Circuit Courts of Appeal usually sit in panels of judges but for important cases may expand the bench to a larger number, when they are said to be sitting en banc. See Fed.R.App.P. 35. An appellate court in which all the judges who are necessary for a quorum are sitting as contrasted with a session of such court presided over by a single justice or panel of justices.
      Id. at 472-73.

      . In the civil context, the rule governing en banc argument is very similar to Pa.R.Crim.P. 1123(e). Rule 227.2 provides:
      All post-trial motions and other post-trial matters shall be heard and decided by the trial judge unless he orders that the matter be heard by a court en banc of which he shall be a member. If the trial judge for any reason cannot hear the matter, another judge shall be designated to act. Nor more than three judges shall constitute the court en banc.

      . In addition to the waiver issues discussed supra, appellants raised a number of other issues. Appellant Van Slochem offered the following issues for our review: Did the Commonwealth prove beyond a reasonable doubt that the defendant, Daniel Van Slochem possessed the contraband within the residence, or had the power or intent to exercise control over said contraband; Did the court err in allowing the Commonwealth witnesses to testify as to the identity and description of items seized and ordered suppressed by the court; Did the court err in denying defendant’s timely motion to produce the eyewitness informant; Did the Commonwealth prove a conspiracy beyond a reasonable doubt.
      Appellant Burchard raised the following issues: Was the appellant denied the effective assistance of counsel under Pennsylvania and Federal Constitutions where the trial court failed to make findings of fact and conclusions of law as required by Pa.R.Crim.P. 323(i) and Commonwealth v. Jackson and where trial counsel failed to press for same; Was the search warrant properly executed when there was entry by force with questionable announcement of authority, identity and purpose, and the occupant was not given a sufficient opportunity to admit the police into the premises; Was the appellant’s right to a jury trial denied under the Federal and Pennsylvania Constitutions and Pa.R.Crim.P. where the jury-waiver colloquy was not knowing and intelligent or an effective waiver because a) it omitted basic requirements as called for in Commonwealth v. Williams, and separately but additionally, b) was conducted at a point in time that precluded the possibility of an effective waiver; Did the Commonwealth fail to prove an unlawful agreement and therefore did not prove a conspiracy beyond a reasonable doubt; Was the appellant denied the effective assistance of counsel under Pennsylvania and Federal Constitutions in failing to a) find, interview, investigate, subpoena, and call the following witnesses: 1. the other officers participating in the execution of the search warrant, 2. the co-defendant, 3. character witnesses; b) file a motion to modify/reduce sentence; Was the appellant denied his Fifth, Sixth and Fourteenth Amendment rights under the Federal Constitution and applicable rights under the Pennsylvania Constitution, particularly his confrontation and fair trial rights, where no colloquy appeared of record reflecting his knowing and voluntary consent to stipulations that were seriously incriminating and amounting to an admission of guilt, or was trial counsel ineffective under Pennsylvania and Federal Constitutions for failing to require same.


author: CAVANAUGH, Judge:

text:
    503 A.2d 944
    Daniel JACKSON, Shirley Jones and Frances McElroy Shannon, v. Harry SPAGNOLA, Martinique Restaurant and Cocktail Lounge, Volkswagen of America, Inc. and Volkswagen A-G, Appellees. Appeal of Frances McElroy SHANNON.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Jan. 24, 1986.

      Oscar S. Schermer, Philadelphia, for appellant.
    David Richman, Philadelphia, for Volkswagen, appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CAVANAUGH, Judge:

Frances McElroy Shannon was injured in a multi-vehicle collision on October 15, 1974. She subsequently filed suit against Harry Spagnola, the operator of the other vehicle; the Martinique Restaurant and Cocktail Lounge, which had served alcoholic beverages to defendant Spagnola; and Volkswagen of America, Inc. and Volkswagen A-G, distributor and manufacturer of the 1973 Volkswagen Beetle in which Ms. Shannon was a passenger. In December, 1982, a jury returned a verdict against Spagnola only in the amount of $350,000.00 for the appellant. Post-trial motions were filed and subsequently denied by the lower court. Ms. Shannon now appeals from the judgment in favor of Volkswagen of America, Inc. and Volkswagen A-G.

Appellant presents five questions for review:

(1) whether the trial court erred in allowing Volkswagen’s expert witness to exhibit test crash films at trial; and whether such demonstrative evidence was unfairly prejudicial to appellant; (2) whether the trial court erred in refusing to strike the expert’s testimony; (3) whether the trial court erred in admitting evidence of the Federal Motor Vehicle Safety Standards; (4) whether the trial court erred in refusing appellant’s proposed charge to the jury on appellees’ compliance or non-compliance with the Federal Safety Standards; and (5) whether the verdict in favor of Volkswagen is against the weight of the evidence.

The record as originally forwarded to this court did not contain the appellant’s supplemental post-trial motions which raised the first four issues presented above. Accordingly, we filed an opinion on September 27, 1985 which was withdrawn by order of October 16, 1985 in which we held that the first four issues were waived as not having been raised in the court below in post-trial motions. Subsequent to our opinion of September 27, 1985, we learned that in fact supplemental post-trial motions were filed below under local Philadelphia Rule 240 which provides:

(C) Filing Procedure
(1) All exceptions and post-trial motions shall be filed in triplicate with the Post-Trial Motion Clerk and shall contain the name of the trial judge as well as the names, addresses and telephone numbers of all counsel involved in the trial of the case. In addition, said motions and exceptions shall contain a Certification of Service on all counsel named therein, and, if desired, should be accompanied by a written request for argument of the exceptions or motions before a court en banc. Any request by opposing counsel for argument before a court en banc shall be filed in writing within five (5) days of the service of the exceptions or motions.
(2) Under the direction of the Court Administrator, the Post-Trial Motion Clerk shall maintain an Individual Court Docket for each Judge of the Common Pleas Court.
The Post-Trial Motion Clerk shall docket exceptions and post-trial motions in the Individual Docket of the Trial Judge and in the General Appearance Docket and forward copies of same to the Trial Judge and to the court stenographer who was assigned to the trial of the case. The Trial Judge shall, upon receipt of the exceptions or motions, indicate to the Post-Trial Motion Clerk whether or not he desires the exceptions or motions to be heard by a court en banc by entering an order indicating such. The Post-Trial Motion Clerk will promptly forward a copy of the order to all interested counsel.

(Emphasis added.)

In the instant case supplemental post-trial motions were not docketed on the general appearance docket below as required by local Rule 240 and were not forwarded to this court until after the case was originally decided by us. Philadelphia Local Rule 240 is not in conflict with the Pa.R.A.P. 1921 which provides:

Rule 1921. Composition of Record on Appeal
The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.

Nevertheless, the administration of Local Rule 240 has led to the situation we had in this case where the supplemental post-trial motions did not appear on the docket entries forwarded to the court and in fact the supplemental motions themselves were not timely forwarded to this court. We have no way of telling whether they were entered on the individual docket of the trial judge as required by Rule 240 as this docket was not a part of the record sent to us. We recognize that the dual docketing system may have been devised to fit the needs of the trial court, but must insist that it be conducted in a manner which will insure that all of the original papers, exhibits, docket entries and transcripts be transmitted to this court on appeal.

Turning to the appellant’s argument on the merits, we find that the testimony of Volkswagen’s expert witness, Dr. Warner, and his exhibition of test crash films at the trial was not prejudicial to the appellant. The appellant contended at trial that the injuries resulting from a very serious automobile accident were due to faulty design by Volkswagen of the seats in the Volkswagen automobile in which Frances McElroy Shannon was a passenger. The films introduced by Volkswagen illustrated the testimony given by Dr. Warner that the design of the car manufactured by Volkswagen was safe. Dr. Warner described the effect of a rear end collision such as was involved in this case, on the car seats designed by Volkswagen. The film used was that of federally conducted crash tests of automobiles of makes different than those involved in the instant case, and this was pointed out to the jury. The film was offered to show the operation of automobile seats in general, and in no way indicated the construction of the car seat involved in this accident. Demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the minds of the jury. 1 Henry on Pennsylvania Evidence, § 421, 1978 Pocket Parts. The use of the films in this case was similar to that in Zurzola v. General Motors Corp., 69 F.R.D. 469 (E.D.Pa.1975) in which a film was used to explain certain principles of physics. The plaintiff contended in that case that the film did not accurately represent the accident in the case and was not listed as an exhibit by the defendant prior to trial, and was highly prejudicial to the plaintiff because it failed to show all of the physical factors operative in the instant collision. The court held that the film was admissible as no prejudice resulted to the plaintiff in the jury seeing the film and there was ample opportunity to cross examine the defendant’s expert.

In Robinson v. Audi NSU Auto Union, 739 F.2d 1481 (10 Cir.1984) the court affirmed the use of a film in a products liability case which depicted a series of rear end collisions between various makes of 1973 automobiles. The court held that the admission of the film was within the discretion of the trial judge. It was further stated by the court at 739 F.2d 1485:

Accordingly, this matter should not be the basis for reversal. The film illustrated some relevant principles. It did not purport to recreate the accident at issue, including certain particulars of plaintiffs’ accident.

We hold that the showing of the films did not unduly prejudice the appellants. As noted in House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 313 n. 6, 449 A.2d 697, 704 n. 6 (1982): “ ‘Prejudice’ does not mean ‘detrimental to a party’s case’ but rather ‘an undue tendency to suggest decision on an improper basis.’ ” In this case, the limited use of the film did not suggest a decision to the jury which would be made on an unjustified basis.

The appellant had proper notice that Volkswagen intended to use the film. On December 15, 1982 counsel for Volkswagen advised appellant’s counsel by a hand delivered letter that it intended to use the film. Counsel for the appellants closed his case on December 16, 1982 and the film was shown on December 17, 1982. The December 15th letter advised counsel for the appellants that the films would be available for them to review if they so desired.

The appellant’s next contention is that the testimony of Dr. Charles W. Warner and Vern L. Roberts,. Volkswagen’s expert witnesses, was inadmissible. The admission of expert testimony is within the sound discretion of the trial court whose decision will not be reversed in the absence of an abuse of discretion. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 480 A.2d 299 (1984). The weight to be accorded to the testimony of an expert is to be determined by the jury. Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967). In this case, Dr. Warner had conducted an extensive investigation into the collision involved in this case in which a Cadillac travelling at a high rate of speed and operated by an intoxicated driver rear ended a Volkswagen sedan, known as a “Beetle”, which was stopped for a red light. As a result, the Volkswagen crashed into the car in front of it, a Chevrolet Monte Carlo, and the second impact caused the Monte Carlo to strike another vehicle. One of the plaintiffs below, Frances McElroy Shannon, who was a passenger in the Volkswagen, claimed that her injuries were aggravated because of the failure of a bolt on the back seat of the Volkswagen. Dr. Warner testified concerning the design and function of the Volkswagen and the design of the Volkswagen seats including a “deformation element” which is designed to yield on severe rear-end impact. There was contradictory testimony between the appellant’s and the appellees’ experts and the function of the jury was to resolve the conflict. Mr. Roberts testified that in his opinion the seat in the Volkswagen had not failed and that Ms. Shannon’s injuries were not consistent with the back seat totally collapsing into a horizontal position. The testimony of both witnesses for the appellee had a sufficient factual basis.

The appellant states that “the issue before the jury was whether the seat performed as society would expect and as designed.” The proper design of a car seat and its expected performance in a situation involving the crushing impact of a 5000 pound vehicle travelling at a high rate of speed upon a stationery vehicle weighing half as much, is a very complex technological question. Both sides presented their own expert witnesses and the jury determined the credibility to be given to the testimony. Expert testimony is admissible when it involves explanations and inferences not within ordinary training, knowledge, intelligence and experience of the jury. Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981).

The appellant next contends that the trial court erred in admitting evidence of Federal Motor Vehicle Safety Standards, (FMVSS), in a strict liability case under § 402 A of the Restatement (Second) of Torts. This issue is controlled by Brogley v. Chambersburg Engineering Company, 306 Pa.Super. 316, 452 A.2d 743 (1982) which was a products liability case, where this court held that federal regulations intended to enhance safety are admissible. In Sours v. General Motors Corp., 717 F.2d 1511 (6th Cir.1983) the Court of Appeals held that FMVSS are admissible in strict liability cases under § 402 A of the Restatement (Second) of Torts. The court pointed out that compliance with FMVSS does not immunize a manufacturer from liability and “compliance is only a guide and not conclusive.” 717 F.2d at 1517. The court further stated at 1517:

We hold that GM’s alleged compliance with FMVSS 216, along with its other evidence of adherence to industry customs and standards, was properly left for the jurors to factor into the calculus that comprises reasonable design in a case of strict products liability.

The introduction of FMVSS into evidence was proper, although compliance by Volkswagen with the standards is “only a piece of the evidentiary puzzle” and does not grant immunity from strict liability. Shipp v. General Motors Corp., 750 F.2d 418, 421 (5th Cir.1985). See also Stonehocker v. General Motors Corp., 587 F.2d 151 (4th Cir. 1978). While compliance with FMVSS is not conclusive as to the absence of liability under a theory of strict liability, compliance is of probative value in determining whether there was a defect. In Bascelli v. Randy, Inc., 339 Pa.Super. 254, 488 A.2d 1110 (1985) a strict liability case under Restatement (Second) of Torts, § 402 A, we held that although contributory negligence is not a defense in such a case, evidence of contributory negligence was relevant in showing causation. In the instant case, the jury could consider compliance by Volkswagen with FMVSS in determining whether a defect existed.

The appellant also contends that the court below erred in refusing the following point for charge:

“21. Compliance or non-compliance with the Federal Safety Standards should not be considered by you as evidence of due care or lack of due care. Because plaintiff bases her action on strict liability, such standards should not be considered by you in determining whether the said 1973 Volkswagen was defective.”

The requested instruction was properly denied as the introduction of the element of due care or lack thereof is not an issue in a strict liability case and can only confuse the jury. The appellants state at page 55 of their brief: “Since evidence of these minimum standards was admitted, the appellant-plaintiff, Shannon, submits that she was prejudiced by the trial judge’s refusal to instruct the jury that the standards were not to be considered as evidence of due care, inasmuch as due care is an element not to be considered in a strict products liability case.” The appellant properly notes that due care on the part of the manufacturer was not a part of the case since the cause of action was based on strict liability under 402 A. Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975); Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981). A requested instruction that the federal standards should not be considered as evidence of something not involved in the case, would have to mislead the jury. Further, the court gave a proper instruction on strict liability as follows:

Liability is sought against Volkswagen on the theory that they are the sellers and manufacturers of a defective product. The law provides that the seller or manufacturer of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for use and without any condition that makes it unsafe.
If you find that the product at the time it left the defendant Volkswagen’s control lacked any element necessary to make it safe for use, or contained any condition that made it unsafe for use, then the product was defective and the defendant is liable for all harm caused by such defect.

See Azzarello v. Black Brothers Company, 480 Pa. 547, 391 A.2d 1020 (1978); McKay v. Sandmold Systems, Inc., 333 Pa.Super. 235, 482 A.2d 260 (1984). The trial judge has wide latitude in charging the jury as long as he fully conveys to the jury the law of the case. Burch v. Sears, Roebuck & Company, 320 Pa.Super. 444, 467 A.2d 615 (1983).

The fifth issue presented is that the verdict in favor of Volkswagen is against the weight of the evidence. This allegation was set forth as follows in the appellant’s post trial motions: “The verdict was against the weight of the evidence.” This is insufficient to preserve this issue.

The Supreme Court has already said that this is true for criminal cases. “Boiler-plate” motions, such as “the verdict was against the law” or “against the evidence,” are not sufficient because “counsel’s precise statement of issues and grounds relied upon in written form [is necessary to] insure[] thát both the trial court and the Commonwealth will have adequate notice of the legal theories being advanced.” Commonwealth v. Waters, 477 Pa. 430, 434, 384 A.2d 234, 236 (1978). See also Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
We believe that Tagnani [v. Lew, 493 Pa. 371, 426 A.2d 595 (1981) ] requires that the same disapproval of “boiler-plate” motions be extended to civil cases. To permit the trial court to grant a new trial on the basis of a very general assignment of error, such as “the verdict is against the law” or “against the evidence,” would result in losing the advantages of requiring specific assignments of error. Furthermore, to permit the trial court to make its own selection of reasons for granting a new trial, and then allocate those reasons under the rubric that the verdict was “against the law” or “against the evidence,” would permit the court to grant a new trial for a reason that counsel would have been prevented from raising in the motion for new trial because at the time the alleged error occurred, no objection was made. Such a result would clearly be contrary to the mandate of Tagnani.

Carnicelli v. Bartram, 289 Pa.Super. 424, 430, 433 A.2d 878, 881 (1981). See also Cherry v. Wilier, 317 Pa.Super. 58, 463 A.2d 1082 (1983) (court may not consider issues raised only in briefs in support of boilerplate post-verdict motions). Appellant’s allegation that the verdict is against the weight of the evidence therefore is waived. Notwithstanding waiver, we have examined the evidence in light of the test for determining whether the verdict is against the weight of the evidence, and find that it is not. See Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984).

Order affirmed.

      . With respect to the use of the films, the court below stated in its opinion:
      This court ruled that the test crash films were illustrative evidence of Dr. Warner’s testimony regarding the general operation of seats, that there was little prejudice or surprise in fact since plaintiffs experts had testified on the subject, that plaintiff had twenty four hours to cure any prejudice which may have existed and that based upon the pre-trial discussions of counsel as related by defense counsel, Mr. Madeira, there was no bad faith or willful concealment of evidence. The test crash films were therefore admitted into evidence and used at trial.


author: McEWEN, Judge:

text:
    503 A.2d 950
    Robin SEARFOSS, Richard H. Paterson and Ide Air Equipment, Inc., Appellants, v. AVIS RENT-A-CAR SYSTEMS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Jan. 24, 1986.

      Michael R. Mey, Wilkes-Barre, for appellants.
    James Harris, Wilkes-Barre, for appellee.
    Before SPAETH, President Judge, and McEWEN and BECK, JJ.

       "President Judge SPAETH joined in this opinion before the expiration of his term on the court.”

   McEWEN, Judge:

This is an appeal from a declaratory judgment entered in favor of appellee, Avis Rent-A-Car Systems, Inc. (“Avis”), and against appellants after the distinguished Judge Patrick J. Toole, Jr. construed the terms of the car rental agreement entered into between Avis and Richard H. Paterson, Sr. and concluded that Avis had no duty to defend or to provide liability coverage under the terms of the rental agreement. We affirm in this case of first impression in Pennsylvania.

Appellants claim that the operation of the rental vehicle by Richard Harter Paterson, Jr. was a permitted use under the rental agreement and thus, was a use covered by the insurance policy described in the rental agreement. Specifically, appellants in their brief contend:

A. The provision of the lease between Avis and Richard H. Paterson cannot be used by Avis to evade its coverage responsibilities under the lease as interpreted in the light of the No-fault Act and its financial responsibility requirements.
B. Exclusionary clauses on which Avis seeks to rely to avoid coverage of the vehicle cannot apply for failure to notify the insured, Richard H. Paterson, of their existence and effect.
C. The inconsistencies between the paragraph containing the age restriction and the paragraph labeled "Exclusions” in the rental agreement renders the rental agreement ambiguous and requires strict construction of coverage thereunder in favor of coverage of Richard H. Paterson, Jr., as an insured at the time of the accident.
D. The age reference in the rental agreement is not a “limitation” which limits or excludes liability for insurance coverage.
E. The terms of the rental agreement as limitations on its coverage must be strictly construed against its author and in favor of coverage.

We affirm.

On December 15, 1979, appellant Richard H. Paterson, Sr., as an agent for Ide Air Equipment, Inc. (“Ide Air”), rented a car from appellee Avis. The rental agreement signed by Richard H. Paterson, Sr. included, inter alia, the following “Terms for Renting an Avis Car”:

I [Paterson and Ide Air Equipment] rent from you the car described ... and I agree to the terms below____
Use of the Car. I will not allow any use of the car to carry passengers or property for hire or to tow or push anything. I won’t allow it in any test, race or other contest and I won’t allow its use for any illegal purpose. Who Else May Drive the Car. Only someone in my immediate family who permanently lives with me, a regular fellow employee or someone who appears at the time of rental and signs this agreement, may drive the car, but only with my prior permission. In any case, the other driver must be at least 21 years old and must be a capable and licensed driver. [Emphasis supplied]
Liability Insurance. Anyone permitted by this agreement to drive the car will be protected against liability for causing bodily injury, death or property damage up to limits of coverage of $100,000 for each person, but not more than $300,000 for each accident. The driver will also be protected against liability for damaging someone else’s property, up to $25,000. [Emphasis supplied]
Such coverage will be provided by [Avis] according to the terms of a standard automobile liability insurance policy. If permitted by law, [Avis] can provide coverage under a certificate of self-insurance together with or instead of a policy from an insurance company. In any case, a copy of the policy and/or certificate will be available for ... inspection at [Avis’s] main office. No fault insurance coverage is provided where and to the extent the law requires. There’s no coverage in Mexico and I promise not to take the car into Mexico.

On December 16, 1979, Richard H. Paterson, Sr. permitted his son, Richard H. Paterson, Jr., who was then under 21 years of age, to use the rented Avis vehicle. At approximately 2:30 a.m. on that date, Richard H. Paterson, Jr. was driving the rented vehicle accompanied by passengers, Robin Searfoss and Gary Smacher, when the car left the roadway travelling at between 55 and 70 miles per hour and crashed. Richard H. Paterson, Jr. died and Robin Searfoss was injured. Appellants subsequently initiated the instant declaratory judgment action against Avis and now appeal the adverse decision of the trial court.

Appellants first claim that, in light of the No-fault Act, Avis is required to defend or provide insurance coverage to them in spite of the terms of the rental agreement signed by Richard H. Paterson, Sr. We disagree. An owner of a motor vehicle has the legal right to restrict the permissive use of that vehicle by third persons. See e.g., Phillips v. Henkels & McCoy, 253 Pa.Super. 512, 515, 385 A.2d 456, 457 (1978).

Avis, the owner of the vehicle, rented the vehicle to Richard H. Paterson, Sr., an agent of Ide Air, subject to the express restriction that operation of the vehicle was restricted to capable and licensed drivers who were at least twenty-one years of age. Appellants admit that Richard H. Paterson, Jr. was under twenty-one years of age at the time of the accident. While appellants attempt to frame their issues in terms of the insurance coverage responsibilities of Avis, we are not called upon to examine a policy of insurance. Rather, our task is to determine whether appellants have established that Richard H. Paterson, Jr. was driving the Avis vehicle with the expressed or implied permission of Avis.

It has been made clear that when the issue for resolution is the permissive use of a vehicle “ ‘the critical question will always be whether the named insured said or did something that warranted the belief that the ensuing use was with his consent. There must be a connection made with the named insured’s own conduct; proof of acts, circumstances and facts such as the continued use of the car, will be insufficient unless they attach themselves in some way to the acts of the named insured.’ ” Insurance Co. of North America v. State Farm Mut. Insur. Co., 266 Pa.Super. 197, 200, 403 A.2d 611, 612 (1979) quoting Belas v. Melanovich, 247 Pa.Super. 313, 324, 372 A.2d 478, 484 (1977). We are thus required to determine if appellants have shown that Avis had given some indication to Richard H. Paterson, Sr., that persons other than those expressly permitted by the terms of the rental agreement could drive the rented car. Here, the trial court found that appellants failed to sustain their burden of proof and that because the agreement specifically prohibited such bailments, Richard H. Paterson, Sr., demonstrated by execution of the rental agreement that he knew and understood that he could not permit anyone under twenty-one years of age to use the Avis car. Since the evidence provides a basis for this finding of the trial court, we will not disturb these conclusions of law on appeal.

Appellants next claim that the restrictions in the agreement upon which Avis relies cannot be given effect because Avis failed to notify Richard H. Paterson, Sr. of their existence and effect. We disagree. Our Supreme Court in Standard Venetian, Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983), held that where “the language of the contract is clear and unambiguous, a court is required to give effect to that language. In the absence of proof of fraud, failure to read the contract is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.” Id., 503 Pa. at 305, 469 A.2d at 566 (citations omitted). Our review of the rental agreement compels the conclusion that appellants are bound by the agreement signed by Richard H. Paterson, Sr. The language employed by Avis regarding “Who Else May Drive The Car” and “Liability Insurance” was plain, free of ambiguity and not susceptible to misinterpretation by Richard H. Paterson, Sr. Accordingly, the claim of appellants based upon the alleged failure of Avis to call attention to those terms of the agreement must be rejected.

Appellants also argue that the asserted inconsistency between the paragraph of the rental agreement entitled “Who May Drive the Car” and that section which is labeled “Exclusions” requires us to construe the terms of the rental agreement so as to find that the use of the car by Richard H. Peterson, Jr. was a permitted use. Appellants thus contend that liability coverage under the agreement extended to Richard H. Peterson, Jr., a permitted driver. We disagree.

The rental agreement expressly provides “Who Else May Drive the Car” and prohibits use of the vehicle by any driver under 21 years of age. The paragraph labeled “Liability Insurance” provides that “Anyone permitted by this agreement to drive the car will be protected against liability____ Such coverage will be provided by [Avis] according to the terms of a standard automobile liability insurance policy.” (emphasis added). It is true that the “Exclusion” paragraph to which appellants refer does not mention any age restriction. However, that “Exclusion” paragraph appears in a portion of the form labeled “Certificate of Insurance” which is merely a summary of the terms of the insurance policy carried by Avis. The “Certificate of Insurance” portion of the form clearly states, however, that the certificate is merely evidence of insurance under the group policy, and not the policy itself. A copy of the group policy was available for inspection at the rental office where the insurance was offered. The plain and unambiguous terms for renting the Avis car provided that the driver be at least 21 years of age, that persons under such age were not permitted by Avis to drive their car, and, thus, were not covered by Avis’ liability insurance. The fact that the exclusion clause in the “Certificate of Insurance” portion of the rental agreement does not mention an age restriction is not inconsistent with the terms of the rental agreement which expressly cover “Who Else May Drive the Car” and who is covered by the “Liability Insurance”. We, therefore, reject this claim as meritless.

Appellants further argue that the age requirement in the rental agreement is not a limitation or directed exclusion pertaining to insurance coverage but, rather, is a limitation applicable solely to permitted uses. We disagree. The trial court, upon reviewing the rental agreement, pleadings and depositions concluded that the age exclusion clause was valid and applicable to the insurance coverage which was extended only to permitted users of the vehicle. The court has properly found that the class of people entitled to insurance coverage, as unambiguously expressed in the agreement, included only persons who were permitted users under the agreement, and thus expressly excluded from the class are all drivers under 21 years of age.

Finally, appellants claim that the terms of the rental agreement which operate to restrict insurance coverage must be strictly construed against the author and in favor of coverage. While such a principle is applied in situations of ambiguity, we are required to give effect to the language of the contract where, as here, such language and terms are clear and unambiguous. Standard Venetian Blind Co. v. American Empire Insur. Co., supra, 503 Pa. at 305, 469 A.2d at 566. The contract, which expressly and clearly excludes from the class of permitted drivers all persons under the age of 21, must be construed according to the terms and conditions set forth therein. Contrary to the arguments presented by appellants, the trial court properly interpreted and applied the terms of the contract, and its decision is, therefore, affirmed.

Judgment affirmed.