author: CIRILLO, Judge:

text:
    664 A.2d 1032
    Diana G. POLLARD, Administratrix of the Estate of Thomas C. Pollard, Deceased, Appellant, v. LORD CORPORATION, A Corporation.
    Superior Court of Pennsylvania.
    Argued June 13, 1995.
    Filed Sept. 8, 1995.

      Irving M. Portnoy, Pittsburgh, for appellant.
    Peter Molinaro, Jr., Pittsburgh, for appellee.
    Before CIRILLO, FORD ELLIOTT and HESTER, JJ.
   CIRILLO, Judge:

Appellant, Diana G. Pollard, Administratrix of the Estate of Thomas C. Pollard, appeals from the trial court’s order granting appellee Lord Corporation’s preliminary objections in the nature of a demurrer and dismissing her complaint. We reverse.

Diana Pollard filed a wrongful death action against the decedent’s former employer, Lord Corporation, a manufacturer and distributor of aerospace components. Pollard alleged in the complaint that the decedent died as a result of complications from malignant nodular lymphoma, and that the disease was contracted as a result of decedent’s occupational exposure to “numerous toxic and deadly chemicals.” Pollard also alleged that the decedent’s exposure to these chemicals was due to Lord Corporation’s negligence. Pollard instituted this action under the wrongful death statute, see 42 Pa.C.S.A. §§ 5524(2) and 8301, and sought compensatory and punitive damages.

Lord Corporation filed preliminary objections to Pollard’s complaint, averring that Pollard’s sole remedy was under the Workers’ Compensation Act, 77 P.S. §§ 1 et seq. The trial court granted the preliminary objections and dismissed Pollard’s complaint. On appeal, Pollard raises one issue:

Whether the trial court erred in granting Defendant Lord Corporation’s preliminary objections in the nature of a demurrer when Lord Corporation failed to establish with certainty, under the facts set forth in Plaintiffs Complaint, that Plaintiff is entitled to recover benefits under the Workers’ Compensation Act and/or the Occupational Disease Act so as to preclude the instant action?

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court applies the same standard employed by the trial court; all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that nó recovery is possible. Where any doubt exists as to whether the demurrer should be sustained, it should be resolved in favor of overruling the demurrer. See Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Santiago v. Pennsylvania Nat. Mut. Casualty Ins. Co., 418 Pa.Super. 178, 185, 613 A.2d 1235, 1238 (1992).

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. See Pa. R.C.P. 1019; 4 Standard Pennsylvania Practice § 21:32; see also Pike County Hotels Corporation v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677 (1978) (at a minimum, the pleader must set forth facts upon which his cause of action is based). When ruling on preliminary objections, a court must generally accept as true all well and clearly pleaded facts, but not the pleader’s conclusions or averments of law. See 5 Standard Pennsylvania Practice § 25:8. See also Keirs v. Weber National Stores, Inc., 352 Pa.Super. 111, 507 A.2d 406 (1986).

Id. at 185, 613 A.2d at 1239.

Initially, we note that the trial court analyzed the applicable provisions of both the Workers’ Compensation Act (WCA), 77 P.S. § 1 et seq., and the Occupational Disease Act (ODA), 77 P.S. § 1201 et seq. The trial court determined that Pollard was unable to obtain relief under the ODA, and concluded that Pollard’s common law action in trespass was barred because she could either establish causation and recover under the WCA, effectively precluding her trespass action, or not establish causation and remain forestalled from recovery for a common law action in negligence.

The Workers’ Compensation Act (WCA) is the sole and exclusive means of recovery against employers for all injuries arising out of accidents occurring within the course of employment. 77 P.S. § 481(a). Section 481(a) of the WCA provides:

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

77 P.S. § 481(a) (emphasis added).

Similarly, the ODA also contains an exclusivity provision. See 77 P.S. § 1403. Section 1403 provides:

Such agreement shall constitute an acceptance of all the provisions of article three of this act, [footnote omitted] and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or to any method of determination thereof, other than as provided in article three of this act.[] ...

77 P.S. § 1403 (emphasis added).

Generally, a common law action is barred where the exclusivity provisions of the WCA or ODA limit the claimant’s recovery to those administrative remedies set forth in the WCA or the ODA. See Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983); Alston v. St. Paul Ins. Companies, 389 Pa.Super. 396, 567 A.2d 663 (1989), affirmed, 531 Pa. 261, 612 A.2d 421 (1992); Santiago, supra. In this case, however, the trial court has rotated the analysis, concluding, as mentioned above, that because Pollard had pled her claim beyond the terms of the ODA, and because the question of causation, if favorable to Pollard, would place her within the WCA, her trespass action, necessarily, must fail. In sum, the court found that Pollard had alleged that malignant nodular lymphoma was not listed in either the WCA or the ODA as one of the specific diseases for which recovery may be had, and had alleged that it was not a disease peculiar to the aerospace industry and thus was not an “occupational disease” within the terms of the ODA. Pollard, then, had pled herself beyond the terms of the ODA

As for the WCA, the court determined that its broader coverage encompassed any disease resulting or arising out of the claimant’s employment. As such, the court reasoned, causation would have to be established in order for Pollard to recover under the WCA. The court went on to explain that if causation was established, the exclusivity provision of the WCA would bar Pollard’s common law action; if causation was not established, then Pollard’s negligence action would also, necessarily, fail. The court rationalized, therefore, that in either scenario, Pollard would be precluded from recovery in an action based on the employer’s alleged negligence.

Pollard argues that the court’s reasoning was faulty. Pollard relies upon the Pennsylvania Supreme Court’s decisions in Greer v. United States Steel Corporation, 475 Pa. 448, 380 A.2d 1221 (1977) and Boniecke v. McGraw-Edison Co., 485 Pa. 163, 401 A.2d 345 (1979). Before reviewing these cases, we will first examine the relevant provisions of the ODA and the WCA

Section 1208 of the ODA enumerates several specific diseases which, for purposes of the ODA, are defined as “occupational diseases.” Section 1208 also provides a “catch-all” provision in subsection (n), which includes:

(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population----

77 P.S. § 1208.

Malignant nodular lymphoma is not one of the diseases enumerated in section 1208. Further, it does not fall within the catch-all provision of subsection (n). Pollard specifically avers in her complaint that the alleged occupational disease, malignant nodular lymphoma, is “a disease which is not peculiar to the aerospace component manufacturing industry or to decedent’s occupation as a maintenance mechanic and is a disease common to the general population.” Plaintiffs complaint, ¶ 10, RR. 3a. Consequently, Pollard effectively pled herself beyond the provisions of the ODA However, this fact, that Pollard is precluded from recovery under the ODA, does not bar the common law action in trespass. See Kline v. Arden H. Verner Co., 307 Pa.Super. 573, 453 A.2d 1035 (1982), affirmed, 503 Pa. 251, 469 A.2d 158 (1983) (Occupational Disease Act has application only to those diseases identified therein and was not intended to bar trespass actions brought upon diseases not covered by the Act).

We move on, then, to determine whether Pollard has pled her claim beyond the terms of the WCA Article III of the WCA provides in part:

(a) When employer and employe shall by agreement, either express or implied, as hereinafter provided, accept the provisions of article three of this act, [footnote omitted] compensation for disability or death of such employe, caused by occupational disease, arising out of and in the course of his employment, shall be paid by the employer, without regard to negligence, ...

77 P.S. § 1401. The WCA also enumerates various diseases defined as “occupational diseases” under the WCA See 77 P.S. § 27.1. This list is virtually identical to that provided in the ODA, 77 P.S. § 1208, except that the list provided in the WCA includes byssinosis. 77 P.S. § 27.1(p). Like the ODA the WCA also contains a catch-all provision which includes:

(n) All other diseases (1) to which the claimant is exposed by reasons of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population.

77 P.S. § 27.1(h).

Nodular lymphoma is not specifically enumerated in section 27.1 of the WCA. Additionally, as we have stated above, Pollard has pled in her complaint that the disease is not peculiar to the aerospace industry or to the decedent’s occupation and that it is common to the general population. At first glance, it would seem that recovery is not available under the WCA The WCA, however, is not as confining as the ODA. Section 411 of the WCA 77 P.S. § 411, defines “injury” as

... an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated, or accelerated by the injury ...

77 P.S. § 411(1) (emphasis added). Moreover, subsection 2 indicates that “injury” is not confined to the enumerated diseases or the catch-all provision. Subsection 2 states that

The terms “injury,” “personal injury,” and “injury arising in the course of his employment,” as used in this act, shall include, unless the context clearly requires otherwise, occupational disease as defined in section 108 of this act....

77 P.S. § 411(2). Thus, coverage under the WCA is broader than coverage under the ODA. In Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983), our Supreme Court explained:

Under the Occupational Disease Act, only the specifically enumerated occupational disease or diseases which pass a three-part test, 77 P.S. § 1208, bring statutory benefits for the employee and tort immunity for the employer; the Act does not intend to bar tort litigation involving diseases not covered by the Act. The Workmen’s Compensation Act, on the other hand, covers “all injuries,” and the exclusivity clause bars tort actions flowing from any work-related injury.”

Id. at 255, 469 A.2d at 160 (emphasis in original). See also Pawlosky v. W.C.A.B., 514 Pa. 450, 461, 525 A.2d 1204, 1210 (1987) (“job related aggravation of a disease is a category of ‘injury’ for compensation purposes.”).

Our Supreme Court has also stated:

[Fjailure to meet the definition of occupational disease does not exclude a claimant from compensation under the workmen’s compensation system. See Pawlosky v. W.C.A.B., 514 Pa. 450, 525 A.2d 1204 (1987). Such definitions are merely procedural means of creating a non-conclusive presumption that an injury was work-related. Failure to establish the presumption is not dispositive; the claimant may still go forward in making out a case of workmen’s compensation absent the presumption.

McCullough v. Xerox Corp., 399 Pa.Super. 135, 141, 581 A.2d 961, 964 (1990).

In the case before us, the trial court determined that the decedent’s nodular lymphoma fell within the WCA’s definition of “injury.” 77 P.S. § 411(2). Based on the following rationale, the trial court granted Lord Corporation’s demurrer to Pollard’s complaint:

We agree with the plaintiff that we are not in a position to say with any certainty whether benefits are available under the WCA. However, our inability to so decide stems from the fact that we do not know whether the plaintiff can establish a causal connection between the decedent’s disease and his employment. Either the plaintiff will be able to show that the decedent’s malignant nodular lymphoma arose from his employment and was related thereto, or she will not be able to make such a showing. If she can make the showing, then she is entitled to benefits under the WCA, and the present suit is barred. If the plaintiff cannot establish causation, then she has no remedy against the decedent’s employer, whether under the WCA or by a common law action. Either way, the plaintiff cannot state a viable common law action against this defendant.

Trial Court Opinion, pp. 20-21.

We do not agree with this reasoning. The preclusive effect of a workers’ compensation claim in a subsequent tort action is plain. See Grant v. GAF Corp., 415 Pa.Super. 137, 152, 608 A.2d 1047, 1055 (1992) affirmed, Gasperin v. GAF, 536 Pa. 429, 639 A.2d 1170 (1994) (“[T]he issue decided in the prior workmen’s compensation claims, that the decedents’ carcinoma was not related to occupational exposure, is identical to that presented in the civil action.... The preclusive effect of this determination in a subsequent tort action is clear; the element of causation is necessary to recovery in a tort action against the defendants/manufacturers.”) Notwithstanding, Pollard’s complaint is devoid of any allegation of a worker’s compensation adjudication in this matter. We are unwilling to jeopardize Pollard’s common law remedy if in fact she is precluded from recovery under the WCA. As our Supreme Court stated in Greer, supra: “[A]n attempt to bar recovery where no compensation recovery can be had might well violate Article I, Section 11, of the [Pennsylvania] Constitution.” 475 Pa. at 451-452, 380 A.2d at 1222-1223.

In Greer, the employee sought recovery from the employer in a common law negligence action, alleging that the disease was contracted in the course of employment as a result of the employer’s negligence. In its answer, the employer responded that Greer’s sole remedy was through the ODA. The employer sought judgment on the pleadings and the trial court denied the motion.

On appeal to this Court, we reversed and granted judgment for the employer. The Pennsylvania Supreme Court reversed this Court’s decision and remanded the case to the trial court, noting the following:

In the pleadings we have no assertions by either side as to whether the existence of those conditions [set forth in subdivision (n) of the ODA] can or cannot be demonstrated____ In any event, the uncertainty of this factual question makes it inappropriate for the grant of a judgment on the pleadings.

Greer, 475 Pa. at 453, 380 A.2d at 1223.

Thus, our Supreme Court found that judgment on the pleadings was unfitting in the absence of an initial administrative determination. The Supreme Court remanded to the trial court, indicating that it “may well be appropriate for the court below to grant a stay pending administrative action in accordance with the doctrine of primary jurisdiction.” Id.

Similarly, here, the complaint makes no averment with respect to the ODA or the WCA. Pollard does allege that the disease is not peculiar to the aerospace industry or to the decedent’s occupation as a maintenance mechanic. In its preliminary objections, Lord Corporation simply avers that the WCA and the ODA are a complete bar to Pollard’s cause of action. This alone is insufficient to support a demurrer. At this stage, where there is no indication that an administrative remedy has been pursued or completed, we do not believe that the law says with certainty that Pollard cannot recover under common law. There has been no final administrative determination here which would • bar the instant cause of action. Compare Grant, supra (where worker’s compensation referee determined that the decedents’ diseases were not caused by exposure in the workplace, and the decisions were appealed to the Worker’s Compensation Appeal Board and were affirmed, plaintiffs, in a subsequent tort action, were subject to collateral estoppel principles) and McCullough v. Xerox Corporation, 399 Pa.Super. 135, 581 A.2d 961 (1990), alloc, denied, 527 Pa. 624, 592 A.2d 45 (1991) (decision of referee in worker’s compensation proceedings finding that claimant’s injury was not work related, subsequently affirmed on appeal, collaterally estopped claimant from pursuing identical issue in common law tort action against employer) with Greer, supra (in employee’s common law action against employer, uncertainty of recovery under the ODA precluded judgment on the pleadings in favor of employer) and Boniecke v. McGraw-Edison Company, 485 Pa. 163, 401 A.2d 345 (1979) (material issue of fact as to worker’s compensability under Worker’s Compensation Act precluded summary judgment in common law trespass action by worker against employer on allegation that his disease was a result of employer’s failure to provide him with a safe workplace).

The trial court found that Greer was not applicable here because it was decided prior to the 1972 amendments to the WCA The trial court stated:

“Importantly, the plaintiffs cause of action in Greer was governed by the pre-1972 version of the WCA.... Thus, we do not believe Greer is at all applicable to the question of whether the instant plaintiff can be afforded statutory relief under the current WCA.”

Trial Court Opinion at p. 20. However, as our Supreme Court pointed out in Boniecke, supra,

These [amendment] provisions that were added to the Workmen’s Compensation Act to provide compensation for victims of occupational diseases are very similar to the portions of the Occupational Disease Act that were construed in Greer and, hence, the analysis we performed in the Greer case would apply here as well.[ ] Accordingly, appellants’ contention that the Workmen’s Compensation and Occupational Disease Acts are totally exclusive and deprive common pleas courts of jurisdiction over claims arising from diseases not covered by those acts is rejected.

Boniecke, 485 Pa. at 166-167, 401 A.2d at 346. We conclude, therefore, that the trial court misinterpreted Greer and Boniecke. Although the trial court correctly stated that if Pollard can recover under the WCA, her common law action does not exist, we find nothing in the pleadings which would indicate that Pollard is entitled to relief under the WCA. See Martin v. Lancaster Battery Co., Inc. et al., 530 Pa. 11, 606 A.2d 444 (1992) (The WCA does not bar a common law action against an employer for an injury which is non-compensable under the WCA, or not work-related); see also McGinn v. Valloti, 363 Pa.Super. 88, 525 A.2d 732 (1987), alloc. denied, 517 Pa. 618, 538 A.2d 500 (1988). To reiterate, there has been no adjudication of Pollard’s rights under the WCA The question of Pollard’s compensability under the WCA cannot be resolved from the pleadings. The court’s order sustaining preliminary objections and granting a demurrer was, therefore, inappropriate. See Boniecke, 485 Pa. at 167-168, 401 A.2d at 347; see also Kyle, supra.

Order reversed and case remanded for proceedings consistent with this decision. Jurisdiction is relinquished.

      . 77 P.S. § UOletseq.

      . Article 1, Section 11 of the Pennsylvania Constitution provides:
      All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
      Pa. Const., art. 1, section 11. See generally Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) (where a legal injury had previously been recognized at common law, it may be abolished by the legislature or may change and evolve over time to the point where it would no longer constitute a compensable right); see also Grant v. GAF, 415 Pa.Super. 137, 161, 608 A.2d 1047, 1059 (1992) (a legislative requirement that a claimant seek redress through an alternative procedure does not violate Article I, section 6 of the Pennsylvania Constitution “provided the right to trial by jury is available prior to a final determination of the respective rights of the parties.’’) (quoting Mattos v. Thompson, 491 Pa. 385, 390, 421 A.2d 190, 192 (1980)).

      . As our Supreme Court stated in Greer, it may be appropriate for the trial court to grant a stay pending administrative action. 475 Pa. at 453, 380 A.2d at 1223.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    664 A.2d 1038
    Constance PALMOSINA and Michael Palmosina, her husband, Appellees, v. LAIDLAW TRANSIT COMPANY, INC. and Frances M. Wilson, Appellants.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Sept. 8, 1995.

      Brennan Hart, Pittsburgh, for appellants.
    David M. Moran, Pittsburgh, for appellees.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

In this appeal, we are asked to correct a legislative oversight appearing in the initial draft of the Motor Vehicle Financial Responsibility Law. The trial court, applying literally the language of the statute and the substantive law of this Commonwealth, held that a pedestrian employee could effect a double recovery from the third party tortfeasor even though she had previously been paid benefits by her employer’s workers’ compensation carrier. After careful review, we agree with the learned trial judge that the deficiency in the statute was for the legislature to correct.

On October 6, 1989, Constance Palmosina, an employee of Mellon Bank, was struck at an intersection in Carnegie by a Laidlaw Transit bus operated by Frances Wilson. Because of injuries received, Palmosina was paid workers’ compensation benefits which included the cost of medical expenses and wages lost. In a separate action against Laidlaw Transit and Wilson, a jury awarded damages of $853,500.00 to Palmosina and $50,900.00 to her husband. Included in Palmosina’s damages were medical expenses of $205,408.56 and lost wages of $53,649.47 for which Palmosina had previously been reimbursed by workers’ compensation. On appeal from the judgment entered on the verdict, the defendants contend, inter alia, that the trial court erred when it allowed the plaintiffs to introduce evidence in their third party action of the medical expenses and lost wages which Palmosina had already recovered in the workers’ compensation claim.

Historically, workers’ compensation benefits have been considered a collateral source of recovery in a plaintiffs action against the third party tortfeasor. Zawoyski v. Pittsburgh Rys. Co., 415 Pa. 563, 566, 204 A.2d 463, 465 (1964) (evidence of plaintiffs workers’ compensation benefits properly excluded in plaintiffs personal injury suit against third party tortfeasor); Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1, 4, 10 A.2d 434, 435 (1940) (disability payments made by municipality to injured fireman should be disregarded in determining the amount of damages to which an injured plaintiff is entitled); Blatt v. C.C. Davis Constr. Co., 184 Pa.Super. 30, 32, 133 A.2d 576, 577-578 (1957) (workers’ compensation benefits immaterial in plaintiffs independent right of action for injury caused by a third party). Because the employer had a right of subrogation, double recovery generally did not occur. “Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe ... against such third party____” Workmen’s Compensation Act of June 2, 1915, P.L. 736, art. Ill, § 319, 77 P.S. § 671. Accordingly, the tortfeasor was liable to an injured employee for the full amount of any judgment, since there was no possibility of a plaintiff recovering an amount in excess of his or her damages where the employer who paid workers’ compensation benefits is subrogated to the right of employee against such third party. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 108, 465 A.2d 609, 612-613 (1983). “When a claimant recovers an award or settlement in a third party action, there comes into play [the employer’s right of subrogation.]” Creighan v. W.C.A.B. (Mellon Stuart Corp.), 154 Pa.Commw. 620, 622, 624 A.2d 680, 681 (1993).

When the legislature enacted MVFRL, however, it took away the employer’s right to be subrogated from tort recoveries in actions arising out of motor vehicle accident cases. See: 75 Pa.C.S. § 1720 (1984) (amended 1990) (repealed in part 1993). See also: Fulmer v. Pennsylvania State Police, 167 Pa.Commw. 60, 64-65, 647 A.2d 616, 618-619 (1994) (automobile accident tort recovery of claimant who received benefits under the Heart and Lung Act, which effectively replace workers’ compensation benefits for certain employees, was shielded from employer subrogation rights pursuant to 75 Pa.C.S. § 1720 (1984 and 1990 versions); Byard F. Brogan, Inc. v. W.C.A.B. (Morrissey), 161 Pa.Commw. 453, 637 A.2d 689 (1994) (applying 1984 version of MVFRL and holding employer had no right of subrogation in automobile accident case); Walter v. Kamppi, 118 Pa.Commw. 487, 545 A.2d 975 (1988) (same).

When MVFRL was enacted in 1984, it contained a provision at 75 Pa.C.S. § 1722 as follows:

In any action for damages against a tortfeasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in section 1711 (relating to required benefits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under section 1711. This preclusion applies only to the amount of benefits set forth in section 1711.

75 Pa.C.S. § 1722 (1984) (amended 1989) (amended 1990) (repealed in part 1993) (emphasis supplied).

On April 26,1989, this Section was amended to read:

In any action for damages against a tortfeasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in section 1711 (relating to required benefits) or the coverage set forth in section 1715(a)(l.l) (relating to availability of adequate limits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under sections 1711 or 1715(a)(l.l). This preclusion applies only to the amount of benefits set forth in sections 1711 and 1715(a)(l.l).

75 -Pa.C.S. § 1722 (1989) (amended 1990) (repealed in part 1993) (emphasis supplied). When the accident in this case occurred on October 6, 1989, this section of the statute was in effect. As a reading thereof suggests, the statute did not preclude recovery for workers’ compensation benefits previously paid.

However, in February, 1990, effective in July, 1990, the statute was amended and rewritten to read as follows:

In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this sub-chapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.

75 Pa.C.S. § 1722 (1990) (repealed in part 1993) (emphasis supplied).

Because the legislature could not reasonably have intended to allow a double recovery, it is argued, the omission of pre1990 language precluding recovery for workers’ compensation benefits must have been inadvertent. A similar argument was made and accepted by a federal trial court in Postorino v. Schrope, 736 F.Supp. 639 (E.D.Pa.1990). There, the plaintiff had been struck by defendant’s automobile in a parking lot in Allentown while engaged in his duties as a supermarket employee. The defendant moved to exclude at trial evidence of plaintiffs medical expenses and wage loss pursuant to 75 Pa.C.S. § 1722. The motion was granted upon the court’s determination that such preclusion was intended by the Pennsylvania legislature as a quid pro quo for elimination of the workers’ compensation carrier’s traditional right of subrogation. Postorino v. Schrope, supra at 641. Relying upon the legislature’s express intent to coordinate benefits, 75 Pa.C.S. § 1719, the court included workers’ compensation benefits within the limited scope of section 1722. See also: Hertel v. Parke, 48 Pa.D. & C.3d 456 (Lycoming 1987).

The Postorino court, however, ignored the specific language of the statute then in effect and rewrote the statute as the court believed the legislature may have intended. This was improper. As the Supreme Court opined in Commonwealth ex rel. Cartwright v. Cartwright, 350 Pa. 638, 40 A.2d 30 (1944), a court cannot supply an apparent omission in a statute even though it appears that the omission resulted from the legislature’s mere inadvertence or failure to foresee or contemplate a case in question. Id. at 645, 40 A.2d at 33. Where certain things are specifically designated in a statute, all omissions should be understood as exclusions. Commonwealth v. Charles, 270 Pa.Super. 280, 287, 411 A.2d 527, 530-531 (1979).

Moreover, by amending the statute again in 1990, the legislature reinforced that there had previously been no intent to preclude recovery for workers’ compensation benefits. “A change in the language of a statute ordinarily indicates a change in legislative intent.” Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977). See also: Haughey v. Dillon, 379 Pa. 1, 6, 108 A.2d 69, 72 (1954).

Therefore, other trial courts have chosen to follow the plain language of 75 Pa.C.S. § 1722 in effect prior to 1990 and have not precluded plaintiffs from pleading, proving and recovering amounts paid by workers’ compensation. See: Templin v. Hansford, No. 88-8998, 1990 WL 45104 (E.D.Pa.1990); Locke v. Frank, No. 86-2087, 1987 WL 5717 (E.D.Pa.1987); Sueta v. Bonafede, 5 D. & C. 4th 170 (Lackawanna 1990).

In Davish v. Gidley, 417 Pa.Super. 145, 611 A.2d 1307 (1992), the authors of both the majority and dissenting opinions believed that the legislature had intended a compensation scheme wherein a workers’ compensation carrier had no right of subrogation and a claimant in an action for damages against a third party tortfeasor was precluded from recovering medical expenses and wage loss paid through workers’ compensation. However, the discussion was imperfect because the authors relied on the 1990 amendment to the statute, and no attempt was made to determine the intent of the legislature prior to the 1990 amendment. Moreover, the discussion was dictum, for the issue to be decided was whether New Jersey or Pennsylvania law should be applied in determining whether a workers’ compensation carrier had a right of subrogation. It seems clear, therefore, that Davish v. Gidley, supra, does not determine the issue before the Court in the instant case.

We recognize that in Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995), the Supreme Court also stated that there can be no double recovery for work related injuries. Id. at-, 656 A.2d at 106. There, too, however, the issue was different, and the Court’s observations were dicta. Moreover, the Court’s observations were fully warranted in view of the 1993 amendment which amended both Sections 1720 and 1722.

Under the 1989 amendment, however, the statute does not preclude the double recovery decried by appellants, and the substantive tort law prevents a wrongdoer from taking advantage of the fortuitous existence of a collateral source of recovery. Boudwin v. Yellow Cab Co., 410 Pa. 31, 33, 188 A.2d 259, 259-260 (1963); Greenwood v. Hildebrand, 357 Pa.Super. 253, 264, 515 A.2d 963, 968 (1986). As the Supreme Court said in Vespaziani v. Insana, 501 Pa. 612, 462 A.2d 669 (1983), where a plaintiff had sustained injuries in a work-related motor vehicle accident, “the fortuity that the victim was injured while engaged in duties within the scope of employment at the time of the motor vehicle accident should not protect a third party from tort liability to a greater extent than [provided under the applicable No-Fault Motor Vehicle Insurance Act].” Id. at 619, 462 A.2d at 673.

We hold, therefore, that the trial court did not err when, in this third party tort action, it allowed recovery for medical expenses and wage losses previously recovered by the plaintiff in a workers’ compensation claim.

There is no merit in the remaining assignments of error made by appellants. The admission of photographs into, evidence is within the discretion of the trial court. Fahringer v. Rinehimer, 283 Pa.Super. 93, 99, 423 A.2d 731, 734 (1980). Our review of the record in this case discloses no abuse of discretion. See: Cervone v. Reading, 371 Pa.Super. 279, 287, 538 A.2d 16, 20 (1988); Piso v. Weirton Steel Co., 235 Pa.Super. 517, 523, 345 A.2d 728, 731 (1975) (although photographs depicted an unpleasant spectacle, they were clearly relevant to explain the nature and extent of the injuries and to illustrate the extensive treatment required).

It also was not an abuse of discretion to allow evidence of Mrs. Palmosina’s circumstances which compounded her emotional and psychological suffering. Although misfortunes occurring to other family members are generally not relevant, much must be left to the discretion of the trial court. There was no abuse of discretion in this case.

Finally, the trial court’s instructions on the duty to mitigate damages were adequate and correct. The court was not required to adopt precisely the language submitted by the appellants.

Judgment affirmed.

      . As we shall see, the legislature itself has corrected this oversight by amendment.

      . Section 1711 set forth the coverage amounts of required medical, income loss and funeral benefits. Section 1715(a)(l.l) required an insurer to make available for purchase additional coverage for extraordinary medical benefits.

      . In 1993, the legislature concurrently repealed sections 1722 (relating to preclusion of benefits) and 1720 (relating to subrogation) insofar as they relate to benefits under the Workers’ Compensation Act.


author: McEWEN, Judge:

text:
    664 A.2d 1042
    COMMONWEALTH of Pennsylvania v. Anthony RICHARDSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 4, 1995.
    Filed Sept. 8, 1995.

      Lenora M. Smith, Harrisburg, for appellant.
    Richard E. Guida, Assistant District Attorney, Harrisburg, for the Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   McEWEN, Judge:

Anthony Richardson (hereinafter appellant) has taken this appeal from the judgment of sentence to serve a total term of imprisonment of from 51 months to 102 months, imposed after a jury found him guilty of the offense of possession with intent to distribute cocaine. Appellant argues that the trial court erred when it denied his petition to suppress the contraband discovered after a search was conducted by his supervising parole officer. We are compelled to conclude that the evidence should have been suppressed.

Appellant was released on parole under the supervision of Parole Agent Steven Kissner on January 10, 1992. Six months later, on July 24, 1992, appellant was declared delinquent as a result of his failure to report to Agent Kissner as required under the terms of his parole. While a warrant was issued at that time for his arrest, it was not until three months later, on October 17, 1992, that Agent Kissner received information from the Pennsylvania State Police that appellant was staying at the Budgetel Motel in Lower Paxton Township. When Agent Kissner contacted the Lower Paxton Township Police Department, he was informed that Detective Johnson had also received information that appellant was registered at the Budgetel Motel under the alias, Anthony Moore. After confirming that appellant was in the Budgetel Motel, Agent Kissner and the Lower Paxton Township Police assisted the Dauphin County Quick Response Team in the arrest of appellant in his room at the motel. Immediately after the arrest of appellant, Agent Kissner conducted a search of the room, and observed, in plain view on the counter in the room, money, a pager, and some handwritten addresses. The agent also testified that, during his search, he found a plain brown paper bag containing seven bags of cocaine in a trash can under a desk.

After the motion to suppress the cocaine was denied, a jury, on January 11, 1994, found appellant guilty of possession with intent to deliver cocaine.

The sole issue presented by appellant in this direct appeal is whether the trial court erred when it denied his motion to suppress the 38.7 grams of cocaine found by the parole agent when he searched the motel room occupied by appellant. Two procedures compose our task as an appellate tribunal charged with a review of an order denying a motion to suppress the evidence. We must first determine whether the findings of fact of the suppression court are supported by the record, for we are bound by those findings of fact if a sound evidentiary basis for the findings exists in the record. As we do so, we must consider the evidence presented by the prosecution, and only so much of the evidence presented by the accused as remains uncontradicted by the record as a whole. Once we determine that there is a sound evidentiary basis for the factual findings of the suppression court, we proceed to the second step of a study of the legitimacy of the inferences and legal conclusions drawn by the court from those findings of fact, for we may only reverse at this stage if there is an error of law. The Pennsylvania Supreme Court reiterated these principles when it stated:

When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous. Commonwealth v. D’Amato, 514 Pa. 471, 482, 526 A.2d 300, 305 (1987). Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence. Commonwealth v. Dancer, 460 Pa. 95, 100 n. 5, 331 A.2d 435, 438 n. 5 (1975).

Commonwealth v. O’Shea, 523 Pa. 384, 394, 567 A.2d 1023, 1028 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990). See also: Commonwealth v. Campbell, 418 Pa.Super. 391, 396-397, 614 A.2d 692, 695-696 (1992), allo, denied, 535 Pa. 630, 631 A.2d 1003 (1993).

This appeal implicates, of course, the nature of the restrictions of the Fourth Amendment upon a parole officer, an issue which has been the subject of rather recent appellate scrutiny. The Pennsylvania Supreme Court in 1993, in its examination of a warrantless search conducted by parole agents who were not accompanied by police, applied the rationale of the United States Supreme Court in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and held:

[T]hat the fourth amendment [to the United States Constitution] prohibits the warrantless search of probationer's or parolee’s residences based upon reasonable suspicion without the consent of the owner or without a statutory or regulatory framework governing the search. We do so because we recognize that there are no safeguards to protect the limited fourth amendment rights of probationers and parolees if their supervision is left entirely to the discretion of individual parole officers. In the traditional fourth amendment case, the warrant requirement based upon probable cause and issued by a neutral and detached magistrate guarantees the protection of a citizen’s constitutional rights. Similarly, in the context of a probationer or parolee’s limited fourth amendment rights, some systemic procedural safeguards must be in place to guarantee those limited fourth amendment rights. In the absence of any statutory or regulatory framework, or an agreement explicitly setting out the rights of the defendant and the authority of the state to supervise the defendant, we are constrained to conclude that the actions of these parole officers violated the fourth amendment.

Commonwealth v. Pickron, 535 Pa. 241, 248, 634 A.2d 1093, 1098 (1993) (footnote omitted).

Thus, the Court, after reiterating that parole agents cannot act like “stalking horses” for the police, ruled that reasonable suspicion is not a sufficient basis for a parole agent to conduct a warrantless search, in the absence of (1) the consent of the owner, or (2) a statutory or regulatory framework which satisfies the “reasonableness” requirement of the Fourth Amendment.

The Commonwealth contends that the warrantless search in the instant case met the Pickron test because appellant had consented to the search as a condition of his parole when he signed Pennsylvania Board of Probation and Parole form PBPP-11 (Rev. 7/91) which is entitled “Conditions of Parole/Reparole” and, in relevant part, states:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.

However, this precise consent clause has already been found wanting by this Court when our venerable colleague, Judge John G. Brosky, astutely dispatched this same contention in Commonwealth v. Walter; 440 Pa.Super. 263, 655 A.2d 554 (1995):

[T]o allow searches solely on the basis of the above clause effectively negates the underlying premise of Pickron, ... [which] clearly recognized that a parolee has Fourth Amendment rights, [and] such a right would be a sham if the above clause were used as justification for a search of a parolee’s person or residence----
;): * sk ‡ ¡fc *
The consent paragraph in question provides none of the systemic procedural safeguards mentioned in Pickron. It sets forth no criteria for when a search can be conducted and does not provide any form of “neutral” review of the request to search. In short, it completely takes away those rights Pickron recognized.

This clarity of rationale precludes elaboration, and we move to consideration of whether the alternative test of Pickron has been fulfilled.

The Commonwealth does not contend that a statute or regulation rendered the warrantless search valid. Rather, the warrantless search was conducted by the parole agent pursuant to the “common practice” of parole agents as revealed during the interrogation of the parole agent by the prosecutor:

Q. Once the quick response team made entry how long thereafter did you enter the room?
A. Approximately one to two minutes after that after the room had been secured.
Q. And what did you do when you entered the room?
A. At that point I conducted a parole search. Um, I went to the far end of the room, um, I looked into a waste paper basket that was, um, underneath the desk. Um, in the waste paper basket there was a brown lunch bag. I had opened that up and, um, found seven bags of suspected cocaine, (emphasis supplied)
Q. You’ve termed that a parole search. Would that be a common practice of you and others of your department to make a search when someone’s being arrested on a parole warrant? (emphasis supplied)

A. Yes, it would be.

This Court has already wisely rejected such a basis for conducting a warrantless search when, in Commonwealth v. Alexander, 436 Pa.Super. 335, 647 A.2d 935 (1994), it applied Pickron to proscribe policy as a justification for such governmental intrusion. The Commonwealth in Alexander, supra, had argued that the search had been conducted by the probation officer pursuant to an “official policy”, albeit not in writing, of his department. Judge Brosky there opined for this Court that the mandate of the Supreme Court in Pickron, that warrantless searches may be lawfully conducted by parole or probation agents only when performed pursuant to a “statutory or regulatory framework”, meant nothing less than

legislation passed by the legislature and signed into law as well as publication in the Pennsylvania Statutes complete with a title and section number. Similarly, regulatory framework suggests to us similar introduction and passage by an appropriate state body along with publication.

Commonwealth v. Alexander, supra at 339, 647 A.2d at 938.

The purpose of the police power is, of course, the protection of the public, and that power can only be defined and conferred by the legislative branch.

... [T]he need of every society, including our free society, to provide for enforcement of its laws and thereby enable the preservation of the common weal is intrinsic to the existence of any society. That need in our society is, of course, described in constitutional parlance as the “police power”. On the other hand, the quite decisive restrictions upon the “police power” imposed by the founders and framers in the Bill of Rights bespeaks their keen awareness of the awesome nature of the “police power”.

Commonwealth v. Martinson, 368 Pa.Super. 130, 139, 533 A.2d 750, 755 (1987). There can be no room in this equation for those, upon whom the police power is conferred, to confer further power upon themselves by adoption of policy or practice which can fluctuate with the situation, the time, and even the supervisor on duty. Citizens must obey duly enacted laws. Citizens are even subject to duly adopted regulations. Surely the laws and regulations promulgated by the legislature are quite a sufficient body of authority to enable government agents to enforce the law. To allow government agents to rely, in addition, upon policy is to allow government by men and to set the stage for governmental oppression — even when the reliance of the agents is not contrived.

The anarchist claims principle as authority for his crimes. The tyrant relies upon policy as authority for oppression. In fact, policy has, through the ages, been the label most relied upon by tyrants and dictators, as well as their viceroys and agents, to justify and to beard and to disguise acts and activities for which approval is not found in the law. The term became a selected device of the tyrant since policy casts the positive reflection and image of lawfulness — as well it might, since policy was for the Romans ... ratio rei publicae gerendae — and, a few centuries thereafter, raison d’Ure de la monarchic. Constitutionality, however, is a standard which transcends the tongues of the ancients, and the perverse translations of oppressors.

These notions are the subject of contemporary debate, if not alarm. Since oppression thrives in the shadows, and flourishes in secrecy, policy is often the tool, nay the weapon, of the plainclothes police, who eschew the title of officer for that of special agent, and, as their excesses are unchecked, and they answer only to themselves, become the secret police or even, as the twentieth century history of Germany and Russia lessons, the shadow government. The debate centers, of course, on the present extent of that threat to our country.

In any event, we conclude that the warrantless search by the parole agent was an unreasonable intrusion under the Fourth Amendment.

Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

      . The Fourth Amendment to the United States Constitution provides: Unreasonable searches and seizures.

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, [emphasis supplied].


author: CAVANAUGH, Judge:

text:
    664 A.2d 1046
    In the Interest of Robert McCORD, A/K/A Abdul Garrett. Appeal of COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued June 22, 1995.
    Filed Sept. 13, 1995.

      Karen A. Brancheau, Assistant District Attorney, Philadelphia, for the Commonwealth, appellant.
    Stanley R. Krakower, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

This is a Commonwealth appeal from a preadjudication denial of its petition to certify appellee Robert McCord for trial as an adult. A single issue has been raised for our review:

Did the lower court err in denying the Commonwealth’s petition to certify defendant for trial as an adult for serious felonies committed upon his escape from a juvenile facility, solely because the judge who had presided over the misdemeanor escape case and had no authority to certify in that case, committed defendant to a juvenile facility?

For the reasons which follow, we vacate and remand for a hearing on appellee’s amenability to treatment as a juvenile.

The pertinent facts are as follows. Appellee, a minor, escaped from a juvenile facility at which he had been placed. While at large, he allegedly committed four armed robberies. He was subsequently arrested and charged with several criminal offenses relating to these alleged robberies. Following a certification hearing before the Honorable Joseph McCabe, Jr., appellee was held for court on four counts of robbery, one count of simple assault, four counts of theft by unlawful taking or disposition, four counts of theft by receiving stolen property, three counts of terroristic threats and one count of false imprisonment.

The next day, another hearing was held before Judge McCabe to determine appellee’s amenability to treatment as a juvenile. At the conclusion of this hearing, Judge McCabe denied the Commonwealth’s petition to certify appellee as an adult. Judge McCabe based his decision on an order previously issued by the Honorable Abram Reynolds, which adjudicated appellee delinquent on the escape charge, found him amenable to treatment in the juvenile court system, and committed him to the Department of Public Welfare for placement in an appropriate facility. Judge McCabe stated that he believed that he was bound by Judge Reynolds’ order, and thus, could not transfer the case for prosecution as a criminal matter. Following the entry of Judge McCabe’s order, the Commonwealth filed this appeal.

Before we can address the issue raised by the Commonwealth, we must first determine whether the appeal is properly before this Court. The Juvenile Act, 42 Pa.C.S.A § 6301 et seq., governs the transfer of a case, involving a juvenile, to criminal court. The Act provides, in pertinent part, as follows:

§ 6355. Transfer to criminal proceedings
(0 Transfer action interlocutory. — The decision of the court to transfer or not to transfer the case shall be interlocutory.

42 Pa.C.S.A § 6355(f). Both the trial court and appellee cite § 6355(f) to support their respective views that the Commonwealth’s appeal is untimely, and that, consequently, it should be dismissed. However, § 6355(f), standing alone, is not dispositive of the appealability issue now before us. Rather, it is necessary to examine the caselaw interpreting this section.

In Commonwealth v. Johnson, 435 Pa.Super. 132, 645 A.2d 234 (1994) (en banc), alloc. granted, 539 Pa. 665, 652 A.2d 836 (1994), this Court examined both § 6355(f) and caselaw governing the appealability of a transfer order, in addressing a question closely related to the one in the present appeal. In Johnson, the Court considered whether the Commonwealth could immediately appeal an order of a judge in the criminal division which transferred the case to the juvenile division of the court. The Court concluded that § 6355(f) only applied to transfers from the juvenile division to the criminal division; but nonetheless found that the order at issue in Johnson was interlocutory. The Court went on to hold that such an order was immediately appealable despite its interlocutory nature, and in doing so, stated:

The current facts are clearly distinguishable from those previously considered by the appellate courts of this Commonwealth. Thus, transfer orders like that before us must be treated differently since we are convinced that when the Commonwealth appeals an order transferring prosecution of a minor from the criminal division to the juvenile division after a juvenile adjudication and disposition has taken place, double jeopardy protections are implicated. In other words, if the Commonwealth does not immediately appeal the “interlocutory” transfer order which certifies the minor-murder-defendant for juvenile prosecution, it will be precluded by double jeopardy from “re-prosecuting” the juvenile as an adult. See, discussion, infra. An order which transfers the case from criminal to juvenile prosecution such as the one sub judice must be treated differently from its converse. Therefore, we hold that such a transfer order is an interlocutory order which is immediately appealable, since such an order terminates the “criminal” prosecution of the juvenile. Cf., Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Pa.R.App.P. 311(d), Interlocutory Appeal as of Right (“[T]he Commonwealth may take an appeal as of right from an order that does not end the entire case but where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution.”)

Id. 435 Pa.Super. at 142, 645 A.2d at 239 (emphasis in original). The Court also contemplated the identical question we must now address, and stated:

[T]he Commonwealth has never appealed an order denying transfer from the juvenile division to the criminal division. And, we question if such an appeal would not present the same double jeopardy problem as that faced herein.

Id. at 142 n. 6, 645 A.2d at 234 n. 6.

After careful review and consideration of the applicable statutory and caselaw, as well as the consequences of a Commonwealth appeal following the denial of its certification petition, we conclude that the same double jeopardy concerns at issue in Johnson are also implicated in this case. We conclude, therefore, just as the Court did in Johnson, that in these circumstances the Commonwealth may take an immediate appeal from the trial court’s transfer order.

As noted in Johnson, an appeal by the juvenile from the transfer order must be treated differently than an appeal by the Commonwealth. Where a juvenile appeals the transfer of his case to the criminal division or the denial of transfer from the criminal division, double jeopardy protections are not implicated. Such orders are, in every sense, interlocutory, and are not appealable until judgment of sentence has been entered. The defendant’s rights to contest the trial court’s transfer decision are fully preserved pending final disposition of the case, and at that time may be vindicated on appeal. Despite the fact that the defendant may not immediately appeal the transfer order, he, in essence, lives to fight another day.

The Commonwealth, on the other hand, with respect to an order which denies transfer to criminal court or grants transfer to juvenile court, is effectively deprived of review of the transfer order if it is required to wait until final disposition of the case before it may appeal. Once a defendant is the subject of an adjudication and disposition in juvenile court, principles of double jeopardy would, presumably, preclude the reprosecution of defendant as an adult. See Johnson, supra. The practical effect of not allowing the Commonwealth to immediately appeal the transfer order would be to render the trial court’s “interlocutory order,” a final order without any right of appeal. Thus, we conclude that an order denying certification of the juvenile defendant as an adult, effectively terminates the criminal prosecution of the juvenile. See Pa. R.A.P. 311(d) (Interlocutory Appeals as of Right; Commonwealth Appeals in Criminal Cases); Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (Commonwealth has right to appeal an order that does not end the entire case, but which the Commonwealth certifies will terminate or substantially handicap its prosecution). We, therefore, hold that an order, which denies transfer of the juvenile defendant’s case to criminal court, is an interlocutory order which is immediately appealable.

Having determined that the Commonwealth’s appeal is now properly before this Court, we turn to the issue raised for our consideration: whether the trial court erred in denying the Commonwealth’s petition to certify defendant as an adult, where the court’s decision was based solely on another judge’s decision in a different case.

As noted supra, Judge McCabe did not examine the merits of the Commonwealth’s petition, nor did he make a finding with respect to appellee’s amenability to treatment as a juvenile. Rather, in denying the Commonwealth’s petition, he indicated that he could not transfer the case to criminal court because he was bound by Judge Reynolds’ prior order which adjudicated appellee delinquent on the escape charge, and found him amenable to treatment as a juvenile. Judge McCabe’s reasoning was apparently based upon the well-established principle that judges of coordinate jurisdiction sitting on the same court and in the same case, may not overrule each other’s decisions in interlocutory matters. See Madden, supra 342 Pa.Super. at 126, 492 A.2d at 423; Commonwealth v. Rodgers, 413 Pa.Super. 498, 516, 605 A.2d 1228, 1237 (1992). This principle is not applicable in the present case however. Neither it nor § 6355(f) precludes a judge from making a different decision regarding the same defendant in a different case.

In Commonwealth v. Sadler, 301 Pa.Super. 228, 447 A.2d 625 (1982), we addressed the identical issue now before us. In Sadler, the defendant was charged with two unrelated robberies. Following an amenability hearing with respect to the first of these robberies, the juvenile court found defendant amenable to treatment as a juvenile, and committed him to a juvenile facility. Nearly a month later, an amenability hearing was held with regard to the second robbery. At that time, the court found the defendant not amenable to treatment as a juvenile, and transferred the case to criminal court, where defendant was subsequently convicted of several criminal offenses. The criminal court arrested judgment on defendant’ convictions, concluding, inter alia, that the juvenile court had erred in certifying defendant to criminal court, because he had already been found amenable to treatment within the juvenile system, for a similar crime which had been committed the same day as the offense for which defendant had been tried in criminal court. On appeal, we reversed, stating:

To certify a juvenile to criminal court in a noncapital case, the court must find, inter alia, that there is a prima facie case that the child has committed the offense charged, 11 P.S. § 50-325(a)(4), and that there are reasonable grounds to believe “that the child is not amenable to treatment, supervision or rehabilitation through available facilities,” Id. § 50-325(a)(4)(i) (emphasis added)). In determining amenability, the court may consider “age, mental capacity, maturity, previous record and probation or institutional reports.” Id.; Commonwealth v. Greiner, 479 Pa. 364, 369, 388 A.2d 698, 700 (1978). The juvenile court is thus required to determine whether the child is amenable at the time of the hearing on that charge. The trial court’s holding that appellee’s committing two crimes on the same day precluded the juvenile court from finding him amenable to one and not the other is untenable. The date of the commission of the crime is essentially irrelevant to the child’s amenability. Appellee was charged with two unrelated crimes for which the Commonwealth sought certification to criminal court. Because of the unavailability of a witness in the instant case, there were two separate certification hearings. That he was found amenable to treatment at the time of the first certification hearing, did not preclude the juvenile court from later determining upon a record containing additional evidence whether he was still amenable at the time of the second hearing.

Id. at 235, 447 A.2d at 628 (emphasis in original).

In the present case, the decision made by Judge Reynolds with regard to the escape case, was limited to that case, and does not affect other cases involving appellee which may come before the court. The four robberies alleged to have been committed by appellee involved different cases and different evidence. Neither these cases nor any of this evidence was before Judge Reynolds. As such, Judge McCabe was not bound by the amenability finding in the escape case, and he was required to make an independent amenability determination based on the facts presented to him in conjunction with the Commonwealth’s certification petition. See 42 Pa.C.S.A. § 6355(a)(4); Commonwealth v. McDonald, 399 Pa.Super. 250, 582 A.2d 328 (1990) (certification of a juvenile depends on a complex balancing of numerous factors). See also Commonwealth v. Lux, 299 Pa.Super. 136, 445 A.2d 185 (1982) (juvenile court may not abdicate its duty to determine if juvenile is amenable to treatment within the juvenile system); Commonwealth v. McKee, 307 Pa.Super. 12, 452 A.2d 878 (1982) (same).

Having found that the court erred in denying the Commonwealth’s certification petition solely on the basis of a prior ruling by another judge, we vacate the trial court’s order and remand the case for a de novo hearing on appellee’s amenability to treatment as a juvenile.

Order vacated. Case remanded for a hearing consistent with this Opinion. Jurisdiction relinquished.

      . We note that the defendant in Johnson was originally charged with murder and other related offenses in the criminal division of the court. Where a charge of murder has been filed, the criminal division of the court is vested with exclusive jurisdiction, and the juvenile division possesses only derivative jurisdiction by virtue of legislatively created transfer provisions. See 42 Pa.C.S.A. § 6322 (Transfer from criminal proceedings); 42 Pa.C.S.A. § 6355(e) (Murder).

      . Black’s Law Dictionary defines the term "interlocutory” as follows: Provisional; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.
      Black’s Law Dictionary p. 952 (rev. 4th ed. 1968). See also Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994) (an order is final, and not interlocutory, if it prevents a party from presenting the merits of its claim to the trial court). A transfer order which is adverse to the juvenile defendant is not a final decision of the whole controversy; nor does it foreclose retrial of the defendant as a juvenile if it is determined that the trial court abused its discretion in making the decision whether or not to transfer the case.
      As will be discussed infra, a transfer order adverse to the Commonwealth, while not "a final decision of the whole controversy,” is, in effect, a final decision regarding the propriety of prosecuting the juvenile as an adult. Although such an order is, nonetheless, still an interlocutoiy order, it possesses an aspect of finality such that we are loathe to treat it as purely interlocutory in nature.

      . We note that our decision in Commonwealth v. Madden, 342 Pa.Super. 120, 492 A.2d 420 (1985), also lends support to our decision. There, the juvenile defendant’s case was transferred to the criminal division on petition of the Commonwealth. The juvenile then filed a petition for decertification which was granted by a judge of the criminal division. The Commonwealth immediately appealed this interlocutory order. On appeal, we quashed the decertification order and reinstated the criminal information, concluding that once the case was certified to criminal court it could not be transferred back to juvenile court. As this Court later noted in Johnson, supra, the panel in Madden "sub silentio permitted an interlocutory appeal as of right from an order which effectively terminated the criminal prosecution of the minor." Johnson, supra 435 Pa.Super. at 143, 645 A.2d at 240.

      . Appellee asserts that the decision, whether to grant or deny an application to transfer the case from juvenile court to criminal court, is within the sound discretion of the hearing judge, and will not be disturbed absent a gross abuse of the judge’s broad discretion. See Commonwealth v. Morningwake, 407 Pa.Super. 129, 595 A.2d 158 (1991). We note, however, that Judge McCabe did not rule on the merits of the Commonwealth’s petition, and thus, did not exercise his discretion. Rather, Judge McCabe, in essence, concluded that he was without jurisdiction to overrule Judge Reynolds' prior order. As such, the Commonwealth's appeal presents us with a question of law and we must determine whether Judge McCabe erred as a matter of law.

      . We note that the escape charge appellee faced before Judge Reynolds was graded as a second degree misdemeanor. Pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6355(a)(4)(ii), a case involving a juvenile will only be transferred to criminal court where the delinquent act committed by the juvenile would be considered a felony if committed by an adult. Thus, Judge Reynolds' finding that appellee was amenable to treatment as a juvenile was superfluous, as, in any event, appellee could not have been transferred to criminal court on the basis of the misdemeanor escape charge.


author: CAVANAUGH, Judge: DEL SOLE, Judge,

text:
    664 A.2d 1355
    COMMONWEALTH of Pennsylvania, v. Antoine BREELAND, Appellant COMMONWEALTH of Pennsylvania, v. Robert L. COLEMAN, Jr., Appellant COMMONWEALTH of Pennsylvania, v. Brian L. FREEMAN, Appellant
    (at 16)
    (at 27)
    (at 111)
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed Aug. 3, 1995.
    Reargument Denied Oct. 13, 1995.

      Richard K. Renn, York, for Antoine Breeland, appellant.
    Eugene R. Campbell, York, for Robert L. Coleman, Jr., appellant.
    Daniel M. Pell, York, for Brian L. Freeman, appellant.

      Christy H. Fawcett, Asst. Dist. Atty., York, for Com., appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   CAVANAUGH, Judge:

On April 19,1994, appellants Antoine Breeland, Robert L. Coleman, Jr. and Brian L. Freeman were charged, by federal indictment, with distribution of crack cocaine and conspiracy to distribute crack cocaine. Also on April 19, 1994, York City Police charged appellants with criminal homicide, aggravated assault, robbery, and criminal conspiracy to commit these three offenses. The state charges arose out of a drug-related shooting incident in which one man was killed and another was seriously wounded. The case on the federal charges proceeded to trial and appellants Coleman and Freeman were found guilty on both counts; while appellant Breeland was found guilty of the distribution charge but acquitted of the conspiracy charge. Appellants all subsequently filed pretrial motions alleging that the state prosecution was barred by virtue of the federal trial, under principles of double jeopardy and/or collateral estoppel. The trial court rejected appellants’ arguments and denied relief. These consolidated appeals followed. After careful review, we affirm.

Appellants first contend that the federal verdict bars the trial of the related state offenses under principles of double jeopardy, because the same underlying facts and conduct are necessary to prove both the federal and state offenses. More specifically, appellants’ assert that because the prosecution in the federal case, introduced evidence of the drug-related shooting in order to prove the conspiracy to distribute charge, the state prosecution is barred by the double jeopardy clause, because it will be necessary to prove conduct (the drug-related shooting incident) for which appellants have already been prosecuted.

Before addressing the merits of this issue, we must first determine the scope of our double jeopardy inquiry. Appellants contend that the proper inquiry was established by the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and adopted by this Court for purposes of state double jeopardy analysis in Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc), rev’d. on other grounds, 531 Pa. 256, 612 A.2d 418 (1990). This Court has analyzed the Grady double jeopardy test and stated:

To determine whether a prosecution is barred by double jeopardy, the first prong of the inquiry requires the application of the Blockburger [v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test. Blockburger compares the statutory elements of the charged offenses to determine whether they are either identical or one is a lesser included offense of the other. If each statutory provision requires proof of an additional fact which the other does not, they are not the “same offense” under Blockburger and as such the prosecution survives the initial prong of the inquiry.
The second prong of the inquiry was established in Grady. Even if the offenses would pass muster under the Blockburger test, the Grady Court held that an additional requirement must be met to overcome a double jeopardy challenge. We must determine “[whether] the government, to establish an essential element of an offense charged in [a subsequent] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, [495] U.S. at [520], 110 S.Ct. at 2093, 109 L.Ed.2d at 564 (emphasis added) [in Yingling ].
Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169, 171 (1991) (footnote omitted).

Commonwealth v. Smith, 426 Pa.Super. 31, 33-34, 626 A.2d 178, 179-80 (1993), quoting, Commonwealth v. Mitchell, 415 Pa.Super. 227, 229, 608 A.2d 1093, 1094 (1992).

The Commonwealth counters that the United States Supreme Court specifically overruled the second or “same conduct” prong of the Grady test in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Thus, the Commonwealth maintains that a double jeopardy analysis requires only an application of the Blockburger “same elements” test.

Appellants, nonetheless, contend that the Grady “same conduct” test is applicable in the present case because: (1) the Court’s decision in Dixon has only a limited application and only nominally overruled Grady; (2) the double jeopardy clause of the Pennsylvania Constitution affords greater protections to an accused than the Federal Constitution; and (3) the “same conduct” test has been the law of this Commonwealth since our Supreme Court’s decision in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

After reviewing the applicable federal and Pennsylvania caselaw, we agree with the Commonwealth that the Block-burger “same elements” test, which was reespoused in Dixon as the only inquiry necessary under a federal double jeopardy analysis, is likewise the only inquiry necessary when performing a double jeopardy analysis in Pennsylvania. From a review of the U.S. Supreme Court’s decision in Dixon, it is abundantly clear that the Court specifically and emphatically overruled Grady, and rejected the “same conduct” test as wholly inconsistent with both earlier Supreme Court precedent and the clear common law understanding of double jeopardy. Dixon, 509 U.S. at-, 113 S.Ct. at 2860, 125 L.Ed.2d at 573. The Court also noted that the “same conduct” test espoused in Grady had proved to be unstable in application and a continuing source of confusion, and must be overruled. Id. at---, 113 S.Ct. at 2863-64, 125 L.Ed.2d at 576-77.

We also note that our supreme court has recently addressed, in Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995) (70 W.D.App.Dkt.1993, filed July 20, 1995), the applicability of the Grady “same conduct” test when performing a double jeopardy analysis. In Caufman, the court recognized that Grady had been expressly overruled by the United States Supreme Court in Dixon, that the “same conduct” test had been rejected, and that the Blockburger “same elements” test was once again the sole inquiry when performing a double jeopardy analysis. Caufman at 301, 662 A.2d at 1051. Our supreme court then addressed the merits of the case, applying only the “same elements” test. Thus, the court’s recent pronouncement undercuts appellants’ contention that the Grady “same conduct” test remains viable in this Commonwealth.

With respect to appellants’ contention that the Pennsylvania Constitution provides greater double jeopardy protection than the Federal Constitution, we likewise find no merit. Appellants neither proffer, nor are we aware, of any caselaw which establishes a higher standard in Pennsylvania, where, as here, there are successive prosecutions in different jurisdictions. Moreover, the double jeopardy provision of the Pennsylvania Constitution is essentially identical to that found in the United States Constitution; and Pennsylvania courts have not given its citizens broader double jeopardy protection than that provided by the United States Supreme Court interpreting the United States Constitution. Commonwealth v. Rosario, 418 Pa.Super. 196, 202, 613 A.2d 1244, 1247 (1992), appeal granted, 535 Pa. 646, 633 A.2d 151 (1993); Commonwealth v. Marconi, 340 Pa.Super. 463, 472 n. 8, 490 A.2d 871, 876 n. 8 (1985).

We also reject appellants’ argument that the “same conduct” test has long been the law of this Commonwealth and cannot be overruled except by Pennsylvania courts. We first note that the decision in Bolden was a nonmajority decision and thus is not binding. See Commonwealth v. Mignogna, 401 Pa.Super. 188, 585 A.2d 1 (1990) (nonmajority decisions of the supreme court are not binding).

We also further conclude that Bolden simply does not support appellants’ position. Appellants rely on the language in Bolden, that the double jeopardy clause protects against a person being harassed “by successive prosecutions for a single 'wrongful act.” Bolden, supra at 618, 373 A.2d at 97. After reviewing the language cited by appellants and the court’s holding in Bolden, we find no support for the proposition that Pennsylvania has historically applied a “same conduct” test when conducting a double jeopardy analysis. The court in Bolden held that “if a mistrial is ordered on defendant’s motion due to intentional or grossly negligent misconduct on the part of the prosecutor or the judge, reprosecution is barred by the double jeopardy clause.” Id. at 641, 373 A.2d at 109. This holding has no relevance to the existence or formulation of a “same conduct” test in Pennsylvania. With respect to the specific language relied upon by appellants, that successive prosecutions for a single wrongful act are prohibited, we reject any attempt to read into such general language the requirement of a “same conduct” test for double jeopardy purposes.

Moreover, our review of Pennsylvania caselaw dealing with double jeopardy issues reveals that our courts applied the Blockburger “same elements” test exclusively up until the time the U.S. Supreme Court handed down its decision in Grady. See Commonwealth v. Britcher, 386 Pa.Super. 515, 563 A.2d 502 (1989), aff'd, 527 Pa. 411, 592 A.2d 686 (1991) (court’s double jeopardy analysis limited to application of Blockburger “same elements” test); Commonwealth v. Swavely, 382 Pa.Super. 59, 554 A.2d 946 (1989) (court applied “same elements” test); Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (court applied Blockburger test); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982) (“same elements” test applied by court). Only after Grady did our courts follow the Supreme Court’s constitutional mandate to also conduct a second or “same conduct” test when performing a double jeopardy analysis. See Smith, supra (court applied two pronged double jeopardy analysis enunciated in Grady); Commonwealth v. Perillo, 426 Pa.Super. 1, 626 A.2d 163 (1993) (court applied two pronged Grady test); Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991) (Grady two pronged double jeopardy analysis applied by court).

Finally, we point out that it is not necessary for Pennsylvania courts to specifically overrule the “same conduct” test. See Caufman, supra. Appellants seem to assert that Pennsylvania’s acknowledgment of the U.S. Supreme Court’s mandate to apply the Grady “same conduct” test, created an independent state requirement that this test be performed when conducting a double jeopardy analysis under the Pennsylvania Constitution. The double jeopardy clause of the Fifth Amendment of the United States Constitution (along with U.S. Supreme Court decisions interpreting it) is applicable to the states through the Fourteenth Amendment. Rosario, supra, at 200, 613 A.2d at 1246. Acknowledgment of a United States Supreme Court precedent applicable to a double jeopardy analysis does not constitute an adoption of that decision for purposes of Pennsylvania Constitutional analysis. Pennsylvania courts have never held that a “same conduct” test is required under the Pennsylvania Constitution’s double jeopardy clause. See Edmunds, supra (each state may provide broader standards and go beyond the minimum protections established by the United States Constitution). Our courts have only applied the “same conduct” test because the United States Constitution required us to do so. Thus, the Pennsylvania Constitution can be said to require a “same conduct” test only insofar as such is required by the United States Constitution. When the U.S. Supreme Court overruled Grady and rejected the “same conduct” test, there no longer existed a legal or constitutional basis for applying a “same conduct” analysis. The double jeopardy protections of the Pennsylvania and United States Constitutions being coextensive, Pennsylvania is only bound to follow the minimal level of double jeopardy protection currently required by the United States Constitution — the Blockburger “same elements” test. See Caufman, supra.

We now turn to the facts of the present case. Appellants do not contend that any of the offenses in the state and federal prosecutions are identical or that they fall into the category of lesser included offenses. Appellants’ argument focused entirely on the “same conduct” prong. We view their failure to brief and argue this issue as an implicit concession that Blockburger does not bar the state prosecution. In any event, after review of the statutory definitions of each of the charges in both jurisdictions, we conclude that each charged offense requires proof of an additional fact which the charges in the other jurisdiction do not. As such, the state prosecution is not barred by Blockburger.

Appellants next contend that the state prosecution is barred by § 111 of the Crimes Code. That section provides as follows:

§ 111. When prosecution barred by former prosecution in another jurisdiction.
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.
1972, Dec. 6, P.L. 1482, No. 834, § 1, effective June 6, 1973.

18 Pa.C.S.A. § 111. In determining whether § 111 is applicable in a given case, the following inquiries are relevant:

(1) Is the prosecution the Commonwealth proposes to undertake based on the same conduct for which the individual was prosecuted by the other jurisdiction?
(2) Do each of the prosecutions require proof of a fact not required by the other?
(3) Is the law defining the state offense designed to prevent a substantially different harm or evil than the law defining the other jurisdiction’s offense?

Commonwealth v. Scarfo, 416 Pa.Super. 329, 359, 611 A.2d 242, 256 (1992) (citations omitted). It is not necessary, however, to make each of these inquiries in every § 111 analysis. This Court has stated:

If we conclude that the subsequent prosecution is not based on the same conduct as the federal prosecution, then our analysis is concluded since the statute makes clear that in such situation subsequent prosecution by the Commonwealth is not barred. If, however, we conclude the subsequent prosecution by the Commonwealth “is based on the same conduct” for which appellant was prosecuted by the federal government, the prosecution can proceed only if both of the following conditions exist: (1) each of the prosecutions requires proof of a fact not required of the other; and (2) the statute upon which the Commonwealth prosecution is based is intended to prevent substantially different harm than is the federal statute ... It would seem that an affirmative answer to the initial inquiry lowers the bar to the subsequent prosecution and that only an affirmative response to both of the remaining inquiries can lift the bar.

Id. at 359-360, 611 A.2d at 257, quoting Commonwealth v. Abbott, 319 Pa.Super. 479, 488-89, 466 A.2d 644, 649 (1983).

We begin our § 111 analysis with an examination of the first inquiry: whether the two prosecutions are based upon the same conduct. In Commonwealth v. Mascaro, we defined “the same conduct” to encompass “any and all criminal behavior committed in support of a ‘common and continuing scheme.’” Id., 260 Pa.Super. 420, 427, 394 A.2d 998, 1001 (1978). Clearly, different, conduct is at issue between the federal charge of distribution of drugs, and the state charges of homicide, aggravated assault and robbery. A more difficult question is posed as to whether different conduct is at issue with respect to the state conspiracy charges (conspiracy to commit homicide, aggravated assault, and robbery), and the federal conspiracy charge (conspiracy to distribute drugs), where the evidence related to the homicide, assault, and robbery is introduced in an attempt to prove the federal conspiracy.

“The evil against which conspiracy statutes are directed is the illegal agreement or combination for criminal purposes. Separate underlying predicate acts are merely circumstantial proof of the agreement.” Commonwealth v. Savage, 388 Pa.Super. 561, 586, 566 A.2d 272, 284 (1989) (emphasis in original). Thus, in any conspiracy charge, it will be alleged that an illegal agreement to engage in criminal activity has occurred. For purposes of a “same conduct” analysis, it is the ultimate object or purpose of that illegal agreement which will be the conduct at issue, and which may not be the same in a subsequent prosecution. The significant conduct, therefore, lies not in the predicate acts which support or establish the existence of a conspiracy, but with the actual criminal purpose (or criminal offense) which is promoted or intended to be furthered by the conspiracy.

We find support for such an analysis in Commonwealth v. Traitz, 528 Pa. 305, 597 A.2d 1129 (1991). There, our Supreme Court considered whether a prosecution for violations of the Pennsylvania Corrupt Organizations Act was barred by a prior federal prosecution for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). In examining whether the “same conduct” was at issue in both prosecutions, the Court reviewed both statutes and then stated:

It is the course of illegal conduct, not the underlying individual criminal acts, that are the focus of the two statutes. The conduct to be examined, therefore, is the conduct of an individual evincing a pattern of racketeering activity. The significance lies not with the individual offenses culminating in the pattern of racketeering activity, but in the scheme that is promoted by the pattern of racketeering activity.

Id. at 313, 597 A.2d at 1133. We believe that the same analytical framework is applicable here, as the focus of the conspiracy statute is the illegal agreement to accomplish a specific purpose, and not the underlying individual criminal acts. Thus, when reviewing a § 111 claim involving conspiracy charges, a “common and continuing scheme” will only be found where the goal or purpose of each conspiracy is the same in both jurisdictions.

Here, in the federal prosecution, the purpose of the conspiracy was clearly the distribution of illegal drugs; and the relevant conduct was appellants’ acts involved in the actual drug distribution. In the state prosecution, on the other hand, the purpose of the conspiracy was to kill, assault and/or rob two specific individuals; and the relevant conduct was the planning and execution of this plot against these two rival drug dealers. The distribution of drugs by appellants’ was only peripherally implicated in the state prosecution and was not the ultimate purpose or goal of that conspiracy. As such, we conclude that the subsequent state prosecution was based upon conduct which was different from that in the prior federal trial. Appellants’ argument is without merit, and § 111 does not bar the state prosecution.

In the final issue, appellant Breeland asserts that the state prosecution is barred by the doctrine of collateral estoppel.

“The doctrine of collateral estoppel prevents relitigation between parties of an issue where that issue has been previously decided by a competent legal forum. The doctrine is applicable to criminal prosecutions as well as to civil matters.” Commonwealth v. Wallace, 411 Pa.Super. 576, 581, 602 A.2d 345, 348 (1992). The doctrine, “which is part of the concept of double jeopardy, requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant.” Commonwealth v. Wharton, 406 Pa.Super. 430, 432, 594 A.2d 696, 697 (1991) (emphasis in original) (citations omitted).

Smith, supra at 36, 626 A.2d at 181. In determining whether collateral estoppel applies from a general verdict of acquittal, the United States Supreme Court has stated:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.”

Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475-6 (1970); see also Commonwealth v. Schomaker, 501 Pa. 404, 461 A.2d 1220 (1983).

Appellant Breeland contends that because the jury acquitted him of the federal conspiracy charge, it necessarily concluded that he was not involved and/or not guilty of the homicide/assault/robbery charges, which had been introduced as proof of the conspiracy. As such, Breeland maintains that collateral estoppel bars his subsequent prosecution on these charges in state court.

After reviewing the record of the federal trial, we conclude that collateral estoppel does not bar the subsequent state prosecution. Breeland was acquitted of the federal conspiracy charge. The jury, however, could have based its verdict on a finding that there was simply no agreement between appellant and his alleged co-conspirators. If the jury did, in fact, so conclude, it would not have been necessary for it to make any determinations, with regard to any of the underlying evidence which was offered to prove the conspiracy charge. As such, this final argument lacks merit.

We have reviewed and found meritless the arguments raised by appellants. The offenses charged by the Commonwealth in the subsequent state prosecution (homicide, aggravated assault, robbery, and conspiracy to commit these three offenses) are not barred by double jeopardy, § 111 of the Crimes Code, or collateral estoppel. We, therefore, affirm the lower court’s order which denied appellants’ pretrial motion to dismiss the state charges on these grounds.

Order affirmed.

McEWEN, J. concurs in the result.

DEL SOLE, J. files a Concurring Statement.

DEL SOLE, Judge,

concurring:

I join the decision of the Majority but wish to reiterate that, for the reasons expressed in footnote 3 at page 6, we are making no determination on the issue of double jeopardy pursuant to our state’s Constitution.

      . The Commonwealth has filed a motion to quash this appeal, in accordance with Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), on the ground that appellants' claim is frivolous. "Pretrial orders denying double jeopardy claims are final orders for purposes of appeal.” Commonwealth v. Haefner, 473 Pa. 154, 156, 373 A.2d 1094, 1095 (1977). Under Brady, however, an appeal from a motion to dismiss on double jeopardy grounds will be quashed where the trial court has considered the motion and made a written finding that the motion is frivolous. Brady at 346, 508 A.2d at 291. Absent such a finding, the appeal will be heard. Id. Here, the trial court, although it denied relief on the double jeopardy issue, has not made a written finding that the double jeopardy issue is frivolous. Therefore, we will entertain the appeal, and the motion to quash is denied.

      . We note that the Grady test was not adopted by this Court in Labelle, in the sense that we chose to follow the Supreme Court’s decision. Decisions of the United States Supreme Court interpreting federal constitutional provisions, provide the minimum degree of constitutional protection which must be afforded a criminal defendant, and are equally applicable to analogous state constitutional provisions. Commonwealth v. Edmunds, 526 Pa. 374, 388, 586 A.2d 887, 894 (1991). Thus, the Grady test was a constitutional mandate, and this Court could not simply accept or reject that test as we saw fit. We recognized this fact in Labelle. Appellants misstate our double jeopardy analysis in that case when they represent that we simply adopted the Grady test.

      . We note that where a party contends that a provision of the Pennsylvania Constitution provides greater protection than a corresponding provision of the United States Constitution, the parly must brief and analyze at least the following four factors:
      1) the text of the Pennsylvania constitutional provision;
      2) the history of the provision, including Pennsylvania caselaw;
      3) related caselaw from other states;
      4) policy considerations, including unique issues of state and local concern, and their applicability within modem Pennsylvania jurisprudence.

        Edmunds, supra at 390, 586 A.2d at 895. Here, appellants have failed to brief or analyze these factors. Where an appellant has not complied with the requirements of Edmunds, and has made no attempt to explain how the protections afforded by the Pennsylvania Constitution differ from the protection afforded by the United States Constitution, this Court has declined to consider a state analysis. Commonwealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991 (1994); Commonwealth v. Lucas, 424 Pa.Super. 173, 622 A.2d 325 (1993). Thus, we find that appellants have waived this argument and we will not consider its merits.

      . Even if we were required to apply the "same conduct” test as part of a double jeopardy analysis, we would conclude that the conduct at issue in the state prosecution, was not the same conduct for which appellants had already been prosecuted in federal court. In applying the "same conduct” test, the U.S. Supreme Court cautioned that, “[It] is not an 'actual evidence’ or 'same evidence’ test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.” Smith, supra, quoting, Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Thus, for purposes of a “same conduct” inquiry, it is simply not relevant that the prosecution in the federal trial, proffered evidence of the drug-related shooting incidents to prove the federal charges. The specific conduct at issue in the federal trial was the distribution of drugs and the conspiracy to distribute drugs by appellants. In the state prosecution, the specific conduct at issue was the murder, assault and robbery (and conspiracy to commit these offenses) in which the appellants were involved. Although the appellants' drug operation was peripherally related to the state charges, that conduct was not directly at issue in the state prosecution. Moreover, the conduct which was the focus of the state prosecution, (murder, assault, and robbery) was not conduct for which appellants had previously been prosecuted. Therefore, even were the "same conduct” test still applicable in this Commonwealth, the double jeopardy clause would not bar the subsequent state prosecution.

      . Although it is not necessary to review the remaining § 111 inquiries, we will briefly address both questions. First, the offenses in each prosecution required proof of a fact not required in the other. We have already so determined in our resolution of appellants' double jeopardy claim supra. With respect to the final inquiry, we find that the laws defining the offenses in each prosecution address substantially different harms or evils. Compare Commonwealth v. Wetton, 537 Pa. 100, 641 A.2d 574 (1994) (federal drug charges are designed to further the governmental interest in eliminating the pervasive drug trafficking network in our society) with Scarfo, supra (state charges stemming from violent acts directed against an individual, such as murder, are designed to deter physical invasions' against individual citizens and protect the public safety). Thus, even if it were necessary to reach these two inquiries, we would conclude that there is no merit to the contention that the state prosecution is barred by § 111.

      . Appellants Freeman and Coleman have not raised collateral estoppel as an issue in this appeal. Unlike Breeland, they were both convicted of each charge they faced in federal court. Thus, they cannot now contend that there was an ultimate fact which was established in their favor in the former prosecution.