author: CERCONE, Judge:

text:
    603 A.2d 654
    DeEtte ENGLE v. Terry D. ENGLE v. Russell ENGLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed Feb. 26, 1992.

      David S. Pollock, Pittsburgh, for appellant.
    Henry A. Hudson, Jr., Greensburg, for DeEtte Engle, appellee.

      Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is a certified appeal from an interlocutory order of the Court of Common Pleas of Westmoreland County, dismissing appellant Russell Engle’s preliminary objections as to personal jurisdiction and ordering his joinder as an additional party defendant. For the reasons set forth below, we vacate the order of the trial court and remand for proceedings consistent with this opinion.

The present case originated as a complaint for divorce filed by appellee, DeEtte Engle, against Terry Engle, the defendant in the case below (hereinafter “Engle”). Appellee and Engle were married in Chicago, Illinois, in 1979. In the spring of 1981, they moved to Georgia where Engle worked for the Phoenix Group Company, a Georgia general partnership (Phoenix Group). Engle’s employment with Phoenix Group terminated about four months later. About the same time, Engle executed an “Agreement for Sale of Partnership Interest” (termination agreement) with Phoenix Group. In the termination agreement, Engle agreed to terminate his partnership interest in Phoenix Group for an amount not to exceed one hundred sixty-nine thousand, six hundred and seven dollars ($169,607.00). The termination agreement stated that “[Engle] is entitled, upon the sale or refinancing of various apartment projects, to an interest in the net proceeds after sale or refinancing, hereinafter called ‘residual proceeds’____”

The Engles moved to Pennsylvania in 1985. In September, 1986, Terry Engle telephoned his brother, the appellant herein, at his residence in Michigan. In the course of their conversation, Engle stated that his business was experiencing financial difficulties. In order to raise money, Engle offered to assign his interest in the residual proceeds promised in the termination agreement. Appellant offered to pay Engle twelve thousand dollars ($12,000) in exchange for the assignment.

In the next month, appellant and Engle engaged in one or two telephone conversations concerning the transaction. Engle forwarded an assignment agreement to Phoenix Group in their Florida office seeking their consent. The agreement contained the following clause which allowed for future cancellation of the assignment: “This Assignment of residual proceeds is to remain in effect until cancelled by RUSSELL E. ENGLE and TERRY ENGLE by mailing such cancellation notice by Certified Mail, Return Receipt Requested, to the PHOENIX GROUP COMPANY.” On October 14, 1986, Lester N. Garripee, a senior partner with Phoenix Group, consented to Terry Engle’s assignment. Phoenix Group forwarded the agreement to appellant, who signed the agreement, and mailed copies to “everybody else so everybody got a copy.” N.T. 11/9/90 at 46. Finally, appellant sent Engle a check for twelve thousand dollars ($12,000) by either mail or Federal Express.

The Engle’s separated in October, 1987, and in February, 1988, appellee filed for divorce in the Court of Common Pleas of Westmoreland County. In the meantime, appellant received forty-five thousand dollars ($45,000.00) in residual proceeds from the sale of a property listed on the termination agreement. Appellee subsequently filed a petition to set aside the 1986 assignment, and to join appellant as an additional defendant in the divorce proceeding. Appellant filed preliminary objections challenging the lower court’s jurisdiction which the trial court overruled. This timely appeal followed.

When sustaining a preliminary objection would result in dismissal of an action, the objection should be sustained only in cases which are free from doubt. Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d 323, 332 (1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984). In deciding whether to sustain or deny preliminary objections as to jurisdiction, the court must consider the evidence in the light most favorable to the non-moving party. Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989). After reviewing the evidence in the present case in such a light, we cannot conclude that the evidence supports the lower court’s denial of appellant’s preliminary objections.

A court may exercise in personam jurisdiction over a nonresident if (1) jurisdiction is conferred by the state long-arm statute; and (2) the exercise of jurisdiction under the statute meets the constitutional standards of due process. Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 592, 492 A.2d 23, 24 (1985). Under Pennsylvania’s long-arm statute, “[jurisdiction of the Pennsylvania courts may be exercised with respect to all persons, including corporations, ‘to the fullest extent allowed under the Constitution of the United States.’ 42 Pa.C.S.A. § 5322(b)” Eastern Continuous Forms v. Island Business Forms, 355 Pa.Super. 352, 354, 513 A.2d 466, 467 (1986) (quoting Slota v. Moorings, Ltd., 343 Pa.Super. 96, 101, 494 A.2d 1, 3 (1985)). Therefore, our controlling consideration is whether subjecting the nonresident appellant to suit in Pennsylvania would deprive appellant of his constitutional right to due process. Hewitt v. Eichelman’s Subaru, Inc., supra, 341 Pa.Super. at 592, 492 A.2d at 24; Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 194, 479 A.2d 500, 505-06 (1984); Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 567, 426 A.2d 635, 640 (1980).

The Due Process Clause of the Fourteenth Amendment to the United States Constitution allows personal jurisdiction over a nonresident defendant where the defendant has “certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)].” Eastern Continuous Forms, 355 Pa.Super. at 355, 513 A.2d at 467 (quoting Calder v. Jones, 465 U.S. 783, 787, 104 5. Ct. 1482, 1486, 79 L.Ed.2d 804 (1945) in turn quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). Specifically, this court must analyze whether appellant’s conduct and connection with Pennsylvania are such that he should reasonably anticipate being “haled” into court here. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). “[I]t is essential in each case that there be some act by which the defendant purposely avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Barber v. Pittsburgh Corning Corp., supra, 317 Pa.Super. at 293, 464 A.2d at 327-28 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)).

It is well-settled that even a single act may support jurisdiction, “so long as it creates a ‘substantial connection’ with the forum, provided the nature, quality and circumstances of the act’s commission create more than a mere attenuated affiliation with the forum.” C.J. Betters v. Mid South Aviation, 407 Pa.Super. 511, 518, 595 A.2d 1264, 1267 (1991). However, a party’s contract with an out-of-state individual cannot alone establish sufficient contacts with the forum state. Kenneth H. Oaks, Ltd. v. Josephson, supra, 390 Pa.Super. at 106, 568 A.2d at 217. In addressing the jurisdictional dilemma created by interstate contractual obligations, the United States Supreme Court has held that “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other state for the consequences of their activities.” Id., 390 Pa.Superior Ct. at 106, 568 A.2d at 217 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985)). The court must evaluate the party’s “negotiations prior to the contract, its contemplated future consequences, the terms of the contract and the parties’ actual course of dealing in determining whether the defendant ‘purposefully availed] [himself] of the privilege of conducting activities within the forum State.’ ” Burger King Corp., supra, 471 U.S. at 474-75, 105 S.Ct. at 2183 (quoting Hanson v. Denckla, supra, 357 U.S. at 253, 78 S.Ct. at 1240 Once minimum contacts with the forum state are established, those contacts may be considered in light of other factors to determine whether the exercise of personal jurisdiction will comport with fair play and substantial justice. Kenneth H. Oaks, Ltd. v. Josephson, supra, 390 Pa.Super. at 106, 568 A.2d at 217.

Under Kenneth H. Oaks, Ltd. v. Josephson, supra, we must view the facts of the present case in the light most favorable to appellee. Our scrupulous review of the record discloses that appellant, a Michigan resident, conducted contract negotiations which solely consisted of two or three telephone conversations with Engle in Pennsylvania. The “asset” of the transaction, a future right to “residual proceeds” from the sale of out-of-state real properties, was sold two years prior to the commencement of the divorce action.

Keeping in mind our standard of review, Barber v. Pittsburgh Corning Corp., supra, we conclude that the question of Pennsylvania’s in personam jurisdiction over appellant is free from doubt. Appellant’s contacts with Pennsylvania, two or three isolated telephone conversations with defendant in Pennsylvania, his purchase of defendant’s right to residual proceeds from the sale of out-of-state real property, and the transfer of payment, do not establish sufficient contact and connection with Pennsylvania that appellant could reasonably anticipate being brought into court here. See World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 297, 100 S.Ct. at 567 (“defendant’s conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there”). Appellant did not enter into protracted negotiations for defendant’s asset, nor did he create a continuing relationship or obligation with defendant, or any other resident of Pennsylvania. See Kenneth H. Oaks, Ltd. v. Josephson, supra, 390 Pa.Super. at 106, 568 A.2d at 217 (court must look to negotiations prior to contract, the contract’s contemplated future consequences, terms of contract, and course of dealing in determining whether defendant purposefully availed himself of the privilege of conducting activities within the forum). Notwithstanding the cancellation provision in the assignment agreement, appellant was under no further obligation to defendant after payment.

For the foregoing reasons, an attempt to subject appellant to in personam jurisdiction in the Pennsylvania courts would offend both the Pennsylvania long-arm statute and procedural due process. Because the trial court does not have in personam jurisdiction over appellant, he must be dismissed as a litigant.

The order of the trial court dated May 15,1991 is vacated, and appellant is dismissed. The case is remanded to the trial court; jurisdiction is relinquished.

      . After denying the preliminary objections, the trial court certified, pursuant to Pa.R.A.P., Rule 311(b)(2), 42 Pa.C.S.A., that a substantial issue of jurisdiction was presented. Therefore, the matter is properly before us for resolution at this time.

      . It is not clear from the record how or when Engle acquired a partnership interest in Phoenix Group Company.

      . The Agreement for Sale of Partnership Interest lists nine properties located in the following states: Illinois, Florida, North Carolina, Kentucky, Ohio, Indiana and Georgia.

      . Under the partnership agreement, Engle cannot assign his right without the prior written consent of the Phoenix Group Company.

      . 42 Pa.C.S.A. 5322.

      . Pennsylvania has adopted a more flexible, minimum contacts analysis of jurisdictional due process. Previously, the analysis had been performed by applying the three part test first announced in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974). Under this analysis, the defendant must have purposefully availed himself of the privilege of acting within the forum state, thus invoking the state’s benefits and protections. Next, the cause of action must have arisen from the defendant’s activities within the state. Finally, the defendant must have had a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable. Id. Now, however, Pennsylvania courts are following the dictates of the United States Supreme Court that in personam jurisdiction may not turn on the application of a mechanical test. See Burger King v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    603 A.2d 659
    Harry C. WILKINSON and Patricia Wilkinson, h/w, Appellants, v. K-MART.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1991.
    Filed Feb. 26, 1992.

      Joseph S. Viola, Feasterville, for appellants.
    Thomas L. Delevie, Philadelphia, for appellee.
    Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order entered on May 22,1991 granting appellee K-Mart Corporation’s motion for summary judgment and dismissing all claims against K-Mart with prejudice. Appellants, Harry and Patricia Wilkinson, raise the following issues:

The Court of Common Pleas improperly granted defendant’s motion for summary judgment as there exists numerous unresolved material factual issues.
K-Mart argues that by giving directions to Harry Wilkinson and controlling his day to day operations it employs Harry Wilkinson as a “borrowed servant.” However caselaw confirms that Harry Wilkinson is an independent contractor because K-Mart does not control his manner of performance.
According to the agreement between K-Mart and Transco Logistics Corporation, Harry Wilkinson is deemed an employee of Transco; K-Mart argues contra. Harry Wilkinson is not a “borrowed servant” because he possesses skills and special training and required no instruction on how to perform his duties; he is an independent contractor.

Appellant’s Brief at 2. For the following reasons, we affirm.

Appellant Harry Wilkinson was employed by Transco Logistics Corporation (hereinafter “Transco”) and was operating a truck for appellee K-Mart Corporation (hereinafter “K-Mart”) pursuant to a contract which existed between Transco and K-Mart. On July 8, 1985, Mr. Wilkinson was injured when the parcels in his truck fell forward while he was unloading the truck. On July 7, 1987, the Wilkinsons filed a complaint in trespass against K-Mart, alleging that K-Mart was negligent in its loading of the truck. K-Mart filed a motion for summary judgment, asserting that it was Mr. Wilkinson’s statutory employer under the borrowed servant doctrine of the Pennsylvania Workmen’s Compensation Act. On May 22, 1991, summary judgment was entered in favor of K-Mart dismissing the Wilkinsons’ claims. This timely appeal followed.

Our standard of review of an order granting summary judgment is well-settled:

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 103-04, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgement as matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A.; Hatter v. Landsberg, [386 Pa.Super. 438, 440, 563 A.2d 146, 147-48 (1989) ]. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434-35, 567 A.2d 680, 682 (1989).

The Wilkinsons’ first contention is that the trial court erred in entering summary judgment because there existed numerous unresolved material issues of fact. However, they do not specifically state what the issues of fact are. Instead they argue that Mr. Wilkinson was not a borrowed servant of K-Mart for purposes of workmen’s compensation. This is an issue of law, not of fact.

The issue of whether an employer is a “statutory employer” for purposes of the Workmen’s Compensation Act is properly the subject of a motion for summary judgment, as “whether the facts as they are determined to exist constitute an employment relationship is strictly a question of law.” Keller v. Old Lycoming Twp., 286 Pa.Super. 339, 345, 428 A.2d 1358, 1361 (1981). See also English v. Lehigh County Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981). Accordingly, we interpret the Wilkinsons’ contention to be that the trial court reached an erroneous legal conclusion when it granted summary judgment. We disagree.

Under the Workmen’s Compensation Act, the term “employer” and “employee” are synonymous with “master” and “servant”. Cookson v. Knauff, 157 Pa.Super. 401, 404, 43 A.2d 402, 405 (1945). The test for determining the identity of the “true” master when a servant has been loaned to another focuses on the right of control:

The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it. [citation omitted]
A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not. [Citations omitted; emphasis in the original] Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953).

Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 314, 448 A.2d 1054, 1058 (1982) (emphasis in original).

“Although opinions considering the matter frequently mention such items as which employer actually hired the servant, and which paid his wages, and which issued his W-2 Form, these are peripheral matters and not controlling.” Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 314, 448 A.2d 1054, 1058 (1982) (citing English v. Lehigh Co. Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981) and cases cited therein). Rather, “[t]he true measure remains the common law definition of the master-servant relationship ‘... whether ... he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.’ ” Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 314, 448 A.2d 1054, 1059 (1982) (quoting Puhlman v. Excelsior Express and Standard Cab Co., 259 Pa. 393, 103 A. 218 (1918)). Accordingly, we must now determine whether Transco or K-Mart retained control of the work and its manner of performance.

In the instant case, Mr. Wilkinson drove trucks for K-Mart pursuant to a contract between Transco and K-Mart. Under this contract, K-Mart reserved the right to “dispatch, direct the loading and unloading of vehicles, select routes, direct the drivers as to pick-ups, deliveries and other matters related to day-to-day operations of vehicles.” Contract, July 3, 1979 at 2. K-Mart employees dispatched the drivers and chose their routes. See Deposition of Wilkinson, December 19, 1989 at 8-9. Furthermore, the trucks were owned by K-Mart and bore the K-Mart logo. Mr. Wilkinson delivered only K-Mart cargo, which was already loaded onto the truck when he reported to work at the K-Mart warehouse. Moreover, at the time of the accident, Mr. Wilkinson was paid by K-Mart check, and, pursuant to the K-Mart-Transco contract, K-Mart was billed for the cost of Workmen’s Compensation, F.I.C.A. taxes, Pennsylvania unemployment taxes, and federal unemployment taxes.

The Wilkinsons rely on a line of cases holding that the leasing of equipment with operators does not fall within the borrowed servant doctrine. See Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953); Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054 (1982). The Wilkinsons assert that there is no meaningful distinction between these cases and the instant situation. Many cases have found that the leasing of equipment with operators does not fall within the doctrine of borrowed servant for purposes of the Workmen’s Compensation Act. However, the instant case involves the leasing of operators without equipment. This court has found this distinction meaningful. For example, in Ashman we stated that “plaintiff here was supplied in conjunction with the equipment he drove. Under Pennsylvania law, this is a significant distinction.” Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054, 1058 (1982); see also Supp v. Erie Ins. Exchange, 330 Pa.Super. 542, 479 A.2d 1037 (1984) (driver who is leased without equipment is employee of lessee for purposes of Workmen’s Compensation Act when lessee had power and right to control drivers work-related activities and manner of performance). Both Ashman and Mature emphasize the fact that the equipment was leased with the operator.

In the case of Lego v. Workmen’s Compensation Appeal Board, 66 Pa.Commw. 593, 445 A.2d 1324, 1326-1327 (1982), the court held that even in a case where the equipment is leased with an operator, the borrowed servant doctrine will apply when the lessee had the right to control the work to be done and also the manner of performing it. Thus, the issue of control remains the crucial test. “The right to instruct a driver as to the route to take indicates the presence of the right to control the manner of performing the driver’s work.” Id., 66 Pa.Commw. at 599, 445 A.2d at 1327 (1982) (citing Martin Trucking Co. v. Workmen’s Compensation Appeal Board, 30 Pa.Commw. 367, 373 A.2d 1168 (1977)). Moreover, the court found that the presence of the lessee’s logo on the side of the tractor raised a rebuttable presumption that “the one to whom the logo refers is the employer of the operator.” Lego 66 Pa.Commw. at 600, 445 A.2d at 1327 (citing Fullerton v. Motor Express Inc., 375 Pa. 173, 100 A.2d 73 (1953)).

In the instant case, Mr. Wilkinson testified that K-Mart not only controlled the work to be done, but also controlled the manner of performance by selecting the routes to be used. In addition, all the trucks supplied by K-Mart bore the K-Mart Corporation Logo. Thus, we find that Mr. Wilkinson was a borrowed servant because of the control over his work exercised by K-Mart.

The Wilkinsons next contend that the contractual provision which states, “[w]hereas, Lessor (Transco) is desirous of supplying qualified drivers, who are employees of Lessor, to K-Mart ...” conclusively establishes that appellant remained the employee of Transco. See Contract, July 3,1979 at 1 (emphasis added). In light of the recent case of Red Line Exp. Co. v. W.C.A.B.(Price), 138 Pa.Commw. 375, 588 A.2d 90 (1991), we disagree. In Red Line, the lease at issue stated that the employee was to remain an employee of the lessor. However, the court held that “[ajlthough the provisions of the lease tend to indicate that the Claimant was to remain an employee of Princeton, the determining factor is the actual conduct of the parties and whether Red Line actually had the power to control Claimant’s work and manner of performance.” Id. at 383, 588 A.2d at 94 (emphasis added). Thus, this contention is without merit.

Lastly, the Wilkinsons contend that the borrowed servant doctrine does not apply in cases where the borrowed employee is a specially skilled professional. They rely on Accountemps v. W.C.A.B. (Myers), 120 Pa.Commw. 489, 548 A.2d 703 (1988) to argue that an employee in possession of special skills or training cannot become a borrowed servant. However, they misinterpret the holding of that case. The court in Accountemps held that the borrowing employer did not exercise the control necessary to invoke the borrowed servant doctrine. One factor the court considered was that the employee that was “borrowed” was an accountant who possessed a highly specialized skill. The court stated that “[w]hile Myers had to be told what accounting system Spectrum Arena was using, she did not have to trained nor instructed in how to perform the basic job.” Id., 120 Pa.Commw. at 494, 548 A.2d at 706. In the instant case, we have already determined that K-Mart maintained control over Wilkinson as to the manner of performance. Consequently, we do not find Accountemps controlling.

In conclusion, the testimony and evidence on the issue of control was uncontroverted and as such the Wilkinsons’ assertions are strictly questions of law. For the foregoing reasons, we agree with the trial court’s conclusion that K-Mart exercised sufficient control to make it the statutory employer of Mr. Wilkinson for purposes of the Workmen’s Compensation Act. Thus, we affirm the order below.

Order affirmed.

      . Section 481 of the Workmen’s Compensation Act, in relevant part, provides:
      (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employer, 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.
      77 Pa.C.S.A. § 481.


author: WIEAND, Judge:

text:
    603 A.2d 663
    Karl M. KOTOVSKY and Sharon M. Kotovsky, his wife, Appellants, v. SKI LIBERTY OPERATING CORPORATION, t/d/b/a Ski Liberty, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Feb. 27, 1992.
    Petition for Allowance of Appeal Denied July 1, 1992.

      Richard C. Angino, Harrisburg, for appellants.
    Hugh M. Emory, Paioli, for appellee.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   WIEAND, Judge:

While participating in the second heat of a downhill ski race, Karl Kotovsky failed to negotiate a turn at the fourth gate and collided with a wooden fence post situated along the side of the course. As a result of this accident, he received serious injuries. Alleging negligence in failing to pad the post, Kotovsky and his wife, Sharon, commenced an action for damages against Ski Liberty Operating Corporation (Ski Liberty), the owner of the slope. In its answer to the complaint, Ski Liberty pleaded two exculpatory agreements and releases which Kotovsky had executed prior to participating in the downhill ski race. By the terms of these agreements and releases, which Kotovsky admitted, he expressly assumed the “risks, conditions and hazards which may occur whether they now be known or unknown.” He also released the ski area, as well as the promoters, sponsors, organizers and others, “from any and all liability, whether known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above.” Because of these exculpatory agreements and releases, the trial court entered judgment on the pleadings in favor of Ski Liberty. The plaintiffs appealed.

The standard for reviewing a judgment on the pleadings was stated in Lyon v. Nationwide Ins. Co., 390 Pa.Super. 25, 567 A.2d 1100 (1989), as follows:

In reviewing an order granting judgment on the pleadings, we must limit our consideration to the facts set forth in the pleadings, such as the complaint, answer, reply to new matter and relevant documents, and accept as true all of the well-pleaded allegations of the party against whom the motion is granted. Aughenbaugh v. North American Refractories, 426 Pa. 211, 231 A.2d 173 (1967); Keystone Automated Equipment Co., Inc. v. Reliance Insurance Co., 369 Pa.Super. 472, 535 A.2d 648 (1988), allocatur denied, 519 Pa. 654, 546 A.2d 59 (1988); Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 514 A.2d 576 (1986); Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984); Eberhart v. Nationwide Mutual Insurance Co., 238 Pa.Super. 558, 362 A.2d 1094 (1976). Judgment on the pleadings is proper only when no material facts are in dispute. Groff v. Pete Kingsley, 374 Pa.Super. 377, 543 A.2d 128 (1988); Vogel v. Berkley, 354 Pa.Super. 291, 511

A.2d 878, 880 (1986), citing Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984); Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). “In reviewing the court’s decision, we must determine if the action of the court was based on a clear error of law or whether there were facts disclosed by the pleading which should properly go to the jury. The decision will be affirmed only in cases which are clear and free from doubt.” Groff, supra 374 Pa.Super. at 382, 543 A.2d at 130, quoting Vogel, supra 354 Pa.Super. at 296, 511 A.2d at 880. Judgment on the pleadings may be appropriate in cases which turn upon the interpretation of a written agreement. Vogel, supra 354 Pa.Super. at 296, 511 A.2d at 880; Gallo, supra 328 Pa.Super. at 270-71, 476 A.2d at 1324, quoting DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 546, 456 A.2d 1066, 1070 (1983).

Id., 390 Pa.Superior Ct. at 26-27, 567 A.2d at 1101. (footnote omitted).

Downhill skiing is a dangerous activity. Downhill racing is even more dangerous. In recognition of the hazardous nature of such activity, the legislature has expressly provided that assumption of the risk shall be a complete defense to actions for downhill skiing injuries. See: 42 Pa.C.S. § 7102(c).

In the instant case, appellant was an experienced skier, who was well acquainted with the hazards of downhill racing. Indeed, he had previously skied on the same slope on which he received his injuries. Despite this knowledge, he expressly agreed to assume the risk of injury and released the owner and operator of the slope from all liability, even that which might result from negligence.

In Zimmer v. Mitchell and Ness, 253 Pa.Super. 474, 385 A.2d 437 (1978), aff'd, 490 Pa. 428, 416 A.2d 1010 (1980), the Superior Court laid down the following standards for a valid exculpatory agreement.

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction. In the instant case the validity of the agreement is apparent. However, to be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

Id., 253 Pa.Superior Ct. at 478, 385 A.2d at 439, citing Employers Liability Assurance Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966). See also: Kotwasinki v. Rasner, 436 Pa. 32, 38-39, 258 A.2d 865, 868 (1969).

The agreement in the instant case was not one of adhesion. Appellant was not required to enter the contract, but did so voluntarily in order to participate in a downhill ski race. This activity was not essential to appellant’s personal or economic well-being; it was purely a recreational activity. See: Valeo v. Pocono International Raceway, Inc., 347 Pa.Super. 230, 500 A.2d 492 (1985).

The releases also did not contravene public policy. They were contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public. See: Seaton v. East Windsor Speedway, Inc., 400 Pa.Super. 134, 582 A.2d 1380 (1990); Valeo v. Pocono International Raceway, Inc., supra. See also: Grbac v. Reading Fair Co., Inc., 521 F.Supp. 1351 (W.D.Pa.1981), aff'd, 688 F.2d 215 (3d Cir. 1982). Indeed, the legislature’s action in enacting 42 Pa. C.S. § 7102(c) would seem to suggest that the policy in this Commonwealth is to enforce the doctrine of assumption of the risk for persons knowingly engaging in downhill skiing.

The exculpatory agreement and release in this case demonstrated clearly and unequivocally the intent of the parties. Its purpose, as stated expressly therein, was to release the “ski area” from all liability for injury to appellant caused by natural or man made obstacles on the slope, including hazards resulting from negligence by the owner. The fact that the release specifically referred to and included possible liability for acts of negligence distinguishes the release in this case from that in Brown v. Racquetball Centers, Inc., 369 Pa.Super. 13, 534 A.2d 842 (1987), where the plaintiff had slipped on a wet tile floor while exiting a shower. Because the owner of the athletic facilities had been charged with negligence, the plaintiff’s action was not barred by a release which failed to absolve the owner from liability for his own negligence. In the instant case, appellee was also released from liability for its own negligence.

There was no compulsion for appellant to participate in the downhill ski race which caused his injuries. In order to participate in this hazardous event, he agreed to assume the risk of injury and released the owner of the slope, as well as others, from all liability for injuries resulting therefrom, including injuries caused by another’s negligence. Appellant’s exculpatory agreement and release bars the present action. Therefore, the trial court properly entered judgment on the pleadings for appellee.

Judgment affirmed.

      . The first release provided, in pertinent part, as follows:
      I agree that I am alone responsible for my safety while participating in competitive events and/or training for competitive events and specifically acknowledge that the following persons or entities including the United States Ski Association, the United States Ski Team, the United States Ski Coaches Association, the ski area, the promoters, the sponsors, the organizers, the promoters, the sponsors, the organizers, the promoter clubs, the officials and any agent, representative, officer, director, employee, member or affiliate of any person or entity named above are not responsible for my safety. I specifically RELEASE and DISCHARGE, in advance, those parties from any and all liability whether, known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above. I agree to accept all responsibility for the risks, conditions and hazards which may occur whether they now be known or unknown.

      Being fully aware of the risks, conditions and hazards of the proposed activity as a competitor, coach or official, I HEREBY AGREE TO WAIVE, RELEASE AND DISCHARGE any and all claims for damages for death, personal injury or property damage which I may have or which may hereafter accrue to me as a result of my participation in competitive events or training for competitive events, against any person or entity mentioned above whether such injury or damage was foreseeable.
      I further agree to forever HOLD HARMLESS and INDEMNIFY all persons and entities identified above, generally or specifically, from any and all liability for death and/or personal injury or property damage result[ing] in any way from my participating in competitive events or training for competitive events.
      This Acknowledgement of and Assumption of Risk and Release shall be binding upon my heirs and assigns. (Emphasis added).
      The second release provided as follows:
      If you do not accept fully the conditions below do not compete, officiate, coach or in any other way participate in any event.

        I, the undersigned, know that alpine and nordic skiing are action sports carrying significant risk of personal injury. Racing, jumping or freestyle competition is even more dangerous. I know that there are natural and man-made obstacles or hazards, surfaces and environmental conditions, and risks which in combination with my action can cause me very severe or occasionally fatal injury. I agree that I and not the ski area or its staff or American Ski Racing Alliance, Inc. “(ASRA”) or its staff, am responsible for my safety while I participate in, or train for these events.
      I HEREBY RELEASE and discharge, on behalf of myself, my heirs, executors, personal representatives and assigns, ASRA, USSA, their affiliates and subsidiaries and their respective directors, officers, agents, employees, successors and assigns or any of them, from any and all actions, causes of action, claims, damages, demands, injuries and liabilities of any nature whatsoever (including reasonable attorneys fees and interest) arising out of or in any manner connected with their involvement with ski races organized, promoted or operated by ASRA. (Emphasis in original).

      . This provision of the law was enacted as an amendment to the Comparative Negligence Law as follows:
      (c) Downhill skiing.—
      (1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
      (2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsection (a) and (b).


author: DEL SOLE, Judge:

text:
    603 A.2d 666
    Marilyn H. BLATZ, Appellee, v. Robert C. BLATZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1991.
    Filed March 4, 1992.

      Lawrence A. Durkin, Scranton, for appellant.
    John T. Stieh, Milford, for appellee.
    Before CIRILLO, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

This is an appeal from the trial court decision adopting the Findings of Fact and Recommendation of the Master in this divorce action. Its Order of March 28, 1991 provided for the equitable distribution of the parties’ marital assets. Appellant asserts that the trial court erred in approving the Master’s findings, because of alleged procedural errors made by the Master and the lack of testimony and other evidence in support of the Master’s recommendations. For the following reason, we affirm.

On appeal, Appellant raises several claims of error, including the alleged untimely filing of the Master’s report. However, Appellant’s failure to file exceptions under Pa. R.C.P. 1920.55(a) results in a waiver of these claims. The rule provides that:

Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.

Appellant contends that his failure to file exceptions is a direct result of procedural errors committed by the Master, and that these errors should result in the nullification of waiver. We find that Appellant has misread the relevant rules in arriving at his conclusion. Appellant first alleges that the Master violated Pa.R.C.P. 1920.53(a)(2), which states:

the master shall immediately send notice of the filing of the report to each party and in a contested action, shall accompany the notice with a copy of the report and recommendation.

Appellant views this rule as imposing two obligations on the Master: the duty to send notice of the filing of the report to Appellant, and the duty to notify Appellant of his right to file Exceptions to the Master’s Report within ten days. While this rule does impose upon the Master the duty to send notice of the filing, nowhere does the rule require the Master to notify Appellant of the right to file exceptions.

The Master fulfilled his obligation under Pa.R.C.P. 1920.53(a)(2) by sending Appellant a letter dated March 15, 1991, which states that “I have filed the Master report regarding the above captioned matter this date, and I have enclosed a copy of same herewith____” Appellant’s claim that this correspondence does not constitute notice is merit-less. It is uncontrovertable that this letter put Appellant on notice that the report was filed. The rule contains no specific form of notice to be given, nor does it require anything more to be done by the Master.

Appellant, however, contends that the rule imposes the additional duty to notify Appellant of the right to file exceptions to the report. While Pa.R.C.P. 1920.53(a)(2) is silent as to the filing of exceptions, Pa.R.C.P. 1920.55(a) specifically addresses the issue:

Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party....

Nowhere within this rule is a duty imposed upon the Master to notify Appellant of this right to file exceptions. This rule is addressed to the parties and not to the Master. The fact that Appellant proceeded pro se does not change the import of this rule, nor excuse Appellant’s failure to file exceptions.

Appellant’s claim that the Master’s correspondence misled Appellant with regard to the timing of the filing is also without merit. Appellant’s brief states that the Master informed him that “if he wanted to file Exceptions he should do so at his ‘earliest convenience.’ ” (Appellant’s Brief p. 17-18). However, a correct reading of the March 15, 1991 letter from the Master states that “[i]n the event either party chooses to file exceptions to the report please forward a copy to me at your earliest convenience.” It is apparent that the Master was simply asking that a copy of the exceptions be forwarded at the earliest convenience, not that the actual filing be done when convenient.

As there were no errors committed by the Master which would excuse Appellant’s failure to file exceptions to the Master’s report, Appellant’s claims of error on appeal are waived.

Order affirmed.


text:
    603 A.2d 1023
    COMMONWEALTH of Pennsylvania, Appellant, v. William P. APOLLO.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Jan. 9, 1992.
    Reargument Denied March 16, 1992.

      John T. Robinson, Dist. Atty., Selinsgrove, for Com.
    Thomas C. Clark, Middleburg, for appellee.
    Before POPOVICH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth of an order of the Court of Common Pleas of Snyder County, precluding the admission at trial of any testimony relating to the administration of a field sobriety test, the horizontal gaze nystagmus (HGN) test, to defendant/appellee. We affirm.

On January 8, 1990, state trooper Michael R. Connelly filed a criminal complaint against appellee, charging him with driving under the influence of a controlled substance, and driving a vehicle in the wrong lane. At a pre-trial hearing on appellee’s motion for omnibus pre-trial relief, Officer Connelly testified that, on the date of appellee’s arrest, he observed appellee operate his motor vehicle at an excessive speed, cross the centerline of the highway three times, and weave within his own lane of travel. After stopping appellee, Trooper Connelly testified that he noted an odor of alcohol on appellee’s breath. He then administered three field sobriety tests to appellee: the “walk and turn” test, the “one-leg stand” test, and the “horizontal gaze nystagmus” (HGN) test. Appellee failed all three of the tests which the officer administered. Trooper Connelly also testified that appellee refused to submit to any chemical tests of his blood, breath, or urine.

After examining the transcript of the pre-trial hearing on appellee’s omnibus motion for pre-trial relief, the lower court granted appellee’s request to suppress “the results or discussion of” the HGN test, “subject to the Commonwealth’s ability to request reconsideration.” Subsequently, the Commonwealth indicated to the court that it wished to offer foundation testimony which would permit it to introduce evidence of the administration and results of the HGN test. The court treated this request as a motion in limine, and conducted a hearing on the issue on August 29, 1990. At the hearing, Dr. W. Reynolds Sisson, an optometrist, testified for the Commonwealth. Following this hearing, the lower court issued an order denying the Commonwealth’s motion in limine and precluding any reference at trial to the administration or results of the HGN test on appellee. From this order, the Commonwealth filed the instant timely appeal in which it contends that the lower court erred in ruling that the proposed testimony regarding the HGN test was inadmissible.

We will first consider whether the Commonwealth’s appeal of the lower court’s order is properly before us. See Commonwealth v. Call, 249 Pa.Super. 511, 378 A.2d 412 (1977) (appellate court may raise a jurisdictional question sua sponte). The jurisdiction of the Superior Court is generally confined to appeals from final orders of the courts of common pleas. 42 Pa.C.S.A. § 742. An order is interlocutory and not final unless it effectively puts the litigant out of court. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). Ordinarily, pre-trial orders are considered interlocutory and not appealable. Commonwealth v. Bennett, 236 Pa.Super. 509, 345 A.2d 754 (1975).

An exception to the final order rule exists in the case of orders of the lower court suppressing evidence sought to be admitted by the Commonwealth in a criminal trial. In such a case, the Commonwealth may appeal a suppression order as a final order “when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps the prosecution.” Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). “Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay.” Id., 506 Pa. at 547, 486 A.2d at 386. The Commonwealth’s certification that its prosecution is substantially handicapped is “not contestable.” Id., 506 Pa. at 545, 486 A.2d at 386. The certification, “in and of itself, precipitates and authorizes the appeal.” Id. Pre-trial orders which are not suppression orders but which have the effect thereof may be appealed as final orders in an appropriate case. See Commonwealth v. Johnson, 399 Pa.Super. 266, 582 A.2d 336 (1990) (Commonwealth was permitted appeal from pretrial order granting motion in limine excluding testimony of Commonwealth expert where Commonwealth certified that order substantially handicapped its prosecution); Commonwealth v. Sale, 395 Pa.Super. 272, 577 A.2d 214 (1990), allocatur denied, 528 Pa. 609, 596 A.2d 156 (1991) (Commonwealth appeal permitted from pre-trial order excluding evidence of the reputation of appellee’s business as a house of ill repute where Commonwealth certified that the order would seriously impair its ability to present its case and to prove the crime).

In the instant case, the Commonwealth has certified in its notice of appeal that the order of the lower court precluding the admission at trial of any testimony relating to the administration or results of the HGN test substantially handicaps its prosecution of the instant matter. The order is sufficiently similar to a suppression order to justify an appeal from it under the Commonwealth v. Dugger rationale. Therefore, we will consider the merits of appellant’s contention on appeal. On appeal, the Commonwealth argues that the testimony of Dr. Sisson satisfied the Commonwealth’s burden of proving that the scientific principles upon which the HGN test is based are generally accepted in the appropriate scientific community. The Commonwealth asserts that the lower court erred when it found that the foundation for the admission of evidence concerning the HGN had not been met.

In Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), our supreme court discussed what constitutes an adequate foundation for the admission of scientific evidence:

Admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs[.]

“Just when a scientific principle of discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923) (emphasis supplied).

Commonwealth v. Topa, 471 Pa. at 231, 369 A.2d at 1281. The Topa court noted that strict application of this standard is necessary when scientific proof is offered in a criminal trial if the defendant is to receive a fair and just trial. Id., 471 Pa. at 232, 369 A.2d at 1282. The court explained that “[t]he requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice.” Id., 471 Pa. at 232, 369 A.2d at 1282 (quoting United States v. Addison, 498 F.2d 741, 744 (D.C.Cir. 1974)).

In Topa, the scientific evidence which the Commonwealth sought to admit consisted of certain voice spectograms which the police had prepared for purposes of identifying the defendant by voice comparison. At trial, a police officer testified for the Commonwealth as an expert in voice spectography. In his testimony, the officer attempted to establish the reliability of the technique. The court held that the required foundation for the admission of scientific evidence could not be satisfied on the basis of the testimony of one expert. Commonwealth v. Topa, 471 Pa. at 232, 369 A.2d at 1282. Further, the court concluded, based on its study of other cases and commentaries which had addressed the issue, the reliability of sound spectography and voice identification had not been established. Id. Since the court further found that the error in admission of this evidence was prejudicial, it awarded appellant a new trial. Id., 471 Pa. at 233, 369 A.2d at 1282.

In Commonwealth v. Miller, 367 Pa.Super. 359, 532 A.2d 1186 (1987), a panel of this court considered the issue of the admissibility of evidence of the horizontal gaze nystagmus (HGN) test in a criminal trial. The court in that case determined that HGN test results are scientific evidence because the test is based on the scientific principle that consumption of alcohol causes the type of gaze nystagmus measured by the HGN test. Id., 367 Pa.Superior Ct. at 365, 532 A.2d at 1189. Consequently, the party seeking to admit the results of the HGN test is required to establish the foundation for admission of scientific evidence described in Topa. Id., 367 Pa.Superior Ct. at 365-66, 532 A.2d at 1189.

In Miller, the court found the testimony of the police officer which was submitted in support of admission of the HGN test results insufficient to permit admission of the evidence. According to the panel, the sole testimony supporting the admission of the test came from a police officer “whose only specialized training in this area was a two day course on the proper use of the HGN test and other field sobriety tests.” Id., 367 Pa.Superior Ct. at 366, 532 A.2d at 1189. The panel determined that the officer’s “brief training session” was “insufficient to qualify him to testify either about the scientific principle that consumption of alcohol causes Nystagmus or about the principle’s general acceptance in the appropriate scientific communities.” Id., 367 Pa.Superior Ct. at 367, 532 A.2d at 1189-90. While finding that the Commonwealth had not established an adequate foundation for the admission of the HGN evidence in that particular case, the panel declined to determine the future admissibility of evidence concerning the test, “since the record presently before us is bereft of any legal or scientific discussion regarding the HGN test’s validity or admissibility.” Id., 367 Pa.Superior Ct. at 367, 532 A.2d at 1190.

The Topa standard for admissibility of scientific evidence was further refined in Commonwealth v. Middleton, 379 Pa.Super. 502, 550 A.2d 561 (1988). In that case, the lower court permitted the Commonwealth to admit evidence of electrophoresis of dried blood stains in connection with its prosecution of appellant for first degree murder. The Middleton court reviewed the Topa standard and the holding of the Topa court and added a qualification thereto:

if, as here, the expert witness’s opinion is not merely based upon his personal views, or the views of a small segment of the scientific community, but rather, is to the effect that the scientific procedure has gained general acceptance in the scientific community as a whole due to its reliability, as evidenced by published scientific studies, then the testimony of a single expert is not deficient merely because numerous experts were not called to testify.

Id., 379 Pa.Superior Ct. at 512, 550 A.2d at 566. In Middleton, the court found that the lower court had correctly ruled the testimony as to the electrophoresis admissible. Although the Commonwealth presented the testimony of only one expert, that expert’s testimony established that electrophoresis had gained general acceptance in the appropriate scientific community's required by Topa. Id., 379 Pa.Superior Ct. at 513, 550 A.2d at 566.

In the instant case, Dr. Sisson testified for the Commonwealth. He indicated that he is a behavioral optometrist who evaluates eye health and visual performance. He testified as to his familiarity with the HGN test, which he administers on a regular basis to his own patients. Dr. Sisson stated that he is qualified as a certified instructor on standardized field sobriety, and has testified several times as an expert witness on the HGN test. Dr. Sisson conducted his own study of the incidence of gaze nystagmus in “sober” persons. His study indicated that approximately one in five hundred sober patients would fail the HGN test, in contrast to national studies which have estimated a failure rate of two to four percent in a similar population. Dr. Sisson testified that he was aware of no studies evaluating the reliability of the HGN test that have reached any conclusion other than that it is the most accurate field sobriety test available.

The lower court evaluated Dr. Sisson’s testimony under the standards set forth in Commonwealth v. Topa and related cases. It also considered the evidence submitted by the defense. See Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 AM.JUR. POF 3d 439 (1989). That evidence revealed that the data and studies which have supported the reliability of the HGN test have been criticized. The evidence submitted by the defense also described the phenomenon of the incidence of nystagmus resulting from causes other than consumption of alcohol. One of the conclusions of the defense evidence was that “the reliability of the horizontal gaze nystagmus test is not a settled proposition within the scientific community.” Id. at 452. After evaluating the evidence submitted by both parties, the lower court concluded that it “was convinced” that the HGN test was an “appropriate field test for sobriety.” However, relying on Commonwealth v. Miller, and stating that it must abide by the Superior Court’s determination, the lower court concluded that admission of evidence of the HGN test was precluded.

The admission or exclusion of evidence is within the sound discretion of the trial judge. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990). The trial court’s rulings on such matters will be reversed on appeal only for a clear abuse of that discretion. Commonwealth v. Cargo, 498 Pa. at 15, 444 A.2d at 644. In the instant case, Dr. Sisson’s testimony did not establish the general acceptance in the scientific community of the HGN test as required by Topa and its progeny. While there is no doubt that Dr. Sisson deemed the HGN to be quite reliable, and while he stated that he was unaware of any studies questioning the accuracy of the HGN test, his testimony fell short of establishing the “general acceptance in the scientific community” standard. Dr. Sisson’s testimony was largely based on his own personal views and observations. This is the type of testimony which has been determined to be insufficient to satisfy the Topa standard. See Commonwealth v. Middleton, 379 Pa.Super. at 511-12, 550 A.2d at 566; Commonwealth v. Topa, 471 Pa. at 230, 369 A.2d at 1281. In addition, there was evidence before the lower court which demonstrated that the HGN technique has not been accepted to the extent that it meets the Topa standard. Under these circumstances, we cannot say that the lower court abused its discretion when it precluded the admission at trial of any evidence concerning the administration to appellant of the HGN test or of the results of that test.

Order affirmed.

      . 75 Pa.C.S. § 3731(a)(1).

      . Id. § 3309(1).

      . Nystagmus is a medical term which refers to the rhythmic oscillation of the eyeball in either a horizontal, vertical, or rotary direction. Commonwealth v. Miller, 367 Pa.Super. 359, 364, 532 A.2d 1186, 1188 (1987), (citing Stedman’s Medical Dictionary 971 (5th Lawyers Ed. 1982)).
      In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAC) exceeds the legal limit of .10 percent.

        Commonwealth v. Miller, 367 Pa.Super. at 365, 532 A.2d at 1188-89 (quoting State v. Superior Court, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986)).

      . Scientific evidence has been defined as “evidence that draws its convincing force from some principle of science, mathematics and the like.” Commonwealth v. Miller, 367 Pa.Super. at 363, 532 A.2d at 1188 Cquoting State v. Brown, 297 Or. 404, 407, 687 P.2d 751, 754 (1984)).


author: POPOVICH, Judge: McEWEN, Judge,

text:
    603 A.2d 1028
    COMMONWEALTH of Pennsylvania, Appellant, v. Kevin PURNELL, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1991.
    Filed Jan. 31, 1992.
    Reargument Denied April 2, 1992.

      Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellant.
    Kathleen J. Boyer, Asst. Public Defender, West Chester, for appellee.
    Before McEWEN, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Chester County which suppressed the oral statements given by appellant to the police after his arrest. Since the Commonwealth has certified that the suppression order in question substantially handicaps the prosecution of appellant on the charges of possession with intent to deliver a controlled substance, possession of a controlled substance and possession of drug paraphernalia, this appeal is properly before us. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). After a thorough review of the record and applicable legal authority, we find that the lower court erred in suppressing appellant’s statements. Therefore, we reverse the suppression order and remand this case for trial.

At the suppression hearing held on April 4, 1991, the hearing court made the following findings of fact and conclusions of law:

THE COURT: Very well. Pursuant to Rule 323, Subsection i of the Pennsylvania Rules of Criminal Procedure, I must make the following findings of facts and conclusions of law:
Number one: On July 6, 1990, while working the 2:00 p.m. to 10:00 p.m. shift for the Borough of West Chester Police Department, Officer Louis John DeShullo received a call from one Officer McGinnis indicating that he had observed Kevin Purnell place a plastic package between the trashcan and the wall on Matlack Street near Miner.
Number two: At approximately 5:23 p.m. Officer DeShullo went to the area, did locate a plastic packet, and walked around to Miner Street and did observe the defendant and took him into custody.
Number three: The package had been field tested by Officer DeShullo and proved positive for cocaine. Prior to taking defendant into custody Officer DeShullo also knew this defendant, and he was approximately 40 feet away from the package that was located by Officer DeShullo.
Number four: Defendant was taken to the West Chester Police Department where he was taken to the squad room, the processing area, and then subsequently to an interview room, and he was interviewed by Officer DeShullo.
Number five: Defendant was read his Miranda rights, and he responded yes to each of the rights, and also indicated that he would answer any further questions, and did sign and date and time the Miranda card.
Number six: Pursuant to questions, defendant responded to questioning by Officer DeShullo.
Number seven: At some time during the questioning process the defendant questioned Officer DeShullo in reference to issues dealing with bail, and at some time during this questioning process the officer indicated that he would inform the judge that defendant was cooperative.

Conclusions of law:

Number one: The officer had sufficient probable cause to take the defendant into custody based on their observations and their close proximity of defendant to the package.
Number two: Defendant was properly advised of his Miranda warnings while at the police station, and at that time voluntarily consented to question — to answer and respond to questions presented by the officer.
Number three: There is insufficient evidence on this record to indicate that this statement that was taken was not infected by a question of the defendant in reference to the issue of bail; and the statement of the officer indicating that he would inform the judge that he was cooperative effectively eliminates the voluntariness of the statement.
There is insufficient evidence on this record to negate that, and the Commonwealth has the burden of proof in a suppression hearing, preponderance of the evidence, and Officer DeShullo indicates that he doesn’t remember when, and based on that statement, this court cannot allow the statement to come in.
And in reference to the statements given by the defendant at the police station, they are suppressed, the statements only.
The substance that was seized was properly seized and is admissible for purposes of trial.
N.T., 4/9/91, pp. 25-28.

Officer DeShullo summarized the suppressed statement as follows: “He just basically stated that the drugs did not belong to him that were found between the trash can and 146 East Miner Street, and that he didn’t want to tell me whose drugs they were, but that he was going to sell the drugs to get some money because he did not get paid [until] the following week.” N.T., 4/4/91, p. 13. Officer DeShullo also testified that appellee admitted to possessing the drugs. N.T., 4/4/91, p. 13.

In this appeal, the Commonwealth contends that appellee’s statements were voluntary and obtained in a constitutionally permissible manner. Although the hearing court did not cite any legal authority for its decision to suppress appellant’s statement, we point to the reasoning first announced in Bram v. U.S., 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), wherein the United States Supreme Court stated: “[A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats of violence, nor obtained by any direct or implied promises, however slight, nor by exertion of any improper influence ...” See also U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); U.S. v. Sibley, 535 F.Supp. 208 (E.D.Pa.), aff’d 692 F.2d 750 (3d Cir., 1982). Apparently, the lower court felt that Officer DeShullo’s promise to bring appellee’s cooperation to the attention of the magistrate at his arraignment impermissibly induced appellee’s statements, thus, rendering them involuntary. However, upon review of the record, we disagree with the decision of the court below.

The record is clear that Officer DeShullo’s comment was not a promise of benefits or special consideration designed to mislead or induce appellee into confessing. This was not an inducement since no causal connection between the promise and the confession has been shown or could be inferred from the record. Officer DeShullo never told appellee that in exchange for his confession, he would inform the magistrate of his cooperation. Rather, in response to appellee’s questions about securing bail, the officer explained the arraignment procedure and simply stated he “would tell the judge that [appellee was] cooperative.” N.T., 4/4/91, p. 23. Significantly, the record is clear that appellee had already given his statement to Officer DeShullo prior to his questioning about the possibility of bail. N.T., 4/4/91, pp. 19-20, 23. Therefore, the officer’s promise to inform the magistrate of appellee’s cooperation clearly could not have induced appellee’s statement. Cf., U.S. v. Fraction, infra, 795 F.2d 12, 15 (3d Cir., 1986) (Third Circuit found no causal connection between FBI agent’s promise to bring cooperation to the authorities’ attention and suspect’s decision to confess).

The present case is factually similar to that of United States v. Fraction, 795 F.2d 12 (3d Cir., 1986). Therein, a bank robbery suspect, after receiving his Miranda warnings, questioned the investigating FBI agent what he would receive in return for his cooperation. In response, the officer told the suspect that he “would not be able to promise him anything in terms of help other than to notify the U.S. Attorney and a sentencing judge that he had cooperated in the matter.” The district court, relying on Bram v. U.S., supra, granted Fraction’s suppression motion on the grounds that Fraction’s confession was involuntary due to the coercive effect of the agent’s promise. However, the Third Circuit reversed since the circuit courts of appeal have uniformly rejected the contention that a promise to bring a suspect’s cooperation to the attention of the authorities suffices to render a confession involuntary. See e.g., U.S. v. Fera, 616 F.2d 590 (1st Cir., 1980); U.S. v. Cone, 354 F.2d 119 (2d Cir., 1965); U.S. v. Hart, 619 F.2d 325 (4th Cir., 1980); U.S. v. Posey, 611 F.2d 1389 (5th Cir., 1980); U.S. v. Springer, 460 F.2d 1344 (7th Cir., 1972); U.S. v. Glasgow, 451 F.2d 557 (9th Cir., 1971).

Further, many states also agree that a promise to bring a suspect’s cooperation to the attention of the authorities (when accompanied by no other coercive tactics) does not render his confession involuntary. See Layne v. State, 542 So.2d 237 (Miss., 1989); Rowland v. State, 460 So.2d 282 (Ala.Crim.App., 1984); Plant v. State, 724 P.2d 536 (Alaska App., 1986); Beasley v. U.S., 512 A.2d 1007 (D.C.App., 1986); Baynard v. State, 518 A.2d 682 (Del., 1986); State v. Whitsel, 339 N.W.2d 149 (Iowa, 1983); State v. Vernon, 385 So.2d 200 (La., 1980); State v. Muenchau, 209 Neb. 552, 308 N.W.2d 824 (1981); State v. Tindle, 104 N.M. 195, 718 P.2d 705 (1986); People v. Martinez, 133 A.D.2d 572, 520 N.Y.S.2d 1 (1987); State v. Richardson, 316 N.C. 594, 342 S.E.2d 823 (1986); State v. Adkison, 175 W.Va. 706, 338 S.E.2d 185 (1985).

Presently, we follow the lead of the Federal judiciary and our sister states and hold that under the facts sub judice, Officer DeShullo’s promise to inform the authorities of appellee’s cooperation was insufficient to render appellee’s confession involuntary. Thus, the lower court erred in suppressing appellee’s statements.

Suppression order reversed. Case remanded for trial. Jurisdiction relinquished.

McEWEN, J., files a concurring and dissenting statement.

McEWEN, Judge,

concurring and dissenting:

While the majority provides an insightful and persuasive expression of view, I must decline the invitation to “follow the lead of the federal judiciary”, however presumptively enlightened, since the Supreme Court of this Commonwealth has already implicitly declined to do so.

The principal pillar of the majority rationale is the federal decision in United States v. Fraction, 795 F.2d 12 (3rd Cir.1986). When the Pennsylvania Supreme Court considered the case of Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409, cert. denied, 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 369 (1989), it was undoubtedly aware that the United States Third Circuit Court of Appeals had three years earlier decided Fraction, supra. Since I am of a mind that the expression of the majority of the Pennsylvania Supreme Court in Gibbs, supra, is not reconcilable with the Fraction ruling, I am compelled to this statement.

Since my colleagues of the majority are held in such esteem for their wisdom, I expect my differing view can be but a whisper in the wind and thus I rush to join them in the result by reason of my view that the facts as found by the distinguished Judge James Curtis Joyner reveal that appellant waived his Miranda rights and provided the inculpatory statement prior to the inducements of the police officer. See and compare: Commonwealth v. Friedman, 411 Pa.Super. 628, -, 602 A.2d 371, 378 (1992).

      . Both the Commonwealth and appellee seem to agree that the decision below was based, at least in part, on the recent case of Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409, cert. denied, 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 369 (1989). In Gibbs, our Supreme Court stated, ‘In our decision today, we decide only that the authorities tire not permitted to employ inducements which impair in any way a suspect’s right to his own unfettered evaluation of the need for legal counsel." Gibbs, 520 Pa. at-, 553 A.2d at 411. The lower court appears to have felt that Officer DeShullo’s statement was the same type of impermissible inducement as that found in Gibbs, supra. However, Gibbs, supra, is inapposite presently as it relates only to those situations when the police prompt an admission by suggesting a benefit if the suspect foregoes his request for representation. Instantly, appellee never requested counsel, and the officer’s promise to tell the magistrate that appellee was cooperative did not impermissibly interfere with appellee’s right to request legal representation. In fact, the promise did not induce appellant’s cooperation.


author: BECK, Judge:

text:
    603 A.2d 1031
    COMMONWEALTH of Pennsylvania v. Anthony BELLEZZA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 22, 1991.
    Filed Feb. 18, 1992.

      James A. Swetz, Stroudsburg, for appellant.
    E. David Christine, Jr., Dist. Atty., Stroudsburg, for Com., appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from an order of the trial court denying appellant's motion to dismiss a prosecution for driving under the influence of alcohol on the grounds that the prosecution was barred by operation of 18 Pa.C.S. § 110 and by constitutional principles of double jeopardy. Appellant is not entitled to relief and we affirm the order of the trial court.

On August 6, 1990, state police were called to investigate an automobile accident in Monroe county. Appellant was the driver of one of the cars involved in the accident and had sustained injuries as a result of the collision. When the state troopers approached appellant they noticed that his eyes were glassy and that there was a strong odor of alcohol about him. Appellant failed two field sobriety tests. He was subsequently taken to Pocono Medical Center to be treated for his injuries.

At the hospital, while the police were explaining to appellant his rights under the implied consent law, appellant became verbally abusive and boisterous. This occurred about an hour and a half after the police had arrived at the accident scene to investigate the collision in which appellant had been involved.

Rather than issue a citation to appellant at the time the abusive conduct occurred, the state trooper filed a citation with the district justice six days later, on August 12, 1990, charging appellant with disorderly conduct. Appellant received the citation on August 23, 1990, and returned a not guilty plea by mail. A trial was set for November 1, 1990 by District Justice Robert J. Perfetti.

Appellant was also charged with driving under the influence of alcohol in a complaint filed before District Justice Charles P. Eyer on August 13, 1990. On October 12, 1990, a preliminary hearing was held on the drunk driving charge and appellant was held for court.

On November 1, 1990 appellant appeared for his scheduled trial in the disorderly conduct prosecution before District Justice Perfetti. While no transcript of the proceedings is in the record, District Justice Perfetti submitted a letter which has been made a part of the record and which described what transpired at the hearing. According to District Justice Perfetti, the Commonwealth presented testimony regarding appellant’s conduct at the medical center. At the conclusion of the testimony, defense counsel argued for dismissal under Rule of Criminal Procedure 60. He claimed that the police had violated the procedural mandates by filing a citation instead of issuing one to appellant at the time of the offense. The district justice found that the Commonwealth offered no compelling reason to justify its failure to issue the citation on August 6, 1990, the time of the incident. Instead a citation was signed by the state trooper on August 12, filed with the court on August 21 and received by appellant on August 23. The district justice concluded that there was no reasonable basis advanced for filing the citation as opposed to issuing it and also found, without specification, that appellant was prejudiced by this procedure. On this basis, the district justice granted appellant’s motion to dismiss the disorderly conduct prosecution.

Thereafter, appellant filed an omnibus pretrial motion in the DUI prosecution seeking dismissal of that charge arguing that the dismissal of the disorderly conduct charge barred the subsequent prosecution. Appellant’s motion was heard and denied by the Honorable Peter J. O’Brien of the Court of Common Pleas. This appeal followed.

Appellant challenges the DUI prosecution on two grounds. The first is that the prosecution is barred by the provisions of 18 Pa.C.S. § 110. The second is that the subsequent prosecution violates the protection against double jeopardy.

—18 Pa.C.S. § 110-

El] We first address appellant’s statutory argument under section 110. Appellant argues that the DUI prosecution is barred by the previous “acquittal” for disorderly conduct since the two offenses arose out of the same criminal episode. Appellant asserts that under the compulsory joinder rule embodied in section 110, the Commonwealth was required to join the disorderly conduct and the DUI charges since they arose out of the same criminal episode. We disagree. Section 110 bars a subsequent prosecution for violation of a different statutory provision if the defendant has already been either acquitted or convicted of another offense which arose from the same criminal episode. Section 110 provides in pertinent part:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statute than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former 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 for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; —

18 Pa.C.S. § 110 (Purdon 1983).

Appellant’s argument fails on several grounds. Interpreting the phrase, “within the jurisdiction of a single court”, our Supreme Court has held section 110 was inapplicable where the former prosecution was within the original jurisdiction of the district justice and the subsequent prosecution was within the jurisdiction of the trial court. Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987); Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). In Beatty, the defendant was charged with aggravated assault and also with leaving the scene of an accident without providing proper identification. The latter is a summary Motor Vehicle offense to which the defendant in Beatty pled guilty before a district justice. It was conceded in that case that both offenses arose from the same criminal episode. The defendant in Beatty moved for dismissal of the aggravated assault conviction, arguing that the prior conviction for the summary vehicle offense barred the subsequent prosecution pursuant to 18 Pa.C.S. § 110. The Supreme Court held that section 110 could not properly be interpreted to include the disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony in the court of common pleas. The court’s holding was based on its construction of the language which provides “and was in the jurisdiction of a single court”. The Supreme Court considered the “traditional division of labor in our court system” and noted that summary traffic offenses were in the original jurisdiction of the district justice. The Beatty court reasoned further:

Our interpretation of Section 110(l)(ii) as excluding traffic violations under the Motor Vehicle Code is further bolstered by a consideration of the purposes sought to be achieved by the legislative enactment as well as our promulgation of the compulsory joinder rule. The disposition of a summary offense in a traffic matter prior to trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns. Additionally, judicial economy is not served by requiring our Courts of Common Pleas to dispose of matters which are regularly entrusted to the district justices for disposition. It is fundamental that a rule of law should not be applied where its application fails to serve the purposes for which it was designed.

Commonwealth v. Beatty, 500 Pa. at 290-291, 455 A.2d at 1198 (footnote and citations omitted).

While Beatty’s interpretation of section 110 involved and arguably was limited to summary traffic offenses under the Motor Vehicle Code, a few years later the Supreme Court extended the Beatty rationale to other summary offenses. In Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), the defendant was originally charged with harassment, carrying a concealed weapon without a license and simple assault by menace with pistol. At the preliminary hearing before the district justice on the assault charge, the defendant pled guilty to the summary offense of harassment and was fined. The following day the defendant was held for trial on the charge of carrying a concealed weapon and subsequently convicted. Taylor appealed the judgment of sentence on the grounds that the subsequent prosecution for carrying a concealed weapon was barred by the former conviction for harassment by operation of section 110. The Superior Court agreed but the Supreme Court reversed. As the Taylor court made plain, “the single issue ... is whether the Superior Court properly applied Section 110 of the Crimes Code to the facts and proceedings in this case”. The Supreme Court found that section 110 had not been properly applied. Again, the Supreme Court based its analysis on the fact that the district justice had original jurisdiction over the harassment charge which was a summary offense and therefore could finally dispose of that charge while having no power finally to dispose of the outstanding misdemeanor charge of carrying a concealed weapon. In this way, the Supreme Court found Taylor to be “virtually indistinguishable from ... Beatty”. Commonwealth v. Taylor, id., 513 Pa. at 552, 522 A.2d at 39. Consequently, the Supreme Court likened Taylor to Beatty and found:

Similarly, in this case our interpretation of section 110(l)(ii), which allows a summary offense to be disposed of prior to the prosecution for the misdemeanor, “does not present the type of government harassment of a defendant that would offend double jeopardy concerns.” ... By allowing the district justice to dispose of the summary offense the defendant was no worse off than he would have been had the charge been bound over and joined with the greater offense. In addition, the disposition of the summary offense by the district justice has the advantage of narrowing the issues for the court of common pleas, and furthers the interest of judicial economy.

Therefore, we conclude that since the harassment charge, as a summary offense, was in the jurisdiction of the district justice, conviction or a plea of guilty to that charge in a summary proceeding did not bar the subsequent trial of the weapons offense.

Commonwealth v. Taylor, id., 513 Pa. at 553, 522 A.2d at 40.

Thus, after Taylor, it cannot be argued that Beatty’s interpretation of section 110 is limited to summary traffic offenses. We also conclude that, despite the language in both Beatty and Taylor which purports to rely in part on “double jeopardy concerns”, these cases were not decided on federal or state constitutional double jeopardy grounds but were based solely on the Supreme Court’s interpretation of section 110.

This court is fully aware of the evolving constitutional mandates in the area of double jeopardy and the fact that, in light of these changes, it can no longer be argued that double jeopardy concerns are not raised by prior summary convictions. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); Commonwealth v. LaBelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc); Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991).

However, we are convinced that Beatty and Taylor are decisions wholly concerned with the application of section 110 and as such, remain binding precedent in this Commonwealth on the correct interpretation of that statutory provision. See In re Huff, 399 Pa.Super. 574, 582 A.2d 1093, 1095 (1990) (en banc) (emphasis in original) (“ ... [B]oth Taylor and Beatty involved the application of 18 Pa.C.S.A. § 110 and the compulsory joinder rule of Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (“Campana II"). Neither case purported to deal with the constitutional protections of the double jeopardy clause as applicable to summary offenses.”). See also Commonwealth v. LaBelle, 397 Pa.Super. at 184-85, 579 A.2d at 1318.

Judge Brosky, in his dissent in the now-overruled case of Commonwealth v. Evers, 381 Pa.Super. 568, 579, 554 A.2d 531, 536 (1989), explained the interplay between section 110 and the constitutional double jeopardy protection:

[Wjhere applicable, section 110 and the compulsory joinder rule ... offer greater protection to the accused than does the double jeopardy clause. Thus, section 110 may require joinder in a single trial offenses which would not under the double jeopardy clause. The flip side of this is those rules, being a rule or statute of Pennsylvania authority, are subject to the creation of exceptions and limitations of either judicial or legislative design by Pennsylvania courts and legislature. The vitality of the double jeopardy clause, being one of the Bill of Rights of the federal constitution is not as fragile. Neither the Pennsylvania courts nor the Pennsylvania legislature is empowered to restrict the scope of the constitutional protection and a decision construing or holding that the Pennsylvania originated protections of section 110 and the compulsory joinder rule, do not apply to a certain set of circumstances, by itself, in no way affects the applicability of constitutional protections to the same set of circumstances.

In the instant case, all parties concede that the disorderly conduct with which appellant was charged was a summary offense within the original jurisdiction of the district justice. In light of Taylor and Beatty, we conclude that the disposition of this summary offense by the district justice will not bar a subsequent prosecution for the DUI offense, by application of section 110 itself. Accord, Commonwealth v. McAulay, 361 Pa.Super. 419, 522 A.2d 652 (1987); Commonwealth v. Kresge, 317 Pa.Super. 405, 464 A.2d 384 (1983).

Moreover, even if we were to conclude that section 110 may operate to preclude the subsequent prosecution after a summary proceeding before a district justice, in the instant case appellant has two additional obstacles to hurdle, either of which will prevent him from prevailing on this claim. First, as the trial court found, the district justice dismissed the disorderly conduct charge on wholly procedural grounds having found that a citation was improperly filed instead of issued pursuant to Pa.R.Crim.P. 60.

However, by its very terms, section 110(1) bars a subsequent prosecution only when the former prosecution resulted in an acquittal or a conviction. An acquittal is defined for purposes of the statute as follows: “There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction.” 18 Pa.C.S.A. § 109(1) (Purdon 1983). Appellant argues that he was found not guilty of disorderly conduct by the district justice. However, we agree with the trial court that an accurate reading of the district justice’s disposition establishes that it did not result in an “acquittal” nor did it involve a factual determination of appellant’s guilt or innocence or relate to the sufficiency of the evidence against him. Therefore, the threshold statutory requirement that the “former prosecution” resulted in an acquittal or conviction has not been met. See generally Commonwealth v. Smith, 391 Pa.Super. 154, 570 A.2d 559 (1990).

Finally, for purposes of the instant case, section 110 requires that, in order for the second prosecution to be barred by an acquittal or conviction in a former prosecution, the two offenses must “aris[e] from the same criminal episode”. Appellant argues that the disorderly conduct charge and the DUI charge here were part of the same criminal episode and therefore, this statutory requirement is fulfilled. We disagree. Whether two criminal offenses are part of a single criminal episode requires a case-by-case factual determination. Commonwealth v. Flenory, 351 Pa.Super. 27, 30, 504 A.2d 1341, 1342 (1986). Various factors are important, including the temporal sequence of events, the logical relationship between the acts and whether the offenses share common issues of law or fact. In the instant case, we conclude that the disorderly conduct charge and the DUI charge did not arise from the same criminal episode.

The drunk driving incident which resulted in the accident and appellant’s eventual arrest for DUI occurred shortly after 2 A.M. and to the extent that appellant was no longer operating the vehicle when the police arrived, the offense was over before the police got there. Approximately one and a half hours later, at a site considerably removed from the site of the accident, appellant used abusive language to the police officers. This conduct formed the basis for the disorderly conduct charge. The disorderly conduct was not related to appellant’s operation of the vehicle or to his ability to drive safely. Proof of the disorderly conduct was not relevant to the drunk driving charge. Appellant’s conduct at the medical center was neither necessary for nor probative of the fact of appellant’s intoxication. At the time of the DUI arrest, appellant’s eyes were glassy, his speech was slurred and he had failed two field sobriety tests. Thereafter, his blood alcohol content was discovered to be .14 percent. We discern no common issues of law or fact between the two offenses, nor have any been suggested to us.

In our view, this case is most closely analogous to Commonwealth v. Purnell, 358 Pa.Super. 105, 516 A.2d 1203 (1986). In Purnell, the defendant was arrested for disorderly conduct when she attempted to interfere with the police’s efforts to arrest her companion. A while later, upon the defendant’s arrival at the police station for booking on the disorderly conduct charge, she threatened and kicked a police officer, causing him serious injury. The defendant entered a plea of guilty to the misdemeanor charge of disorderly conduct and then argued that the subsequent prosecution for the aggravated assault on the police officer was barred by section 110 of the Crimes Code. This court rejected that argument and found that the criminal incidents were separate and distinct and did not arise from the same criminal episode. The same conclusion is mandated here. See also Commonwealth v. Walton, 405 Pa.Super. 281, 592 A.2d 335 (1991).

—DOUBLE JEOPARDY—

Appellant also challenges the DUI prosecution on constitutional double jeopardy grounds. As noted above, section 110 and constitutional double jeopardy protection are not coextensive. While many of the same policies underlie the statutory and constitution provisions, they are not identical. In some ways Section 110 offers broader protection against a successive prosecution than does double jeopardy. For instance double jeopardy acts to prevent successive prosecutions for the “same offense” while section 110 extends protection to the “same criminal episode.” In defining what constitutes the same criminal offense for double jeopardy purposes, the United States Supreme Court has declined to find that offenses are the same and thereby barred by double jeopardy merely because they are part of the same criminal episode. See Grady v. Corbin, supra, 495 U.S. at 523-24 n. 15, 110 S.Ct. at 2094 n. 15, 109 L.Ed.2d at 566 n. 15. In contrast section 110(i)(ii) bars a subsequent prosecution if it is based on the same criminal episode as the former prosecution. As explained above offenses which are part of the same criminal episode, must be logically related temporarily and physically, share common issues of fact or involve offenses which are necessary steps to the completion of others or even which involve attempts to conceal previous offenses. See Commonwealth v. Walton, 405 Pa.Super. at 284-86, 592 A.2d at 337. Thus, the same criminal episode may include offenses which constitute a continuing criminal scheme although they involve different statutory elements such that each charge requires proof of a fact the other does not. Under section 110 subsequent prosecution involving the “same criminal episode” would be barred. In contrast, under the double jeopardy clause offenses stemming from the same criminal episode would be barred only if the prosecution needed to establish conduct in the subsequent prosecution which had already formed the basis of the prior prosecution.

For example, in the recent case of Commonwealth v. Adams, 406 Pa.Super. 493, 594 A.2d 727 (1991), this court found no double jeopardy violation for successive prosecutions which clearly arose from the same criminal episode. In Adams, the defendant had been charged for reckless driving and DUI when a state trooper saw that he was unable to stay in his lane of the highway. After arrest, Adams was shown to have a blood alcohol content far exceeding the legal limit. As such the DUI conviction could be proved by reference to Adams’ blood alcohol content without proof of the manner in which he drove the car. Adams first pled guilty to reckless driving and then challenged the subsequent prosecution for DUI on double jeopardy grounds. The trial court dismissed, the Commonwealth appealed and this court reversed. We concluded, after analyzing recent developments in double jeopardy jurisprudence, that “where as here the Commonwealth can establish that the successful prosecution of the subsequent offense does not depend on proof of the conduct which comprised the previous conviction, the double jeopardy clause will not require more”. Commonwealth v. Adams, 406 Pa.Superior Ct. at 498, 594 A.2d at 730. Thus it is clear that although the test for what constitutes the “same offense” for double jeopardy purposes has been considerably broadened recently, it still cannot be said to encompass the section 110 requirement of “arising from the same criminal episode.”

In order to resolve the double jeopardy issue, we must invoke the increasingly familiar test articulated in Grady v. Corbin, 495 U.S. at 520-21, 110 S.Ct. at 2093, 109 L.Ed.2d at 564 for determining what constitutes the same offense for double jeopardy purposes. Grady v. Corbin sought to broaden the definition of the same offense and thereby extend double jeopardy protection. Grady establishes a two prong test. The first inquiry requires us to identify the statutory elements of each crime. This aspect of the analysis is known as the Blockburger test. If one of the offenses is a lesser included offense or if the prosecution is not required in the subsequent prosecution to prove elements which are different from those in the prior prosecution, then Blockburger bars the subsequent prosecution.

Where the Blockburger test does not bar a subsequent prosecution, Grady instructs us to make a second inquiry to 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”. Id. Where the government relies on the same conduct for the prior and subsequent prosecution, double jeopardy bars the subsequent prosecution. While the first inquiry focuses on the elements of the offenses, the second focuses on the conduct necessary to prove each offense.

Applying this test to the instant case, it is immediately clear that double jeopardy does not bar the DUI prosecution. In the prior prosecution for the summary offense of disorderly conduct the Commonwealth was required to prove that appellant intended to cause public inconvenience or recklessly created the risk thereof by making unreasonable noise and using obscene language. In the subsequent prosecution for DUI, the Commonwealth did not have to establish any of those elements. Instead, the Commonwealth had to establish that appellant was in control of a vehicle while under the influence of alcohol. Plainly, these offenses do not satisfy Blockburger. There are no common elements in the two offenses.

We next examine the conduct involved in the two offenses. We conclude that since the Commonwealth need not prove conduct which constituted the disorderly conduct charge in order to convict appellant of DUI double jeopardy raises no bar to the subsequent prosecution. As we have already noted, proof of appellant’s unrelated conduct at the medical center was wholly unnecessary to establish DUI. The “conduct” at the heart of the DUI offense was the drunk driving. No aspect of appellant’s conduct at the medical center need be depended upon in order to proceed with the subsequent prosecution for DUI.

Order affirmed.

      . Pa.R.Crim.P. 60 provides:
      RULE 60. FILING OF CITATION
      When it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges against the defendant resulting from the same incident, a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority.
      The explanatory comment accompanying the rule elaborates that "When determining whether the filing of a citation was the correct procedure under the rules, the courts have considered whether there was a reasonable basis for filing, whether there were compelling reasons to prevent issuing the citation, and whether the defendant was prejudiced by the filing".

      . Justice McDermott, in a concurring opinion, urged the court to take this step in Beatty and conclude that "all summary offenses, not merely traffic violations, may be tried separately from felonies or misdemeanors arising from the same criminal episode without violating the compulsory joinder rule”. Commonwealth v. Beatty, id. 500 Pa. at 292, 455 A.2d at 1198 (concurring opinion by McDermott, J.).

      . Commonwealth v. Evers has been overruled by Commonwealth v. La Belle, 397 Pa.Super. 179, 579 A.2d 1315 (1990).

      . Adams did not involve a claim under section 110.

      . Double jeopardy concerns apply to summary proceedings. Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).