author: BECK, Judge:

text:
    540 A.2d 933
    COMMONWEALTH of Pennsylvania v. Thomas PHILLIPS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1987.
    Filed Feb. 22, 1988.
    Reargument Denied April 25, 1988.

      William F. Cercone, Jr., Pittsburgh, for appellant.
    Kenneth K. McCann, Assistant District Attorney, Mercer, for Com., appellee.
    Before BECK, JOHNSON and HESTER, JJ.
   BECK, Judge:

Appellant was found guilty by a jury of unlawfully delivering and possessing cocaine. On appeal, appellant challenges the constitutionality of § 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.Cons. Stat.Ann. § 5701 et. seq. (Purdon 1983). In the alternative, appellant argues that the applicable requirements of the Act, even if constitutional, were not properly followed in this case. He also raises numerous allegations of trial and sentencing errors. None of these claims contain merit. We therefore affirm appellant’s judgment of sentence.

Appellant’s conviction followed a state and federal drug investigation in the Sharon-Farrell area of Mercer County. During the investigation, the state police used as an informant one Anthony Hueston. When the investigating officials believed that the targeted individuals would not deal with unfamiliar persons, they directed Hueston to directly purchase the drugs. This method was used in appellant’s case. The police then made the decision to equip Hueston with a body recorder during a drug transaction between Hueston and appellant. Hueston consented to wear the wire, and authorization was obtained from an Assistant Attorney General for interception. The recording itself was made during a drug transaction between Hueston and appellant while they were in appellant’s car. This recording was admitted into evidence at appellant’s trial.

Appellant claims that this recording should have been suppressed because the agents failed to obtain a court order to intercept the communications at issue, pursuant to 18 Pa.Cons.Stat.Ann. §§ 5708-12 (Purdon 1987). Those sections provide for authorization by a Superior Court Judge for the interception of wire or oral communications. However, since Hueston was a party to the communication and voluntarily consented to wearing the body wire, no court order was necessary under the statute. Section 5704(2)(ii) provides that it is not unlawful for

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General ... or the district attorney ... has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception____

18 Pa.Cons.Stat.Ann. § 5704(2)(ii). Thus, § 5704 contains its own authorization requirements, which are specific to § 5704 and which supplant those found in § 5708 et seq. The Attorney General, the district attorney or their respective designees are designated by that section to approve the interception of a wire or oral communication where one party consents.

Appellant argues that § 5704 merely legalizes those interceptions made with the consent of one of the parties to the communication and does not provide for an alternative to the Superior Court approved required by § 5708. However, appellant’s construction of the section does not comport with the other provisions of the Act. Section 5721 (suppression of contents of intercepted communication) provides that any aggrieved person may move to suppress the contents of an intercepted oral communication on the following ground: “(3) The interception unless made in accordance with § 570J^. ... was not made in conformity with the order of authorization or in accordance with the requirements of § 5712____” (emphasis added). 18 Pa.Cons.Stat.Ann. § 5721(a)(3) (Purdon 1983). Thus, the Act specifically precludes an aggrieved person, such as appellant, from moving to suppress the contents of a communication intercepted with the consent of the other party on the very ground asserted by appellant: that the interception was not made pursuant to a court order. Appellant’s reading of § 5704 makes no sense in conjunction with this provision. Also, § 5704(2)(ii) specifically provides that the consensual interception is subject to the record keeping requirements of § 5714. Thus the section itself states the subsequent sections which are applicable to consensual interceptions of communications. In doing so, § 5704 does not apply the later sections dealing with court-ordered interceptions to consensual interceptions. Therefore, appellant’s claim that a court order was necessary in this case fails. See Com monwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (§ 5704 does not require the police to comply with the exacting standards of §§ 5708-5723); Commonwealth v. Checca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364, allowance of appeal denied, 341 Pa.Super. 480, 491 A.2d 1358 (1985) (same).

In the alternative, appellant argues that, by not requiring pre-interception judicial authorization, 18 Pa.Cons. Stats.Ann. § 5704(2)(ii) (Purdon 1983) offends Article 1, section 8 of the Pennsylvania Constitution. Appellant argues that the interception of oral communications is a search and is therefore constitutional only when authorized by a neutral magistrate upon a showing of probable cause. The police should have therefore obtained a warrant before recording the conversations between Hueston and appellant inside appellant’s car. Although we agree that the intercepting and recording of a person’s words does constitute a search and seizure, we reject this argument. Rather, we hold that a warrant based on probable cause is not constitutionally mandated before the interception of oral communications, with the consent of one of the parties, is undertaken in an automobile.

In Commonwealth v. Schaeffer, an en banc panel of this Court held that the interception and recording of a person’s words is a search and seizure. This Court in Schaeffer then proceeded to hold that Pennsylvania State Constitution requires a warrant for participant monitoring in the home. The home is regarded as a place in which a person’s expectations of privacy are of the highest degree. A person speaking in his home certainly speaks in circumstances justifying a belief that the police are not listening in as an “uninvited ear” through an alter ego, i.e., the informant. Schaeffer, 370 Pa.Super at 208-210, 536 A.2d at 369-370.

However, we cannot say that a person has the same expectation of privacy in his or her automobile as in the home. As the Pennsylvania Supreme Court stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978), “[u]pon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” On the contrary, a diminished expectation of privacy has traditionally been accorded to automobiles because of their open construction, their function, and their subjection to myriad state regulations. See Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980). A person does not completely exclude the world when he or she closes an automobile door. His or her sense of privacy is substantially diminished. A person cannot reasonably expect that anyone on the street to whom he or she chooses to give a ride, be it friend or hitchhiker, would be free of an electronic recording device.

The issue becomes, then, whether the search and seizure which is occurring in the automobile when a person’s words are being recorded or transmitted implicates the full-blown warrant requirements. Since not every search and seizure requires a warrant, the question is whether the search is unreasonable without one. In gauging the need for a warrant, we must balance the reduced privacy expectations of a person in an automobile with the need for effective use of electronic monitoring by law enforcement officials. See Commonwealth v. Johnston, 515 Pa. 454, 464, 530 A.2d 74, 79 (1987).

On one hand, we need to allow the police to use the electronic monitoring devices in an efficient, effective manner. The seizure of a conversation presents problems in regard to obtaining a warrant which are not found in the case of searching a house. For example, for purposes of the warrant, the conversations to be seized may very well be incapable of being stated with particularity as to substance, location or time. As in the case at hand, an informant who is taping a conversation on the open streets will not have the opportunity to obtain a warrant when the scene suddenly shifts to the suspect’s car. Much of the law enforcement utility of the electronic participant monitoring would be lost if search warrants were required before conversations could be recorded outside the home. On the other hand, the police should not be permitted to use this crime detection device at random or without reason, or much of our freedom would be eroded.

Therefore, some check must be placed on the indiscriminate use of participant monitoring by the police. In Commonwealth v. Johnston, supra, the Pennsylvania Supreme Court found a Fourth Amendment middle ground applicable to investigations conducted by police handlers of narcotic detection dogs. Like a canine sniff search, participant monitoring is inherently less intrusive upon an individual’s privacy than is a search of a person’s home or body. The requirement imposed on the canine sniff searches in Johnston would likewise check random use of participant monitoring by the police: law enforcement officials must have reasonable grounds for believing that the participant monitoring will record criminal activity.

The statute challenged in this case incorporates this reasonable grounds standard. Section 5704 permits consensual participant monitoring where a wire or. oral communication involves suspected criminal activities. 18 Pa.Cons.Stats. Ann. § 5704(2) (Purdon 1983). In granting approval for the monitoring, the Attorney General or the district attorney or their designees must review the facts. 18 Pa.Cons.Stat. Ann. § 5704(2)(ii) (Purdon 1983). Thus, the police must be able to articulate reasonable grounds for the monitoring, then the Attorney General or district attorney must find that in fact those reasonable grounds do exist. Thus, the statute itself imposes a double check against unreasonable seizures of a person’s conversations.

Applying this rule to the facts of this case, we find that the law enforcement officials did indeed have reasonable grounds to believe that appellant was involved in selling narcotics. The police received information that appellant was selling narcotics and, furthermore, would not sell them to any individuals he did not know. Arrangements were made to have appellant meet with Hueston for the purpose of conducting a drug transaction. An Assistant Attorney General interviewed Hueston personally before authorizing the body wire. The authorization was properly given.

Next appellant claims that certain references to prior criminal conduct on the tape recording admitted at trial tainted his trial. The references to which appellant objects were made by the appellant during the taped drug transaction with Hueston. The references are spoken in “drug jargon” and are nearly unintelligible. However, there is a chance that a juror may have recognized the language as refering to another drug transaction. Ordinarily, the admission of testimony from which the jury may infer past criminal conduct of the defendant constitutes reversible error. Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979). All such references, however, do not warrant reversal. An isolated passing reference to prior criminal activity will not warrant reversal unless actual prejudice resulted. Commonwealth v. Maute, 336 Pa.Super. 394, 403, 485 A.2d 1138, 1143 (1984). No such prejudice resulted here. The references were nearly unintelligible. The other evidence against appellant was overwhelming. He was identified by Hueston as the person who sold Hueston the cocaine. One of the state troopers corroborated crucial points of Hueston’s testimony. The Commonwealth did not exploit the references.

Moreover, appellant was well aware of the references on the tape before the tape was played to the jury because he had been given a transcript of the tape prior to trial. In spite of this knowledge, appellant delayed his objection until after the tape was played in its entirety to the jury. A timely objection by appellant before' the tape was played could have resulted in the allegedly offensive portions being removed. Moreover, appellant, for tactical reasons, declined the trial court’s offer to caution the jury regarding the references. Any prejudice which may have resulted could have been remedied by such instructions. In such a case, the trial court properly refused to declare a mistrial. Commonwealth v. Maute, 336 Pa.Super. at 404, 485 A.2d at 1143.

Appellant also alleges the following errors: 1) a “series of prejudicial events” denied him a fair trial; 2) the suppression court relied on mistaken findings of fact; 3) hearsay was improperly admitted; and, 4) the trial court should have reopened the case to submit an exhibit to the jury. After reviewing the record and reading the briefs submitted by counsel, we find no merit to any of these contentions. On these issues, we rely on the well-written opinion of the trial court in affirming appellant’s judgment of sentence.

We hereby affirm appellant’s judgment of sentence.

      . Appellant claims that Hueston did not voluntarily consent to wearing the body wire because Hueston had admitted to selling drugs while on parole and to not wanting to go back to jail. However, a decision to consent to the interception of a communication is not rendered involuntary merely because it is induced by a desire to avoid the possibility of a well-founded prosecution. Commonwealth v. Clark, 516 Pa. 599, 533 A.2d 1376 (1987). Moreover, the record shows that Hueston initiated his role as informant and did in fact voluntarily wear the body wire.

      . Appellant also claims that § 5704 violates the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, the separation of powers doctrine, and Article 3, section 32 of the Pennsylvania Constitution. After an examination of the record and reading of the briefs, we find these claims to be meritless. We therefore rely on the well-written opinion of the court below in dismissing these claims.

      . Appellant’s contention that the facts presented to the Attorney General’s office were too scanty to demonstrate suspected criminal activity fails. Appellant bases his argument on a memorandum which was submitted to the Attorney General’s office which was in fact scanty and contained misinformation. Appellant ignores the fact that, not only could the police articulate reasonable suspicion here, the Assistant Attorney General conducted a lengthy, personal interview with the informant himself. The suppression judge properly looked beyond the scope of the written document. Commonwealth v. Checca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364 (1985).

      . Appellant also challenges his sentence as being outside the sentencing guidelines. However, he has waived this challenge by failing to file in a timely manner his motion for modification of sentence under Pa.R.Crim.P. 1410 (ten days). Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218 (1985). We take note, however, that the sentencing court stated on the record that it was departing from the guidelines and stated its reasons for so doing. See also Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) (guidelines unconstitutional).


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    540 A.2d 938
    COMMONWEALTH of Pennsylvania v. James W. KNOWLES, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed March 9, 1988.
    Reargument Denied May 12, 1988.

      Mark S. Love, Mount Pocono, for appellant.
    Jane Roach, Assistant District Attorney, Allentown, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence following appellant’s jury conviction of driving under the influence (75 Pa.C.S.A. § 3731).

This appeal presents three issues for our consideration: (1) whether an accused must be informed of his right to have a physician of his own choice administer another chemical test; (2) whether a defendant meeting all admission criteria for A.R.D. acceptance, except for an imposed limitation on blood alcohol content, should be allowed admission into the program; and (3) whether the Monroe County A.R.D. program blood alcohol limitation criterion violates Pa.R.Crim.P. 6(c). Because none of these issues has merit, we affirm.

Appellant first argues that he should have been notified of his right to have a second blood sample drawn and tested by a physician of his own choice. Appellant requested a blood test and was transported to Pocono Hospital where one was administered in the presence of the arresting officer and after appellant was advised, in compliance with 75 Pa.C.S.A. § 1547(b)(1) and (2), that his failure to submit to chemical testing would result in a twelve-month license suspension by Penn Dot. The result of that blood test evinced a reading of .30 percent blood alcohol.

Section 1547(h) and (i), 75 Pa.C.S.A. § 1547(h) and (i) provides:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance.
(h) Test by personal physician. — The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person’s attempt to obtain an additional test.
(1) Request by driver for test. — Any person involved in an accident or placed under arrest for a violation of section 3731 may request a chemical test of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so.

As appellant readily concedes, nothing in the language of either subsection is even remotely suggestive of a mandate from the legislature that an accused be informed of his right to have a physician of his own choice draw and test blood. See, for example, Section 1547(b)(2), 75 Pa.C.S.A. § 1547(b)(2):

(b) Suspension for refusal.—
(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.

By way of comparison, the above-recited section states in unequivocal terms the duty of a police officer upon making an arrest for violation of any provision of Section 3731. Appellant has no quarrel that the clear import of Section 1547(h) and (i) does not lend itself to any question that his right to be so informed is not mandatory. Instead, appellant urges us to change the law in this regard in light of “weighty public policy considerations.” Appellant’s Brief, p. 10. We decline this invitation. It is not for us to resolve matters of public policy. This prerogative is vested in the legislature. Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964). Since appellant here questions the wisdom of a legislative enactment, not a judicial rule of law, any change urged by appellant must come from that former body. That which is advocated by appellant cannot be altered by judicial fiat, for it is not within the province of a judicial tribunal to pass upon the wisdom or not of the legislature in promulgating its enactments. See Dale Mfg. Co. v. Workmen’s Comp. Appeal Bd., 34 Pa.Cmwlth. 31, 382 A.2d 1256, aff'd, 491 Pa. 493, 421 A.2d 653 (1978), and Burtt’s Estate, 353 Pa. 217, 44 A.2d 670 (1945).

Appellant directs us to the law of two jurisdictions, the State of Washington and the Commonwealth of Massachusetts, both of which mandate that a person charged with driving under the influence be informed of his or her right to be examined and/or have additional testing performed by a physician or other qualified person of the accused’s own choosing. We note, however, that the laws in those jurisdictions are creatures of their respective legislatures, not of the courts. The function of the courts of any jurisdiction is to interpret an already existing legislative enactment, not to engraft on to it any novel conditions or mandates when its clear language does not lend itself to any such requirement similar to that suggested by appellant here. To do so would be a judicial usurpation of a legislative prerogative. See Krivosh v. City of Sharon, 205 Pa.Super. 498, 211 A.2d 109 (1965). The situation complained of here may only be remedied, if at all, by the legislature. See Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962).

The gravamen of appellant’s next issue is that the policy of the Monroe County District Attorney establishing a blood alcohol reading of .25 percent as the cut-off point for admission into that County’s A.R.D. program meets the abuse of prosecutorial discretion test established by our Supreme Court in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985).

In Lutz, our Supreme Court, after concluding that a candidate’s admission into an A.R.D. program rests in the sound discretion of the District Attorney, set forth prohibitions on this discretion which the court stated were wholly unrelated to the salutory purposes of A.R.D. — rehabilitation of the offender and the protection of society. Typical examples of such extraneous factors include race, religion and what the court termed “other such obviously prohibited considerations.” 508 Pa. at 310, 495 A.2d at 935. Our reading of Lutz does not convince us that appellant’s complaint concerning the .25 percent blood alcohol cut-off point qualifies as a prohibited consideration contemplated by the Lutz court to be wholly unrelated to the rehabilitative needs of the accused and the protection of the public.

Prior and subsequent to Lutz, similar, if not harsher, admissions criteria weathered constitutional and prosecutorial abuse attacks in our courts. In Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), our court upheld, in the face of an equal protection challenge, the policy of the District Attorney of Dauphin County to refuse to accept into that County’s A.R.D. program all drunk driving cases, maintaining, instead that the District Attorney’s exclusion of that class of intoxicated persons was neither unreasonable nor arbitrary. Subsequently, our Supreme Court upheld, again on equal protection grounds, a challenge to the refusal of the Cumberland County District Attorney to accept any first-time non-violent offenders for A.R.D. consideration. Pyle v. Court of Common Pleas, 494 Pa. 323, 431 A.2d 876 (1981). The Pyle court rejected the petitioners’ argument that the A.R.D. Rules promulgated by the Supreme Court (Pa.R.Crim.P. 175-185) mandated prosecutorial acceptance of cases for A.R.D. upon motion of a party other than the District Attorney. This was later reaffirmed by the Lutz court. More recently, this court held that the decision of the Lycoming County District Attorney to refuse to admit persons with prior felony records to the County’s A.R.D. program was not an abuse of the prosecutor’s discretion even though, in that particular case, appellant’s felony conviction had occurred thirteen years earlier. Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1986).

As we stated before, the purposes of the A.R.D. program are twofold — the rehabilitation of the accused and the protection 6f the public from operators who are considered menaces to the public welfare on this Commonwealth’s highways. Commonwealth v. Lutz, supra. See generally, Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983) (citing reports and statistics on drunk driving tragedies). The thrust of appellant’s contention here, we believe, has been squarely addressed by Lutz as follows:

Society has no interest in blindly maximizing the number of ARD’s passing through the criminal justice system---Rather, society, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society’s representative in the case, the district attorney, acting in conjunction with the court, and subject always to the restrictions set out in Section 3731(d) (concerning persons who may not be admitted to A.R.D.) determines that A.R.D. is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an A.R.D. program.

508 Pa. at 307, 495 A.2d at 933. With this in mind, we see no reason to diverge here from established precedent. We hold that the .25 percent cut-off policy instituted by the Monroe County District Attorney well serves the twofold purpose of the A.R.D. program as contemplated by the Rules of Procedure and the Lutz court. Corollary to this, we also find no abuse of discretion evident in setting the subject admission criterion.

Appellant’s third argument, that the .25 percent cutoff criterion does not comply with Pa.R.Crim.P. 6(c), is waived because of his failure to preserve it in his post-verdict motion. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). While appellant did set forth this issue in his Statement of Matters Complained of on Appeal filed pursuant to Pa.R.App.P. 1925(b), this Rule does not relieve an appellant of the necessity for preserving issues in written post-verdict motions. See Commonwealth v. Cargo, 498 Pa. 5, n. 7, 444 A.2d 639, n. 7 (1982). Hence, appellant’s final argument is not properly before us for consideration.

Judgment of sentence affirmed.

      . The information charged appellant with violation of Section 3731(a)(1) through and including (a)(4). The docket sheet of the trial court limits the charge to violation of Section 3731(a)(1) and (a)(4). The verdict of the jury was not transcribed, and the verdict slip merely indicates that appellant was found guilty of driving under the influence without elaboration of any subsection(s) thereof. Subsection (a)(2) prohibits operation of a motor vehicle while under the influence of any controlled substance. Subsection (a)(3) sets forth a similar prohibition for operating a motor vehicle under the combined influence of alcohol and any controlled substance detailed in subsection (a)(2). A review of the record fails to adduce any evidence to sustain a charge for violating either subsection (a)(2) or (a)(3), although the Commonwealth did present evidence of appellant’s blood alcohol level which was .30 percent. The arresting officer also noticed an odor of alcohol emanating from appellant and testified that appellant was unable to recite the alphabet properly.

        . In 1982, the Motor Vehicle Code was amended to include Section 1552 which calls for the establishment and implementation of an A program in each judicial district for persons charged with violating Section 3731 of the Code.


author: WIEAND, Judge:

text:
    540 A.2d 941
    Barry MAPP, Appellant, v. GIMBELS DEPARTMENT STORE, Gimbels Department Store, Wells Fargo Security Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1987.
    Filed March 10, 1988.
    Reargument Denied May 3, 1988.

      Ronald Ziegler, Philadelphia, for appellant.
    Lawrence L. Robinson, Philadelphia, for appellees.
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a department store is liable for injuries sustained by a shoplifter while being pursued and apprehended by a person who was not employed by the store. The trial court held that in the absence of a master-servant relationship by which the store acquired a right to control the pursuer, there could be no vicarious liability for the conduct of the pursuer in restraining the thief. We affirm.

On March 29, 1983, Barry Mapp was observed in the J.C. Penney department store in Upper Darby by security personnel who suspected that he might be a shoplifter. Michael DiDomenico, a security guard employed by J.C. Penney, followed Mapp when he left the store and proceeded to Gimbels department store. There, DiDomenico notified Rosemary Federchok, a Gimbels security guard, regarding his suspicions. Without any request for assistance, DiDomenico determined that he would remain to assist in case Federchok, a short woman of slight build, required help in dealing with Mapp in the event he committed an offense in Gimbels. It came as no surprise when Mapp was observed taking items from the men’s department of the store. When Mapp attempted to escape, he was pursued. Although Federchok was unable to keep up, DiDomenico continued to pursue Mapp and ultimately apprehended him in the lower level of the Gimbels parking lot. When Federchok arrived with Upper Darby police, merchandise which had been taken from Gimbels was recovered. Mapp, who had been injured when he jumped from one level of the parking lot to another, was taken to the Delaware County Memorial Hospital where he was treated for a broken ankle.

On March 27, 1985, Mapp commenced an action against Gimbels for injuries sustained while being chased and apprehended by DiDomenico. Mapp alleged in his complaint that DiDomenico, while acting as an agent of Gimbels, had chased him, had struck him with a nightstick, and had beat him with his fists. After the pleadings were closed and pretrial discovery completed, Gimbels moved for summary judgment. The trial court determined that there was no issue of fact regarding Gimbels’ possible liability and entered the requested summary judgment. DiDomenico, the trial court concluded, “was acting of his own volition as an employee for [J.C. Penney] in instigating surveillance of [Mapp] and following him into the parking lot.” On appeal, Mapp argues that there was an implied master-servant relationship between Gimbels and DiDomenico which was sufficient to make Gimbels vicariously liable for DiDomenico’s conduct. We disagree and affirm the judgment entered by the trial court.

In Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984), this Court defined the role of a motion for summary judgment under Pa.R.C.P. 1035 as follows:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Id., 328 Pa.Superior Ct. at 140-141, 476 A.2d at 930-931.

It is beyond dispute in the instant case that DiDomenico was not at any relevant time employed by or subject to a right of control by Gimbels. An agency results only if there is an agreement for the creation of a fiduciary relationship with control by the principal. Smalich v. Westfall, 440 Pa. 409, 414, 269 A.2d 476, 480 (1970). “The basic elements of agency are ‘the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.’ ” Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980), quoting Restatement (Second) of Agency § 1, Comment b (1958).

“ ‘A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.’ ” Smalich v. Westfall, supra 440 Pa. at 414, 269 A.2d at 481, quoting Restatement (Second), Agency § 2(1) and (2) (emphasis in original). “The relation of employer and employe exists when a party has the right to select the employe, the power to discharge him, and the right to direct both the work to be done and the manner in which such work shall be done.” Sweet v. Pennsylvania Labor Relations Bd., 457 Pa. 456, 462, 322 A.2d 362, 365 (1974).

There was no agreement between Gimbels and DiDomenico that DiDomenico would act on behalf of Gimbels or that he would become subject to the right of Gimbels to oversee and direct the manner in which his surveillance was to be conducted. While working for J.C. Penney, DiDomenico had followed Mapp into Gimbels. He remained there without invitation and at his own instance. His assistance was neither requested nor sought by Gimbels or by anyone on its behalf. Therefore, DiDomenico was acting on his own and not as an agent or employee of Gimbels when he chased Mapp through the parking area and apprehended him in the lower parking area. Contrary to appellant’s contention, there is no evidentiary basis for asserting the existence of an agreement of assistance between Gimbels and J.C. Penney whereby the security personnel of one store was authorized to provide assistance to the other in apprehending shoplifters.

In the absence of a right to control the conduct of DiDomenico’s work, Gimbels cannot be liable for injuries which he inflicted during his chase and apprehension of appellant, a shoplifter. The trial court properly entered summary judgment in Gimbels favor.

Affirmed.

      . Other merchandise found in Mapp’s possession had been purchased at another store and was returned to Mapp’s family.


author: HESTER, Judge:

text:
    540 A.2d 944
    Robert COX and Gloria Cox, his wife v. TURNER CONSTRUCTION COMPANY, Appellant, v. OTIS ELEVATOR COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed April 13, 1988.

      Louis C. Long, Pittsburgh, for appellant.
    Edward J. Balzarini, Jr., Pittsburgh, for Cox, appellees.
    Before BECK, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Turner Construction Company (“Turner”) appeals from the judgment entered following a jury verdict in favor of plaintiffs, Robert and Gloria Cox. Turner seeks reversal on the basis of alleged trial errors, chief among them the trial court’s refusal to hold that Turner was plaintiff-Robert Cox’s statutory employer under the Workmen’s Compensation Act. Finding no merit to Turner’s contentions, we affirm.

United States Steel Corporation planned to construct a skyscraper on a site which it owned on Grant Street in Pittsburgh. It designated USS Realty Development (“USR”), a division of United States Steel Corporation, as construction manager for the project. USR contracted with Turner to be the contractor, and negotiated a separate contract with Otis Elevator Company (“Otis”) to install the elevators and escalators. Plaintiff, Robert Cox, whose injury led to this action, was an employee of Otis. Although it was Turner’s responsibility to supervise the construction, it did not subcontract Otis; rather, USR itself subcontracted Otis. Turner’s contract with USR provided:

Under no circumstances shall contractor without the express written consent of USR, enter into any contracts for the construction of the Dravo Tower, it being the intent of USR to enter into all such contracts directly and thereafter (except as to the obligations of USR to make payment for work satisfactorily completed by the subcontractor and accepted by USR, the Contractor, and Architect) USR shall assign all of its contracts to Contractor.

USR also reserved the right to receive payments from subcontractors in the event that it incurred special expenses or damages as a result of subcontractors’ activities. The contract which USR entered into with Otis provided for the partial assignment of USR’s rights and liabilities to Turner.

During the course of construction, plaintiff, an elevator mechanic for Otis, was assigned to transport to the thirtieth floor a load of materials and a Johnson bar dolly. Contrary to standards set by the American National Standards Institute, the Associated General Contractors of America, and the National Safety Council, the hoist (elevator) in which plaintiff was riding was not completely enclosed, and the Johnson bar protruded out the unenclosed side. As the hoist passed the fifteenth floor, descending elevator counterweights struck the protruding Johnson bar, jolting the hoist and knocking the plaintiff down. His foot dangled off the side of the hoist and was crushed between the floor of the hoist and the door sills of two floors of the building. This action against Turner followed.

Following a jury trial, a verdict was entered in plaintiffs favor finding Turner sixty-five percent negligent in causing plaintiffs injuries and awarding damages in the sum of $119,619.50. The trial court rejected Turner's contention that it was plaintiffs statutory employer, finding it was not immune from common law liability. We agree.

In assessing Turner’s contention that it was the injured employee’s statutory employer, we are mindful of the following guidelines:

[VJery great care ... must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge____

Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 106, 231 A.2d 894, 898 (1967). See Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987).

In construing section 203 of the Workmen’s Compensation Act, our courts have held that five elements must be present before a contractor may be considered the statutory employer of another contractor’s employees.

To create the relation of statutory employer under section 203 of the act, all of the following elements essential to a statutory employer’s liability must be present: (1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of the such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

McDonald v. Levinson Steel Co., 302 Pa. 287, 294-95, 153 A. 424, 426 (1930). See Zizza v. Dresher Mechanical Contractors, 358 Pa.Super. 600, 518 A.2d 302 (1986) (en banc); O’Boyle et ux. v. J.C.A. Corp., at al., 372 Pa.Super. 1, 538 A.2d 915 (1988); Dume v. Elkcom Company, Inc., 368 Pa.Super. 280, 533 A.2d 1063 (1987); Grant v. Riverside Corp., supra. McDonald, supra, labeled these criteria as “essential.” Stipanovich v. Westinghouse Electric Corp., supra, characterized them as “strict” requirements.

It is undisputed that Turner satisfied the first two and final two elements of the McDonald test. At issue is whether it satisfied the third element — “a subcontract made by such employer.” Turner did not subcontract directly with Otis. Construing the third element of the McDonald test strictly, as Stipanovich, supra, stated we must, the absence of a “subcontract made by” Turner defeats its contention that it was plaintiff’s statutory employer.

The viability of the requirement of a “subcontract made by” the contractor seeking statutory employer status was recently reaffirmed by this court in Grant v. Riverside Corp., supra. In Grant, the general contractor hired both Riverside Corporation and Reiling as subcontractors. Riverside agreed to install a hoist, and Reiling agreed to provide miscellaneous metal work and skilled ironworkers. Plaintiff’s decedent, an employee of Reiling, fell to his death while working in the hoist. Plaintiff sued Riverside, and a jury verdict was entered in plaintiff’s favor. On appeal, a panel of this court affirmed judgment, rejecting Riverside’s contention that it should be afforded common law immunity as a statutory employer. We found that there was no “vertical relationship” between Riverside and Reiling as both were subcontractors hired by the general contractor. “Riverside,” we wrote, “did not subcontract Reiling.” Id., 364 Pa.Superior Ct. at 601, 528 A.2d at 966. Likewise in the instant case, Turner did not subcontract Otis; rather, Otis was subcontracted by USR. Therefore, Turner should not be afforded immunity from common law liability.

Turner argues that despite the absence of a subcontract made by Turner with Otis, Turner should not be denied statutory employer status since a subcontracting relationship existed between them.

The agreement gave Turner full control over the job site ... and directed Turner to coordinate the work of all subcontractors____ The contract between Otis Elevator and USR likewise recognized the centrality of Turner’s role in the construction project by identifying Turner as the ‘general contractor for the [p]roject’ and instructing Otis, called the subcontractor, ‘to deal with Turner in all matters relating to this [agreement and [to] perform the [w]ork to the entire satisfaction of Turner.’
USR’s own contract with Turner gave Turner full control____ USR’s subcontract with Otis Elevator ratifies its laissez-faire attitude____ Moreover, Otis agreed to perform to the satisfaction of Turner, not USR____

Appellant’s brief at 17 and 21. As these passages illustrate, Turner would have us hold that the control which it exercised over the construction project is evidence that the contractual arrangement was the “functional equivalent” of a subcontract. We disagree. Turner’s control over the project is not an appropriate consideration in assessing whether the third prong of the McDonald test has been satisfied. Rather, a finding that Turner exercised control over the project would appear to support a holding that the second prong of the McDonald test — “premises occupied by or under the control of such employer” — has been satisfied. The second prong, however, is not at issue instantly; it is undisputed that it has been satisfied. Moreover, the second and third prongs of the McDonald test are distinct, and evidence which tends to prove the existence of one will not prove the existence of the other. We recently articulated this point in Grant v. Riverside, supra, where we denied Riverside statutory employer status since it did not enter into a subcontract with the injured worker’s employer, Reiling. We noted, “Even were we to find that Riverside was in joint control of the work premises with [the general contractor], Riverside did not subcontract Reiling.” Id. at 601, 528 A.2d at 966. Likewise instantly, Turner’s control over the project lends no support to the argument that Turner subcontracted Otis.

In arguing that it should be considered plaintiff’s statutory employer, Turner stresses the fact that USR assigned its contract with Otis to Turner and that the USR-Otis contract contemplated this assignment ab initio. We do not believe that the assignment of the USR-Otis contract to Turner, which was in reality a partial assignment, supports a holding that Turner subcontracted Otis.

It is well-settled that “[a]n assignment does not confer upon the assignee any greater right, power, or interest than that possessed by the assignor.” Pennsylvania Higher Education Assistance Agency v. Devore, 267 Pa.Super. 74, 406 A.2d 343, 344 (1979). USR, standing in the owner’s shoes, cannot be considered a statutory employer. McDonald v. Levinson Steel Co., supra; Zizza v. Dresher Mechanical Contractors, Inc., supra. Therefore, USR could not confer upon Turner, by means of the assignment, an immunity from common law liability which it did not possess.

Similarly lacking in merit is Turner's contention that a novation was effected. According to Turner, “Otis agreed to accept Turner as the general contractor and it released the owner of the consequences of Turner’s performance under the contract.” Appellant’s brief at 21.

A valid novation entails “the displacement and extinction of a valid contract, the substitution for it of a new contract ... a sufficient legal consideration for the new contract and the consent of the parties.” Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 317, 478 A.2d 484, 486 (1984) (emphasis in original). The contract between Otis and USR was not displaced; nor did a new Turner-Otis contract take its place. USR retained certain rights, including the right to act as construction manager and to make payments to Otis only after approving its work. Therefore, a novation was not effected.

The statutory employer provision was enacted to insure that injured workers whose employers failed to carry compensation insurance would not be denied relief. Stipanovich v. Westinghouse Electric Corp., supra. Soon thereafter, contractors “seized upon” the provision in hopes of reaping immunity from common law negligence liability. In response to this, our supreme court, in McDonald v. Levinson Steel Co., supra, set forth its five strict criteria. In the instant case, the contractor seeking immunity from common law liability, Turner, was found by a jury to have been negligent. The purposes for which the statutory employer provision was created would not be advanced by holding that, under the unique facts of the instant partial assignment arrangement, the McDonald criteria have been satisfied. These criteria should be applied strictly, especially where a negligent contractor seeks asylum from common law liability. The holding which Turner would have us reach would serve only to erect a shield behind which future negligent contractors would be permitted to hide. To this we decline to lend our approval.

Turner also raises assertions of trial court error in instructing the jury. It argues that the court erred in refusing to instruct the jury that the mere happening of an accident is not evidence of negligence. “This requested charge,” according to Turner, “would have explained to the jury that one of the permissible findings was that neither Turner nor the plaintiff was legally responsible for the accident.” Appellant’s brief at .25. This contention is meritless. In assessing this argument, we note the following guidelines:

The failure to give a requested point for charge, which is accurate and applicable, is reversible error if the appellant has been prejudiced____ ‘An omission to charge which leaves the jury without discretion on an important question, or which plainly tends to mislead them, is cause for reversal.’

Furey v. Thomas Jefferson Univ. Hosp., 325 Pa.Super. 212, 227, 472 A.2d 1083, 1091 (1984) (citation omitted).

Turner’s contention that the court’s failure to give the instruction constitutes reversible error is made without reference to supporting caselaw and is lacking in substance. The charge contained ample instruction that the jury was to decide whether Turner was negligent and whether such negligence was a substantial factor in bringing about plaintiffs injury. The court carefully defined negligence and substantial factor, and it noted Turner’s assertion that plaintiff was contributorily negligent. Notes of Testimony, (N.T.), 4/7/86, at 424-81. It defies reason to suggest that the jury believed it was required to find that either Turner was negligent or that plaintiff was contributorily negligent. Therefore, the requested point was unnecessary and the instant assertion is meritless.

Turner also argues that the trial court erred in instructing the jury on the following point:

The Plaintiffs in their case allege that the Defendant Turner Construction Company was expressly responsible for the safety and protection of workers on this project and was obligated and had the duty to implement supervising force and take any corrective measures in this regard.
The Plaintiffs further allege that the Defendant, Turner Construction Company, was negligent in failing to carry out those duties in connection with the S-l elevator upon which the husband Plaintiff was injured.

This point, according to Turner, included the concept embodied in Restatement (Second) of Torts, § 324A. Turner argues the charge was erroneous because “an essential element of recovery under section 824A ... is an increase of the risk of harm____ There was no evidence that any conduct of Turner’s increased the risk of harm to plaintiff.” Appellant’s brief at 26.

We may not review this assertion as it has been waived due to Turner’s failure to raise it with specificity in post-trial motions. Turner’s post-trial motions included the following:

The erred [sic] in granting plaintiffs’ Point for Charge regarding the legal principle set forth in Restatement, Torts, Second, Section 324(A); defendant asserted the grounds therefor by excepting to the trial judge charging in accordance with Restatement, Torts, Second 234(A).

The broad post-trial motion did not mention the specific error now asserted — that there was no evidence that any conduct of Turner’s increased the risk of harm to plaintiff. Moreover, at trial Turner’s counsel objected to the charge in the following manner:

I would take exception to the charge on Restatement 324A which has to do with the vicarious liability of the general contractor for the subcontractor. I don’t believe that’s applicable in this instance because, again, I believe this is a situation of collateral negligence of an independent contractor.

N.T., 4/7/86, at 451-52. This objection appears to be unrelated to the contention raised on appeal. Section 324(A) contains numerous elements and the broad post-trial motion, coupled with the objection made at trial, failed to adequately focus the trial court’s attention on the argument for which relief is now sought. Inasmuch as we have no indication of record that the trial court was presented the specific argument now raised on appeal, we must consider this assertion waived. See Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978); Pa.R.C.P. 227.1(b).

Turner also argues that the court erred in instructing the jury in accordance with § 416 of the Restatement (Second) of Torts. That section states:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

Turner contends that the evidence showed no peculiar risks or special precautions taken; rather, the evidence merely showed activities which were typical to a construction project. Turner cites the rule that an employer of a contractor is not liable for ordinary negligence in the performance of the work. Moreover, Turner complains that the court did not define “peculiar risk” or “special circumstances.” These contentions are meritless.

The operation of an unenclosed hoist contrary to safety regulations constitutes a peculiar risk of harm. In Jacobini v. I.B.M. Corp., 57 D & C 2d 8, 12; aff'd. per curiam, 222 Pa.Super. 750, 294 A.2d 756 (1972), the court stated:

[T]he operation of a hoist which is not enclosed with meshing as dictated by regulation involves intrinsically a peculiar risk of physical harm no matter how carefully one might operate it. We would be inclined to hold otherwise if the accident ... resulted from ordinary negligence, e.g., if a worker negligently dropped a bucket of cement while removing it from the bucket hoist. But, to posit that the operation of an unenclosed elevator is not dangerous in and of itself seems totally disoriented from realistic and reasonable concepts of responsibility.

We agree with this reasoning. The evidence clearly showed that a peculiar risk of harm existed.

As for the trial court’s failure to define the terms “peculiar risk” and “special precaution,” we agree with the trial court’s rationale that “the terms are both in common usage and required no further definition by the Court.” Trial court opinion at 2. Therefore, this assertion is merit-less.

Judgment affirmed.

BECK, J., concurs in the result.

      . Turner’s brief on appeal states at page 8: "Mr. Miller, a Turner superintendent, ... testified that Turner contracts to complete the entire project, including elevators, and that it then subcontracts the work.” In fact, Ronald Miller testified that in the typical construction project, Turner subcontracts the work; however, Miller stated he was not familiar with the particular contractual arrangement in question, and specifically did not know whether the owner had itself separately contracted with Otis. It is not disputed that USR directly subcontracted Otis in this case. Miller’s testimony may be read to support a conclusion that the instant contractual arrangement was not typical for Turner.

      . We disagree with appellees’ contention that Turner waived its immunity defense by failing to plead it as an affirmative defense in its original answer to plaintiffs complaint. In LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986), our supreme court held that the Workmen’s Compensation Act is not an affirmative defense which may be waived if not timely pled.

      . Turner argues that plaintiff is, in effect, estopped from arguing that Turner did not subcontract Otis because plaintiffs chose to seek recovery based upon § 416 Restatement (Second) of Torts. That section applies to "[o]ne who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm____” Turner contends that plaintiff cannot now retreat from his tactic of arguing that Turner employed Otis.
      Turner’s assertion is meritless. The Restatement of Torts and the statutory employer provision were obviously written to address different needs. It is conceded that, in one sense, Turner acted as an employer, and for the purposes of the Restatement of Torts it may be considered as such. The "statutory employer” definition is much stricter, however, requiring that five "essential” factors be present, including a subcontract made by the party seeking statutory employer status. It simply would be inappropriate to apply the Restatement of Torts to the question of whether Turner is a statutory employer under the Workmen's Compensation Act.

      . Turner cites Springer v. United Engineers and Construction, Inc., 272 F.Supp. 833 (W.D.Pa.1967) in support of the holding it would have us reach. Springer, which has no binding precedential effect on our disposition, is distinguishable. There, the landowner subcontracted Babcock & Wilcox, the injured plaintiff’s employer, to perform work on a boiler. The landowner subsequently assigned its contract with Babcock to United Engineers, another subcontractor. Importantly, United Engineers and Babcock entered into a "separate arrangement” for Babcock to do work on a clear well tank. It was while he was performing work on the latter project that plaintiff was injured. The district court held that United Engineers was plaintiff's statutory employer. Unlike the instant case, United Engineers entered into a separate arrangement with the immediate employer of the plaintiff. Moreover, unlike the instant case, the Springer court found that a novation had been effected.
      Turner also cites Capozzoli v. Stone & Webster Eng. Corp., supra, which is also distinguishable. There, Publicker Commercial Alcohol Company (the owner) entered into a contractual arrangement with Stone & Webster Engineering Corporation and P.C. Hull. The injured plaintiff was an employee of Hull. Our supreme court held that Stone & Webster was plaintiff’s statutory employer. Plaintiff argued that Stone & Webster was not its statutory employer due to the fact that he was hired by the owner, Publicker. Capozzoli is. distinguishable in that Publicker (the owner), Stone & Webster (the statutory employer), and Hull (plaintiffs immediate employer) all entered into a single contract by which their rights and obligations were enumerated. Thus, unlike the instant case, the court was not called upon to decide a question concerning a partial assignment. Moreover, our review of Capozzoli fails to reveal a citation to McDonald v. Levinson Steel Co., supra, or a discussion of its five criteria. Thus, we do not have the benefit of the court’s analysis as to how the Capozzoli facts satisfied the third criteria of McDonald. Now, more than forty years after the Capozzoli decision, our appellate decisions firmly recognize the viability of the McDonald factors, and regard them as "strict" criteria. See Stipanovich v. Westinghouse Electric Corp., supra. See also Grant v. Riverside, supra. Grant involves facts which are similar to Capozzoli, yet the Grant court emphasized the third element of the McDonald test as controlling. Consistent with the trend of our appellate decisions in recent years, the Capozzoli holding should not be read as expansively as Turner suggests.

      . Turner suggests that the instant assignment arrangement is the functional equivalent of a subcontract made by Turner. We are not prepared to agree. Such a holding could engender subtle, yet practical and significant, changes in the law. It could have the deleterious precedential effect of affording contractors in Turner’s position statutory employer status based on an assignment arrangement, despite the fact that they have not actually selected at least the first subcontractor beneath them in the chain of command.

        Under section 203 of the Act, our courts have held that if the immediate employer of the injured worker carries compensation insurance, the statutory employer is held only secondarily liable and still retains its common law immunity in exchange for its secondary liability. See A. Barbieri, Pennsylvania Workmen’s Compensation and Occupational Disease § 4.09(3) (1975); Cranshaw Construction Inc., v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981); Capozzoli v. Stone & Webster Eng. Corp., 352 Pa. 183, 42 A.2d 524 (1945). By affording the statutory employer the right to select at least the first contractor beneath him, the law allows him to require that the contractor carry compensation insurance as a condition of being hired.
      Under the holding that Turner would have us reach, the statutory employer would not necessarily have the right either to select any of his subcontractors or to require that they carry compensation insurance. Thus, he would potentially lose the ability to make himself only secondarily liable. He would also potentially lose the ability to select only those subcontractors whose safety records proved acceptable to him. Yet, despite losing the right of selection, presumably he would nevertheless remain liable for compensation even in those instances where he is not negligent. Turner's assertion that the instant contractual arrangement is the functional equivalent of a subcontract made by Turner would be more plausible were it shown that Turner had greater control, not merely over the actual construction, but also over the selection of at least the subcontractor immediately beneath him.


author: POPOVICH, Judge:

text:
    540 A.2d 951
    Rick L. MULL and Dianne L. Mull, His Wife, Appellants, v. Abraham F. KERSTETTER.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1988.
    Filed April 20, 1988.

      Andrew H. Dowling, Harrisburg, for appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Snyder County sustaining the preliminary objections in the nature of a demurrer of the defendant/appellee/ Abraham F. Kerstetter and dismissing the complaint of the plaintiffs/appellants/Rick L. and Dianne L. Mull, his wife. We reverse.

In assessing the propriety of the actions of the court below, we must keep the following in mind; namely:

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that the plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Papieves v. Lawrence, supra. If there is any doubt, this should be resolved in favor of overruling the demurrer.

Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976).

In light of the aforementioned, we start our review with an examination of the plaintiffs’ complaint. It is alleged therein that, at approximately 12:30 a.m. on the 14th day of May, 1985, Rick L. Mull, a volunteer fireman, responded to a fire alarm called in by the defendant at his premises. Once at the scene, “the Plaintiff was hosing the fire when he stepped into an open window well, which was unguarded, unmarked and unprotected causing serious bodily injuries to the Plaintiff.” (Paragraph 7)

Further, the plaintiff avers that, as a business invitee on the defendant’s premises, he was owed “a higher degree of care than the social invitee or trespasser.” (Paragraph 11) Thus, it is the plaintiff’s contention that the defendant’s failure to illuminate the yard, to warn about the holes or to keep the plaintiff from “falling into the dangerous pit or well” imputed negligence to the defendant and held him accountable for the injuries sustained and the damages incurred now and in the future for allowing a dangerous condition to subsist on his premises and taking no steps to remedy the hazard. (Paragraph 10) In particular, the plaintiff seeks recovery for the loss of his present and future income because of his inability to use the fingers on his right hand. He asks also for damages stemming from his pain and suffering and reimbursement for his medical treatment.

In count II of the complaint, the plaintiff/wife seeks compensation for the loss of consortium, companionship and society with her plaintiff/husband.

In response thereto, the defendant filed preliminary objections in the nature of a demurrer restricted to the sole contention that the complaint failed to state a cause of action upon which relief could be granted, and, thus, called for its dismissal. A brief was also filed in support of the preliminary objections and discounted the plaintiff’s ability to recover for his injuries under what is commonly known as the “Fireman’s Rule”, which bars suit for an act of ordinary negligence that creates the occasion for the presence of a firefighter or a police officer at the place where he is injured. See Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983). The “Fireman’s Rule” is accepted by some jurisdictions but not yet in Pennsylvania, so stated the defendant.

The plaintiff filed a reply brief in opposition to the defendant’s preliminary objections. With the position of both parties squarely stated, the court entered a ruling in favor of the defendant and against the plaintiff on the basis of the “Fireman’s Rule”, a rule which it found to exist in this jurisdiction. See Lower Court’s Opinion at page 4, citing Ruhl v. Philadelphia, 346 Pa. 214, 29 A.2d 784 (1943) for such a proposition. A timely appeal was filed with this Court.

The central issue to be decided by this Court, which is one of first impression, relates to whether the “Fireman’s Rule” is law in this jurisdiction, and, if so, whether it precludes the plaintiff/volunteer fireman from recovering for injuries sustained on the defendant’s property while extinguishing a fire.

The court below is of the mind that the “Fireman’s Rule” has been adopted in this jurisdiction and does so on the basis of Ruhl v. Philadelphia, supra. On the other hand, it has been noted by two District Courts that the Pennsylvania Supreme Court has yet to consider whether to adopt the “Fireman’s Rule”. See Price v. Tempo, Inc., 603 F.Supp. 1359, 1365 (E.D.Pa.1985) and Herman v. Welland Chemical, Ltd., 580 F.Supp. 823, 831 (M.D.Pa.1984). To the same effect see Concurring and Dissenting Opinion of Justice Roberts in Kinney v. Sun Oil Co., 437 Pa. 80, 89 n. 3, 262 A.2d 128, 131 n. 3 (1970).

Our examination of the case law on the subject at hand, albeit sparse, leads us to conclude that the Pennsylvania Supreme Court is not predisposed to adopt the “Fireman’s Rule”, regardless of whether it be the version that firemen assume the risk of any and all injuries that may befall them while they are on duty or that the rule extends only to negligence which brings firemen to the scene. See Herman v. Welland Chemical, Ltd., supra. We do so on the strength of the still viable 1943 decision of our Supreme Court in Ruhl v. Philadelphia, supra, which the court below has misinterpreted in support of its contrary position.

It appears from the opinion written in Ruhl v. Philadelphia, supra, that the decedent, a fireman, was directed by his superior to stand on the opposite side of the street from where the fire was located and to remain there until further notice. This location was considered to be “perfectly safe” by his superior because the fire was across the street. However, fifteen minutes after an explosion on the street opposite to where the decedent stood occurred, a second explosion took place within the premises situated behind the decedent and caused his death.

In the course of affirming the judgment and concluding that the decedent/appellee was not guilty of contributory negligence nor did he assume the risk of injury by his status as a fireman, the Supreme Court stated:

As above stated, Ruhl was when he was killed in the place he was ordered to go and which was considered by his superior officer, as safe. On this phase of the case the court below aptly says: “It is what a fireman is doing at the time he is hurt that matters, not the mere fact that he is a fireman. In Drake v. Fenton, 237 Pa. 8, 85 A. 14, a fireman on duty inside a burning building was allowed to recover because he fell down an elevator shaft that was unguarded contrary to law. See also Fry v. Brubaker, 1921, 77 Pa.Super. 438 and Dillon v. [Allegheny County] Light Co., 179 Pa. 482, 36 A. 164. It is one thing to say that a fireman who has gone into a danger zone must take what he gets, and quite another to say that a person who stops short of the danger zone cannot recover because he is a fireman.”
4 Thompson on Negligence, sec. 4618, lays down this principle, which is abundantly sustained by the authorities: “The servant does not accept the risk of dangers proceeding from the special or unforeseen negligence of the master, or of those for whose conduct the master is responsible, or of the negligences of the master which are unknown to him, such dangers not being ordinarily incident to the business.” See also 39 C.J. sec. 882, p. 684. It clearly cannot be said as a matter of law that the decedent as a fire patrolman assumed the risk of being killed in a gas explosion which resulted from the fire he officially attended. Such a risk was not ordinarily incident to the discharge of his duties nor did he have any actual or constructive knowledge of it with full appreciation of the special dangers confronting him. There is no proof that Ruhl smelled gas before the second explosion or that he had any reason to apprehend a second explosion of gas. There is proof that some of his fellow patrolmen smelled no gas. Ruhl had been at the scene less than ten minutes. He went there to perform his duty. It was for the jury to say whether Ruhl showed want of care under the circumstances.

346 Pa. at 220-21, 29 A.2d at 787.

Instantly, the plaintiffs claim that the defendant was negligent in maintaining a hazardous condition on his premises in the form of “window wells”, approximately three to four feet in depth, the detection of which was impaired, purportedly, by the lateness of the hour and the absence of illumination as to their location. Accordingly, as we read the complaint, the “breach of duty here asserted does not concern itself with the manner in which the fire was started. Rather, it involves the duty owed to any licensee who enters the premises — it is a duty to warn of dangerous hidden conditions.” See Concurring and Dissenting Opinion of Justice Roberts in Kinney v. Sun Oil Co., supra, 437 Pa. at 89, 262 A.2d at 132 (footnote omitted).

In other words, reference to the “Fireman’s Rule” was inappropriate to the disposition of the defendant’s preliminary objections. Instead, given Ruhl’s preoccupation with the complainant’s conduct (“what was he doing at the time he was hurt”), as opposed to his appellation (“fireman”), the court below should have determined the sufficiency of the complaint under a negligence standard, i.e., was there an allegation of a duty owed the plaintiff by the defendant (either statutory or common law)?, was there a breach of the duty asserted?, and did the plaintiff sustain any injuries as a proximate cause of the breach of the duty owed by the defendant? Id.; see also Prosser on Torts, § 30 (4th Ed.1971).

In light of the error of law committed by the court below, i.e., relying on the “Fireman’s Rule” to sustain the defendant’s preliminary objections on a per se rule that firemen assume the risk of their on-duty injuries as a matter of law, it must be rejected. See Ruhl v. Philadelphia, supra; Herman v. Welland Chemical, Ltd., supra. As a result, we deem it prudent to reverse the order appealed and remand to afford the court below the opportunity to assess the sufficiency of the complaint under general principles of negligence law. This is proper since the plaintiffs’ complaint does not indicate on its face, given our ruling this day, that their claim cannot be sustained, nor that the law will not permit them recovery. See Gekas v. Shapp, supra; Herman v. Welland Chemical, Ltd., supra; cf. Bennett v. Kurland, 21 Pa.D. & C.2d 587, 589-90 (Luzerne County 1959).

We caution that if a determination is made that the complaint is not deficient in the law of pleading in alleging a cause of action premised upon negligence, it will be for the jury/fact-finder to decide ultimately whether the plaintiff showed a want of due care under the circumstances to recover damages. See Ruhl v. Philadelphia, supra; Concurring and Dissenting Opinion of Justice Roberts in Kinney v. Sun Oil Co., supra; see also Hild v. Montgomery, 342 Pa. 42, 20 A.2d 228 (1941); Bennett v. Kurland, supra.

Order reversed and case remanded for proceedings not inconsistent with the opinion herein written. Jurisdiction is not retained.

      . To the extent that a Common Pleas Court has implied otherwise (see Suttie v. Sun Oil Co., 15 Pa.D & C 3 (Philadelphia County 1931)), the ruling is not binding on Superior Court. See Turner v. May Corp., 285 Pa.Super. 241, 252 n. 7, 427 A.2d 203, 208 n. 7 (1981).

      . As we have stated in Mohn v. Hahnemann Medical College and Hosp., 357 Pa.Super. 173, 176, 515 A.2d 920, 922 (1986), the passage of time does not debilitate the vitality of a court ruling. Thus, we do not hesitate to look to Ruhl v. Philadelphia, supra, in making our decision.

      . We note that the jurisdictions are split as to whether the complainant is to be labelled an invitee or a licensee in the context of a fireman being injured on the job and seeking the recoupment of damages to compensate him for the injuries incurred. See 11 ALR 4th 597; Concurring and Dissenting Opinion of Justice Roberts in Kinney v. Sun Oil Co., 437 Pa. 80, 89-90 n. 4, 262 A.2d 128, 132 n. 4 (1970). We have been presented with no persuasive argument to treat the plaintiff herein as anyone other than a licensee in assessing his claim.


author: BROSKY, Judge: BECK, Judge,

text:
    540 A.2d 954
    Tina M. MARSHALL v. Elvin P. ROSS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 1, 1988.
    Filed April 26, 1988.

      Lawrence E. Frankel,- Philadelphia, for appellant.
    Before BROSKY, BECK and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from the Order entered by the trial court denying appellant’s exceptions and entering an Order for Child Support in the amount of $184.00 bi-weekly plus $6.00 in arrearages for the support of one child.

Appellant presents the following questions for our review: (1) whether the trial court erred in rigidly following the Philadelphia County Child Support Guidelines; (2) whether the trial court erred by disregarding appellee’s testimony, which demonstrated that the actual needs of the child were substantially less than what the Guidelines would allocate; (3) whether the trial court erred by considering appellee’s child care expenses as additional needs of the child; (4) whether the trial court erred by failing to consider, as income to appellee, money she receives as support for her other children; and (5) whether the trial court erred by failing to consider appellant’s expenses which are related to his child who lives with him.

For the reasons that follow, we respectfully vacate the decision of the trial court and remand for further proceedings.

Appellee-mother and appellant-father are the parents of a minor child, who was born on January 18, 1985. Appellee filed an action for support against appellant. Appellee has two other children, from a previous relationship, living with her. She receives $200.00 per month for support of these two other children. Appellant also has two other children, one of whom resides with him. The other child resides with appellant’s former wife, to whom appellant pays $25.00 per week plus $5.00 per week in arrears in support. Both parties to this action are employed.

At the hearing before the Master, appellee testified that she lives with her brother and sister, and that she contributed $100.00 per month for rent for herself and her children. Her testimony as to food expenditures was unclear, but she did testify to spending $20.00 per month on Pampers, and claimed occasional medical expenses without giving a definite sum. Appellee stated that she had a weekly child-care expense of $40.00.

The Master recommended, and the trial court affirmed, that appellant is to pay $184.00 bi-weekly in support, plus $6.00 bi-weekly in arrearages. In arriving at this amount, the Master relied upon the Philadelphia County Support Guidelines which set the basic monthly child support needs at $425.00 per month. The Master found appellee’s net bi-weekly income to be $379.00. Deductions were permitted for state and local taxes, but not for federal taxes, since appellee receives a refund of all federal taxes paid. The amount appellee receives as support for her other children was not included as part of her income.

Appellant’s net bi-weekly income was found to be $713.00, allowing for deductions for state and local taxes, health and life insurance, and other child support payments. No allowance was made, however, for the expenditures made by appellant on behalf of the child residing with him.

In addition to the $425.00 monthly basic child support need set forth in the Guidelines, the Master added $173.00 a month for child care expenses, thereby arriving at a total of $598.00 a month necessary for the child. Appellant’s income was calculated to be 65% of the combined income of the parties and was thus deemed to be responsible for 65% of the total child support needs. Appellant filed Exceptions to the Master’s Report and Proposed Order. The trial court denied those exceptions and entered the order proposed by the Master.

In summarizing the appellate scope of review in a child support case, our Court has recently stated:

On appeal, a child support order will not be disturbed unless the trial court committed an abuse of discretion. Kopp v. Turley, 359 Pa.Super. 106, 109, 518 A.2d 588, 590 (1986). An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment. Id., 359 Pa.Superior Ct. at 109, 518 A.2d at 590.
In order to calculate the support obligation of each parent, the court must first determine the reasonable needs of the children. Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986). Reasonable expenses are not limited to the bare necessities. A child is entitled to a reasonable standard of living based upon the social station, fortune and financial achievements of their parents. Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 172, 481 A.2d 1358, 1361 (1984).
The court must next determine, the respective abilities of the parents to support their children. To arrive at this amount, the court must make an allowance for the reasonable living expenses of each parent. The court must then calculate the parent’s net income or earning capacity if that figure differs from actual income. Lyday [v. Lyday, 360 Pa.Super. 16] at 21-22, 519 A.2d [967] at 970. The trial court must consider every aspect of a parent’s financial ability to pay support. The actual and potential cash flow from his property interests, financial resources, stock holdings and other investments should all be considered. Id.

Ryan v. DeLong, 371 Pa.Super. 1, 538 A.2d 1 (1987). Quoting DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987).

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), the Pennsylvania Supreme Court established a formula for the calculation of child support awards. The Superior Court has interpreted Melzer to require calculation of the formula set out by the Supreme Court, but to also allow trial courts to adjust the resulting support obligation when deviation is warranted. Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986).

Following Melzer, the Pennsylvania Legislature enacted 23 Pa.C.S.A. § 4322, which provided for the establishment of support guidelines, but also called for deviation when warranted, similar to Melzer. This provides for a flexible, individualized approach for support cases, and eschews the establishment of specified numerical amounts to reflect a child’s needs. “Because § 4322 adopted this principle, county guidelines to the contrary are presumptively invalid.” Ryan v. DeLong, supra, 371 Pa.Super. at 254, 538 A.2d at 4. Additionally, our Court stated in Ryan that, “[t]o insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children, the calculated Melzer formula must be in the record.” Id., 371 Pa.Superior Ct. at 252-254, 538 A.2d at 4. See also, Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988).

Instantly, the Master and the trial court relied solely upon the Philadelphia County Support Guidelines in their determination of the reasonable needs of the child. While the Master applied the mathematical formula provided on the form used for the proposed order, it was not the Melzer formula required by caselaw. Further, in using the strict guideline amount for the child’s reasonable needs, both the Master and trial court ignored the mother’s testimony as to that amount which she actually required to support her minor child.

Furthermore, in calculating appellant’s ability to pay, the Master and trial court failed to take into consideration the expenses incurred by appellant in providing for the child who currently resides with him. This contravenes previous holdings by our Court. See Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985) (the extent to which a party’s other children affect the amount of resources available for child support is a relevant factor). See also Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). Accordingly, we find this failure by the trial court to consider appellant’s expenses with regard to the child residing with him, to constitute an abuse of discretion.

Thus, we must vacate the order of the trial court and remand this case for a re-determination of appellant’s support obligation; in accordance with Melzer, supra, and Ryan, supra.

Order vacated. Case remanded. Jurisdiction relinquished.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I concur in the result.

I agree with the majority that the master and trial court erred by relying solely upon the Philadelphia County Support Guidelines in their determination of the reasonable needs of the child. I also agree that upon remand the trial court must consider the formula for calculation of child support awards as established in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). I write separately to explain that upon remand, the trial court must recompute the support award in accord both with Melzer and the county guidelines. Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988).

Appellant does not argue that the Philadelphia County Support Guidelines are inconsistent with Melzer and thus presumptively invalid. Ryan v. Delong, 371 Pa.Super. 1, 538 A.2d 1 (1987). The validity of the guidelines is not before us and it is incorrect to ignore them. These guidelines were formulated in response to 23 Pa.Cons.Stat.Ann. § 4322 (Purdon Supp.1987). They are to be considered in entering a support order. Shutter v. Reilly, supra; Palmatier v. MacCartney, 365 Pa.Super. 300, 529 A.2d 518 (1987), Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 513 A.2d 448 (1986). The trial court must consult these guidelines so that the suggested amount of support is given due consideration and so there may be uniformity of awards for persons similarly situated. Shutter v. Reilly, supra.


text:
    540 A.2d 957
    COMMONWEALTH of Pennsylvania v. Rohit SABHARWAL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1988.
    Filed April 27, 1988.

      Charles J. King, Jr., Norristown, for appellant.
    Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Following a trial de novo in the Court of Common Pleas of Montgomery County, Rohit Sabharwal was found guilty of failing to stop at the scene of an accident with an attended vehicle in violation of 75 Pa.C.S. § 3743. Posttrial motions were denied, and Sabharwal was sentenced to pay a fine of three hundred ($300) dollars, plus the costs of prosecution. On appeal, Sabharwal contends that the evidence was insufficient to establish a violation of Section 3743 because the damage to the other vehicle was insignificant. Having concluded that the evidence was sufficient to support appellant’s conviction, we affirm the judgment of sentence.

The factual scenario underlying appellant’s conviction was succinctly stated by the trial court as follows:

[O]n the morning of April 3, 1986, while on her way to work Angela Zangardi noticed that a red sedan had been “tailgating” her for a distance of two and one-half miles. Upon stopping at a red light at the intersection of Croton and Gulph Roads in Upper Merion Township, she was alarmed by a “crash” against the rear of her vehicle, and observed the same red sedan against hers. Ms. Zangardi got out of her car, walked to the driver’s side of the red sedan, and asked the driver (Defendant herein) to pull over so that they could exchange information. After she returned to her car and proceeded to pull over to the side of the road, the Defendant drove up beside her car and shouted, “If you want any information, just take down my license plate number”, and drove off. Ms. Zangardi telephoned the Upper Merion Police Department, related the above incident to Officer Charles Narwich, and gave him the license number of the red sedan.

(Trial Court Opinion at p. 2).

In reviewing appellant’s challenge to the sufficiency of the evidence we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984).

The statute under which appellant was convicted provides as follows:

§ 3743. Accidents involving damage to attended vehicle or property.
(a) General rule. — The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
(b) Penalty. — Any person violating this section is guilty of a summary offense, punishable by a fine of $300 or imprisonment for not more than 90 days, or both.

75 Pa.C.S. § 3743.

Appellant argues that the evidence was insufficient to support a conviction under this statutory provision because the Commonwealth was unable to prove that any damage had resulted to the vehicle with which he collided. He contends that the term damage, as used in 75 Pa.C.S. § 3743, requires a showing of pecuniary loss or impairment of the usefulness or value of property. • Because the Commonwealth introduced no evidence at trial concerning the cost of repairs for the Zangardi vehicle or of any loss in value, the argument continues, it failed to prove circumstances which required him to stop. We disagree.

Our research has disclosed a dearth of appellate decisions which have discussed the requirements of Section 3743. However, in Commonwealth v. Kauffman, 323 Pa.Super. 363, 470 A.2d 634 (1983), a conviction under this statute was challenged on the grounds that the appellant had been unaware that he had been involved in an accident. In affirming the conviction, we held “that the duty to stop under section 3743 arises whenever a driver knows, or in the exercise of reasonable care should know, that his vehicle has been involved in an accident.” Commonwealth v. Kauffman, supra, 323 Pa.Superior Ct. at 374, 470 A.2d at 640. The writer of the Concurring Opinion added:

Although it must be shown that the driver knew or should have known that he or she was involved in an accident, guilt or innocence does not depend upon knowledge of injury or damage. It is enough that the driver have knowledge that he or she was involved in an accident.

Id., 323 Pa.Superior Ct. at 375, 470 A.2d at 640 (Wieand, J., concurring).

In the instant case it is not disputed that appellant knew that he had been involved in an accident. The evidence at trial established that appellant’s reasons for not stopping were that he did not think that he had done any damage and because he did not “want the other party to claim some medical injury and go after him.”

More recently, a panel of this Court addressed a similar issue in Commonwealth v. Stover, 372 Pa.Super. 35, 538 A.2d 1336 (1988). In Stover, the defendant’s car had collided with the rear of a tractor-trailer which had been stopped at a red traffic light. Traffic in the area had been bumper to bumper and had been moving very slowly. There was evidence that defendant’s car had been damaged in the hood and windshield; however, the only evidence that the tractor-trailer had been damaged was the fact that it had been struck in the rear. On appeal it was argued that the Commonwealth had failed to present sufficient evidence to support a conviction under Section 3743, because it had failed to establish that there was any “damage to a vehicle or other property” as required by the statute. In affirming the conviction, however, a unanimous panel, per McEwen, J., reasoned as follows:

Appellant argues that the statute did not require him to stop and to provide information at the scene of the accident since he did not observe the damage to the truck. We do not agree since the evidence, including the testimony of appellant as to the damage sustained by his own vehicle, was sufficient to support the conclusion of the trial court that the truck sustained damage, however slight, as a result of the accident. Thus, this insufficiency argument is rejected as meritless.

Commonwealth v. Stover, supra, 372 Pa.Superior Ct. at 38, 538 A.2d at 1338.

In the instant case, the evidence included testimony by Ms. Zangardi, the driver of the car which had been struck, that she felt a crash or bang at the rear of her vehicle and was shocked by the impact. She testified further that she had observed a slight discoloration on the rubber part of her bumper. The investigating police officer, Officer Charles Narwich of the Upper Merion Police Department, testified that he also had observed a minor scratch on the rubber part of the bumper of Ms. Zangardi’s car. After reviewing this evidence, the trial court concluded that “[i]t is sufficient to note that a scratch on the bumper of an automobile, albeit slight, constitutes harm, and therefore constitutes damage to the vehicle under Section 3743 of the Vehicle Code.” (Trial Court Opinion at p. 4). We agree with this conclusion. The Commonwealth’s evidence was sufficient to support the finding that Ms. Zangardi’s car had sustained damage, however slight. See: Commonwealth v. Stover, supra.

The judgment of sentence is affirmed.

      . Sabharwal was also prosecuted for and convicted of driving while his operating privileges were suspended, in violation of 75 Pa.C.S. § 1543(b). For this offense, he was sentenced to serve a ninety day term of imprisonment and to pay a fine of one thousand ($1,000) dollars, plus costs of prosecution.