author: WATKINS, Judge:

text:
    478 A.2d 885
    Mary Anne HOLLAND, Appellant, v. George ZELNICK.
    Superior Court of Pennsylvania.
    Argued June 17, 1983.
    Filed July 13, 1984.

      Richard M. Serbin, Altoona, for appellant.
    Joey A. Storaska, Sunbury, for appellee.
    Before McEWEN, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Northumberland County and involves plaintiff-appellant’s appeal from an order of the court below which denied her motion for a new trial.

Plaintiff, a 22 year old college graduate, was the operator of a motor vehicle on January 5, 1977 when it was struck in the rear by defendant’s vehicle while stopped at a traffic control device. Plaintiff initiated an action in trespass against defendant alleging various injuries to her neck area. At trial three physicians testified about her injuries. Plaintiff’s expert medical witnesses attributed her pain and suffering to the January 5, 1977 accident. The defendant’s expert medical witness noted that neither he nor any of the physicians who had treated plaintiff found any objective evidence of pain. His opinion was that the January 7, 1977 accident did not cause plaintiff to have the pain of which she complained. He testified that her pain was subjective and was brought on by the litigation and was thus due to an external factor. Plaintiff also admitted that she had suffered an injury to her neck in April of 1976 in another automobile accident. The evidence at trial indicated that the January 5, 1977 accident consisted of a mere “thump” or “bump”.

The jury returned a verdict on October 17, 1980. The verdict slip contained three interrogatories. Following deliberation the jury returned a verdict to the effect that defendant was negligent, but that defendant’s negligence did not bring about plaintiff’s injuries, and awarded plaintiff no damages. After the court below denied plaintiff’s motions for a new trial limited to the issue of damages she appealed to this Court.

Plaintiff’s first contention is that the court below erred when it refused plaintiff’s point for charge which would have instructed the jury that plaintiff had a right to be compensated for aggravation of a previously existing injury. Plaintiff requested this charge and the trial court refused it. In support of its argument plaintiff cites our decision in the cases of Binkey v. Olinger, 282 Pa.Superior Ct. 473, 423 A.2d 1 (1980 and Cingota v. Milliken, 286 Pa.Superior Ct. 117, 428 A.2d 600 (1981) wherein we held that plaintiffs who have failed to allege in their complaint that an injury constituted an aggravation of a pre-existing one should be permitted to introduce evidence of such nature at the trial of their cases so long as the defendant is not surprised nor prejudiced in any way. Plaintiff argues that in the instant case her requested point for charge should have been granted because she was entitled to recovery even if her January 5, 1977 injuries constituted an aggravation of her April, 1976 neck injuries. The difficulty with this contention is that plaintiff never alleged nor proved that the January 5, 1977 accident aggravated her pre-existing injury. At trial all of her proof was to the effect that she had completely recovered from her April, 1976 injuries and that her present condition was attributable solely to the January 5, 1977 accident. In the cases cited above, while plaintiffs failed to plead aggravation of a pre-existing injury, they introduced evidence to prove it which was allowed by the courts. In our case plaintiff neither alleged nor proved such a situation. A trial court properly refuses a requested point for charge where it has no application to the facts of the case or where it assumes the existence of evidence not in the record. Pavia v. State Mutual Life Assurance Co., 179 Pa.Superior Ct. 272, 116 A.2d 762 (1955). Since plaintiff never offered evidence to the effect that January, 1977 accident aggravated her preexisting injuries, the court below did not err in refusing her requested point for charge.

Plaintiff’s second contention is that the court below erred in refusing her motion for a new trial limited to the issue of damages because the jury’s verdict was against the law, against the weight of the evidence, and against the charge of the court. In her brief plaintiff goes to great lengths to describe the pain and emotional anxiety she suffered allegedly as a result of the accident. She also points to the testimony of her expert witnesses both of whom opined that her pain and emotional frustration were due to injuries received in the January, 1977 accident. She argues that although defendant’s expert medical witness advanced the opinion that her pain and frustration were caused by her anxiety over her lawsuit he also admitted that the type of accident she described to him could result in soft tissue damage. Thus, she argues that for the jury, to find negligence on defendant’s part, but for it also to find that the negligence was not a substantial factor in bringing about her injuries, it entered a contradictory verdict which was clearly against the weight of the evidence. We disagree. This is not a case where a defendant is found to be negligent and his negligence is. found to have caused plaintiff’s injuries, but an award of adequate damages is not returned because of some subjective view on the part of the jury. In this case despite the finding of negligence on defendant’s part for “bumping” plaintiff’s vehicle, the jury clearly found that defendant’s actions had nothing to do with plaintiff’s condition, real or otherwise. Simply put, the jury rejected the testimony of plaintiff’s expert medical witnesses and accepted the testimony of defendant’s expert. The jury simply did not believe that the headaches and other severe pain described by plaintiff and her parents at her trial were caused by defendant’s negligent action in bumping plaintiff’s vehicle. Thus, the jury found that defendant’s negligence was not the proximate cause of plaintiff’s complaints and the failure of it to find proximate cause was fatal to plaintiff’s claim. A review of the record testimony reveals that such a finding is supported by the evidence. Plaintiff sought no medical treatment immediately after the accident, continued to work without interruption for more than a year after the accident, swam, jogged, sat through sporting events, tickets to which she was able to secure from the law firm where she later worked, and frequently drove from Washington, D.C. to Shamokin, PA. a 3:/2 hour trip, alone and without aid after the accident. She also admitted that she was not required to wear any surgical collar or neck brace as a result of the accident and that she had gone for periods as long as 10 months where she had not sought any medical treatment from any physician. A review of the above facts makes it abundantly clear that there was ample evidence to the effect that defendant’s conduct did not cause plaintiff’s alleged pain. Even if the facts concerning an automobile collision are sufficient to establish negligent conduct on the part of the defendant, the plaintiff still has the burden of proving that his injuries were caused by such negligence. Brodhead v. Brentwood Ornamental Iron Co., Inc., 435 Pa. 7, 255 A.2d 120 (1969). Furthermore it was within the province of the jury to determine the credibility of the witnesses. Brodhead, supra. In the instant case we find that the jury’s verdict was not inconsistent nor against the weight of the evidence as the record fully supports the notion that defendant was negligent in bumping plaintiff’s vehicle but that the collision did not cause plaintiff’s injuries.

Plaintiff argues that because defendant’s expert medical witness admitted that a collision from the rear can cause soft tissue injury to the cervical area and that plaintiff might very well have suffered such an injury that the jury, having found defendant negligent, was required to award her something. The very same claim was made and rejected in Brodhead. The issues as to whether plaintiff was really suffering any pain and whether any such pain was caused by defendant’s conduct was for the jury. The jury was not required to award plaintiff any amount as it obviously believed that any injury plaintiff suffered in the accident was insignificant. In Surgent v. Stein, 280 Pa.Superior Ct. 142, 421 A.2d 445 (1980), we held that where a plaintiff’s injuries are slight and her medical bills are paid in full by her no-fault carrier the jury has no duty to reimburse her for them. The jury’s verdict in the instant case was proper and it had no duty to award plaintiff damages.

Next, the plaintiff argues that the court below erred in permitting testimony regarding the payment of unemployment benefits to her during the period of time that she alleged she was unable to work due to her alleged injuries. The cases cited by plaintiff in support of her contention, however, were all cases which were either non-vehicular or which occurred prior to the Pennsylvania No-Fault Insurance Act, 40 P.S. 1009.101 et seq. In the instant case the trial court properly charged the jury to the effect that any medical expenses or work loss benefits would be paid by her own No-Fault carrier and that no award could be made for same.

Under the no-fault law it is not only proper, but necessary, to instruct the jury as to the receipt of certain collateral benefits by a plaintiff involved in an automobile accident who is seeking recovery for injuries allegedly sustained therein. Thus, we hold that the collateral source rule has been modified by the No-Fault Act. We do not find that the court below committed reversible error when it permitted defendant to question plaintiff on her receipt of unemployment compensation benefits.

Finally, plaintiff argues that it was error for the trial court to restrict plaintiffs counsel in his examination of her rebuttal witness, a Corporal Adulph Blugious. Blugious was the police officer who had taken the information in order to prepare the police report. He had not seen the accident occur. The officer was not permitted to testify directly from the report or to have the report admitted into evidence. He was permitted to use it in order to refresh his recollection. After he had been questioned extensively by both plaintiff and defendant the court asked the officer what amount he had inserted into the report for damages to plaintiffs vehicle. He estimated her damages at $85.00. Plaintiff’s counsel then attempted to question him further. The court, however, reminded plaintiff’s counsel that the officer was already late for his vacation and that plaintiff’s counsel had made a “solemn promise” to the witness regarding the length of the questioning. We also note that the officer had described in detail the physical damage to both plaintiff’s and defendant’s vehicles which he had observed. A police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence. Johnson v. Peoples Cab Company, 386 Pa. 513, 126 A.2d 720 (1956). Nor should a party be able to get such a report into evidence in an indirect manner. In the instant case the officer testified at length about the damage to the vehicles which he observed. Thus, the jury had before it this information and not just the officer’s estimate of $85.00 in damages to plaintiff’s vehicle. Under these circumstances we do not find that the court below abused its discretion in limiting plaintiff’s questioning as it did.

Judgment affirmed.

ROWLEY, J., concurs in the result.

      . Plaintiffs work loss was well below the $15,000 limit imposed by 40 P.S. 1009.202(b).


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    478 A.2d 889
    Catherine BRUNETTI, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1984.
    Filed July 13, 1984.

      Norman Hegge, Jr., Philadelphia, for appellant.
    S. David Fineman, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from an order precluding the Appellant from asserting a defense and presenting testimony on the issues of both liability and damages, as a sanction for failure to obey a discovery order of the lower court. The Appellant contends that the imposition of this sanction was inappropriate and constituted an abuse of discretion by the lower court. We agree and reverse and remand.

The Plaintiff-Appellee, Catherine Brunetti, filed a Complaint in Trespass against the Defendant-Appellant, Southeastern Pennsylvania Transportation Authority, seeking damages for personal injuries sustained as a result of a train accident which occurred on October 16, 1979. On November 18, 1980, the Appellee filed and served upon Appellant written interrogatories and a request for production of documents, with notice to answer the same within thirty (30) days. On November 21, 1980, counsel for Appellant notified Appellee’s counsel that liability would not be contested, and that unless advised to the contrary, the Appellant did not plan to respond to the Appellee’s requests. On July 14, 1981, the Appellee’s counsel wrote to Appellant’s counsel, making a settlement demand. In this letter, he indicated that if the case was not amicably settled, he would insist upon answers to the interrogatories and request for production of documents. Thereafter, on February 11, 1982, the Appellee filed a motion for sanctions against the Appellant as a result of its failure to answer the written interrogatories and produce the requested documents. On March 29, 1982, the lower court entered an order, requiring the Appellant to file answers to the interrogatories and produce for inspection and copying those documents requested within twenty (20) days of the Order.

The Appellant failed to comply with the March 29, 1982 Order and the Appellee filed a second motion for sanctions. On July 26, 1982, the lower court granted this motion and ordered that the Appellant was precluded from asserting a defense and presenting testimony on the issues of both liability and damages.

The imposition of sanctions is governed by Pennsylvania Rule of Civil Procedure 4019, which provides, in relevant parts:

(a)(1) Thé court may, on motion, make an appropriate order if
(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under rule 4005;
* * * * * *
(vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested;
(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
* * * * * *

(c) The court, when acting under subdivision (a) of this rule, may make

(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
(5) such order with regard to the failure to make discovery as is just.

We recognize that the imposition of specific sanctions for failure to obey a discovery order is largely within the discretion of the court. Feingold v. Philadelphia Nat. Bank, 313 Pa.Super. 579, 460 A.2d 339 (1983). However, it is clear that in the exercise of judicial discretion in formulating an appropriate sanction order, the court is required to select a punishment which “fits the crime”. Dunn v. Maislin Transport Ltd., 310 Pa.Super. 321, 456 A.2d 632 (1983); Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338 (1979). We believe the lower court abused its discretion in the circumstances of the instant case.

In our review we find validity in the Appellant’s contention that Appellee’s interrogatories and request for production were directed to information relevant only to the issue of liability. Because the Appellant indicated that it would not contest liability, it is clear that the Appellee has suffered no prejudice as a result of the failure to answer. The lower court is mandated to examine the issue of possible prejudice in such circumstances prior to issuing any order for sanctions. See Shehady v. Pittsburgh Post-Gazette, 307 Pa.Super. 247, 453 A.2d 18 (1982). In the instant case, we are constrained to find that the lower court’s sanction order is unduly harsh and overbroad. While we do not condone Appellant’s failure to obey the lower court’s order and feel that some sanction is justified, we find that the imposition of a sanction which prohibits Appellant from presenting any testimony on the issue of damages is inappropriate when the information sought by Appellee clearly related solely to liability.

Reversed and remanded to the lower court for further proceedings consistent with this Opinion. Jurisdiction is not retained.

      . We hold that the instant appeal is properly before us. Contrary to Appellee’s assertion that the order in question is interlocutory and unappealable, an order which precludes a defendant from raising a possible total defense at trial is final and appealable. See Pasternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966). Moreover, we find that the order appealed from puts the Appellant “out of court” and is, therefore, an appealable order. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

      . With regard to the interrogatories, numbers one through 4 sought the names and addresses of witnesses, 5 sought a description of the accident, 6 concerned the existence of reports, 7 and 8 dealt with witness statements, 9 and 10 inquired as to photographs, 11 sought insurance information and 12 asked the cause of the accident. The motion to produce was directed to similar subject matters.


text:
    478 A.2d 891
    Marcy L. SPISAK, Administratrix For the Estate of John Spisak, and Marcy L. Spisak, Monica L. Spisak and Jason J. Spisak, By Their Own Right, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant. and Marcy L. SPISAK, Administratrix For the Estate of John Spisak, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed July 13, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Peter B. Skeel, Pittsburgh, for appellants.
    J. Kerrington Lewis, Pittsburgh, for appellees.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

In the instant cases, which were consolidated in the lower court, the Appellant, Nationwide Mutual Insurance Company, appeals from the lower court’s order entering summary judgment for Plaintiff-Appellee, Marcy L. Spisak, Administratrix of the Estate of John Spisak. We perceive no error in the lower court’s order.

The relevant facts are not in dispute. On January 13, 1980, the bodies of Plaintiff’s decedent, John Spisak, and a female companion were found in the back seat of an automobile, which had its motor running. Both persons were partially disrobed, and appeared to have been involved in what the Appellant describes as “compromising activities” at the time of death. Death occurred as a result of carbon monoxide poisoning from the exhaust fumes of the automobile. The Appellant subsequently denied the widow’s application for no-fault benefits on the grounds that the loss was not, in the words of the applicable policy provision, "... as a result of an accident that arises out of the maintenance or use of a motor vehicle as a motor vehicle”. Appellant maintains the same position on this appeal.

We first look to the Pennsylvania No-fault Motor Vehicle Insurance Act for reference. (Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq.). Section 103 (40 P.S. § 1009.103) provides, in pertinent part:

“Maintenance or use of a motor vehicle” means maintenance or use of a motor vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it.
******
“Victim” means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; “deceased victim” means a victim suffering death resulting from injury.

The Appellant relies most strongly in this appeal upon the decision of our Court in Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981), which construed the same statutory provisions and involved similar language in the applicable insurance contract, in holding that coverage was properly denied by the insurer.

We find the Crusco holding and other decisions cited by the Appellant to be inapposite here, because they involved situations in which coverage was denied because death or injury arose from some instrumentality external to or other than the vehicle itself. In Crusco, the plaintiff’s decedent was killed when gas leaked from a line to a refrigerator in a parked motor home and an explosion occurred when the oven in the motor home was lit. This death by explosion from these kitchen appliances was found not to be related to the use of the motor home as a vehicle. In Rhoads v. Heberlig, 30 Cumb.L.J. 85 (1980), the court held that No-fault benefits were not applicable in a situation in which the plaintiff received a gunshot wound while seated in a parked truck. In Kaikis v. Satterfield, No. G.D. 77-09199 (Allegheny County), No-fault coverage was held inapplicable to a situation in which the plaintiff was electrocuted when a power line apparently came into contact with a truck while the Plaintiff stood with one foot on the ground and the other on the truck’s running board. In Kraus v. Allstate Insurance Company, 379 F.2d 443 (3rd Cir.1967), the decedent was killed by an explosion caused by the defendant’s insured, who had rigged his car with a bomb in order to kill his wife. It was held that the death did not arise out of the use or maintenance of a motor vehicle as a vehicle. Coverage by No-fault benefits was also denied in DiRende v. State Farm Mutual Insurance Co., 130 P.L.J. 106 (1981), where a bus passenger was stabbed with a pencil by another passenger.

It is clear that in all of the cases cited by the Appellant the harm arose from an instrumentality or external force other than the motor vehicle itself. In the instant case, however, the harm arose directly from the fumes resulting from the operation of the vehicle’s engine while it was parked. If the engine had not been running, it is apparent that no such harm would have befallen the occupants, including the Appellee’s decedent.

We cannot agree with the Appellant’s contention that the love-making activities of the decedent and his companion, at the time they were overcome by carbon monoxide poisoning, requires a holding that the vehicle was not being used “as a vehicle” at the time. Coverage would certainly have applied had the decedent been killed in a collision while engaged as a passenger in similar activities while the vehicle was being driven on the highway. The deaths which occurred could have apparently arisen even if the two occupants were simply seated, but stopped in a prolonged traffic jam, or in very slow traffic, if the exhaust system was in a condition which caused it to leak fumes into the car’s passenger compartment when the motor ran but the car was not moving ahead at a driving pace. Appellant’s position would virtually require us to hold that No-fault benefits are unavailable unless the vehicle is moving and involved in a collision which causes the harm. This we will not do.

This Court has held that in order for No-fault protections to be applicable, the injury or death must be causally related to the use of a motor vehicle. See Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 451 A.2d 474 (1982). We have no difficulty in reaching a conclusion of causal relationship in the instant case. In Day v. State Farm Mutual Insurance Company, 261 Pa.Super. 216, 396 A.2d 3 (1978), we noted that the real issue was the instrumentality used to cause the injury. In this case, it is clear that the automobile in which the decedent was an occupant was the instrumentality which caused the harm. Therefore, we find no error in the lower court’s holding that the Appellant’s coverage applied.

Affirmed.


author: PER CURIAM:

text:
    478 A.2d 894
    H. Lance MARTIN v. Carol Lee MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1984.
    Filed July 13, 1984.

      Charles W. Watson, Pittsburgh, for appellant.
    Stuart N. Hutchison, III, Connellsville, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   PER CURIAM:

In this appeal, the lower court through the Honorable Fred C. Adams, accurately sets forth the facts in his opinion of August 25, 1982:

A review of the record indicates the following procedural history of this case:
1. On February 20, 1981, H. Lance Martin, plaintiff [appellee] ... filed an action in divorce against Carol Lee Martin, defendant [appellant] ... under Section 201D of the Divorce Code.
2. Charles W. Watson entered his appearance for the defendant and accepted service of the complaint.
3. On September 30, 1981, Nancy A. Duffield, Esquire, was appointed Master. The Master filed her report on October 2, 1981, recommending a divorce.
4. The matter was remanded to the Master by order of Judge Franks of this Court to require the plaintiff to file a waiver of the right to claim equitable distribution, alimony pendente lite, permanent alimony, or such other relief as allowed under the divorce law.
5. The plaintiff having failed to file a waiver in connection with the order of Judge Franks, Judge Adams on July 6, 1982 directed the plaintiff, within ten days of the date of service of the order, to make claim for such relief allowed under the divorce law or be forever barred from making such claim. The plaintiff then complied and filed a waiver of right to make any claim. This Court on July 22, 1982, entered the decree in divorce.

Lower ct. op. at 1-2.

A timely appeal followed. Appellant frames the issues on appeal as follows:

1. In a divorce action, is the entry of decree in divorce proper where the defendant has not received notice of the filing of the Master’s Report and has not had an opportunity to file exceptions to the Master’s Report as required by law?
2. Did the lower court abuse its discretion, act contrary to law and in an arbitrary and capricious manner in entering a decree in divorce where a party had no opportunity to file exceptions to the Master’s Report?

Brief for Appellant at 6.

Judge Adams addresses the issues on appeal in his opinion:

The entry of the decree in divorce was premature. The Rules of Court require that the Master give notice of the filing of the Master’s Report to all parties. Any party has a right to file exceptions to the report with ten days. If no exceptions are filed, the Court will review the report and enter an appropriate order. If exceptions are filed, these exceptions must be disposed of by the Court en banc before the entry of the decree in divorce, from which decree the parties could take an appeal.

Lower ct. op. at 2.

We agree. The lower court was unaware that notice had not been given to the parties of the filing of the Master’s Report. “This Court first learned of the procedural problem only after notice of the appeal to the Superior Court had been served.” Lower ct. op. at 1. Under Rule 1701 of the Pennsylvania Rules of Appellate Procedure, “[A]fter an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.” The lower court recognized the error but its hands were tied. We remand this case to the lower court to allow appellant to file exceptions nunc pro tunc to the master’s report. The entry of the decree in divorce on July 22, 1982 is hereby vacated. Jurisdiction is relinquished.


author:
CIRILLO, Judge:
      SPAETH, President Judge,

text:
    478 A.2d 1286
    COMMONWEALTH of Pennsylvania v. Ollie CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 13, 1983.
    Filed June 1, 1984.
    Petition for Allowance of Appeal Denied Sept. 24, 1984.

      Joseph T. Kelley, Jr., Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas, Philadelphia County. On October 28, 1976 at approximately 7:45 p.m. appellant, Ollie Carter, was arrested for the robbery of a Pantry Pride employee who had just collected the day’s mail and receipts from the Pantry Pride store at Front Street and Godfrey Avenue in Philadelphia.

Because of his unavailability for various reasons, appellant was not brought to trial until June 1, 1981. On June 8, 1981, following a jury trial, appellant was convicted of robbery, criminal conspiracy and several counts of simple assault. After post-verdict motions were denied, appellant was sentenced to consecutive sentences of ten to twenty years imprisonment for the robbery, two to four years for the conspiracy, and one to two years on each of the simple assault convictions. This appeal followed.

Initially, appellant contends that the evidence presented at trial was insufficient to sustain his convictions on any of the above charges. The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Nelson, 320 Pa.Super. 488, 467 A.2d 638 (1983); Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983). Viewed in this light the record reveals the following facts.

At approximately 7:30 p.m. on October 23, 1976, Leon Markowitz, an employee of Pantry Pride, was robbed at gunpoint in the store’s parking lot by two black males. Two sacks which contained mail and store receipts were stolen. The perpetrators fled the scene in a Volkswagen. Within moments of the robbery Philadelphia Police Officer John Randles arrived at the scene. He immediately obtained an account of the crime and descriptions of the suspects, their get-away car, and their direction of flight. These details were quickly broadcast over police radio. Shortly thereafter, Philadelphia Police Sergeant Charles Tapper spotted a Volkswagen in the vicinity which matched the reported description and which had two black male occupants. The police attempted to intercept the vehicle, but the Volkswagen sped off. A high-speed chase ensued, in which Sergeant Tapper and his partner were joined by Officer Koiko in a second police car.

Appellant, the driver of the Volkswagen, attempted to elude the police. During the chase the passenger of appellant’s vehicle opened fire on the pursuing police cars. At one point the Volkswagen stopped and the gunman alighted to get a better shot. He fired several times, jumped back in the car, and sped off. The pursuit continued for fifteen blocks when appellant’s get-away efforts were thwarted by a sudden collision with a police car stationed as a road block. After a brief scuffle, appellant and his accomplice were subdued. The two Pantry Pride mail bags, which the robbery victim later identified as those stolen, were recovered from the wrecked car. Also, two guns were retrieved from the car.

Appellant was placed under arrest and taken to the Albert Einstein Medical Center, Northern Division, for treatment of minor injuries suffered at the time of his arrest. While at the hospital, appellant confessed to the police that he and his accomplice, Robert Forrest, had planned the robbery hoping for a “big score”. He admitted that he and his partner did in fact rob Leon Markowitz and that he then attempted to elude the police while Forrest fired at them.

Based upon our review of the facts as adduced through trial testimony, we are convinced that the evidence was sufficient to support all of appellant’s convictions.

With regard to the conviction for the robbery of the Pantry Pride employee, it is true that no clear eyewitness identification was presented at trial which implicated appellant. Nonetheless, circumstantial evidence alone may be sufficient to support a conviction, provided the inferences relied upon are more than mere conjecture or surmise. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. McCrea, 308 Pa.Super. 284, 454 A.2d 132 (1982). Here, the circumstantial evidence is compelling and points to one virtually inescapable inference— the appellant robbed Leon Markowitz in the parking lot of the Pantry Pride.

Appellant also maintains that the evidence presented at trial was insufficient to support his convictions for simple assault. The offense of simple assault is defined as follows:

18 Pa.C.S. § 2701 Simple Assault
(a) Offense defined — A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

Attempt exists within the contemplation of this statute when a person, with intent to commit a crime, does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901(a); Commonwealth v. Chance, 312 Pa.Super. 435, 458 A.2d 1371 (1983); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983).

Here, the subject assault charges arose following the robbery when, during the ensuing chase, shots were fired at the police from appellant’s car. It is clear from the record that Robert Forrest, the passenger in appellant’s car, was the one who fired the shots. Appellant concedes that Forrest committed an assault. However, appellant argues that because he was the driver and not the shooter, he may not be convicted of the assaults upon the pursuing police officers. We do not agree.

A showing of mere presence at the scene of a crime is insufficient to support a conviction; evidence indicating participation in the crime is required. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Thomas, 450 Pa. 125, 299 A.2d 226 (1973). Our review then focuses on whether there was sufficient evidence of appellant’s participation in the assault. Was there sufficient evidence to prove that appellant with criminal intent, did something which constituted a “substantial step” toward the commission of an assault?

Although appellant was the driver and not the gunman, the evidence indicates that he was more than a passive spectator; that he in fact was a very active participant in the shooting spree. Appellant’s “mere presence” in the car, as mischaracterized by appellant, was not in the' role of captive passenger. Appellant was the driver. While his accomplice repeatedly shot at the police, appellant piloted the get-away car. At one point, as Sergeant Tapper testified, appellant stopped the car and waited while the gunman got out and fired several shots.

From this evidence, the jury could fairly and reasonably infer that appellant’s conduct as driver promoted, facilitated and otherwise encouraged the shooting upon the police officers. The jury, not improperly, found that appellant’s conduct demonstrated the requisite criminal intent and constituted a substantial step toward the shooting at the police officers.

Appellant’s third challenge to the sufficiency of the evidence concerns his conviction for criminal conspiracy. Specifically, appellant alleges that insufficient evidence was presented at trial to prove that an “agreement” existed between him and Robert Forrest to commit the robbery. We disagree.

Of course, the existence of a conspiracy depends upon proof of an agreement or common design, to commit an unlawful act. Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983); 18 Pa.C.S. § 903. However, direct proof of an agreement is not required. The conduct of the parties and the circumstances surrounding such conduct may be sufficient to establish an inference of agreement. Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982); Commonwealth v. Davis, 312 Pa.Super. 85, 458 A.2d 248 (1983). However, more than mere presence at the scene is necessary to establish a conspiracy. Commonwealth v. Olds, supra; Commonwealth v. Lamb, supra.

Here again, appellant’s involvement in the robbery went beyond “mere presence” at the scene. After a review of trial testimony, we conclude that the circumstances surrounding the robbery were sufficient to support the jury’s inference that appellant and Robert Forrest agreed to commit the robbery. Appellant’s complicity and subsequent admission certainly foster the reasonable inference that the robbery had been pre-planned.

Appellant’s next contention is that the trial court erred when it ruled appellant’s confession voluntary and allowed its admission into evidence. Appellant contends that his statement made to police at the hospital shortly after his arrest was involuntary because he was in a confused psychological state at the time.

The suppression court heard testimony of the dramatic car chase and the injuries suffered by appellant as a result of the collision and ensuing scuffle. However, the court also heard testimony from police officers that appellant was alert and coherent at the time he offered his confession. The court concluded that although appellant had been involved in an out-of-the-ordinary experience and had sustained minor injuries, his mental faculties and ability to answer questions were unimpaired, and his confession thus voluntary and intelligent.

Our duty on review is to determine whether the record supports the factual and legal findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we are to consider only the evidence of the Commonwealth’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Brown, 298 Pa.Super. 11, 21, 444 A.2d 149, 154 (1982), quoting Commonwealth v. Hunt, 263 Pa. Super. 504, 509, 398 A.2d 690, 692 (1979).

After an independent review of the suppression hearing testimony, we conclude that the factual and legal findings of the suppression court are adequately supported by the evidence.

Next, appellant raises a claim of ineffective assistance of counsel with respect to the admission of his confession into evidence. Specifically, appellant maintains that trial counsel should have pursued the suppression of the confession on the basis of an alleged unnecessary delay between arrest and arraignment. Pa.R.Crim.P. 130. We reject this argument.

Counsel cannot be found ineffective for failing to pursue a meritless argument. Commonwealth v. Williams, 500 Pa. 226, 455 A.2d 632 (1983); Commonwealth v. McKnight, 311 Pa.Super. 370, 457 A.2d 931 (1983). A motion to suppress appellant’s confession on the basis of Rule 130 would have been without merit.

Under the law applicable at the time of appellant’s arrest, a pre-arraignment delay would only be grounds for suppression of evidence when the evidence obtained was reasonably related to or the product of the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); Commonwealth v. Jones, 271 Pa.Super. 528, 414 A.2d 379 (1982). As a matter of law, “if the unnecessary delay follows the securing of an [incriminating statement] that evidence is not reasonably related to the subsequent delay.” Commonwealth v. Williams, 484 Pa. 590, 592, 400 A.2d 1258, 1259 (1979).

Appellant’s volunteered admission was not reasonably related to nor the product of the alleged pre-arraignment delay. The unnecessary pre-arraignment delay, if any, did not occur until after appellant’s statement had been secured. Appellant was arrested at approximately 7:45 p.m., whereupon he was taken to the hospital for treatment. The challenged statement was made at the hospital within approximately one hour of the arrest. This short time span does not constitute an unnecessary delay; and whatever delay did occur did not cause appellant to confess.

The next claim raised by appellant is that his conviction on one of the counts of simple assault was not by unanimous jury verdict. This argument is without merit.

A conviction must be based on a unanimous jury verdict. Commonwealth v. Ciotti, 496 Pa. 232, 436 A.2d 983 (1981); Commonwealth v. Pemberton, 256 Pa.Super. 297, 389 A.2d 1132 (1978); Pa.R.Crim.P. 1120. Moreover, in order to ensure the unanimity of the verdict, a defendant may poll the jury in order to ascertain whether each juror has voluntarily entered into the verdict. Commonwealth v. Johnson, 312 Pa.Super. 484, 459 A.2d 5 (1983); Pa.R. Crim.P. 1120(f). In assessing an individual juror’s response to questioning during a jury poll, we look to the totality of the circumstances to determine whether his answers indicate voluntary assent to the verdict. Commonwealth v. Ciotti, supra.

Appellant claims that unanimity of the verdict was lacking because one of the jurors, upon being polled initially, registered a vote of not guilty on one of the assault counts. Although appellant concedes that this juror later changed his vote, he maintains that the change resulted from some form of coercion.

Viewing the record and considering the totality of the circumstances surrounding the jury poll, we are convinced that the juror in question voluntarily and unequivocally assented to the guilty verdicts, and that all verdicts were therefore unanimous. We note that:

... a juror’s initial ambiguous, inconsistent, or evasive answer to a poll does not vitiate unanimity so long as a subsequent answer or further interrogation indicates clear and unequivocal assent to the majority vote, and there is no evidence of involuntariness or coercion.

Commonwealth v. Hall, 267 Pa.Super. 204, 214, 406 A.2d 765, 770 (1979).

We agree with the trial court that the juror’s initial answer was inadvertent, and that it was subsequently and unequivocally corrected. We reject appellant’s contention that coercion in any way influenced the verdict.

Appellant’s next contention is that the hearing court erred in granting the Commonwealth’s petition to extend the trial run date. Appellant claims that the Commonwealth violated Pa.Rule of Crim.P. 1100 by failing to exercise due diligence in bringing him to trial, and as a result appellant was denied his right to a speedy trial.

We note that appellant failed to appear for trial on February 14, 1977, the originally scheduled date; and that appellant in fact remained a fugitive until he was captured by federal authorities on an unrelated charge on July 5, 1980. Appellant does not dispute his “unavailability” for trial during this period. The focus of our inquiry centers on the period from July 5, 1980, when appellant was arrested and taken into federal custody, until February 5, 1981, when he was returned to Pennsylvania custody for trial for the Pantry Pride robbery. We evaluate the Commonwealth’s due diligence during this period. Due diligence under Rule 1100 demands only a “reasonable effort” by the Commonwealth to bring appellant to trial. Commonwealth v. Martofel, 248 Pa.Super. 206, 375 A.2d 60 (1977); Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983); Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982).

After reviewing the complex chronology of this case we conclude that the Commonwealth’s efforts were reasonable and diligent. Appellant was arrested by federal authorities in Pennsylvania on July 5, 1980 for a bank robbery committed in Virginia. On July 7, 1980, within two days of that arrest, the Commonwealth made an informal request for transfer of appellant from federal to state custody. The Commonwealth was advised, however, that appellant would not be turned over for prosecution for the Pantry Pride robbery until the trial on the federal bank robbery charges was concluded. Trial in Virginia was scheduled for September 19, 1980. Upon being apprised of the decision of the United States Attorney to retain custody, the Commonwealth, on July 7, 1980, lodged a detainer on appellant.

At the conclusion of the federal trial on October 7, 1980, appellant was found guilty of bank robbery and sentenced to imprisonment for twenty years in the United States Penitentiary in Marion, Illinois. On November 7, 1980, the Commonwealth contacted the Marion penitentiary and requested immediate custody of appellant. On November 10, 1980 the Commonwealth sent a formal request for temporary custody of appellant, pursuant to the Interstate Agreement on Detainers Act (hereinafter “Detainer Agreement”). On December 15, 1980 the Marion officials informed the Commonwealth that appellant refused to consent to his return to Pennsylvania for trial. Under the provisions of the Detainer Agreement, because appellant did not voluntarily agree to his return, the Commonwealth was forced to wait thirty days before securing his transfer. On February 5, 1981 the federal authorities transferred appellant to Pennsylvania.

Since the originally scheduled trial date had long passed, the Commonwealth filed a petition to extend under Rule 1100. The court below granted an extension of the run date to July 5, 1981. Appellant challenges this extension.

Of course under Rule 1100, all periods of delay beyond the mandatory period must be either excluded from the computation under Rule 1100(d) or justified by an order granting an extension under Rule 1100(c) if the Commonwealth is to prevail. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). In order for the Commonwealth to receive an extension of time in which to commence trial, the Commonwealth must show that it cannot bring a defendant to trial within the prescribed period despite its due diligence. Commonwealth v. Colon, supra. Notable in this regard is the rule that mere incarceration in another jurisdiction does not make the defendant “unavailable” for trial under Rule 1100(d). Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982); Commonwealth v. Emmett, 274 Pa.Super. 23, 417 A.2d 1232 (1979). The Commonwealth must still demonstrate that it exercised due diligence in its efforts to secure the defendant’s presence. Commonwealth v. Ryan, supra.

We conclude that the Commonwealth’s efforts between July 5, 1980 and February 5, 1981 were duly diligent. While appellant was in federal custody awaiting trial for the Virginia bank robbery, there was little the Commonwealth could do but lodge a detainer to protect its interests. This the Commonwealth did almost immediately upon learning of appellant’s arrest. Once the Commonwealth became aware that appellant’s federal trial had been concluded, it timely and vigilantly pursued appellant’s transfer through channels prescribed by the Detainer Agreement.

As a result of the Commonwealth’s efforts, appellant’s transfer was promptly effected. Although appellant’s return could conceivably have been swifter, the Commonwealth is not required to show that it acted “with perfect vigilance and punctilious care”. Commonwealth v. Johnson, 305 Pa.Super. 310, 314, 451 A.2d 546, 548 (1982); See also Commonwealth v. Thompkins, supra; Commonwealth v. Maguire, 307 Pa.Super. 80, 452 A.2d 1047 (1982). We view the Commonwealth’s efforts under the circumstances to be reasonable and diligent. Cf. Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239 (1976) (Commonwealth failed to invoke the procedures of the Detainer Agreement); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977) (Commonwealth waited six months to secure defendant’s return to Pennsylvania).

Finally, appellant maintains that he was denied due process of law when he was transferred from federal custody to state custody without a pre-transfer hearing. We disagree. Appellant’s transfer from the federal penitentiary in Marion, Illinois to custody in Pennsylvania was proper even though no pretransfer hearing was provided.

The challenged transfer was effectuated through the mechanisms of the Detainer Agreement. Under the prescriptions of this compact a signatory state with outstanding criminal charges against a prisoner of another signatory state, may initiate a request for temporary custody of the prisoner in order to bring him to trial. No hearing is necessary as a pre-condition to transfer. However, the Detainer Agreement provides that the prisoner must be informed of the source and contents of any detainer lodged against him, and of his right to make a request for final disposition of the charges. Moreover, the Detainer Agreement provides for a thirty-day waiting period before the demanding state may obtain custody. During this period the prisoner may take whatever actions he deems necessary to protect his rights.

In response to appellant’s argument that his transfer from federal to state custody without a hearing deprived him of his liberty without due process, we rely on Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978). In Coleman an en banc panel of this Court explicitly held that the Due Process Clause does not require that a prisoner be afforded an extradition hearing prior to transfer under the Detainer Agreement. Accord Wertheimer v. State, 294 Minn. 293, 201 N.W.2d 383 (1972); State v. Thompson, 133 N.J.Super. 180, 336 A.2d 11 (1975); Hystad v. Rhay, 12 Wash.App. 872, 533 P.2d 409 (1975). See also 98 A.L.R.3d 160 (1980). We view this holding as dispositive. “Because of the summary nature of interstate rendition proceedings, an accused is not entitled to the full panoply of procedural protections which are accorded a defendant in a criminal trial.” 261 Pa.Super. at 280, 396 A.2d at 397. Even without allowance for a full scale judicial hearing, the Detainer Agreement adequately protects a prisoner’s rights. The provisions of the Detainer Agreement provide ample opportunity for the prisoner to challenge a state’s request for temporary custody by habeas corpus petition or other means.

In addition to his constitutional argument, appellant cites a recent decision of the United States Supreme Court as support for the proposition that a hearing is required before a prisoner may be transferred under the Detainer Agreement. In Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981) the Supreme Court ruled that a prisoner was entitled to a hearing before a court of the sending state prior to being transferred.

The basis for the Court’s holding in Cuyler was statutory not constitutional. Mr. Justice Brennan, speaking for the High Court, opined that the Detainer Agreement was not intended to narrow or remove pre-existing rights that a prisoner had under federal or state law to challenge the transfer to the receiving state. Id. In Cuyler, the prisoner was incarcerated in a jurisdiction which had adopted the Uniform Criminal Extradition Act (hereinafter “Extradition Act”). Under the provisions of the Extradition Act he was entitled to a hearing prior to being extradited. The Supreme Court held that the right to a pre-extradition hearing under the Extradition Act, was a pre-existing right which could not be abridged by the Detainer Agreement. Thus, the Court ruled that in these circumstances, the denial of a pre-transfer hearing was unlawful.

We do not question the soundness of the Cuyler decision. Rather, we conclude that its holding is not applicable to the case at bar. Whereas in Cuyler, the prisoner was incarcerated in a state which had adopted the Uniform Criminal Extradition Act, in this case appellant was in the custody of the United States which is not a party to the Extradition Act. Thomas v. Levi, 422 F.Supp. 1027 (E.D. Pa.1976). As a federal prisoner, appellant was not entitled to those pre-existing rights conferred by the Extradition Act. Pennsylvania may request temporary custody of a federal prisoner under the provisions of the Detainer Agreement, without regard to the Extradition Act. Cuyler is inapposite, and appellant has no statutory right to a pretransfer hearing. See Wilson v. Fenton, 684 F.2d 249 (3rd Cir.Pa.1982); Sorenson v. United States, 539 F.Supp. 865 (S.D.N.Y.1982).

We find appellant’s remaining claims to be wholly without merit. Accordingly, and for the foregoing reasons we affirm judgment of sentence.

SPAETH, President Judge, filed a concurring statement.

SPAETH, President Judge,

concurring:

I join the majority’s opinion except that on the transfer issue I think it sufficient to note that appellant would not be entitled to have his conviction set aside even if he was entitled to a hearing. Cf. Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981) (person convicted cannot avoid the verdict merely by pointing to an illegal arrest).

      . The six hour rule enunciated in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), effective May 15, 1977, is not applicable to this case.

      . The three assault charges related to three different police officers and were based on similar evidence.

      . Codified in Pennsylvania at 42 Pa.C.S. § 9101 et seq.

      . Since we find that appellant’s transfer was proper, we reject appellant’s argument that trial counsel was ineffective for failing to pursue this issue. Counsel cannot be found ineffective for failing to pursue meritless claims. Commonwealth v. Williams, 500 Pa. 226, 455 A.2d 632 (1983).

      . The logic of Coleman is equally applicable when the sending jurisdiction is the United States rather than a member state.