text:
    525 A.2d 373
    COMMONWEALTH of Pennsylvania, Appellee, v. Adelaide Helen ANNESKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1986.
    Filed March 23, 1987.
    Reargument Denied May 22, 1987.
    Petition for Allowance of Appeal Denied Sept. 30,1987.

      Dwight C. Harvey, McConnelsburg, for appellant.
    James M. Schall, McConnelsburg, for Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

Adelaide Anneski was charged in a private, criminal complaint with making a terroristic threat. A jury heard testimony that during an argument with a neighbor, Anneski had told her neighbor if the neighbor “tried to run over her kids anymore at the bus stop” she, Anneski, would bring a gun and use it. The jury found that this statement, which Anneski admitted making, had been made with intent to terrorize and returned a verdict of guilty as charged. The trial court denied post-trial motions and imposed a sentence of probation for three years. Anneski filed a direct appeal.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, as verdict winner, and accept as true all evidence upon which the jury could properly have based its verdict. We then determine whether that evidence, together with all reasonable inferences to be drawn therefrom, was sufficient to enable the jury to find each and every element of the crime beyond a reasonable doubt. See: Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984); Commonwealth v. Tribble, 502 Pa. 619, 621, 467 A.2d 1130, 1131 (1983); Commonwealth v. Brown, 336 Pa.Super. 628, 634, 486 A.2d 441, 444 (1984). In making this determination, we consider all the evidence received, whether the trial court’s evidentiary rulings were correct or incorrect. See: Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Boyd, 463 Pa. 343, 347, 344 A.2d 864, 866 (1975); Commonwealth v. Deemer, 316 Pa.Super. 28, 31, 462 A.2d 776, 777 (1983); Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983).

In Commonwealth v. Speller, 311 Pa.Super. 569, 458 A.2d 198 (1983), a panel of this Court said:

The crime of terroristic threats is defined in 18 Pa.C. S.A. § 2706 as follows:
A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. monwealth v. Ashford, supra; Commonwealth v. Holguin, supra.

A violation of the statute is proved by evidence that (1) a threat to commit a crime of violence was made and (2) such threat was communicated with intent to terrorize. Commonwealth v. Ferrer, 283 Pa.Super. 21, 23, 423 A.2d 423, 424 (1980); Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979); Commonwealth v. Holguin, 254 Pa.Super. 295, 305, 385 A.2d 1346, 1351 (1978). “The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security.” Commonwealth v. Hardwick, [299 Pa.Super. 362, 365, 445 A.2d 796, 797]. See: Model Penal Code § 211.3, revised comments (1980). See also: Commonwealth v. Green, 287 Pa.Super. 220, 429 A.2d 1180 (1981); Commonwealth v. Bunting, 284 Pa.Super. 444, 426 A.2d 130 (1981); Com-

Commonwealth v. Speller, supra, 311 Pa.Superior Ct. at 573, 458 A.2d at 200.

From the evidence presented in this case, a jury could conceivably have found that appellant threatened to commit a crime of violence and that she did so with an intent to inflict terror and psychological distress upon her neighbor. In addition to testimony identifying the threat, there was testimony that appellant had previously told the school bus driver, without identifying the victim, that he would be a witness to a homicide. There was also evidence that on the day following the argument, appellant had in fact carried a gun when she accompanied her children to the school bus stop.

When all of the evidence is considered, however, it becomes apparent that the jury’s finding is contrary to the weight of the evidence. The balance of the evidence, most of which was agreed to by all parties, disclosed that Anne-ski and Lana Group were neighbors. To get to and from the school bus stop, Anneski’s children were required to walk along a rural roadway to the highway. Mrs. Group also used the lane, and occasionally drove her automobile over it. She complained that the Anneski children, walking abreast, had impeded her progress. A contest of wills developed between the Anneski children, who were slow in making way, and Mrs. Group, who attempted to force her way through the group of children with her automobile. Appellant believed that her children were in danger and that Mrs. Group would ultimately run them down. She had requested, unsuccessfully, that the school bus stop be moved and also that police protection be provided for the children. On the morning of September 13, 1984, according to testimony received from the Anneski children, Mrs. Group’s vehicle struck a schoolbag being carried by one of the children. Although the prosecution denied that contact had been made, there can be no doubt that appellant believed that her daughter had been struck by Mrs. Group’s vehicle. It was later that morning that appellant spoke via telephone with the school bus driver and, while complaining about the danger to her children because of Mrs. Group’s conduct, made reference to a possible homicide.

On the afternoon of the same day, appellant confronted Mrs. Group and the latter’s husband outside the Group home. During the yelling and screaming which ensued, Mrs. Group said, according to defense testimony, that she would run into the children again if they didn’t get out of her way. In response, as all witnesses agree and as appellant concedes, she said that if Mrs. Group ran into her children again she would get a gun and use it.

Although a jury, by viewing in isolation certain selected portions of the evidence, could possibly infer that appellant’s threat to use a gun was intended to terrorize, the weight of the evidence, when considered in its entirety, most certainly negatived the making of a terroristic threat as defined by 18 Pa.C.S. § 2706. The evidence disclosed, rather, that appellant spoke in anger, during a heated argument, because she believed that her child had been struck by Mrs. Group’s automobile, and because she feared for the future safety of her children. Her threat was prompted by the belief that Mrs. Group would run into her children in the future. It contained the promise that if such should occur, appellant would get a gun and use it. In summary, it appears that there was an exchange of threats made during a heated, perhaps hysterical, argument between neighbors.

The provisions of 18 Pa.C.S. § 2706 are derived from the Model Penal Code. The Joint State Government Commission, in its Comment to this section of the Pennsylvania Crimes Code, has said that the purpose of the criminal provision “is to impose criminal liability on persons who make threats which seriously impair personal security.... It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” See: Commonwealth v. Kidd, 296 Pa.Super. 393, 442 A.2d 826 (1982). The statutory proscription “is directed against those who employ threats in circumstances more serious than would be covered by petty offenses like disorderly conduct or breach of the peace.” Toll, Pennsylvania Crimes Code Annotated § 2706 (1974), quoting Model Penal Code Comment: [T.D. No. 11, pp. 8-9]. In reviewing a statement alleged to be a terroristic threat, we do not look at the statement in a vacuum. Instead, we must look at it in light of the surrounding circumstances. Commonwealth v. Griffin, 310 Pa.Super. 39, 45, 456 A.2d 171, 174 (1983).

The surrounding circumstances in the instant case, although not absolutely precluding a finding that appellant intended to terrorize, suggest by their overwhelming weight that appellant lacked a settled purpose to terrorize Mrs. Group. Instead, her statement that she would get a gun and use it was a spur-of-the-moment threat resulting from transitory anger prompted by Mrs. Group’s threat to hit the Anneski children again with her car if they obstructed her vehicle’s passage. Such a response, even if not dignified or noble, was not the type of conduct made criminal by 18 Pa.C.S. § 2706. See: Commonwealth v. Kidd, supra; Commonwealth v. Ferrer, 283 Pa.Super. 21, 423 A.2d 423 (1980). See also: Annotation, Validity and Construction of Terroristic Threat Statutes, 45 A.L.R. 4th 949, 988 (1986). In order that justice may be given another opportunity to prevail, therefore, a new trial will be granted.

A new trial is also necessary because of an erroneous evidentiary ruling by the trial court. Mrs. Group, the complainant and private prosecutrix, was permitted to testify, over objection, that she had heard that appellant previously had shot at other persons. This hearsay testimony was improper, not only because it was hearsay, but because it was irrelevant and highly prejudicial.

The offense of terroristic threats, as we have observed, was intended to impose criminal liability on persons who make threats which seriously impair another’s personal security. It is the making of the threat with intent to terrorize that constitutes the crime. Neither the ability to carry out the threat nor a belief by the person threatened that it will be carried out is an essential element of the crime. Whether the complainant believed that appellant had previously shot at another person, therefore, was irrelevant. Moreover, because the evidence suggested that appellant had previously been involved in unrelated criminal activity, this evidence was highly prejudicial. See: Commonwealth v. Nichols, 485 Pa. 1, 400 A.2d 1281 (1979); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Shealey, 324 Pa.Super. 56, 471 A.2d 459 (1984).

The appellant, on direct examination, testified that although she was concerned about her children and did not want them to be harmed by Mrs. Group, she would never shoot anyone. The prosecuting attorney then asked, during cross-examination, whether appellant had not carried a gun to the bus stop on the day after her argument with Mrs. Group. The trial court overruled a defense objection to the question, and appellant contends that this was error. However, the scope and manner of cross-examination are within the discretion of the trial court, whose decision with respect thereto will not be disturbed absent an abuse of discretion. Commonwealth v. Orlowski, 332 Pa.Super. 600, 636, 481 A.2d 952, 970 (1984). There was no abuse of discretion in the instant case. Appellant’s conduct on the day following the argument was part of the same episode, and her conduct on that occasion was arguably relevant to attack the credibility of inconsistent testimony given by appellant during her direct testimony.

We have examined appellant’s other averments of trial error but find no merit therein. Because a new trial is required, we find it unnecessary to review the sentence which the court imposed.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The District Attorney, despite the difficult nature of this case, has not seen fit to file a brief.

      . Compare: Wiggins v. State, 171 Ga.App. 358, 319 S.E.2d 528 (1984); State v. Realina, 1 Hawaii App. 167, 616 P.2d 229 (1980); Annotation, Validity and Construction of Terroristic Threat Statutes, 45 A.L.R. 4th 949, 990 (1986).

      . These include (1) the court’s refusal to grant a continuance and appoint other counsel; (2) the court’s denial of a motion to suppress appellant’s conversation with the school bus operator; and (3) the trial court’s jury instructions (appellant did not object thereto).


source: Caselaw Access Project

author: WIEAND, Judge: BECK, Judge,

license: Public Domain

text:
    525 A.2d 377

    John D. CLARK and Helen A. Clark, Trustees Ad Litem and John D. Clark, Administrator of the Estate of Sharon A. Clark, Deceased, Appellees, v. Oscar HOERNER, M.D. and Harrisburg Hospital, Appellants.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed April 2, 1987.
    Reargument Denied May 22, 1987.

      James W. Evans, Harrisburg, for appellants.

      Alan Schwartz, Philadelphia, for appellees.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

Sharon Clark died on January 1, 1981. The cause of death was pneumonia. Her parents filed wrongful death and survival actions against Dr. Oscar Hoerner and his employer, the Harrisburg Hospital, alleging that Hoerner had failed to detect and correctly diagnose Sharon’s condition in adequate time to save her life.

The evidence offered at trial showed that Sharon had been examined for the first time by Dr. Hoerner on December 26, 1980. He diagnosed the malady of the fifteen year old girl as influenza and prescribed antihistamines and Tylenol. He gave Sharon permission to travel with her parents to New York. Dr. Hoerner saw Sharon a second time on December 29, when she complained of a sore throat, a swelling of the cervical glands, chest pains and a general malaise. He refused a request for an antibiotic. He again diagnosed Sharon’s condition as the flu and prescribed medicine for the sore throat. He also performed a strep screen for throat bacteria which was negative. However, he took no x-rays. Sharon and her mother were instructed to call Dr. Hoerner if Sharon’s condition became worse. However, Sharon’s parents were dissatisfied with Dr. Hoerner’s services and decided that they would not return.

Sharon’s condition did become worse. At or about 8:00 p.m. on December 29, Sharon began vomiting blood. Ice was applied to her throat during the night. At 8:30 a.m. on December 30, Sharon’s mother took her to the emergency room at Holy Spirit Hospital. A chest x-ray disclosed a rapidly progressing, fulminating pneumonia of the right lung. Sharon was admitted to the hospital, and antibiotics were administered. When Sharon suffered respiratory failure and kidney dysfunction, she was transferred to the Harrisburg Hospital, where she died. Dr. Sullivan, who treated her at both hospitals, diagnosed her condition and testified that it was a rare and rapidly progressive pulmonary disease not often seen in the young.

A jury awarded damages of $650,000.00 against both defendants. The trial court added delay damages; post-trial motions were denied, and judgment was entered on the molded verdict. On appeal, Dr. Hoerner and Harrisburg Hospital contend: (1) that the evidence failed to establish a causal connection between the failure to make an immediate diagnosis and Sharon’s death; (2) that the trial court erred when it declined to instruct the jury regarding the possible negligence of Sharon’s parents; (3) that the trial court should have granted a motion for mistrial after an outburst by Sharon’s mother while being cross-examined; and (4) that the trial court erred by allowing appellee-plaintiffs to call in rebuttal an expert witness not previously disclosed. Although we perceive no merit in defendant-appellants’ first three arguments, we find their fourth and final contention to be well taken. The trial court abused its discretion when it permitted plaintiff-appellees to call a surprise expert witness, whose identity had not previously been disclosed. Accordingly, we vacate the judgment entered for plaintiffappellees and remand for a new trial.

Although the medical testimony was in dispute, there was expert testimony attributing negligence to Dr. Hoerner because he had not ordered Sharon to rest following her first visit to the doctor’s office and also because he had failed to use available diagnostic techniques, with a resulting erroneous diagnosis and treatment, on December 29. One of the experts called by the plaintiff-appellees, Dr. Hymen Kanoff, testified that the sooner Sharon had been properly diagnosed and treated, “the better the chances she had of survival.” Another expert, Dr. Barry Singer, testified that if Sharon had been correctly diagnosed and treated on December 29, her chances of survival would have been “much better.” Dr. Atkinson, who was the surprise witness, gave similar testimony. However, none of the experts were willing to say with reasonable medical certainty that Sharon’s life could have been saved if Dr. Hoerner had diagnosed and correctly treated her when she visited his office. Appellants contend that this was insufficient as a matter of law to establish that Dr. Hoerner’s failure to diagnose and properly treat Sharon on the occasions when he saw her was the cause of her death.

A similar question was presented to the Supreme Court of Pennsylvania in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). The Court held:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of the Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof. The Fourth Circuit in a case similar to the one at bar, has well stated the justification for this deviation from the normal requirements of proof. In Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966), the court stated:
“When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendants mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.”
We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.
In light of our interpretation of Section 323(a), it follows that where medical causation is a factor in a case coming within that Section, it is not necessary that the plaintiff introduce medical evidence — in addition to that already adduced to prove defendant’s conduct increased the risk of harm — to establish that the negligence asserted resulted in plaintiff’s injury. Rather, once the jury is apprised of the likelihood that defendant’s conduct resulted in plaintiff’s harm, that Section leaves to the jury, and not the medical expert, the task of balancing probabilities. In so saying we do not intend to undermine the well-established standard of “reasonable degree of medical certainty” as the accepted norm for medical opinions on causation. But we think it would be unreasonable and unrealistic in this type of case to expect a physician to state with a “reasonable degree of medical certainty” what might have happened when the law (Section 323(a)) recognizes the contingencies involved. See generally D. Danner and E. Segall, Mediocolegal Causation: A Source of Professional Misunderstanding, 3 AmJ.L. & Med. 303 (1978). Where there is at issue the adequacy of medical services rendered in a fact situation to which Section 323(a) applies, therefore, a prima facie case of liability is established where expert medical testimony is presented to the effect that defendant’s conduct did, with a reasonable degree of medical certainty, increase the risk that the harm sustained by plaintiff would occur.

Id., 481 Pa. at 271-273, 392 A.2d at 1287-1289 (footnotes omitted). In the instant case, the causation issue was properly submitted to the jury. Appellants were not entitled to judgment n.o.v.

Defendant-appellants contended in support of their motion for a new trial that the court had erred by refusing to instruct the jury regarding the possible negligence of Sharon and her parents in failing to follow Dr. Hoerner’s instructions. Our review of the record confirms the trial court’s response that “there was absolutely no evidence to support a charge to the jury on Sharon Clark’s contributory negligence.” Trial court opinion, p. 16. Similarly, there was insufficient evidence to require a jury to determine whether the parents had been negligent in a way which contributed to their daughter’s death. Indeed, as the trial court observed, the parents had not been joined as parties in the survival action and, in response to plaintiff’s interrogatories, the defense had denied that they would contend that another person or persons had been responsible for Sharon’s death.

During the cross-examination of Sharon’s mother, the following colloquy took place:

Q. And you didn’t call him [Dr. Hoerner] when you first saw the blood?
[Mrs. Clark]
A. It was just a little streak of blood, sir. It was nothing to alarm anybody. I have seen it before on different people, myself.
Q. But she threw up—
A. If Sharon threw up a clot or if Sharon — as soon as I saw any kind of significant amount of blood, that’s when we were gone to the hospital. I think you are trying to infer I sat there and watched her bleed and did nothing and I didn’t do that. I wish to God she did, then I would have had her in the hospital sooner and she might be alive now. (Tr. 538-539; R. 501a; Sup.R. 502b.) (Emphasis added.)

The witness’ response, we are told, was emotionally delivered in a loud voice as the witness rose from her seat. The trial court recessed the trial to permit the witness to compose herself, but denied a defense motion for mistrial. Appellants contend that it was error to deny the motion for mistrial.

A trial judge is in the best position to observe the atmosphere in which a trial is being conducted and to determine whether a statement in the heat of trial by counsel or a witness has had a prejudicial effect on the jury. Whether to grant or deny a motion for mistrial, therefore, must necessarily rest primarily in the discretion of the trial court. Narciso v. Mauch Chunk Township, 369 Pa. 549, 552, 87 A.2d 233, 234 (1952). Absent a clear abuse of that discretion, an appellate court will not disturb the trial court’s ruling. Abrams v. Philadelphia Suburban Transportation Co., 438 Pa. 115, 119, 264 A.2d 702, 704 (1970); Speer v. Barry, 349 Pa.Super. 365, 372, 503 A.2d 409, 413 (1985). Whether a court has abused its discretion in refusing a motion for mistrial must be determined by the circumstances under which the statement was made and the precautions taken to prevent its having a prejudicial effect on the jury. Martin v. Philadelphia Suburban Transportation Co., 435 Pa. 391, 394, 257 A.2d 535, 537 (1969).

The remarks of the witness in the instant case were not so inflammatory or prejudicial as to prevent a fair trial. Cf. Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980) (no abuse of discretion in denying mistrial where family of victim broke down emotionally in front of jury); Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977) (in-court emotional outburst by victim’s mother did not require mistrial). We conclude, therefore, that it was not an abuse of discretion to deny the motion for mistrial. Moreover, the trial court cautioned the jury “to decide the case without any emotional considerations ... to decide it based on the testimony and the testimony alone.”

The final issue is the most difficult and also the most troublesome. On the eighth day of trial, after all parties had completed their cases in chief, the plaintiffs called a surprise witness. Plaintiffs’ prior witnesses had been “specialists in the areas of general practice and internal medicine — not pulmonology.” Appellees’ Brief, p. 21. Now, however, they produced Dr. William Atkinson, the Chief of Pulmonary Medicine at Presbyterian Hospital, University of Pennsylvania. Dr. Atkinson had not been identified as a witness prior to trial. When it became known on the seventh day of trial that plaintiff-appellees intended to call a witness on rebuttal, defense counsel’s request that the identity of the witness be disclosed was refused. When Dr. Atkinson appeared on the eighth day of trial, defense counsel objected to his being allowed to testify because the witness had not previously been disclosed. When the trial court decided to allow the witness to testify, defense counsel requested a continuance to ascertain the nature of the witness’ testimony. The motion for continuance was denied by the trial court. When counsel asked for the witness’ curriculum vitae, plaintiffs’ counsel responded that he didn’t have it.

Dr. Atkinson testified that he had reviewed the hospital records, the physicians’ notes, the autopsy report and the reports of other physicians. He was then asked to give his opinion as to the cause of death and testified that death had not been caused by viral pneumonia, as the defense experts had concluded, but by bacterial pneumonia. The witness was then asked a hypothetical question and responded that Dr. Hoerner’s failure to order an x-ray on December 29 was not consistent with the recognized standard of medical care in the community. He also testified, as we have observed, that Sharon’s chances of survival had been adversely affected by the delay in diagnosing correctly her condition.

Pa.R.C.P. 4003.5(b) provides as follows:

(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

Pa.R.C.P. 4019(i) also provides:

(i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

“The purpose of the discovery rules is to prevent surprise and unfairness and to allow a trial on the merits. When expert testimony is involved, it is even more crucial that surprise be prevented, since the attorneys will not have the requisite knowledge of the subject on which to effectively rebut unexpected testimony. By allowing for early identity of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of experience on the spot. Thus, the rule serves as more than a procedural technicality; it provides a shield to prevent the unfair advantage of having a surprise witness testify.” Sindler v. Goldman, 309 Pa.Super. 7, 12, 454 A.2d 1054, 1056 (1982).

Appellees contend that the discovery rules apply only to witnesses who are called to testify by a party during his or her case in chief and do not preclude the testimony of expert witnesses, such as Dr. Atkinson, when they are called in rebuttal. We disagree. The rules themselves do not make the distinction urged by appellees, and to amend the rules to so provide would, in practice, reintroduce the trial by ambush which the rules were intended to prevent. The language of the rules is adequate to protect a party who has been surprised by unexpected evidence in his opponent’s case in chief. If the failure to anticipate an opponent’s evidence is beyond the control of a party, the court may treat the same as an extenuating circumstance and permit a previously undisclosed witness to be called in rebuttal. The rules must be interpreted to prevent surprise and unfairness and not as devices for excluding relevant, rebuttal evidence. “Where there is ambiguity, the rule will be construed ... to secure a just determination of the action. This will more likely be achieved by receiving relevant evidence than by excluding it.” Feingold v. Southeastern Pennsylvania Transportation Co., 339 Pa. Super. 15, 27, 488 A.2d 284, 291 (1985) (interpreting an analogous local rule), aff'd, 512 Pa. 567, 517 A.2d 1270 (1986). If necessary to assure a fair trial on the merits, a trial court may grant a brief continuance or take other steps to achieve this objective.

Even if we were to accept appellees’ position that Rules 4003.5(b) and 4019(i) have no application to rebuttal witnesses, such a determination would be unavailing to appellees here because the record clearly demonstrates that Dr. Atkinson was not a rebuttal witness. “ ‘Rebuttal evidence’ is defined in Black’s Law Dictionary (5th ed. 1979) as ‘[e]vidence given to explain, repel, counteract, or disprove facts [as opposed to opinions] given in evidence by the adverse party.” Feingold v. Southeastern Pennsylvania Transportation Co., supra 339 Pa.Super. at 26, 488 A.2d at 290. “A party cannot, as a matter of right, offer in rebuttal evidence which is properly part of his case in chief, but will be confined to matters requiring explanation and to answering new matter introduced by his opponent.” 2 Henry, Pennsylvania Evidence, § 730 (4th ed. 1953), quoted in Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 179, 480 A.2d 299, 303 (1984). See: 75 Am.Jur.2d Trial § 151. Instantly, plaintiff-appellees represented that Dr. Atkinson was being called to rebut the testimonies of defense experts concerning the cause of Sharon’s death. This he did. However, he went considerably further when he opined, over repeated defense objections, that “a general practitioner would have, in comporting with the reasonable standard of care, been required to take chest x-rays, a blood culture and ... other tests,” N.T. at 1133-1134; R.R. at 979a-980a, and that, based upon a reasonable degree of medical certainty, “Dr. Hoerner’s failure to order an x-ray ... [had] increased the risk of harm and death to Sharon Clark____” N.T. at 1134; R.R. at 980a. Such testimony, bearing as it did upon the ultimate issues of whether Dr. Hoerner had been negligent and, if so, whether his negligence had been a substantial factor in bringing about the decedent’s death, should have been presented during the plaintiffs’ case in chief. Dr. Atkinson could not have been so called, however, because he had not been identified as an expert witness prior to trial. Should appellees now be allowed to circumvent the discovery rules by the expedient of characterizing Dr. Atkinson as a rebuttal witness? We think not. “We cannot allow a party to circumvent the valid purposes of the discovery rules by late retention of expert witnesses which the party then excuses under the guise of ignorance or surprise regarding [the] opposing party’s case.” - Kaminski v. Employers Mutual Casualty Co., 338 Pa.Super. 400, 416, 487 A.2d 1340, 1349 (1985). To permit the rule to be avoided under the guise of calling undisclosed expert witnesses in rebuttal and in the absence of “extenuating circumstances beyond the control of the defaulting party” would violate both the language and the spirit of the rule.

No extenuating circumstances existed in the instant case. There was no evidence to indicate that Dr. Atkinson could not have been identified prior to trial or that he was unavailable to testify during the presentation of the plaintiffs’ case in chief. Nor is there evidence that appellees were surprised by the testimony of the defense experts such that the need for Dr. Atkinson’s testimony could not have been anticipated. The identities of all defense experts called at trial, their backgrounds, and the substantive aspects of their testimonies had been supplied to the plaintiffappellees before trial in answers to interrogatories.

Appellees argue that the need for Dr. Atkinson’s testimony became apparent for the first time during the presentation of defense evidence when a defense witness testified for the first time that, according to a notation he had made on the decedent’s medical chart, she may have been experiencing bouts of rapid breathing prior to her examination by Dr. Hoerner on December 29, 1980. This contention, however, is belied by the record. The chart, from which the witness testified, had been the subject of pre-trial discovery and had been available to plaintiffs’ counsel before trial began. The notation regarding rapid breathing was there to be seen by counsel and plaintiffs’ experts. It did not come to light for the first time during the presentation of defense evidence.

Despite the mandatory language of Rules 4003.5(b) and 4019(i), it has been held that a trial court “must balance the facts and circumstances of each case to determine the prejudice to each party.” Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 573, 517 A.2d 1270, 1273 (1986). Appellees argue, therefore, that by balancing the facts the trial court could determine that appellants would not be prejudiced by allowing Dr. Atkinson to testify. We reject this argument.

Dr. Atkinson was contacted by plaintiffs’ counsel for the first time during the trial. He was requested to review hospital records, physicians’ notes, the autopsy report and reports of several physicians which had been prepared in connection with the litigation. He also reviewed a hypothetical question which counsel submitted to him. His identity, however, was not disclosed until immediately prior to his giving testimony. On the seventh day of trial, plaintiffs’ counsel refused a request to identify the potential rebuttal witness to whom he had referred, asserting a lack of certainty as to the witness’ availability. Therefore, opposing counsel was not aware of Dr. Atkinson's identity until immediately before he was called as a witness on the eighth day of trial. Dr. Atkinson was offered to rebut “whether or not the young lady died as a result of a viral pneumonia or bacterial pneumonia.” The record discloses the following:

MR. SCHWARTZ: The significance of certain complaints which have been testified to by the defense testifying in connection with whether or not based on the symptomatology we have, whether a chest x-ray should have been done, these are things that have been put in the defense repeatedly three times. Your Honor, defense had three experts, plaintiff only had two in this case in chief.
THE COURT: That wouldn’t make any difference.
MR. SCHWARTZ: But this is rebuttal, Your Honor.
THE COURT: I think he is entitled to rebuttal.
MR. EVANS: He may be not in this fashion, that is not proper rebuttal to put another expert in here unknown to me. I move for a continuance of the trial of this case to have a deposition without the hearing of the jury.
THE COURT: I will deny that and grant you an exception.
MR. EVANS: May I have some information who this man is, a curriculum vitae?
MR. SCHWARTZ: Your Honor, he is a pulmonary specialist from Presbyterian Hospital University of Pennsylvania.
THE COURT: Why didn’t you give him your vitae?
MR. SCHWARTZ: I don’t have it, sir.
THE COURT: I’m simply not going to get myself into a case that is taking a better part of two weeks and just let it get out of control at this stage.

To argue, as appellees do, that appellants were not prejudiced because appellant should have anticipated that plaintiff-appellees would call on rebuttal a previously undisclosed specialist in pulmonary medicine is not realistic. The witness, who injected a new dimension into the trial both by his specialty and by his testimony regarding the cause of death, was called for the first time after the substantive issues had been fully tried and the parties had rested their cases in chief. Appellants’ counsel had no prior notice of the substance of the witness’ testimony. Neither did he have notice or even an opportunity to learn the curriculum vitae of the witness whom plaintiff-appellees now offered as a pulmonary expert. When defense counsel requested a delay to determine the qualifications of the witness and the substance of his testimony, the request was denied by the court. On this record the conclusion is inescapable that appellants’ trial counsel was ambushed by a surprise witness. We hold, therefore, that the trial court abused its discretion when, without affording opposing counsel any opportunity to ascertain the qualifications of the surprise witness or the nature of his testimony, the court permitted appellees to call a witness who had not been disclosed prior to trial as required by rules of discovery. Trial by ambush is no longer to be countenanced. See: Nissley v. Pennsylvania Railroad Co., 435 Pa. 503, 259 A.2d 451 (1969), cert, denied, 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813 (1970) (new trial granted because trial court improperly allowed testimony of expert medical witness whose identity had not been disclosed in answer to interrogatory); Moore v. Howard P. Foley Co., 235 Pa.Super. 310, 340 A.2d 519 (1975) (new trial granted where trial court erroneously allowed doctor to testify as expert witness where identity of expert had not been disclosed in answer to interrogatory and opponent did not learn of it until first day of trial). See also: Sindler v. Goldman, supra; McClain v. Carney, 19 D. & C.3d 527 (Wyoming Cty.1981); Philadelphia Electric Co. v. Nuclear Energy Liability—Property Insurance Association, 10 D. & C.3d 340 (Phila.Cty.1979). Compare: Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984).

Reversed and remanded for a new trial. Jurisdiction is not retained.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I concur in the majority’s resolution of the first three issues. I respectfully dissent from the majority’s conclusion that the trial court abused its discretion when it permitted the rebuttal testimony of plaintiffs’-appellees’ surprise expert witness.

In its case in chief, appellees attempted to establish that complications of bacterial pneumonia caused Sharon’s death. Appellees’ case was based in part on the theory that defendant-appellant, Dr. Hoerner, acted negligently in failing to order an x-ray when he examined Sharon on December 29, 1980. Appellees argue that the x-ray would have resulted in an earlier diagnosis of bacterial pneumonia, earlier antibiotic treatment, and increased chances of Sharon’s survival. Appellees’ argument is based on the premise that bacterial pneumonia will respond to a course of treatment with antibiotics.

In their case in chief appellants presented conflicting evidence on causes of death. One of appellants’ experts agreed with appellees that Sharon was suffering from bacterial pneumonia while other experts concluded that Sharon was suffering from a mixed variety of pneumonia, bacterial and viral. In addition, under cross-examination, appellants’ witness, Dr. Hewlett, gave an unanticipated interpretation of Sharon’s medical chart. Dr. Hewlett was the emergency room physician on duty when Sharon was admitted to the hospital on December 30, the day after Dr. Hoerner examined her. Dr. Hewlett explained the meaning of a notation he made that day on Sharon’s chart about her medical history. The phrase in question was, “rapid breathing, and fever for several days.” In cross examination Dr. Hewlett testified that “several days” was intended to modify the symptom of “rapid breathing” as well as “fever.” He further stated that “several days” meant at least two days. Although the notation on the chart was available to appellees during discovery, appellees could not reasonably have been expected to anticipate Dr. Hewlett’s unique interpretation of the notation. The trial court aptly described this interpretation of the history as “novel,” and “a diagnostically significant fact not previously discovered.” Until Dr. Hewlett’s testimony, there was no evidence that Sharon had been breathing rapidly on December 29, when Dr. Hoerner last examined her. Therefore, appellees’ expert witnesses in the case in chief did not assess the effect of this symptom in their testimony.

It is noteworthy that during the case for the defense, Dr. Hoerner testified that if Sharon had been breathing rapidly when he had examined her on December 29, he would have ordered a chest x-ray. In other words, Dr. Hoerner and Dr. Hewlett agreed that the presence of rapid breathing on December 29, would have indicated the need for a chest x-ray, as the accepted standard of medical practice. In contrast to Dr. Hewlett, Dr. Hoerner denied the presence of rapid breathing on December 29. Differing from both Drs. Hoerner and Hewlett, appellants’ other expert witnesses, Drs. Sullivan, Weitekamp and Bartlett, testified that they did not believe the standard of care required a chest x-ray on December 29.

With this background, I address the questions raised surrounding the rebuttal testimony of appellees’ expert witness, Dr. G. William Atkinson. The record indicates appellees’ counsel first discussed the facts of this case with Dr. Atkinson, a pulmonary specialist, on Friday, March 8, 1985, after Dr. Hewlett’s testimony revealed that Sharon experienced rapid breathing on December 29. Dr. Atkinson received Sharon’s medical records over the weekend, reviewed them, and discussed the case with appellees’ counsel on Monday evening, March 11. That evening, appellees’ counsel determined the need for Dr. Atkinson to present rebuttal testimony on Wednesday morning, March 13. On March 12, appellants learned appellees intended to call a rebuttal witness, requested further information about the rebuttal, and received none.

When Dr. Atkinson appeared in court on March 13, appellants requested a continuance which was denied. Appellees’ attorney gave an offer of proof and identified the two issues Dr. Atkinson would address in rebuttal. Appellees’ counsel placed Dr. Atkinson’s qualifications on the record but did not provide appellants with his curriculum vitae. Dr. Atkinson then testified as to the significance of Sharon’s rapid breathing on December 29 and as to her cause of death.

I.

The first issue Dr. Atkinson addressed in rebuttal was the significance of Sharon’s rapid breathing of December 29. He responded to a hypothetical question which included evidence of Sharon’s rapid breathing. He testified that the recognized standard of care in the medical community called for a chest x-ray on December 29, in the case of a patient exhibiting Sharon’s symptoms, including rapid breathing.

I would find that this testimony was proper rebuttal.

Dr. Hoerner had denied that Sharon exhibited rapid breathing on December 29. Appellees were not aware of the possibility of Sharon’s rapid breathing on December 29, until appellants’ own witness, Dr. Hewlett, during appellants’ case in chief revealed that the notation he made on Sharon’s chart on December 30 meant that Sharon exhibited rapid breathing on December 29. Appellees did not know and could not reasonably have anticipated this interpretation until Dr. Hewlett’s testimony. Therefore, Dr. Atkinson’s testimony on this issue was proper rebuttal to impeach Dr. Hoerner as well as his supporting witnesses, Drs. Sullivan, Weitekamp and Bartlett.

Appellees’ response to the new interpretation of the evidence was rebuttal as of right. A litigant may offer “rebuttal testimony, and where the evidence proposed goes to the impeachment of his opponent’s witness, it is admissible as a matter of right.” Feingold v. Southeastern Pa. Transp. Auth., 512 Pa. 567, 576, 517 A.2d 1270, 1274 (1985) (citations omitted). In Feingold, our Supreme Court defines impeachment, in the context of rebuttal, as testimony of other witnesses whose version of the facts differ from that of the witness being impeached. Id. “For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court.” Flowers v. Green, 420 Pa. 481, 484, 218 A.2d 219, 220 (1966) (citation omitted).

Generally, the decision whether to admit rebuttal testimony is within the discretion of the trial court. McNair v. Weikers, 300 Pa.Super. 379, 446 A.2d 905 (1982). Dr. Atkinson also explained an inconsistency in the testimony of appellants’ expert witnesses as to the presence of rapid breathing and as to whether a chest x-ray was essential on December 29. Therefore, even if I were to conclude that Dr. Atkinson’s testimony was not proper rebuttal as of right, I would have to find the court did not abuse its discretion in admitting the testimony.

II.

The second issue Dr. Atkinson addressed in rebuttal was the cause of Sharon’s death. He reinforced appellees’ conclusion presented in their case in chief that the cause of death was bacterial pneumonia. Appellees urge that this was a proper subject for rebuttal because appellants’ witnesses had muddied the waters in the case in chief by presenting conflicting causes of death. Even if appellees’ assessment of appellants’ case was accurate, appellees are not permitted as a matter of right to present testimony in rebuttal when such testimony was properly part of their case in chief. It is axiomatic that it is within the trial court’s discretion to admit or exclude rebuttal testimony which could have been properly presented as part of appellees’ case in chief. Downey v. Weston, 451 Pa. 259, 268-69, 301 A.2d 635, 641 (1973); Klyman v. Southeastern Pa. Transp. Auth., 331 Pa.Super. 172, 179, 480 A.2d 299, 303 (1984).

I would not however, find an abuse of discretion. Rebuttal is proper as to matters that require explanation. See Schoen v. Elsasser, 315 Pa. 65, 172 A. 301 (1934). Appellants had several eminent medical experts testify that the cause of death was not bacterial pneumonia. However, one of appellants’ witnesses, Dr. Hewlett, as well as all of appellees’ witnesses during the case in chief testified that bacterial pneumonia was the cause of death. Therefore, the court with a view to clarifying this conflicting testimony, did not abuse its discretion in permitting rebuttal.

III.

Consideration must also be given to the consequences of appellees’ counsel’s withholding information about Dr. Atkinson’s rebuttal testimony on March 12, and his calling the doctor as a surprise expert on March 13. Appellees argue their conduct was proper because appellees were under no legal obligation to name Dr. Atkinson on March 12. Appellees contend the discovery rules are not applicable to rebuttal experts.

Counsel’s interpretation of the discovery rules was reasonable in light of the fact that the rules address trial preparation only. I, however, agree with the majority that the rules should be interpreted to prevent surprise and unfairness and would rule so prospectively. I would hold that in the future the discovery rules apply to rebuttal testimony insofar as possible. Pa.R.C.P. 4007.4(1) and 4003.5(a)(1)(a). Although often presentation of rebuttal evidence cannot be anticipated until the defense has presented its case, the plaintiff must anticipate it as soon as possible during defendant’s presentation or after defendant has finished his presentation. Trial preparation does not cease with the commencement of trial.

Although I conclude that the trial court abused its discretion in not granting appellants’ motion for a continuance, I find that the appellants were not prejudiced thereby. Rules 4003.5(b) and 4019(i), Pa.R.C.P., both recognize the need for the court to grant appropriate relief when a party fails to disclose the identity of a witness, even where the failure is excusable. Appellants requested a continuance to ascertain the substance of Dr. Atkinson’s testimony. Had the court granted the continuance, appellants would have discovered the nature of the testimony and Dr. Atkinson’s qualifications. The continuance would have been an appropriate and effective means of curing any unfairness resulting from appellees’ withholding information about the rebuttal witness until the last minute.

However, despite the court’s refusal to grant a continuance, any unfairness that accrued to appellants was largely cured by appellees’ offer of proof. Appellants’ extensive cross-examination of Dr. Atkinson reveals counsel was commendably prepared despite the lack of a continuance. This was in part because Dr. Atkinson relied on Sharon’s medical records, all of which were available to the appellants.

Dr. Atkinson was clearly qualified as a pulmonary specialist and appellees placed his qualifications on the record. Therefore while I do not condone appellees’ action in not providing appellants with the identity and curriculum vitae of Dr. Atkinson, I cannot find that the court’s failure to grant the continuance resulted in prejudicial error.

Furthermore, if appellants were prejudiced it would have been proper and appropriate for them to have requested permission for surrebuttal and for a continuance to prepare the surrebuttal after Dr. Atkinson had testified. I do not suggest that appellants’ failure to request surrebuttal cures the impropriety of appellees’ counsel’s action or results in waiver of the issues related to the rebuttal testimony, but I believe this failure is an indication that the overall effect of the rebuttal testimony did not prejudice appellants.

The “trial court must balance the facts and circumstances of each case to determine the prejudice to each party.” Feingold, 512 Pa. at 573, 517 A.2d at 1273. By balancing the facts, the trial court could properly determine that appellants were not prejudiced by the testimony of Dr. Atkinson. Accordingly, I would affirm.

      . Joinder is necessary in order to raise the defense of the parent’s contributory negligence in a survival action. See: Frankel v. Burke’s Excavating, Inc., 223 F.Supp. 945 (E.D.Pa.1963). See also: Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Minkin v. Minkin, 336 Pa. 49, 7 A.2d 461 (1939).

      . Writing in dissent in Kaminski, Judge Del Sole suggested that “[i]f Appellant were truly prejudiced or surprised, it could have cured the prejudice by a continuance, which it did not request.” Kaminski v. Employers Mutual Casualty Co., supra 338 Pa.Super. at 421, 487 A.2d at 1352 (Del Sole, J., dissenting). In this case, appellants requested a continuance to determine the substance of Dr. Atkinson’s testimony, but the request was denied by the trial court.


author: MONTEMURO, Judge:

text:
    525 A.2d 388
    CONTINENTAL BANK, Appellee, v. John J. SCHALER, III and Edmund C. Geatens, Appellants. Appeal of Edmund C. GEATENS.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1986.
    Filed May 5, 1987.

      William W. Spalding, Philadelphia, for appellants.
    T.J. Scully, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and BECK, JJ.
   MONTEMURO, Judge:

This appeal lies from an Order denying appellant’s petition to strike/open a judgment against him. In 1979 and 1981, the parties entered into loan agreements on which the balance due in 1983, when litigation commenced, was $55,000. As collateral for the debt, appellee accepted the title documents for appellant’s 1966 Rolls Royce. Appellant defaulted, but sometime prior to foreclosure had attempted to sell the car in satisfaction of the loan. To this end the car had been transported from Philadelphia, where it was registered and where appellant maintained his principal residence, to Dallas, Texas. There it was offered for sale by the dealer (Schaler) from whom appellant had originally purchased it. No buyers were found. Appellee entered default judgment against appellant in Texas, and after transferring the judgment to the Philadelphia Court of Common Pleas, seized the car and returned it to Pennsylvania, where it was sold at auction for $25,000. Appellant petitioned unsuccessfully to open/strike the foreign judgment, and this appeal followed.

Four issues are raised which we will address seriatim.

Appellant first argues that the trial court committed reversible error when it refused to strike the foreign default judgment for lack of in personam jurisdiction.

The test for whether a default judgment should be stricken asks whether the judgment is factually valid. It is proper for the court to strike when the judgment has a fatal defect on its face____ The standard for ‘defects’ asks whether the procedures mandated by law for the taking of default judgments have been followed.

Continental Bank v. Rapp, 336 Pa.Super. 160, 166, 485 A.2d 480, 483 (1984) (citations omitted, emphasis supplied).

Appellant has alleged that the court lacked power to pass judgment, but not for any procedural dereliction. His argument that the judgment should be stricken is therefore inapposite. However, the error is one of semantics rather than substance, and since it concerns a jurisdictional challenge, is properly before us as a petition to open the judgment.

It is by now well settled that “a petition to open a default judgment is an appeal to the court’s equitable powers and its decision will not be overturned absent clear abuse of its discretion.” Autologic, Inc. v. Cristinzio Movers, 333 Pa. Super. 173, 176, 481 A.2d 1362, 1363 (1984). The trial court in analyzing appellant’s jurisdictional claim, reiterated the principles upon which foreign judgments are recognized, as must we.

The power of a court to exercise in personam jurisdiction over a non-resident defendant turns upon two considerations: (1) jurisdiction must be conferred by the state long-arm statute, and, (2) the exercise of jurisdiction under the statute must meet constitutional standards of due process.

Eastern Continuous Forms, Inc. v. Island Business Forms, Inc., 355 Pa.Super. 352, 354, 513 A.2d 466, 467 (1986) (citation omitted).

Appellant has alleged no statutory deficiencies. His claim is solely that there was lacking those minimum contacts with the forum state required by due process under the test enunciated in International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). It is contended that such contacts could not have existed because appellant had visited Texas only once, in a capacity unconnected to the present litigation, and that his sole association there was the temporary presence of his automobile for what is characterized as a “determination of its value and possible sale.” (Appellant’s Brief at 16-17). The trial court found, justifiably given appellant’s deposition testimony, that the car had been shipped to Dallas specifically for sale in order to satisfy the loan, not to establish its theoretical worth. Moreover, appellant Schaler had been engaged as an agent at a 10% commission in order to accomplish this purpose. This court has already held that “a single act by a foreign defendant within the forum state may support jurisdiction.” Skinner v. Flymo, Inc., 351 Pa.Super. 234, 243, 505 A.2d 616, 621 (1986) (citation omitted). The substance or strength of that sole contact must meet the requirement that the actor purposefully or deliberately availed himself of the privilege of conducting an activity in the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Once the element of deliberation is established, the actor’s lack of physical presence becomes irrelevant.

Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant’s affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, but obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.

Burger King, supra, 105 S.Ct. at 2184. See generally Skinner, supra. We find, as did the trial court, that appellant’s placement of his property for public sale on the Texas market satisfies these conditions. Further,

There is no question that, in determining whether a foreign judgment is entitled to full faith and credit under the United States Constitution, Pennsylvania may inquire into the questions of the foreign state’s jurisdiction and whether the foreign judgment was obtained in derogation of the debtor’s basic due process rights, that is, whether the debtor had an opportunity to appear and defend. However, it is equally clear that a foreign judgment transferred to Pennsylvania is presumptively valid. The foreign judgment is presumed to have been entered by a court with jurisdiction to do so and that its proceedings were regular and not in derogation of the debtor’s due process rights.

Nobel Well Service, Inc. v. Penn Energy, 348 Pa.Super. 267, 276, 502 A.2d 200, 205 (1985) (citations omitted). Appellant’s jurisdictional challenge is insufficiently well grounded to dislodge this presumption.

It is next claimed that the default judgment should have been opened because appellant did not receive notice of the sale of the car as is required by the Uniform Commercial Code. 13 Pa.C.S.A. § 9504(c). The record contains a mail receipt for such notice signed by E. Geatens. Although appellant disclaims the signature, the notice was mailed to his office address, and at deposition appellant admitted to the presence there of his secretary as well as of other temporary office employees.

This court has held that notice need only be sent to the debtor’s “last known place of business,” Gerety v. Hiller, 349 Pa. 49, 53, 36 A.2d 476, 478 (1944). Proof was offered that a letter announcing the sale did in fact arrive at appellant’s office address. We find this sufficient indicium that appellee fulfilled the Code requirements. See generally American Express Co. v. Burgis, 328 Pa.Super. 167, 476 A.2d 944 (1986).

In connection with this claim, it is also argued that the car was not disposed of in the commercially reasonable manner prescribed by § 9504. Appellant claims that the true value of the car could not have been realized at an auction given its uniqueness. We find this reasoning unpersuasive as the car already had, without success, been offered for sale under what appellant presumably considered optimum conditions. Despite the commercially advantageous market, a chosen agent, and an apparently acceptable valuation, appellant received no offers within or without his asking price. For him to claim now that the car was marketed in an commercially unreasonable manner seems disingenuous at best.

Next appellant claims the judgment should be opened because it was excessive. The judgment amount was $73,-333, which comprises the original debt of $55,000, plus interest at 9% per year, attorneys fees and all costs. The judgment was opened and appellant credited with the $25,-000 realized at the sale, leaving a balance of $48,333. We take judicial notice of the fact that one owing a debt to be repaid at a certain amount of interest, still owes the interest even after default on the loan, and as well, whatever outlays are necessary for the creditor to recoup his money. Appellant's denial of an obligation for anything other than principal is without basis in either law or common sense.

Finally, appellant claims that there was no evidence presented by appellee on which the court was able to base its denial of the petition to open. In fact, appellee submitted no brief, and as a result was barred from oral argument. However, where certain facts necessary to justify opening a judgment have not been established and are denied in the answer, the burden of proof is upon the petitioner. D’Amore v. Erthal, 421 Pa. 417, 219 A.2d 674 (1966). See generally Hudgins v. Jewel T Discount Store, 351 Pa.Super. 329, 505 A.2d 1007 (1986). Appellant has failed to supply us with anything save his own deposition, and an unsworn letter from his agent, appellant Schaler. We are not convinced by either.

Judgment affirmed.

      . The parties dispute the number of loans involved, agreeing only on the amount which underlies this action.

      . The differential justifies this appeal, as without it there would no longer be a judgment. Simmons v. Simmons, 356 Pa.Super. 32, 514 A.2d 128 (1986); Kalman v. Muzikar, 304 Pa.Super. 503, 450 A.2d 1025 (1982); Sanctis v. Checco, 195 Pa.Super. 193, 171 A.2d 542 (1961)

      . 13 Pa.C.S.A. § 9504(c) reads in pertinent part:
      (c) Manner of disposition. — Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.

      . Appellant argues that he had paid $60,000 for the car, which had belonged to the actor Gary Cooper, and which because of its condition and provenance was worth $120,000 at the time of sale. In support he offers only a letter from his agent, which we must regard critically as self-serving.


author: HOFFMAN, Judge:

text:
    525 A.2d 391
    COMMONWEALTH of Pennsylvania v. Eriberto TORRES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 16, 1986.
    Filed May 4, 1987.

      Edward Michael Flannery, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com. appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for theft by receiving stolen property and criminal conspiracy. Appellant contends that the sentencing court erred in considering his prior juvenile adjudications of delinquency as a factor in determining his sentence for a misdemeanor. We disagree and, accordingly, affirm the judgment of sentence.

Appellant was found guilty of theft by receiving stolen property and criminal conspiracy, both misdemeanors of the first degree, following a non-jury trial. He was sentenced to an eleven-and-one-half-to-twenty-three-month term of imprisonment for theft and ordered to pay restitution in the amount of $750.00. He received a suspended sentence for criminal conspiracy. The order of restitution was vacated pursuant to appellant’s motion to modify his sentence, and his sentence was otherwise affirmed. This appeal followed.

Appellant contends that the sentencing court erred in considering his prior juvenile adjudications of delinquency as a factor in sentencing him because this practice is specifically prohibited by statute. For the reasons that follow, we agree with appellant that, generally, a court may not consider a prior adjudication of delinquency as a factor in sentencing for a misdemeanor. We do not, however, agree that the court erred in the instant case.

Section 6354 of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, entitled, “Effect of adjudication,” provides in relevant part:

(a) General rule. — An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.
(b) Effect in subsequent judicial matters. — The disposition of a child under this chapter may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing, whether before or after reaching majority, except:
(1) in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report____

Id. § 6354. Pursuant to this statute, a court may not use a prior adjudication of delinquency against a defendant except for purposes of a presentence investigation in sentencing for a felony. See Commonwealth v. Smith, 333 Pa.Superior Ct. 179, 181-82, 481 A.2d 1365, 1366 (1984); Commonwealth v. Allen, 287 Pa.Superior Ct. 88, 97-98, 429 A.2d 1113, 1117 (1981). Under the Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, however, a sentencing court is required to consider prior juvenile adjudications even when sentencing for a misdemeanor. Our legislature has mandated that when considering imposing a sentence of probation rather than confinement, a sentencing court should favor a sentence of probation when, among other factors, the defendant has no history of prior delinquency or criminal activity. See 42 Pa.C.S.A. § 9722(7).

“Statutes in pari materia shall be construed together, if possible, as one statute.” 1 Pa.C.S.A. § 1932(b). Additionally, such statutes should be construed as far as possible to be consistent with each other. See Commonwealth v. Philadelphia Electric Co., 472 Pa. 530, 539, 372 A.2d 815, 819 (1977). Section 6354 of the Juvenile Act and § 9722(7) of the Sentencing Code are in pari materia because they both relate to the consideration of an adjudication of delinquency in a subsequent sentencing proceeding. Section 6354 prohibits the consideration of adjudications of delinquency in subsequent proceedings except in sentencing for a felony and § 9722 obliges a court to give weight to the absence of prior adjudications of delinquencyi when considering a sentence of probation in any case. In order to construe these two statutes in a manner that would give meaning to each, we conclude that § 9722(7) should be read as an exception to § 6354. Thus, when sentencing for a misdemeanor, only in the instance when a sentencing court is considering imposing an order of probation shall the court consider the absence or presence of a juvenile record.

Here, appellant was being sentenced for two misdemeanors of the first degree. The transcript of the sentencing hearing indicates that the sentencing court considered appellant’s prior juvenile adjudications for the purpose of deciding whether probation would be appropriate. The court stated the following:

You have a record of eight arrests and four adjudications as a juvenile for which you received probation. You have ten arrests and two convictions as an adult and I think it’s clear that probation is just a waste of time.

N.T. April 29, 1985 at 12. Moreover, in its opinion written in response to the instant appeal, the sentencing court explained its decision to consider appellant’s juvenile record as follows:

This court did in fact consider the defendant’s juvenile record and stands by the decision to do so. Under the Guidelines, [204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721] the defendant’s prior record is one and the offense gravity score is three. The minimum range under the Guidelines is 0-12 months. Considering this range, a probationary period could have been considered. To determine the appropriateness of a probationary sentence, the court examined [appellant’s] entire record, supplied in the Presentence Investigation, to ascertain [appellant’s] prior probation experiences, if any. To ignore the fact that [appellant] (who was 21 years old at the time of this offense) had been on probation four times as a juvenile for cases involving serious charges, would be a dereliction of this court’s duties. There is no substantial time lapse between [appellant’s] criminal behaviour as a juvenile and his continued criminal behavior as an adult. In fact, only twenty-one months passed between [appellant’s] completion of his last juvenile probation and his first adult arrest and conviction.

Lower Court Opinion at 5-6.

Accordingly, because the lower court considered appellant’s prior juvenile adjudications of delinquency in the context of determining whether a sentence of probation would be appropriate, we conclude that the court did not err, and affirm the judgment of sentence.

Affirmed.

      . We note that appellant is not arguing that the lower court erred in using his prior juvenile adjudications to calculate his prior record score. Appellant has acknowledged that the adjudications were not used in that manner. See Brief for Appellant at 6-7.

      . Section 9722 provides in relevant part:
      The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of an order of probation: ******
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
      42 Pa.C.S.A. § 9722.


author: OLSZEWSKI, Judge:

text:
    525 A.2d 394
    COMMONWEALTH of Pennsylvania, Appellant, v. Dennis HAYNOS, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed May 4, 1987.

      Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellant.
    Martin J. King, New Hope, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

In this matter, the Commonwealth appeals an order granting the appellee’s motion to suppress. The suppression court found that the police obtained the results of a blood test performed on appellee pursuant to an improperly issued subpoena and then used that evidence as a basis for drunk driving charges subsequently filed. Finding a circumvention of established search and seizure procedures, the court suppressed the blood test information. Upon review, we conclude that the subpoena was invalid and therefore should have been vacated. Because we find, however, that the Commonwealth learned the results of the test prior to issuance of the invalid subpoena, and that this information was obtained lawfully and without violating appellee’s rights, we reverse the suppression court’s decision.

Preliminarily we note that the Commonwealth may appeal from a trial court’s ruling on a suppression motion when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985). Because the Commonwealth has so certified, this appeal is properly before us.

On April 4,1985, appellee was charged with driving under the influence of alcohol. Appellee subsequently filed omnibus pre-trial motions to suppress the results of a blood alcohol test. The motions were heard by the Honorable William H. Rufe, III, on October 10,1985 on a stipulated set of facts. Following the hearing, Judge Rufe ordered that the blood test information be suppressed. Thereafter, Judge Rufe filed an opinion in which he recited the agreed facts as follows:

On April 2, 1985,. the defendant was involved in a one car accident in this County at 12:10 a.m. At 12:15 a.m. the arresting officer arrived on the scene, ascertained that defendant was the driver and detected an odor of alcohol on his breath. However, because of other duties involved in investigating the accident and clearing the wreckage, the arresting officer did not administer any field sobriety tests, or note any other indicia of intoxication on or about the defendant.
Defendant was removed to the Doylestown Hospital where hospital personnel removed a vial of blood at 1:21 a.m. for their purposes in treating him. At that time defendant had not been arrested and was not informed of the implied consent law. At 2:00 a.m. the arresting officer arrived at the hospital and inquired of hospital personnel “under color of his authority as Police Officer investigating this accident, as to what the results had been of the earlier blood test of Mr. Haynos” (N.T. 4). At that time he was verbally advised by hospital personnel that the results were .148, later corrected to .147.
Thereafter, at 2:50 a.m., he requested the defendant to sign a written consent to withdraw blood for criminal purposes, which the defendant signed. Hospital personnel withdrew two vials of blood from the defendant at 2:55 a.m. which the arresting officer transported for analysis to the Bucks County Crime Laboratory. However, because of contaminents within the vials, the Crime Laboratory declined to analyze the blood.
Later that very same morning, the arresting officer went to the local District Justice of the Peace where he requested and obtained a subpoena for the blood results taken by Doylestown Hospital for the defendant’s medical purposes. Upon being presented with the subpoena, the Hospital released the written results to the officer, whereupon he then swore out the affidavit of probable cause for the arrest of the defendant.

Trial court opinion at 1-3.

Our review of a suppression court’s ruling is limited primarily to questions of law. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). We are bound by the suppression court’s findings of fact which are supported by the record. Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983). Factual findings wholly lacking in evidence, however, may be rejected. Id.

The trial court found, and in fact the Commonwealth concedes, that the subpoena for appellee’s medical records was improper. We agree. As this Court noted in Commonwealth v. Jolly, 337 Pa.Super. 130, 132, 486 A.2d 515, 516 (1984), our Supreme Court has stated that “(A) prerequisite to the issuance of a subpoena (is) that there be some pre-existing matter or cause pending before the court.” Id. quoting Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970). See also Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (subpoena concededly unlawful where, at time of issuance, there were no ongoing legal proceedings against appellant). In the present case, the subpoena was obtained when no arrest had been made, nor warrants or citations issued. Under these circumstances, the subpoena was invalid and should have been vacated.

Having found the subpoena to be improper, the trial court suppressed the blood test information obtained pursuant to that subpoena, the court indicating that “the subpoena was being used to obtain the evidence upon which to base the charges subsequently filed.” Trial court opinion at 4. The record demonstrates, however, that the arresting officer, Officer Taylor, was advised of the test results by hospital personnel prior to issuance of the subpoena for the written results. The record also shows that the blood test evidence recited on Officer Taylor’s affidavit of probable cause was based not upon the written results, but upon the verbal information proffered by the hospital. N.T. 10/10/85 at 7. The written results procured pursuant to the subpoena therefore played no role in Officer Taylor’s determination of probable cause for appellee’s arrest. We must decide whether suppression of the blood test information was an appropriate remedy under these circumstances.

Guiding our decision is a principle applied by the United States Supreme Court in Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). In that case, a county detective, who was not in uniform, entered an adult bookstore, browsed for several minutes, and purchased two magazines from the sales clerk with a marked $50 bill. The detective then left the store and showed the magazines to fellow officers who were waiting nearby. Upon concluding that the magazines were obscene, the detectives returned to the store, arrested the sales clerk, and retrieved the marked $50 bill from the cash register. The trial court denied the respondent’s motion to suppress the magazines and the $50 bill. The Supreme Court held that the allegedly obscene magazines were properly admitted into evidence as the detectives did not obtain them by means of an unreasonable search or seizure and they were not the fruit of an arrest, lawful or otherwise. Significant to the instant case, the Court concluded that even assuming that respondent's warrantless arrest after the purchase of the magazines was an unreasonable seizure in violation of the Fourth Amendment, it would not require exclusion of the magazines at trial as it yielded nothing of evidentiary value that was not already in the lawful possession of the police. The Court observed, “(t)he exclusionary rule enjoins the Government from benefitting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality.” Id. at 471, 105 S.Ct. at 2783 (quoting United States v. Crews, 445 U.S. 463, 475, 100 S.Ct. 1244, 1252, 63 L.Ed.2d 537 (1980) (Brennan, J., joined by Stewart and Stevens, JJ.)).

Instantly, the arresting officer was advised of the blood test information prior to any illegality associated with issuance of the subpoena. Under the foregoing principle, therefore, the invalidity of the subpoena does not necessarily require exclusion of the blood test evidence.

This does not end our inquiry, however. Specifically, we must determine whether the police obtained the blood test information lawfully and without violation of appellee’s rights in the first instance, i.e., when Officer Taylor requested and received verbal advice as to the results. Appellee contends that he had a reasonable expectation of privacy in the results of the blood test at the time Officer Taylor made this inquiry. The oral request, appellee argues, was made without any legal process and absent facts establishing probable cause and therefore violated his right to be protected from unreasonable searches and seizures. For the reasons which follow, we reject appellee’s argument and conclude that Officer Taylor did not act improperly and otherwise violate appellee’s rights when he verbally inquired of the blood alcohol test taken by the hospital.

It is clear that the taking of a blood sample is a search and seizure subject to the protections of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970). For purposes of our discussion, we will assume without deciding that the verbal request for information involved here was a search subject to Fourth Amendment protections as well. After reviewing the relevant case law, we find that this search may be justified under the “implied consent” provision of the Motor Vehicle Code, 75 Pa.C.S. Sec. 1547(a), Act of June 17, 1976, P.L. 162, No. 81, Sec. 1; as amended December 15, 1982, P.L. 1268, No. 289, Sec. 5. This section provides in pertinent part:

Sec. 1547 Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

We had occasion to discuss this provision and the cases interpreting it in Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985). The facts of Cieri are similar to those involved here. In Cieri, the police arrived at the scene of an accident and found appellant slumped over in the front seat of his car. The sergeant noticed an odor of alcohol on or about appellant’s person but appellant was in a semi-conscious condition and did not respond to the sergeant’s speaking to him initially. The sergeant then radioed the police dispatcher to call local hospitals to request that a blood sample be withdrawn from appellant when he arrived for treatment. The police continued to investigate the accident and interview witnesses after rescue personnel transported appellant to the hospital. The emergency room physician withdrew blood from appellant for the hospital’s purposes in performing necessary tests. Subsequently, the nurse on duty learned from the police dispatcher that the police had requested a blood sample. She then went to appellant, told him that the police had requested a blood sample, and asked that he sign a consent form enabling her to give the blood sample to the police. She read the consent form to appellant and he signed it. Thereafter, the police sergeant arrived to pick up the blood sample. Appellant was in the operating room. The nurse asked the sergeant to sign the consent form, which he did and she gave him the blood sample. Neither the sergeant nor any other police officer had spoken with appellant regarding his blood being tested for alcohol level. Police technicians subsequently conducted a test of appellant’s blood which revealed a blood alcohol level of 0.11.

The appellant in Cieri argued that the test should have been suppressed since the withdrawal of his blood was undoubtedly a search, and was conducted without a warrant at a time when appellant was not under arrest. Moreover, appellant argued, the only possible exception to the warrant requirement applicable was consent and although he did sign the consent form, his consent was invalid both because of the extent of his injuries and because, having spoken with no police officer, he had no notice of the criminal investigative purpose of the blood test. The Commonwealth argued in response that there was implied consent to the search and that the search was therefore justified under Section 1547 of the Motor Vehicle Code.

In an opinion authored by the Honorable Edmund B. Spaeth, this Court set forth the applicable case law as follows:

We have held that under this provision — more precisely, under the substantially identical predecessor of this provision — police may constitutionally conduct a chemical test of a suspect’s blood, without having arrested him and without transporting him from the scene in order to conduct the test, if they have probable cause to believe that the suspect has been driving under the influence of alcohol or a controlled substance. Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974) (plurality). While the statute speaks in terms of “implied consent,” we concluded in Quarles that the constitutional basis for the test could' not be to imply the suspect driver’s consent to the test as a condition of operating a car, for that would constitute an “unconstitutional condition.” Id., 229 Pa.Superior Ct. at 378-81, 324 A.2d at 460-62. Rather, we construed the term “reasonable grounds” to mean “probable cause,” and concluded that the constitutional basis for the test was the existence of probable cause to believe that the suspect had been driving under the influence of alcohol or a controlled substance. Id., 229 Pa.Superior Ct. at 388, 324 A.2d at 466. In Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978), we relied on Quarles to hold that where the police had such probable cause, they might constitutionally conduct a test even though the suspect was not conscious and could not therefore avail himself of his statutory right to refuse the test and have evidence of such refusal admitted at his trial. Id., 254 Pa.Superior Ct. at 239-41, 385 A.2d at 998-99.

Id., 346 Pa.Super. at 87, 499 A.2d at 322. We then concluded that the Commonwealth’s claim of implied consent was justified, “for at the time the police received the sample of appellant’s blood from Nurse Laird, they had probable cause to believe that appellant had been driving under the influence of alcohol or a controlled substance.” Id., 346 Pa.Super. at 88, 499 A.2d at 323. Moreover, we noted that the test at issue there constituted less of an intrusion than that which might constitutionally have occurred at the accident scene on the basis of probable cause, “for the police neither invaded, nor seized and detained, appellant’s person in order to administer the test.” Id. We then held that the existence of probable cause, which would unquestionably suffice as a constitutional basis for a test administered at the scene, also suffices as a constitutional basis for a test administered at the hospital. Id. See also Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985).

The principles set forth in Cieri are equally applicable here. Upon examination of the record, we find that Officer Taylor obtained probable cause to inquire of the blood test results after speaking to appellee at the scene of the accident. Probable cause to justify a warrantless search exists when the searching officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979); Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983).

According to the stipulated facts, the officer arrived at the scene and observed a motor vehicle which had struck a tree. Appellee was standing outside of the vehicle and indicated to the officer that he had been the driver. While talking to appellee, the officer detected an odor of alcohol on appellee’s breath. Pinned within the vehicle was a passenger who had sustained serious injuries. Both appellee and his passenger required medical treatment and were thereafter transported by a rescue squad to Doylestown Hospital. We believe these facts establish sufficient probable cause for Officer Taylor’s inquiry regarding the results of the blood test taken by the hospital. See Commonwealth v. Guerry, 469 Pa. 20, 364 A.2d 700 (1976); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976). Having found that probable cause existed prior to this inquiry, we hold that this search was valid under the implied consent statute and the principles outlined in Cierti.

Because the blood test information was obtained lawfully and without violating appellee’s rights prior to issuance of the invalid subpoena, we reverse the suppression order and remand for proceedings consistent with this opinion. Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . Judge Rufe also ordered that the criminal information be quashed. The Commonwealth then filed a timely appeal with this Court on October 31, 1985. On January 3, 1986, however, Judge Rufe requested remand of the record in order to amend the order to suppress as the order quashing the information was not requested by appellee and was therefore inappropriate. Thereafter, this Court ordered remand of the record for amendment of the October 10, 1985 order. After amendment, the Commonwealth took exception to the suppression order and advised the court that it would continue to pursue its appeal.

      . We observe that the trial court incorrectly stated that the arresting officer, Officer Taylor, procured the subpoena. The record indicates instead that Officer Schmidt obtained the subpoena and then went to the hospital and retrieved the written results of the blood test.

      . The suppression court concluded that this action was improper but did not indicate its reasons for so concluding. Trial court opinion at 3.

      . We do not determine, for example, whether appellee has a reasonable expectation of privacy in the results of the blood test taken for treatment purposes, nor the extent of any governmental interest in learning the results of such tests in accidents involving drunk drivers.

      . The Commonwealth did not argue the applicability of this provision to justify the officer’s verbal inquiry as to the blood test results. Apparently, the propriety of this conduct was not at issue at the suppression hearing. Appellee’s motion to suppress, for example, focused on the impropriety of obtaining the results through the subpoena. Appellee contends on appeal, however, that the officer also acted improperly and otherwise violated appellee’s rights when he verbally requested the results. In order to address this argument, we find we must consider the applicability of the implied consent provision and therefore have raised it in deciding this appeal.

      . The consent form provided as follows:
      I consent to the withdrawal of blood and/or collection of a urine sample by persons authorized to do so by Abington Memorial Hospital () ... (f)or the purpose of determining the presence of alcohol or a controlled substance in my system. The police officers (sic) named below has explained my legal rights to me, the nature of the test or tests and possible risks associated with the test have been explained to me. I understand if I refuse my consent the test will not be performed.

      . In view of the foregoing, our decision in Commonwealth v. Jolly, supra, is distinguishable. There we held that the trial court should have suppressed blood test results obtained through a subpoena issued when no case was yet before a court. In Jolly, however, there was no discussion as to whether the arresting officer had sufficient information to establish probable cause prior to obtaining the results through an improperly issued subpoena. There, it was not until after the officer reviewed the results of the blood test that he filed the charge of driving under the influence. Here, however, we have found that Officer Taylor properly inquired as to the results of the test based on facts sufficient to establish probable cause. He then utilized that information, and not the information contained in the written results procured through the subpoena, in drafting his affidavit of probable cause.

      . The fact that the instant case involves the receipt of information as to a blood test result rather than the receipt of a blood sample as in Cieri does not compel a different result. In fact, the search involved here constitutes even less of an intrusion since the officer received nothing tangible, but merely hearsay evidence as to the result. Indeed, the verbal advice as to the result was rendered in accordance with the provisions of 75 Pa.C.S. Sec. 3755(a) which require that emergency room personnel take blood samples from persons who are involved in a motor vehicle accident if probable cause exists to believe such persons were driving under the influence of alcohol, and that the test results be released upon request of governmental officials or agencies.


author: ROWLEY, Judge:

text:
    525 A.2d 400
    Ronald PENN v. NATIONWIDE INSURANCE COMPANY, Appellant. Ronald PENN, Appellant, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1987.
    Filed May 4, 1987.

      Perry J. Fiorayanti, Philadelphia, for appellant (at 899) and for appellee (at 1088).
    Claire D. Newman, Philadelphia, for appellant (at 1088) and for appellee (at 899).
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

These are consolidated cross appeals from the trial court’s Order simultaneously entering a verdict and judgment in favor of plaintiff Ronald Penn.

Pláintiff was injured in an automobile accident on December 29, 1979. Formal application for benefits was submitted by him to his insurer, Nationwide, on April 23, 1980. Nationwide denied plaintiff’s claims on May 25, 1982. Plaintiff then instituted this action under the Pennsylvania No-Fault Motor Vehicle Act against Nationwide on September 30, 1982. The case was first heard in arbitration which resulted in an award to plaintiff. Defendant Nationwide appealed to the Court of Common Pleas of Philadelphia County. That court entered judgment in favor of plaintiff on the issue of basic loss benefits. Post-trial motions were then filed by both parties but never disposed of by the trial court. Nationwide filed a timely appeal from the verdict in favor of plaintiff as well as from the denial of counsel fees. Plaintiff also filed a timely appeal from the denial of counsel fees.

Two issues are presented on these appeals: whether Murphy v. Prudential Property & Casualty Ins. Co., 503 Pa. 528, 469 A.2d 1378 (1983) (holding that the insured must file his claim for benefits under the No-Fault Act within two years from the date the expenses were incurred) should be applied retroactively, and whether the trial court erred in not awarding counsel fees.

Before reaching the merits of these appeals however, we must determine whether they are properly before us. Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). Though not raised by any party, questions of jurisdiction and appealability must be raised by the Court sua sponte. Id. After a thorough review of the record, we find that the case before us is fatally deficient substantively, procedurally and physically. We therefore dismiss both appeals.

This action was presented to the trial court either on a case-stated basis or upon a stipulation of facts. Generally, the distinction is important for purposes of appeal.

[I]n a trial without jury upon a stipulation of facts, the parties submit an agreed statement of facts. The court then renders a decision, which is subject to exceptions and review by the court before any judgment is entered ____ On the other hand, in a case stated, the parties submit an agreed statement of facts and request entry of judgment by the court upon the facts stated. The judgment thus entered is final, and no exceptions are necessary prior to the taking of an appeal, if the parties reserved the right to appeal in their agreed statement.

Wertz v. Anderson, 352 Pa.Super. 572, 577, 508 A.2d 1218, 1220 (1986) (emphasis in the original, citations omitted). In either case then, in order to preserve the right to appeal, certain steps must be taken. First, in both cases, an agreed statement of facts must be submitted to the court. Then, in a trial without jury upon a stipulation of facts, after the court renders its decision, exceptions must be filed and reviewed in order to preserve issues for appeal. While no such exceptions need be filed in a case-stated, the statement of facts must contain a clause reserving the right to appeal.

Whether the instant action qualifies as a case submitted upon a stipulation of facts or as a case-stated is not clear. In its Opinion of March 11, 1986, the trial court states that the case was submitted to it on a stipulation of facts. However, both verdict and judgment were entered at the same time which is indicative of a case-stated. Both parties refer to the action as both case-stated and submitted upon the. facts at different places in the record. However, the distinction between the two types of cases is not important since either way the parties failed to preserve their right to appeal.

While the reproduced record submitted by plaintiff contains a “Stipulation,” the original record does not, nor does the Stipulation appear in the docket entries. Further, the copy in the reproduced record, which is signed only by defendant’s counsel, merely states the facts of the action. It does not request that the action be submitted as case-stated, or upon the facts. Nor does it reserve the right to appeal. Thus, characterizing this action as case-stated, the parties have waived their right to appeal.

Characterizing the action as submitted upon the facts is no more successful. Though the docket shows that the parties filed post-trial motions as is required when the case is submitted on the facts, such motions are not part of the original record. “It is the appellant’s responsibility to provide a complete and comprehensive record to the reviewing court for the purposes of appeal.” Commonwealth v. Williams, 357 Pa.Super. at 466, 516 A.2d at 354. Further, we may not consider material not contained in the original record. Panko v. Alessi, 362 Pa.Super. 384, 524 A.2d 930 (1987). Even if we could consider the motions as they appear in the reproduced record, we would be unable to grant the parties any relief since the motions, according to the docket, were filed twenty-two days after the verdict. Pa.R.C.P. 227.1(c) requires post-trial motions to be filed within ten days of the verdict. Thus, the parties have failed to preserve their issues for review. Erkens v. Tredennick, 353 Pa.Super. 236, 509 A.2d 424 (1986) (complaining party has the duty to preserve the record).

For these reasons we do not reach the merits of the claims presented, but rather dismiss these appeals.

Appeals dismissed.