author: BROSKY, Judge.

text:
    617 A.2d 1
    SEDAT, INC., Appellant, v. Kenneth J. FISHER and Ann Fisher, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Nov. 24, 1992.

      John G. Greeno, Pittsburgh, for appellant.
    Lee J. Calarie, Asst. Public Defender, Kittanning, for appellees.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an Order dismissing appellant’s Complaint in Equity following submission of the matter upon a stipulation of facts.

Appellant owns a sixty-four acre subsurface tract of coal in Armstrong County. This ownership is evidenced by a coal deed from the Twin Oaks Coal Company (Twin Oaks) to appellant. The deed has been duly recorded in the Office of the Recorder of Armstrong County. Appellees are the owners of a fífty-one acre tract of surface land in Armstrong County, underneath which lies appellant’s subsurface tract. Appellees’ ownership is evidence by a deed from William Martin Schreckengost to them. This deed has also been duly recorded in the Office of the Recorder of Armstrong County and contains a clause “excepting and reserving all the coal and stripping rights as previously conveyed by predecessors in title.” See Exhibit “C”, Complaint in Equity. Appellant wishes to apply for a surface mining permit pursuant to Section 1396.4 of the Surface Mining Conservation and Reclamation Act, 52 Pa.S.A. § 1396.4 (SMCRA), to mine the coal in the aforesaid subsurface tract pursuant to the rights granted to it by the coal deed from Twin Oaks.

Appellant has requested appellees to sign a consent form which it believes the applicable statute and the accompanying regulations of the Department of Environmental Resources (DER) require from a surface landowner to accompany an application for a mining permit. The purpose of the consent form is to permit the miner to enter the property of the surface owner in order to conduct mining activities and for five years thereafter to enter the property to reclaim it, to construct pollution abatement facilities and to permit DER to enter to inspect the property. Appellees have refused to sign the consent form. They contend that appellant would be successful in obtaining a surface mining permit without their consent and that they are not interfering in any way with appellant’s rights under its coal deed from Twin Oaks. However, appellant believes that it is unable to exercise its rights under the coal deed from Twin Oaks without appellees’ consent to enter the surface land.

On appeal, appellant challenges the appellees’ refusal to sign the consent form and argues that the court in equity abused its discretion by failing to order appellees to sign the consent form. We affirm.

The trial court and all parties agree that the coal deed by which Twin Oaks conveyed the subsurface land in question to appellant is a deed of severance. This Commonwealth recognizes three separate estates in land, viz: (1) the surface, itself, (2) the right of support and (3) the minerals under the surface. Pennsylvania Bank & Trust Co. v. Dickey, 232 Pa.Super. 224, 335 A.2d 483 (1975). This being the case, it is entirely possible that different persons or entities may have title to the different estates in the same land. Id. Normally, the owner of the surface estate is also the owner of the mineral rights unless the mineral rights are severed from the ownership of the surface land by grant or exception. In this case, the minerals in the subsurface become separate corporeal rights. Id.

The coal deed from Twin Oaks to appellant conveys “[ajll of the coal in and under all of that certain tract of land situate in Wayne Township, Armstrong County, Pennsylvania, bounded and described as follows:” (Emphasis supplied). The deed from Mr. Schreckengost to appellees grants “[all] that certain piece, parcel or tract of land situate in Wayne Township, Armstrong County and the Commonwealth of Pennsylvania, bounded and described as follows:” (Emphasis supplied). The description which follows in each deed is identical. Hence, it is apparent that land in question consists of two separate estates, i.e., surface and the mineral or subsurface, the ownerships of which are severed.

Section 1396.3a(a) of SMCRA, 52 P.S. § 1396.3a(a), requires one who wishes to conduct a surface mining operation in Pennsylvania to obtain a permit from DER to do so. Section 1396.4(a)(2)F of SMCRA reads in pertinent part:

Except for permit applications based upon leases in existence [for a period of time not here applicable], the application for a permit shall include, upon a form prepared and furnished by the department, the written consent of the landowner to entry upon any land to be affected by the operation by the operator and by the Commonwealth and any of its authorized agents prior to the initiation of surface mining operations, during surface mining operations and for a period of five years after the operation is completed or abandoned for the purpose of reclamation, planting, and inspection or for the construction of any pollution abatement facilities as may be deemed necessary by the department for the purposes of this act....

Emphasis supplied. Section 1396.4(a)(2)F(ii) of SMCRA provides that the application and consent forms “shall not be construed to alter or constrain the contractual agreements and rights of the parties thereto:” Thus, the above provision may not alter the already existing duly recorded rights of the owner of the subsurface to conduct permissible mining operations. This same provision defines “landowner” as “a person holding title to or having a proprietary interest in either surface or subsurface rights.” “Person”, in turn, is defined as “any ... partnership, association or corporation.... ” 52 P.S. § 1396.3.

Our reading of the pertinent provision of SMCRA leads us to make the following observation. Section 1396.4 of SMCRA, we believe, contemplates situations where the applicant for a mining permit is a lessee of the landowner because it refers in Section (a)(2)F to permit applications based upon leases. Appellant is not a lessee. It is the owner of a separate mineral estate of the land in question under a severance deed. Appellees are the owners of a separate surface estate in this land. In light of the definition of “landowner” provided for in Section 1396.4(a)(2)F(ii) of SMCRA, we do not believe that the Legislature contemplated requiring an entity like appellant to obtain the consent of appellees to conduct mining activities in an estate in land which it already owns by virtue of a duly recorded deed of severance. Moreover, this same statutory provision guarantees that any forms which appellant is required to file with DER will not alter or constrain its already existing rights in this land.

Our observation in this regard is bolstered by the pertinent regulations promulgated by DER. Chapter 86 of Title 25 of the Pennsylvania Code contains regulations promulgated by DER with respect to coal mining. The regulations of DER contained in Subchapter B thereof relate to coal mining permits. Section 86.64, entitled “Right of entry”, reads in pertinent part as follows:

(b) The application for a permit shall provide one of the following for lands within the permit area:
(1) A copy of the written consent of the current surface owner to the extraction of coal by surface mining methods.
(2) A copy of the document of conveyance that expressly grants or reserves the right to eoetract the coal by surface mining methods and an abstract of title relating the documents to the current surface land owner.

25 Pa.Code § 86.64; emphasis supplied. Section 86.64(c) repeats the statutory language of 52 P.S. § 1396.4(a)(2)F. Finally, pertinent to our disposition here is Section 86.64(d):

For the purpose of this section, the term ‘lease’ means an agreement in which the surface landowner is the lessor and the applicant is the lessee or the assignee of the lessee. A deed of severance is not a lease.

Emphasis supplied. Hence, an applicant like appellant, who holds title to an estate in the subsurface land by grant of a severance deed, need only provide with the application a copy of the document of conveyance as set forth in 25 Pa.Code § 86.64(b)(2), supra. In appellant’s case, the document of conveyance would be the coal deed conveyed to it by Twin Oaks. The granting clause in the coal deed bestows upon appellant

the right to the full extent of Grantee’s title thereto to strip mine, deep mine, and/or auger drill, and otherwise to develop and work and process for market said coal and other coal now owned or hereafter acquired by Grantee, its successors or assigns, by any method or machinery ... including the free and uninterrupted right and right of way into, upon, over, under and through the said land at such points and in such manner as may be convenient or necessary for the purpose of all operations in connection therewith and in the horizons of said coal seams and in the strata above or below, the same, and other coal now owned or hereafter acquired by Grantee, its successors or assigns, including but not limited to, the transportation of personnel, supplies and equipment, and the right to explore, test drill, dig, mine, drain, ventilate, transport and carry away said coal ... and to erect and maintain on the premises such structures and improvements necessary or convenient to said operations; and without being required to leave or provide subjacent [sic] or lateral support for the overlying structures or improvements now or hereafter erected thereon; and in connection with strip mining [and other types of mining], the right and privilege to excavate, drill, removal and displace any or all of the [material in, around or about the coal] and the horizons thereof and to dump or deposit the same on or off the premises....

Therefore, no necessity exists for appellant to obtain and attach the written consent of appellees to an application for a surface mining permit under the circumstances of appellant’s ownership of the subsurface mineral rights in question. Moreover, the deed from Mr. Schreckengost to appellees contains a clause excepting and reserving all coal and stripping rights. In Clearfield Bank & Trust Co. v. Shaffer, 381 Pa.Super. 259, 553 A.2d 455 (1989), aff'g, 41 Pa.D. & C.3d 542 (1983), this court held that a clause in a deed from Clearfield to the Shaffers excepting and reserving coal mining rights constituted an implied consent by the grantees (the Shaffers) to permit the bank’s lessee to go onto the land to conduct strip mining operations without the necessity of express language in the deed stating that no permission or consent would be required from the surface owners (the Shaffers) before the bank’s lessee could go onto the land. The Clearfield court held that a contrary ruling would render the exception and reservation clause useless and would give the surface owners (the Shaffers) control over the rights of the subsurface owner (the Bank) and its assignees.

Although we do not have before us in the present case a lessor/lessee relationship where Twin Oaks leased its mineral estate to appellee for the purpose of conducting a strip mining operation, Clearfield is illustrative of a situation where the owner of a subsurface mineral estate does not need a separate written, express consent of the surface owner apart from a clause in a coal deed excepting and reserving coal mining rights to permit the assignee or lessee of the mineral estate owner to enter the estate to conduct mining operations and to perform subsequent reclamation. Hence, pursuant to Clear-field, the exception and reservation clause in the deed between Mr. Schreckengost and appellees operates as an implied consent on the part of appellees to fulfill the requirements of Section 1396.4(a)(2)F of SMCRA, 52 P.S. § 1396.4(a)(2)F, and Section 86.64(b)(2) of the applicable regulations, 25 Pa.Code § 86.64(b)(2).

The trial court in its Opinion written in support of its Order dismissing appellant’s Complaint opined that appellant must first apply for a surface mining permit from DER. Appellant, however, counters that application for a permit would be an exercise in futility because DER will not approve the application without the requisite consent form. In response to this argument, the trial court wrote:

Without proof that [appellant] has attempted application to the D.E.R. and has been denied, or without proof that the D.E.R. has specifically requested the consent form, there is nothing in dispute before this Court and any determination would constitute nothing more than an advisory opinion.

Trial Court Opinion, p. 5. Upon this basis, the trial court dismissed appellant’s Complaint in Equity.

An advisory opinion is one which is unnecessary to decide the issue before the court, and it is true that the courts of this Commonwealth are precluded from issuing such advisory opinions. Courtney v. Ryan Homes, Inc., 345 Pa.Super. 109, 497 A.2d 938 (1985). Accord In re Milton S. Hershey Medical Center, 407 Pa.Super. 565, 595 A.2d 1290 (1991). See also Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989) (advisory opinions are without legal effect). Here, appellant does not allege that DER has adversely acted upon its application for a mining permit for failure to include the written consent of appellees. Rather, appellant concedes that he has not even applied for a permit. Thus, the claim does not appear, at first blush, to be a justiciable one. See Zinc Corp. v. Dept. of Environmental Resources, 145 Pa.Commw. 363, 603 A.2d 288 (1992).

However, appellant has not, by the institution of this cause of action, requested the trial court or this court to prereview a mining permit application or to pass upon the ultimate success or not of any such application. DER is not even a party to this action. Rather, appellant has instituted suit against appellees to obtain an Order or a Decree compelling appellees to consent in writing to its entry upon their land for the purpose of conducting mining operations and subsequent reclamation activities because appellant believed that the applicable statute and the accompanying regulations required it to obtain their written consent and to affix a document evidencing this written consent to its application for a permit. Our examination of the relevant statute and regulations and the case law leads us to conclude that appellant is not required to obtain appellees’ written consent in order to process its application for a mining permit under the circumstances of this case. It is for this reason that we are affirming the Order in question. An appellate court may affirm the decision of the trial court for reasons other than those relied upon by that tribunal. See, e.g., Williams v. Otis Elevator Co., 409 Pa.Super. 486, 598 A.2d 302 (1991). Our disposition here is not advisory because we have not pre-reviewed any mining permit application, nor have we passed upon its likely success or not. Assessment and review of mining permit applications are within the exclusive province and expertise of DER.

Order affirmed.

      . To support its argument that DER will not accept its application for a mining permit without a written consent form signed by appellees to accompany the permit application, appellant relies upon Maul v. Guthrie, 9 D. & C.3d 482 (Clarion Co. 1977). In Maul, the original landowners entered into a written agreement with Maul to allow him to enter their land to remove coal therefrom. Maul contracted with Mauersberg Coal Company to remove the coal. When the wife/landowner died, her husband transferred ownership of the property in question to his daughters. The daughters refused to sign the consent form stating that nothing in the agreement between their parents and Maul required them to sign a consent form to permit Mauersberg, Maul or the Commonwealth to enter the land to reclaim, to inspect or to construct mine drainage treatment facilities. However, pursuant to the doctrine of necessary implication, the trial court ordered the landowner/defendants to sign the consent form which DER had requested from Maul after its assignee had applied to DER for a mining permit. The court stated that when the statute imposes an obligation upon the parties, this obligation is implied in any contractual undertaking between them.
      The trial court here distinguished Maul on the basis that DER requested the consent form after Mauersberg had actually applied for the permit. The trial court here stated that unlike the situation in Maul, no evidence exists that appellant has even applied for a permit or that a permit has been denied on the basis of lack of written consent. Appellant acknowledges that he has not applied for any such permit because of his belief that he is required to obtain the written consent of appellees before doing so. As noted in the text, however, we are disposing of this matter on the basis that the applicable statute and the pertinent regulations do not require the written consent of appellees as part of the application. Thus, the doctrine of necessary implication is irrelevant to the matter at bar.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    617 A.2d 5
    COMMONWEALTH of Pennsylvania v. Ronald SANDERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1992.
    Filed Nov. 25, 1992.
    Dean R. Phillips, Philadelphia, for appellant.
    Anthony Pomeranz, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a judgment of sentence for rape and corruption of a minor. Appellant raises the following issue on appeal:

Did the trial court erroneously preclude the defendant from ascertaining information concerning the alleged victim’s pri- or sexual conduct within the context of this case?

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

In March of 1991 appellant was arrested and charged with rape and corruption of a minor. These charges arose out of allegations that appellant forcibly raped a fifteen year old female neighbor of his on March 9, 1991. Appellant was convicted of both charges. Post-trial motions were filed and denied. Appellant was then sentenced to imprisonment for a term of not less than five nor more than ten years on the charge of rape, and to a concurrent term of incarceration of twelve months to twenty-four months on the corruption of minors charge. This timely appeal followed.

Appellant claims on appeal that the trial court erred in precluding appellant from questioning the Commonwealth’s expert medical witness and the complainant in the case on whether complainant had sexual intercourse before her alleged rape by appellant. The Pennsylvania Rape Shield Statute, 18 Pa.C.S.A. § 3104, provides, in pertinent part:

(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct, shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

Id

The purpose of this law, is “to prevent establishment of an unwarranted nexus between the victim’s reputation for chastity and her veracity.” Commonwealth v. Johnson, 389 Pa.Super. 184, 188-89, 566 A.2d 1197, 1199 (1989), appeal granted 525 Pa. 643, 581 A.2d 569 (1990). The history of rape shield laws was ably summarized in Commonwealth v. Nieves, 399 Pa.Super. 277, 582 A.2d 341 (1990), appeal denied, 529 Pa. 633, 600 A.2d 952 (1991), as follows:

At common law evidence of a female rape complainant’s general reputation for morality and chastity was deemed admissible on the issue of consent. The result of this common law rule was notorious abuse of victim witnesses by aggressive defense counsel who essentially put the victim on trial. In response to such unjustifiable abuses, the federal government and states enacted statutes known as Rape Shield laws. Rape Shield laws were intended to end the abuses fostered by the common law rule by limiting the harassing and embarrassing inquiries of defense counsel into irrelevant prior sexual conduct of sexual assault complainants.

399 Pa.Super. at 286, 582 A.2d at 347.

However, this court, along with the Supreme Court, has carved out narrow exceptions to the Rape Shield Act’s prohibition against the admissibility of evidence of prior sexual conduct of the complainant in sex offense cases. The elements required to meet an exception to the Rape Shield Law were delineated by this court in Commonwealth v. Wall, 413 Pa.Super. 599, 606 A.2d 449 (1992). We stated therein that:

The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense (citations omitted)---- Where the proffer is sufficiently specific, the court must then undertake a three part analysis of the substance of the proffer. At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial (citations omitted). On appeal, such evidentiary rulings must be offered due deference and overturned only where there has been an abuse of discretion.

Id., at 614, 606 A.2d at 457.

In the instant case appellant failed to meet the requirements of specificity, and noncumulitiveness, of the evidence offered. Appellant sought to question the complainant and the expert medical witness who testified on behalf of the Commonwealth, in regard to the complainant’s past sexual conduct. From this questioning appellant sought to determine whether the complainant was a virgin prior to her alleged rape by appellant.

The specificity of appellant’s proffer of evidence was unsatisfactory, as appellant’s own brief makes clear: “[Tjhere was never an attempt or proffer of an attempt to determine specific acts of intercourse or of sexual relations. The defense neither sought to find out times nor identities of persons involved in prior sex.” Appellant’s Brief at 9. The trial court correctly noted in reference to the specificity of the proffer offered by appellant, that: “He [appellant] was clearly on a fishing expedition, without any certainty of what he would find. This court ruled and continues to hold that the Rape Shield Law prohibits such questioning, in the absence of something more than speculation.” Opinion, April 3, 1992 at 5. As we have previously stated, “[w]here the proffer is but vague and conjectural, evidence of the victim’s past sexual conduct will be excluded and no further inquiry need be entertained.” Commonwealth v. Wall, 413 Pa.Super. 599, 614, 606 A.2d 449, 457 (1992) (citing Commonwealth v. Troy, 381 Pa.Super. 326, 335, 553 A.2d 992, 996-97 (1989), appeal denied, 525 Pa. 626, 578 A.2d 413 (1990)).

In addition, even if appellant’s proffer had been sufficiently specific, appellant failed to meet the requirement that evidence concerning past sexual conduct of the complainant in a rape case be noncumulative of evidence otherwise admissible at trial. In Commonwealth v. Lyons, 364 Pa.Super. 620, 528 A.2d 975 (1987), this court allowed evidence of past sexual activity to be introduced to explain objective signs of intercourse. In Lyons, the Commonwealth introduced the blood stained panties of the twelve year old alleged statutory rape victim, to demonstrate that intercourse had taken place. The court allowed the defendant to introduce evidence concerning intercourse with a third party occurring either the day before or the day after the alleged rape. The court stated its reasoning as follows: “Since the only theory presented to explain the blood was intercourse with the defendant, he was seriously prejudiced when he was precluded from showing there was a plausible, contemporaneous alternate explanation for that evidence by way of intercourse the day before or after.” Id. at 625, 528 A.2d at 978.

In the present case, however, the jury was presented with ample alternative explanations for the lack of an intact hymen on the part of the complainant. On both direct and cross-examination the expert medical witness for the Commonwealth testified to the fact that the hymen can be broken in a variety of non-sexual ways. N.T. 10/15/91 at 83, 92. Additionally, the expert witness testified on both direct and cross-examination that he could not conclude whether the complainant had ever had sexual intercourse. Id. at 85, 103. Therefore any evidence offered by the defense as to past sexual conduct on the part of the complainant to explain the lack of the complainant’s possessing an intact hymen would be merely cumulative. Consequently, we find that the trial court did not err when it excluded evidence of prior sexual experience of the complainant. Accordingly we affirm the judgment of sentence.

Affirmed.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 6301.

      . The Commonwealth contends that appellant has waived consideration of this claim. It argues that “[i]n his written post-verdict motions, defendant did not raise the argument that the proposed questioning of the victim concerning her prior sexual conduct was to explain physical findings consistent with her 'non-virginal status,' as he now argues. Instead, defendant argued there that had he been allowed such questioning, he 'could have demonstrated the alleged victim’s motive for lying in naming Ronald Sanders as the perpetrator of a rape’.” Commonwealth’s Brief at 6. After reviewing the defendant’s post-verdict motions, we find that the post verdict motions encompassed the subject of the present appeal. Hence, we will consider the merits of appellant’s contention of trial court error.

      . Appellant contends that in the instant case, the presence or absence of an intact hymen on the part of the complainant is an objective sign of intercourse, and as the testimony of the Commonwealth’s medical expert brought out the fact that the complainants hymen was not intact, appellant should be permitted to elicit testimony concerning complainant’s past sexual conduct which would show an alternative explanation for this condition other than appellant’s rape of the complainant. See Appellant’s brief at 7-9. We will first accept arguendo that this evidence meets the standard of relevance annunciated by the Supreme Court of Pennsylvania in Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). In Majorana, the Court stated that the Pennsylvania Rape Shield Law "does not bar the admission of evidence ... which is directly relevant to negate the act with which the defendant is charged. Evidence of acts of intercourse, which show that they, and not a rape, caused the objective signs of intercourse is relevant." Id. at 605, 470 A.2d at 81. The objective sign of intercourse in Majorana was the presence of semen in the victim's vagina. Id. at 606, 470 A.2d at 83.


author: ROWLEY, President Judge:

text:
    617 A.2d 8
    COMMONWEALTH of Pennsylvania, Appellant, v. Roger A. MOORE. COMMONWEALTH of Pennsylvania v. Roger A. MOORE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1992.
    Filed Nov. 18, 1992.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.
    Melaine S. Rothey, Pittsburgh, for Roger A. Moore.
    Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
   ROWLEY, President Judge:

Both the Commonwealth and Roger A. Moore (hereinafter “defendant”) have appealed the Judgment of Sentence imposed following a waiver trial in which the defendant was found guilty of the following offenses: homicide by vehicle and involuntary manslaughter, driving under the influence, recklessly endangering another person, driving while operator’s privileges suspended, failure to drive on right side of highway, and reckless driving. In its appeal, the Commonwealth vehemently argues that the sentence imposed, although within the sentencing guidelines, is excessively lenient and “clearly unreasonable” under all the facts and circumstances of this case. The defendant has appealed his sentence on the basis of allegedly erroneous evidentiary rulings made by the trial court during his trial and on the theory that the evidence proffered by the Commonwealth was insufficient to sustain the defendant’s conviction in several particulars. After a very careful review of the record and the law, we vacate the judgment of sentence and remand to the trial court for resentencing.

The facts giving rise to these cross-appeals follow. On December 24, 1990, Elizabeth Henry and her husband, Henry, went to Christmas Eve services at their church. When they returned home, they neglected to turn their car lights off. At about 9:20, Mrs. Henry realized their car lights were still on and she decided to take the car, a 1974 Dodge Dart, for a drive to recharge the battery.

Mrs. Henry was driving below the speed limit, at approximately 40 miles per hour, on Route 366 towards New Kensington when another vehicle, driven by a Michael Selerud, attempted to pass Mrs. Henry in a properly marked passing zone. Just as he was about to move his vehicle around Mrs. Henry’s, he saw the defendant’s “pick-up [truck] come around the bend in the road coming in ... [his] direction ... cross the center line and hit [Mrs. Henry’s] car head on.” (Reproduced Record, 105a, 106a, 114a). Mrs. Henry (hereinafter “victim”) was killed instantly by blunt force trauma to her head and chest. Mr. Selerud braked his vehicle to a halt before impacting the victim’s car. The defendant, whose driver’s license had previously been suspended, was found lying on the front seat of his truck mumbling unintelligibly. An empty quart bottle of Colt .45 Malt Liquor, an empty quart bottle of Bacardi Rum, and a pint bottle of Bacardi Rum in a brown paper bag were also found on the passenger side floor of the defendant’s truck. A case of beer had been thrown out of the bed of the defendant’s truck on impact.

A Traffic Safety Training Specialist, Officer Sims, arrived at the scene at approximately 9:48 p.m. in response to a call for assistance from several officers who had come upon the accident minutes after it’s occurrence. Officer Sims observed all three vehicles involved in the incident and spoke with the officers at the scene. He also talked to the defendant in the ambulance. As a result of his observations at the scene and his conversation with the defendant, Officer Sims “asked [another officer] to follow the ambulance to the hospital and obtain a blood alcohol sample.” (Reproduced Record, 219a). The defendant’s blood was tested at the Allegheny County Toxicology Department and a .15 blood alcohol content was revealed. Cocaine was also detected in the defendant’s blood.

Despite a motion to suppress filed by the defendant, the trial court received the blood test as evidence. Also at trial, Officer Sims testified that based upon his discussion with the eye witness, Mr. Selerud, and the measurements taken at the scene, it was his opinion that a portion of the defendant’s vehicle had already crossed the center yellow line before he started to brake and that his skid marks began some two hundred feet after a patch of ice in the roadway. Based on this evidence, the trial court, sitting as fact-finder, concluded that the defendant unintentionally caused Mrs. Henry’s death while violating the Motor Vehicle Code (homicide by vehicle) in a reckless or grossly negligent manner (involuntary manslaughter). The court also concluded that he was guilty of driving under the influence of alcohol and of several related summary violations.

To aid the trial court in sentencing the defendant, an extensive pre-sentence report was compiled which indicated that the defendant “has violated most of the probations he has been granted in Westmoreland County,” “has displayed a pattern of irresponsibility throughout his adult life,” and “is in need of severe corrective measures before he causes another similar tragedy.” (Reproduced Record, 399a-414a). The report also indicates that the defendant has abused alcohol and cocaine for some time, yet continues to deny any substance abuse problems. While awaiting trial on the charges relevant to this appeal, the defendant was arrested for possession of cocaine and drug paraphernalia in Westmoreland County. (Reproduced Record, 399a-414a).

In addition to the pre-sentence report entered into evidence for sentencing purposes, a copy of the defendant’s driving record was proffered to the sentencing court. That record revealed that the defendant has had a long history of motor vehicle violations in this Commonwealth which, due to their summary nature, were not reflected in the defendant’s prior record score. Totaling fifteen in number, the defendant’s driving record is composed of seven moving violations, four driving without a license or under suspension violations, and four miscellaneous violations. Of course, said driving record also reveals the fact that the defendant was driving while under suspension at the time of the December 24, 1990 incident.

Before turning to the merits of the arguments presented herein, we must consider whether this appeal is properly before us. An appeal of the discretionary aspects of a sentence is not guaranteed as of right. Rather, “allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b).

“Additionally, Pa.R.A.P. 2119(f) commands that: [a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.”

Commonwealth v. Tuladziecki, 513 Pa. 508, 511-512, 522 A.2d 17, 19 (1987).

The Commonwealth has complied with the mandate of Tuladziecki and therefore, we must ascertain whether a substantial' question has been raised as to the propriety of the defendant’s sentence. In Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987), this Court noted that the determination of whether a particular issue constitutes a substantial question must be evaluated on a case-by-case basis but that it would “be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. at 201 n. 7, 535 A.2d at 119 n. 7.

In the instant appeal, the Commonwealth has raised a claim that the sentence imposed in this case was contrary to the fundamental norms underlying the sentencing process and was inconsistent with the Sentencing Code. We conclude that this claim is colorable. The 2119(f) statement filed by the Commonwealth enumerates several aggravating factors which indicate to us that the defendant’s lack of intent may have been given unduly substantial weight by the court in fashioning the defendant’s sentence while his pattern of overall irresponsibility and flagrant disregard for highway safety may not have been given enough weight. Therefore, we conclude that the Commonwealth presents us with a substantial question as to the suitability of the sentence imposed in this case.

A sentencing court has broad discretion in choosing the range of permissible confinements which best suits a particular defendant and the circumstances surrounding his crime. However, the choices must be “consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” Commonwealth v. Devers, 519 Pa. 88, 92, 546 A.2d 12, 13 (1988) (emphasis added).

In Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985), we noted that:

“[t]he legislature has provided that the appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence, even though within the guidelines, is “clearly unreasonable”; or (3) that the sentence, if outside the guidelines, “is unreasonable.” In any one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with instructions. 42 Pa.C.S.A. § 9781(c). In determining whether a particular sentence is “clearly unreasonable” or “unreasonable,” the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the pre-sentence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the ‘findings’ upon which the trial court based its sentence.”

Id. at 473, 491 A.2d at 1354.

In the instant case, we conclude that the guidelines were erroneously applied by the sentencing court because the defendant was twice given the benefit of one particular mitigating factor, the defendant’s lack of intent to cause the victim’s death. The intent element was figured into the defendant’s sentence via his offense gravity score for unintentionally and involuntarily causing Mrs. Henry’s death. It was then given weight by the court in sentencing the defendant to his mitigated eighteen to sixty month period of incarceration. Therefore, the weight given to the mitigating factor of intent was undue and the sentence is contrary to law. Drumgoole at 475, 491 A.2d at 1355 .

Moreover, we agree with the Commonwealth’s argument that the Drumgoole rationale also demands the conclusion that aggravated, rather than mitigated, weight should have been given to the defendant’s substance abuse violations and his extensive prior Motor Vehicle Code violations, both of which went unnoticed in computing the defendant’s prior record score under the Sentencing Guidelines. While cognizant of the Devers presumption that a sentencing court has considered relevant factors arid weighed those factors in a meaningful fashion if a pre-sentence report exists, we believe this presumption is rebuttable.

In Commonwealth v. Masip, 389 Pa.Super. 365, 567 A.2d 331 (1989), we vacated and remanded an unreasonably lenient sentence despite the Devers presumption because the sentence did not reflect the uncontradicted evidence of aggravating factors in the pre-sentence report. Citing Devers, we stated that “[a] pre-sentence report constitutes part of the record and speaks for itself. It is presumed to be valid and need not be supported by evidence unless and until it is challenged by the defendant.” Id. at 374, 567 A.2d at 336. Because the presentence report “speaks for itself,” there is no room for interpretation as to what it says.

Consequently, we concluded in Masip, as we do in the instant case, that “it is apparent that [although the court here had the pre-sentence report before it and was cognizant of its contents, it is equally obvious that it failed to properly analyze the four factors delineated in [42 Pa.C.S.A. § 9781(d) ] and did not correctly consider and weigh all relevant factors ...” Id. at 374, 567 A.2d at 336. In this appeal, the pre-sentence report says to us that the defendant’s repeated, continuous motor vehicle and substance abuse violations so adversely impact the protection of the public and the rehabilitative needs of the defendant that they could not have been properly weighed, together with all the other facts and circumstances of this case, prior to the trial court’s imposition of defendant’s mitigated sentence. Thus, we must vacate the defendant’s judgment of sentence and remand for resentencing.

We now move to the defendant’s allegations of trial court error. First, the defendant claims that the trial court erred in denying his motion to suppress the results of a blood alcohol test performed on a blood sample taken from the defendant by hospital personnel at the direction of the police. He asserts that the sample was “an unlawful search and seizure which violated the Fourth Amendment to the United States Constitution and [therefore] the blood sample should have been suppressed” in that his injuries prevented him from understanding that he had a right to refuse to provide the sample under 75 Pa.C.S.A. § 1547(a).

When reviewing the findings of a suppression court where the challenged evidence was admitted, this Court must consider all of the evidence of the prosecution’s witnesses and only so much of the evidence for the defense which, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Hubble, 509 Pa. 497, 503, 504 A.2d 168, 171 (1986). In Commonwealth v. Eliff, 300 Pa.Super 423, 446 A.2d 927 (1982), this Court stated that in considering a suppression motion:

[t]he suppression court must make findings of fact and conclusions of law in determining whether the evidence was obtained in violation of the defendant’s rights. The burden of probing the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 232(h). On appeal, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact, (citations omitted).

Id. at 428, 446 A.2d at 929.

In its opinion, the trial court reiterated the findings which it made at the suppression hearing, as follows:

The [suppression c]ourt found that the circumstances surrounding the accident and subsequent police investigation would reasonably warrant a police officer to conclude that the [defendant was operating a motor vehicle while under the influence of alcohol---- The manner in which the defendant was found in and of itself indicated that he was driving the vehicle and that alcohol was present in, on or around the [defendant. Viewing the totality of the circumstances, this [suppression c]ourt is of the opinion that the results of the blood test were properly admissible as the test was not taken in violation of [the defendant's Constitutional rights.

(Trial Court Opinion, 3/19/92, page 5). After a thorough review of the record, we conclude that these findings are adequately supported. Therefore, even if the blood test was non-consensual, it was a reasonable search incident to defendant’s arrest. See: Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Moreover, in Commonwealth v. Molino, 406 Pa.Super. 66, 593 A.2d 872 (1991), alloc. granted, 529 Pa. 618, 600 A.2d 535 (1991), this Court recently held that the taking of a blood sample, despite a defendant’s refusal pursuant to § 1547(b)(1), has no bearing upon the admissibility of the blood alcohol content at trial because the right to refuse the test is statutory rather than constitutional in nature. Section 1547 simply does not preclude the admission into evidence of blood test results obtained in contravention of the defendant’s right to refuse under that section. Therefore, it is irrelevant under the Molino rule whether the defendant did or did not knowingly consent to the blood test pursuant to the inconsistent implied consent provisions of this Commonwealth in the instant case. The trial court properly admitted the test into evidence.

Next, the defendant challenges the trial court’s ruling concerning the testimony of the Commonwealth’s expert in the fields of pharmacology and toxicology, Dr. Wagby Wahba. The defendant claims that his motion to strike Dr. Wahba’s testimony should have been granted on the grounds of irrelevancy. Specifically, the defendant argues that the generalized discussion by Dr. Wahba of the physiological effects of alcohol on an individual with a .15 blood alcohol was irrelevant in that it was not specific to this defendant and also because the witness was unable to determine whether the defendant’s blood alcohol level at the time of the collision was higher or lower than the blood alcohol content of the specimen drawn one and one-half hours after the incident.

We note several legal precepts which guide us in addressing these claims. “To be relevant, evidence need not establish a probability that the defendant committed a crime, but only a possibility that he did. How much weight to accord the inference is a question solely for the trier of fact.” Commonwealth v. Yarris, 519 Pa. 571, 589, 549 A.2d 513, 522 (1988), cert. denied, Yarris v. Pennsylvania, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989). And, of course, a trial court’s ruling on evidentiary questions is within the sound discretion of that court and will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Holloway, 524 Pa. 342, 354, 572 A.2d 687, 693 (1990).

As noted in the Commonwealth’s brief, the testimony of the Commonwealth’s expert was circumscribed by the trial court to the following topics: (1) verification that the expert had analyzed the defendant’s blood sample; (2) verification that the results of the blood test revealed his blood alcohol level was .15; and (3) a generalized discussion of the physiological effects which alcohol has on the sensory, motor, and judgment functions in humans. The trial court concluded that Dr. Wahba’s testimony was relevant and proper in that the witness had a reasonable pretension to specialized knowledge regarding the effects of alcohol on the human body and that his expert testimony bore upon a matter in issue at trial (i.e., whether or not the defendant was or was not driving while under the influence of alcohol). The trial court did not err in receiving the limited expert testimony presented in this case.

Finally, we address the defendant’s argument that the evidence was insufficient to sustain his convictions of homicide by vehicle and involuntary manslaughter in that “the Commonwealth failed to prove that [the defendant] caused the death of Mrs. Henry while violating a motor vehicle law or while doing either a lawful or unlawful act in a reckless or grossly negligent manner.” In so doing, we note that our standard in determining whether evidence is sufficient to sustain a verdict is, as follows:

Wh[en] accepting as true all the evidence viewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Gamber, 352 Pa.Super. 36, 44, 506 A.2d 1324, 1329 (1986).

This Court has previously held that evidence that a defendant allowed his vehicle to cross the center line and enter the lane of traffic for oncoming vehicles and that his blood alcohol was .09 percent was sufficient to support a conviction for homicide by vehicle. Commonwealth v. Eichelberger, 364 Pa.Super. 425, 528 A.2d 230 (1987). Likewise, in Commonwealth v. Otis, 364 Pa.Super. 464, 528 A.2d 249 (1987), alloc. granted, 518 Pa. 625, 541 A.2d 1136 (1988), this Court held that it was error for the trial court to summarily dismiss criminal charges against a defendant where there was evidence that he crossed the center line while driving and killed two people in an oncoming vehicle; it was determined that the evidence was sufficient for a factfinder to infer the defendant’s criminal negligence.

In the present case, the trier of fact found that the elements of homicide by vehicle and involuntary manslaughter were sufficiently proven. In that regard, the trial court opined, as follows:

The testimony of an eyewitness to the accident, Michael Selerud, as well as the testimony of James A. Sims, Plum Borough Police Officer and [the] Commonwealth’s reconstruction expert, demonstrated that the [defendant's vehicle crossed the center line of the road before impacting the victim’s vehicle. The [c]ourt was satisfied that the Commonwealth proved to the degree necessary that [the defendant's vehicle crossed the center line and impacted the victim’s vehicle in the victim’s lane of travel.... the [e]ourt ... was satisfied that the Commonwealth had shown sufficient evidence to support a conviction for Involuntary Manslaughter and Homicide by Vehicle.

(Trial Court Opinion, 3/19/92, pages 7-8). Accepting as true all of the evidence presented by the Commonwealth and the uncontradicted defense evidence, we conclude that the factfinder’s verdict was adequately supported by the record.

Accordingly, we affirm the trial court’s conclusions regarding defendant’s assignments of error but we vacate the judgment of sentence and remand for resentencing based on our determination that the trial court did not properly analyze and weigh all factors relevant to the fashioning of the defendant’s sentence.

Judgment of sentence vacated and case remanded for resentencing. Jurisdiction is relinquished.

      . In Drumgoole, we held that it was error for a sentencing court to consider a defendant’s lack of a prior record in choosing between the standard, mitigated and aggravated ranges in formulating an appropriate sentence because “the guidelines inherently give credit to those who have led a relatively law-abiding life.” Therefore, assignment of the lack of, or even a minimal, prior record as a reason for fashioning a particular sentence impermissibly gives a defendant credit for the same factor twice.
      In that case, we vacated the defendant’s sentence and remanded for resentencing. In the instant appeal, the Drumgoole rationale compels a similar result; we conclude that the element of intent was improperly considered twice by the trial court in sentencing the defendant. The defendant's eighteen to sixty month sentence must be vacated for resentencing.

      . Moreover, we are of the mind that the trial court gave undue weight to the ephemeral display of remorse expressed by the defendant at sentencing in light of the uncontradicted record evidencing his repeated and egregious disregard for the law.


author: WIEAND, Judge:

text:
    617 A.2d 15
    COMMONWEALTH of Pennsylvania, Appellant, v. John F. FROMBACH, Appellee.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed Nov. 18, 1992.

      Anthony R. Himes, Asst. Dist. Atty., Erie, for Com., appellant.
    David G. Ridge, Erie, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

John F. Frombach was arrested and charged with driving while under the influence of alcohol and disorderly conduct after he attempted to avoid a sobriety checkpoint set up by police in Erie County. The trial court suppressed evidence obtained following the stop of Frombach’s vehicle by a County Detective on grounds that the County Detective lacked authority to enforce the provisions of the Vehicle Code. The Commonwealth, certifying that the suppression order substantially handicapped its prosecution of Frombach, filed the instant appeal.

The Pennsylvania Supreme Court has recently discussed the standard of review to be applied in deciding an appeal taken by the Commonwealth from an order suppressing evidence in the following manner:

We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). See Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986). If so, we are bound by those findings. Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985). Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. James, 506 Pa. at 532-33, 486 A.2d at 379; Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983).

Commonwealth v. DeWitt, 530 Pa. 299, 301-302, 608 A.2d 1030, 1031 (1992) (footnote omitted). See also: Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1353-1354 (1988); Commonwealth v. Bagley, 408 Pa.Super. 188, 193, 596 A.2d 811, 813 (1991). Where the factual findings of the suppression court are supported by the record, we may reverse only if the legal conclusions drawn therefrom are erroneous. See: Commonwealth v. Whitney, 511 Pa. 232, 239-240, 512 A.2d 1152, 1156 (1986); Commonwealth v. Agnew, 411 Pa.Super. 63, 71, 600 A.2d 1265, 1269 (1991).

The suppression court found the facts to be as follows:

Larry Dombrowski is a County Detective in the Erie County District Attorney’s Office and the DUI Coordinator therein. The District Attorney’s Office has instituted written guidelines and policy for the establishment and operation of sobriety checkpoints (DUI roadblocks) in Erie County, which are in accordance with state and federal law.
On March 23, 1991, a DUI roadblock, requested by Chief Belden of the Albion Police Department, was approved and instituted at the intersection of East State Street and Orchard Street in Albion. Mr. Dombrowski, Erie County Sheriffs Deputy Robert Merski and Chief Belden were among those manning the roadblock. Approximately 600 to 700 feet prior to the roadblock was a well lit sign (at East Second and Orchard) announcing the roadblock ahead.
Testimony at the hearing, which this Court accepts as truthful, revealed that the defendant approached the sign announcing the checkpoint at a high rate of speed, stopped in the middle of the intersection and abruptly made a right turn without a proper signal upon observing the roadblock and sign. The vehicle immediately thereafter accelerated at a high rate of speed. County Detective Larry Dombrowski and Deputy Sheriff Robert Merski immediately activated the lights on the marked enforcement vehicle, pursued and pulled the defendant over.
Upon stopping the vehicle Dombrowski testified it appeared the driver and passenger (a Betty Jo Chapman) were attempting to switch seats, observing that the defendant, although now in the passenger seat, still had his legs in the driver’s well and vice versa [as to] Ms. Chapman.
When the defendant was asked to get out of the car he became uncooperative, loud and obnoxious. He refused to take a field sobriety test and threatened Deputy Merski with violence. When the deputy attempted to frisk the defendant for his own safety [the defendant] fled. County Detective Dombrowski testified he had to assist the deputy (who upon attempting capture had been put in a headlock by the defendant). Dombrowski then placed the defendant under arrest for disorderly conduct. Dombrowski further related that the defendant had the strong odor of alcohol about his person and that he had observed empty beer bottles in the passenger compartment of the vehicle.
Chief Belden testified he originally observed the actions of the vehicle as it approached and then attempted to evade the DUI roadblock. A short time later when the defendant was arrested for disorderly conduct and brought to him at the roadblock he noted that the defendant had a strong odor of alcohol on his breath, bloodshot eyes, that he alternated yelling obscenities with crying (and other mood swings), that he once again refused to take any field sobriety tests and that he (Chief Belden) placed him under arrest for DUI.

Based upon these findings of fact, which are fully supported by competent evidence, the suppression court concluded that there had been reasonable suspicion to support a Terry stop of appellee’s vehicle after he had attempted to avoid the sobriety checkpoint. The court also concluded that appellee’s subsequent actions gave County Detective Dombrowski probable cause to arrest him, and that the county detective had legal authority to make an arrest for disorderly conduct. Additionally, the suppression court found that appellee’s subsequent arrest for drunk driving, made by Police Chief Belden, was also supported by probable cause and in all other respects was legally proper. Nevertheless, the suppression court determined that County Detective Dombrowski lacked legal authority to enforce the provisions of the Vehicle Code. Therefore, the court held, his initial stopping of appellee’s vehicle was unlawful. Based upon this conclusion, the court ordered the suppression of all evidence relevant to the charge of drunk driving which had been obtained between the time of the stop of appellee’s vehicle and the time of his subsequent arrest for disorderly conduct.

The issue which is squarely before this Court, therefore, is whether a county detective has the authority to investigate possible Vehicle Code violations and otherwise enforce the provisions of the Vehicle Code. Recently, in Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991), allocatur granted, 529 Pa. 647, 602 A.2d 857 (1992), the Superior Court, sitting en banc, considered whether a deputy sheriff had the authority to make a warrantless arrest for a Vehicle Code violation which had occurred in his presence. A majority of the Court held that only police officers had been vested with authority to enforce the provisions of the Vehicle Code. In support of this holding, the Court reasoned as follows:

The language of the statute in this case is explicit. Enforcement of the Vehicle Code has been vested by the legislature ih police officers. Sheriffs and deputy sheriffs are not police officers. Cf. Venneri v. County of Allegheny, 12 Pa.Commw. 517, 316 A.2d 120 (1974). A deputy sheriff has not been authorized to stop a motorist and make an arrest for a Vehicle Code violation, whether or not the violation has been committed in the deputy sheriffs presence.
The Commonwealth would nevertheless have us revert to the common law to find general peacekeeping duties in the sheriff. Based on authority vested in sheriffs and deputy sheriffs by the common law, the Commonwealth argues that sheriffs and deputy sheriffs have inherent power and authority to arrest without a warrant for all crimes, however defined, committed in their presence, including Vehicle Code violations. We are unable to accept this reasoning. In the first place, an attempt to imply power where the same has not been granted by statute would be in direct violation of the legislature’s mandate that sheriffs and deputy sheriffs shall perform the duties imposed by statute.
Moreover, although “the sheriffs power at early common law was indeed formidable, [ ] it is not tenable to carry over such a broad base of authority in the present [day].” Venneri v. County of Allegheny, supra at 523 n. 2, 316 A.2d at 124 n. 2. The encroachment of other institutions, including the expertise and technology of modern law enforcement agencies, has greatly diminished the authority of the office of sheriff. Today, the sheriffs principal function is as an arm of the court, which is the duty specifically assigned to the office of sheriff by the legislature.

Commonwealth v. Leet, supra 401 Pa.Super. at 496-498, 585 A.2d at 1037.

The suppression court, in the instant case, determined that a county detective is not a police officer, but a law enforcement officer and, as such, is not empowered to enforce the Vehicle Code. In reaching this conclusion, the suppression court relied upon the decision of the Supreme Court in Commonwealth v. Galloway, 525 Pa. 12, 574 A.2d 1045 (1990), where the Court determined that a special agent of the State Attorney General’s office was not authorized to make arrests for violations of the Vehicle Code. The Court held that the sole powers of the Attorney General are set forth in the Commonwealth Attorney’s Act, which permits the Attorney General to investigate and prosecute only certain enumerated offenses. These enumerated offenses do not include Vehicle Code violations. Commonwealth v. Galloway, supra at 15-19, 574 A.2d at 1046-1048.

Galloway, however, is not controlling of the instant case. We cannot look for the authority of county detectives in the Commonwealth Attorney’s Act. The question before this Court, rather, is whether a county detective has been designated by the legislature as a police officer so as to be authorized to enforce provisions of the Vehicle Code.

“It is well settled that ‘[w]hen vesting a group with police powers and duties, the Legislature does so with specificity.’ ” Allegheny County Deputy Sheriff’s Association v. Pennsylvania Labor Relations Board, 95 Pa.Cmwlth. 132, 135, 504 A.2d 437, 439 (1986), quoting Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa.Cmwlth. 525, 532, 441 A.2d 470, 475 (1982), affirmed in part and reversed in part, 502 Pa. 7, 463 A.2d 409 (1983). See also: Commonwealth v. Leet, supra 401 Pa.Super. at 493, 585 A.2d at 1035. With respect to county detectives, the legislature has provided that they “shall be general police officers and shall have the powers conferred on constables by the laws of this Commonwealth, so far as they relate to criminal law and procedure.” Act of August 9, 1955, P.L. 323, § 1440, 16 P.S. § 1440(d) (governing counties of the third through eighth class). By the Act of June 4, 1897, P.L. 121, § 1, 13 P.S. § 45, the legislature has conferred upon constables the power to, “without warrant and upon view, arrest and commit for hearing any and all persons guilty of a breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or violating any ordinances of said borough, for the violation of which a fine or penalty is imposed.”

The Supreme Court has concluded that county detectives, having been classified by the legislature as policemen, possess the same collective bargaining rights as other policemen throughout the Commonwealth. See: Hartshorn v. County of Allegheny, 460 Pa. 560, 333 A.2d 914 (1975). See also: Com monwealth v. Gaudette, 1 Pa. D & C. 4th 292, 293 (Northumberland County 1987), aff'd, 381 Pa.Super. 654, 548 A.2d 639 (1988) (“[A]s a general police officer, a county detective would have the right to execute a lawful arrest warrant.”); Comment, Arrest And Search Powers Of Special Police In Pennsylvania: Do Your Constitutional Rights Change Depending On The Officer’s Uniform?, 59 Temp.L.Q. 497, 498 and 507-508 (1986) (“Traditional police are government employees empowered by statute to enforce all commonwealth laws.... Today, traditional police in Pennsylvania include state police, municipal police, township police, borough police, and county district attorneys’ detectives.”) (emphasis added and footnotes omitted).

After careful review of the relevant legislative provisions and applicable case law, it appears that the legislature has expressed a clear intent to classify county detectives as police officers who possess general police power to enforce the laws of this Commonwealth. Therefore, we hold that county detectives are authorized to enforce the provisions of the Vehicle Code. It follows that the suppression court was in error when it held that County Detective Dombrowski lacked authority to stop appellee’s vehicle after observing appellee attempt to avoid the sobriety checkpoint by abruptly making a right turn and fleeing at a high rate of speed. Dombrowski possessed reasonable suspicion that appellee was violating the Vehicle Code; and, therefore, pursuant to 75 Pa.C.S. § 6308, he was authorized to make a Terry stop of the vehicle for further investigation. See: Commonwealth v. Metz, 412 Pa.Super. 100, 602 A.2d 1328 (1992).

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . The appeal is proper pursuant to Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . All evidence obtained after appellee's arrest for disorderly conduct was deemed by the suppression court to be admissible because County Detective Dombrowski had the legal authority to make an arrest for disorderly conduct, and his actions in doing so were supported by probable cause. Moreover, Police Chief Belden had both legal authority and probable cause to arrest appellee for drunk driving.

      . Act of October 15, 1980, P.L. 950, No. 164, § 101 et seq., 71 P.S. § 732.101 et seq.

      . The Vehicle Code, at 75 Pa.C.S. § 6308(b), provides as follows:
      (b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

      . Erie County is a county of the third class. The same powers have been conferred upon county detectives in counties of the first and second class by the Act of July 28, 1953, P.L. 723, art. XIV, § 1440, 16 P.S. § 4440(b) (2nd class counties) and by the Act of June 3, 1919, P.L. 369, § 1, as amended, 16 P.S. § 7741 (1st class counties).


author: WIEAND, Judge: KELLY, Judge,

text:
    617 A.2d 20
    Catharyn A. TURNER, II, Appellant, v. E. James KOHL, M.D. and Bryn Mawr Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Dec. 1, 1992.

      Shanin Specter, Philadelphia, for appellant.
    J. Michael Doyle, Philadelphia, for Bryn Mawr Hosp., appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

This is an appeal from an order transferring venue in a civil action from Philadelphia County to Montgomery County for the convenience of parties and witnesses pursuant to Pa. R.C.P. 1006(d).

The action was commenced in March of 1988 by Catharyn A. Turner II against E. James Kohl, M.D. and Bryn Mawr Hospital. In her complaint, plaintiff alleged that she had been subjected to negligent treatment by Dr. Kohl, her orthopedic surgeon, and by the nurses at Bryn Mawr Hospital, which had resulted in surgery on a healthy right knee instead of an injured left knee. The defendant-hospital filed preliminary objections raising an issue of venue on the grounds that it did not do business in Philadelphia. These preliminary objections, however, were withdrawn by the hospital before they were ruled upon. Thereafter, Dr. Kohl filed a petition to transfer venue on the theory of forum non conveniens. The trial judge denied Dr. Kohl’s motion by order dated March 2, 1990.

On November 7, 1990, plaintiff filed a petition for an accelerated listing and individual judge assignment. Her petition was granted, and the case was assigned to a second trial judge by order dated January 30, 1991. Shortly thereafter, the defendant-hospital filed a petition to transfer on the grounds of forum non conveniens. After considering the defendant’s petition and the plaintiff’s response thereto, the trial judge assigned to handle the case entered an order granting the petition and transferring the case to Montgomery County for the convenience of the parties and witnesses. A motion to reconsider was summarily denied, and plaintiff appealed.

“As a general rule it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by a judge of the same court in the same case.” Reed v. Reed, 354 Pa.Super. 284, 288, 511 A.2d 874, 876 (1986), citing, Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 536-537, 479 A.2d 1027, 1034 (1984); Bersani v. School District of Philadelphia, 310 Pa.Super. 1, 4, 456 A.2d 151, 153 (1982); Marmara v. Rawle, 264 Pa.Super. 229, 238, 399 A.2d 750, 755 (1979). See also: Golden v. Dion & Rosenau, 410 Pa.Super. 506, 600 A.2d 568 (1991). “[Tjhis rule is not a matter of jurisdiction per se; rather it is a rule of sound jurisprudence based on the policy of fostering finality of pre-trial applications so that judicial economy and efficiency can be maintained.” Okkerse v. Howe, 521 Pa. 509, 517, 556 A.2d 827, 831 (1989).

The defendant-hospital calls our attention to the fact that its preliminary objections to the propriety of venue were withdrawn and not decided. Therefore, the hospital argues, it has not had a prior opportunity to present its claim that the venue chosen by the plaintiff was inconvenient for parties and witnesses. However, a prior petition raising the same issue, i.e., the convenience of the parties and witnesses, was presented earlier by Dr. Kohl, and this petition was denied by another judge. The hospital’s later petition offered no additional facts or changed circumstances. To allow multiple petitions for change of venue under Pa.R.C.P. 1006(d) until such time as a judge can be found who will look favorably upon such a petition does not serve judicial economy or judicial efficiency. It matters not that each petition is presented by a different defendant, for the issue is the same, i.e., the convenience of the parties and witnesses. Unless circumstances have changed, therefore, a second petition for change of venue under Pa.R.C.P. 1006(d) should not be presented after a first petition has been considered and denied. See: Okkerse v. Howe, supra.

The trial court suggested that the decision of the Supreme Court in Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990), constituted newly decided legal authority which compelled a transfer of venue. The decision in Purcell, however, pertained to proper venue under Pa.R.C.P. 2179. It did not pertain to and did not alter the principles applicable to changes of venue for the convenience of parties and witnesses under Pa.R.C.P. 1006(d).

The present action had been given an accelerated listing and was ready for trial. Venue in Philadelphia was proper, and a prior petition to transfer venue for the convenience of parties and witnesses under Pa.R.C.P. 1006(d) had been denied. Under these circumstances, we hold, it was an abuse of discretion for the trial judge to grant a second petition to transfer venue in the absence of changed circumstances. To do so served only to delay; it did not serve judicial economy or the efficiency of a unified judicial system.

Order reversed.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring:

I wholeheartedly join the opinion of my esteemed colleague, the Honorable Donald E. Wieand, reversing the trial court’s order granting the defendant-hospital’s petition to transfer venue on the grounds of forum non conveniens after an earlier petition to transfer venue on the same grounds had been denied sixteen months earlier by a different presiding judge. The majority opinion properly holds that absent new evidence, it is improper for a succeeding judge to overrule the decisions of his or her predecessor. See Hutchison v. Luddy, 417 Pa.Super. 93, 108, 611 A.2d 1280, 1288 (1992); Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 87, 546 A.2d 1168, 1170 (1988).

I write only to point out that in its improper consideration and disposition of the defendant-hospital’s petition to transfer venue on the same grounds as the earlier petition, the trial court also failed to give any weight to several factors which I believe are pertinent and should be factored into any decision to transfer venue. These factors are the timeliness of the defendant’s petition to transfer venue, the amount of discovery which has been completed in preparation for litigation in the chosen forum, and the status of the case on the trial court’s calender. See Wills v. Kaschak, 420 Pa.Super. 540, 617 A.2d 37.

Instantly, the defendant-hospital had waited more than three years to file its petition to transfer venue. Additionally, extensive discovery had already taken place in anticipation of a trial in the chosen forum. Finally, the case had been given an accelerated listing and was ready for trial. Accordingly, it is my belief that the defendant-hospital’s petition to transfer venue should have been denied even if it had been properly before the trial court.

Finally, although I am cognizant of the increased congestion in the Philadelphia trial courts (and in other trial courts in our large urban centers), this factor alone should not be viewed as giving trial judges carte blanche authority to transfer any case, at any time, which may be as conveniently litigated elsewhere. Indeed, as Justice Musmanno once observed, “If case load is to determine availability of the courts to injured persons, then justice has become a commodity dependent on the size of the courthouse and the number of personnel therein rather than on the intrinsic merit of claims filed by the litigants.” Rini v. New York Central Railroad Company, 429 Pa. 235, 242, 240 A.2d 372, 376 (1968) (Musmanno, J., dissenting); see also Greenfeig v. Seven Springs Farms, Inc., 416 Pa.Super. 580, 611 A.2d 767 (1992) (No. 2121 Pittsburgh 1991, slip opinion at 6-7, filed 8/7/92) (“Although we certainly recognize the tremendous burdens placed upon our courts by inadequate and unreasonable funding limitations, such circumstances do not provide the basis for a forum non conveniens transfer of a case from one county to another, when venue is properly laid in the first county”).

The underlying factors supporting the transfer of the instant case, should have been, or were known to exist by the defendant-hospital within a reasonable time after the filing of the complaint (i.e. location of defendant-hospital’s offices, appellant’s change of residence to Washington D.C., location of fact witnesses, county in which cause of action arose). The trial court’s apparent disregard of the three year delay in seeking the transfer, the extensive discovery that had already taken place in anticipation of a trial in the chosen forum and by placement of the case on the accelerated ready for trial list are further examples of the emphasis trial courts are placing on the congestion in the courts of our large urban centers when granting petitions to transfer. As this Court has cogently observed, a “trial court may not utilize a transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it.” Horn v. Erie Insurance Exchange, 373 Pa.Super. 186, 189-90, 540 A.2d 584, 586 (1988). Thus, the trial court’s order transferring venue out of Philadelphia County merely to alleviate some of the congestion from the civil docket actually delayed the trial. See Wills v. Kaschak, supra (Kelly, J., dissenting)

      . The author of the court’s opinion in Purcell observed expressly that "[t]he issue of forum non conveniens was not raised in this appeal or in the courts below ... and [w]e do not address that issue.” Id. at 248 n. 4, 579 A.2d at 1287 n. 4.


author: MONTGOMERY, Judge:

text:
    617 A.2d 23
    Arthur R. GALL, Sr., Appellant, v. Donald G. HAMMER, Esquire, and Rebecca S. Sukle, and Theodore A. Gall, Sr., and Rebecca E. Gall, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Dec. 2, 1992.

      Daniel R. Tobin, Pittsburgh, for appellant.

      Stephen A. Langton, Lower Burrell, for appellees.
    Before ROWLEY, President Judge, and CIRILLO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellant, Arthur R. Gall, Sr. filed a pro se complaint, seeking a combination of equitable and legal relief. The dispute in the case involves a property in West Deer Township, Allegheny County. The plaintiff sought to have the court order the transfer of the property to him, and also sought money damages from the defendant-appellees. The defendants include the plaintiffs parents, Theodore A. Gall, Sr. and Rebecca E. Gall. The other two defendants are the plaintiffs sister, Rebecca S. Sukle, and Attorney Donald G. Hammer, who were alleged to have jointly received the property in trust from the plaintiffs parents, and subsequently conveyed title to Theodore A. Gall, III, plaintiffs nephew. The defendants filed preliminary objections to the complaint, raising a number of challenges to the matters in the complaint. The trial court, ruling on only one of the defense challenges raised in the preliminary objections, ruled that there was no in personam jurisdiction over the defendants, who were not residents of our Commonwealth. Accordingly, the trial court dismissed the plaintiffs action. The trial court also denied a request by the plaintiff for reconsideration. The plaintiff has filed the instant appeal from the dismissal order of the trial court.

At the outset of our analysis of the matters in dispute in this case, we must recognize several well-established standards which are applicable to the issues presented. First, it is clear that preliminary objections should only be granted in cases that are clear and free from doubt. Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 407 Pa.Super. 157, 595 A.2d 172 (1991); Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982). As discussed in Derman v. Wilair Services, Inc., 404 Pa.Super. 136, 590 A.2d 317 (1991), this rule is particularly applicable when the preliminary objections, if sustained, would result in the dismissal of the action. Moreover, our court also explained in Derman that when reviewing preliminary objections in such circumstances, a court must consider the evidence in a light most favorable to the nonmoving party. Of particular significance in the instant case, is the rule that the mere allegation in preliminary objections that there is a lack of in personam jurisdiction over a defendant does not place a burden on the plaintiff to negate such allegations. Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 313 A.2d 281 (1973). When a defendant challenges the court’s assertion of personal jurisdiction, that defendant bears the burden of supporting such objections to jurisdiction by presenting evidence. Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Co., 309 Pa.Super. 158, 454 A.2d 1131 (1983). In Holt Hauling, our court instructed that when a fact issue is raised by preliminary objections regarding in personam jurisdiction, the court is to take evidence and may not reach a determination based upon controverted facts, even if the parties fail to provide such evidence themselves.

The record in this case shows that the defendants merely submitted preliminary objections and a supporting brief in support of those preliminary objections. Neither was verified. The only verified matter in the record is the plaintiffs complaint. In that pleading, the plaintiff recited a number of factual allegations which we shall discuss briefly later in this Opinion. Suffice it to note at this point that the averments of the complaint, standing alone, do not establish clearly and without doubt that there is a lack of in personam jurisdiction over any of the defendants. Accordingly, we must vacate the dismissal order of the trial court and remand this case for further proceedings. See Schmitt v. Seaspray Sharkline, Inc., 366 Pa.Super. 528, 531 A.2d 801 (1987). Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Co., supra.

The record obviously lacks sufficient facts to allow the trial court or our court to reach a solid conclusion on the issue of in personam jurisdiction raised by the defendants. However, because we have made brief mention of the assertions in the plaintiffs complaint which bear upon the issue of jurisdiction, we deem it appropriate to discuss some points which will provide guidance of the trial court after remand.

In its landmark decision in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, (1945) the Supreme Court stated: “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he shall have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1297 (1958) the court further stated that it is essential in each case “... that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” In commenting on the doctrine of “minimum contacts”, the Pennsylvania Supreme Court has noted that the minimum contacts requirement protects nonresident defendants from the burden of litigation in an inconvenient or distant forum, and insures that individual states, through their courts, do not exceed limits imposed on them by their status as coequal sovereigns under the federal system. Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981).

These jurisdictional concepts are incorporated into our statutory scheme in the form of our Commonwealth’s long-arm statute, set forth in the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 10(61), effective June 27, 1978, and as further amended by the Act of October 5, 1980, P.L. 693, No. 142, § 203(b), effective 60 days thereafter, 42 Pa. C.S.A. § 5322. It describes activities which would provide a basis for the exercise of personal jurisdiction over persons who reside outside of our Commonwealth. The following provisions appear to be particularly relevant in the instant case:

(a) General rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph.
(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
(v) The ownership, use or possession of any real property situate within this Commonwealth.
(5) Having an interest in, using, or possessing real property in this Commonwealth.
(7) Accepting election or appointment or exercising powers under the authority of this Commonwealth as a:
(iii) Trustee or other fiduciary.
(9) Making application to any government unit for any certificate, license, permit, registration or similar instrument or authorization or exercising any such instrument or authorization.

The pro se complaint filed by the plaintiff was inartfully drafted. Viewed in a light most favorable to the plaintiff, it generally raises the following claims: (1) the defendant parents, Theodore A. Gall, Sr. and Rebecca E. Gall had promised to transfer the property in dispute to the plaintiff; (2) based upon that promise, he had paid years of taxes and spent other funds on the property; (3) he had engaged in providing improvements, including constructing buildings on the property; (4) instead of conveying the property to him, and despite their earlier promises upon which he relied, his parents conveyed the property in trust to the plaintiffs sister, Rebecca S. Sukle and to Attorney Donald G. Hammer, the other defendants in the case; (5) they in turn, caused or attempted to cause the property to be transferred to another family member; (6) in the course of such transactions, the defendants recorded the transfers with the County Register of Deeds; and (7) the defendant parents had engaged in the activity of renting the property or parts of it for a number of years.

All of the aforesaid acts, if established, could arguably be found to constitute the transacting of business in this Commonwealth, for the purposes of establishing jurisdiction under our long-arm statute. More specifically, it could certainly be concluded that all of the defendants engaged in one or more acts in the Commonwealth for the purpose of realizing pecuniary benefit, or of otherwise accomplishing an object with the intention of initiating a series of such acts. Further, such evidence could demonstrate that all of the defendants were involved in the ownership, use, or possession of real property situated within the Commonwealth, or in having an interest in it. Defendants Hammer and Sukle could be deemed to have exercised powers under the authority of the Commonwealth, as trustees, with regard to the property. Finally, all of the defendants have apparently been alleged to have been involved in the registration of deed transfers concerning the property, in furtherance of the activities complained of by the plaintiff!

As discussed earlier, the present record does not permit our court to adequately address the merits of the defendants’ challenges to the in personam jurisdiction of the Court of Common Pleas of Allegheny County. However, the factual averments of the complaint, discussed briefly above, as well as any evidence presented in further proceedings concerning the defendants’ preliminary objections, should be considered by the trial court in determining whether the defense challenges to in personam jurisdiction may be sustained. All of the evidence on that issue must be considered in a light most favorable to the plaintiff as the nonmoving party, and a dismissal will only be appropriate if lack of jurisdiction is established clearly and without doubt.

Finally, it is appropriate to note that our disposition does not address any aspect of the proceedings in this case other than the trial court’s dismissal on the issue of a lack of in personam jurisdiction. Upon remand, if the trial court after further proceedings determines that a lack of jurisdiction is clearly established, no resolution of other contentions may be appropriate. If, however, it is concluded that the plaintiffs claims may not be dismissed on that ground, the trial court will still have before it several other issues presented in the defendants’ preliminary objections. Because those matters have not yet been considered by the trial court, it is inappropriate for our court to review them in the context of the instant appeal.

The order of the trial court is vacated and this case is remanded for further proceedings consistent with this Opinion. Jurisdiction is not retained.

      . In the plaintiff-appellant’s brief to our court, it was asserted that in the proceedings in the trial court, the plaintiff agreed with the defendants to file an amended complaint, with more specific allegations.

        . The burden of proof only shifts to the plaintiff after the defendant has presented affidavits or other evidence in support of its preliminary objections challenging jurisdiction. Cf. Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982); Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 252, n. 3, 418 A.2d 389, 392, n. 3 (1980).