source: Caselaw Access Project

author: BECK, Judge: McEWEN, Judge,

license: Public Domain

text:
    472 A.2d 1128
    Helen M. CHRZANOWSKI, Appellant v. John J. CHRZANOWSKI.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1983.
    Filed Feb. 17, 1984.

      Edward Schellhammer, Johnstown, for appellant.
    Mark Alan Gregg, Johnstown, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Appellant Helen M. Chrzanowski appeals from an August 12, 1982 order of the Court of Common Pleas of Cambria County made pursuant to a proceeding under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), 42 Pa.C.S. §§ 6741-6780. The Cambria County Court’s order granted appellee John J. Chrzanowski’s petition for blood tests to determine the paternity of appellant’s daughter, Marie Chrzanowski, and suspended an existing Virginia child support order pending completion of the blood tests. We vacate the order.

HISTORY OF THE CASE

An outline of the complex factual and procedural history of this case is necessary to an understanding of the issues involved in this appeal. Appellant and appellee were married in 1948. They adopted a son, Michael, in 1965. From June 1966 through June 1967, appellee, a career Army officer, was stationed in Viet Nam. Marie was born to appellant on December 30, 1967, placing the probable date of conception during the period of appellee’s absence from the country.

In 1968, appellant informed appellee that he was not Marie’s father. Nevertheless, appellee continued to live in the marital home until the parties separated in 1971. During this time it appears that appellee supported Marie and raised her as if she were his child. In 1972, appellant obtained a support order from the Circuit Court of Prince George’s County, Maryland (the state of the parties’ residence at the time) for herself and the children. The order obligated appellee to pay $200 per month for Marie’s support. The Maryland court considered evidence of nonpaternity, including both appellant’s admissions and blood tests conducted pursuant to the proceedings which excluded paternity. However, the court found that the doctrine of laches prevented appellee from denying paternity or avoiding his support obligation, because he continued living with Marie and her mother for three years, supported Marie, and held her out as his child.

In 1974, appellee filed for divorce in Virginia (appellant had become a Virginia domiciliary). The Circuit Court of Fairfax County granted the divorce on October 1, 1974; the grounds were two years’ separation without possibility of reconciliation. The final decree ordered appellee to pay $200 per month per child toward Michael’s and Marie’s support. The Virginia court found, and stated in its decree, “that [appellee] and [appellant] are ... the parents of Marie Chrzanowski, born December 30, 1967.”

Appellant filed a petition for modification of the support order in the Fairfax County court in 1976. Because appellee had moved to Cresson, Pennsylvania, the Virginia court transferred the petition to the Cambria County court for action under RURESA. On March 23, 1977, after holding a hearing, the Cambria County court found the amount of the support award adequate, and also directed that a further hearing be held “to determine whether the original Order of July 28, 1972 in the Circuit Court for Prince George’s County, Maryland, should be awarded full faith and credit” in view of evidence that appellee was not Marie’s natural father. No further adjudications were made until August 12, 1982, when the Cambria County court issued an order granting appellee’s April 22, 1981 petition for blood tests and suspending all existing orders pending the blood tests. Helen Chrzanowski now appeals from this order.

THE FOCUS OF REVIEW

At the outset, we emphasize that the only foreign support order before this Court is the October 1, 1974 decree of the Circuit Court of Fairfax County, Virginia. The record reveals some confusion on this question in the proceedings below; both the parties and the lower court at times referred to the Maryland order as the one under scrutiny. This matter came before the Pennsylvania courts on a petition filed under the Virginia RURESA with accompanying testimony referring to the Virginia decree. If appellant had wished to enforce the Maryland order, she should have filed a RURESA petition in the appropriate Maryland court.

THE APPLICABLE LAW

The ultimate issue in this appeal is whether appellee should be permitted to relitigate Marie’s paternity in the face of a prior adjudication of the issue by the Virginia court and a course of conduct by appellee amounting to an assumption of parental obligations which appellant at this late date (the child is now sixteen) seeks to avoid.

We are guided in this inquiry by two principles. First, the United States Constitution, Art. IV, § 1, requires us to give “Full Faith and Credit to the public Acts, Records, and Judicial Proceedings of every other State.” Secondly, the choice-of-law provision of RURESA, 42 Pa. C.S. § 6747, provides that:

Duties of support applicable under this subchapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

Since the petition sought modification, the law of Pennsylvania as the obligor’s (appellee’s) present domicile governs this action. See also Commonwealth ex rel. Byrne v. Byrne, 212 Pa.Super. 566, 243 A.2d 196 (1968) (Responding state’s law applied in modification action).

FULL FAITH AND CREDIT

The Virginia decree is presumptively valid in this jurisdiction; it constitutes “a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded.” Stambaugh v. Stambaugh, 458 Pa. 147, 151, 329 A.2d 483, 485 (1974) (quoting Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 73, 118 A.2d 144, 146 (1955)). However, the application of the Full Faith and Credit Clause to the child support provisions of the decree is limited to the extent that those provisions are modifiable and therefore lacking in the requisite finality. Silverstein v. Silverstein, 246 Pa.Super. 503, 371 A.2d 948 (1977). As discussed above, RURESA calls for the application of Pennsylvania law to this action. Therefore, we must accord full faith and credit to the Virginia court’s determination of issues which would not be proper grounds for modification of the order in Pennsylvania. A support order may be modified on a showing of a material and substantial change in circumstances since the entry of the prior order. Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982); Lyle v. Lyle, 248 Pa.Super. 458, 375 A.2d 187 (1977) (emphasis added). A modification proceeding cannot be used to relitigate issues adjudicated in making the prior order, because these are not changed circumstances. Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). Paternity is such an issue. It is a circumstance which by its nature cannot change, and it is necessarily adjudicated in entering the initial support order. Norris v. Beck, 282 Pa.Super. 420, 422 A.2d 1363 (1980).

The only other possible grounds for not according full faith and credit to the Virginia decree are that the court lacked jurisdiction, Barnes v. Buck, 464 Pa. 357, 346 A.2d 778 (1975), or that the judgment was procured by fraud, Rubinsky v. Kosh, 296 Pa. 285, 145 A. 836 (1929). The jurisdiction of the Virginia court is beyond question; appellant was domiciled in Virginia at all times relevant to the 1974 proceedings. Appellee does make some very generalized allegations of fraud in his brief, but he points to no specific evidence that the 1974 decree of the Virginia court was fraudulently induced. Indeed, appended to appellant’s brief is a document purporting to be appellee’s divorce complaint before the Fairfax County court. In this complaint, appellee avers “That no children have been born of this marriage” (Appellant’s Brief and Reproduced Record at R.50a). The Virginia court, therefore, conclusively decided the question of paternity in face of a statement by appellee that no children were born of the marriage. The record as a whole does not support a finding that the Virginia court was defrauded. Instead it reveals that the Virginia court had a full knowledge of the facts.

ESTOPPEL

Having concluded that we must accord full faith and credit to the Virginia court’s adjudication of paternity, we further hold that this creditable prior judgment bars appellee from relitigating the issue in Pennsylvania. “[T]he rule of collateral estoppel prevents relitigation of issues of fact or law actually litigated and determined by a valid and final judgment in the first action.” Lebeau v. Lebeau, 258 Pa.Super. 519, 525, 393 A.2d 480 (1978). A support order is necessarily premised on the existence of a parental relationship giving rise to a duty to support. See Norris v. Beck, supra; Armstead v. Dandridge, 257 Pa.Super. 415, 390 A.2d 1305 (1978). The Fairfax County Circuit Court made a finding of paternity and awarded support, and appellee chose not to seek appellate relief in Virginia. He is therefore estopped from challenging that finding at this time. Armstead v. Dandridge, supra; Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978).

Appellee is further precluded from relitigating Marie’s paternity by his long delay in raising the issue at all and by his acceptance and support of the child during that time. See Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976); Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962). Appellee’s conduct constitutes an assumption of parental duties toward Marie regardless of whatever verbal representations he may have made to Marie or to others in the course of his social and professional life. This Court in the above cases found that parental relationships can be established constructively and that such relationships and their concomitant duties merit judicial recognition and enforcement. The policy behind this rule was best expressed in Gonzalez:

Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized. Relying upon the representation of the parental relationship, a child naturally and normally extends his love and affection to the putative parent. The representation of parentage inevitably obscures the identity and whereabouts of the natural father, so that the child will be denied the love, affection and support of the natural father. As time wears on, the fiction of parentage reduces the likelihood that the child will ever have the opportunity of knowing or receiving the love of his natural father. While the law cannot prohibit the putative father from informing the child of their true relationship, it can prohibit him from employing the sanctions of the law to avoid the obligations which their assumed relationship would otherwise impose.

Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. at 312, 390 A.2d at 419 (1976).

We recognize that appellee likely acted as he did out of a desire to keep the family together despite the circumstances of Marie’s birth and that after three years he was disappointed in that expectation. He probably was unaware at that time that his failure to disclaim paternity formally would have lasting legal significance. Nevertheless, we cannot permit appellee to victimize the child by making his willingness to support contingent on the state of his relationship with her mother. We further note that appellant would be severely prejudiced if appellee is now allowed to avoid his support obligation, because it is too late for appellant to proceed against any other putative father for support.

CONCLUSION

We have determined that appellee is not entitled to relitigate the question of Marie’s paternity. Therefore, we vacate the August 12, 1982 order of the Court of Common Pleas of Cambria County. Since that order suspended all existing orders pending blood grouping tests, the effect of its vacation is to reinstate the Virginia support order in full and the March 23, 1977 order of the Cambria County court insofar as that order found no need for an increase in support. Therefore, a remand is not necessary at this time. Our decision is of course without prejudice to appellant’s right to re-petition the court below for modification of the support order based on changed circumstances arising since the entry of the March 23, 1977 order.

McEWEN, J., filed concurring statement.

McEWEN, Judge,

concurring:

I concur in the result of the opinion of the majority for the reason that appellant is estopped from challenging his responsibility for the support of the child.

      . Michael has reached the age of majority and his support is not at issue in these proceedings.

      . RURESA has also been enacted in Virginia. See Va.Code. §§ 20-88.-13 — 20-88.31.

      . This is an appealable order. See Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 558, 193 A.2d 782, 783-84 (1963).

      . It should be noted that, at least according to appellant, appellee made regular payments through 1982 in compliance with the very support orders which he now contests after a long delay, thereby indicating his acceptance of a financial obligation towards Marie after the breakup of his marriage. Appellant’s Brief at 7.


author: MONTGOMERY, Judge:

text:
    472 A.2d 1133
    William EMERICK and Marie Emerick, Appellants, v. Roger Martin CARSON.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1983.
    Filed Feb. 24, 1984.
    Petition for Allowance of Appeal Denied June 12, 1984.

      Stephen B. Harris, Warrington, for appellants.
    Louise Herzel-Betz, Philadelphia, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Plaintiff-Appellants, William Emerick and Marie Emerick, instituted this action in trespass seeking to recover damages for injuries sustained by William Emerick when he was struck by an automobile driven by the Defendant-Appellee, Roger Martin Carson. The jury which considered the evidence attributed 70% of the causal negligence to Appellant William Emerick and 30% of the causal negligence to Appellee. Because the jury found Appellant’s negligence to be greater than Appellee’s, a recovery was denied and the jury did not address the issue of damages. Appellants filed this appeal from the Order of the lower court dated April 5, 1982, which denied Appellants’ motion for new trial and overruled Appellants’ objection to the trial transcript.

The evidence of record established that on October 4, 1978, William Emerick was a passenger in an automobile driven by William Flanagan that became disabled in a ditch when Mr. Flanagan attempted to back around a corner. The car was positioned in such a manner that its rear wheels were in the ditch and its front end was perpendicular to the road. Because it was a wet, foggy night, Appellant and Flanagan stood alongside the car to warn passing motorists of the hazard. Just before midnight, Mr. Carson was driving to work when he came around the corner and saw Mr. Emerick standing in front of the car near the center of the road. The Appellee applied his brakes in an attempt to stop but struck both Appellant and the disabled vehicle, causing severe injuries to both of Mr. Emerick’s legs. Upon admission to Quakertown Hospital, the Appellant stated that he had “quite a bit to drink” about one-half hour before the accident. A blood test taken two or three hours after the accident revealed his blood alcohol level to be .185%.

Appellants first contend that the lower court erred in permitting an expert witness for the defense to testify when the expert’s identity had not been disclosed in answers to interrogatories prior to trial. Pennsylvania Rule of Civil Procedure 4003.5(a)(1) states:

(1) A party may through interrogatories require
(a) Any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.

Pennsylvania Rule of Civil Procedure 4003.5(b) states:

(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.

In the instant case, it is undisputed that the identity of an expert witness for the defense, Dr. Melvin Monroe, was not provided to Appellants until January 23, 1981, the. day that jury selection for the trial had been completed. However, unusual circumstances surrounding this late disclosure, which are set forth in the lower court’s opinion, are quite significant. It appears that Appellee’s original expert witness became unavailable the week before trial, whereupon defense counsel arranged for Dr. Monroe to give testimony, which was substantially similar to that contained in the original expert’s report. After the jury was selected, defense counsel supplied Appellants with Dr. Monroe’s name and later that day gave Appellants’ counsel a copy of Dr. Monroe’s report. In addition, the lower court noted that Appellants’ counsel had the opportunity to take Dr. Monroe’s deposition over the weekend before Appellants’ evidence was introduced on Monday and also had copies of both experts’ reports before Appellants offered evidence. Due to these extenuating circumstances, the lower court allowed Dr. Monroe to testify. We conclude that the lower court correctly refused to apply the drastic sanction of preclusion of Dr. Monroe’s testimony.

In Royster v. McGowen Ford, Inc., 294 Pa.Super. 160, 169, 439 A.2d 799, 804 (1982), our Court considered whether the sanction of preclusion of expert testimony should be granted on the basis that interrogatories concerning such a witness were not timely answered. In Royster, our Court ruled that: “... assuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as the result of a dilatory disclosure. 294 Pa.Super. at 169, 439 A.2d at 804. We find that Appellants have not demonstrated any prejudice as a result of Appellee’s untimely disclosure of Dr. Monroe’s identity. Therefore, we find that the lower court acted properly in allowing Dr. Monroe to testify on behalf of the Appellee.

Appellants next argue that the lower court erred in admitting evidence of Mr. Emerick’s consumption of alcohol on the night of the accident, prior to the time when he was struck by Appellee’s vehicle. After receiving a lengthy offer of proof by Appellee’s counsel on this matter, the lower court concluded that evidence of Mr. Emerick’s drinking could be offered by the Appellee.

It is well-settled that when recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is not admissible, being unfairly prejudicial, unless it reasonably establishes intoxication. See Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979) and cases cited therein. In the instant case, the evidence was more than sufficient to reasonably establish Mr. Emerick’s intoxication at the time of the accident. A blood alcohol test performed on him two to three hours after the accident revealed a blood alcohol level of .185%. At trial, Dr. Melvin Monroe, testifying as an expert witness for the defense, expressed his opinion, within a reasonable degree of medical certainty, that Appellant’s blood alcohol level was approximately .220% at the time of the accident. Dr. Monroe further testified that the effect of a .20% blood alcohol level is euphoria, loss of restraint, loss of motor coordination and impairment of rational decision-making ability. Further, proof of Appellant’s probable intoxication was offered in testimony showing that just before being struck by Appellee’s vehicle, Appellant narrowly avoided being struck by another car, yet remained in the middle of the dark roadway, obviously in an extremely hazardous position. We agree with the lower court’s conclusion that it was reasonable to infer that Appellant’s behavior immediately before the accident was not that which would be expected of a reasonably prudent and sober person under the circumstances. The aforesaid evidence, combined with Appellant’s admission that he had “quite a bit to drink” one-half hour before the accident, and the Appellee’s testimony that he smelled a strong odor of alcohol on Mr. Emerick’s breath, adequately demonstrated the Appellant’s intoxication at the time of the accident. Therefore, we cannot conclude that the lower court erred in admitting evidence of the Appellant’s consumption of alcohol on the night of the accident. Cusatis v. Reichert, supra.

Appellants further contend that the blood test results upon which Dr. Monroe based much of his testimony should have been declared inadmissible for a number of reasons. We find none of these to be meritorious. The blood itself was drawn at Quakertown Community Hospital but the testing was conducted at Allentown Sacred Heart Hospital. Center, where many of Quakertown’s lab studies were routinely sent. The test results were incorporated into Quakertown’s regular medical records and were authenticated at trial by Quakertown’s medical records custodian. The procedure followed for the admission of this evidence was proper, and we reject the Appellants’ arguments to the contrary.

Appellants also claim that Dr. Monroe’s testimony was so seriously flawed as to render it prejudicial to Appellants. This argument obviously goes to the weight to be accorded to Dr. Monroe’s testimony by the jury and not to its admissibility, and is clearly devoid of arguable merit.

We next address the Appellants’ contention that the lower court erred by refusing to charge the jury as follows:

“The conduct of defendant was so beyond the normal standard of due care as to constitute reckless disregard to the safety of others, wanton negligence, wanton misconduct or gross negligence where if there was any negligence on the part of plaintiff as determined by the jury, this would not reduce or bar his recovery whatsoever.”

In its Opinion, the lower court stated that it refused this charge because the evidence simply did not warrant such an instruction and also because of the effect of the Comparative Negligence Act, 42 Pa.C.S. § 7102. The lower court reasoned that the law regarding recklessness, wanton negligence, wanton misconduct and gross negligence has been superseded by the comparative negligence statute. In support of this conclusion the lower court relied on Rutter v. Northeastern Beaver School District, 496 Pa. 590, 437 A.2d 1198 (1981), in which the Pennsylvania Supreme Court purportedly abolished the doctrine of assumption of risk, partly because of the effect of the Comparative Negligence Act. However, as the Dissent noted in Rutter, because only three of the seven members of the Court would abrogate assumption of the risk, this doctrine remains the law of this Commonwealth. See Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977).

It therefore appears that the law in our Commonwealth remains unsettled. However, it is apparent that it would be improper for us to address the question of the effect of the Comparative Negligence Act upon the doctrines of recklessness, or wanton or gross negligence in the instant case, because it is obvious that the lower court was correct in finding that the evidence in this case did not warrant the instructions requested by the Appellants. It is well-established that a trial court should not instruct the jury on law that is not applicable to the facts of the case. Auerbach v. Philadelphia Transportation Company, 421 Pa. 594, 221 A.2d 163 (1966). We deem it noteworthy that the trial judge in the instant case gave the jury extensive instructions concerning negligence and comparative negligence. Included in the charge were instructions relating to reckless driving. The lower court’s charge more than adequately defined the concepts of negligence relevant to the evidence adduced in the case. Therefore, we hold that the lower court did not err in refusing to give the requested instructions nor in refusing to grant a new trial to the Appellants on that basis.

Appellants further claim that the lower court erred by failing to instruct the jury on the “discovered peril” doctrine. This doctrine was defined in Lehman v. McCleary, 229 Pa.Super. 508, 512, 329 A.2d 862, 864 (1974) as follows: “A plaintiff may recover notwithstanding his own negligence if the defendant failed to exercise due care to avoid inflicting the injury after he knew or should have known that the plaintiff was in a position of peril.” In this case there was no evidence to indicate that Appellee knew or should have known that Mr. Emerick was in a position of peril. Appellant himself was the only person who knew or should have known that he was in a perilous position. Therefore, the “discovered peril” doctrine was inapplicable to the facts of the instant case and the lower court correctly refused to give the jury such an instruction. Auerbach v. Philadelphia Transportation Company, supra.

Lastly, Appellants argue that the lower court erred in certifying the trial transcript when the transcript was not prepared by the court reporter who took notes of testimony at trial. The reporter who recorded the trial testimony, Edward Moore, died before the notes had been completely transcribed. The lower court then ordered the Chief Court Stenographer, Raymond Acuff, to transcribe the remaining notes.

Pennsylvania Rule of Judicial Administration 5000.12 provides:

(a) The reporter who takes the notes or monitors the recording of a proceeding shall certify in proper form the accuracy of the transcription.
(b) If a shorthand reporter leaves the jurisdiction of the court, dies, or becomes incapacitated before transcribing any notes, then or later ordered, the president judge of the district shall designate another shorthand reporter to transcribe such notes and certify the transcript. The latter reporter may indicate any reservations or qualifications in the certification.

This Rule, by Order of the Pennsylvania Supreme Court, dated April 28, 1981, was to govern in “... all proceedings thereafter commenced and, insofar as just and practicable, in matters then pending.”

In this case, after the lower court directed the Chief Court Stenographer to complete the notes of testimony and certify the transcript, it held a hearing on the Appellants’ objections to the trial transcript. At that hearing, held on March 26, 1982, the Chief Stenographer testified that he was satisfied that the trial transcript was accurate and that he could certify the entire transcript. Appellant’s counsel was given the opportunity to question the Chief Stenographer as to the transcript, and only questioned one street name which appeared on two pages of the transcript. The insignificant error in the street name was then corrected. Moreover, the trial judge declared at the hearing that he had taken copious notes at trial and, in comparing them with the trial transcript, was satisfied that an accurate record had been prepared. Finally, we note that the Appellants, in raising this issue, fail to point out any aspect of the transcript which may allegedly be inaccurate. In these circumstances, we must conclude that Rule 5000.12(b) was correctly applied by the lower court. Therefore, it is obvious the lower court did not err in certifying the trial transcript and in refusing to grant a new trial on this ground.

Affirmed.

      . We note that in Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979), our Court recognized that blood alcohol tests are undeniably accurate and that their results should be viewed as medical facts.

      . The decision of the lower court may be affirmed on appeal where it is correct on any legal ground or theory. Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972), and cases cited therein.


author: HESTER, Judge:

text:
    472 A.2d 1138
    Thomas ELLISOR, Appellant, v. ALLSTATE INSURANCE COMPANY and Fireman’s Insurance Company.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed March 2, 1984.
    Petition for Allowance of Appeal Granted Aug. 3, 1984.

      William C. Passodelis, Pittsburgh, for appellant.
    James R. Hartline, Pittsburgh, for appellees.
    Before ROWLEY, WIEAND and HESTER, JJ.
   HESTER, Judge:

On September 12, 1977, appellant, Thomas Ellisor, was employed by Unity Builders, Inc. (hereinafter “Unity”) as a carpenter. On that particular date, as was customary, Frank King and Jim King, two other employees of Unity, rode in a pick-up truck to appellant’s house so that the three men could ride together to the job site. This truck was owned by one of Unity’s principals, Fred Vanzin, and used regularly by Frank King to transport material, tools and equipment, along with employees, to and from job sites.

Prior to reaching the job site and while detained at a traffic light, the rear of their truck was struck by another motorist. As a result of this accident, appellant sustained injuries to his neck and shoulders. These injuries prevented him from returning to work.

The pick-up truck in which appellant was riding was secured under the Pennsylvania No-Fault Motor Vehicle Insurance Act by Firemen’s Insurance Company (hereinafter “Firemen’s”). Firemen’s also provided Workmen’s Compensation Insurance for Unity. Appellant’s own no-fault insurance carrier was Allstate Insurance Company. Pursuant to a Commonwealth Court Order, appellant was awarded $184.57 per week in Workmen’s Compensation benefits as a result of this accident.

When Firemen’s refused to pay work loss benefits to appellant, he filed separate Complaints in Assumpsit in the Court of Common Pleas of Allegheny County against Firemen’s and Allstate, his carrier, for work loss benefits equal to the difference between actual lost wages and Workmen’s Compensation payments received. Appellant and appellee, Firemen's, filed motions for summary judgment. Appellant’s motion was granted against Allstate and dismissed against Firemen’s. Judgment was entered against Allstate in favor of appellant for work loss benefits in the amount of $15,000.00, the policy limit. Firemen’s motion for summary judgment was granted and judgment was entered in its favor against appellant. Appellant filed this appeal from that portion of the order granting summary judgment in favor of Firemen’s. Allstate did not appeal.

Appellant argues that he is entitled to work loss benefits under the No-fault Motor Vehicle Insurance Act from both his own carrier, Allstate, and his employer’s carrier, Firemen’s. Inasmuch as Fred Vanzin owned five motor vehicles at the time of the accident, appellant further contends that the individual limits on each vehicle can be “stacked” so that Firemen’s is obligated to pay in excess of the fifteen thousand dollar policy limit on each vehicle.

Section 204(a) of the Pennsylvania No-Fault Motor Vehicle Insurance Act sets forth the priorities for determining the applicable security for payment of basic loss benefits:

§ 1009.204 Source of restoration benefits

(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:

(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

40 P.S. § 1009.204(a).

If 204(a)(1) does not apply under the facts of the case, the injured party must look to §§ 204(a)(2), (a)(3), (a)(4) and (a)(5) in succession for the appropriate security.

Section 204(a)(1) provides that if an employee is injured within the scope of his employment while a passenger in a motor vehicle provided by his employer, that employee must first seek basic loss benefits from the security covering the employer’s vehicle. Upon initial review, therefore, it appears that Firemen’s, the carrier of security for the pick-up truck, must pay work loss benefits as per appellant’s request.

There is one restricted instance, however, where an employer’s carrier is not obligated to pay basic loss benefits for an employee injured while occupying the employer’s vehicle within the scope of employment. This restriction was delineated in Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980) wherein the decedent’s personal representative sought the difference between decedent’s Workmen’s Compensation benefits and both survivor’s and work loss benefits from his employer’s no-fault motor vehicle insurance carrier. In reviewing § 303 of the Pennsylvania Workmen’s Compensation Act, the Wagner court was of the opinion that an employer’s obligation to pay Workmen’s Compensation benefits represented his exclusive liability to employees. In comparing an employer’s obligation under the Workmen’s Compensation Act and the No-Fault Act, the Wagner court commented on § 303 of the former act as follows:

This section, which was enacted five months after passage of the No-Fault Act admits no exceptions; the liability of an employer to an employee is limited to the Workmen’s Compensation Act. Id., 492 Pa. at 159, 422 A.2d at 1064.

It was recognized that benefits payable under the No-Fault Act by an employer to an employee were irreconcilable with the exclusivity effect of the Workmen’s Compensation Act. The Wagner court addressed this problem by deferring to the judgment employed in Turner v. Southeastern Pennsylvania Transp. Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978). There, statutory construction rules were considered to conclude that the later-enacted of two conflicting statutes promulgated by the same General Assembly shall prevail. Statutory Construction Act, Act of May 28, 1937, P.L. 1019, Art. IV, § 65, 46 P.S. § 565. The Turner court commented further that had the legislature intended to carve an exception from the exclusivity clause of the Workmen’s Compensation Act for an employer’s payment of no-fault benefits, such an exception would have been incorporated in the 1974 amendments of § 303. No exception would be implicated by the Turner court.

Many subsequent opinions have cited Wagner and solidified the rule that an employee, who is injured within the scope of his employment while occupying his employer’s vehicle, is entitled only to Workmen’s Compensation benefits from his employer. He may only recover work loss benefits from security provided in § 204(a)(2)-(5). Motley v. State Farm Mut. Auto. Ins. Co., 502 Pa. 335, 466 A.2d 609 (1983); Boothman v. Prudential Property and Casualty Ins. Co., 304 Pa.Super. 137, 450 A.2d 139 (1982); Augostine v. Pennsylvania Nat. Mut. Casualty Ins. Co., 293 Pa.Super. 50, 437 A.2d 985 (1981). Having recovered Workmen’s Compensation benefits from his employer’s carrier, appellant may recover work loss benefits from Allstate only. 40 P.S. § 1009.204(a)(2). Allstate is appellant’s personal no-fault insurance carrier and second in priority under § 204(a). This further precludes appellant from recovering from those forms of security beneath Allstate in the priority line set forth in § 204(a)(3)-(5).

We are compelled to address one remaining issue. Appellant contends that he is entitled to work loss benefits from Firemen’s due to the fact that the vehicle in which he was injured was individually-owned by Fred Vanzin and not by appellant’s employer, Unity. Therefore, the payment of Workmen’s Compensation benefits by Unity does not preclude the recovery of no-fault benefits through Yanzin’s carrier.

In Gradler v. Prudential Property and Casualty Ins. Co., 464 F.Supp. 575 (1979), the plaintiff was injured while riding as a passénger in a truck owned by the president of the corporation by which the plaintiff was employed. In holding that the plaintiff was injured “while occupying a vehicle furnished by his employer”, the Gradler court considered the facts that the truck was used to haul materials and supplies for the corporation, tool boxes were attached to the sides of the truck for business reasons, the owner of the vehicle owned 50% of outstanding shares in the corporation and the owner of the vehicle was president of the corporation and actively orchestrated business activities. It was not important that the president owned the vehicle and used it primarily for personal, non-business purposes.

Here, the pick-up truck was used primarily for business purposes. It was owned by one of two principals of the corporation who actively engaged himself in the business. There is no evidence to reflect that the pick-up truck in question or the remaining trucks in the fleet were used by Vanzin or King for anything but business-related functions. We are convinced that the vehicle here was used in a more business-related fashion than was evident in Gradler. In that case, we will follow course in holding that the vehicle in which appellant was injured was “furnished” by his employer under § 204(a)(1). As a result, appellant’s employer is not liable for no-fault benefits due to its carrier’s payment of Workmen’s Compensation benefits to appellant.

Judgment affirmed.

      . Our disposition of this appeal makes it unnecessary to address this “stacking” issue. Had the proper disposition required attention to this issue, however, we would defer to this court’s opinion in Antanovich v. Allstate Ins. Co., 320 Pa.Super. 322, 467 A.2d 345 (1983). In prohibiting stacking, Antanovich ascertained the General Assembly’s intent in promulgating the Pennsylvania No-Fault Motor Vehicle Insurance Act. The General Assembly’s intent to prohibit "stacking” was derived from limits of recovery imposed on work loss, replacement services and survivor’s loss, from the unlimited recovery of basic medical and rehabilitation costs which make “stacking” unnecessary, from the unavoidable conclusion that "stacking” would eliminate the need to file an action in tort while the Act provides for tort actions to recover damages outside statutory limits. Additional bases are discussed by the Antanovich court justifying the prohibition of stacking. Antanovich is a scholarly and thorough disposition of the “stacking” issue. Were we compelled to address this issue, Antanovich would control.
      Appellant raises a second "stacking" issue. He argues that § 204(a) sets forth a cumulative priority of sources for no-fault benefits; therefore, upon payment by one source of minimum benefits, the following source may be tapped to cover loss in excess of minimum benefits. As our disposition shows, appellant’s own carrier (Allstate) is the only available source under § 204(a). Firemen’s is the insurer for appellant’s employer. Insofar as Firemen’s is excluded from paying no-fault benefits due to its payment of Workmen’s Compensation benefits, it is not a source for benefits under §§ 204(a)(3) and (4). Whether § 204(a) provides for cumulative priority is not a relevant issue where there exists only one source for benefits under that section.

      . 40 P.S. § 1009.101 et seq., July 19, 1974, P.L. 489, No. 176.


author: SPAETH, President Judge:

text:
    472 A.2d 1141
    COMMONWEALTH of Pennsylvania v. Joseph BYRD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed March 9, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from a judgment of sentence for forgery, altered, forged or counterfeit documents and plates and attempted theft by deception. Appellant makes two arguments in support of his contention that his right to a speedy trial was violated. Because we find both arguments meritless, we affirm.

The complaint was filed on September 17, 1980. Therefore, under Rule 1100, the Commonwealth was required to bring appellant to trial by March 16, 1981. However, on August 5, 1981, by an order not challenged here, the time for trial was extended to December 21, 1981, and the case was listed for trial on October 16, 1981. Also on August 5, appellant was held for court and permitted to sign his own bail.

On October 14, 1981, appellant, who was in custody in the Philadelphia county prison on other charges, advised his prison soeial worker that his case was listed for trial on October 16. The social worker notified the Clerk of Courts Office of the Philadelphia Common Pleas Court of appellant’s location and requested a “bringdown” so that on October 16 appellant would be transported from the county prison to court.

Despite the social worker’s request, appellant was not transported to court on October 16, and a bench warrant was therefore issued. When it was learned at the bench warrant hearing that appellant had been in custody, the bench warrant was withdrawn. The Trial Commissioner then scheduled the case for January 7, 1982 (beyond the December 21, 1981, run-date), adding “EPD” (earliest possible date) below the new trial date on the court continuance sheet.

On November 12, 1981, the Commonwealth filed a petition under Rule 1100 to extend the time within which to commence trial. After hearing on the petition, the trial court excluded 13 days, on the ground of appellant’s unavailability between October 16 and October 29; calculated an amended run-date of January 4, 1982; and granted an extension permitting appellant to be tried on or before January 18, 1982. Appellant was tried on January 7, 1982.

Appellant’s first argument is that the trial court erred in excluding 13 days. Rule 1100(d) allows any period of delay that results from the unavailability of a defendant to be excluded in determining the period for commencement of trial. Appellant argues that since he was in custody when the bench warrant was issued and the Clerk of Courts Office had been notified of his location, and since there was no showing that the Commonwealth could not have determined his location through the exercise of due diligence, the 13 days should not have been excluded.

We are not persuaded by this argument. When a defendant who is on bail and who has notice of a scheduled court proceeding in his case fails to appear in court at the appointed time, he has violated the conditions of his bail, and the Commonwealth is entitled to count any period of delay as excludable time under Rule 1100(d); a showing of due diligence is not required. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). Upon his incarceration, appellant should have notified the Commonwealth of his change of address. Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982). Appellant’s notification to his prison social worker, who, in turn, notified the court of appellant’s location, did not satisfy the requirement of Pa.R. Crim.P. 4013(c), which requires written notice to the “issuing authority, the clerk of courts, the district attorney and the court bail agency____” As Justice NIX stated in his Opinion in Support of Remand in Commonwealth v. Patrick, 487 Pa. 16, 21-22, 407 A.2d 382, 385 (1979): “Appellant’s assertion that he notified his probation officer of his address change, even if true, would not satisfy the requirement of rule 4013(c) ____” Although appellant’s social worker did notify the Clerk of Courts Office to request a bringdown, no evidence indicates that the District Attorney was aware of appellant’s detention. Indeed, when the bench warrant was requested, the assigned Public Defender present in the courtroom did not object to the Commonwealth’s request nor did he advise the Commonwealth’s attorney that appellant was being held in custody.

Here appellant took a risk that he could notify the proper authorities by means other than those required by Rule 4013(c). Had appellant been successful, his “unavailability” would never have become an issue in this case. However, appellant was not successful and we are therefore asked to find that appellant’s attempted notification somehow negates the finding of his “unavailability.” We find no reason to accept appellant’s argument; to do so would mean rewarding him for failing to do what he should have done and compromising judicial efficiency by allowing the result of this failure to delay his trial.

Appellant’s second argument is that the trial court erred in extending the time for trial to January 18, 1982. A petition to extend the time for commencement of trial under Pa.R.Crim.P. 1100 may be granted

only upon a record showing: (1) the “due diligence” of the prosecutor, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business

Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345 (1976). The question, therefore, is what the record here shows.

At the hearing on the petition for an extension, before the trial on January 7, 1982, the assistant district attorney stated the Commonwealth’s position that there were 13 excludable days, bringing the new run-date to January 4, 1982, and also, that there were grounds for an extension from January 4 to January 7:

... it’s our further position that we would call — we could call Dave Lawrence, who would stipulate that he got the earliest possible date consistent with the Court’s business. N.T. 4.

Defense counsel did not challenge this assertion.

According to appellant, the record contains no support for the extension other than the bench warrant. The trial court states in its opinion that there was a stipulation that after the bench warrant was withdrawn, January 7 was the earliest possible date consistent with the court’s business. Appellant responds that the notes of testimony do not disclose any stipulation. It seems likely that the trial court regarded defense counsel’s failure to challenge the assistant district attorney’s statement, which we have just quoted, as equivalent to a stipulation. We need not consider whether this was justified, for even without a stipulation, the record is sufficient to justify the extension.

Before explaining this conclusion, we note that the Commonwealth argues that appellant has waived his claim that the prosecutor failed to demonstrate that the case could not have been listed earlier than January 7, 1982. However, when the trial court granted the extension, defense counsel immediately moved to dismiss. N.T. 42. Moreover, counsel preserved the issue for appeal by specifically incorporating in his oral post-trial motions “all arguments made prior to trial.” N.T. 76. Thus, appellant has not waived his claim, and we shall examine it on its merits.

“The Commonwealth has the burden, by the preponderance of the evidence, of showing it has met the requirements of Rule 1100(c).” Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979). “In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted.” Commonwealth v. Sharp, 287 Pa.Super. 314, 317, 430 A.2d 302, 304 (1981).

The Commonwealth relies on the Trial Commissioner’s entry in the court file made when the bench warrant was withdrawn and the case was continued, that January 7, 1982, was the “EPD” (earliest possible date). The Commonwealth argues in its brief that this notation, “EPD”, establishes the Commonwealth’s diligence in bringing appellant to trial.

While mere assertions of due diligence and unsupported allegations of fact do not establish cause for an extension of time under Rule 1100(c), Commonwealth v. Ehredt, supra; Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978), here we find sufficient evidence of due diligence to justify the extension. It is true that Lawrence did not, in fact, testify that January 7, 1982, was the earliest possible date consistent with the court’s business. However, the Quarter Sessions file was moved into evidence by the Commonwealth, without objection from defense counsel, and since it was admitted, it is part of the Commonwealth’s evidence, and therefore within the scope of our review. A court may properly take judicial notice of uncontested notations in the court record. Commonwealth v. Lewis, 319 Pa.Super. 33, 465 A.2d 1038 (1983); Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983); Commonwealth v. Bright, 303 Pa.Super. 98, 449 A.2d 596 (1982) . Here, the notation, “EPD”, when considered in the context of the unchallenged offer regarding Lawrence, is sufficient evidence that the Commonwealth secured the earliest available date. This conclusion is reinforced by Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983) , in which our Supreme Court said:

Rule 1100 should not be construed to require Common Pleas Courts with backlogged criminal dockets to devote all their administrative and judicial resources to guarantee that every defendant is tried within the period prescribed by the Rule. It should be sufficient for the court to establish that it has devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial at the earliest possible date consistent with the court’s business. While the trial court may be required to rearrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, or one that implicates the constitutional right to a speedy trial, it should not be required to do so to avoid a delay of under 30 days as here.

502 Pa. at 402-03, 466 A.2d at 1014 (footnotes omitted).

Affirmed.

      . The 13 excludable days extended the run-date to Sunday, January 3, 1982. In computing time, "[w]henever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such days shall be omitted from computation.” 1 Pa.C.S.A. § 1908.


author: WIEAND, Judge:

text:
    472 A.2d 1145
    COMMONWEALTH of Pennsylvania, Appellant, v. Christophe BRIGGMAN a/k/a Christopher Briggman.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1983.
    Filed March 9, 1984.

      Richard P. Myers, Assistant District Attorney, Philadelphia, for Com., appellant.
    Maureen K. Rowley, Assistant Public Defender, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Christopher Briggman was tried non-jury and was found guilty of theft by receiving stolen property and unauthorized use of a motor vehicle following an arrest while driving a stolen automobile on the streets of Philadelphia. The trial court granted Briggman’s motion in arrest of judgment, holding that a pre-trial order granting the Commonwealth an extension of time under Pa.R.Crim.P. 1100(c) had been entered in error and that Briggman’s trial had not been held timely. The Commonwealth appealed. We reverse.

Briggman was arrested and a complaint was filed on May 10, 1980. The Rule 1100 run date, therefore, was November 6, 1980. Trial was listed for October 20, 1980. On that day the defense requested a continuance for the purpose of conducting additional investigation and expressly waived the time requirements of Rule 1100 until December 30, 1980. The case was relisted for trial on December 23. On that date, however, Briggman failed to appear for trial, and a bench warrant was issued for his arrest. On December 29, 1980, the Commonwealth filed a timely petition for an extension of time within which to commence trial; and a hearing thereon was set for January 26, 1981. Before the hearing was held, Briggman had been found. On January 13, 1981, the bench warrant was withdrawn, bail was increased, and a new trial date was set for February 26,1981. After hearing on January 26, 1981, the time for commencement of trial was extended until February 24, 1981, and the trial date was advanced to February 20. On February 20, 1981, the Commonwealth and the defendant were ready to proceed, but the case was not reached. Trial, therefore, was rescheduled for April 27, 1981. The Commonwealth then filed a second extension petition, which was heard on March 26, 1981 before the Honorable Maurice Sporkin. At this hearing it was stipulated that on February 20, 1981, when the case had not been reached, the District Attorney had requested and received the earliest possible trial date, i.e., April 27, 1981. It was also stipulated that on February 20, 1981, a case having a run date of February 27, 1981 had been called for trial prior to the instant case. As a result of this hearing, Judge Sporkin granted an extension until April 28, 1981. Trial was held and Briggman was found guilty on April 27, 1981 before the Honorable Marvin R. Halbert. Subsequently, Judge Halbert granted a defense motion in arrest of judgment because, in his judgment, Judge Sporkin had erred in finding that the Commonwealth had exercised due diligence in bringing the defendant to trial. He concluded that the February 20th calling of a case having a run date three days later than the instant case was inconsistent with the exercise of due diligence and required that Briggman be discharged.

It is by now well settled that a court may grant an extension of time to commence trial under Pa.R.Crim.P. 1100(c) where judicial delay prevents the Commonwealth from bringing a defendant to trial within the mandatory period despite its due diligence.

“[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the ‘due diligence’ of the prosecution, and (2) the certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and reasons why the delay cannot be avoided.”

Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976). See also: Commonwealth v. Selig, 317 Pa.Super. 533, 538, 464 A.2d 450, 452 (1983); Commonwealth v. Harris, 315 Pa.Super. 544, 551, 462 A.2d 725, 729 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 422, 455 A.2d 678, 682 (1983).

In holding that the circumstances of the instant case demonstrated a lack of due diligence, Judge Halbert relied upon decisions of the Superior Court which held that a case of unavoidable judicial delay cannot be made out in the absence of a record showing that the defendant’s case “could not have been scheduled for trial ahead of other cases which did not suffer similar Rule 1100 problems.” Primary among these decisions was Commonwealth v. Crowley, 281 Pa.Super. 26, 421 A.2d 1129 (1980). Others included Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981); and Commonwealth v. Levitt, 287 Pa.Super. 115, 429 A.2d 1126 (1981). See also: Commonwealth v. Lamb, supra; Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982). Contra: Commonwealth v. Suggs, 289 Pa.Super. 44, 432 A.2d 1042 (1981).

More recently, however, the Supreme Court has disapproved this language in reversing the Superior Court’s decision in Commonwealth v. Crowley, supra. In Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983), the Supreme Court held that “Commonwealth v. Mayfield does not require the Commonwealth to exhaust the possibility of rearranging overcrowded dockets to accommodate the Rule 1100 run dates regardless of that rearrangement’s effect on other matters.” Id., 502 Pa. at 395, 466 A.2d at 1010. In support of its holding, the Court said that the requirement of Mayfield that court delay be unavoidable

“must be given a realistic construction. A rigid requirement that the Courts of Common Pleas, particularly in urban areas with severely crowded criminal and civil dockets, must continually arrange and rearrange their schedules to accommodate the 180 day rule, would be ill-advised.
It may be possible, in an abstract sense, to arrange a crowded court calendar to insure that every criminal defendant is tried within 180 days. However, such a rigid system requires eliminating a realistic mechanism for scheduling civil cases, or giving weight to those who await trial in prison for lack of bail. Finally, trial judges, prosecutors, and defense attorneys would have to be available at all times to try defendants whose 180 days are about to run.
... Rule 1100 was designed to promote the administration of criminal justice within the context of our entire judicial system, not to render that system hostage to its own closed logic. The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice. See, e.g., Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980) (dissenting opinion, Larsen, J., in which Flaherty, J. joined).”

Id., 502 Pa. at 400-402, 466 A.2d at 1013-1014 (footnote omitted).

The record in the instant case discloses that Briggman twice caused trial delays. The first trial delay was caused by a defense requested continuance on October 20, 1980 in order to permit additional investigation. The second trial delay was caused by defendant’s failure to appear on December 23, 1980. The delay of which defendant now complains resulted from the court’s inability to reach the case on February 20, 1981. It is clear from the record, therefore, that the delay in commencing Briggman’s trial was not caused by the Commonwealth. Even if it were the District Attorney who determined the order in which cases were to be called on February 20, 1981 — the record does not show that it was — we are unwilling to equate the earlier calling of another case having a three day later run date with a lack of due diligence in the instant case. Cases need not be tried solely and precisely according to age. Although age is a factor to be considered, some discretion regarding the order in which cases are to be called must be left to the trial courts and/or the District Attorney. Other factors, such as the severity of the offense, the availability of witnesses, the availability of counsel, and whether the defendant is incarcerated, must also be considered. Commonwealth v. Suggs, supra, 289 Pa.Super. at 56, 432 A.2d at 1048.

Here, the Commonwealth had twice been ready to proceed but was prevented from doing so by the defendant. On the third trial date, the record shows that the Commonwealth was again ready to proceed but was prevented from doing so by the inability of the assigned judge to hear the case. Under these circumstances, it cannot be said that the Commonwealth failed to exercise due diligence. Rather, the failure to reach and try the case on February 20, 1981 must be attributed to judicial delay. When the District Attorney requested the earliest possible trial date and the court set the case for trial on April 27, 1981, the requirements of Mayfield were met and Judge Sporkin properly granted the Commonwealth’s request for an extension.

“Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society.’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.”

Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-370 (1981) (emphasis added). See also: Commonwealth v. Dunbar, 503 Pa. 590, 599, 470 A.2d 74, 78 (1983).

Reversed and remanded for consideration of undecided issues raised in appellant’s post-verdict motions. Jurisdiction is not retained.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 3928.

      . Briggman, who had been released on bail, failed to appear for a preliminary hearing on May 15, and a bench warrant for his arrest was not served until May 23. On July 15, 1980, Briggman also failed to appear for arraignment and was not found until August 1. The defense concedes that these periods were excludable and resulted in an adjusted run date of December 1. Because of subsequent events, however, these facts do not figure in the calculations on which our decision turns.


author:
MONTEMURO, Judge:
      CAVANAUGH, Judge,

text:
    472 A.2d 1149
    James J. McCANN and Patricia McCann, H/W, Appellants, v. AMY JOY DONUT SHOPS, A DIVISION OF AMERICAN SNACKS, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1983.
    Filed March 9, 1984.
    Petition for Allowance of Appeal Denied Sept. 7, 1984.

      William D. Marvin, Philadelphia, for appellants.
    B.E. Zuckerman, Norristown, for appellee.
    Before SPAETH, President Judge, and CAVANAUGH, McEWEN, BECK, MONTEMURO, MONTGOMERY and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order denying appellants’ motion for a new trial, entered in the Court of Common Pleas, Montgomery County.

On March 20, 1975, appellant, James McCann, suffered severe gastritis, leading over the next five days to a flareup of an existing ulcer. As a result of his condition, he underwent surgery which involved the removal of a portion of his stomach. Appellants brought this action against appellee because Mr. McCann had consumed one, and a portion of a second, cruller and a soft drink, which had been supplied by appellee on the evening prior to the onset of his illness. In this action, based on negligence and strict liability, appellants claim that the crullers supplied by appellee were excessively greasy and that consumption of them caused Mr. McCann’s ulcer to flare up. Mr. McCann’s wife, Patricia, claims damages for loss of consortium.

The case was tried before a jury, which returned a verdict in favor of appellee. A motion for a new trial was timely filed, and denied.

Arguments on appeal relate solely to strict liability. Specifically, appellants argue that in its charge to the jury, the trial court erred in 1) including “unreasonably dangerous” as an element of strict liability; 2) charging that contributory negligence was a complete defense to strict liability; and 3) giving an instruction on the uncalled witness rule.

In order for appellant to be entitled to a new trial, the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965); Riesberg v. Pittsburgh and Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962).

We have carefully examined the record before us and have concluded, for the reasons described below, that no reasonable jury could have found that appellants were entitled to recover because causation, an essential element of a strict liability claim, was not in evidence. Consequently, we find it unnecessary to pass on the question of whether the challenged instructions were fundamentally erroneous; however, assuming arguendo that each was, we fail to see how such instructions might have been responsible for the verdict. Jones v. Montefiore Hospital, supra; Riesberg v. Pittsburgh and Lake Erie R.R., supra.

Appellants assert that causation was established by the testimony of their expert medical witness, Dr. Crone. They offer the following testimony as presenting sufficient evidence of causation. There is no dispute that their portion of the testimony is the sole purported evidence of causation in appellants’ case.

Q. Based upon that history and examination of Mr. McCann, did you form an opinion within a reasonable degree of medical certainty regarding the cause of this ulcer episode that Mr. McCann had surgery for?
A. Well, as I stated in this report, I said that from the history noted above it would seem that Mr. McCann had healing of the ulcer that was diagnosed in 1968 and did not require any medication for anything resembling an ulcer from 1971 until the ingestion of the donuts in 1975. It is my opinion that even though someone has apparent healing of a peptic ulcer, that recurrence can occur when there are certain aggravating circumstances.
Then I went on to say that “It does appear that the ingestion of the greasy donuts could have been such an aggravating circumstance.”
Then I went on to say, “The ingestion of these donuts apparently caused an acute gastritis which, in turn, caused an increased acidity and spasms of the stomach.” (N.T. April 16, 1980, pp. 96-97)

There is no question that appellants’ expert never stated that he believed “to a reasonable degree of medical certainty” or that “in his professional opinion” the pastries appellant ate caused his gastritis. Instead, Dr. Crone stated that “The ingestion of these donuts apparently caused an acute gastritis ...” The use of the word “apparently” might not necessarily be fatal if we could look to the expert testimony in its entirety and find that it expresses reasonable certainty. See e.g. Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976).

This is hardly the case here. In fact, the statement quoted in the paragraph above represents the most unequivocal thing said by Dr. Crone in regard to causation. Dr. Crone’s other statement that “It does appear that the ingestion of the greasy donuts could have been such an aggravating circumstance”, certainly does not buttress appellants’ argument, and also does not qualify as competent evidence. Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954). As our Supreme Court stated in Smail v. Flock, 407 Pa. 148, 152, 180 A.2d 59, 61 (1962): “[I]t is not enough to say that something could have happened. Anybody can guess.”

In holding as we do, we do not behave capriciously. The requirement that expert, medical testimony be expressed with reasonable certainty is well settled and supported by valid policy considerations. The rationale for the rule was discussed in some detail by our Supreme Court in McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971).

The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that that condition was legally caused by the defendant’s conduct---- Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.
Judgment, affirmed.

CAVANAUGH, J., files dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. Following a verdict for the defendant, appellants sought a new trial asserting in their briefs and arguments three allegations of error. The motion for a new trial was denied and the present appeal based on the same issues was pursued. I would find that the trial court erred in charging the jury that contributory negligence is a defense to strict liability. Berkebile v. Brantly Helicopter, 462 Pa. 83, 337 A.2d 893 (1975) and that error was also committed when the court gave the uncalled witness charge in inappropriate circumstances. Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972). I would further find that both errors were clearly prejudicial and would, therefore, grant a new trial.

The majority, without passing on the merits of the only issues presented on appeal affirms the trial court in the denial of a new trial on the ground that the erroneous instructions could not have been responsible for the verdict. The majority finds that the expert medical testimony was not expressed with reasonable certainty and presumably concludes that for this reason a verdict for appellant could not properly be reached. I must disagree for a number of reasons.

I

The rule that error must be harmless does not give a court on review the right to search the entire record to determine if there is any unpreserved error to justify finding assumed, or found error to be, nevertheless, harmless. Here, the trial court sent the issue of causation to the jury. Appellee, through his trial attorney apparently found no error in this since he stated that he was satisfied with the instructions save for the refusal of his single request for binding instructions. Nor does the majority show where in the trial record any assertion was made that the medical causation issue was insufficient to create a jury question. Consequently, I believe the majority reached its dispositive issue in violation of the most fundamental precepts of the waiver doctrine under Pennsylvania law. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

II

In bypassing the preservation principle, the majority places Amy Joy in a better position than they would be if the appellee had carefully preserved the medical causation issue. Let us suppose that objection had been made at trial, and to the charge, that there was not competent evidence as to medical causation and that this argument was preserved in post-trial motions and on cross appeal to this court (in the context of a claim that even if McCann is able to show error which would merit the grant of a new trial, the lack of sufficient evidence of causation would prohibit the grant of a new trial since the remedy for insufficiency is not the grant of a new trial, but affirmation of the judgment). I submit that if appellee had done all those things we would have had to disagree — for the remedy for improperly permitting incompetent evidence is not to affirm a judgment or grant judgment n.o.v. but only to grant a new trial, since it is the law of this Commonwealth that judgment cannot be entered on a diminished record. In Rodgers v. Sun Oil Co., 189 Pa.Super. 559, 151 A.2d 673 (1959) in a case where evidence was improperly considered as proof of negligence the court stated:

The lower court properly refused to enter judgment for the defendant; judgment n.o.v. could not have been entered on the diminished record after elimination of the incompetent testimony of the plaintiff [citing cases] and the grant of a new trial was the only alternative.

Accord: Hughes v. John Hanna and Sons, 187 Pa.Super. 466, 144 A.2d 617 (1958); Finkleston v. Kapnek, 184 Pa.Super. 174, 133 A.2d 310 (1957).

Similarly, in a case dealing with the precise issue addressed by the majority, our Supreme Court, through Mr. Justice O’Brien, concluded, after finding inadequate causative medical testimony; “[b]ecause Mrs. McMahon’s doctor’s testimony was not made with sufficient certainty, it was not legally competent evidence and a new trial must be granted.” (Emphasis added.) McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971). See also Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 101 A.2d 638 (1954). I, therefore, believe that, even if the majority was correct in reaching and deciding the causation issue, the conclusion that no new trial should be granted is erroneous.

Ill

I disagree with the majority in its conclusion that the expert medical testimony did not present sufficient evidence of causation. In the leading case of Menarde v. PTC, 376 Pa. 497, 103 A.2d 681 (1954) Justice Chidsey stated the standard for sufficient expert testimony as to medical causation, “[mjoreover the expert has to testify not that the condition of the claimant might have, or even probably did, come from the accident, but that in his professional opinion the result came from the cause alleged.” (Emphasis added)

It is true that this simple formula has, in more recent years, been complicated by the implied requirement that the witness must be asked if he has an opinion “with reasonable medical certainty”. See, for example, Walsh v. Snyder, 295 Pa.Super. 94, 441 A.2d 365 (1981); Commonwealth v. Alston, 269 Pa.Super. 573, 410 A.2d 849 (1979); Ranieli v. Mutual Life Ins. Co., 271 Pa.Super. 261, 413 A.2d 396 (1979). One may ask what usage or clarity this phrase adds for, indeed, there are no degrees of certainty and the only issue is the basic one of, “What is your opinion?”. But, no matter, since counsel in our case used the proper new phrase in asking the question and so long as the question is responsively answered and an affirmative opinion given it suffices. What then is the shortcoming? As the majority states, Dr. Crone answered the crucial question in part, “[tjhen I went on to say, 'the ingestion of these donuts apparently caused an acute gastritis which, in turn, caused an increased acidity and spasms of the stomach.’ ”

I must disagree with the majority that the use of the word “apparently” weakens in any way the expert opinion. It may, in fact, be read to strengthen it, since a first meaning of this word is “clear or manifest to the understanding” Webster’s Collegiate Dictionary. My reading of Dr. Crone’s testimony leads me to conclude that it fully meets our requirements as to expert medical opinion. See also Walsh v. Snyder, supra.

IV

While the majority speaks to the degree of medical certainty issue in its disposition, it also alludes to the issue in a different fashion wherein it states that “causation, an essential element of a strict liability claim, was not in evidence.” (Page 342.) Further suggestion that this may be the ground for the majority disposition is found in the conclusion that all of appellants’ allegations of error “relate solely to strict liability.” (Page 342.) Initially, I disagree with the latter conclusion since the “uncalled witness” claim of error clearly relates to both the strict liability and negligence theories. But, more basically, I believe that strict liability causation and medical causation are two different issues, not to be confused. The rule as to strict liability has been cogently stated:

Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff’s injuries.
Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).

As pointed out in Berkebile there is injury without a defect (developing diabetic shock from eating sugar) and sometimes there is a defect without causation (sustaining an eye injury while not wearing defective safety glasses). In our case, we have evidence of a defect (greasy donut) and an injury (acute gastritis and its aftermath) and the problem is the link between the two. Although this is really a dual issue of strict liability causation and medical causation they need only be answered by one opinion so long as the more strict standard of proof is used. Thus, since I believe the medical standard (“In my opinion” or “In my opinion based upon reasonable medical certainty”) represents the more stringent measure of proof I conclude proof that the testimony was more than adequate to present the strict liability theory to the jury.

      . Although we recognize that credibility is for the jury to determine, Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), we note that Dr. Crone’s testimony on cross-examination was as follows:
      Q. I’ll try to ask that again. It’s not possible, then, for you to say to a reasonable medical certainty that there was anything defective about the donut which cause his ulcer flare-up; is that correct?
      A. Well, I’ll answer it in that I have no direct knowledge of anything being wrong with the donut.
      Q. So then you couldn’t give such an opinion without more knowledge of the donut and its contents; would that be correct.?
      A. That’s right.
      (N.T. April 16, 1980, p. 105)

      . There is no dispute that Dr. Crone did not testify that the pastry was a "substantial factor” in bringing about the harm. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

      . In many cases, the two "causation” issues may be easily separated. In a case where there is a claim of an arthritic condition as a result of a fall caused by defective equipment, for example, there may be a question; (A) whether the alleged defect in the equipment was the cause of the fall and (B) whether, as a result of the fall, the claimant suffered arthritis.


author: MONTEMURO, Judge:

text:
    472 A.2d 1154
    COMMONWEALTH of Pennsylvania v. Charles S. GASKIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed March 9, 1984.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Com., appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Montgomery County. The questions presented are:

(1) Whether the sentencing judge erred by considering improper factors during the imposition of sentencing?
(2) Whether the sentencing judge failed to take into account the appellant’s financial resources and the nature of the burden that payment of a $2000.00 fine would impose, when determining the amount and method of payment of the fine?
(3) Whether the sentence imposed by the sentencing judge was unduly harsh and excessive under the circumstances?

The underlying facts are as follows: The appellant was arrested on July 31, 1981, for the unlawful possession of heroin with intent to deliver same. He was charged with violation of the Controlled Substances, Drug, Device and Cosmetic Act, Pa.Stat.Ann. tit. 35 §§ 780-113(a)(16) & (30). On January 6, 1982, the appellant entered a plea of guilty pursuant to a limited plea agreement. The plea agreement provided that:

The [appellant] will plead to ... possession of heroin with intent to deliver and actual delivery of heroin, and the limited plea agreement arrived at between the Commonwealth and the defense is as follows, that the sentence of the Court would not exceed a period of incarceration of three to ten years____ There is no agreement whatsoever on fine and Court costs. (N.T. January 6, 1982, pp. 2-3).

After an extensive colloquy on the record, the court accepted the appellant’s plea as made knowingly, intelligently, and voluntarily.

The sentencing hearing was held on April 2, 1982, subsequent to the sentencing judge’s receipt of the pre-sentence investigation report. The court heard the testimony of the defendant and a defense witness, as well as the arguments of counsel. The sentencing judge, after placing on the record a statement of his reasons, imposed sentence on the appellant. The sentence was to pay the costs of prosecution, a fine of two thousand ($2,000.00) dollars, and to undergo imprisonment for not less than three (3), nor more than ten (10) years in a state correctional institution. The appellant filed a timely motion to modify sentence which was denied. This appeal followed. We vacate the judgment of sentence and remand for resentencing for the reasons which follow.

The appellant asserts several contentions on appeal. First, the sentencing judge made statements on the record indicating reliance on impermissible sentencing criteria. These statements relate to:

(a) The proximity of the appellant’s residence to the sentencing judge’s residence, and
(b) The proximity of the drug sale to a local school.

Second, with regard to the fine imposed, the sentencing judge failed to comply with the standards set forth in Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980), which require the court, before imposing a fine, to determine that the appellant is able to pay it. Third, that considering all the circumstances the sentence imposed was excessive. We shall discuss the appellant’s contentions seriatim.

It is well established that sentencing is a matter vested in the sound discretion of the trial court, whose determination must be respected unless it is a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin 466 Pa. 118, 351 A.2d 650 (1976). A sentence may be set aside even where it is within the statutory guidelines, where appropriate reasons for the sentence imposed do not appear on the record. Edrington, supra; Riggins, supra; Martin, supra. Moreover, it is sufficient to render a sentence invalid if it appears from the record that the trial court relied in whole or in part on an impermissible factor. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Commonwealth v. Kostka, 276 Pa.Super. 494, 419 A.2d 566 (1980).

In reviewing the sentence imposed in the instant case, we are guided by the test set forth by our supreme court in Bethea, supra:

In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge’s comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.

474 Pa. 580, 379 A.2d at 106-107. Our reading of the record disclosed the following comment made by the sentencing judge with regard to the proximity of appellant’s residence to his own residence:

[DIRECT EXAMINATION OF APPELLANT]
[BY MR. HENNESSEY:]
Q. When you were out of jail, where were you living?
A. 409 Fort Washington Avenue, Fort Washington.
THE COURT: He was living about about two and a half blocks from me. That’s where he was living.
(N.T. April 2, 1982, p. 4)

This is the only such reference in the over forty (40) pages which comprise the sentencing transcript. While the sentencing judge would have been better advised not to make such a passing reference, we are convinced from our review of the entire record that the sentencing judge did not rely in whole or in part on this factor.

The following excerpts from the sentencing transcript reveal remarks which were made by the sentencing judge, with regard to the proximity of the drug sale to a local school:

[DIRECT EXAMINATION OF APPELLANT]
[BY THE COURT:]
Q. Do you realize that you had an opportunity to have a good high school education in Upper Dublin High School and you blew out? And you realize that you live in a very good neighborhood with good neighbors. And you realize that you live a block and a half from Fort Washington Elementary School where a sale of heroin occurred. And you realize that you have been previously involved in drugs in Montgomery County____
Now tell me how I can feel any kind of sympathy, particulary since a block and a half from the elementary school at Fort Washington Avenue and Highland Avenue a drug sale took place.
(N.T. April 1, 1982, pp. 13-14). (Emphasis added)
A. ... people that I was associated with are not teenagers or I have never been involved with teenagers, period, where to the effect to involve them in drugs.
Q. ... if some very mature-looking teenager walked up there and you needed an actual transfer and delivery and money so that you could perpetuate your habit and do some other things, that person would get the drugs just as these men did on this particular occasion. No one is accusing you of being a major heroin distribution point in this country. But I can assure you, I don’t look very kindly upon this transfer occurring a block and a half from the Fort Washington Elementary School in Upper Dublin regardless of what rationalizations take place. And I know where you live. And there are all kinds of kids around there, including kids in your own household.
(N.T. April 2, 1982, pp. 15-16). (Emphasis added)
[DIRECT EXAMINATION OF GWEN HENRY, APPELLANT’S NIECE]
BY THE COURT:
Q. You can understand, Gwen, that I don’t look too kindly on the fact that there is an elementary school a block and a half from where he lives and that there was a transfer, admittedly at night, but there’s no saying what happened when the police weren’t around and when informants and intermediaries weren’t there.
A. Well, I want to say that I don’t think he would ever sell anything to a child because the twins and the kids have so many friends, and he’s always made a distinction between his clientele of people and his constituents are really those — he never has intermixed with myself, my sisters, my aunts, my counsins, friends. He’s never mixed that with, you know, that part of life with us. And I would never think that he would sell any substance to anyone that wasn’t man or woman enough to know what they were doing.
Q. The trouble is that heroin even in the strongest man makes your willpower totally incapable of resisting youself man, woman or child.
(N.T. April 2, 1982, p. 28). (Emphasis added)

A fair reading of the remarks by the sentencing judge reasonably indicates that he may have been influenced by the proximity of the drug sale to the local elementary school. This information was not properly before him as it had absolutely no relevance to the crime charged, because the drug sale took place at night time at appellant’s home. That these repeated remarks indicate the sentencing judge relied upon the proximity of the local elementary school to the drug sale when imposing sentence, is corroberated by the admission of the sentencing judge that, “[t]he location of the elementary school ... could [not] be ignored.” (Trial court Opinion, at p. 5).

Accordingly, after applying the Bethea test, we conclude that the sentencing judge considered impermissible factors in sentencing and that appellant’s sentence must be vacated and the case remanded for resentencing. Resolution of the first issue presented on appeal is dispositive, therefore, we need not reach the remaining issues. However, since the case must be remanded for resentencing, one final observation is in order.

Although the plea agreement in the instant case provides for no maximum whatsoever as to fine, the sentencing judge is required to determine before imposing the fine that the appellant is able to pay it. See Commonwealth v. Schwartz, supra, 275 Pa.Super. at 116-117, 418 A.2d at 639. In the instant case, the sentencing judge had in his possession the pre-sentence investigation report (hereinafter P.S.I.), which stated “[t]he [appellant] has neither financial assets nor liabilities.” (P.S.I., at p. 50). Furthermore, the sentencing judge remarked on the record, “[y]ou [appellant] don’t have any visable employment record except self employment, living from hand to mouth all of these years.” (N.T. April 2, 1982, p. 17). In light of the foregoing, there was clearly insufficient information in the record for the sentencing judge to determine that the appellant had the ability to pay the fine imposed.

The sentence is vacated and the case is remanded for resentencing in accordance with this opinion. This court does not retain jurisdiction.