author: BECK, Judge: BROSKY, Judge,

text:
    627 A.2d 789
    COMMONWEALTH of Pennsylvania v. Thomas E. URBANSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1993.
    Filed July 8, 1993.

      Aaron C. Finestone, Philadelphia, for appellant.
    Anthony Y. Pomeranz, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before BECK, POPOVICH and BROSKY, JJ.
   BECK, Judge:

We decide, inter alia, whether Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992), invalidated the entire implied consent provision of the driving under the influence statute, 75 Pa.C.S.A. § 1547(a). We conclude that it did not and therefore affirm the trial court.

In this appeal from the judgments of sentence imposed for third degree murder and related DUI offenses, appellant claims that the results of his blood tests were inadmissible and, therefore, he is entitled to a new trial. In addition, appellant asserts that the Commonwealth failed to present sufficient evidence of malice to sustain a conviction for third degree murder of his wife or to prove that his actions were the direct cause of the victim’s death. Lastly, appellant alleges ineffective assistance of counsel based on his trial attorney’s failure to object to evidence regarding appellant’s driving record and his relationship with his wife.

One night on a fourth of July holiday, appellant and his wife, Kathleen Urbanski, picked up Francis Sbyzynski in front of his home. The three of them, along with another man already in appellant’s car, drove off to get some beer. Appellant was the driver and Kathleen sat in the front passenger seat; Sbyzynski sat in the back seat with the other male. As appellant drove on Interstate 95, his wife began to argue with him about his erratic and high-speed driving. The argument escalated and appellant continued to drive recklessly until Kathleen opened her car door in an effort to get appellant to stop the car and let her drive. Appellant then pulled over and allowed her to take the wheel. The foursome stopped at appellant’s employer’s house where appellant apparently got some money for beer. After the brief visit with his employer, during which the others stayed in the car, appellant insisted on driving and pushed Kathleen over to the passenger seat. Again appellant began driving dangerously and again his wife argued with him. In response, appellant hit the brake and gas pedals off and on, causing his passengers to jerk forward and backward in the car, all the time driving at an excessive rate of speed.

Within minutes the car crossed the oncoming lanes in the road and crashed violently into a fence and then a huge boulder beyond the fence. As a result of the impact, Kathleen Urbanski was killed.

At the hospital, appellant’s blood was tested by medical personnel pursuant to standard hospital procedure. Two hours later, police officer Fred Potter arrived at the hospital and observed that appellant appeared to be very intoxicated, with bloodshot eyes, a strong odor of alcohol about him and slurred speech. In addition, appellant was uncooperative with hospital staff. Officer Potter then ordered that appellant’s blood be tested; the test revealed a .10% alcohol content and the presence of cocaine. Based on observations at the scene and the hospital, police executed a search warrant in order to get access to the hospital records, particularly the laboratory blood test taken by medical staff shortly after the crash. The test revealed that at approximately one hour after the crash, appellant’s blood alcohol level was .215% and contained traces of cocaine.

The results of both tests were admitted at trial as was the testimony of Francis Sbyzynski who recounted the heated arguments between appellant and his wife and described appellant’s behavior while driving the car. Appellant was found guilty of third degree murder, homicide by vehicle while driving under the influence, driving under the influence of alcohol or a controlled substance, aggravated assault and recklessly endangering another person. He was sentenced to four and one half to ten years in prison and ten years probation.

Relying on Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992), appellant insists that the results of his blood tests should not have been admitted into evidence because the statute authorizing them recently was declared unconstitutional by our supreme court. Appellant misinterprets the holding in Kohl.

There are two sections to the statute which empowers law enforcement personnel to test the breath, blood and urine of persons in this Commonwealth. The law, commonly referred to as the implied consent provision, provides:

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

75 Pa.C.S.A. § 1547(a).

In Kohl, our supreme court addressed the constitutionality of § 1547(a)(2) and held that where police administer chemical tests of breath, blood or urine only upon knowledge that an individual has been involved in an accident causing injury or death, violations of the Fourth Amendment and the Pennsylvania Constitution occur. The Kohl court ruled that police must have independent facts to establish probable cause to believe that the operator of the vehicle was driving under the influence.

In his brief, appellant asserts that Kohl nullified § 1547(a) completely. We conclude that this is an overbroad reading of the case. The Supreme Court invalidated subsection (2) only and in so doing reaffirmed the validity of subsection (1). The court, in voiding subparagraph (2), stated:

Under § 1547(a)(2), however, the officer must only have reasonable grounds to believe that the operator of the vehicle was involved in an accident involving a fatality or in which treatment at a medical facility was required. No knowledge of sufficient facts and circumstances to warrant a belief that the operator has committed a crime is required.
A search or seizure conducted under circumstances in which there is no probable cause to warrant a belief that a crime has been committed is constitutionally impermissible. Indeed, if the police officers had observed any signs of intoxication, the blood tests would have been authorized by 75 Pa.(IS.A. § 15Jf7(a)(l).

Kohl, 615 A.2d at 316. (emphasis supplied).

Clearly, Kohl invalidated only § 1547(a)(2) and left subsection (a)(1) intact. Therefore, where a police officer has reasonable grounds to believe that a person is driving under the influence of alcohol or a controlled substance, he or she may require an individual to submit to a chemical test without a warrant. We turn now to the tests administered to appellant.

With respect to the second test, the one ordered by Officer Potter some three hours after the crash, the record is clear that the test was predicated upon Officer Potter’s observations of appellant. Officer Potter testified:

He had a very strong odor of alcoholic beverages coming from his breath. He had bloodshot eyes. He was — words were slurred and thick-tongued. And he was giving the people operating the cat scan difficulty and they wanted him to stay still and he was squirming and the machine—
******
My opinion is based on the strong odor of alcoholic beverages, the slurred speech, his obvious impairment to me by the alcohol that he would have been unsafe to operate a motor vehicle.

The observations made by Officer Potter are sufficient to establish probable cause to believe appellant had been driving under the influence. See Commonwealth v. Welshans, 397 Pa.Super. 439, 580 A.2d 379, 381 (1990), aff'd, 529 Pa. 571, 605 A.2d 1222 (1992). We are convinced that the second blood test was authorized by § 1547(a)(1) and, therefore, was admissible.

With respect to the first blood test, we note that the taking of this test does not trigger constitutional concerns. The test was performed by medical personnel pursuant to standard hospital procedure; the staff was not acting as an agent of the police when the test was ordered. See Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086, 1091 (1988) (prohibition against illegal search and seizure applies only to actions of government authorities). Further, the results of the test were given to police only after probable cause to believe that appellant was driving while intoxicated had been established. See Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394, 399 alloc. denied, 517 Pa. 604, 536 A.2d 1329 (1987) (where probable cause exists prior to inquiry into hospital records, test results admissible). Here the results of the first test were given to police in compliance with a search warrant supported by an affidavit of probable cause.

We find that the Kohl decision is not applicable here and that the evidence of appellant’s blood alcohol levels properly was admitted at trial.

Appellant next makes two arguments as to sufficiency of the evidence. His first argument requires little attention. Appellant asserts that there was insufficient evidence to prove that his actions were the direct cause of his wife’s death. The trial judge, sitting without a jury, found appellant guilty of driving under the influence. The witnesses at trial established that appellant drove recklessly and erratically despite his wife’s protestations. One hour after the crash, appellant’s blood alcohol level was .215%, dangerously above the legal limit. The evidence was more than sufficient to prove causation. See Commonwealth v. Dixon, 346 Pa.Super. 36, 498 A.2d 1358 (1985).

Appellant also claims that there was insufficient evidence of malice to support a conviction for third degree murder. Malice, defined as a recklessness of consequences, a mind regardless of social duty, an unjustified disregard for the probability of death or great bodily harm or an extreme indifference to the value of human life, see Commonwealth v. Carroll, 412 Pa. 525, 531, 194 A.2d 911 (1963), can be established by a high blood alcohol content, the absence of weather or road conditions that would explain an accident and an awareness of potential danger. See Commonwealth v. Taylor; 461 Pa. 557, 337 A.2d 545, 548 (1975). Further, a finding of malice is supported where an accused drives recklessly immediately prior to the accident and ignores the request of another to stop driving. Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, 442, alloc. denied, 525 Pa. 644, 581 A.2d 571 (1990). In his brief, appellant characterizes this set of facts as “nothing more than an automobile accident, in which a car runs off the highway.” We disagree; the properly admitted trial testimony reveals a dangerously high blood alcohol level and a clear road surface combined with erratic driving and repeated refusals to give up the wheel. Appellant was or should have been aware of the danger that could result from driving so fast and so recklessly, especially after having had so much to drink. Even if he was not aware, his wife repeatedly reminded him of the danger and asked many times if she could drive the car. But appellant recklessly disregarded her pleas and the probability of a tragic result. His conduct in the car was the very type of conduct that the definition of malice describes. The evidence clearly was sufficient to establish malice.

Appellant’s final allegation of error is framed as an ineffectiveness challenge. Specifically, appellant claims that his attorney was ineffective for failing to object to questions about his marriage and testimony that he was driving without a license. In order to establish ineffectiveness, appellant must 1) present an arguably meritorious underlying claim, 2) establish that trial counsel had no reasonable basis designed to effectuate his interest and 3) prove that prejudice inured to appellant as a result of his counsel’s act or omission. Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575, 587 (1991). Appellant has not sustained his burden.

At trial, appellant took the stand in his own defense and told the court that he and his wife were arguing over things other than his driving on the night of the crash. He also testified that he would not let his wife drive because she did not have a valid driver’s license and that the crash was caused by his wife’s act of grabbing the steering wheel and losing control of the car. On cross-examination, the prosecutor questioned appellant about whether he possessed a valid Pennsylvania driver’s license on the night of the incident. When appellant testified that he had a valid license, the prosecutor offered, in rebuttal, oral testimony of an investigating officer who received from Harrisburg confirmation that appellant’s license was indeed suspended on the date in question. Appellant now claims that his trial counsel should have objected to the rebuttal testimony because it was not offered in the proper manner, i.e., it was not authenticated. The evidence was presented orally and no documentation was offered.

It may be that the technical manner in which the evidence of appellant’s suspended license was offered was improper. However, even if testimony about appellant’s suspended license was improperly admitted, appellant has failed completely to show how he was prejudiced by the admission. The evidence of his intoxicated condition was overwhelming and we are confident that the admission of his suspended license did not influence the verdict in this matter. Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349, 1352 (1992).

Next appellant argues counsel was ineffective for failing to object to questions about his marriage. After appellant testified that it was not his own but his wife’s actions that caused the crash, the prosecutor asked him whether or not the two were separated on the date of the crash. Appellant responded that they were living together but admitted that Kathleen had filed for divorce. The record reveals that appellant’s trial counsel objected to this line of questioning, but was overruled by the court. Therefore, an ineffectiveness claim on this issue cannot be sustained.

Judgment of sentence affirmed.

BROSKY, J., files a concurring Opinion.

BROSKY, Judge,

concurring.

I agree with the majority’s opinion except for the finding that the evidence should be regarded as sufficient to prove the element of malice necessary for a conviction of third degree murder. However, as there are cases which tend to support the proposition, I must acknowledge them and concur.

I should state initially that I do not condone or think lightly of driving while under the influence. The dangers of such conduct are well documented, and this case is a testimonial to it as well. However, I do not favor the practice of “squeezing” criminal conduct to fit into definitions of crimes for which it was unlikely meant. Murder, of any degree, is among the most egregious and serious offenses found in our crimes code, and, as the name of that offense suggests, ordinarily encompasses either intent to kill or malicious design. The word “malice” generally connotes evil disposition and a desire to injure or harm, something greater than carelessness or recklessness. When one reviews the definition of malice in the dictionary this general connotation is reinforced. In Webster’s New Collegiate Dictionary, 1980, malice is defined as a “desire to see another suffer that may be fixed and unreasonable ... intent to commit an unlawful act or cause harm without legal justification or excuse.” The legal dictionary provides only a slightly broader definition. There you find phrases like “with an intent to inflict an injury,” “the condition of mind which prompts one to take a life of another without just cause or provocation. A willful or corrupt intention of the mind. It includes not only anger, hatred and revenge, but also every other unlawful and unjustifiable motive.” Black’s Law Dictionary, Fifth Edition p. 862. Although appellant’s actions in driving in his state of intoxication smacks of belligerent stubbornness and a disregard for safety, I do not believe the record in the present case bears out an intent to injure, a desire to see another suffer or a revenge, anger or hatred motivation. Rather, as is usually the case in DUI related homicides, the fatal accident is more likely a function of extremely poor exercise of judgment.

This is not to say that such conduct should go unpunished, the conduct of appellant is clearly criminal under our law, and should be punished according to law. However, there are crimes delineated in the vehicle code and crimes code which more properly encompass the conduct which took place in the present case. Indeed, perhaps in response to a growing concern for DUI related fatalities and a perceived “hole” in the classification of crimes, the legislature created the offense of homicide by vehicle while driving under the influence. 75 Pa.C.S.A. § 3735, enacted December 15, 1982. That section would seem to have been designed to cover the conduct which occurred here and to create a more serious classification of homicide by vehicle than that which previously existed. In contrast, we stated in Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990), that “it is rare for a death caused by vehicular incident to give rise to a conviction of third-degree murder, ...” Yet, if the present case represents a third degree murder then it would seem that a great many if not virtually all DUI related fatalities could qualify for such treatment.

Despite the majority’s attempt to make this accident appear as a more serious incident of driving under the influence, it does not figure to rise to a level of conduct designed to injure or kill the occupants of the vehicle. Indeed, since appellant remained in the vehicle it seems highly unlikely that he had a malicious intent towards his passengers unless he was also attempting to injure or kill himself. Absent this inference the cause of the fatality more probably appears to be an intoxicated individual who displays the kind of impaired judgment and driving ability unfortunately often displayed by such intoxicated individuals.

The majority’s opinion suggests that it is “recklessness of consequences, a mind regardless of social duty” for appellant to have driven in his state of intoxication. However, this argument could be made, to varying degrees, as to any individual who drives after having ingested alcohol and would seem to have been factored into the offense of homicide by vehicle while driving under the influence. In fact, it is most likely the belief that a homicide by vehicle which is caused by one’s intoxication is more reprehensible than a non-DUI related homicide by vehicle which led the legislature to create the offense in the first place and provide for a greater punishment.

The other theme present in the opinion is a suggestion that the degree of one’s intoxication might influence whether one has committed only homicide by vehicle while DUI or third degree murder. However, in so doing, the majority’s position holds the appellant, or one in the same position as the appellant, to a standard of consciousness, conscientiousness and judgment that a sober individual would be held to. Although ideally an intoxicated individual would be able to assess his degree of intoxication and its probable effect on his driving ability, this is somewhat unreasonable given that the individual placed in this position is admittedly intoxicated. Generally speaking, the greater one’s state of intoxication the greater the impairment to one’s ability to exercise rational judgment. Thus, although it is probably true that the greater a person’s level of intoxication the greater the threat he will pose to others, it is probably just as true that his ability to recognize this fact and act accordingly will be diminished as well. Since malice is a question of one’s state of mind it does not necessarily follow that simply because the risk of a fatality increases with the degree of a driver’s intoxication that the driver feels any malice at all towards those placed at risk. Instead the greater the intoxication the less likely the driver will exercise sound judgment or appreciate fully the risk he is creating. This seems directly contrary to the state of mind of malice.

It is notable that the cases which originated this theory for third degree murder occurred I believe when the present crime of homicide by vehicle while driving under the influence was not available. It is entirely possible that these cases would not have surfaced had that option been available to the prosecutors or the courts. Absent that offense it is possible that a more culpable or egregious incident of driving under the influence created a desire to treat those incidents more severely. To accomplish that goal in the absence of § 3735 those incidents would have to be squeezed into a more serious classification of crime, like third degree murder.

This is not to suggest that there are no incidents of homicide by vehicle while DUI that could and should be punishable with a third degree murder conviction. For instance if a drunken driver knowingly sped headlong into a group of pedestrians the gross disregard for almost certain injury or fatality would be sufficient, in my opinion, to satisfy the element of malice. The same would be true if the drunken driver engaged in highly dangerous “daredevil” driving or playing a dangerous game such as “chicken,” (driving straight at another vehicle to see who would “chicken out” and veer away first), which resulted in a fatality. However, those are cases of a much higher degree of disregard for the risk of more certain injury or death than is presented here.

In contrast to the facts of this case are the examples given in Commonwealth v. Mayberry, 290 Pa. 195, 138 A. 686, 688 (1927), which appears to be one of the first cases discussing a murder conviction for a vehicular homicide. The court said there “[h]ad the appellant at bar dashed down Highland avenue and wantonly, recklessly and in disregard of the consequences hurled his car against another, or into a crowd or over a person on sidewalk or street....” then he should be punished as if he had accomplished death by wantonly and wickedly firing a gun. While the above quote rings true, it seems to me that to find the evidence presented here sufficient for a third degree murder conviction, particularly under the rationale provided, is to negate the need for the crime of homicide by motor vehicle while driving under the influence altogether. Any incident which would satisfy those elements would appear to also satisfy those required for third degree murder, or involuntary manslaughter. Since it is contrary to rules of statutory construction to presume that the legislature is creating a wholly superfluous crime, I believe that third degree murder in a vehicular context requires a showing of malice more similar to the definitions quoted above. Malice, as the term implies, should be defined as an actual desire to injure or kill or cause suffering to another or conduct that suggests a disregard for almost certain death or injury such that it is tantamount to the same. I do not think the evidence here established such malice. However, I cannot argue with the fact that certain cases, most notably Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975) and Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990), would appear to support the majority’s holding. Consequently, I must concur.

      . Appellant and Sbyzynski were injured and treated at a nearby hospital.

      . "Reasonable grounds” has been construed to mean probable cause; therefore, police must have probable cause to believe a suspect has been driving under the influence in order to require testing. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 322 (1985).

      . Appellant did not challenge the propriety of the warrant at trial; however, the same probable cause that gave police authorization to order the second test supports the warrant that gave police access to the results of the first test.

      . Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), appears to be one of the first cases where a murder conviction was upheld in the DUI related fatality scenario.

      . Involuntary manslaughter might be regarded as more appropriate than third degree murder. Commonwealth v. Aurick, 342 Pa. 282, 19 A.2d 920 (1940), allowed a conviction for involuntary manslaughter in a vehicular fatality situation which did not involve an intoxicated driver.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    627 A.2d 797
    INSURANCE CO. OF the STATE OF PENNSYLVANIA, Appellant, v. William S. MILLER.
    Superior Court of Pennsylvania.
    Argued March 11, 1993.
    Filed July 8, 1993.

      Glenn M. Campbell, Philadelphia, for appellant.
    Kent D. Mikus, Lancaster, for appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the August 26, 1992 order denying appellant, Insurance Company of the State of Pennsylvania, post-trial relief and entering a final decree in favor of appellee, William S. Miller. Appellant raises the following issues on appeal:

I. WHETHER THE TRIAL COURT’S FINDING THAT THERE WAS NO KNOWING AND INTELLIGENT WAIVER OF THE HIGHER LIMITS UNINSURED/UNDERINSURED MOTORIST COVERAGE BY DEFENDANT MILLER’S EMPLOYER, KAUFFMAN MOTOR EXPRESS, INC., THUS FINDING ONE MILLION DOLLARS OF UNINSURED/UNDERINSURED COVERAGE APPLICABLE, IS SUPPORTED BY THE WEIGHT OF THE EVIDENCE.
II. WHETHER THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA WHO WAS PAID PREMIUMS BY THE EMPLOYER FOR THE STATUTORY MINIMUM UNINSURED/UNDERINSURED COVERAGE IS ENTITLED TO CREDIT AGAINST WORKMEN’S COMPENSATION BENEFITS PAID TO MILLER FOR INJURIES ARISING OUT OF THE SAME ACCIDENT FOR WHICH HE IS CLAIMING UNINSURED/UNDERINSURED MOTORIST COVERAGE.

Appellant’s Brief at 3. We affirm.

Appellee, an employee of Kauffman Motor Express, Inc. (“Kauffman”), was injured in an automobile accident during the course of his employment. Appellee obtained $25,000 from the insurance company of the negligent driver and thereafter sought underinsured motorist coverage under his employer’s insurance policy with Insurance Company of the State of Pennsylvania (appellant). The named insured on the policy was Richard L. Epler, Jr., the president of Kauffman. Appellant initiated a declaratory judgment action contending that Kauffman had waived uninsured/underinsured motorist coverage in the amount of one million dollars bodily injury coverage and that the limits of underinsured motorist coverage under the policy are $15,000. On October 9, 1991, a board of arbitrators awarded appellee $375,000. Following a bench trial, the Court of Common Pleas of Lancaster County upheld that award. Appellant filed post-trial motions which were denied on August 26, 1992. This timely appeal followed.

Appellant first asserts that the trial court’s finding that appellant’s employer, Kauffman, did not knowingly and intelligently waive the higher limits of uninsured/underinsured motorist coverage is not supported by the weight of the evidence. We disagree.

When reviewing whether a verdict is against the weight of the evidence, a new trial will be granted only where the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and “to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985); Hauseknecht v. Walters, 404 Pa.Super. 85, 90, 590 A.2d 20, 23 (1991).

In 1984, Pennsylvania enacted the Motor Vehicle Financial Responsibility Law (“MVFRL”) which requires insurance companies to provide uninsured and underinsured motorist coverage in amounts equal to the bodily injury liability coverage except where the named insured requests in writing coverage in amounts less than the limits of liability for bodily injury. 75 Pa.C.S. §§ 1733, 1734. The insurance company must inform the named insured that he may reject uninsured or underinsured motorist coverage by signing a specific written rejection form. 75 Pa.C.S. § 1731(b), (c). In addition, § 1791 of the MVFRL provides the method of apprising an insured of the benefits and limits available pursuant to the statute. That section states that:

[i]t shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage or at the time of the first renewal after October 1, 1984, and no other notice or rejection shall be required....

Id. Section 1791 then sets out the precise language required for the notice which informs insureds of the insurers’ statutory responsibility to make certain levels of benefits available and specifies the required amounts. Finally, § 1791 provides that “[y]our signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits you have selected.” Id.

If the insurer strictly follows § 1791 there is a conclusive presumption that the waiver is valid. However, if the insurer does not follow § 1791 then it must establish waiver under the principles enunciated in Johnson v. Concord Mut. Ins. Co., 450 Pa. 614, 300 A.2d 61 (1973). See Byers v. Amerisure Ins. Co., 745 F.Supp. 1073 (E.D.Pa.1990), aff'd, 935 F.2d 1280 (3d Cir.1991) at 1076 (applying Johnson). In Johnson, our Supreme Court established that the waiver must be “affirmatively expressed in writing by the insured,” which must evidence “an express agreement or acquiescence on the part of the insured to delete or relinquish this protection. The statutory mandate may be complied with only by including uninsured motorist coverage or by an affirmatively expressed rejection in writing by the insured. Nothing less will satisfy the statutory obligation.” Id. at 621, 300 A.2d at 65.

In the instant case, the insurance policy issued by appellant provides maximum liability coverage in the amount of one million dollars. The insurance policy did not include either the notice required by § 1791 or the form for rejection or reduction of uninsured or underinsured motorist benefits set forth in § 1731. Nor does the policy specify the uninsured or underinsured motorist benefit coverage limits. Thus, appellant has not complied with the specific statutory requirements of the MVFRL for reducing underinsured or uninsured motorist coverage.

Appellant, however, points to an appendix to the policy, referred to as “Endorsement # 1.” The Endorsement, entitled “Personal Injury Protection Endorsement” and executed by Richard Epler, President of Kauffman, provides

In those states where by statute the Insured is required to purchase Uninsured Motorist Coverage, Underinsured Motorist Coverage or Personal Injury Protection Coverage and does not have the right to reject such coverage, the Company agrees to provide the coverage on the form currently approved for use in the applicable jurisdiction. The limits of liability as respects this endorsement shall be the minimum limits of liability acceptable by statute in the applicable jurisdiction.
In those jurisdictions that allow an Insured to reject his right to Uninsured Motorist Coverage, Underinsured Motorist Coverage or Personal Injury Protection coverage, by its signature affixed hereto, the Insured evidences its intent to so reject.

See Complaint, Exhibit E. Appellant contends that this Endorsement in conjunction with the testimony of witnesses testifying on behalf of appellant demonstrate that Kauffman made a valid election of lower underinsurance motor vehicle coverage limits. We disagree.

In the instant case, no written form was introduced into evidence indicating that Kauffman was informed of the available benefits prior to his alleged waiver of those benefits. Thus, his signature on Endorsement # 1 by itself does not constitute a waiver. This case is similar to Byers v. Amerisure Ins. Co., 745 F.Supp. 1073 (E.D.Pa.1990), aff'd, 935 F.2d 1280 (3d Cir.1991), in which the federal district court, applying Pennsylvania law, held that an insured’s signature did not ratify the reduced uninsured and underinsured motorist coverage provided in the insurance policies and the insured did not waive his rights under the MVFRL. The court reasoned that the insurer did not follow the requirements for waiver of coverage because the application did not contain the statutorily-required language and there was no evidence that the insured was otherwise informed of the available benefits. The coixrt concluded that the insured had not made a conscious decision to reject the enhanced coverage which was available to him.

Moreover, appellant’s attempt to prove through the verbal testimony of three witnesses that Richard Epler, the named insured was made aware of the available benefits and that he knowingly waived them must fail/ Appellant offered the testimony of its insurance agent, Kauffman’s office manager, and an account executive of Kauffman’s previous insurance company. However, the trial court found, and we agree, that the testimony of appellant’s witnesses was equivocal at best and was insufficient to prove that Kauffinan rejected underinsured motorist coverage. Accordingly, the absence of the statutorily-mandated language in the policy at issue and the insufficient testimony of appellant’s witnesses support the trial court’s conclusion that appellant did not meet its burden of proving that Kauffman elected to reduce or reject underinsured motorist coverage.

Appellant next argues that it is entitled to credit against workmen’s compensation benefits paid to appellee for injuries arising out of the same accident for which he received underinsured motorist coverage. This claim is also meritless.

75 Pa.C.S. § 1735 provides:

The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury.

Our Supreme Court recently interpreted § 1735 as follows:

What section 1735 says, then, is that when an insurance company writes a policy concerning underinsured and uninsured motorists, it may not write coverages which reduce the amount it will pay under such policies because the person to be paid is also receiving workers’ compensation benefits for the same injury.

Hackenberg v. Transp. Authority, 526 Pa. 358, 367, 586 A.2d 879, 883 (1991). Accordingly, appellant’s argument must fail.

For the foregoing reasons, we affirm the August 26, 1992 order.

Order affirmed.

      . Appellant later raised this amount from $15,000 to $35,000, the statutory minimum.

      . The named insured may waive full uninsured or underinsured motorist coverage, as long as the amount obtained is at least equal to the minimum statutoiy levels for bodily injury liability coverage. 75 Pa. C.S. § 1734.

      . The statute further provides that:
      [ijnsurers shall print the rejection forms required by subsections (b) and (c) on separate sheets in prominent type and locations. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits.
      75 Pa.C.S. § 173l(c.l).

      . We note that the Johnson decision preceded the enactment of the MVFRL.

      . In fact, the only amount of insurance coverage specified was the one million dollar figure listed as the limit for liability insurance. See Complaint Exhibit A.

      . The trial court stated its reasoning as follows:
      For reasons known only to plaintiff, plaintiff chose not to introduce any testimony by Mr. Epler, the one who actually signed the policy in question on behalf of Kauffman. Instead, plaintiff presented testimony of Linda Sten, an administrator at Kauffman who testified that she spoke with the plaintiff's insurance agent, Tim Good, and advised Mr. Epler which policy to choose. (N.T. 40-41). As to whether Mr. Good informed her that by virtue of signing the endorsement she was reducing Kauffman’s underinsured motorist coverage to $35,000, Ms. Sten testified that she “can’t remember.” (N.T. 40). She also testified that she "probably had some idea of what it was.” (N.T. 42). And that she "couldn’t say whether she understood there was a $35,000 limit on the policy." (N.T. 43). In our view, Ms. Sten’s testimony is equivocal at best on the issue of whether she knowingly and intelligently executed the waiver in question.
      The only other significant testimony presented by plaintiff was that of its insurance agent, Timothy Good. Although Good testified that he presented Ms. Sten the waiver in question and explained it to her, his memory too proved to be faulty as to how these events transpired. (N.T. 32). Accordingly, in light of the stringent burden placed upon plaintiff to prove a knowing and intelligent waiver, we resolved credibility issues against the plaintiff and found that no knowing and intelligent waiver occurred. .
      Trial Court Opinion, 8/26/92, at 6-7.

      . Appellant does not dispute this but instead merely reiterates that a credit against worker’s compensation benefits for coverage in excess of $35,000.00 is “only fair given that premiums were never paid for by Miller's employer, Kauffman, for any additional coverage.” We have already rejected the basis of this argument in our resolution of the first issue.


author: OLSZEWSKI, Judge:

text:
    627 A.2d 801
    Scott A. LOCKE, Appellant, v. Jerry L. CLAYPOOL, Appellee.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed July 8, 1993.

      J. Bradley Kearns, Pittsburgh, for appellant.
    Leo M. Stepanian, Butler, for appellee.
    Before McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Appellant Scott Locke brought this action against Jerry Claypool after sustaining injuries in an accident that occurred outside of Butler. Locke was riding a bicycle on the highway in the early morning hours when Claypool, who was driving an automobile, struck him from behind. We are asked to determine whether the trial court erred in admitting evidence of Locke’s intoxication at the time of the accident. After a careful review of the parties’ briefs and the record below, we reverse and remand for a new trial.

Locke, fifteen-years old at the time, spent the day of July 18, 1986, visiting his brother. Later that evening, he and his brother had an argument. Locke left his brother’s house by bicycle to visit his sister, Becky, who lived on the other side of Butler. Becky was not home, however, and Locke decided to stay overnight with another sister, Carolyn, who lived approximately fifteen miles away on Route 422. Locke rode his bike in the middle of the right-hand lane of the highway because the berm was paved in parts and rocky in others. He was wearing a blue and white shirt, blue jeans, and a tee shirt. As Locke was riding his bike on a downgrade, he saw the lights of a car reflected in wires above him, indicating that a car was approaching. He applied the brakes in an effort to safely reach the berm, but before he knew it, he was struck by a car.

Claypool testified that he was returning from a tavern in Butler where he played bass guitar in a band. He testified that the night was clear and that he was observing the speed limit. He was travelling in the right-hand lane when “out of nowhere,” he saw Locke on the bike about fifteen-to-twenty feet in front of him. He testified that the bike had no reflectors and that he could not avoid striking Locke. He did not see Locke swerve or drive erratically in any way.

Edward Meier, a local police officer, investigated the scene for physical evidence. When he arrived, Locke was in an ambulance which was prepared for departure. Meier testified that as he approached Locke, he smelled the odor of beer, and on that basis ordered a blood alcohol test. Meier acknowledged, however, that he could not conclude that Locke had been drinking that evening, but ordered the test as a matter of course. R.R. at 207(a). The test indicated that Locke had a blood alcohol content of .06%.

Locke brought this action against Claypool seeking to recover damages for the injuries he sustained as a result of the accident. At trial, the Hon. Floyd A. Rauschenberger admitted the results of the blood test into evidence. Charles Winek, a professor of toxicology at Duquesne and Pittsburgh Universities, testified that since the test was taken while Locke was receiving intravenous treatment, Locke’s blood alcohol content was between .075% and .08% at the time of the accident. He also testified that as a minor, Locke was more sensitive to the effects of alcohol than an adult, since alcohol is a “foreign substance” to minors which would induce exaggerated responses to its imbibition. He thus concluded that Locke was impaired for purposes of operating a vehicle on the highway and “really represented a hazard on the highway.” R.R. at 235(a).

A jury found Claypool 17.5% and Locke 82.5% causally negligent, resulting in a verdict for Claypool. Locke’s post-trial motions were denied. On appeal, Locke presents one issue: Was the evidence of his blood alcohol content and expert testimony properly admitted into the trial? Locke contends that the blood alcohol test and expert testimony should have been excluded as highly prejudicial because no corroborating evidence established that he was unfit to operate his bicycle.

As with any evidence, the decision whether to admit evidence of intoxication in a civil trial is subject to an abuse of discretion standard of review. Whyte v. Robinson, 421 Pa.Super. 33, 617 A.2d 380 (1992). The standard for admitting such evidence, moreover, is well-established:

[T]he well-settled law of this Commonwealth is that where recklessness or carelessness is at issue, proof of intoxication is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication.

Id. at 39, 617 A.2d at 383 (citing Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979). Although this rule was established for cases where reckless driving of an automobile was at issue, see Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Gallagher v. Ing, 367 Pa.Super. 346, 532 A.2d 1179 (1987), alloc. denied, 519 Pa. 665, 548 A.2d 255 (1988), it now extends to pedestrians as well. Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973); Whyte v. Robinson, supra; Ackerman v. Delmonico, 336 Pa.Super. 569, 486 A.2d 410 (1984). Our research has revealed no caselaw that applies this standard to the operator of a bicycle. We may do so, however, because bicycles and automobiles are treated identically under the criminal law and the Motor Vehicle Code. See Commonwealth v. Brown, 423 Pa.Super. 264, 620 A.2d 1213 (1992) (bicycle is a “vehicle” under 75 Pa.C.S.A. § 3731, which proscribes persons from driving vehicles while under the influence of alcohol which renders him incapable of safe driving).

A review of the record reveals that the only evidence regarding Locke’s intoxication was: (1) the officer’s testimony that he smelled the odor of beer emanating from the ambulance which housed Locke at the scene of the accident; (2) the blood test, which indicated that Locke’s blood alcohol content was at .06% (a level well below the statutory presumption of unfitness to operate a vehicle); and (3) the expert, who extrapolated the test results and concluded that because Locke was a minor, he would have an exaggerated reaction to alcohol. Locke contends that these factors indicate only that he consumed alcohol, and not that he was unfit to operate his bicycle. We agree.

Our Supreme Court has held that evidence of a driver’s blood alcohol content alone is insufficient to prove intoxication to a degree that renders him unfit to drive. Billow v. Farmers Trust Company, 438 Pa. 514, 266 A.2d 92 (1970) (evidence of driver’s .14% blood alcohol content alone is insufficient). In Ackerman v. Delmonico, supra, this Court explained the rationale behind this rule:

The theory behind allowing a blood alcohol level to be admitted into evidence in a civil case is that it is relevant circumstantial evidence relating to intoxication. However, blood alcohol content alone may not be admitted for the purpose of proving intoxication. There must be other evidence showing the actor’s conduct which suggests intoxication. Only then, and if other safeguards are present, may a blood alcohol level be admitted.

Id., 336 Pa.Super. at 576, 486 A.2d at 414. Thus, in Ackerman, this Court held that evidence of a pedestrian’s .195% blood alcohol content was admissible where there was independent testimony that he drank heavily in the late afternoon and evening before the accident, smelled strongly of alcohol at the time of the accident, slurred his speech, and had an unusually low level of alertness. Id. at 576-577, 486 A.2d at 414. See also Gallagher v. Ing, supra (evidence of intoxication admissible where evidence showed that driver had consumed scotch for a one and one-half hour period, drove his car at an excessive rate of speed, and had a blood alcohol content of .19%). Moreover, this Court has recently stated that the objective criteria normally required to establish intoxication include evidence of “staggering, stumbling, aimless wandering, glassy eyes or incoherent mumbling.” Whyte v. Robinson, supra, 421 Pa.Super. at 41, 617 A.2d at 384 (pedestrian with blood alcohol content of .144% determined after police officer smelled alcohol on his breath insufficient to establish intoxication absent the aforementioned factors).

Here, Locke exhibited no physical conduct which would indicate that he was unfit to operate his bicycle. There is no evidence that he was operating his bike erratically. There is no testimony regarding the amount of alcohol he consumed, that he slurred his speech, or appeared intoxicated. The only independent evidence which might indicate that Locke was intoxicated was a police officer’s testimony that he smelled beer emanating from Locke’s person. Without more, however, this evidence proves only that Locke consumed alcohol; it is insufficient to prove intoxication. See, Whyte v. Robinson, supra, at 39, 617 A.2d at 383. Moreover, in cases that have admitted blood alcohol tests, not only did independent evidence corroborate an inference that the person was intoxicated, but his or her blood alcohol level was above .10%, the statutorily presumptive level of unfitness to operate a vehicle. 75 Pa.C.S.A. § 1547(d)(3). Ackerman v. Delmonico, supra; Gallagher v. Ing, supra. In this case, Locke’s blood alcohol content was .06% at the time of the blood alcohol test. This level is insufficient, by presumption or otherwise, to establish that he was unfit to operate his bicycle. Without any evidence of Locke’s physical conduct which shows that he was unfit to operate his bicycle, his blood alcohol level only indicates that he consumed alcohol. The evidence was therefore inadmissible. Billow v. Farmers Trust Co., supra; Morreale v. Prince, supra.

Claypool argues that the expert testimony independently establishes that Locke was intoxicated at the time of the accident. We disagree. In Gallagher v. Ing, supra, this Court stated: “the ‘other’ evidence necessary to render admissible a blood alcohol content in excess of .10 percent, it has been held, may consist of expert testimony interpreting the significance of the results of blood alcohol tests with respect to unfitness to drive.” 367 Pa.Super. at 353, 532 A.2d at 1183 (emphasis added). The rationale behind this rule is that when a person’s blood alcohol content exceeds .10%, our legislature has determined that he is presumptively unfit to drive. 75 Pa.C.S.A. § 1547(d)(3). The “presumption” of unfitness to drive, however, is inapplicable to civil cases, and a jury may not be instructed regarding the presumption. Suskey v. Loyal Order of Loyal Moose Lodge No. 86, 325 Pa.Super. 94, 472 A.2d 663 (1984). Therefore, expert testimony is helpful to explain the significance of a blood alcohol content above .10%, without reference to the “presumption.” Ackerman v. Delmonico, supra 336 Pa.Super. at 576, 486 A.2d at 414. Here, however, Locke’s blood alcohol content was below any presumptive intoxication level and expert testimony, without any objective indicia that Locke was unfit to operate his bike, is entirely speculative and highly prejudicial.

Moreover, the expert’s testimony “extrapolated” the results of the blood test in three different ways. First, he claimed that because the test was taken some time after the accident, the alcohol was leaving Locke’s system at the time of the test thus resulting in a lower result. Second, he testified that because the intravenous injections into Lock’s bloodstream diluted the effect of alcohol, the .06% test result did not accurately reflect Locke’s blood alcohol content while he was operating his bike. Third, he claimed that Locke’s probable blood test result, .075% to .08%, would create more “exaggerated” conduct on Locke’s behalf, because as a minor his body is not accustomed to the “foreign substance” of alcohol. This Court has viewed this type of expert testimony, which extrapolates blood test results, with skepticism. Schwarzbach v. Dunn, 252 Pa.Super. 454, 461, 381 A.2d 1295, 1298 (1977). We find the expert’s opinion that Locke’s conduct would be “exaggerated” is entirely speculative given the fact that there was absolutely no testimony from the many people that saw Locke that he was unfit to operate his bicycle. This expert testimony, without more, is insufficient to establish intoxication to a point where Locke was unfit to operate his bicycle and should have been excluded.

Since there was no independent evidence corroborating Claypoole’s contention that Locke was intoxicated while operating his bicycle, the possibility is too great that the jury placed undue emphasis on the mere fact that Locke consumed alcohol on the evening of the accident. It is this very possibility that our Supreme Court has admonished our trial courts to guard against. The trial court therefore abused its discretion in admitting any evidence of alcohol consumption in this case. We reverse the judgment in favor of Claypool and remand for a new trial.

Order reversed; remanded for new trial; jurisdiction relinquished.

      . 75 Pa.C.S.A. § 1547, provides, in pertinent part:
      (d) Presumptions from amount of alcohol. — If chemical testing of a person’s breath, blood or urine shows:
      (1) That the amount of alcohol by weight in the blood of the person tested is 0.05% or less, it shall be presumed that the person tested was not under the influence of alcohol ...
      (2) That the amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol ...
      (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731 [relating to driving while intoxicated].
      Although the "presumptions” under this section are not applicable to civil cases, see discussion, infra, civil courts have used this statute as a yardstick in determining whether a litigant was unfit to operate a vehicle. As we note later, however, even if Locke’s blood alcohol content gives rise to a presumption that he was unfit to operate a vehicle, Claypool still must present some evidence, other than Locke’s blood alcohol content, to allow introduction of the blood test. Here, it is undisputed that Locke’s blood alcohol level allows no presumptive inference that he was unfit to operate his bike.

      . The trial court justified the admission of the evidence by considering Locke's "lack of prudent judgment” in riding a bicycle in the dark on a major highway at 2:10 in the morning without reflectors. Whether Locke acted with prudent judgment, however, is a matter of contributory negligence — a question which the jury must decide. The factors cited by the trial court are unrelated to physical manifestations of the effects of alcohol, as opposed to those mentioned below such as slurred speech or erratic behavior.

      . We note that our Supreme Court has also questioned the reliability of testimony which extrapolates blood alcohol content by “relating back” test results in the criminal context. The Court has held that such testimony is insufficient to prove that a person’s blood alcohol was above .10% while he was operating a vehicle for purposes of 75 Pa.C.S.A. § 3731(a)(4) (now amended). Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992); Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992). These cases do not govern the admissibility of such expert testimony in civil cases where reckless driving is at issue. They do support our holding, however, that without any physical manifestation of the effects of alcohol, blood test results and expert testimony extrapolating those results are speculative and prejudicial.


author: POPOVICH, Judge:

text:
    627 A.2d 806
    S. Allen SCHREIBER, Appellant, v. OLAN MILLS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 15, 1993.
    Filed July 12, 1993.

      Douglas P. Yauger, Pittsburgh, for appellant.
    Thomas W. Kirby, Washington, DC, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

We are asked to review the appeal of the order of September 15,1992, granting the preliminary objections in the nature of a demurrer of the defendant, Olan Mills, and dismissing the complaint of the plaintiff/appellant, S. Allen Schreiber. We affirm.

On appeal from an order sustaining preliminary objections in the nature of demurrers, this Court is concerned only with determining the legal sufficiency of the appellant’s complaint. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443, 445 (1969). We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Id.; D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973).

We begin our analysis with the observation that the defendant, a Tennessee-based corporation, operates a nationwide chain of family portrait studios. In securing business, the defendant relies heavily upon “telemarketing”. This practice of soliciting customers, because of the compelling quality of the telephone as a desirable medium for disseminating information, has spawned a rapidly growing billion dollar industry which includes “telemarketing”, phone surveying and soliciting by phone. Nadel, Mark S., Rings of Privacy: Unsolicited Telepho'm Calls and the Right of Privacy, 4 Yale J. on Reg. 99 (1986).

Instantly, a representative of the defendant phoned the plaintiff on November 29, 1989, the result of which prompted the following letter:

Mrs. Linda Borelli
Olan Mills
547 Clairton Blvd.
Pittsburgh, Pa. 15236
Dear telemarketer:
Today, you called us attempting to sell a product or a service. We have no interest in the product or service that you are selling. Please don’t call us again. Please remove us from your telemarketing list and notify the provider of the list to also remove our name and number since we do not appreciate receiving telemarketing phone calls.
We rely on the availability of our phone lines which have been installed for our convenience and not for the convenience of telemarketers. We pay for these phone lines and instruments. You do not. Please don’t tie up our phone lines.
Should we receive any more phone calls from you or from anyone connected with your firm of a telemarketing nature, we will consider that you have entered into a contract with us for our listening services and that you have made those calls to us and expect us to listen to your message on a “for hire” basis.
If we receive any additional telemarketing phone calls from you, you will be invoiced in accordance with our rates which are $100.00 per hour or fraction thereof with a $100.00 minimum charge. Payment will be due on a net seven (7) day basis.
Late payment charge of 1-1/2% per month or fraction thereof on the unpaid balance subject to a minimum late charge of $9.00 per invoice per month or fraction thereof will be billed if payment is not made as outlined above. This is an annual percentage rate of 18%. In addition, should it become necessary for us to institute collection activities, all costs in connection therewith including, but not limited to, attorney fees will also be due and collectible.

Thereafter, two phone contacts caused the plaintiff to bill the defendant for services, which, when not paid, resulted in the institution of a suit to collect $479.00 in fees. Preliminary objections were filed by the defendant in which it argued that the facts alleged in the complaint did not show an intent, on the part of either party or their representative, to enter into a contract.

The court concluded from a review of the record and law that the parties did not enter into a contract for the purchase of the plaintiffs “listening services.” Not only did the court find that there was “no true and actual meeting of the minds,” but, under the circumstances, there was no “ ‘ordinary course of dealing and the common understanding of men[ ] showing] a mutual intention to contract.’ ” Lower Court Opinion at 3, citing Ingrassia Construction Co. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478, 483 (1984). Thus, the defendant’s preliminary objections were granted and this appeal followed.

The sole issue we need to concern ourselves with, in disposing of the case at bar, is whether a binding contract was effectuated between the parties so as to obligate the defendant to pay the plaintiff for his “listening-for-hire” services.

The elemental aspects necessary to give rise to an enforceable contract are “offer”, “acceptance”, “consideration” or “mutual meeting of the minds.” Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 14 A.2d 127, 128 (1940); United Mercantile Agencies, Inc. v. Slotsky, 121 Pa.Super. 1, 182 A. 788, 789 (1936); Com. of Pa., Dept. of Trans. v. First Pennsylvania Bank, N.A., 77 Pa.Cmwlth. 551, 553, 466 A.2d 753 (1983); Restaurant Associates Industries, Inc. v. Anheuser-Busch, Inc., 397 F.Supp. 1213, 1217 (1975); 17A Am.Jur.2d, §§ 16-21 (1991).

Further, when seeking to enforce an agreement, one may look to the “conduct” of the parties to ascertain the acceptance of the agreement. A panel of this Court, when confronted with the question of whether “conduct” is sufficient to constitute “acceptance” of an “offer” for services provided, has held:

It is settled that for an agreement to exist, there must be a “meeting of the minds,” ...; the very essence of an agreement is that the parties mutually assent to the same thing,.... The principle that a contract is not binding unless there is an offer and an acceptance is to ensure that there will be mutual assent____
Notwithstanding the aforesaid, it is equally well-established that “an offer may be accepted by conduct and what the parties d[o] pursuant to th[e] offer” is germane to show whether the offer is accepted.

Accu-Weather, Inc. v. Thomas Broadcasting Co., 425 Pa.Super. 335, 625 A.2d 75 (1993) (Slip Opinion at 5-6) (Citations omitted).

Instantly, it is evident from the tenor of the plaintiff’s communique to the defendant that it was in the nature of a “cease and desist” request rather than an “offer” to “listen ... ‘for hire’ ” to the solicitations of the defendant. As observed by the court on this point:

The sole purpose of the November 29, 1989 letter was to encourage Olan Mills to remove plaintiff from its calling lists — and not to solicit a purchaser for “listening services.” The sole purpose of any additional calls that Olan Mills made to plaintiff was to solicit orders — and not to obtain “listening services.” Consequently, as a matter of law the parties did not enter into a contract.

Lower Court Opinion at 3. We agree.

It is axiomatic that before a contract may be found, all of the essential elements of a contract must exist, e.g., consideration. First Pennsylvania Bank, N.A., supra. There obviously can be no bargained-for-exchange (“consideration”) if one of the parties acts without any intention of binding itself to a contract for “listening services.” There was no “unconditional” manifestation on the part of Olan Mills or its representative that a contract was acknowledged by behavior of the defendant.

Unlike Accu-Weather, Inc., supra, at bar there was no “offer”, “acceptance”, “consideration” or “mutual meeting of the minds” to effectuate the elemental aspects of a contract. See 17A Am.Jur.2d, §§ 16-21 (1991).

Order affirmed.

      . The plaintiff's suit was commenced as a breach of contract action in the arbitration division of the Court of Common Pleas.


author: POPOVICH, Judge: WIEAND, Judge,

text:
    627 A.2d 1186
    Thomas ADAM, Thomas Bailey, Andrew Bakaysa, Charles Bakaysa, John Bakaysa, Edward Barrett, Carl Baum, Clair Baum, Jack Baum, Jack Baumgartner, James Beatty, Carl Beck, Evertt Bell, Gregg Bell, Thomas Bell, Albert Bell, Donald Bennett, Fred Bennett, Raymond Bennett, Richard Bennett, Ronald Bennett, Barney Bensky, Robert Berlin, John Bishop, Harry Biss, L. Carl Blake, Walter Blume, William Blume, Gray Bond, Dennis Bouch, Ronald Bouch, Darryl Bowser, Paul Bracken, Robert Bracken, Christopher Bracken, Christopher Brink, Daniel Brink, Glen Brink, James Brink, Dale Brooks, Edgar Brothers, James Buck, William Buck, Richard Byers, Ernest Cauldwell, Brian Cameron, Jeff Cameron, Kevin Cameron, Albert Chiplis, Franklin Clark, Roy Clark, William Clark, James Clutter, William Collins, Joseph Craft, John Curry, Edwin Daugherty, Edward Davies, Terry Davies, Richard Delp, Bernard Diehl, Norman Diehl, Charles Dillon, Donald Dimmick, Robert Dufour, David Eger, William Eneminger, Gary Farmery, William Farmery, Douglas Feaster, Irvin Feaster, Jay Fishel, William Fleming, Delwyn Fry, Donald Fyock, Gregory Gardner, Myrel Gardner, Thomas Gardner, Roger Geist, Kenneth Gilbert, Ronald Gill, Joseph Glass, Jr., Joseph Glass, Sr., John Gowin, Andrew Haag, Charles Haag, Leslie Hamilton, Russell Harpster, Walter Hauck, Daniel Hewitt, John Hewitt, David Hoover, Richard Hurd, Gerald Hutton, Robert Hutton, Robert Johns, James Johnson, Ronald Johnston, Thomas Kawa, Clair Keller, Jeffrey Kelly, Albert Kitchen, Arthur Kitchen, David Kitchen, George Kitchen, Guy Kitchen, Larry Kitchen, Sherman Kitchen, Jerry Kline, Paul Kovalchik, Sherman Krause, Barry Kruise, Donald Kruise, Ronald Kruise, Terry Kruise, George Kurtz, Danny Kutruff, Melvin Leamer, Andrew Lechene, Robert Lee, Terry Lender, Alan Lewis, David Lewis, Theron Lewis, William Lewis, David Lightner, Kevin Lockett, Byron Long, David Long, Paul Long, Douglas Lucas, Charles Lunger, David Lydic, Ernest Lyons, Thomas Mahaffey, Sterry Mahaffey, Jr., Leonard Martin, Willis Maruna, John Matia, Joseph Mazenko, Jack McCraken, Thomas McCraken, Thomas McElleny, Eldon McGarry, Donald McGarvey, John Thomas McGee, William Wallace McGee, Ronald Meckley, Terry Miller, James Mills, David Moore, James Mowery, Martin Mulhollen, Thomas Nellen, Jerome Nevling, Joel Martin Passmore, Charles Peach, Robert Pearce, Robert Pearce, Charles Pennington, Robert Pennington, Ronald Phillipi, Ivan Pierce, Thomas Pontzner, David Queen, Richard Queen, Robert Reitz, Dennis Robbins, Eugene Romagna, John Rose, Charles Ross, John Ross, Thomas Ross, Randy Rowles, Harry Rogh, Donald Sheeder, Larry Schomo, Robert Schomo, Vernon Simmons, Robert Sinclair, Donald Smeal, Garry Smeal, Phillip Smeal, Robert Smeal, Dennis Smith, John Smith, Robert Smith, Raymond Smyers, Richard Snyder, Joseph Soltys, Thomas Spangle, Duane Spencer, Ronald States, Arthur Stiver, Harold Stiver, Irvin Stiver, Duane Strong, Donald Sunderland, Thomas Swauger, James Taylor, Gerald Timchak, Edward Tkacick, Jerbert Von Scoyoc, Lewis Wagner, Michael Wagner, Ronald Wagner, Russell Wallace, George Warholic, Robert Washic, John Weaver, Daniel Webster, Ellis Westover, Gordon Westover, James Westover, Lemoine Westover, Joseph Whitton, Charles Wilkinson, Frank Williams, Thomas Williams, Robert Witherite, Robert Woods, Michael Wright, Robert Wright, Dale Yarger, Gary Yarger, Kenneth Yarger, Dennis Young, John Young and Larry Young v. David BENJAMIN, Harry Benjamin and Sally Benjamin, a/k/a Sally Gold v. INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Appeal of David BENJAMIN.
    Superior Court of Pennsylvania.
    Argued April 15, 1998.
    Filed June 30, 1993.
    Reargument Denied Aug. 31, 1993.

      Carl A. Belin, Jr., Clearfield, for appellant.
    Claudia Davidson, Pittsburgh, for appellees.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

We are asked to review the appeal of an order (reduced to judgment) of the Court of Common Pleas of Blair County granting a motion for summary judgment against the defendani/appellant, David Benjamin. We affirm.

As an appellate court, the standard by which we assess the propriety of a motion for summary judgment is well-established; to-wit:

... we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Summary judgment should not be entered unless the case is clear and free from doubt. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion.

Lower Lake Dock v. Messinger Bearing, 395 Pa.Super. 456, 577 A.2d 631, 634 (1990).

The facts underlying this case are as follows: On November 6, 1989, two-hundred and twenty-seven employees/plaintiffs of the Benjamin Coal Company filed a complaint against the officers/directors of the Company, one of whom was the defendant/appellant, David Benjamin, president and treasurer of the board of directors. Paragraph 228; see note 2, supra.

The plaintiffs alleged that, despite a work agreement between the union and the Company, they were informed on June 21, 1989, “there was no more work and not to return to the production site.” The plaintiffs claimed, as result of the cessation of operations, they were owed wages (for the period from May 28th to June 21st of 1989) and fringe benefits (vacation time, sickday pay, and monies intended but never used to purchase U.S. Savings Bonds).

The plaintiffs asserted that all monetary items were “wages” entitled to recoupment under Pennsylvania’s Wage Payment and Collection Law, (WPCL) 43 P.S. § 260.1 et seq., the amount of which was $479,022.56. See note 1, supra.

Numerous pleadings were filed before the plaintiffs submitted a motion for summary judgment averring that the defendant, a corporate officer and board member of the Company, was liable personally for the wages and benefits sought to be recovered.

In reply to the motion for summary judgment, the defendant argued that the plaintiffs’ union (United Mine Workers of America) failed to file a claim in the Company’s bankruptcy, an omission which defendant contended foreclosed the plaintiffs from seeking recovery under WPCL. Paragraph 8. Also, the defendant noted that the labor stoppage by the plaintiffs on June 21, 1989, resulted in its “funds” being “frozen” by its banks, and this impaired its ability to meet its payroll obligations to the plaintiffs. Further, the defendant asserted that the work stoppage was violative of the collective bargaining agreement and was the “proximate cause” of “freezing” the Company’s available assets to pay wages, benefits, and prompted the Company to convert its Chapter 11 bankruptcy to a Chapter 7. Defendant’s Answer to Motion for Summary Judgment, Paragraphs 3, 6 & 8.

By order of court, the plaintiffs’ motion was granted and, in the course thereof, the defendant’s argument that the federal Labor Management Relations Act (LMRA) preempted Pennsylvania’s WPCL was found wanting. The court also ruled that the (alleged) conduct of the plaintiffs, subsequent to the termination of employment (on June 21, 1989), did not impact upon the right to recover under WPCL wages earned prior thereto nor was a condition to recovery the filing of a claim in bankruptcy. This appeal followed.

The initial issue we shall address, which is of first impression in this jurisdiction, concerns the averment that federal legislation preempts Pennsylvania’s WPCL because the defendant’s response (defense) to the plaintiffs’ suit for wages “involves the construction of th[e] labor agreement”. Additionally, the defendant contends that the work stoppage by the plaintiffs was violative of the limited “no-strike” clause appearing in Article XXIX of the agreement, and, as such, the federal LMRA is implicated and preempts the field of law to resolve the matter to the exclusion of Pennsylvania’s WPCL. Appellant’s Brief at 30.

Section 301(a) of the LMRA of 1947, 61 Stat. 136, 156, 29 U.S.C. § 185(a) provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

In evaluating the contention of the defendant, we look to Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) for guidance. There the Court concluded that an Illinois employee covered by a collective bargaining agreement, which provided for a contractual remedy for discharge without cause, could enforce a state-law remedy for retaliatory discharge.

In deciding that Section 301 did not preempt Illinois’ wrongful discharge law, the Lingle Court held that the employee’s claim would be preempted if any collective bargaining agreement needed to be interpreted in resolving the claim; to-wit:

Thus, [Allis-Chalmers Corp. v.] Lueck[, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985),] faithfully applied the principle of § 301 preemption developed in [Teamsters v.] Lucas Flour[, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) ]: if the resolution of a state-claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted and federal labor law principles ... must be employed to resolve the dispute.
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Illinois courts have recognized the tort of retaliatory discharge for filing a worker’s compensation claim, and have held that it is applicable to employees covered by union contracts. “[T]o show retaliatory discharge, the plaintiff must set forth sufficient facts from which it can be inferred that (1) he was discharged or threatened with discharge and (2) the employer’s motive in discharging or threatening to discharge him was to deter him from exercising his rights under the Act or to interfere with his exercise of those rights.” Each of these purely factual questions pertains to the conduct of the employee and the conduct and motivation of the employer. Neither of the elements requires a court to interpret any term of a collective-bargaining agreement. To defend against a retaliatory discharge claim, an employer must show that it had a nonretaliatory reason for the discharge; this purely factual inquiry likewise does not turn on the meaning of any provision of a collective-bargaining agreement. Thus, the state-law remedy in this case is “independent” of the collective-bargaining agreement in the sense of “independent” that matters for § 301 pre-emption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement.
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... [W]hile there may be instances in which the National Labor Relations Act pre-empts state law on the basis of the subject matter of the law in question, § 301 pre-emption merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantial rights of a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements. In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is “independent” of the agreement for § 301 pre-emption purposes.

486 U.S. at 405-07, 408-10, 108 S.Ct. at 1881-82, 1883-84 (Footnotes omitted; Citations omitted; Emphasis added).

Moreover, in the usual case in which Section 301 is alleged to preempt state law, the state law claim is not a contract claim but a tort claim, and the issue is whether “resolution of [the] state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916 (1985).

The basis of the state-law claim in this case is that the employees were due wages for work performed, the recovery of which is provided for in a state statute (WPCL). However, the defense asserted calls for inquiry into the legitimacy of an alleged work stoppage facially prohibited by the limited “no-strike” clause of the bargaining agreement between the union and management. This would, at first blush, appear to call into play the preemptive effect of LMRA. Id.

Upon close scrutiny of the facts against the backdrop of the applicable law, it must be remembered that damages are not permitted to be entered against individual employees as a result of a breach of a no-strike provision in a collective bargaining agreement. Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 101 S.Ct. 1836, 68 L.Ed.2d 248 (1981); California Electric Co. v. Briley, 939 F.2d 790, 794 (9th Cir.1991). Therefore, the provision of WPCL allowing for a “good faith” defense (asserted by the defendant as a violation of the no-strike provision of the bargaining agreement) is to no avail. To find, arguendo, merit in such a claim (set-off or counterclaim) under WPCL Would be of no force or effect. The remedial nature of WPCL could not be implemented because of the barring effect of federal labor law against penalizing individual employees for the unlawful acts of the union by withholding wages owed or extracting damages from the union members/employees. Id. Such authority springs from the Supremacy Clause of the United States Constitution.

Moreover, to find otherwise would permit the defendant to do indirectly (withhold monies due the employees under the WPCL) that which he could not do directly (hold individual employees accountable for a union’s violation of a no-strike clause). See generally Reis, supra; Briley, supra.

Accordingly, because we need not resort to an interpretation of the collective bargaining agreement to evaluate the merits of the plaintiffs’ wage claim, the preemptive scope of LMRA is forestalled. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 741, 105 S.Ct. 2380, 2390, 85 L.Ed.2d 728 (1985), where state law required employers who bought health insurance for their employees to insist on certain terms in the policies.

The state law at bar, as in Metropolitan Life Ins. Co., supra, created an entitlement that was independent of the collective bargaining contract. As a result, given the nature of Benjamin’s defense (conduct of the plaintiffs/employees allegedly violating the no-strike clause of collective bargaining agreement) and the limited remedial measures permitted if such were proven true, there is no occasion to engage in an interpretation of the collective bargaining agreement. Contrast Allis-Chalmers Corp., supra (Right to disability benefits derived from the collective bargaining agreement and was defined by the contractual obligation of good faith so as to trigger the preemptive effect of Section 301); California Elec. Co. v. Briley, 939 F.2d 790 (9th Cir.1991) (Employer’s state suit against employees for quitting their jobs was preempted by Section 301 because collective bargaining agreement necessarily defined those duties owed to the employer); McMahon v. McDowell, 794 F.2d 100 (3rd Cir.1986) (Employees’ WPCL suit to recover wages and benefits from corporate officers and directors preempted by Employee Retirement Income Security Act (ERISA) since to determine the amount of any recovery under the WPCL one could do so only by reference to the benefit plans and the provisions of ERISA); National Metalcrafters, Div. of Keystone v. McNeil, 784 F.2d 817 (7th Cir. 1986) (Determination of whether the employer’s failure to pay vacation benefits was a willful breach of the collective bargaining agreement necessitated an interpretation of the contact, and, as such, was controlled by Section 301’s preemption over state wage claim law).

Instantly, we hold that resolution of the plaintiffs’ wagerecoupment issue does not necessitate an “interpretation” of (nor is it inextricably intertwined with) the labor agreement so as to call into play federal labor law to guide us in resolving the dispute. We do so for several reasons:

First: Plaintiffs’ contention that the wages sought accrued prior to any work stoppage is not disputed by the defendant.

Second: The right to recover wages “earned” by the plaintiffs/employees upon separation from employment is a statutory remedy which supplements (rather than supplants) a common law cause of action for breach of contract, 43 P.S. § 260.9a(a); Laborers Combined Funds of Western Pa. v. Mattie, 359 Pa.Super. 399, 518 A.2d 1296, 1299 (1986).

Third: No ^contract interpretation is needed to assess the plaintiffs’ right to compensation for work performed. The limited “no-strike” clause referred to by the defendant as the vehicle to draw this Court into an interpretation of the collective bargaining agreement (and with it the entire battery of federal labor law on its coat-tails) is unpersuasive under the particular facts here. Compare Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (Claim did not turn on any collective bargaining agreement interpretation) and contrast with Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (Claim required construing collective bargaining agreement).

In light of the preceding discussion, we find no merit to either the defendant’s breach of collective bargaining defense or preemption argument.

The next two issues posed for our consideration (“walkout” by employees being a “good faith” defense to liability under WPCL) have been disposed of, by implication, with resolution of the initial claims. We see no need to elaborate further on the matter.

The last issue to which we will respond is the defendant’s contention that the plaintiffs’ failure to file a claim in the Company’s bankruptcy action precludes them from seeking relief (money damages) under the banner of WPCL.

Consistent with Mattei, supra, the independent nature of a WPCL claim dispenses with the need that a claimant precede his recoupment efforts under statutory law by seeking satisfaction of the indebtedness through the bankruptcy courts. No such circuitous route is mandated in either our state laws or federal rules. We will not, by judicial fiat, impose such a course of procedure now.

Concluding that the defendant’s claims do not warrant the relief requested, we will affirm the order appealed.

Order affirmed.

WIEAND, Judge,

concurring:

I join the majority’s analysis. I write separately only because of my continuing belief that there is nothing discretionary about the entry of summary judgment by a trial court. Pa.R.C.P. 1035(b) permits a trial court to enter a summary judgment if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” (emphasis added). Whether to enter a summary judgment is purely a question of law, and the entry of such a judgment will be reversed for an error of law. It is incorrect, therefore, to suggest that a trial court’s entry of summary judgment will be reversed only for an abuse of discretion.

      . At the time the order granting the motion for summary judgment was entered, there was no dollar amount affixed for damages. Thereafter, on the 20th day after the grant of the motion, the plaintiffs filed a second motion to fix the amount of the judgment. The court, after reviewing the pleadings, entered an order awarding the plaintiffs $646,-826.14 in wages/benefits, attorney fees/costs, and liquidated damages. This order was reduced to judgment and an appeal followed. See Pa.R.App.P. 301(a), (d).

      . Co-defendants Harry and Sally Benjamin were not named in the plaintiffs’ motion for summary judgment. The motion listed David J. Benjamin only as the party against whom judgment was being sought. The other co-defendants are not parties to the instant appeal.

      . There is no dispute that the defendant is an "employer” within the meaning of WPCL. See 43 P.S. § 260.2a; Plaintiffs' Motion for Summary Judgment, Paragraphs 12-15; Defendant’s Answer to Motion for Summary Judgment, Paragraphs 12-15.

      . The defendant’s argument that the plaintiffs' violation of the “no-strike” clause (as a defense to payment under WPCL) should be the focus of inquiry is incorrect. We need to look to whether the dispute as a whole necessitates inquiry into the collective bargaining agreement for resolution. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 1881-82 (1988).
      Further, "the pre-emptive force of § 301 ... displacéis] entirely any state cause of action 'for violation of contracts between an employer and a labor organization.’ ” Franchise Tax Bd. of Calif. v. Construction Laborers Vacation Trust for Southern Calif., 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983) (Emphasis added; citation omitted).
      Here, the dispute is between the individual employees (in contrast to the union organization) and the employer/Company. In this situation, a state-law complaint for breach of individual employment contracts is not “completely preempted” by Section 301. Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987).

      . The defendant’s recourse in such an instance would be to file suit for breach of contract against the labor union under Section 301 of the LMRA. This could be filed in federal or state court. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962); Teamsters v. Lucas Flour Co., 369 U.S. 95, 102, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962).
      Also, the defendant could file a complaint with the National Labor Relations Board (NLRB) on the ground that the union engaged in an unfair labor practice in directing its members to strike in violation of the no-strike clause in the collective bargaining agreement. The two claims are not mutually exclusive.
      Although there is reference in the record that a complaint with the NLRB was filed, we have no insight as to whether any action was commenced under the auspices of Section 301 of the LMRA.