author: McEWEN, Judge:

text:
    539 A.2d 1372
    COMMONWEALTH of Pennsylvania v. David Arthur GRIFFIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 10, 1987.
    Filed April 8, 1988.
    Paul J. Elias, Greensburg, for appellant.
    Daniel M. Myshin, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before ROWLEY, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

Appellant has taken this appeal from the order of June 9, 1987, which denied his post-verdict motions. Appellant, who had been found guilty by a jury of the offenses of aggravated assault, simple assault and criminal conspiracy, filed a notice of appeal on June 19, 1987. For the reasons appearing herein, we are constrained to quash this appeal.

“It is unquestionably the law that a defendant may appeal only from a final judgment of sentence and an appeal from any prior order will be quashed as interlocutory.” Commonwealth v. Myers, 457 Pa. 317, 319, 322 A.2d 131, 132 (1974). Accord: Commonwealth v. Luciano, 345 Pa.Super. 83, 85, 497 A.2d 655, 656 (1985); Commonwealth v. Oliver, 309 Pa.Super. 152, 153, 454 A.2d 1128, 1129 (1983). See also: Pa.R.A.P. 301(c).

This appeal, having been taken from the order dismissing post-verdict motions, and not from the judgment of sentence, is not properly before this Court. Thus, we quash the appeal and remand to the trial court for the imposition of sentence, and note that the instant appeal is quashed without prejudice to the right of appellant thereafter to pursue his right of appeal.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    539 A.2d 1372
    Virginia BROWN, as Administratrix of the Estate of Lawrence Brown and Individually, Joan Brown Spina, John Brown, Thomas R. Brown, Appellants, v. The DELAWARE VALLEY TRANSPLANT PROGRAM, Arthur Harrell, Individually and in his Capacity as Transplant Coordinator of the Program, Howard Nathan, Individually and in his Capacity as Executive Director of the Program, Brandywine Hospital, Norman Ledwin, Individually and in his Capacity as President of Brandywine Hospital, James Argires, M.D., Individually and in his Capacity as a Staff Member of Brandywine Hospital Philippe Ouellette, Individually and in his Capacity as Vice President of Brandywine Hospital, Charles R. Wagner, M.D., St. Christopher’s Hospital for Children, Samuel Heed, Esq.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed April 13, 1988.

      Joseph F. Lawless, Jr., Philadelphia, for appellants.
    George E. Rahn, Jr., Philadelphia, for Brandywine Hosp. and Ledwin, appellees.
    Roberta D. Liebenberg, Philadelphia, for Heed, appellee.

      Before CAVANAUGH, BECK and HESTER, JJ.
   HESTER, Judge:

This is a companion to the appeal filed at Nos. 584 and 586 Philadelphia, 1987. The trial court dismissed all claims against Attorney Samuel Heed, one of nine defendants, primarily on the basis of the immunity accorded an attorney for action taken in representation of a client. The sole issue is the propriety of the dismissal of the claims against the attorney. We hold that dismissal was proper, and affirm.

On October 30, 1984, Lawrence Brown was discovered lying on a roadside in Chester County with a gunshot wound in his head. He was transported to Brandywine Hospital in Chester County, where he was placed on life support systems. Hospital personnel determined that he had suffered brain death, and decided to seek permission to use Brown’s heart and kidneys for transplantation.

The hospital directed its counsel, Samuel Heed, to prepare a petition requesting a court order granting consent to the extraction of Brown’s organs for transplantation. Heed presented the petition to the Chester County Court of Common Pleas, alleging that the identity of Lawrence Brown, identified as “John Doe,” was unknown and that the hospital was unable to contact his next-of-kin to obtain consent. Following a hearing, the court granted the petition. With court approval, Brown’s heart and kidneys were removed under the auspices of the Delaware Valley Transplant Program.

Representatives of the decedent filed a multi-count complaint against the Delaware Valley Transplant Program and some of its officers, Brandywine Hospital and various officers and staff physicians, and Mr. Heed, counsel for the hospital. The complaint alleged that although the defendants knew the identity of Lawrence Brown, they conspired to obtain court authorization for the removal of his organs in violation of the law, rather than seeking the authorization of his next-of-kin, resulting in extreme emotional distress.

The complaint contained six counts: mutilation of a corpse, intentional infliction of emotional distress, civil conspiracy, malicious use of process, assault and battery, and negligent infliction of emotional distress. The court sustained Attorney Heed’s demurrer to the complaint and dismissed all six counts as to Heed with prejudice. The court held that the second, third, and sixth counts were based on action taken by Heed in the course of providing legal representation to his client, Brandywine Hospital, and were thus absolutely privileged under Thompson v. Sikov, 340 Pa.Super. 382, 490 A.2d 472 (1985). The court also held that appellants failed to allege the requisite elements of an action for malicious use of process under 42 Pa.C.S. § 8351, as Heed’s petition did not assert claims against appellants or seek any relief from them. The remaining counts, mutilation of a corpse and assault and battery, were dismissed due to lack of well-pleaded allegations that Heed had any physical contact whatsoever with Mr. Brown’s body.

Appellants have not argued that dismissal of count two, four, or six was erroneous. Brief for appellants at 1-34. They have abandoned any challenge they may have had to the dismissal of those counts of the complaint. Commonwealth v. Balch, 328 Pa.Super. 71, 76, 476 A.2d 458, 461 (1984); Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp., 248 Pa.Super. 470, 472 n. 1, 375 A.2d 193, 194 n. 1 (1977).

Appellants argue that dismissal of counts one, three, and five as to Attorney Heed was error. Appellants argue that the trial court should have overruled Heed’s demurrer to the claims of mutilation of a corpse, civil conspiracy, and assault and battery, for the complaint alleges acts by co-conspirators which implicate Heed, whether or not he had physical contact with Mr. Brown’s body. Appellants also argue that the trial court erroneously applied the concept of judicial immunity, by incorrectly extending it to protect Heed’s intentionally tortious behavior. Appellants claim that the judicial privilege which protects an attorney from liability for conduct during judicial proceedings should be limited to protection of the attorney from liability for publication of defamatory material.

When the trial court considers a demurrer, it must, of course, accept as true all well-pleaded allegations in the complaint. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). It is equally clear, however, that a demurrer admits only well-pleaded facts, and not averments or conclusions of law. Id.; Barbet v. Edelstein, 346 Pa.Super. 488, 490, 499 A.2d 1106, 1107 (1985); Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982). The supreme court has held that “preliminary objections in the nature of a demurrer admit as true only such facts as are well-pleaded, material, and relevant and only such inferences as are reasonably deducible from such facts [and] that they admit neither conclusions of law nor inferences unwarranted by the admitted facts nor argumentative allegations nor expressions of opinion____” Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 834 (1976). This is particularly true of allegations of fraud, which must be averred with particularity. Pa.R.C.P. 1019(b); Hornsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950).

With these principles in mind, we have carefully examined the amended complaint, and agree with the trial court’s conclusions that the well-pleaded averments indicate that Attorney Heed’s only involvement in the case was his preparation of the petition pursuant to his client’s instructions, and that all the allegations against Heed are based on his actions in the course of providing legal representation. The claims against Heed are therefore barred by the absolute immunity which attaches to the actions of an attorney in representing a client in a judicial proceeding.

Contrary to the assertion of appellants, the absolute privilege accorded an attorney in representation of a client in judicial proceedings is not limited to protection against defamation actions. The immunity bars actions for tortious behavior by an attorney other than defamation, so long as it was a communication pertinent to any stage of a judicial proceeding. Thus, the privilege barred claims for intentional interference with contractual or prospective contractual relations, as well as defamation. Pelagatti v. Cohen, 370 Pa.Super. 422, 434, 536 A.2d 1337, 1343. The key is whether the pertinent communication was undertaken in connection with representation of a client in a judicial proceeding. Id,.; Smith v. Griffiths, 327 Pa.Super. 418, 423-27, 476 A.2d 22, 24-26 (1984). The trial court correctly applied this standard to bar the claim of civil conspiracy against Attorney Heed, as all Heed’s activities were related to a judicial proceeding. Likewise, the well-pleaded averments of the amended complaint related to mutilation of a corpse and assault and battery fail to state a cause of action against Heed in light of the immunity accorded his activities undertaken in relation to the litigation.

We therefore affirm the order dismissing appellants’ complaint with prejudice as to Attorney Heed.


author: PER CURIAM: CIRILLO, President Judge,

text:
    540 A.2d 269
    Judith AKERS, Appellee, v. Jerome AKERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1987.
    Filed Feb. 16, 1988.
    Reconsideration and Reargument Denied April 26, 1988.

      Verdell Dean, Pittsburgh, for appellant.
    Paul Kutcher, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order reducing appellant’s support obligation for the two minor children of his first marriage. Finding no error in the proceedings below, we affirm.

This case began in 1972 with a support order of $150.00 per month for appellee and one child. Subsequent modifications were made when the second and third children were born and in 1985 when the first child reached the age of 18. By this time, the support order included only the children. On February 28, 1986, appellee filed a petition for an increase alleging that appellant had income from a second job which he had concealed. The Hearing Officer recommended an order of $450.00 per month plus $75.00 on arrearages of $8,385.00. Appellant filed exceptions which were dismissed and an order was entered adopting the recommendation of support, but lowering the arrearages to $7,500.00. Appellant did not appeal this order. Subsequently, appellant filed a petition to modify the support order alleging that he had quit his second job. Shortly thereafter, appellant was laid off from his primary job and he filed a second petition to modify. The petitions were consolidated for hearing. The Hearing Officer recommended that the order be reduced to $300.00 per month plus $150.00 on arrears of $7,501.00. Appellant's exceptions were denied and an order adopting these recommendations was entered on December 19, 1986. This timely appeal followed.

The standard of review of a support order is a narrow one. We defer to the order of the trial court unless there is a clear abuse of discretion. An abuse of discretion is not merely an error of judgment. Only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence is discretion abused. Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985). We cannot, of course, usurp the trial court's function as fact finder. Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984). Under this standard, we will therefore address appellant's contentions.

Appellant first complains that the hearing court erred by failing to consider evidence that he was unable to continue to work at his second job. We cannot agree. Clearly, the trial court did consider the evidence presented by appellant. Just as clearly, however, the trial court did not believe appellant’s testimony that he quit this job due to health reasons. It is well-settled that the finder of fact may accept or reject all or any portion of a witness’s testimony. Commonwealth ex rel. Lutz v. Lutz, 298 Pa.Super. 473, 444 A.2d 1281 (1982). Such a decision is clearly within the discretion of the trial court and we are without power to substitute our credibility determination for that of the trial court. Semasek v. Semasek, supra.

Appellant next complains that the trial court erred in imputing an earning capacity to appellant rather than basing the support order on actual income. Of course, the general rule is that it is the earning capacity, not the actual earnings, of the parent which is the determinative factor in ascertaining the ability to pay support. Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976). Unless appellant fits into an exception to this general rule, we cannot say that the trial court abused its discretion. Appellant argues that his situation should be considered under the exception that determines support by actual earnings in situations where income is reduced involuntarily, i.e., through illness, layoff, or some other factor over which the parent had no control. See, e.g., Commonwealth ex rel. Burns v. Burns, 251 Pa.Super. 393, 380 A.2d 837 (1977). The trial court, however, made a factual determination that appellant voluntarily quit his second job and therefore that appellant does not fit into this exception to the general rule. Since this determination is supported by evidence, we cannot reverse it. Semasek v. Semasek, supra. We cannot therefore conclude that the trial court abused its discretion in considering appellant’s earning capacity.

In connection with this argument, we would further note that appellant appears to have misread both the Hearing Officer’s recommendation and the trial court’s opinion. We do not perceive either the Hearing Officer or the trial judge to have imputed an earning capacity equivalent to what appellant earned at his second job. Rather, the amount of support was determined by comparing the county guideline amounts for both appellant’s actual income from unemployment compensation and the amount of income he had previously obtained from his second job and arriving at a support obligation in between those two figures. As noted in the trial court’s opinion, the support order is only $5.00 higher than the guidelines recommend for someone with appellant’s actual income. We are hard-pressed to conclude that a deviation of $5.00 per month is an abuse of discretion under the circumstances presented here.

Appellant’s claim that the trial court did not consider either his obligation to support his present family or the contribution of an adult child to appellee’s household is without support in the record. Indeed, in its opinion, the trial court specifically stated that it did assume both contribution to the household’s income by the adult child and reduction in the household’s expenses on account of that child. There is, simply, no support for the contention that appellant’s current obligations were not considered.

Finally, appellant claims that the trial court erred in changing the monthly amount which appellant must pay toward his arrearages. We cannot agree. The Support Act provides that the court may, at any time, remit, correct or reduce the amount of any arrearages. 42 Pa.C.S. § 6710. Considering the total amount of the arrearages, and the reduction in the monthly support amount, we cannot say that the trial court abused its discretion in increasing the monthly amount appellant must pay toward the arrearages. See, Commonwealth ex rel. Banks v. Banks, 330 Pa.Super. 128, 478 A.2d 1387 (1984) (Payment term for arrearages shall not be protracted, even where total amount is substantial.)

Order affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully dissent from the majority’s decision because I do not believe that the support order should have been increased due to the discovery that Mr. Akers had been working a second job. A person’s ability to pay support should be calculated only from his or her earning capacity at one full-time job.

In the instant matter, Mr^Akers was working forty hours a weék at the United States Steel Corporation (US Steel) as a billing control clerk. In addition, from January, 1983 until April, 1986 Mr. Akers waswrorking approximately thirty hours a week at the Pittsburgh Civic Arena. His duties at the arena included ushering, acting as a security guard, and various maintenance tasks.

Mr. Akers failed to disclose to the court the fact that he was working at the Pittsburgh Civic Arena. Consequently, his support order was based only upon his primary full-time job at US Steel. In January, 1986, however, Mrs. Akers filed a petition for an increase in child support alleging that Mr. Akers had deliberately concealed his income from his part-time employment. On April 3, 1986, at a modification hearing held pursuant to the petition, the hearing officer, finding that Mr. Akers had indeed misrepresented his income, increased the monthly support order to $450.00 per month and directed him to pay $75.00 per month on arrearages calculated to be $8,350.00, retroactive to 1983. This amount of arrearages represented the accumulated support obligation resulting from the appellant’s unreported income as well as the result of a dispute over the paternity of one child. Mr. Akers filed exceptions to the new support order, but the exceptions were denied on May 23, 1986.

Subsequently, Mr. Akers filed a petition to modify the support order claiming that he had resigned from his part-time job at the Pittsburgh Civic Arena as of April 22, 1986 based on his psychologist’s advice, and that he would be laid off from his full-time employment at US Steel effective September 5, 1986. On October 28, 1986, a modification hearing was held. The hearing officer determined Mr. Akers had a total earning capacity of $1,467.00 per month. Of this amount, $967.00 represented the unemployment compensation Mr. Akers was receiving due to his lay-off at US Steel; the remaining $500.00 was income imputed to Mr. Akers for his employment at the Pittsburgh Civic Arena. The hearing officer ordered Mr. Akers to pay $300.00 per month in support (a reduction of $150.00) and $150.00 per month on the arrearages (an increase of $75.00). Timely exceptions to this order were filed and dismissed.

Unlike the majority in this case, I cannot condone the gross injustice practiced by the trial court which, in effect, has forced appellant to work two jobs. While one’s initial reaction when fqced with a case where the husband has deliberately hidden his second income from the trial court is to find him to be in contravention of the support laws, I find that closer consideration leads one to the realization that the courts are penalizing a man for being more industrious than is necessary to survive.

Here, Mr. Akers’ initial support payment was properly calculated based on his full-time employment at US Steel. Subsequently, he opted to use his free time each week to work a second job to earn extra money. In working over forty hours each week, Mr. Akers undoubtedly had to sacrifice much of his own private time and the time he would have had to spend with his present family. I cannot accept the idea that the appellant’s extra time has become subject to the court's control simply because he chose to spend it at a second job. The court could not order Mr. Akers to work a second job initially and it should not be able to force him to continue that employment once he has decided that the second job no longer profits him, financially or otherwise.

I would remand for modification of the support order so that Mr. Akers’ payments are based only on his earning capacity at one full-time job and for commensurate reduction in the amount of his payment toward the arrearages. Had appellant timely appealed from the determination of the arrearage amount, I would have remanded to reduce the arrearage in the amount owed, due to Mr. Akers’ part-time employment at the Civic Arena.

      . The issue raised by the dissent of whether “the support order should have been increased due to the discovery that Mr. Akers had been working a second job” is not presently before this court. That determination was made by the prior order which was not appealed by Mr. Akers. Furthermore, our Supreme Court has clearly stated that parents "have an obligation to share with their children the benefit of their financial achievement.” Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); see also, Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985). The children would benefit from father’s increased income if the parents were still married; we see no reason why their divorce should deprive the children of this benefit.

      . Two of the issues raised on appeal were not considered at the trial level: whether the court erred by denying appellant a continuance to present expert testimony and whether the court erred in calculating the effect of a second job on appellant’s unemployment compensation. These issues were not specifically raised in appellant’s exceptions and are therefore waived. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

      . These guidelines recommend $175 to $295 per month for appellant’s actual income and $290 to $430 per month for the combined amounts of appellant’s unemployment and previous earnings from his second job.

      . We note that this is not a situation where the trial court refused to find a change in circumstances due to the birth of a child in the second marriage. Appellant’s child to his second wife was, at the time of the reduction hearing, eleven years old. Therefore, we may assume that appellant’s obligations to that child have been considered in the prior proceedings setting the support amount which appellant sought to reduce.

      . Appellant does not attack the total amount of arrearages, which had been set in a prior proceeding. Rather, he appears to argue that the court was without power to change the monthly amount he must pay on those arrearages.

      . Later the court discovered a miscalculation in the arrearages and decreased the amount to $7,500.00.

      . $4,350.00 of the $8,385.00 arrearages was based on Mr. Akers' unreported second income.


author: POPOVICH, Judge:

text:
    540 A.2d 272
    Floyd R. GANASSI and G. Gray Garland, Jr., Appellants, v. BUCHANAN INGERSOLL, P.C.; William Rankin Newlin; M. Bruce McCullough; Alexander & Green; Richard T. McDermott; David S. Pennock; Richard Uhl; and Pamela J. Giarla.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1987.
    Filed March 25, 1988.

      James A. Ashton, Pittsburgh, for appellants.
    James D. Morton, Pittsburgh, for Ingersoll, Newlin, McCullough, Uhl and Giarla, appellees.
    Frederick W. Bodd, III, Pittsburgh, for Alexander & Green and McDermott, appellees.
    Before ROWLEY, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County granting the defendants’ preliminary objections in the nature of a demurrer to the plaintiffs’ complaint. We affirm.

As is our function upon an appeal from a decision of the court below sustaining preliminary objections in the nature of a demurrer, we must accept as true every relevant fact sufficiently averred in the plaintiffs’ complaint together with every inference favorable to the non-moving party which is fairly deducible therefrom. Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985).

The complaint, viewed in light of the aforementioned, reveals that in 1975 the plaintiffs (Garland and Ganassi) acquired a controlling interest in FSC Corporation, a holding company incorporated under the laws of Delaware. Ultimately, Garland became Chief Executive Officer and Chairman of the Board of Directors and Ganassi rose to the level of Vice Chairman of the Board of Directors.

In 1981, it appears that FSC was experiencing financial difficulties. In an effort to aid the corporation, the plaintiffs agreed to sell a major portion of their interest in FSC to some investors known as the Portnoy Group. In exchange, the Portnoy Group agreed to infuse five to ten million dollars of new working capital into the corporation. As a part of the agreement, the plaintiffs elected the Portnoy Group to the Board of Directors, resigned their positions as officers and members of FSC and caused the resignation of the balance of the Board of Directors and senior management.

The Portnoy Group took over the management of FSC, the control of which lasted but ten days before it rescinded the agreement and advised the plaintiffs to resume their positions as members of the Board of Directors. In an effort to regain their positions with FSC, the plaintiffs consulted the defendant law firms, Alexander and Green and Buchanan Ingersoll, who advised them that a shareholders meeting and subsequent election were a condition precedent to resuming their posts with FSC.

Before any meeting could be conducted to reinstate the plaintiffs, FSC filed for bankruptcy under Chapter 11 with the United States Bankruptcy Court for the Western District of Pennsylvania. At that time, defendant Uhl, who was executive vice-president of FSC, was appointed by the Bankruptcy Court as responsible officer for the debtor corporation. Thereafter, according to the plaintiffs, it became evident that the defendants had no intention of including them in the operation of FSC, the substance of which took the form of a purported conspiracy on the part of the defendants to malign and defame the plaintiffs. More particularly, the plaintiffs formulated their allegations in a complaint filed December 5, 1984, the essence of which asserted that the defendants were accountable to them on grounds rooted in conspiracy (count I), fraud and deceit (count II), breach of contract (count III), defamation (count IV), libel (count V), invasion of privacy — false light (count VI), interference with prospective business or contractual relations (count VII) and intentional infliction of emotional distress (count VIII).

On February 2, 1987, the court below issued an order, the portion of which we need be concerned with relates to the sustaining of the defendants’ preliminary objections in the nature of a demurrer to counts IV (defamation), V (libel) and VI (invasion of privacy — false light). No other aspect of the order has been appealed by the plaintiffs to this Court.

The first issue we shall address concerns the claim that the defendants made false, defamatory and scandalous statements concerning the plaintiffs which were not rendered privileged because of the method and manner of their dissemination, i.e., through documents submitted during the course of the Chapter 11 proceeding.

In this Commonwealth, our Supreme Court has had occasion recently to crystalize those conditions which must exist for one’s communications to be labelled privileged, and, thus, immune from suit; to-wit:

The essential realm of protected communication ... has traditionally been regarded as composed only of those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.
Whether a challenged communication is published prior to, or during, a judicial proceeding, it must bear a certain relationship to the proceeding so as to qualify it as privileged. That relationship is, in either case, the same____ [I]n reference to communications made during judicial proceedings, it is necessary that a protected communication have been pertinent and material to the redress sought and that the communication have been issued in the regular course of the proceedings. Similarly, with respect to communications made prior to the institution of proceedings, the protected communication would need to have been pertinent and material and would need to have been issued in the regular course of preparing for contemplated proceedings.

Post v. Mendel, 510 Pa. 213, 221 & 223, 507 A.2d 351, 355 & 356 (1986) (Emphasis in original; citations omitted).

Evaluated by the Post standard, we find that the allegedly false and defamatory statements contained in Exhibits A, B, C and D, attached to the plaintiffs’ complaint and attributed to the defendants, are privileged as having been made, as is even conceded by the plaintiffs at paragraph 65 of their complaint, at “the commencement of the FSC Chapter 11 case____”

To elucidate, Exhibit A is a letter from the defendant Buchanan Ingersoll to Judge Paul A. Simmons of the United States District Court for the Western District of Pennsylvania. The letter summarizes a reorganization plan contemplated by FSC. In the course of discussing the plan, its author makes reference to the plaintiffs; namely:

Let me now turn to the “Shareholders’ Outline of a Plan” submitted by The Official Committee of Equity Security Holders____ Of the six-page outline, better than half is taken up with the customary diatribe from the Equity Committee that weaves claims of “illegal freeze-out” with apologies for Messrs. Garland and Ganassi’s abandonment of FSC in the fall of 1981. We submit that the presentation of FSC’s outline of its proposed plan and its commitment to file its plan by September 24, no useful purpose would be served by reconstituting boards of directors for these Debtors and other subsidiaries of FSC. Indeed, the very limited resources of these Debtors should not be burdened further with fights over temporary seats on boards of directors. With the filing of the FSC plan all parties in interest will have an opportunity to be heard and through the processes of the Bankruptcy Code such objections as they may have will be dealt with. Further, we submit that this is not the place to argue over the actions and inactions of Messrs. Garland and Ganassi in their management of FSC and its subsidiaries. Rather, we simply note that they are the subject of a class action pending in this Court entitled Joseph Ratner, et al. v. G. Gray Garland, et al., Index No. 81-1756, brought by the stockholders of FSC on behalf of a large class of purchasers of FSC common stock, many of whom are purportedly represented here by the Equity Committee, in which Messrs. Garland and Ganassi are alleged to have committed several serious violations of the Federal securities laws during their management tenure. The FSC plan will propose that the interests of Messrs. Garland and Ganassi and the other two former members of FSC’s board as stockholders of FSC be equitably subordinated under Section 510(c) of the Bankruptcy Code and that they receive nothing. At the plan hearings on this aspect of FSC’s plan, their record as management will be thoroughly examined.
However, a few brief comments on the Equity Committee’s so-called “plan” are in order. That “plan” contains something old and something new.
The “old” is the mysterious outside third party investor with the “enviable track record” ... who would invest in FSC provided “FSC is clear of any legal entanglements” ..., whatever that might mean, and we take it, provided Messrs. Garland and Ganassi are back on the board. Messrs. Garland and Gannassi [sic] have on repeated occasion [sic] said they could produce an investor, and they tell us they have found one. Yet they decline to tell Your Honor and to tell us who he is, what his financial resources are, or on what terms he proposes to invest.
Their scheme is nothing more than a rehash of what they proposed at the meeting with creditors and FSC on June 20, 1984 — put them back in control of the board they abandoned and they will then disclose the identity of their mystery investor. Their “plan” speaks of an unnamed investor who is willing to buy an unstated number of FSC shares at an unstated price and who would merge his undisclosed businesses into FSC on unknown terms. This is exactly the type of loosely set deal Messrs. Garland and Ganassi arranged with the Portney-Powers group in September, 1981 that led directly to FSC’s bankruptcy.
In sum, the Equity Committee’s “plan” is not a plan but a smokescreen thrown up in an effort to hide the attempt by Messrs. Garland and Ganassi to regain control of FSC. It brings forth the “old” — the mysterious investor, a Trojan horse as enshrouded today as he has been in the past, and it presents something “new” — a plan of distribution which because it cannot be confirmed renders it a dead letter from the start.

To reiterate, instantly- we have the commencement of bankruptcy proceedings by FSC. Thereafter, as documented in the letter denominated Exhibit A, the communique was prepared “in response to the suggestions ... made” by Judge Simmons at a conference regarding FSC’s bankruptcy. Thus, the plan proposed by the defendants and their discussion of the plaintiffs’ reorganization plan were matters germane to the bankruptcy proceedings. Further, the letter proffered a legal argument to the District Court and requested it to take a particular position in regard thereto. (See Exhibit A, reproduced in footnote 3.)

Under the criteria set forth in Post, we hold that the letter at issue here was “pertinent and material” to the proposed course the District Court would pursue in FSC’s bankruptcy, and, moreover, the letter was issued in the “regular course” of the proceedings in that it was prepared in reply to the District Court’s request for input from those having an interest in FSC’s bankruptcy. Accordingly, the letter is deemed a privileged communication entitling its author to protection from suit. See Post, supra.

As for Exhibits B, C and D, all of which are affidavits filed in Bankruptcy Court, we rule that each is a statement made in the course of a judicial proceeding, and, therefore, cannot give rise to an action for defamation. See Kemper v. Fort, 219 Pa. 85, 88-90, 67 A. 991, 992-93 (1907); B.B.C.I., Inc. v. Canada Dry Delaware Valley Bottling Co., 393 F.Supp. 299 (E.D.Pa. 1975).

The last issue to be addressed concerns the plaintiffs’ assertion that the court below erred in not granting them leave to amend their complaint.

Of record appears an amended complaint filed by the plaintiffs on June 21, 1985, which is over six (6) months after the original complaint was submitted to the prothonotary. However, there is no indication in the record filed with this Court that the court below ruled on the plaintiffs’ requested amendment. The only insight we have as to the course pursued below is confined to the plaintiffs’ brief. Therein, it is asserted that, as to the amended complaint, “no action was taken by the lower court even though it had at least two opportunities to do so; once at the hearing on the preliminary objections and when Appellants sent a letter to the court requested [sic] action (R. 52a and R. 68a, respectively).” (Plaintiffs’ Brief at 20-21)

We make mention of the method by which we have ascertained the course taken on this issue below because it appears only in the plaintiffs’ brief, and, in this jurisdiction, such an issue is not cognizable in the form presented. See McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987). Notwithstanding the deficiency in the record, the issue is equally not subject to review since, as a condition precedent to the court entering upon an inquiry and making a determination of whether prejudice would befall the opposing party if the late filing would be permitted, the plaintiffs have failed to show sufficient cause for the delay in filing the late pleading. See Joyce v. Safeguard Mutual Insurance Co., 362 Pa.Super. 522, 524 A.2d 1362 (1987) (en banc), rev’d on other grounds 517 Pa. 488, 539 A.2d 340 (1988). As a result, the issue is found wanting and the requested relief is denied.

Order affirmed.

      . Save for Pamela J. Giarla (corporate counsel for FSC) and Richard Uhl (executive vice-president of FSC), the remaining defendants are members of the defendant law firms.

      . Albeit not raised by any of the parties to the litigation or the court below, we deem it appropriate to observe that the order appealed is a final one and not interlocutory despite the fact that, as a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. See Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). The reason we reach the conclusion we do is based upon the fact that the plaintiffs’ complaint contains, in reality, separate causes of action. In this jurisdiction, an order dismissing one or more separate causes of action is appealable. See Morrow v. Bell Telephone Co. of Pa., 330 Pa.Super. 276, 479 A.2d 548 (1984); see also Feingold v. Hill, 360 Pa.Super. 539, 521 A.2d 33 (1987).

      . Exhibit A reads in its entirety as follows:
      Dear Judge Simmons:
      We are co-counsel for Debtors, FSC Corporation ("FSC”) and Funding Systems Asset Management Corp. ("FSAM”), retained by these Debtors to assist them, among other things, in the formulation, negotiation and implementation of plans of reorganization in their respective bankruptcy cases. In response to the suggestions you made at the June 29, 1984 conference regarding the captioned appeals, on behalf of FSC and FSAM we are enclosing a "Summary of Plan of Reorganization Contemplated by FSC Corporation", which as the title suggests sets out an outline of a plan which Debtor FSC intends to propose in its bankruptcy case.
      In recognition of the conflicting interests of the creditors and other parties in interest of FSC, on the one hand, and its wholly owned subsidiary, FSAM, on the other, the FSC plan contemplates a global settlement between FSC and FSAM looking toward the confirmation of two separate plans for these Debtors.
      The Summary was presented to the Unsecured Creditors’ Committee at a meeting held on July 18, 1984 and that Committee agreed that the Debtor’s proposals merit serious consideration. FSC intends to file a formal plan of reorganization containing the elements set forth in the Summary by September 24, 1984, the date when its exclusive period to file a plan under Section 1121 of the Bankruptcy Code as extended by Bankruptcy Judge Gibson will expire.
      Let me now turn to the "Shareholders’ Outline of a Plan” submitted by The Official Committee of Equity Security Holders with Mr. Tumolo’s letter to you dated July 13, 1984. Of the six-page outline, better than half is taken up with the customary diatribe from the Equity Committee that weaves claims of "illegal freeze-out" with apologies for Messrs. Garland and Ganassi’s abandonment of FSC in the fall of 1981. We submit that with the presentation of FSC’s outline of its proposed plan and its committment to file its plan by September 24, no useful purpose would be served by reconstituting boards of directors for these Debtors and other subsidiaries of FSC. Indeed, the very limited resources of these Debtors should not be burdened further with fights over temporary seats on boards of directors. With the filing of the FSC plan all parties in interest will have an opportunity to be heard and through the processes of the Bankruptcy Code such objections as they may have will be dealt with. Further, we submit that this is not the place to argue over the actions and inactions of Messrs. Garland and Ganassi in their management of FSC and its subsidiaries. Rather, we simply note that they are the subject of a class action pending in this Court entitled Joseph Ratner, et al. v. G. Gray Garland, et at., Index No. 81-1756, brought by stockholders of FSC on behalf of a large class of purchasers of FSC common stock, many of whom are purportedly represented here by the Equity Committee, in which Messrs. Garland and Ganassi are alleged to have committed several serious violations of the Federal securities laws during their management tenure. The FSC plan will propose that the interests of Messrs. Garland and Ganassi and the other two former members of FSC’s board as stockholders of FSC be equitably subordinated under Section 510(c) of the Bankruptcy Code and that they receive nothing. At the plan hearings on this aspect of FSC’s plan, their record as management will be thoroughly examined.
      However, a few brief comments on the Equity Committee’s so-called “plan” arc in order. That "plan” contains something old and something new.
      The “old" is the mysterious outside third party investor with the “enviable track record” (p. 4) who would invest in FSC provided “FSC is cleat of any legal entanglements” (p. 5), whatever that might mean, and we take it, provided Messrs. Garland and Ganassi are back on the board. Messrs. Garland and Gannassi [sic] have on repeated occasion [sic] said they could produce an investor, and they tell us they have found one. Yet they decline to tell Your Honor and to tell us who he is, what his financial resources are, or on what terms he proposes to invest.
      Their scheme is nothing more than a rehash of what they proposed at the meeting with creditors and FSC on June 20, 1984 — put them back in control of the board they abandoned and they will then disclose the identity of their mystery investor. Their "plan” speaks of an unnamed investor who is willing to buy an unstated number of FSC shares at an unstated price and who would merge his undisclosed businesses into FSC on unknown terms. This is exactly the type of loosely set deal Messrs. Garland and Ganassi arranged with the Portney-Powers group in September, 1981 that led directly to FSC’s bankruptcy.
      The thought that with its favorable tax attributes FSC could attract fresh funds and profitable businesses in conjunction with a plan or after FSC’s emergence under a plan is hardly a new one. It has been employed in a number of bankruptcy cases around the nation and lies at the heart of FSC’s plan. FSC has interviewed a number of possible investors who have expressed interest in FSC but who will not malee proposals until, at the earliest, a definitive plan is proposed. In that regard the Debtor’s management believes that it will be able to attract more favorable opportunities after it has been reorganized than while it is in the process of reorganization. This is not to say that the Debtor is unwilling to entertain proposals now. However, it has been management’s experience that conversations with potential investors can go no further than expressions of interest until FSC has a clean balance sheet and a fresh start. In these circumstances, for the Equity Committee to suggest that the track record of the Garland and Ganassi management team warrants the confidence of FSC’s creditors in the ability of those gentlemen to attract new investors or businesses at this time is sheer folly. Of the nine companies that they have acquired for FSC, one was sold and the rest failed.
      The "new” in the Equity Committee’s plan is the proposed classification of claims and interests and distributions to them. While the “plan” is wholly lacking in concrete proposals as to who will get what and thus lacks the specificity Your Honor sought from the Equity Committee, it does purport (1) to lump together FSC and FSAM, (2) to deal with secured claims on a "few cents on the dollar” basis, and (3) to discriminate against and to subordinate those unsecured creditors holding guaranty claims to FSC’s existing equity holders who are to continue to hold their shares. The problems attendant to simply lumping FSC and FSAM together are described in our Summary; it is enough here to note that such a plan wholly ignores the separate and conflicing interests of FSAM’s creditors. Treatment of secured claims (which we believe reside only in FSAM’s case) in the fashion proposed by the Equity Committee is nothing short of cavalier. At the very least, one would expect the Equity Committee to' appreciate that to the extent the secured claimant's collateral is insufficient to cover his claim, he will have an unsecured claim, entitled to treatment pari passu with the unsecured creditors.
      Perhaps the most outrageous aspect of the Equity Committee’s "plan” is its proposed treatment of holders of FSC guarantees, who, as holders of guarantees are unsecured creditors of FSC. If this "plan” were presented for a vote to these unsecured creditors they would surely reject it and they would have every reason to do so because it would both unlawfully attempt to subordinate their claims to the interests of equity holders and unfairly discriminate against them and in favor of other unsecured creditors who would receive "X dollars” in cash and “X shares” of FSC common stock. Under those circumstances the plan could not be confirmed by the Court because it would be both discriminatory and violative of the principal [sic] of absolute priority embodied in Section 1129(b) of the Bankruptcy Code.
      In sum, the Equity Committee’s "plan” is not a plan but a smokescreen thrown up in an effort to hide the attempt by Messrs. Garland and Ganassi to regain control of FSC. It brings forth the “old" — the mysterious investor, a Trojan horse as enshrouded today as he has been in the past, and it presents something "new” — a plan of distribution which because it cannot be confirmed renders it a dead letter from the start.
      Respectfully yours,
      /s/ Michael A. Snyder Michael A. Snyder
      MAS/mal

        cc: Lawrence N. Ravick, Esq.
      Alan Z. Lefkowitz, Esq.
      William M. Kahn, Esq.
      John A. Tumolo, Esq.

      . Exhibit B reads:
      IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
      Bankruptcy No. 81-2558
      IN RE:
      FSC CORPORATION,
      Debtor.
      AFFIDAVIT IN SUPPORT OF ANSWER OF DEBTOR TO PETITION OF EQUITY SECURITY HOLDERS TO VACATE AND PETITION TO MODIFY ORDER OF APRIL 19, 1982
      Having been duly sworn before the undersigned authority, personally appeared RICHARD J. UHL, who does depose and say that he is the designated responsible officer of FSC Corporation, debtor-in-possession and in September, 1981, was the Senior Vice President of FSC Corporation (“FSC”).
      I do further depose and say that on September 16, 1981, Stanley B. Scheinman, then President of FSC, telephoned me at approximately 5:00 p.m. and instructed me to assemble officers of FSC Corporation and others for a meeting at 6:00 p.m. at FSC’s Pittsburgh offices. Mr. Scheinman stated that he and Mr. G. Gray Garland, Jr., Chairman of the Board of Directors of FSC had something important to tell us all.
      I do further depose and say that at said meeting Mr. Scheinman and Mr. Garland announced that a new Board of Directors had been appointed and the former Board members had all resigned and that Mr. Garland and Floyd Ganassi had sold a major portion of their stock in FSC for nominal consideration to a group headed by Mr. Lawrence Powers and Mr. Allen Portnoy.
      I do further depose and say that Mr. Garland stated that the new shareholders would bring to FSC $5 — $10 million. I asked Mr. Garland if he had performed sufficient review of the financial capability of the new shareholders to assure that they were capable of making the $5 — $10 million investment. Mr. Garland responded in the affirmative. Mr. Harold Lehman asked Mr. Garland if there were any conditions attached to the $10 million financing. Mr. Garland responded that there were no conditions precedent to the new group "putting $5 to $10 million” into FSC.
      I do further depose and say that on September 23, 1981, Stanley B. Scheinman telephoned me at approximately 8:00 p.m. to inform me that he believed that Mr. Portnoy, Mr. Powers and their group were rescinding the agreement and were resigning as directors of FSC.
      I do further depose and say that on September 24, 1981, at approximately 12:45 p.m., Stanley B. Scheinman telephoned me and stated that he had been informed by Mr. Powers, that Powers and his group were rescinding all arrangements. Mr. Scheinman further stated that Mr. Garland had received a telex rescinding the stock purchase and all related contracts and a proposal to reinstate all former directors.
      I do further depose and say that on September 24, 1981, at approximately 3:50 p.m., Mr. Portnoy informed me that he was rescinding the agreement and that he and the other members of the Board of Directors of FSC had resigned.
      I do further depose and say that on September 25, 1981, at approximately 9:30 a.m., Mr. Garland informed me that he probably would accept Portnoys rescission, but that he had not as yet decided to do so. At that time, Mr. Garland further informed me that he had visited with an officer of Equibank and had suggested to him that Equibank consider filing a petition with the bankruptcy court.
      I do further depose and say that to the best of my knowledge, after their resignations as officers and directors of FSC Corporation, neither Mr. Garland, Mr. Ganassi, Mr. Scheinman nor Mr. James Cooper ever accepted any offer from Mr. Powers or Mr. Portnoy to be reinstated as directors of FSC Corporation or otherwise accepted responsibility for the affairs of FSC prior to the commencement of its bankruptcy proceedings.
      I do further depose that attached hereto is a true and correct copy of an "Agreement” dated September 16, 1981, which I received from Stanley B. Scheinman.
      /s/ Richard J. Uhl Richard J. Uhl
      Exhibit C reads:
      IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
      Bankruptcy No. 81-2558
      IN RE:
      FSC CORPORATION,
      Debtor. AFFIDAVIT OF PAUL M. WILLARD
      Having been duly sworn before the undersigned authority, personally appeared Paul M. Willard, Esquire, who does depose and say that he is Vice President, Corporate Counsel of the Debtor, and in September, 1981, was Vice President, Corporate Counsel.
      I do further depose and say that on September 16, 1981, at approximately 6:30 p.m., G. Gray Garland told me and others present in the Board Room of FSC Corporation, that the Board of Directors had elected four new people to the Board and had simultaneously resigned. The new board was described as four (4) individuals that were also the senior management of Spartan Manufacturing Corporation. Mr. Garland indicated that not only would this new group put in $5 — $10 million dollars in cash as new capital to solve our current financial crises but also bring with them the experience they had in reorganizing a financially troubled company, as they had with Spartan Manufacturing Corporation. Mr. Garland stated that Allen Portnoy would serve as a new director as well as President and Chief Executive Officer, Lawrence Powers was the new Chairman of the Board of Directors, Martin Green was the new General Counsel and Secretary and C.A. Mitts was a director and Vice President-Finance. On or about September 24, 1981, I was shown a copy of an FSC news release issued by Mr. Green in which he was quoted as saying "... following the signing of the acquisition documents, and our election as directors, but prior to the final closing, we discovered a multitude of financial and legal problems which had not been previously disclosed and would severely retard our efforts to revive this financially troubled company. As a result the entire transaction has been rescinded. The new group of directors has resigned and has informed the prior board, consisting of G. Gray Garland, Jr., Floyd R. Ganassi, James W. Cooper and Stanley B. Scheinman that they should be reinstated as directors of the company ...”
      To the best of my knowledge, on or after September 16, 1981, Messrs. Garland, Ganassi, Cooper or Scheinman never acted or purported to act in the capacity of an officer or director of FSC Corporation or any of its subsidiaries.
      /s/ Paul M. Willard Paul M. Willard
      Exhibit D reads:
      IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
      No. 81-2558
      IN RE:
      FSC CORPORATION,
      Debtor.
      AFFIDAVIT OF M. BRUCE McCULLOUGH IN SUPPORT OF REPLY OF DEBTOR TO THE PETITION TO VACATE ORDER OF APRIL 19, 1982 FILED IN ADDITION TO THE PETITION TO MODIFY THE ORDER OF APRIL 19, 1982
      COMMONWEALTH OF PENNSYLVANIA
      COUNTY OF ALLEGHENY
      AND NOW comes M. Bruce McCullough, after first being duly sworn, who states as follows:
      1. I, M. Bruce McCullough, am a partner in the office of Buchanan Ingersoll Professional Corporation, and with that office have served as counsel for the Debtor since the filing of Debtor’s Petition for Relief.
      2. Shortly after the granting of the Petition for Relief, counsel for the Equity Security Holders’ Committee, Bernhard H. Schaffler, Esquire, secured from the Court a direction that he be notified prior to presentation of all motions before this Court.
      3. For purposes of confirming on the record certain administrative matters, it was necessary to petition the Court to enter an Order authorizing Richard J. Uhl as the Responsible Officer to vote the shares of stock of the subsidiaries of the Debtor. The reasons therefor are more specifically set forth in the Answer of the Unsecured Creditors’ Committee.
      4. I am absolutely certain that before going to the Court with the Petition and Order that I contacted Bernhard H. Schaffler by phone and advised him of my intention. I advised him that the procedure was supported by the Unsecured Creditors’ Committee.
      5. I am certain that Mr. Schaffler advised me that he had no objection so long as I provided him with the copy of the Petition and executed Order.
      6. By letter dated April 21, 1982,1 provided Mr. Schaffler with a copy of the Petition and Order of April 19, 1982.
      Of interest to this Court is the fact that Exhibit D makes no mention of the plaintiffs. Therefore, aside from the reasons mentioned infra for holding the Exhibits privileged, no evidence appears in this document which would lead one to conclude that it was intended to defame the plaintiffs.


author: CIRILLO, President Judge:

text:
    540 A.2d 280
    COMMONWEALTH of Pennsylvania v. Richard WAGGONER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1987.
    Filed April 4, 1988.

      Sarah R. Nichols, Assistant Public Defender, Paoli, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Chester County. We reverse and remand for a new trial.

At approximately 1:30 a.m. on July 24, 1986, Patrolman Lester J. Neri of the Tredyffrin Township Police Department arrested the appellant, Richard Waggoner, for driving under the influence of alcohol. At the time, Officer Neri requested Waggoner to perform a field sobriety test. Following the test, Neri read Waggoner his Miranda warnings and advised him of the Implied Consent Law, 75 Pa.C.S. § 1547. Waggoner was then transported to Paoli Memorial Hospital. At the hospital, Waggoner refused to submit to a blood test. Subsequently, Waggoner was taken to the Tredyffrin Township Police Station where he was informed that he was to be videotaped. While on camera, Neri read Waggoner his Miranda warnings again. With one exception, Waggoner answered in the affirmative when asked if he understood each right as it was read to him. That exception occurred when Waggoner was asked by Neri if he had understood that a lawyer could be appointed for him free of charge before any questioning. Waggoner answered, “I can’t afford a lawyer.” Officer Neri responded to Waggoner’s reply by simply continuing to read Waggoner the remaining Miranda warnings.

As the taping continued, Waggoner reenacted the field sobriety tests he had performed at the scene of his arrest. During the tests, Waggoner asked Officer Neri for clarification of the instructions on how to perform various parts of the tests and commented several times on the quality of his performance. He made it clear during the videotaping that he had arthritis of his hip and knee but was still willing to cooperate with the testing. Upon completion of the field sobriety tests, Neri interviewed Waggoner. In the middle of the interview, Neri asked Waggoner if he had been drinking alcoholic beverages recently. After asking Neri to clarify what time frame was involved, Waggoner responded that he had been drinking alcohol three hours before his arrest and detention. After a few more questions, the interview and the taping terminated.

Following a jury trial before the Honorable Robert S. Gawthrop, III, Waggoner was found guilty of driving while under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(1). Waggoner’s post-trial motions were denied, and he was sentenced to a period of imprisonment of not less than thirty days nor more than twenty-three months. This appeal ensued.

On appeal, Waggoner raises the issue of whether the trial court erred in failing to suppress the videotape depicting him making an inculpatory statement and reenacting the field sobriety tests. Waggoner argues that admission of the videotape violated his fifth and sixth amendment rights which are applicable to the states through the fourteenth amendment. Furthermore, Waggoner claims that he invoked his right to counsel by the responses he gave to Neri’s second reading of his Miranda warnings during the videotaping.

I. Fifth Amendment

The fifth amendment provides each individual with the right not to be compelled to be a witness against oneself in any criminal case. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established safeguards to ensure that this fifth amendment right is not abrogated by the actions of overzealous police during custodial interrogations. The safeguards created were stated by the Miranda court as follows:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning.

Id. at 444-45, 86 S.Ct. at 1612. Unless these safeguards are followed, Miranda prohibits prosecutorial use of a defendant’s statements.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the fifth amendment “privilege protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature, and that the withdrawal of blood” and admission of a blood analysis report does not involve the compulsion prohibited by the fifth amendment. Id. at 761, 86 S.Ct. at 1830. Thereafter, in Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1975), our Superior Court used Schmerber as the basis for ruling that Miranda warnings are not required when a defendant is requested to take a field sobriety test. Id., 230 Pa.Superior Ct. at 572, 327 A.2d at 381; see also Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383, 387 (1980) (“requiring a driver to perform physical tests ... does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial and therefore no Miranda warnings are required.”); accord, State v. Nece, 206 N.J.Super. 118, 501 A.2d 1049 (Law Div. 1985) (fifth amendment does not apply to physical movements involved in sobriety tests because the movements are nontestimonial). The Kloch court stated, “[T]he driver is the source of ‘real or physical evidence,’ compulsion of which does not come within the purview of the fifth amendment.” 230 Pa.Super. at 572, 327 A.2d at 381 (citation omitted). Since requiring a defendant to perform a field sobriety test does not involve the type of compulsion associated with the fifth amendment, no Miranda warnings were required prior to videotaping Waggoner performing the physical acts involved in the sobriety tests. Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 No. 2570 Philadelphia 1987 (1987). However, in addition to performing the physical acts involved in the sobriety tests, Waggoner asked questions and made comments during the course of the sobriety tests. Furthermore, after the tests, Waggoner answered questions posed by Officer Neri. These verbalizations are within the purview of the fifth amendment. In Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385, (1987), Bruder was stopped by a police officer for driving through a red light. Upon noticing Bruder’s demeanor, the police officer asked him to recite the alphabet and walk in a straight line, heel to toe. The court held that although Bruder’s act of walking in a straight line was a physical test not requiring Miranda warnings, his recitation of the alphabet was communicative in nature. Therefore, we held that because the alphabet recitation was elicited before Bruder had received his Miranda warnings, the recitation should have been excluded as evidence.

In Commonwealth v. Conway, Bruder was utilized in determining whether the audio portion of a videotaped sobriety tests should have been suppressed. In Conway, the defendant invoked his right to remain silent and his right to counsel while the Miranda warnings were given to him during the videotaping. Following Conway’s invocation of these rights, he was filmed performing three sobriety tests. As he performed the tests, Conway spoke to get occasional clarification concerning the officer’s oral instructions. The officer also requested that Conway count from 1,001 to 1,030 while balancing on one leg. After Conway had completed the tests, the police officer asked him questions, including how much and what he had drunk prior to his arrest. In concluding that these verbalizations were testimonial, the Conway court reasoned:

[Mr. Conway] was required to give more than physical evidence when he demonstrated his physical coordination on the sobriety tests. The test procedure was structured so that [Mr. Conway] was compelled to reveal his thought processes by asking for clarification of some of the officer’s instructions, and his statements in response thereto manifest his confusion. Because confusion is arguably a sign of intoxication, [Mr. Conway] was forced to incriminate himself by ‘communicating’ his confusion while performing the tests____ That [Mr. Conway’s] statements are communicative cannot be questioned in light of our conclusion that Mr. Bruder’s recitation of the alphabet was communicative. Mr. Bruder was told by the police exactly what to say while the content of [Mr, Conway’s] statements was more within his volitional control. By seeking clarification of the police officer’s instructions, [Mr. Conway] expressed his thought processes far more than did Mr. Bruder in his recitation. There is a greater communicative or testimonial aspect in [Mr. Conway’s] statements than in Mr. Bruder’s recitation.

534 A.2d at 546, 547. In addition, the Conway court determined that the defendant’s statements were compelled. The court theorized that the conduct of the police during the videotaping elicited the testimonial statements the Commonwealth sought to use against him at trial. Because of the pressure to perform the sobriety tests correctly, Conway was compelled to ask for a clarification of the police officer’s instructions each time he was unsure whether he had understood them. Finally, the Conway court held that because the verbalizations during the videotape procedure were testimonial and compelled, they were covered by the fifth amendment; since Conway had not waived his Miranda rights, the audio portion of the videotape was inadmissible at his trial. Similarly in the case at bar, Waggoner’s verbalizations during the videotaping must be suppressed unless he made a voluntary, knowing, and intelligent waiver of his rights after receiving his Miranda warnings.

II. Sixth Amendment

The decisions involving the sixth amendment have for the most part concerned questions of how “interrogation” is to be defined in that context, that is, whether the traditional conception of interrogation is to bound the parameters of the sixth amendment analysis. See generally Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo.L.J. 1 (1978). We are not faced with the difficult question here of whether or not what occurred between Waggoner and the police was or was not interrogation in any sense. The cases in which the question has been of importance involve scenarios in which police have made suggestive statements in attempts to elicit information without actually asking for it, See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), or a wired informer has pretended to play the role of confidant to an accused who was not then in a custodial situation, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In this case, there is no question that we are faced with a defendant in a custodial situation. The question we must determine is whether the sixth amendment had attached at that point, and if it had, whether any deliberate attempt had been made to elicit information from him.

Following the rulings of the Supreme Court of the United States, an accused is guaranteed the right to counsel when an attempt is made by the government to deliberately elicit information after the commencement of adversarial proceedings against him. Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985); Brewer, 430 U.S. at 401, 97 S.Ct. at 1240; Massiah, 377 U.S. at 206, 84 S.Ct. at 1203. Although the Supreme Court has read this to mean that no sixth amendment right attaches prior to the filing of formal charges against the accused, Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297 (1980), relegating the period prior to formal charges to the protection of the fifth amendment, Kamisar, supra at 61, the courts of this Commonwealth have seen fit to hold that the right to sixth amendment protection adheres at arrest. Commonwealth v. Karash, 513 Pa. 6, 14, 518 A.2d 537, 541 (1986); Commonwealth v. Zabala, 310 Pa.Super. 301, 313, 456 A.2d 622, 629 (1983). Since Wag-goner had been arrested prior to the videotaping, his sixth amendment right had attached. This does not complete the inquiry, however. We must then determine whether or not the taping was a critical stage at which he retained his right to counsel.

The sixth amendment ensures that counsel will be present from the inception of the adversarial proceeding at every critical stage of that proceeding. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631, 638 (1986). This, according to the Supreme Court of the United States, is essential to a fair trial:

It is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the state at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment____ The presence of counsel at such critical confrontations, as well as at trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution.

United States v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (citations omitted). This court has held that a proceeding is a critical one mandating the presence of counsel if “ 'counsel’s legal training and expertise may then be employed on behalf of the accused to observe, discover and prevent possible unfairness or irregularity in ... procedures which may later irreparably prevent a basically unfair determination of guilt or innocence.’ ” Commonwealth v. Shirey, 333 Pa.Super. 85, 104, 481 A.2d 1314, 1324 (1984) (quoting United States ex rel. Stukes v. Shovlin, 329 F.Supp. 911, 913 (E.D.Pa.1971)). We must therefore scrutinize whether substantial prejudice to an accused’s rights arises from a particular proceeding, and whether counsel’s presence would aid in forestalling that prejudice. Id. In this case, we must consider the nature of the videotaping procedure.

As with our analysis of Waggoner’s fifth amendment right to counsel, the visual and audio portions of the videotape require separate treatment. We will first address the visual portion of the videotape. Videotaping of Waggoner’s field sobriety tests made exact reconstruction of his performance of the test possible. Instead of being exposed to a police officer’s description at trial of how Waggoner had performed the field sobriety tests, Waggoner had his performance accurately captured on tape. Moreover, since the fifth amendment provides no protection against having one’s physical performance of the tests recorded on videotape, his counsel’s presence at the videotaping would have made no difference. Waggoner would have still been required to perform the tests. Furthermore, when the videotape was shown at trial, Waggoner had the opportunity to argue that his poor performance of the tests was due to his arthritic condition rather than to his state of intoxication. Thus, any risk involved in the visual aspect of the videotaped sobriety tests could have been sufficiently cured at trial. Given these factors, the visual taping of Waggoner performing the sobriety tests cannot be labeled a critical stage entitling Waggoner to the sixth amendment’s right to counsel.

We turn next to the audiotaping portion of the proceedings. Although we have already determined that the audio portion of the tape must be suppressed because of fifth amendment violations, we will consider Waggoner’s sixth amendment arguments. We find that Waggoner’s sixth amendment right to counsel had attached at the time of his arrest. As is clear from the record, Waggoner was being questioned by the officers, and his answers were recorded on tape. As we have stated, the Supreme Court has held deliberately eliciting incriminating information after the sixth amendment right attaches implicates the accused’s right to a fair trial. Jackson, 475 U.S. at 629, 106 S.Ct. at 1407, 89 L.E.2d at 638; Moulton, 474 U.S. at 175 n. 11, 106 S.Ct. at 487 n. 11; Brewer, 430 U.S. at 401, 97 S.Ct. at 1240; Massiah, 377 U.S. at 206, 84 S.Ct. at 1203. According to the Court, these attempts at eliciting information, including interrogation in the usual sense, are critical stages at which counsel must be present. Jackson, 475 U.S. at 629, 106 S.Ct. at 1407, 89 L.E.2d at 638. As the Supreme Court said in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964):

[To hold otherwise] would make the trial no more than an appeal from the interrogation; and the “right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination” ... One can imagine the prosecutor saying: “Let them have the most illustrious counsel now. They can’t escape the noose. There is nothing that counsel can do for them at trial.”

Id. at 487-88, 84 S.Ct. at 1763.

Waggoner’s counsel, if present during the videotaping, may have been able to prevent at least some of the prejudice which inured to Waggoner as a result of the questions, comments, and statements he made during the taping. His counsel could have prevented him from incriminating himself by advising him to speak as little as possible during the tests and directing him not to answer certain or all of the questions posed by Officer Neri. Without his counsel’s aid, Waggoner was left to ramble on, preserving for everyone who views the videotape his intoxicated demeanor and his incriminating statements. No cross-examination at trial could remedy this memorialization. Therefore, we conclude Waggoner did have a sixth amendment right to counsel during the audiotaping of his sobriety tests and Officer Neri’s interrogation. Unless Waggoner waived his right to counsel, the audio component of the videotape should have been suppressed.

III. Waiver of Right to Counsel

At the scene of his arrest, Waggoner was given his Miranda warnings. At the suppression hearing, Officer Neri recounted the details of this first Miranda colloquy:

Q. What was the first question, if any, that you asked the defendant?
A. After giving him Miranda or do you want me to read the Miranda card?
Q. As part of the card, what was the first thing on the card which you asked defendant, if anything?
A. Pursuant to law, I am informing you that I am Officer Lester J. Neri of the Tredyffrin Police Department. I am investigating driving under the influence of alcohol and/or controlled substance. You have the right to remain silent. However, if you say anything, such can and will be used against you in a court of law. Do you understand this?
Q. What, if any, response did defendant make at that time?
A. He stated yes.
Q. What, if any, question did you request next?
A. You have the right to talk to a lawyer before answering the questions. You may have a lawyer with you before and during questioning. Do you understand this?
Q. Do you recall what defendant’s response was to that question?
A. The response was yes.
Q. What, if any, other response did he make relative to that question at that time?
A. None.
Q. What was the next question?
A. During questioning, you may stop at any time and refuse to answer any further questions. Do you understand this?
Q. What, if any, response did you receive to that question?
A. Defendant responded yes.
Q. Did he respond yes right away?
A. As far as I can recall.
Q. Do you recall anyone else being present when you asked that question?
A. Officer Reider was right in the general vicinity standing within a couple of feet of me.
Q. What was the defendant’s initial — did he respond right away in the presence of Officer Marc Reider?
A. Yes. Yes, he did, on the last question on the card, there was some problem with Officer Reider being there.
Q. What was the last question?
A. The last question, understanding these rights and having them in mind, do you wish to give up these rights and talk to me now?
Q. What, if anything occurred, after you asked that question?
A. Well, at first, the defendant didn’t respond at all and I asked him if he understood, and just about at that point in time, Officer Reider turned and walked towards his patrol car and the defendant, stated to me, I will talk to you, but I’m not going to talk to him, referring to Officer Reider as him.

Waggoner received his Miranda warnings again at the beginning of the videotaping. The relevant portion of those warnings proceeded as follows:

PATROLMAN NERI: You have the right to talk to a lawyer before answering any questions and have a lawyer with you before and during questioning. Do you understand this?
WAGGONER: Yes.
PATROLMAN NERI: If you cannot afford a lawyer, you have the right to have a free lawyer appointed for you before any questions are asked and during any questioning. This free lawyer is at no expense or cost to you. Do you understand this?
WAGGONER: I can’t afford a lawyer.
PATROLMAN NERI: During questioning, you may stop at any time and refuse to answer any further questions. Do you understand that?
WAGGONER: Yes, I do.
PATROLMAN NERI: Understanding these rights and having them in mind, do you wish to give up these rights and talk to me now?
WAGGONER: About what?
PATROLMAN NERI: Well there will be some questions I have here. If you wish to answer them you may, and if you don’t you just refuse to answer them and that’s perfectly all right.
WAGGONER: Well, ask them.
PATROLMAN NERI: Okay.
WAGGONER: I may answer them I may not, it depends, as I said, it depends on what the question is.

Waggoner contends that his comment “I can’t afford a lawyer” constituted an invocation of his right to counsel which barred any further custodial interrogation by the police. Moreover, Waggoner asserts that his response, “I. may answer them, I may not. It depends on what the question is,” to Neri’s inquiry about whether he would respond to questions, was clearly the response of a wary man. Therefore, Waggoner argues, the Commonwealth should have shouldered the burden of establishing an explicit waiver of his right to counsel.

Initially, we note that had Waggoner not been rewarned of his Miranda rights at the beginning of the videotaping, we would be required to examine the totality of the circumstances to determine whether he should have been re-warned. Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973). If our examination then revealed that his first warning was sufficient, our holding then would be that Waggoner voluntarily, knowingly, and intelligently waived his Miranda rights. However, the fact remains that Wag-goner was given a second Miranda warning and during this second warning he voiced an ambiguous statement regarding his understanding of his right to counsel.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (per curiam), the Supreme Court held that an accused who has expressed his desire to deal with the police only through counsel may not be subject to further interrogation by the authorities until counsel has been made available to him, unless the accused initiates further communication, exchanges, or conversations with the police. In Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the following exchange took place between a police officer and the appellant: “Q. You have a right to consult with a lawyer and to have a lawyer present with you when you’re being questioned. Do you understand that? A. Uh, yeah. I’d like to do that.” Id. at 93, 105 S.Ct. at 491. The Supreme Court held that this was an unambiguous invocation of the appellant’s right to counsel. In so holding, the Court noted that courts have developed conflicting standards for determining the consequences of an ambiguous or equivocal assertion of the right to counsel:

Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. Others have attempted to define a threshold clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e.g., People v. Krueger, 82 Ill.2d 305, 311, [45 Ill.Dec. 186, 412 N.E.2d 537, 540 (1980) (“[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,” but not “every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel”), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 390 (1981). Still others have adopted a third approach, holding that when an accused makes an equivocal statement that “arguably” can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to “clarify” the earlier statement and the accused’s desires respecting counsel.

469 U.S. at 96 n. 3, 105 S.Ct. at 493 n. 3. However, because Smith’s request for counsel was unambiguous under any of the various standards, the Supreme Court did not have to resolve the conflict between the courts. Id. at 93, 105 S.Ct. at 491.

In Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (plurality opinion), cert. denied, 477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986), the Supreme Court of Pennsylvania considered the Smith alternatives. The court reasoned that the first approach, in which all questioning must cease upon any mention of counsel no matter how ambiguous or equivocal, is unduly restrictive. The court then proceeded to apply the other two standards, concluding that under either of them, Hubble’s ambiguous request for counsel did not trigger the Edwards prophylactic rule. Id.

In Commonwealth v. Davis, 363 Pa.Super. 562, 526 A.2d 1205 (1987), the appellant was given his Miranda warnings and gave every indication of fully understanding them. Then:

[Appellant] said to the police that he wanted to talk about and make a statement regarding the crimes under investigation. Having said this, he was given a form on which were enumerated his rights under Miranda. Two questions to be answered at the bottom of the form contained a waiver proviso. To the first question, “Do you understand each of these rights I have explained to you,” [appellant] answered by writing the word, “yes” and his initials thereafter. To the second question, “Having these rights in mind do you wish to talk to us now?”, [appellant] wrote “no”. At trial the police officers testified that they were baffled by the written “no” answer in light of [appellant’s] oral statement immediately prior thereto that he wanted to make a statement regarding the crimes under investigation. As a result, they asked why he wrote “no” to the second question and [appellant] answered that he meant, “I don’t want an attorney.” After this exchange, the [appellant] wrote the word “yes” to this second question and his initials thereafter in substitution of the word “no”. [Appellant] then made his oral statement regarding the crimes involved in this case which the officers reduced to writing. The [appellant] signed the statement and initialed its pages.

Id., 363 Pa.Superior Ct. at 567-68, 526 A.2d 1208. The Davis court held that the questions by the police in their attempt to clarify the appellant’s intent in making the two conflicting statements were appropriate and commendable. The court reasoned that by attempting to clarify the ambiguity in the appellant’s responses without employing any coercive tactics, the police gave the appellant a “free and untrammeled choice of silence or speech.” Id., 363 Pa.Superior Ct. at 574, 526 A.2d at 1211.

When Waggoner was given his Miranda warnings during the videotaping, he stated that he could not afford a lawyer. This statement constituted an ambiguous assertion of his right to counsel. The statement was directly at odds with Officer Neri’s explanation to Waggoner that if he could not afford a lawyer, he could have one appointed for him free of charge. Considering Waggoner’s response, one could easily draw the conclusion that Waggoner had failed to understand that he could have a free lawyer appointed for him. Moreover, Waggoner’s statement would seem to indicate that if he could have afforded a lawyer, he would have wanted one present. Waggoner’s ambiguous response prevents one from stating with unswerving confidence that he fully understood he had the right to have a lawyer appointed for him at no cost and that he waived that right.

Officer Neri responded to Waggoner’s inconsistent reply by continuing with the Miranda colloquy. Unlike the officers in Davis, Officer Neri never attempted to clarify whether Waggoner had understood his right to have counsel free of charge. The fact that Waggoner ultimately decided that he might answer Neri’s questions depending on what the question was did not obviate the need to establish that he had understood and waived his right to counsel. In cases such as this, when a defendant’s statement regarding his Miranda rights is ambiguous and inconsistent with an officer’s explanation of those rights, the officer should ask questions to clarify what the defendant meant by his statement or why he made it. Simply ignoring the fact that the statement was made will not suffice. A defendant’s waiver of his Miranda rights is valid only if made voluntarily, knowingly, and intelligently. Miranda v. Arizona, supra. In light of the ambiguity in the appellant’s statement, we cannot state with a sufficient degree of certainty that he understood and waived his Miranda rights. The burden of proving by a preponderance of evidence that a waiver of a constitutional right was knowing, voluntary, and intelligent rests upon the Commonwealth. Commonwealth v. Hughes, 477 Pa. 180, 186, 383 A.2d 882, 885 (1978). Based on the foregoing, we cannot find that the Commonwealth met this burden. The audio portion of the videotape, therefore, should have been suppressed.

In summary, the visual portion of the videotape wherein Waggoner performed the physical acts of the field sobriety test was properly admitted into evidence. However, the audio portion of the videotape violated Waggoner’s right to counsel as provided by the fifth and sixth amendments and, consequently, should have been suppressed.

Based on the foregoing discussion, the judgment of sentence entered in the Court of Common Pleas of Chester County is reversed and this case is remanded for a new trial. Jurisdiction is relinquished.