author: McEWEN, Judge:

text:
    573 A.2d 562
    William BRESSLER, Appellant, v. DANNON YOGURT and William Hagstotz, Appellees.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed April 17, 1990.

      Anthony P. Baratta, Philadelphia, for appellant.
    Larry R. McDowell, Philadelphia, for appellees.
    Before CIRILLO, Presiding Judge, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH and JOHNSON, JJ.

       Melinson, J., did not participate in the consideration of or decision upon this appeal.

   McEWEN, Judge:

We here consider an appeal from a judgment entered after a jury found appellant, William Bressler, 50% causally negligent and assessed damages in the amount of $18,500. A divided panel of this Court found that the trial court had erred in instructing the jury that “if you find that [appellant] was in the act of crossing the roadway at a point other than within a crosswalk or an intersection then you should find him negligent. ” (emphasis supplied). Appellees filed a motion for reargument before the court en banc arguing that the award of a new trial was error and, in the alternative, that if a new trial is warranted, it should be limited to the issue of the percentages of comparative negligence of the parties. We find upon a consideration of the charge of the court as a whole that a new trial is necessary as to liability as well as damages.

At approximately 8:00 a.m. on a summer morning, appellee William Hagstotz, an employee of Dannon Yogurt, parked his delivery van at 4045 Ridge Avenue with the motor running while he purchased coffee from a restaurant across the street. Appellant, William Bressler, lived above the restaurant at 4034 Ridge Avenue and worked across the street at 4045 Ridge Avenue as a machine operator for Burgess & Whey. Hagstotz returned to his delivery van, opened the top on his coffee cup, checked his two rear view mirrors, and, when backing the van to move from the parking space into the lane of traffic, struck appellant with the rear of the delivery van.

The only witness to the accident, Constance Barber, was a passenger on a SEPTA bus which, while proceeding on Ridge Avenue in the same direction as the van, had stopped to let the van into the line of traffic. Ms. Barber testified that, while seated on the bus, she saw appellee’s van back up and strike appellant. Although the witness was unable to describe the contact between the van and appellant, she testified that she saw appellant lying face down in the street after being hit. Ms. Barber testified that the delivery van appeared to be parked in the parking lane and that there were vehicles parked in front of and behind the van. Appellant, who complained of numbness in his hands and forearms upon regaining consciousness, was treated at the emergency room of a local hospital for lacerations of his head and face and released.

Appellant suffered from a congenital abnormality of the spine and limbs, skeletal dysplasia or achondroplasia. Dr. Eugene Kopits, an orthopedic surgeon specializing in the treatment of skeletal dysplasia, appeared as an expert witness for appellant and testified that although he was unable to make a precise diagnosis of appellant’s disorder, he believed that appellant suffered from a form of skeletal dysplasia, probably in the group of the saurismosis or storage diseases. Dr. Kopits testified that as a result of this condition, appellant was short (4’-ll”) and had a narrowing of his spinal canal and/or a meningeal constriction of a segment of his cervical spinal cord. Dr. Kopits further testified that any type of blow to the head or neck or a trauma such as general anesthesia could cause an individual with this condition to suddenly suffer a range of symptoms from pain and weakness to paralysis and death.

Appellant, who had had his left hip replaced two years before the instant occurrence, underwent hip replacement surgery on his right hip three months after the accident. This surgery had been contemplated prior to the accident and was related to appellant’s congenital abnormalities. The medical records of the orthopedic surgeon who performed the hip surgery suggested that the surgery was successful and appellant’s recuperation uneventful. However, the following spring, appellant began experiencing pain and weakness in his neck and arms. Appellant’s condition continued to deteriorate and nineteen months after the accident, he underwent a cervical laminectomy complicated by congenital deformities of his cervical spine. The evidence produced at trial suggested that appellant, although still experiencing weakness of his limbs, recovered from the laminectomy. However, two and one-half years after the accident, appellant was admitted to Temple University Hospital and diagnosed as having sustained some type of damage to his brain, possibly caused by a stroke. Appellant exhibited weakness of his extremities, speech aphasia and disorientation at the time of his admission and his condition continued to deteriorate until he became completely bedridden, unable to communicate and totally dependent upon his sister for every facet of his existence.

Appellant’s expert witnesses testified that due to the congenital deformities of his spine, the trauma of the accident precipitated a chain of events leading directly to his present paralysis and brain damage. Even appellant’s experts, however, testified that they did not know the extent of or the exact mechanism which had caused the brain damage suffered by appellant.

Appellees’ expert, predictably, testified that even if the accident had contributed to the conditions necessitating the cervical laminectomy nineteen months after the accident, there was no correlation or connection between the laminectomy and all of the apparently permanent problems which beset appellant. Appellees argued that it was just as likely that appellant’s present condition was the result of a fall which allegedly occurred two years after the accident. Appellees argued that based upon the evidence indicating that appellant had recovered from the cervical laminectomy, appellees could be found liable for wage losses accruing only to the point at which appellee claimed that appellant could have returned to work following the laminectomy. As noted, the jury awarded appellant $18,500, representing lost wages from the date of the accident to the date of the cervical laminectomy, but failed to award any sum for pain and suffering or for lost wages for any period of recuperation following the laminectomy.

The question of causation was a difficult one, and was persuasively argued by both sides. The jury was faced with the difficult task of ascertaining, based upon conflicting evidence, the respective percentages of negligence of the parties and the effect of the appellant’s pre-existing condition as well as the cause of appellant’s current injuries. As a result of appellant’s incompetency, evidence concerning appellant’s conduct at the time of the accident was minimal, a situation which made the decision as to the comparative negligence of the parties even more difficult.

Appellant contends that a new trial must be awarded because a portion of the charge of the court was a “compulsory direction”, which misstated the applicable law and affected the decision of the jury upon the issue of the negligence of appellant. We are constrained to agree.

“It is well settled in our Commonwealth that when the propriety of the jury instruction of the trial court is at issue, those instructions must be viewed in toto to determine if any error has been committed. Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies.” Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). Accord: Ellis v. Graves, 385 Pa.Super. 168, 171, 560 A.2d 220, 222 (1989); Jistarri v. Nappi, 378 Pa.Super. 583, 588-89, 549 A.2d 210, 213 (1988); Spearing v. Starcher, 367 Pa.Super. 22, 28, 532 A.2d 36, 40 (1987). The court in this case provided the following instruction on the respective duties of the parties:

I first want to discuss the liability with you. The statute is clear that a person should not cross a roadway at any point other than within a crosswalk, at any intersection, or any marked crosswalk. If so, he should yield the right of way to all vehicles upon the roadway. However, we have to take that in view of the application of common sense.
We have here a plaintiff stepping off of a curb to cross the street or at least standing at a point near the curb in the middle of a roadway. We have to decide whether this plaintiff falls within the type of person that this accident [sic] was meant to cover. If the plaintiff was out there crossing in the middle of the street, there would be no doubt in our minds but here he is some distance, measurable distance, from the curb. The question is whether an automobile that is backing up, and whom the plaintiff may or may not have any idea was backing up, is covered by this section of the act which I will read again: “Every pedestrian crossing a roadway at any point other than within a crosswalk, at an intersection, or any marked crosswalk, shall yield to the right of way to all vehicles upon the roadway.” Do you understand that, ladies and gentlemen?
Now, we also have another statute which says, “No driver shall back a vehicle unless the movement can be made with safety and without interfering with other traffic and then only after yielding the right of way to moving traffic and pedestrians.” So that this statute states that no driver shall back his car up without allowing pedestrians to have passed. You must yield the right of way to moving traffic and pedestrians.
Now, the interpretation of the law is for the Court. However, as I said, the facts are for the jury. You must decide, based upon the testimony you have heard, whether the plaintiff was in the act of crossing the roadway. If you find that he was in the act of crossing the roadway at a point other than within a crosswalk or an intersection, then you should find him negligent. If you find that the driver was backing his vehicle and that he was backing in a manner that could not be made with safety and without interfering with pedestrians, then you will find the driver negligent. Is that clear to you?

(N.T. 505-506) (emphasis supplied).

The italicized portion of the charge of the court was based, in part, upon Section 3543(a) of the Motor Vehicle Code, which provides:

(a) General rule. — Every pedestrian crossing a roadway at any point other than within a crosswalk at any intersection or any marked crosswalk shall yield the right-of-way to all vehicles upon the roadway.

75 Pa.C.S. § 3543(a).

However, both the Supreme and Superior Courts, in considering the effect of this statute, have repeatedly held that the mere fact that a plaintiff crossed between intersections is insufficient to establish negligence on the part of the plaintiff. See, e.g., McKniff v. Wilson, 404 Pa. 647, 650, 172 A.2d 801, 803 (1961); Shuman v. Nolfi, 399 Pa. 211, 214, 159 A.2d 716, 718 (1960); Nugent v. Joerger, 387 Pa. 330, 332, 127 A.2d 697, 698 (1956); Ulmer v. Hamilton, 383 Pa. 398, 119 A.2d 266 (1956); Moore v. Esso, Standard Oil Co., 364 Pa. 343, 347, 72 A.2d 117, 120 (1950); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Lavely v. Wolota, 253 Pa.Super. 196, 202, 384 A.2d 1298, 1302 (1978); Gregorich v. Pepsi-Cola M.B. Co., Inc., 230 Pa.Super. 144, 148, 327 A.2d 171, 173 (1974); Moore v. Zimmerman, 221 Pa.Super. 359, 363, 292 A.2d 458, 460 (1972); Dean v. Trembley, 185 Pa.Super. 50, 51, 137 A.2d 880, 884 (1958).

Thus, the italicized portion of the charge, to which appellant timely objected, was certainly erroneous. The trial court subsequently indicated to counsel, in response to a question from the jury, that it intended to repeat its earlier instructions. Counsel for appellant again argued that, based upon Gregorich v. Pepsi-Cola, supra, the compulsory direction on the duty of a pedestrian was a misstatement of the law. The court, after reviewing Gregorich, proceeded to charge the jury on the presumption of due care, and the respective duties of driver and pedestrian:

Now, I want to read to you what I had read earlier about the pedestrian and the motorist.
“Every pedestrian crossing a roadway at any point other than within a crosswalk, at an intersection, or any marked crosswalk shall yield the right of way to all vehicles upon the roadway.”
Now, as I told you earlier, you have here a vehicle that was on the roadway and going in reverse. We have here a plaintiff who was crossing at a point other than within a crosswalk at an intersection or at a marked crosswalk. As the law points out, he should yield the right of way to all vehicles upon the roadway. Is that clear to you. Now, there is a section called “Limitation on Backing, Going in Reverse: No driver shall back a vehicle unless the movement can be made with safety and without interfering with other traffic and then only after yielding the right of way to moving traffic and pedestrians,” and this plaintiff was a pedestrian. Is that clear to you?

N.T. 477-478.

The trial judge, despite his earnest effort to afford the jurors a clear understanding of the law and thereby the parties a fair trial, misstated the applicable law in his original charge and failed, in his supplemental instructions, to rectify the error or clarify the issue for the jury. At the conclusion of the supplemental charge, the jury was still under the misapprehension that appellant could be found negligent solely because he had attempted to cross Ridge Avenue in the middle of the block.

The jury, instead, should have been instructed that a pedestrian may not cross between intersections without exercising due care, and whether such care has been maintained is a question of fact to be determined by the jury after being adequately instructed as to the applicable standard of care. Brown v. Jones, supra 404 Pa. 513 at 517-518, 172 A.2d 831 at 834 (1961).

In Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957), the Pennsylvania Supreme Court set the standard of care to be used by a pedestrian when crossing a street other than at the intersection. The Court held:

It is well established that where a pedestrian traverses a street at other than a regular crossing he is bound to exercise a higher degree of care for his own safety than would be the case were he crossing at an intersection. Harris v. DeFelice, 379 Pa. 469, 475, 109 A.2d 174; Rucheski v. Wisswesser, 355 Pa. 400, 50 A.2d 291. The reason for the rule is apparent for he is crossing at a place where vehicular traffic could not be expected to anticipate a pedestrian.. Schweitzer v. Scranton Bus Co., 344 Pa. 249, 25 A.2d 156. It is equally well settled that it is the duty of a pedestrian to look before he undertakes a street crossing and to continue to look as he proceeds and such duty is particularly incumbent upon one who traverses a street between intersections.

Auel v. White, supra at 213, 132 A.2d at 353.

The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide____ If the charge is wholly inadequate or not clear, or has a tendency to mislead and confuse rather than to clarify the issues, a new trial will be granted____ The functions of a trial judge embrace not only the duty to state to the jury correct principles of law applicable to the pending case and to endeavor to make such principles understandable in plain language, but they also impose upon the judge the duty to assist the jury in applying those principles to the issues presented to them for determination. McEwan v. Yellow Cab Co., 182 Pa.Super. 219, 224, 126 A.2d 816, 819 (1956), quoting Archer v. Pennsylvania Railroad Co., 166 Pa.Super. 538, 541, 72 A.2d 609, 611 (1950) (citations omitted).

Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987). The jury in the instant case was misled as to the effect of a finding that appellant was crossing the street between intersections when hit. Thus, the finding of the jury as to the negligence of appellant cannot stand.

Appellee contends that the error was harmless since the court charged on the presumption of due care. We find this argument meritless. The court, in its charge, repeatedly instructed the jury that the presumption of due care would be applicable only if they found that appellant’s incompetency “resulted from the accident”. Thus, the jury never considered the presumption of due care in favor of appellant since, as evidenced by their verdict which restricted the award of damages to lost earnings only until the date of the laminectomy, they concluded that appellant’s incompetency had not been caused by the accident.

Although we are not convinced that the presumption was applicable only where the party’s incapacity could be proven to have resulted from the accident at issue, the question is moot in light of the abolition of the presumption of due care in favor of a deceased or incapacitated party by our Supreme Court in Rice v. Shuman, 513 Pa. 204, 519 A.2d 391 (1986). We are persuaded, contrary to the decision of the panel in Vihlidal v. Braun, 371 Pa.Super. 565, 538 A.2d 881 (1988), allo. granted, 520 Pa. 619, 554 A.2d 510, January 31, 1989, appeal dismissed, March 21, 1990, by our study of the majority and dissenting opinions in Rice that the Rice Court invalidated the presumption of due care for all purposes. As noted by Chief Justice Nix,

“[a] definitive resolution by this Court of the impact of comparative negligence upon the continuing viability of the presumption of due care in the jurisdiction has heretofore proven elusive. The difficulty arose because of our failure to first focus upon the role that the presumption was perceived to fulfill and then to examine its success in achieving the anticipated result. Utilizing such an analysis it becomes obvious that the limited benefit derived from the use of the presumption under prior law is clearly no longer present as a result of the adoption of a system of comparative negligence within this jurisdiction

Rice, supra, 513 Pa. at 209-10, 519 A.2d at 394 (emphasis supplied).

While this Court in Vihlidal v. Braun, supra, citing the failure of our Supreme Court to specifically overrule Waddle v. Nelkin, 511 Pa. 641, 515 A.2d 909 (1986), concluded that the applicability of Rice was limited to incapacitated defendants, we believe, upon further reflection, that the Court intended to abrogate the presumption of due care, regardless of whether it was invoked by plaintiff or defendant, and to substitute in its place “the recognition of the natural instinct of self-preservation [as] one of the factors that a jury may take into consideration in evaluating the evidence of negligence that is offered against any party so charged.” Id., 513 Pa. at 213, 519 A.2d at 396. In any event, as we have noted, our study of the charge of the court as a whole, compels the conclusion that a new trial must be awarded.

Nor do we accept the contention that the award of a new trial should be limited to the issue of the comparative negligence of the parties. The jury in the instant case found by their verdict that, as a result of the accident, appellant was unable to work during the nineteen month period from the date of the accident to the date of appellant’s cervical laminectomy, and awarded lost wages for that period. Despite uncontradicted evidence that appellant could not have returned to work until months after the laminectomy, the jury did not award appellant any sum for lost wages for the period of recovery following the laminectomy. Most importantly, in spite of uncontroverted evidence concerning pain and suffering, the jury did not award appellant any damages for pain and suffering or loss of life’s pleasure.

The amount of the verdict in a personal injury action, which is an issue for the jury, will rarely be set aside as inadequate on appeal. However, inadequacy of a verdict will be found and a new trial awarded where the verdict is

... so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand.

Deitrick v. Karnes, 329 Pa.Super. 372, 376, 478 A.2d 835, 836-837 (1984). Accord: Dawson v. Fowler, 385 Pa.Super. 329, 331-32, 558 A.2d 565, 566-67 (1989); Reimer v. Tien, 356 Pa.Super. 192, 209-212, 514 A.2d 566, 574-575 (1986).

The evidence established that appellant could not return to work on the day after the cervical laminectomy and thus was entitled to lost wages until his recovery from the surgical procedure. Moreover, since the jury found that the operation had been necessitated by the accident, appellant was entitled to a reasonable amount for pain and suffering for those injuries which the jury found to have been caused by the accident. See: Bedillion v. Frazee, 408 Pa. 281, 284, 183 A.2d 341, 343 (1962).

As it is evident that the erroneous instructions tainted the verdict of the jury, the award of a new trial cannot be limited to the issue of the comparative negligence of the parties.

Judgment vacated. Case remanded. Jurisdiction relinquished.

TAMILIA, J., concurs in the result.

      . Judge Del Sole concluded that the "compulsory direction” required an award of a new trial as to all issues. Judge Wieand concurred in the decision that a new trial was necessary but disagreed with the conclusion of Judge Del Sole that our Supreme Court did not, in Rice v. Shuman, 513 Pa. 204, 519 A.2d 391 (1986), abolish the presumption of due care in favor of a deceased or incapacitated party. Judge Cavanaugh dissented, finding that the court's instructions, when considered as a whole, were not misleading.

      . Dr. Kopits testified: “In the particular case of Mr. Bressler, he would fit, as far as I can see, in the mucopolysaccharidosis group which, again, means that there is a storage of certain materials different from each one of the conditions within the lysosomes. Essentially they are lysosomal-enzyme diseases____ I think it can be simply explained for the sake of the jury, that, yes, there are certain conditions in which there is abnormal storage of some components that are normally present, but for some obscure reason that we do not yet understand, in these diseases, these substances are just stored up in the cells and the cells can't get rid of it.”

      . The verdict sheet executed by the foreman of the jury found the driver of the truck and appellant both causatively negligent, assessed the percentage of the negligence of appellant at 50%, and found appellant’s damages to be $18,500. The verdict sheet bears the handwritten notation next to the amount of the damages: "wages from 8-10-78 [the date of the accident] to 8-6-80 [the date of the laminectomy]’’.

      . The jury requested that they be provided "a copy or be reinformed as to the law regarding the driver and the pedestrian.”

      . The court’s supplemental instruction on the presumption of due care provided:
      When a person injured in an accident is rendered incompetent by his injuries or has lost his memory as a result of his injuries so that he is unable to testify as to how the accident occurred, the law presumes that at the time of the accident that person was using due care for his own safety. However, this presumption may be rebutted by evidence. If you find from a preponderance of the evidence that the injured person was not exercising such care, then you must determine whether the injured person’s contributory negligence was a substantial factor in bringing about his harm.

        Now, you recall I told you about presumptions. Now you will have to determine whether the present incompetence of this man is a result of this accident and then decide whether he is entitled to this presumption. Is that clear to you? If you feel that his condition of incompetence came about as a result of this accident, then you can apply the presumption; but, also remember, that however this presumption may be rebutted by evidence, if you find from a preponderance of the evidence that the injured person was not exercising such care, then you must determine whether the injured person’s contributory negligence was a substantial factor in bringing about his harm.

        So first you decide whether the incompetence resulted from this accident. If you find it did, then he is entitled to the presumption; but then you must decide whether that presumption has been rebutted by the evidence. If you find that his present condition or that his condition of incompetence did not result from this accident, then he is not entitled to the presumption at all. Is that clear to you?
      N.T. 545-546 (emphasis supplied).

      . The dissenting opinions in Rice also suggest that the majority intended to abolish the presumption as to all parties.

        [T]his presumption — the presumption that a deceased or incompetent was using due care at the time of the accident — has been and should be given some weight as evidence to be weighed by the jury with any conflicting evidence, and the jury should be instructed to view the presumed fact (of due care) as the equivalent of testimony by the decedent or incompetent that he was using due care at the time of the accident.

        Rice, supra, 513 Pa. at 214, 519 A.2d at 397 (Larsen, J. dissenting) (emphasis in original).

      . The court also provided conflicting instructions upon the issue of contributory negligence:
      The defendants claim that the plaintiff was contributorily negligent and the defendant has the burden of proving the existence of such negligence. One who is contributorily negligent cannot recover damages for any injury he has sustained. It is not permissible to attempt to balance, compare, or match the negligence of one party against that of another. You must, therefore, determine whether the plaintiff was negligent in that as an ordinary prudent person under all the circumstances then present he failed to exercise reasonable care for his own safety. If you find that the plaintiff was negligent, you must then determine whether the plaintiffs conduct was a substantial factor in bringing about any injury to the plaintiff. If your answer is affirmative on both scores, that is, that the plaintiff was negligent and that his negligent conduct was a substantial factor in causing his injury, then, in accordance with certain rules that I will give you later, you will have to make a determination as to whether your verdict should be for the defendant. Those rules, ladies and gentlemen, accord with the concept of comparative negligence. I will charge you later on as to comparative negligence.
      N.T. 447-478 (emphasis supplied).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    573 A.2d 569
    COMMONWEALTH of Pennsylvania v. Rebecca ZELINSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1990.
    Filed April 18, 1990.

      Mark S. Love, Mt. Pocono, for appellant.
    Curtis J. Rogers, Asst. Dist. Atty., East Stroudsburg, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Monroe County after a conviction of driving under the influence of alcohol. 75 Pa.C.S.A. § 3731(a)(1) and (4). We are called upon to decide: (1) whether the charge to the jury adequately and accurately explained the relevant principles of law to the jury; (2) whether the suppression court erred in not suppressing the results of a blood alcohol test; (3) whether the blood test was properly admitted under the rules of evidence; (4) whether there was sufficient evidence to prove beyond a reasonable doubt that appellant committed the crimes charged; and (5) whether the sentencing court abused its discretion when it sentenced appellant to not less than 30 days nor more than one year of confinement. We affirm.

On September 30, 1988, Brian Hodge, a volunteer fire fighter, was heading westbound on Route 940 when he came upon appellant’s vehicle. He noticed it because it was traveling very slowly, fluctuating between 10 and 30 miles per hour, and the driver was constantly stepping on the brakes. He observed the vehicle cross the center double yellow dividing line more than once. Hodge activated his blue strobe light and appellant pulled over to the side of the road. Hodge asked appellant if there was a problem. Appellant said she was having problems with her steering. Appellant’s words were slurred, her eyes were glassy, she was having difficulty staying erect in her seat, and Hodge smelled alcohol. As a fire fighter, Hodge had had previous experience with individuals under the influence of alcohol. Hodge wanted appellant to drive up the road and pull into a restaurant’s parking lot. He hoped he could take appellant’s car keys and have the local police escort her home. Appellant pulled onto the highway, heading westbound in the eastbound lane. Four vehicles swerved around appellant, some of which went off the roadway. A fifth vehicle was not able to swerve around appellant and a head-on collision occurred. The driver of the fifth vehicle required hospitalization, as did appellant.

Police Officer Phillips arrived on the accident scene and detected a moderate odor of alcohol emanating from appellant. Appellant was taken to Pocono Medical Center where Officer Phillips requested a sample of appellant’s blood. At the time the sample was requested, appellant was not under arrest, nor was she informed of her rights under the implied consent law. Appellant’s blood alcohol content was determined to be .25%.

I.

Appellant contends that the trial judge’s charge to the jury was so erroneous that a new trial is required.

75 Pa.C.S.A. § 3731(a)(1) and (4) defines the offense of driving under influence of alcohol as follows:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
* * * * * *
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

It is well known law that a trial court is free to use its own form of expression in jury instructions so long as those instructions adequately, accurately, and clearly explain the principles of law for the jury. Commonwealth v. Litman, 276 Pa.Super. 114, 116-117, 419 A.2d 121, 123-124 (1980). We have reviewed the court’s instructions to the jury in their entirety. We are convinced that the instructions adequately, accurately, and clearly explained the relevant principles of law to the jury.

II.

Appellant advances two arguments to support her contention that the results of the blood alcohol test should have been suppressed.

First, appellant asks this Court to retreat from the position we advanced in Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938; allocatur denied, 520 Pa. 614, 554 A.2d 507 (1988). In Knowles, appellant argued that “weighty public policy considerations” required that an individual who was involved in an accident or placed under arrest for violating § 3731 be informed of his right to have a physician of his own choice draw and test blood. Knowles, supra, 540 A.2d at 939-940. In that case, this Court declined appellant’s invitation to usurp the power of the Legislature by disregarding the clear import of the statute. Id.

Appellant argues that the results of the blood test should have been suppressed because she was not advised of her right to an additional, independent test under 75 Pa.C.S.A. § 1547(h) and (i). She argues that fundamental fairness requires that since she is entitled to be informed that her driving privileges can be revoked if she does not submit to chemical testing, then she should be entitled to be informed that she has a right to request additional and independent chemical testing so that she can protect her fundamental right to present defensive evidence at trial.

Appellant cites case law from eight other jurisdictions which require that a defendant be informed of his/her right to an additional and independent chemical test. We decline to follow these other jurisdictions. We will not retreat from the position we advocated in Knowles, because as we stated in Knowles, any change must issue from the Legislature. Knowles, supra, at 940.

Appellant’s next argument in support of her contention that the blood alcohol test result should have been suppressed is that Officer Phillips did not inform her of her right to refuse the test pursuant to 75 Pa.C.S.A. § 1547(b)(2).

In Commonwealth v. DeFaveri, 352 Pa.Super. 96, 507 A.2d 398 (1986), we stated that the right to revoke implied consent is directed at motorists arrested for driving under the influence. DeFaveri, supra, at 401. Since appellant was not under arrest at the time the blood sample was obtained, she could not revoke her implied consent. Appellant’s argument, therefore, fails. The trial judge did not err in admitting the results of the blood alcohol test.

III.

Appellant argues that she should be granted a new trial because the Commonwealth did not establish a sufficient foundation to justify the admission into evidence of the blood alcohol test result. Specifically, appellant alleges that Commonwealth failed to offer evidence that: (1) Pocono Medical Center was an approved facility for the collection of a blood sample; and (2) the person who withdrew the blood sample was a qualified person as defined in 75 Pa.C.S.A. § 1547(c). (Appellant’s brief at 22.)

Regarding appellant’s first argument in support of this issue, we have closely scrutinized § 1547 and cannot find a requirement that the facility where the blood is collected must be an approved facility. There is a requirement that the actual testing of the blood must be performed by a clinical laboratory licensed and approved by the Department of Health. The blood alcohol test was performed at the Pennsylvania State Police Regional Laboratory in Wyoming, Pennsylvania. This laboratory is approved by the Department of Health. (Trial court opinion of June 27, 1989.)

Appellant’s second argument on this issue is that she should receive a new trial because there was no evidence that the person who withdrew the blood at Pocono Medical Center was a qualified person as defined in § 1547(c). Again, we must disagree with appellant.

In Commonwealth v. Mahaney, 373 Pa.Super. 129, 132-133, 540 A.2d 556, 559-560, allocatur denied, 520 Pa. 587, 551 A.2d 214 (1988), we stated that 75 Pa.C.S.A. § 1547(c) focuses on the qualifications of the person performing the blood testing and the equipment used, not the technician who drew the blood. See also Commonwealth v. Stine, 372 Pa.Super. 312, 539 A.2d 454, allocatur denied, 520 Pa. 588, 551 A.2d 215 (1988). In Mahaney, the qualifications of the person who actually performed the testing were established at trial. In the case sub judice, the qualifications of the person who performed the testing were established by stipulation. (N.T. at 88-89.) In Mahaney, the technician was qualified for his position by the hospital and withdrew the blood under police supervision. In the case sub judice, the duties of the technician who withdrew the blood included taking blood specimens (N.T. at 9); therefore, she was qualified to take blood samples by the hospital. Also, as in Mahaney, the police officer who arrested appellant was present when the blood sample was taken. (N.T. at 74.) In Mahaney, we stated that under its facts the only reason to call the technician who drew the blood would be to establish the chain of custody. We stated that when the police observe the technician withdraw the blood, the Commonwealth need not call the technician. Similarly, in the case before this Court, focusing on the qualifications of the technician who withdrew the blood is unwarranted. The focus should be on the chain of custody and the qualifications of the person who performed the testing. With such a focus, we find that the chain of custody was adequate and that the qualifications of the person performing the test were stipulated to by the parties.

IV.

Appellant’s argument on the sufficiency of the evidence is that the Commonwealth did not present any evidence at trial from which a jury could conclude that appellant’s blood alcohol level was .10% or greater at the time of the accident. Specifically, appellant argues that Commonwealth presented evidence that appellant’s blood alcohol level was .25% approximately one hour after the accident and that expert testimony was necessary to interpret the test result and arrive at a conclusion that appellant’s blood alcohol level was .10% at the time of the accident. Since the Commonwealth presented no such expert witness to interpret the test result, the jury’s verdict had to be based on conjecture and speculation. We disagree.

We have held in a line of cases that the Commonwealth need not present expert testimony relating a blood alcohol test back to the time of a vehicular offense, and that the absence of expert testimony relating back a remote test result would not render the test result insufficient to convict a defendant of violating 75 Pa.C.S.A. § 3731(a)(4). Commonwealth v. Boyd, 373 Pa.Super. 298, 299, 541 A.2d 21, 22 (1988); Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263, allocatur denied in Speights v. Commonwealth, 517 Pa. 594, 535 A.2d 83 (1986).

When reviewing the sufficiency of the evidence, we must accept as true all of the evidence and view it in the light most favorable to the verdict winner. The appropriate test is whether the evidence, when viewed in this light, together with all reasonable inferences drawn therefrom, is sufficient to prove guilt beyond a reasonable doubt.

Boyd, supra 541 A.2d at 22 (internal citations omitted).

At trial, Brian Hodge, a volunteer fire fighter with experience dealing with intoxicated persons, testified that he observed appellant’s motor vehicle weaving down the roadway. He observed her cross the center double yellow dividing line on more than one occasion and constantly step on the brakes while her speed fluctuated between 10 and 30 miles per hour. (N.T. at 15-16.) Hodge activated his blue overhead lights and appellant pulled over. He inquired whether she was having any trouble with her vehicle. Hodge smelled alcohol and observed that appellant’s eyes were glassy. Appellant was having trouble staying erect in her seat. (N.T. at 17.) Hodge testified that appellant then drove back onto the highway, heading westbound in the eastbound lane. Four vehicles swerved to miss her, but a fifth vehicle did not miss. Hodge stated that he believed appellant was intoxicated. (N.T. at 18.) The police officer who responded to the scene of the accident, Officer Phillips, testified that he detected a moderate odor of alcohol coming from the appellant. (N.T. at 71.) We believe these facts are sufficient for a jury to find beyond a reasonable doubt that appellant was guilty of the crimes charged.

V.

Appellant’s final contention is that her sentence of imprisonment of not less than 30 days nor more than one year was too harsh and should be vacated. We disagree.

To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.App.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 1410, Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975), Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); (3) whether appellant’s brief has a fatal defect, Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), Pa.R.A.P. 2119(f), Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989), Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988), Krum, supra; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). We are inclined to find the presence of a substantial question where appellant advances a colorable argument that the trial judge’s actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). See also, Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

The issue concerning the excessiveness of sentence was properly preserved and appellant filed a timely notice of appeal; however, there is a defect in appellant’s brief. In Tuladziecki, supra, our Supreme Court stated that pursuant to Pa.R.A.P. 2119(f), an appellant who challenges the discretionary aspect of a sentence in a criminal matter must set forth in his/her brief, immediately preceding the argument on the merits, a concise statement of the reasons relied upon for the allowance of appeal with respect, to the discretionary aspects of the sentence. Tuladziecki, supra, 522 A.2d at 19-20. See also, 42 Pa.C.S.A. § 9781(b). This statement allows us to determine whether we will exercise our discretion to reach the merits of the issue. Appellant’s brief does not set forth in a separate section a concise statement of the reasons relied upon for allowance of appeal. This omission ordinarily would be fatal, but the Commonwealth has failed to object to this omission; therefore, appellant’s failure to comply with this procedural requirement is waived. Krum, supra, 533 A.2d at 138.

We now reach the fourth part of our analysis: whether there is a substantial question that appellant’s sentence is not appropriate under the Sentencing Code. We must determine whether any of the sentencing judge’s actions were inconsistent with a specific provision of the Sentencing Code.

Appellant alleges that the sentencing judge did not state any reason for imposing a sentence greater than the minimum. (Appellant’s brief at 29.) Failure to state such reasons in open court at the time of sentencing is a substantial question. Losch, supra 535 A.2d at 119 n. 7, citing Commonwealth v. Tilghman, 366 Pa.Super. 328, 330 n. 2, 531 A.2d 441, 443 n. 2 (1987) (dictum) (failure to comply with 42 Pa.C.S.A. § 9721(b) presents substantial question). Based upon appellant’s allegation that the sentencing judge did not enter into the record the reasons for his sentence and upon our review of the record, we find that appellant has presented a colorable argument that a substantial question exists; hence, we will exercise our discretion to hear the appeal.

We will now consider the merits of the issue. Our standard of review in matters of sentencing is well known. The imposition of a sentence by a trial judge will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982). A manifest abuse of discretion exists where “in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or illwill____” Commonwealth v. Jackson, 336 Pa.Super. 609, 619, 486 A.2d 431, 441 (1984) (internal citations omitted). We give great weight to the sentencing judge’s discretion since he is in the best position to measure various factors which enter into the determination of a sentence. Commonwealth v. Anderson, 381 Pa. Super. 1, 9, 552 A.2d 1064, 1072 (1988).

Appellant admits that her sentence falls within the statutory limits. (Appellant’s brief at 29.) Appellant argues that the sentencing judge’s sentence was too harsh because she is a first-time offender, the accident victim has recovered, appellant has exhibited remorse, the County Probation Department recommended the minimum sentence, and there is no evidence to suggest that appellant poses a danger to the public or that she is in need of rehabilitation. We find no abuse of discretion on the part of the sentencing court judge. The judge acknowledged that appellant was a first-time offender but he stated that he was imposing this sentence because a serious traffic accident had occurred. We will not substitute our judgment for that of the sentencing court judge.

Judgment of sentence affirmed.

      . We are aware of the holding in Commonwealth v. Wolpert, 224 Pa.Super. 361, 308 A.2d 120 (1973). DeFaveri and Wolpert represent a split in authority. We have followed the authority of DeFaveri because it is more recent than Wolpert and because Wolpert concerned the old driving under the influence statute, whereas DeFaveri concerns the current law.

      . § 1547 Chemical testing to determine amount of alcohol or controlled substance
      ******
      (c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
      ******
      (2) Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as "The Clinical Laboratory Act.” [35 P.S. § 2151 et seq.]
      75 Pa.C.S.A. § 1547(c)(2) (footnote omitted).

      . Although the better practice would have been for the sentencing judge to state his reasons for the sentence imposed at the time of sentencing, we believe after reviewing the opinion of August 17, 1989, he has stated his reasons and we find them persuasive.


author: WIEAND, Judge:

text:
    573 A.2d 575
    Cheryl BOEHM and Maria Stanik, Appellees, v. UNIVERSITY OF PENNSYLVANIA SCHOOL OF VETERINARY MEDICINE and Edwin J. Andrews, V.M.D. and P.H.D., Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1989.
    Filed April 18, 1990.

      Neil J. Hamburg, Philadelphia, for appellants.
    George F. Schoener, Jr., Philadelphia, for appellees.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from an order preliminarily enjoining the School of Veterinary Medicine at the University of Pennsylvania from enforcing disciplinary sanctions levied against two students. After careful review, we reverse.

Cheryl Boehm and Maria Stanik were first year veterinary students at the University of Pennsylvania’s School of Veterinary Medicine. Following allegations of misconduct during the taking of examinations, Boehm and Stanik were notified, in April, 1989, that chaxges had been brought against them for violating the Veterinary School’s Code of Student Rights and Academic Integrity (“the Code”). A hearing was held before a panel of three faculty members and two students, after which Boehm and Stanik were found guilty of violating the Code by engaging in “behavior suspicious of and compatible with cheating.” The hearing panel recommended probation, but the Dean of the School, Edwin J. Andrews, directed that Boehm and Stanik be suspended for a period of one year and imposed additional sanctions which were to go into effect when the students returned to classes after suspension. An appeals committee upheld the Dean’s sanctions with only slight modification. These sanctions, as modified, were: (1) suspension from the Veterinary School for a period of one year; (2) upon return following suspension, probation during the balance of their matriculation; (3) a condition that during all future examinations, they were to sit apart; and (4) placement of a notation on their transcripts that they had been “found guilty of behavior suspicious of, and compatible with cheating,” subject to removal mechanisms allowed by the Code. After these sanctions had been imposed, Boehm and Stanik filed a complaint in equity in the Court of Common Pleas of Philadelphia County in which they sought injunctive relief. They alleged that the school’s disciplinary proceedings against them had lacked fundamental fairness and failed to comport with the requirements of the Code. Following a hearing, the trial court granted a preliminary injunction in favor of Boehm and Stanik. The Veterinary School and Dean Andrews filed the instant appeal.

On appeal from an order granting a preliminary injunction, the scope of review is narrow. “In determining the propriety of the entry of an order granting a preliminary injunction, the question is whether there were any apparently reasonable grounds in the record to justify its issuance.” Fischer v. Department of Public Welfare, 497 Pa. 267, 270, 439 A.2d 1172, 1174 (1982) (footnote omitted). See also: Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 269, 479 A.2d 452, 454 (1984); South Fayette Township v. Commonwealth, 477 Pa. 574, 579, 385 A.2d 344, 347 (1978); Rollins Protective Services Co. v. Shaffer, 383 Pa.Super. 598, 600, 557 A.2d 413, 413-414 (1989); Crozer Chester Medical Center v. May, 352 Pa.Super. 51, 56, 506 A.2d 1377, 1379 (1986). “On an appeal from a decree granting or denying a preliminary injunction, the appellant has a very heavy burden to overcome; such a decree will not be interfered with upon appellate review in the absence of a plain abuse of discretion by the court below.” Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 577-578, 345 A.2d 664, 670 (1975). See also: McDonald v. Noga, 393 Pa. 309, 311, 141 A.2d 842, 843 (1958); Broad & Locust Assoc. v. Locust-Broad Realty Co., 318 Pa.Super. 38, 43, 464 A.2d 506, 508 (1983). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.” Roberts v. Board of Directors of the School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975). See also: Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981); Bell v. Thornburgh, 491 Pa. 263, 267, 420 A.2d 443, 445 (1980); Herman v. Dixon, 393 Pa. 33, 36, 141 A.2d 576, 577 (1958).

Nevertheless, the essential prerequisites for issuing a preliminary injunction must be met. These have been identified by the Pennsylvania Supreme Court as follows:

“first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp. [410 Pa. 214, 189 A.2d 180] supra. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And' unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958).”

John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977), quoting Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770-771 (1965). See also: Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 500, 426 A.2d 1123, 1128 (1981); New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978); Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 245, 544 A.2d 450, 453 (1988).

We have diligently examined the record in search of an apparently reasonable basis on which a court could interfere with the right of a private school to impose sanctions for conduct found to be “compatible with cheating” and have found none. We are constrained to conclude, therefore, that it was an abuse of discretion for the trial court to enjoin the school preliminarily from putting into effect the suspension imposed by the Dean.

The students contended in the trial court that improprieties in the school’s disciplinary proceedings rendered the findings of a hearing panel and the punishment meted out by the Dean fundamentally flawed. Broadly speaking, the law is that the

right of a student to attend a public or private college or university is subject to the condition that he comply with its scholastic and disciplinary requirements, and the proper college authorities may in the exercise of a broad discretion formulate and enforce reasonable rules and regulations in both respects. The courts will not interfere in the absence of an abuse of such discretion.

14 C.J.S. Colleges and Universities § 26, at 1360 (1939). See also: 15A Am.Jur.2d Colleges and Universities §§ 23 & 26-27 (1976); Annot., Right Of Student To Hearing On Charges Before Suspension Or Expulsion From Educational Institution, 58 A.L.R.2d 903 (1958).

With regard to disciplinary sanctions at state owned colleges and universities, the law is fairly well established. In the landmark decision of Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961), cert. denied, 868 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), the United States Court of Appeals for the Fifth Circuit held “that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” Id. at 158.

The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college’s educational atmosphere and impractical to carry out. Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college. In the instant case, the student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies. He should also be given the opportunity to present to the Board, or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student’s inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled.

Id. at 158-159. See: Gorman v. University of Rhode Island, 837 F.2d 7 (1st Cir.1988); Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir.1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); Jaska v. Regents of University of Michigan, 597 F.Supp. 1245 (E.D.Mich.1984), aff'd, 787 F.2d 590 (6th Cir.1986); Herman v. University of South Carolina, 341 F.Supp. 226 (D.S.C.1971), aff'd, 457 F.2d 902 (4th Cir.1972). See also: Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Jones v. Snead, 431 F.2d 1115 (8th Cir.1970); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir.1967); Barker v. Hardway, 283 F.Supp. 228 (S.D.W.Va.1968), aff'd, 399 F.2d 638 (4th Cir.1968), cert. denied, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217 (1969). See generally: Annot., Expulsion, Dismissal, Suspension, Or Other Discipline Of Student Of Public School, College, Or University As Violating Due Process Clause Of Federal Constitution’s Fourteenth Amendment— Supreme Court Cases, 88 L.Ed.2d 1015 (1985); Buss, Procedural Due Process For School Discipline: Probing The Constitutional Outline, 119 U.Pa.L.Rev. 545 (1971). Even in cases of tax supported schools, it is not required that the students be represented by counsel. See: Gorman v. University of Rhode Island, supra; Wasson v. Trowbridge, supra. But see: French v. Bashful, 303 F.Supp. 1333 (E.D.La.1969).

The law pertaining to judicial review of disciplinary proceedings at private colleges and universities is not so well settled. Generally, it has been said that courts are more reluctant to interfere in the disciplinary proceedings of a private college than those of a public college. See: 14 C.J.S. Colleges and Universities § 26, at 1361 (1939); 15A Am.Jur.2d Colleges and Universities § 23, at 281 (1976). See also: Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir.1973); Powe v. Miles, 407 F.2d 73 (2d Cir.1968). A majority of the courts have characterized the relationship between a private college and its students as contractual in nature. Therefore, students who are being disciplined are entitled only to those procedural safeguards which the school specifically provides. See: Corso v. Creighton University, 731 F.2d 529 (8th Cir.1984); Williams v. Howard University, 528 F.2d 658 (D.C.Cir.1976), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 123 (1976). See also: John B. Stetson University v. Hunt, 88 Fla. 510, 102 So. 637 (1924). The general rule, therefore, has been that where a private university or college establishes procedures for the suspension or expulsion of its students, substantial compliance with those established procedures must be had before a student can be suspended or expelled. Tedeschi v. Wagner College, 49 N.Y.2d 652, 427 N.Y.S.2d 760, 404 N.E.2d 1302 (1980). See: Corso v. Creighton University, supra (preliminary injunction properly granted to prevent private university from dismissing student for cheating, where student was not provided with contractual right to hearing as provided in student handbook). Compare: DeHaan v. Brandeis University, 150 F.Supp. 626 (D.Mass. 1957).

In recent years the courts have become more willing to grant judicial review of rules promulgated by private colleges and universities and have required that such rules comport with basic notions of due process and fundamental fairness. See: Silets, Of Student’s Rights And Honor: The Application Of The Fourteenth Amendment’s Due Process Strictures To Honor Code Proceedings At Private Colleges And Universities, 64 Den.U.L.Rev. 47 (1987); Thigpen, The Application Of Fourteenth Amendment Norms To Private Colleges And Universities, 11 J.Law & Educ. 171 (1982). Cf. Note, Common Law Rights For Private University Students: Beyond The State Action Principle, 84 Yale L.J. 120 (1974). Thus, in Clayton v. Trustees of Princeton University, 608 F.Supp. 413 (D.N.J.1985), a student who had been suspended for one year, after a finding that he had cheated in an examination, brought suit in federal court to challenge Princeton University’s Honor Code. Although rejecting the student’s challenge to the Code, the court held that a student at a private university subjected to a disciplinary hearing for cheating has a judicially protectable interest in ensuring that the proceedings against him are fundamentally fair. There, the Court found that Princeton had followed its own Honor Code and the proceedings had been carried out diligently and fairly. See also: Henson v. Honor Committee, University of Virginia, 719 F.2d 69 (4th Cir. 1983). Other courts have followed this approach and have held generally that disciplinary acts by private colleges or universities will be upheld so long as the proceedings have been fundamentally fair and the school has not deviated substantially from the procedures established by the school. See and compare: State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); Napolitano v. Princeton University Trustees, 186 N.J.Super. 548, 453 A.2d 263 (1982). Cf. Rutledge v. Gulian, 93 N.J. 113, 459 A.2d 680 (1983) (judicial intrusion into suspension of member of Free and Accepted Masons should be confined to procedures which are fundamentally unfair).

In Slaughter v. Brigham Young University, 514 F.2d 622 (10th Cir. 1975), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 131 (1975), a graduate student at a private, church affiliated university had brought an action alleging breach of contract following his expulsion for academic dishonesty. In reversing a jury verdict in the student’s favor, the United States Court of Appeals for the Tenth Circuit applied a due process analysis to review the university’s disciplinary proceedings. The Court reasoned:

It must be held that there was an adequate hearing on the charge with a meaningful opportunity given to plaintiff to participate, to present his position, and to hear the witnesses presenting the facts they had knowledge of. We hold that these proceedings met the requirements of the constitutional procedural due process doctrine as it is presently applied to public universities. It is not necessary under these circumstances to draw any distinction, if there be any, between the requirements in this regard for private and for public institutions. The trial court was thus in error in deciding as a matter of law that the proceedings were deficient or inadequate. His instruction to the jury as to his erroneous conclusion was error.
When the courts lay down requirements for procedural due process in these situations as required by the Constitution, and when the school administrators follow such requirements (and other basic conditions are met), some weight "must then be given to their determination of the facts when there is substantial evidence to support it. Thus if the regulations concerned are reasonable; if they are known to the student or should have been; if the proceedings are before the appropriate persons with authority to act, to find facts, or to make recommendations; and if procedural due process was accorded the student, then the findings when supported by substantial evidence must be accorded some presumption of correctness. The adequacy of the procedure plus the substantial evidence element constitute the basis and the record to test whether the action was arbitrary. The fact-finding procedures were adequate.

Id. at 625. The Court rejected a strict contractual approach, reasoning

The complaint was based on a contract theory and that alone, but neither the conclusory allegations of the complaint showed, nor did the proof submitted by the plaintiff establish, a contract between plaintiff and the University in the disciplinary context. The Graduate School Catalogue and the conduct-honor codes were the only evidence as to the “contract.” The trial court’s rigid application of commercial contract doctrine advanced by plaintiff was in error, and the submission on that theory alone was error.
It is apparent that some elements of the law of contracts are used and should be used in the analysis of the relationship between plaintiff and the University to provide some framework into which to put the problem of expulsion for disciplinary reasons. This does not mean that “contract law” must be rigidly applied in all its aspects, nor is it so applied even when the contract analogy is extensively adopted.

Id. at 626.

In Pennsylvania, the Supreme Court has not had recent opportunity to address this area of the law. However, in Barker v. Trustees of Bryn Mawr College, 278 Pa. 121, 121 A. 220 (1923), the Court held that a court of common pleas lacked jurisdiction to issue a writ of mandamus to compel the reinstatement of a student dismissed from a private college because the relationship between the college and student was solely contractual in nature. The Court reasoned as follows:

We agree with the court below that, on the facts showing the character of Bryn Mawr College, as an institution privately conducted, which receives no state aid, “the relation between the student and the college is solely contractual in character, [and] the court of common pleas does not have jurisdiction to issue a writ of mandamus to compel [appellant’s] reinstatement”; also, in view of the regulation, on which the relator obtained entrance to the college, providing that the latter “reserves the right to exclude at any time students whose conduct * * * it regards as undesirable,” defendant is not required to prefer charges and hold a trial thereof, before dismissing a student regarded by it as undesirable.

Id., 278 Pa. at 122-123, 122 A. at 221. See and compare: Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697 (1955) (where student nurse was expelled from private nursing school for infraction of rules and sought in equity action to have school give her transfer credits for work completed, action was within peculiar province of equity since there was no legal remedy).

More recently, the Superior Court followed generally the decision in Barker, but acknowledged the existence of modern decisions requiring private schools to adhere to principles of due process and fundamental fairness. In Schulman v. Franklin and Marshall College, 371 Pa.Super. 345, 538 A.2d 49 (1988), a student had been suspended after being found guilty of misconduct directed to female students. The trial court refused to grant a preliminary injunction enjoining the suspension, and the student appealed. In affirming, the Superior Court observed:

The courts have been very reluctant to interfere with college proceedings concerning internal discipline. A college is a unique institution which, to the degree possible, must be self-governing and the courts should not become involved in that process unless the process has been found to be biased, prejudicial or lacking in due process. While many people would apply different standards than those applied by a given college, we must understand that colleges, by their composition, particularly private colleges, will reflect different standards and different attitudes and values concerning student misbehavior. A college is frequently selected by parents and students because of the special aura or quality of life on campus that distinguishes it from other institutions. Frequently, colleges are classified in the public mind and the media as liberal or conservative, religious or secular, party schools or intellectual bastions. From the days of the Medici’s, who created the colleges in Florence during the Renaissance, to modern times, colleges have been unique in their insulation from state taxation controls and their self-government.

Id., 371 Pa.Superior Ct. at 351, 538 A.2d at 52 (emphasis added). But see: Smith v. Gettysburg College, 22 Pa.D. & C.3d 607 (Adams Co.1982) (Fourteenth Amendment due process not applicable to private schools, relationship between college and students purely contractual in nature).

Our review of the record in the instant case discloses that the School of Veterinary Medicine followed its Code of Rights punctiliously and that the disciplinary proceedings complied with due process and were fundamentally fair. The accused students were given notice of the charges against them and also of the evidence against them. They were present at and participated in a hearing which lasted approximately ten and one-half hours. At this hearing they were assisted by a faculty advisor and were permitted to cross-examine witnesses who testified against them and call witnesses to testify on their behalf. After the hearing, the hearing panel prepared a detailed decision, including findings of fact, as follows:

Decision of the Hearing Panel:

After careful consideration of the charges and evidence presented at the June 28, 1989 hearing of Maria Stanik and Cheryl Boehm, veterinary students in the class of 1992 accused of violating the code of academic integrity, we, the hearing panel by unanimous agreement find the defendants guilty of behavior suspicious of, and compatible with cheating.

Findings of fact:

The panel members expressed a range of opinion as to what constitutes cheating in a test situation; from the strict definition that even a brief but focused glance at a fellow student’s exam paper is, of itself, a clear act of cheating to the liberal interpretation, maintaining that overt cheating can only be established if the accused can be shown to have benefitted from the practice or was caught with tangible evidence such as crib sheets or consistently identical answer sheets. Because of the gravity of the charge of cheating, the panel members in their deliberations leaned toward the latter, more liberal definition of cheating. The Panel’s verdict (and recommended penalty) reflect this stance and admittedly give the accused the benefit of the doubt.
In addition, the verdict, was rendered, as such, because the evidence presented, though compelling, was at times circumstantial or in need of qualification. The verdict does not exclude the possibility that the two defendants were innocent of the cheating charges. It does however firmly establish that in multiple examinations the behavior of these two individuals was determined to be inappropriate and academically unacceptable.

We submit the following findings of fact:

1. A comparison of test scores of the two students accused of cheating was introduced as evidence at the June 28, 1989 hearing. While the information raises suspicion as to the cheating charges, the panel considers the comparison to be unreliable due to its lack of statistical foundation particularly since the influence on test scores of studying together is unknown. Accordingly this information was not considered in the panel’s deliberations.
2. The panel finds the testimony of Richard Aucamp, a technician having 20 years of experience in proctoring anatomy examinations, to establish on three occasions in the 2nd practical of the anatomy course that the two defendents [sic] were observed to be engaged in behavior indistinguishable from cheating. Mr. Aucamp was certain that he saw Maria Stanik looking at Cheryl’s paper during the exam. The behavior of Maria and Cheryl provoked a warning from Mr. Aucamp to cover their papers and to separate. The behavior persisted and ultimately Mr. Aucamp issued a threat to take their test papers.
3. We find the testimony of Dr. Adrian Morrison concerning the 2nd practical examination of the anatomy course to corroborate that of Mr. Aucamp. Dr. Morrison after being summoned to the lab of Mr. Aucamp to address the persistent suspicious behavior of the two defendants, observed “Maria Stanik’s eyes going to Cheryl Boehm’s paper, back and forth.” Dr. Morrison asked the two students to separate and they complied by parting for the remainder of the practical examination and the subsequent written part of the examination. The panel recognizes the human tendency to be tolerant and to avoid confrontation, however,- a minority opinion held that this serious indictment was weakened by the delay in briniging [sic] it to the attention of the judicial administrator.
It is worthy of mention that, by design, students were to take the anatomy practical exam in alphabetical order and therefore Cheryl Boehm and Maria Stanik should not have been in the same test group. Cheryl claimed she switched from her designated group into Maria’s group so she could drive her car to the garage to be serviced, however it is the panel’s understanding that she did not obtain prior permission to take the test out of alphabetical order.
4. We find the sincerity and timing of Sheppard Thorp’s accusations to be compelling evidence that the two defendents [sic] had engaged in behavior indistinguishable from cheating during the Immunology quiz given January 31, 1989. This information was embodied in 2 letters from Mr. Thorp, one anonymous and one signed (dated Jan. 31, 1989 and March 28, 1989, respectively).
5. We find the letter and testimony of classmate, Eugenia Bucher, to be sincere and to clearly substantiate that the two defendants during the Immunology final exam (3/3/89) were engaged in behavior suspicious of, and compatible with cheating. The defendants were sitting inappropriately close together and talking repeatedly during the exam.
6. We find the letter of Lisa Schorr (3/22/89) to be an unequivaocal [sic] first-hand account of cheating on the part of the two defendants. However, because Ms. Schorr was not available for testimony, the panel did not include this most incriminating evidence in its decision. We feel, however, that the veracity of Lisa Schorr’s letter and testimony is critical to a determination of overt cheating in this case. Therefore, we feel it appropriate to request waiver of Article VIII Paragraph 2 entitled “Scope of Appeals” thereby allowing for an increase in the severity of the penalty imposed should an appeal occur and should the appeals panel substantiate Lisa Schorr’s testimony as fact.
7. At the hearing the panel was presented with evidence other than that summarized above. This evidence was in the form of letters (followed in some cases by testimony) from 7 classmates claiming eyewitness accounts of supicious [sic] behavior, if not overt cheating, on the part of the two defendants. The panel, for the following reasons, did not include this material in arriving at its verdict.
1) All 7 letters were submitted toward the end of March, 1989 at the request of the class president, Howard Krumm, acting on the recommendation of the Associate Dean for Student Affairs, Dr. Charles Newton. Six of the 7 letters alleged cheating by the two defendants during the Immunology Final Exam on March 3, 1989. The individuals involved on both sides of the argument were by this time polarized sufficiently that the panel questioned the objectivity of their motivation and testimony. On the one hand, were the accusing students who felt frustrated that the system could not deal more rapidly and decisively with what they perceived to be overt and chronic cheating on the part of the 2 defendants. On the other hand, Maria Stanik and Cheryl Boehm contend they were the innocent victims of a hate campaign focused on them because of their peculiar behavior and class isolation.
2) Some of the evidence was highly circumstantial in nature and a few discrepancies were identified between the letters of complaint and the ultimate testimony before the hearing panel.
3) The panel' concluded that its verdict was neither strengthened nor weakened by the inclusion of this evidence and that the surrounding aura of emotions served only to complicate the task of determining guilt or innocence from the preponderance of evidence.

A review of the panel’s decision compels the conclusion that the hearing was held before an impartial panel and that the students were given a fair hearing. The disciplinary proceedings complied fully with procedures established by the school and were fundamentally fair.

The students complain, however, that they were found guilty of conduct which is not prohibited by the Honor Code. The Code, in pertinent part, provides:

III. VIOLATIONS OF ACADEMIC INTEGRITY
Conduct incompatible with these principles of academic integrity shall be a violation of this Code. Violations include, but are not limited to, the following:
3. Misconduct during an Examination. Copying from another student’s paper, consulting unauthorized material, giving information to another student, or colluding with one or more students during an examination.

The offenses enumerated in subsection (3) are not an exclusive listing of the forms of misconduct prohibited during an examination. The Code proscribes any conduct which is incompatible with principles of academic integrity enumerated in the Code. Thus, the hearing panel could properly find, as it did, that the students were guilty of behavior which was compatible with cheating. Their talking with each other during examinations and their looking at each other’s papers were supportive of the hearing panel’s conclusion that their conduct was compatible with cheating and incompatible with principles of academic integrity.

Based on these findings, the hearing panel recommended to the Dean that punishment be imposed as follows:

1. The 2 students, Maria Stanik and Cheryl Boehm, shall be on probation for the remainder of their Veterinary curriculum here at Penn.
2. These students will be required to sit apart during all examinations or quizzes for the remainder of their Veterinary curriculum here at Penn.
3. The appropriate section heads and course organizers of the courses involved should be notified of the “behavior” of these two students and have the exam closely proctored.
4. A note should be placed on the respective transcripts stating that the students in question were “found guilty of behavior suspicious of, and compatible with cheating”. This note may be removed at the petition of the students during the senior year assuming no further infraction of the code of academic integrity occurs.

The students were given a copy of the panel’s findings of fact, but they were not given a copy of the recommended penalty. They argue that this violated the provisions of the code. We disagree.

The Code provides:

VI. HEARING PANEL PROCEDURES
3. Decisions of the Hearing Panel
(a) The Hearing Panel’s deliberations shall be divided into two separate stages:
(i) determination of guilt or innocence
(ii) recommendation of penalty
(b) A finding of guilt must be supported by a preponderance of the evidence.
(c) The JIO shall neither report on the accused’s previous disciplinary record, nor recommend a penalty, until guilt has been determined.
(d) All decisions shall require a majority vote of those sitting.
(e) The presiding officer shall present a written report of the Hearing Panel’s decision, including a statement of the Panel’s findings of fact, to the accused, the JA, the JIO and the Dean no later than ten days after the hearing, (emphasis added).

The established procedure contains no requirement that the students be given a copy of the panel’s recommended punishment. The reason for the absence of such a requirement is clear. The punishment is to be determined by the Dean. When the Dean’s decision regarding punishment was made in this case, the students were duly notified. There was in the disciplinary proceedings no substantial departure from the procedure established by the school.

The students complain that the Dean did not accept the panel's recommendation and imposed a more severe punishment. This does not establish a basis for relief in the courts. The punishment was to be determined by the Dean; he was not bound to accept the recommendation of the panel. In this regard, it is also to be observed that the students took an appeal, as permitted by the Code, to an appeals committee. This committee rejected their argument that the penalty was too severe.

The students also complain that the Dean may have discussed the case with others and may have asked their opinions regarding punishment before reaching a decision. The trial court does not appear to have been persuaded by this argument, for it made no findings in this regard and did not suggest, expressly or by implication, that there had been any impropriety in the formulation of a sanction by the Dean. In the absence of such findings, we will not assume the role of factfinder and find the Dean guilty of conduct inconsistent with basic fairness. His role was not one surrounded by strict judicial trappings. He was an administrator and academician, charged with punishing violations of the School’s Honor Code which had been found after hearing. He will not be faulted if, in the pursuit of his duties, he discussed the matter of punishment with his colleagues or even sought their advice. The record does not suggest and the students have not contended that he abdicated to others his responsibility for determining and imposing an appropriate punishment.

Finally, the students argue that in spite of the limited findings of the panel that they were guilty of conduct compatible with cheating, the Dean punished them as if they had cheated in fact. Here again, the trial court made no such findings, and the record does not permit our finding the facts to be as contended by the student-appellees. The Dean testified that he believed that the students had cheated, but he acknowledged that he was bound by the findings of the hearing panel and could not disregard those findings in determining the sanction to be imposed. Under these circumstances, it cannot be determined factually by an appellate court that the students were punished for offenses for which they had not been found guilty by the hearing panel.

The trial court suggested, without discussion, that there was evidence that the students had not received “adequate” notice and a “meaningful” opportunity to be heard. It was for this reason that a temporary injunction was issued. This suggestion, however, is not supported by the record before this Court, and, indeed, such an argument has not been pursued by the students on appeal. They had notice and an opportunity to be heard.

Appellees’ principal contention in the trial court was that they would be irreparably harmed if the trial court failed to grant preliminary relief. The harm which would warrant a preliminary injunction, however, must be viewed conjunctively with the existence or absence of a clear right to relief. Here, as we have observed, the students have been unable to show circumstances requiring judicial intervention in the disciplinary proceedings conducted by the School of Veterinary Medicine.

In general, an injury is regarded as irreparable if it will cause damages which can be estimated only by conjecture and not by any accurate pecuniary standard. See: 5 Std.Pa.Prac.2d § 83.81 (1983); 18 P.L.E. Injunction § 5 (1989). “An injury is deemed irreparable if it cannot be adequately compensated by an award of damages. Cosner v. United Penn Bank, 358 Pa.Super. 484, 492, 517 A.2d 1337, 1341 (1986). For harm to be irreparable, moreover, it must be irreversible. Schulman v. Franklin & Marshall College, supra at 350, 538 A.2d at 52.

In Schulman v. Franklin & Marshall College, supra, the Superior Court observed that the suspension there imposed by the college would cause a delay in the student’s education but it would not prevent him from completing the educational process. In view of the fact that it was not likely that the student would prevail on the merits, the Court concluded, there was no irreparable harm to be avoided by entering a preliminary injunction. If there should be damages, the Court concluded, they could be compensated adequately by monetary damages.

Similarly, in Bleicker v. Board of Trustees of Ohio State, 485 F.Supp. 1381 (S.D. Ohio 1980), a preliminary injunction was denied to a veterinary student who had been suspended for violating the school’s honor code and for failing to meet academic standards. The court rejected the student’s claim of irreparable harm, saying

The Court believes that plaintiff has not made the required showing of irreparable injury if she is not readmitted to the Veterinary College for Spring Quarter of 1980. The record reveals that plaintiff will be allowed to petition for readmission to the Veterinary College within a few months without the intervention of this Court. The Court’s immediate order is not necessary to prevent permanent exclusion of plaintiff from the veterinary profession.

Id. at 1388. See also: Sohmer v. Kinnard, 535 F.Supp. 50 (D.Md.1982) (suspension of pharmacy student for drug use did not cause irreparable harm to student because he could apply for readmission when he could show that he no longer had a drug problem. Delay in entering his chosen profession if wrongful, the Court said, was compensable by money damages). Compare: Dougherty v. Hidalgo, 539 F.Supp. 4 (E.D.Pa.1981), aff'd on other grounds, 688 F.2d 158 (3d Cir.1982) (discharge of midshipman from Naval Academy for sexual misconduct not enjoined preliminarily because of greater, potential harm to Naval Academy).

We recognize that a contrary view has been articulated in Jones v. Board of Governors of the University of North Carolina, 557 F.Supp. 263 (W.D. N.C.1983), affirmed at 704 F.2d 713 (4th Cir.1983). There, the Court held that a student could not be adequately compensated for delay in obtaining a degree caused by a suspension. Compare: Tully v. Orr, 608 F.Supp. 1222 (E.D. N.Y.1985) (disenrollment from Air Force Academy for cheating and plagiarism constituted irreparable harm, but injunctive relief denied because little likelihood of success on the merits was shown).

In the instant case, the trial court elected to disregard the decision in Schulman and follow the North Carolina court’s decision in Jones. Although circumstances may vary from case to case, where, as here, it is unlikely that the students will be able to obtain a judicial reversal of their suspension, Schulman represents the better approach. The harm to the appellee students, if any, can be compensated by an award of monetary damages. The evidence did not justify the trial court’s interference with the legitimate authority of the school to sanction students who, after compliance with established procedure, had been found guilty of violating the school’s Honor Code by engaging in conduct incompatible with academic integrity.

Order reversed.

      . The appellee-students neither alleged nor proved that the school received state aid to an extent which altered its status as a private school.