author: MONTGOMERY, Judge:

text:
    500 A.2d 1163
    Charles Scott THOMAS, a Minor by His Parents and Natural Guardians, Charles Frederick THOMAS, Jr. and Judith Thomas, and Charles Frederick Thomas, Jr. and Judith Thomas, Husband and Wife, In Their Own Right, Appellants, v. DUQUESNE LIGHT COMPANY, Pittsburgh Chartiers & Youghiogheny Railway Company, the Pittsburgh & Lake Erie Railroad Company, Kenny Watson, Norman Cousins, and Mae Lunardi, d/b/a Dario’s Distributor, a/k/a Dario’s Beer Distributors, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 15, 1985.

      Frank E. Little, Pittsburgh, for appellants.
    Richard A. Porach, Pittsburgh, for P & LE, appellees.

      Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellants file the instant appeal from an order of the lower court which granted summary judgment in favor of the Defendant-Appellee, The Pittsburgh and Lake Erie Railroad Company (hereinafter referred to as “P & LE”). After a careful review of the record, we find that summary judgment was properly entered by the lower court in this case, and affirm that result.

The Plaintiffs instituted this trespass action on October 7, 1983 against several defendants, including P & LE, for damages arising out of severe injuries suffered by their minor son. The boy was injured when he apparently touched an electric line and fell from an electrical tower owned by the Defendant Duquesne Light Company. The tower was on land owned by the Defendant Pittsburgh, Chartiers & Youghiogheny Railway Company (hereinafter referred to as “PC & Y”). Just prior to climbing the tower, the boy and some companions were engaged in a drinking party on the PC & Y land which abutted the Ohio River. In order to reach this site, the minor Plaintiff and his friends had to trespass across property owned by the Appellee P & LE.

In the Plaintiffs’ Amended Complaint, they asserted several types of alleged negligent conduct on the part of P & LE as the basis for their claims for damages against it. However, a review of the Appellants’ brief to this Court in support of the instant appeal clearly shows that the most significant substantive basis upon which they maintain they have rights to recover against P & LE is if it is established that P & LE owns the land on which the electric tower was located. In that regard, there is no question that the lower court had ample support for granting summary judgment in favor of the Appellee.

Before reaching the substantive merits of the lower court’s order, we must examine several procedural claims raised by the Appellants. In connection with such contentions, the record shows that on August 2, 1984, P & LE filed its Motion for Summary Judgment and supporting brief, which asserted that it did not own the land upon which the accident took place and its mere status as an adjoining landowner created no basis for imposing liability on it for the minor Plaintiff’s injuries. The Plaintiffs filed a responsive brief on August 23, 1984, one day before the date on which the lower court had scheduled argument on the Appellee’s motion. The next day, August 24, 1984, respective counsel for the Appellants and Appellee appeared before the lower court to argue the motion. At the hearing, counsel for P & LE provided both the court and Plaintiffs’ counsel with a supplement to the Motion for Summary Judgment and an attached Affidavit. These matters had not yet been filed with the Prothonotary, but were filed by P & LE immediately following the hearing. The Affidavit, by an official of P & LE, denied its ownership of the land in question. The lower court accepted the supplemental motion and affidavit at the hearing and offered the Plaintiffs’ counsel the opportunity to file a counter-affidavit. However, Plaintiffs’ counsel specifically declined that offer. Upon review of the matters then of record as well as the supplement to Motion for Summary Judgment and Affidavit, the lower court verbally indicated that summary judgment would be granted in favor of P & LE. However, the clerk of the lower court inadvertently prepared and entered an Order dated August 24, 1984 dismissing the Motion for Summary Judgment. After discovery of the error, the lower court issued a new Order, dated August 31, 1984, signed by both Judges who considered this matter, which rescinded the Order entered erroneously on August 24, 1984, and granted summary judgment in favor of P & LE, thereby dismissing P & LE from the lawsuit. Such lower court judges filed a Supplemental Opinion on June 6, 1985, fully explaining that the original order had been entered in error.

Plaintiffs first contend on appeal that the Order of August 24, 1984, denying P & LE’s Motion for Summary Judgment, was correct and that the Order of August 31, 1984 which rescinded the August 24, 1984 Order, and granted summary judgment in favor of P & LE, was issued either after ex-parte communications by the lower court with the Appellee, or sua sponte in violation of Pennsylvania Rule of Civil Procedure 1035, or on some unethical or questionable basis. Appellants’ brief makes no reference to the fact that the lower court announced its intention, at the time of oral argument, of granting the Appellee’s Motion for Summary Judgment. It also does not discuss the lower court’s Supplemental Opinion which fully explains that the Order issued on August 31, 1984 was the correct one, and that the earlier Order had been incorrectly entered through clerical error. It is apparent that the Appellants’ serious claims of irregular or questionable conduct by the lower court and the Appellee are not only totally devoid of arguable merit, but also that they constitute an attempt to deceive this Court. Such assertions must not only be rejected out of hand, but are vigorously condemned. Counsel must be advised that such conduct before our Court will not be tolerated.

We next turn to the Appellants’ claim that the lower court erred in granting summary judgment based in part upon the Appellee’s supplemental motion and supporting affidavit which were not actually filed of record until shortly after the argument date. Appellants argue that they were deprived of due process in these circumstances. Although it is certainly desirable that such matters be filed prior to the argument date, we cannot hold that the lower court abused its discretion in considering the matters submitted by the Appellee just prior to the argument, under all of the circumstances present in this case. The Appellants’ brief declares that argument on the Motion for Summary Judgment had originally been set for September 6, 1984. However, the case was subsequently included on an argument list for August 24, 1984. When the Appellee submitted its supplemental motion and affidavit, the court offered the Plaintiffs an opportunity to respond by filing a counter-affidavit, setting forth any facts to suggest that the land in issue was owned by the Appellee P & LE. This offer was expressly rejected by the Appellants. It is evident that in this setting, the lower court afforded the Plaintiffs an ample opportunity to respond to the Appellee’s submission, and did not err in considering it in connection with the Motion for Summary Judgment.

The Appellants next assert that the lower court acted improperly, with regard to the Motion for Summary Judgment, in considering an admission of Defendant PC & Y that it owned the land where the accident occurred. Such admission was submitted in response to a request for admissions filed by the Appellee. Rule 1035 provides that summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Nowhere does Rule 1035 require that admissions used to support a Motion for Summary Judgment be restricted to those admissions made by the party requesting summary judgment, as argued by the Appellants. Therefore, we find the lower court’s reliance on the admission of ownership of the land by party Defendant PC & Y to have been justified.

We next turn to the Appellants’ argument that a ruling on the Motion for Summary Judgment was premature in this case as Appellants’ discovery requests were then still outstanding pertaining to the issue of ownership of the land where the accident occurred. They contend that since such discovery was not completed, they could not properly file a counter-affidavit for the court’s consideration with regard to the Appellee’s Motion for Summary Judgment. Not only did the Appellants specifically, and without qualification, decline the court’s offer to submit any counter-affidavit, but a review of the then-outstanding discovery efforts shows clearly that they would have produced no information supportive of the Appellants’ position in opposition to the Appellee’s motion. The only discovery matters outstanding at the time of the lower court’s consideration of the Motion for Summary Judgment were Appellants’ interrogatories and requests for documents. The only item in the interrogatories regarding ownership of the land was a single question which sought the name and address of the owner of the real estate at the exact location of the electrical tower on the date of the accident. The request for documents did not address itself specifically to the question of property ownership, but did seek any documents relating to responses to the interrogatories. Defendant PC & Y had previously admitted of record its ownership of the land in dispute, and the affidavit of P & LE’s representative denied such ownership. The Plaintiffs’ limited discovery efforts, directed to both of these Defendants, and covering the same question of ownership, had already been answered by such parties in the aforesaid admission and affidavit. In these circumstances, the lower court cannot be held to have committed any error in ruling on the Motion for Summary Judgment, despite the fact that some of the Appellants’ discovery requests were then still outstanding.

Finally, we examine the Appellants’ single substantive contention, that the standard for the granting of summary judgment was not met in this case. Rule 1035 provides that summary judgment is to be granted when all evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Plaintiff-Appellants claim that the fact of ownership of the land where the accident occurred is still in question. We cannot agree. PC & Y’s admission of ownership and P & LE's denial of ownership have not been rebutted in any way, and are clearly sufficient to support the lower court’s finding that there exists no genuine issue of fact concerning PC & Y’s ownership of the land.

Appellants further maintain that even if no factual issue exists on the issue of who owned the land where the accident occurred, summary judgment should nevertheless have been denied because of other claims asserted against P & LE in its capacity as an adjoining landowner. The Appellants cite one decision of a Court of Common Pleas in support of this proposition. Not only do we find the facts of that case inapposite for comparison with the situation presented in the instant case, but it is clear that prevailing legal precedent supports the conclusion that one who has suffered harm as a result of encountering a purported hazardous artificial condition on another’s land, as allegedly occurred in this case, cannot recover damages from the owner of the property over which he passed to reach the land on which the dangerous condition existed. See Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa.Cmwlth. 596, 492 A.2d 1204 (1985); Malischewski v. Pa. R.R. Co., 356 Pa. 554, 52 A.2d 215 (1947); Magner v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896).

Thus, it appears to have been firmly established in this case that Defendant PC & Y owned the property upon which the electrical tower from which the minor Plaintiff fell was located, while Defendant Duquesne Light Company owned the tower itself. Defendant P & LE merely owned the land adjacent, which the boy passed through, to reach the property where the tower stood. The Appellee, as an adjacent landowner, could not be held liable for the boy’s injuries under all of the circumstances of this case. Therefore, we hold that summary judgment was properly granted as a matter of law.

The order of the lower court is hereby affirmed.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    500 A.2d 1168
    Saul Z. KOPEIKA, D.D.S., Appellant, v. MEDICAL SERVICES ASSOCIATION OF PENNSYLVANIA t/d/b/a Pennsylvania Blue Shield, A Corporation.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed Nov. 15, 1985.

      W. Russell Carmichael, Media, for appellant.
    Edward R. Paul, Media, for appellee.
    Before WIEAND, WATKINS and GEISZ , JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WATKINS, Judge:

This is an appeal from an Order entered June 4, 1984 in the Court of Common Pleas of Delaware County denying appellant’s Motion for New Trial and Judgment, n.o.v., and entering judgment for the appellees.

Appellant is a dentist licensed to practice dentistry in Pennsylvania. Appellee is a non-profit professional health service corporation organized pursuant to Blue Shield Regulatory Act (40 P.S. § 6301, et seq.) Appellant is a voluntary participating dentist in the Blue Shield Dental Program whereby he is compensated pursuant to a schedule for necessary services performed upon a Blue Shield subscriber.

On January 30, 1980, appellant was advised by Blue Shield that a review of his dental service reports (claim forms) indicated that, in the opinion of the dental director of Blue Shield, Richard J. Wroblewski, D.D.S., some of the periapical X-Rays taken by the appellant appeared to have not been necessary. Effective February 4, 1980, appellant would be required to show specific need for the periapical X-Rays if he wished Blue Shield to compensate him for the same. On February 11, 1980, appellant wrote to the State Dental Council and Examining Board, stating that Blue Shield prescribed and made determinations on the adequacy of patient treatment and possibly maintained fraudulent records. Appellant also requested information from the Board on the terms “not necessary”, “high utilization” and “excessive”.

Dr. Wroblewski wrote to the Board in response on March 19, 1980. The letter advised the Board of the background of appellant’s request and attached the claim forms of six patients alleged to support Dr. Wroblewski’s opinion.

The Board assigned one of its members, Dr. Leon Penzur, to review the six claim forms. Dr. Penzur reported to the Board that his review indicated excessive use of radio-graphs (X-Rays) in violation of American Dental Association and Pennsylvania Dental Association guidelines. The Board then requested appellant to appear for an informal hearing with the X-Rays and dental records pertaining to the six patients. Appellant requested that Blue Shield also attend the informal hearing. The Board advised Blue Shield that there would be no testimony nor any opportunity to cross-examine witnesses at the informal hearing.

At the hearing on July 9, 1980, appellant refused to produce any of the records of the six patients. The hearing was continued pending receipt of the records. The records were never produced and the matter was ultimately terminated by the Board.

Subsequently, the appellant filed a Complaint in Trespass alleging a cause of action for wrongful use of civil proceedings, defamation, and extreme and outrageous conduct. Prior to trial Pennsylvania Blue Shield filed a Motion for Partial Summary Judgment concerning the defamation count of appellant’s complaint. The court below granted the motion. Trial commenced on January 11 and concluded on January 13, 1983 with a jury verdict in favor of the appellee. Appellant filed motions for a new trial and judgment, n.o.v., which were argued and denied by the lower court. Judgment for Pennsylvania Blue Shield was entered on June 4, 1984. This appeal followed.

Appellant presents three questions on appeal:

1. Did the trial court err in granting defendant’s/appel-lee’s Motion for Partial Summary Judgment?

2. Did the trial court err by excluding the testimony of one of appellant’s witnesses?

3. Did the trial court err by denying appellant’s Motions for Judgment, n.o.v. and for a New Trial?

In his first issue, appellant’s argument is two-fold. He contends that the trial court erred in disregarding the thirty-day period which a non-moving party has to file a reply memorandum of law as provided for in Delaware County Local Rule of Civil Procedure 1028. He also argues that the trial court erroneously relied on the appellee’s defense of absolute privilege in granting their Motion for Partial Summary Judgment. Appellant claims that he was prejudiced by this ruling because he was precluded from presenting a completely separate theory of liability to the jury.

The lower court had stated in its opinion that the Motion for Partial Summary Judgment had been discussed between the parties and the court prior to trial and that appellant agreed to an immediate settling of appellee’s Motion. The trial court concluded that appellant had waived his thirty-day period in which to file a reply memorandum. Appellant now contends that he did not agree to the immediate settlement.

At the pre-trial hearing the trial court called for oral argument on the Motion for Partial Summary Judgment. It is apparent from a reading of the record that appellant was prepared to present his position regarding the Motion for Partial Summary Judgment and had in fact done so. It was only after counsel for both parties had presented oral argument that appellant objected to the timeliness. Appellant has neither demonstrated any prejudice resulting from the action by the trial court nor has he shown any abuse of discretion by the trial court as provided in Section (g) of Local Rule 1028. Despite the fact that an explicit statement of an agreement to settle the Motion does not appear in the record, we conclude that the trial court did not err in granting appellee’s Motion for Partial Summary Judgment.

Appellant also contends that the trial court erred in relying on appellee’s defense of absolute privilege in granting the Motion for Partial Summary Judgment. The able opinion of Judge Semeraro concluding that appellant’s Complaint and all other proceedings before the Board are absolutely privileged, adequately addressed this issue. Accordingly, we also find this claim to be without merit.

Next, appellant contends that the trial court erred in not permitting the testimony of Mitchell Corson, D.D.S. The introduction of relevant testimony is controlled by the trial court and will not be reversed on appeal unless there is an abuse of discretion. Albert v. Alter, 252 Pa.Superior Ct. 203, 381 A.2d 459 (1977).

Dr. Corson had not been listed as an expert witness in Appellant’s Answers to Appellee’s Interrogatories and an offer of proof was requested prior to his proffered testimony. Appellant’s counsel stated that Dr. Corson would testify that the extrapolation method was used in order to determine that the X-Rays taken by appellant may not have been necessary. Extrapolation, according to counsel for appellant, is the method whereby a number of X-Ray procedures are reviewed and a determination is made that a percentage of those procedures are not necessary. Thereupon, this percentage is then allegedly used to determine that an identical percentage of prior years’ procedures are also unnecessary.

As the trial court pointed out in its opinion, the issue to be determined by the jury was the necessity of the X-Rays taken in the six cases, submitted to the Board. Dr. McDer-mott, the Chairman of the Board, testified that the Board’s hearing was based upon a review of those six cases. Appellant’s own expert witness admitted on cross-examination that the extrapolation method was not used on the appel-lee’s examination and review of appellant’s patients’ claim forms. Dr. Penzur likewise testified that his review was limited to the same six cases. The trial court then determined that no information obtained by the extrapolation method was germane to any issue at trial and the testimony of Dr. Corson was excluded.

Considering the foregoing we can find no abuse of discretion by the trial court in excluding this testimony. Therefore, we find appellant’s claim to be without merit.

In his third issue appellant contends that the trial court erred by denying appellant’s Motion for Judgment, n.o.v., or in the alternative for a New Trial. He claims that the jury’s verdict did not conform with the evidence and with the law as explained by the trial judge.

In reviewing a Motion for Judgment, n.o.v., the evidence must be viewed in the light most favorable to the verdict winner. Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Superior Ct. 475, 448 A.2d 6 (1982). Additionally a new trial should be awarded on the gound that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right maybe given another opportunity to prevail. Kaminski Brothers, Inc. v. Lussi, 308 Pa.Superior Ct. 250, 454 A.2d 115 (1982).

Upon a review of the record, we conclude that the trial court did not err in denying appellant’s Motion for Judgment, n.o.v., or for a New Trial.

Order affirmed.


text:
    500 A.2d 1171
    Frances ROPKA, Administratrix of The Estate of Michael W. Chilcoat, Deceased and in her own right and Hyla W. Clark and Carl Clark, Jr., Administrators of the Estates of Hyla Lynn Chilcoat, Stacie Lynn Chilcoat and Alison Frances Chilcoat, Deceased and in their own right. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed Nov. 15, 1985.

      David M. McCormick, Philadelphia, for appellant.
    Frederick N. Dorfman, Philadelphia, for appellees.
    Before ROWLEY, WATKINS and GEISZ , JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WATKINS, Judge:

This is an appeal from an order entered January 19, 1984 in the Court of Common Pleas of Philadelphia County, Civil Division, granting appellee’s Motion for Summary Judgment and denying appellant’s Motion for Summary Judgment.

On October 5, 1982, Michael Chilcoat was injured in a fatal automobile accident in Lancaster, Pennsylvania. His wife and two children, who were passengers in the car also died. On the date of the accident, the decedents were residents of Maryland and their vehicle was registered in Maryland. Said vehicle was insured by a Maryland Automobile Policy issued by the Government Employees Insurance Company.

In June of 1983 an action in Assumpsit was instituted by appellees-plaintiffs, Frances Ropka, Administratrix of the Estate of Michael W. Chilcoat, deceased, and in her own right and Hyla E. Clark and Carl Clark, Jr., Administrators of the Estate of Hyla Lynn Chilcoat, Stacie Lynn Chilcoat, and Alison Frances Chilcoat, deceased, and in their own right, against Government Employees Insurance Company (GEICO). The action sought recovery of basic loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act (Act). GEICO then filed an Answer to appellee’s (plaintiff’s) complaint with New Matter. Appellees filed a response to appellant’s New Matter then sent a request for admissions. Appellant filed a Motion for summary Judgment and appellees filed a response with New Matter. Appellees then sent a request for admissions. Appellant filed a Motion for Summary Judgment and appellees filed a response with New Matter. Appellees’ New Matter consisted of appellees’ own Motion for Summary Judgment. Appellant then filed a response to that Motion.

The Honorable Alfred J. DiBona, Jr. of the Court of Common Pleas of Philadelphia County, entered an order denying appellant’s Motion for Summary Judgment and granting appellees’ Motion for Summary Judgment. This appeal followed.

Appellant presents three questions on appeal:

1. Whether or not Maryland is a No-Fault State under Section 1009.110 of the Pennsylvania No-Fault Motor Vehicle Insurance Act?

2. If Maryland is not a No-Fault state under § 1009.110 of the Pennsylvania No-Fault Motor Vehicle Insurance Act, then are the appellees/plaintiffs entitled to survivor’s benefits for each decedent?

3. What benefits are appellees entitled to under the coverage provided by appellant’s policy of insurance?

Appellant argues in its first issue that the Pennsylvania Insurance Commissioner’s definition of “State no-fault plan” is not controlling when determining what a “state no-fault plan” is according to Section 110(c) of the Act. Appellant advances the argument that the Insurance Commissioner has no power to issue regulations unless the Commissioner is explicitly named in the specific statute section.

The Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, et seq. (No-Fault Act) provides that benefits payable under the No-Fault Act are available to out-of-state domiciliaries who are injured within Pennsylvania in an automobile accident. 40 P.S. § 1009.201(a). The exception to the rule allowing collection of those enumerated benefits (basic loss benefits), occurs when the injured out-of-state domiciliaries are domiciled in a state that has an insurance law that qualifies under Pennsylvania law as a no-fault plan. 40 P.S. § 1009.110(c)(1).

The lower court in this case held that the Maryland law does not qualify as a no-fault plan for purposes of § 1009.110(c)(1) as it does not restrict the right of a victim to bring action for non-economic detriment. The lower court relied on regulations promulgated by the Commonwealth Insurance Department of Pennsylvania which set out three requirements which a state insurance plan must meet in order to be considered a no-fault plan under Pennsylvania law:

“A ‘state no fault plan’ is defined to be a plan which contains the following elements:
(i) compulsory or mandatory automobile insurance.
(ii) first party benefits, and
(iii) a restriction on the right to bring action for non-economic detriment, or a relevant change in the evidentiary rules of practice and proof with respect to these actions.” 31 Pa.Code 66.41(b)(2) previously 31 Pa.Code 66.1— H0(c)(1)(b)(2).

Appellant’s major exception to the lower court decision is that the regulation is not valid as the Commissioner lacked the power to issue the regulation. Appellant contends that the Insurance Commissioner has no power regarding those subjects contained within a statute section if that section fails to mention the Commissioner; that the naming of the Commissioner in No-Fault statute sections is the grant of power to the Commissioner to promulgate regulations.

We cannot agree with appellant’s contentions. Our courts have approved, relied upon or followed regulations promulgated by the Insurance Commissioner interpreting No-Fault Act sections that do not mention the Insurance Commissioner. Tubner v. State Farm Mutual Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). (Insurance Commissioner’s Regulation 66.104a lawfully promulgated); Modesta v. Septa, 503 Pa. 437, 469 A.2d 1019 (1983) (relied on Regulation 66.11 previously 66.1-104(a) to reach its decision; while this reliance was not exclusive, it is significant to the decision therein); Zepp v. Nationwide Insurance Co., 290 Pa.Superior 28, 434 A.2d 112 (1981) (referred to and quoted Insurance Commissioner Regulation 31 Pa. Code § 66.53 which interprets Section 203 of the No-Fault Act, which in turn does not mention the Insurance Commissioner).

In each of these cases, substantive additions to the No-Fault Act by Insurance Commissioner regulations were approved by appellate courts.

Appellant relies on Ellison v. Safeguard Mutual Insurance Company, 209 Pa.Superior 492, 229 A.2d 482 (1967) to support its position, however, the case sub judice is distinguishable. In Ellison, the Insurance Commissioner required the adoption of a form forcing the submission of uninsured motorist disputes to arbitration. This requirement was promulgated even though uninsured motorist coverage was not mandatory. In addition, the abrogation of a right to access to the court system was far too serious to be forced upon insurers. Thus, the Commissioner was deemed to have mandated a “condition of insurance”, namely arbitration.

In contrast, the regulation at issue in the instant case merely provides a definition to the legislatively mandated “condition of insurance” contained in Section 110(c)(1) of the No-Fault Act.

Our Legislature provides authority that a state’s law must contain a restriction on the right to sue or a restriction of the introduction of evidence to have that state’s law considered a no-fault plan for purposes of Section 110(c)(1). Although the legislature does not provide in a specific writing that the definition of the phrase “no fault plan” include the above requirements or restriction, the legislative meaning can be ascertained otherwise. Section 503 of the No-Fault Act provides that all provisions of the Act are severable except the restriction on the right to sue. The non-severability of the restriction on the right to sue must be considered in conjunction with all section of the No-Fault Act including its stated purpose found at Section 102(b):

(b) Purposes — Therefore it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

In order to achieve the stated purpose of providing reasonable costing benefits, there must be a restriction on the right to sue. The non-severable restrictions on the right to sue must also be read in conjunction with those provisions providing first party benefits. It is this plan of combined benefits and restrictions on the right to sue that the Legislature has deemed to be a “no-fault plan”.

Considering the foregoing, we conclude that the lower court was correct in determining that Maryland is not a “no-fault state” for purposes of the Pennsylvania No-Fault Act. Accordingly, we affirm on this issue.

Next appellant contends that if appellees are entitled to survivor’s loss benefits as part of the Pennsylvania basic loss benefits then appellees must show that they were dependent upon the deceased victims for support; citing Chester v. Government Employees Insurance Company, 503 Pa. 292, 469 A.2d 560 (1983). In Chester, supra, our Supreme Court held that the Pennsylvania No-Fault Motor Vehicle Insurance Act required “child, parent, brother (or) sister” of a deceased victim of an automobile accident to show dependency on the victim as a condition of eligibility for survivor’s benefits. In his Order dated January 12, 1984, the Honorable Alfred J. DiBona, Jr. awarded survivor loss benefits of $5,000.00 for each decedent plus 18% interest from March 25, 1983 to the date of payment. It appears, however, that appellees received this award without a prior determination of dependency, a condition of eligibility for survivor’s benefits. Thus we are compelled to remand to the lower court for a hearing to determine appellees’ eligibility for survivor’s loss benefits.

In his third issue, appellant contends that the contract under which appellees seek to recover is a Maryland contract of insurance and was written in accordance with Maryland’s own no-fault statute not Pennsylvania’s. Therefore, under the terms of that contract, appellees are not entitled to anything more from appellant than that which has been provided.

Appellant has failed to raise this issue at any stage of the proceedings in the court below, thus it is not properly before this Court on appeal. Wingeart v. State Farm Mutual Insurance, 302 Pa.Superior 524, 449 A.2d 40 (1982) and the cases cited therein.

Finally, appellees, in their counterstatement of the questions involved, raise the question of GEICO’s liability for payment of their attorney’s fees and costs incurred. The trial court’s opinion adequately disposed of this question.

Order affirmed in part; remanded in part to the lower court for hearing on the question of dependency. Jurisdiction is relinquished.

ROWLEY, J., concurs in the result.


author: CIRILLO, Judge:

text:
    500 A.2d 1175
    Barbara A. Schimmel CHENG, Appellant, v. Thomas C. CHENG.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Nov. 15, 1985.

      Allan C. Perry, Philadelphia, for appellant.
    Glenn D. McGogney, Allentown, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order dismissing appellant Barbara Cheng’s complaint for divorce and economic relief for lack of subject-matter jurisdiction. We reverse and remand.

Barbara and appellee Thomas Cheng were married on May 31, 1957, in Phoenixville, Pennsylvania. They moved from Pennsylvania but returned in 1969. They separated on July 8, 1978, and Thomas relocated in South Carolina, establishing residency there in July, 1980.

On June 23, 1981, Thomas filed a complaint in divorce in South Carolina. Unable to perfect personal service on Barbara, the defendant in that action, Thomas notified her through publication. Barbara answered Thomas’s South Carolina complaint and counterclaimed for equitable distribution, counsel fees and costs, and alimony. She had filed a complaint in divorce in the Northampton County Court of Common Pleas in Pennsylvania on August 19, 1981, seeking a divorce, equitable distribution, alimony, costs and expenses, and support for the parties’ remaining minor child; Northampton County is where Barbara and the child reside and the former marital home is located. A master was appointed on November 18, 1981, to preside over the Pennsylvania action.

Thomas appeared through counsel in Barbara’s Pennsylvania action on December 29, 1981, and filed preliminary objections, raising his prior, pending action in South Carolina as a defense. Upon Barbara’s motion, Thomas’s objections were stricken as having been untimely filed. Thomas then answered Barbara’s complaint, denying her averment that there was no prior pending action and alleging the pendency of his own South Carolina action.

On March 19, 1982, Thomas and counsel for Barbara appeared in the South Carolina action. Barbara’s counsel initially challenged Thomas’s motion to sever the divorce claim therein from the economic claims raised in Barbara’s counterclaim. However, counsel for both parties finally stipulated that Barbara would not oppose the motion to sever if Thomas signed and recorded, in the Northampton County court, a stipulation which would ensure that court’s jurisdiction over the other collateral, economic matters. The parties also agreed to stay the South Carolina proceedings on Barbara’s counterclaim, with the South Carolina court’s jurisdiction preserved, pending resolution of the economic issues in the Pennsylvania court. The South Carolina court issued a decree in divorce a.v.m. on April 20, 1982.

The master in Barbara’s Pennsylvania action held a hearing on the economic claims on April 13, 1983. Barbara, her counsel, and counsel for Thomas attended. The master found that Barbara’s claim for post-divorce alimony was both well-founded and viable under Pennsylvania law. However, the master recommended that alimony be denied because Pennsylvania lacked subject-matter jurisdiction over Barbara’s divorce action. The Northampton County court agreed, denying Barbara’s exceptions to the master’s report and dismissing her complaint.

Appellant Barbara now claims:

1) that the trial court erred in holding that it lacked jurisdiction to grant post-divorce alimony in the instant case because of the decision in Sohmer v. Sohmer, 318 Pa.Super. 500, 465 A.2d 665 (1983);
2) that the trial court erred in questioning whether appel-lee Thomas’s prior pending action vitiated Pennsylvania’s jurisdiction over the subject matter when, in fact, that specific issue had been raised in Thomas’s preliminary objections, which were dismissed as untimely;
3) that the trial court erred in concluding that, although the case at bar is factually distinguishable from Sohmer v. Sohmer, supra, those distinctions are not material; and
4) that the holding of Sohmer v. Sohmer directly conflicts with the legislative findings and intent expressed in the Divorce Code of 1980 and with the Commonwealth’s long-standing public policy on the sanctity of marriage.

We find appellant’s second contention to be of no consequence. The court shall dismiss an action whenever it appears by suggestion of the parties or otherwise that the court lacks subject-matter jurisdiction. Pa.R.Civ.P. 1032(2). That appellee’s objection to appellant’s complaint on this basis was dismissed as untimely is irrelevant. Likewise, as will be discussed below, we do not find our previous decision in Sohmer v. Sohmer to be contrary to the intent of the Divorce Code or the policy of this Commonwealth. However, we agree with appellant’s first and third contentions, and therefore reverse the instant order and remand.

Both parties, as did the trial court, frame the key issue herein as one of jurisdiction. The test of subject-matter jurisdiction is simply whether the court is competent or has the power to hear and determine controversies of the general class at issue, not whether the court might ultimately decide that it cannot grant relief in the particular case before it. In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980); McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222 (1962); Witney v. City of Lebanon, 369 Pa. 308, 85 A.2d 106 (1952); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 464 A.2d 1349 (1983); Nagle v. American Casualty Co., 317 Pa.Super. 164, 463 A.2d 1136 (1983); Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982). Parties to an action cannot, by stipulation, for example, confer jurisdiction upon a court for which jurisdiction would otherwise be lacking. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 454 A.2d 618 (1982); see also Foote v. Maryland Casualty Co., 409 Pa. 307, 186 A.2d 255 (1962); Foley Brothers, Inc. v. Commonwealth, Department of Highways, 400 Pa. 584, 163 A.2d 80 (1960); Stinner v. Stinner, 300 Pa.Super. 351, 446 A.2d 651 (1982); Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981); Kardibin v. Associated Hardware, 284 Pa.Super. 586, 426 A.2d 649 (1981); Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979); Chamberlin of Pittsburgh, Inc. v. Fort Pitt Chemical Co., 237 Pa.Super. 528, 352 A.2d 176 (1975) (allocatur denied). For reasons which we will elaborate upon later, we find that the Northampton County court had jurisdiction over the instant action. Thus, the basic question presented may be analogized to one of choosing the court of the more appropriate or convenient venue: here, Pennsylvania or South Carolina. Phrased in this manner, Pennsylvania is the proper forum for the instant litigation.

The Divorce Code of 1980, 23 P.S. §§ 101-801 (1980 Code), was enacted to modernize Pennsylvania’s domestic relations law and to harmonize it with the laws of other states. Chaney v. Chaney, 343 Pa.Super. 77, 84, 493 A.2d 1382, 1386 (1985) (Opinion by Cirillo, J.). One of the policies of the 1980 Code is to:

(a) ...
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimqny according to the actual need and ability to pay of thé partjies and insure a fair and just determination and settlement of their property rights.
(b) The | objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.

23 P.S. § 102(a)(6), (b) (emphasis supplied). Clearly, the 1980 Code permits post-divorce alimony in appropriate situations. Chaney supra, 343 Pa.Superior Ct. at 84, 493 A.2d at 1386.

To apply this policy, the 1980 Code grants the courts of this Commonwealth brbad jurisdiction.

(a) The ¡courts of this Commonwealth ... shall have original jurisdiction in cases of divorce ... and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(1) ... the order of any alimony____

23 P.S. § 301(a)(1). Specifically, the Code provides:

In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require....

23 P.S. § 401(c) (emphasis supplied).

The Pennsylvania Legislature has also spoken on the availability of alimony after an ex parte divorce:

§ 505. Alimony where a foreign ex parte divorce or annulment
Whenever a person who was a resident of this Commonwealth at the time such person was a defendant or respondent in a foreign ex parte action for annulment or divorce petitions a court of this Commonwealth for alimony and establishes the need therefor, such court, if it has jurisdiction over the person or property of the other party, may order that such alimony be paid in the same manner and under the same conditions and limitations which pertain when alimony is sought as provided in this chapter. In the event that the other party from whom such alimony is sought cannot be located within this Commonwealth, the court may attach such of the tangible or intangible property of said party as is within the jurisdiction of the court in the manner provided by the Rules of Civil Procedure, except that no exemption shall apply. Such property shall thereupon be subject to the payment of alimony in the same manner as provided by law in actions for nonsupport.

23 P.S. § 505 (emphasis supplied).

“[Ijndividual provisions in a comprehensive legislative scheme ... should not be read abstractly, but rather with a view to their place in the entire structure.” Sohmer, supra, 318 Pa.Super. at 506, 465 A.2d at 668 ;see also Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975). Sections 301, 401, and 505, therefore, must be analyzed within the concept of a working whole in order to ascertain the intent of the Legislature, the object of statutory construction. 1 Pa.C.S. § 1921(a). We need not speculate about that intent here, however, because the Legislature stated its policies in Section 102. Similarly, “[t]he Divorce Code of 1980 must be read in the context of the whole law and not independently of it.” Young v. Young, 320 Pa.Super. 269, 278, 467 A.2d 33, 37 (1983), rev’d on other grounds, 507 Pa. 40, 488 A.2d 264 (1985) (1980 Code did not apply to divorce decree and property distribution order entered before its effective date). The 1980 Code neither creates new implied procedural devices nor relieves divorce cases from existing procedural and substantive rules. Young, supra, 320 Pa. Super, at 278, 467 A.2d at 37. Accordingly, Section 505 should not be read as delineating jurisdiction, the province of Sections 301 and 401, but rather as granting a specific form of relief in particular circumstances.

The 1980 Code “aims to foster economic justice,” Young, supra, 320 Pa.Superior Ct. at 277, 467 A.2d at 37, and the language of Sections 102, 301, and 401 emphasizes this goal, as does the language of Section 505. This last section is consistent with the policy and intent of the rest of the Code in that it allows alimony in an otherwise inequitable situation. Therefore, we interpret Section 505 to give full effect to the entire Code; such an interpretation is consistent with prior law and the policy of the 1980 Code.

Our interpretation of Section 505 also upholds this state’s interest in resolving the divorce actions of its domiciliaries. Where, as here, the spouses have separate domiciles, each state of domicile has an interest in the parties’ marital status. See Restatement (Second) of Conflict of Laws § 71 (1971). Each state will apply its own law, in actions brought there, to determine its domiciliary’s right to a divorce. Id. at § 285. The doctrine of divisible divorce recognizes these principles by allowing the more interested forum to adjudicate the varied rights of its domiciliaries. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974).

In the instant case, both parties rely, as did the trial court, on Sohmer v. Sohmer's interpretation of Section 505 as dispositive of the question presented. The appellant in Sohmer filed for a divorce in Pennsylvania. Her husband then filed in Virginia, and the appellant appeared through counsel in that action. The Virginia court granted a divorce a.v.m., but left open the question of alimony. We denied the appellant’s claim for post-divorce alimony, holding that the doctrine of divisible divorce does not apply where a party has appeared in the foreign proceeding. Sohmer, supra, 318 Pa.Super. at 507, 465 A.2d at 668. Thus, we found Pennsylvania to be without jurisdiction to grant relief after the entry of a foreign divorce decree which was not ex parte. Id.

Appellee Thomas now argues that Sohmer v. Sohmer bars appellant Barbara’s claims, because she appeared through counsel in the South Carolina divorce proceeding. However, our reading of Section 505 in Sohmer v. Sohmer can be harmonized with Sections 301 and 401, given the facts of the instant case. Accordingly, we will interpret Section 505 to allow appellant Barbara Cheng to seek post-divorce relief. We reach that conclusion in order to promote the policies of the 1980 Code and to acknowledge the compelling factual distinctions between Sohmer v. Sohmer and the case now before us.

The decree in Sohmer v. Sohmer was not specific, nor was it conditioned upon stipulations by the parties; rather, it left open the question of alimony. The decree seemingly preserved jurisdiction as an after-thought, speaking generally of “this or any other Court” empowered to “adjudicate the property rights of the parties in this or any other jurisdiction.” Id., 318 Pa.Superior Ct. at 503 n. 1, 465 A.2d at 666 n. 1. In addition, the parties and the court in Sohmer did not choose or rely on a specific state to determine the ancillary matters. More importantly, the appellant in Sohmer first sought post-divorce alimony in Pennsylvania after she and her husband had been divorced in Virginia; unlike Barbara Cheng herein, the appellant in that case did not request alimony in her original petition for divorce.

By contrast, the South Carolina court in the present case specifically conditioned its issuance of a divorce decree on the parties’ agreement to resolve their economic and property disputes in Pennsylvania. Second, appellee Thomas filed a stipulation, in the Northampton County court, which provided that all ancillary matters were reserved for that court’s determination. In that stipulation, a condition precedent to the divorce decree, Thomas consented to the Pennsylvania court’s resolution of these matters; the South Carolina court had expressly stated that its decree was not final on alimony or any other economic or property issue. The decree clearly noted that Barbara’s objections to Thomas’s motion to sever would be withdrawn if Thomas agreed to Pennsylvania’s jurisdiction over the collateral economic matters to be resolved between the parties. The decree was, therefore, obviously not a final determination of the economic and property issues; it spoke instead only on the question of the divorce itself. Full faith and credit requires us to recognize and enforce the South Carolina decree insofar as it grants the parties a divorce, which indeed is all that that decree purports to do. See Estin v. Estin, supra; Stambaugh v. Stambaugh, supra; Restatement (Second), supra at § 107.

In addition, the parties’ stipulations did not confer jurisdiction on a Pennsylvania court which would otherwise not exist. Compare Sohmer, supra, 318 Pa.Superior Ct. at 505, 465 A.2d at 667 (decree issued by another state’s court cannot create jurisdiction in Pennsylvania). Instead, this Commonwealth has jurisdiction because significant marital property is located here: Barbara has made several claims regarding the settlement of various economic and property matters, whereas the appellant in Sohmer v. Sohmer had apparently petitioned for alimony only. See Sohmer, supra, 318 Pa.Superior Ct. at 505, 465 A.2d at 666. As is suggested in Section 505 itself, property is a sufficient basis for a finding of jurisdiction.

For this reason, the South Carolina court properly refused to decide any financial or property issues, because property matters in a divorce case are within the jurisdiction of the state where that property is located. We have already had occasion to examine this aspect of dual-state divorces, in Taddei v. Taddei, 299 Pa.Super. 318, 445 A.2d 773 (1982), a case far more applicable to the one at bar than is Sohmer v. Sohmer.

In Taddei, the parties received a divorce decree from a New Jersey court. The petitioner in that action then brought suit in a Pennsylvania court for partition of the marital property and for accountings of that property. The respondent answered and counterclaimed for sole ownership of the former marital home, equitable distribution of other marital property, support and alimony. This counterclaim was dismissed with prejudice. Although the major issue in Taddei was the retroactive application of the 1980 Code, we stated that a court cannot exercise jurisdiction over property outside its own state. Id., 299 Pa.Superior Ct. at 322, 445 A.2d at 775. For this reason, either of the parties could bring an action in a Pennsylvania court to settle their property rights. Id. In particular, we held that “here, the New Jersey court did not, and indeed could not, make any property distribution because it lacked jurisdiction. [Rather,] Pennsylvania [is] the only forum with jurisdiction over the subject property.” Id., 299 Pa.Superior Ct. at 325, 445 A.2d at 777.

Furthermore, regarding Section 505’s language on ex parte proceedings, in addition to the distinctions between this case and Sohmer v. Sohmer, the present facts clearly illustrate the inequity which would result from our assertion that the South Carolina proceeding in this case was not ex parte because Barbara appeared there through counsel.

A judicial proceeding is “ex parte” if one party applies to the court for and is awarded relief without the presence or even the knowledge of the other party, who may be affected or bound by the proceeding without having had his or her constitutionally protected opportunity to appear and be heard. See Gliwa v. United States Steel Corp., 322 Pa. 225, 227, 185 A. 584, 585 (1936); Powell v. Sonntag, 159 Pa.Super. 354, 361, 48 A.2d 62, 65-66 (1946); see also United States v. Meriwether, 486 F.2d 498 (5th Cir.1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3074, 41 L.Ed.2d 668 (1974); White v. State, 457 P.2d 650 (Alaska 1969); Wilson-Jump Co. v. McCarthy-Hundrieser and Associates, Inc., 85 Ill.App.3d 179, 40 Ill.Dec. 230, 405 N.E.2d 1322 (1980); Kutrules v. Suchomel, 258 Iowa 1206, 141 N.W.2d 593 (1966); In re Will of Bowlus, 197 Kan. 351, 416 P.2d 711 (1966); Rodgers v. Unborn Child or Children of Rodgers, 204 Tenn. 96, 315 S.W.2d 521 (1958).

For appellant Barbara Cheng, the South Carolina divorce proceeding was essentially ex parte, in operation if not in form. Although she “appeared” in that proceeding, she had no real opportunity to have her claims fully and finally litigated there because that court specifically said that it would not — in part because it could not — decide the economic and property issues which she had raised. She has yet to litigate any such claims, and cannot fairly be said to have had an opportunity to be heard in another forum, where that forum expressly and correctly declined to hear and decide them.

Finally, jurisdiction in this case is founded not only upon the location of marital property in Pennsylvania but also upon the mandate of Section 401(c), quoted supra. That provision does not limit our courts to awarding pendente lite remedies, but is meant to fulfill the policies of the 1980 Code, including the doing of economic justice between divorced parties, as stated in Section 102(a)(6). Lehmicke v. Lehmicke, 339 Pa.Super. 559, 564-65, 489 A.2d 782, 785-86 (1985), citing Jack A. Rounick, Pennsylvania Matrimonial Practice § 18:6 (1982) (Section 401(c) is “the most far-reaching power heretofore given to a court in a matrimonial cause to protect the interests of the parties and to effectuate the purposes of the New Divorce Code”). Compare Young v. Young, supra (courts are to exercise their Section 401(c) powers to achieve the goal of Section 102(a)(6)); Lazovitz v. Lazovitz, 307 Pa.Super. 341, 453 A.2d 615 (1982) (same); see also Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983); Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Hodge v. Hodge, 337 Pa.Super. 151, 486 A.2d 951 (1984); Beamer v. Beamer, 330 Pa.Super. 154, 479 A.2d 485 (1984); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984). Given appellant’s inability to have her claims determined by the South Carolina court, because of both that court’s lack of jurisdiction over the Pennsylvania property and the deliberately limited nature of its decree, we will exercise our authority under Section 401(c) to permit her to seek appropriate economic relief in this Commonwealth.

In conclusion, while both the South Carolina and Pennsylvania courts had jurisdiction for purposes of granting a divorce to the parties in the instant case, the Northampton County court had the jurisdiction enabling it to decide property matters between the parties, where the property at issue is located in this state. Likewise, the court was empowered by Section 401(c) to hear appellant’s arguments for economic relief. The trial court thus erred in ruling that it lacked jurisdiction to entertain appellant’s complaint. Its order dismissing that complaint is therefore reversed and remanded with instructions to proceed in light of our holding herein.

Order reversed; remanded for further proceedings consistent with this opinion; jurisdiction is relinquished.

      . With this statement, we summarily dismissed in Sohmer v. Sohmer the appellant’s elaim that the above-quoted Section 301(a) gave the court jurisdiction to hear her petition for alimony. As will be seen, the case now before us can be distinguished from Sohmer v. Sohmer and jurisdiction grounded in Section 401(c), a portion of the 1980 Code with which we were not there confronted.

      . The United States Constitution requires each state to give full faith and credit to the final adjudications of every other state. U.S. Const. art. IV, § 1; see also Schifano v. Schifano, 324 Pa.Super. 281, 293-94, 471 A.2d 839, 845 (1984). In Pennsylvania, a foreign decree is generally given the same effect which it would have in the issuing state. Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 82-83, 361 A.2d 660, 662 (1976) (allocatur denied). A sister state's divorce decree is presumptively valid in this jurisdiction. Watson v. Watson, 243 Pa.Super. 23, 28, 364 A.2d 431, 433 (1976) (allocatur denied). However, a foreign decree will not necessarily be dispositive of the economic aspects of the divorce, Sohmer, supra, 318 Pa.Super. at 504, 465 A.2d at 667; these questions are left for determination in other proper jurisdictions. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Estin v. Estin, supra; Sohmer v. Sohmer, supra.

      . Of course, to the extent that appellant’s complaint sought a divorce in addition to the economic relief, that issue is moot.


author: WIEAND, Judge:

text:
    500 A.2d 1182
    COMMONWEALTH of Pennsylvania v. Angel ROMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Nov. 15, 1985.

      Thomas D. Heberle, Erie, for appellant.
    Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Com., appellee.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   WIEAND, Judge:

In this appeal, Angel Roman argues that he was improperly forced to proceed to trial without counsel. We agree. Therefore, we reverse and remand for a new trial.

As a result of incidents occurring on May 4 and May 9, 1984, Roman was charged with two counts each of the following: driving while under the influence of alcohol or a controlled substance; driving on roadways laned for traffic; driving while his operating privilege was suspended or revoked; and driving an unregistered vehicle. Attorney William Morton, a member of the Erie County Public Defender’s Office, initially undertook to represent Roman. However, on August 16, 1984, prior to trial, Morton filed a petition requesting leave of court to withdraw as Roman’s counsel. The petition contained averments that Roman had said he did not want Morton to represent him and that it was therefore impossible to maintain an attorney-client relationship. The record does not disclose that Roman, if present when the petition was presented to the court, was then advised of his right to be represented by counsel. Similarly, it does not appear that a penetrating and comprehensive inquiry was made with respect to his understanding of this right. Nevertheless, on the same day, the trial court entered an order allowing counsel to withdraw his representation.

On September 10, 1984, the date set for trial, Roman appeared and waived the right to trial by jury. Trial without jury was set for September 18, 1984. When Roman appeared for trial on that day, the following colloquy took place.

THE COURT: ____ I understand you do not have an
attorney, Mr. Roman.
MR. ROMAN: No, sir.
THE COURT: You had one and you wanted to handle the case yourself; is that correct?
MR. ROMAN: No, sir, I—
THE COURT: You what?
MR. ROMAN: I dismissed him because there was some loss of interest on my part.
THE COURT: Didn’t you have an attorney at one time, Mr. Morton?
MR. ROMAN: Yes.
THE COURT: And you didn’t want him to handle it for you?
MR. ROMAN: There was a disagreement.
THE COURT: Yes, and you were offered another attorney and you said you wanted to handle it yourself three different times.
MR. ROMAN: I was not offered a different attorney.
THE COURT: I understand three different times you were offered an attorney and wanted to handle it yourself.
MR. ROMAN: Your Honor, that’s not true. After I dismissed Mr. Morton, there was no other—
MR. BLACKWOOD [Assistant District Attorney]: Why don’t you come up to the bar?
THE COURT: You said you didn’t want Mr. Morton, you had a disagreement with him?
MR. ROMAN: We had a disagreement and I didn’t want him to, whatever, let him defend me anymore. But about the other part of they offered me another lawyer, that’s not true.
THE COURT: I was told that you said you wanted to handle this yourself and you were told three different times to get a lawyer and you didn’t want one.
MR. ROMAN: I haven’t got one, that’s true; but I was offered another, that was not true.
THE COURT: Did you apply to the Public Defender? Are you working?
MR. ROMAN: No, I not working.
THE COURT: Do you have any income?
MR. ROMAN: No, I have no income.
THE COURT: How do you live?
MR. ROMAN: Well, my wife work.
THE COURT: But did you go to the Public Defender’s office and ask for a lawyer? Is that where you got Mr. Morton, up at the Public Defender’s?
MR. ROMAN: I talked with Mr. Manzi.
THE COURT: Yes.
MR. ROMAN: He was the one who say—
THE COURT: And he got Mr. Morton for you, that’s the Public Defender.
MR. ROMAN: Right.
THE COURT: Well, the problem is you had your chance for a lawyer and, as I understood it, you didn’t want one. Are you in on this at all, Mr. Blackwood?
MR. BLACKWOOD: I have notes in the file, Your Honor, that he has indicated that he intended to defend himself. He discharged Mr. Morton and he intends to defend himself. He said that to the Court I think three times now.
THE COURT: Judge Jiuliante’s courtroom?
MR. BLACKWOOD: The notes I have — Mr. Agresti was there, not I. At this time, too, Your Honor, we wrote to him on August 23rd. And, at the time, he had written to Greg Orlando and he had asked for a continuance.
We said there is no grounds for a continuance. We advised him that he had four weeks until the September term to obtain new counsel, as Mr. Morton had been discharged by him.
Mr. Trombetta again urged him, you either get an attorney on your own or make an application to the Public Defender’s office. This is on August 23rd. Instead, Mr. Roman came here and indicated he was not going to get an attorney, he was going to represent himself.
And I think that’s what he is here to do today; is that correct?
MR. ROMAN: That’s not true.
THE COURT: We will have to proceed on that basis. You have been stalling this as much as we possibly can, so we will start the case.

(N.T. 9/18/84, at pp. 3-7).

During an ensuing trial, Roman did not cross-examine the Commonwealth’s witnesses and did not call any defense witnesses. He did testify himself. The court found him guilty of twice driving while under the influence of alcohol and of the several summary offenses. Roman, still acting without counsel, filed a post-trial motion in the nature of a motion for new trial, but this was dismissed. A petition to reconsider was denied. When Roman thereafter appeared for sentencing, a continuance was granted to allow him to obtain counsel. On December 31, 1984, while represented by present counsel, Roman was sentenced.

On direct appeal, Roman argues that he did not voluntarily and intelligently waive the right to counsel and that the trial court erred when it failed to conduct an adequate waiver colloquy.

Rule 318(c) of the Pennsylvania Rules of Criminal Procedure has imposed the following requirement:

[w]hen the defendant seeks to waive his right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.

(Emphasis added.)

In order for a waiver of counsel to be valid, it must be the voluntary and intelligent act of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). To be intelligent, a

waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to an understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-70, 202 A.2d 303, 305 (1964), quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1947). See also: Commonwealth v. Baker, 318 Pa.Super. 19, 24, 464 A.2d 496, 499 (1983). Although Rule 318(c) does not instruct trial judges regarding the extent of the inquiry to be made of the accused, the comment of the Criminal Rules Committee contains a recommendation that, at a minimum, a judge should elicit the following information:

(1) That the defendant understands that he has the right to be represented by counsel, and the right to have free counsel appointed if he is indigent.
(2) That the defendant understands the nature of the charges against him and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.

See also: Commonwealth v. Charlett, 282 Pa.Super. 28, 422 A.2d 659 (1980). See generally: Commonwealth v. Palmer, 315 Pa.Super. 601, 608-609, 462, A.2d 755, 758 (1983).

In the instant case, the Public Defender had requested leave of court to withdraw from representing appellant. The court had granted this request without advising appellant of his right to be represented and without making inquiry concerning appellant’s understanding of this right. When appellant appeared without counsel and waived the right to trial by jury, the court recommended to appellant that he obtain counsel, either privately retained or court appointed, but no further inquiry was conducted at that time.

The record of the colloquy immediately preceding the bench trial speaks for itself. Appellant conceded that he had rejected Morton because of a disagreement. However, he denied that he wished to represent himself and also denied that he had been offered other representation by the Public Defender. That he did not intend to waive the right to be represented by counsel and that ie did not wish to represent himself are eminently clear. It is equally clear that neither the trial court nor the prosecuting attorney advised appellant, who admittedly was indigent, that he had the right to have free counsel appointed to represent him. Instead, he was told that he would have to proceed to trial immediately without counsel. He was thus denied the constitutionally guaranteed right to counsel. See and compare: Commonwealth v. Baker, supra; Commonwealth v. Charlett, supra; Commonwealth v. Hauser, 265 Pa.Super. 135, 401 A.2d 837 (1979).

The Commonwealth argues that appellant’s conduct was dilatory and that it was geared to avoid answering the charges against him. This argument is not supported by the record. Appellant regularly appeared when he was required to do so. The trial was not ever continued at his request. Although appellant, while unrepresented by counsel, sought pre-trial to obtain a delay of trial, his request was denied. He appeared when his case was scheduled for trial byjury and, having waived trial by jury, when his case was scheduled for trial without jury. He did not in any way delay the trial or seek to avoid answering charges. It cannot be said that he was avoiding trial merely because, being indigent, he appeared for trial without counsel.

It is possible, of course, that the disintegration of the relationship between appellant and his first attorney was attributable to appellant. It may also be that his rejection of Morton’s representation represented a reluctance to accept anything short of a total dismissal of the charges. However, it was counsel who withdrew and who did so without fully apprising appellant of his rights. Moreover, the inquiry required by Pa.R.Crim.P. 318(c) was not conducted by the court. It was never explained to appellant that he did not have the right to pick and choose his court-appointed attorney. Similarly, the consequences of proceeding without counsel were never impressed upon him. Even so, the record is clear that he did not want to represent himself and did not voluntarily waive the right to be represented by counsel. Because he was deprived of the right to be represented by counsel, he is entitled to a new trial.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . 75 Pa.C.S. § 3731(a).

      . 75 Pa.C.S. § 3309.

      . 75 Pa.C.S. § 1543(a).

      . 75 Pa.C.S. § 1301.

      . Appellant was ordered to pay various fines and costs and was sentenced to two consecutive terms of imprisonment, one not less than two days nor more than one year and the other for not less than thirty days nor more than one year.

      . These issues had not been raised specifically in appellant’s post-trial motions. Because he was not then represented by counsel, however, it cannot be said that his failure was a knowing and voluntary waiver of the right to raise the issues on appeal. See: Commonwealth v. Townes, 300 Pa.Super. 544, 547, 446 A.2d 1293, 1294 (1982).

      . The trial court appointed counsel, who appeared at the jury waiver colloquy, for the limited purpose of explaining to Roman his rights regarding the jury waiver.


text:
    500 A.2d 1187
    Andrew P. RODNEY and Anna Rodney, his wife, Appellants, v. Larry J. WISE and Liquid Carbonic Corporation, Appellees.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Nov. 15, 1985.

      Raymond Radakovich, Pittsburgh, for appellants.

      Louis Anstandig, Pittsburgh, for appellees.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   WIEAND, Judge:

The issue in this appeal is the validity of a waiver of trial by jury entered in a civil action in order to obtain a delay in the commencement of trial. The trial court held that the waiver was valid and denied a request to withdraw it immediately prior to commencement of a nonjury trial. We find no error in the trial court’s ruling and affirm the judgment entered on the verdict of the court.

On August 20, 1979, a vehicle owned by Liquid Carbonic Corporation (Liquid Carbonic) and driven by Larry J. Wise, one of its employees, was involved in a collision with an automobile operated by Andrew P. Rodney. Rodney and his wife, Anna, brought a trespass action against both Wise and Liquid Carbonic to recover damages for injuries sustained by the husband-plaintiff as a result of the accident. The trespass action was heard by a board of arbitrators, which entered an award in favor of the defendants, Wise and Liquid Carbonic. The Rodneys filed a timely appeal and requested trial by jury in the Court of Common Pleas of Allegheny County.

The case was scheduled for trial on Monday, March 12, 1984. On Friday, March 9, 1984, the Rodneys’ attorney moved for a continuance because of a scheduling conflict. The motion was granted by the calendar control judge who rescheduled the case for April 4, 1984. In the order granting the continuance appeared the judge’s handwritten notation that the case was “to [be] heard nonjury upon the consent of all parties.” The Rodneys subsequently changed their minds, and their lawyer informed opposing counsel that they again desired a jury trial. In an effort to confirm the nonjury status of the impending trial, counsel for the appellees requested that the Rodneys sign a written agreement to proceed nonjury. The Rodneys refused. Thereafter, Wise and Liquid Carbonic filed a motion to compel the Rodneys to elect between a jury and nonjury trial. The object of this motion allegedly was to insure that the Rodneys would not elect at the time of trial to defer the case to a future jury trial list. This was necessary because of the inconvenience and expense inherent in appellees’ preparation for trial, involving, as it did, the production of out-of-state witnesses. The motion was denied by the calendar control judge in an order dated March 28, 1984. The order neither referred to nor purported to affect the prior order directing the Rodneys to proceed nonjury; and the Rodneys themselves made no formal attempt to modify or withdraw the order directing a nonjury trial.

Prior to commencement of trial on April 4, 1984, counsel for the Rodneys informed the trial judge that Rodney had changed his mind and now wished to withdraw his consent to a nonjury trial. Rodney’s request was denied, and the case was thereupon tried before the court sitting without a jury. After hearing all of the evidence, the judge entered a verdict in favor of Wise and Liquid Carbonic. Exceptions were filed which alleged, inter alia, that appellants had been deprived of their right to trial by jury. The trial court dismissed the exceptions and directed that judgment be entered on the verdict. This appeal followed.

Section 25 of the Schedule to Article V of the Pennsylvania Constitution provides, inter alia, that “[u]ntil otherwise provided by law, the parties, by agreement filed, may in any civil case dispense with trial by jury____” (Emphasis added). The Rodneys argue that this section required, at least by implication, a written agreement waiving the right to jury trial. Because their consent to proceed nonjury was not reduced to writing, they argue, it was not an effective waiver. Appellants’ argument, however, ignores the fact that this constitutional provision, as allowed by its specific terms, was suspended by a contrary rule of law enacted by the legislature as part of the Judiciary Act of 1976, as amended. This statutory provision, appearing at 42 Pa.C.S. § 5104(a), provides as follows:

Except where the right to trial by jury is enlarged by statute, trial by jury shall be as heretofore, and the right thereof shall remain inviolate. Trial by jury may be waived in the manner prescribed by general rules. (Emphasis added).

The pertinent general rule is found in Pa.R.C.P. 1007.1. It provides that a trial by jury will be deemed waived unless it is affirmatively requested. See also: Dream Pools of Pennsylvania v. Baehr, 326 Pa.Super. 583, 587, 474 A.2d 1131, 1133 (1984); 7 Std.Pa.Prac.2d § 42.2 (1982). After a demand for jury trial has been made, it “may not be withdrawn without the consent of all parties who have appeared in the action.” Pa.R.C.P. 1007.1(c).

That appellants agreed orally to waive the right to trial by jury is clear. This fact appears unequivocally from the order of court granting the requested continuance. This order recites specifically and unequivocally that the case was to be tried nonjury upon consent of all parties. The record of the nonjury trial also contains an admission by appellants’ attorney that his clients, when seeking a continuance, had agreed to waive jury trial and proceed nonjury.

The voluntariness of the Rodneys’ waiver was not impaired because it had been made to obtain a delay in the start of their trial. The right to trial by jury may be waived as part of an express agreement. Warden v. Zanella, 283 Pa.Super. 137, 140, 423 A.2d 1026, 1028 (1980); Neely v. J.A. Young & Co., 198 Pa.Super. 196, 199, 181 A.2d 915, 917 (1962); 7 Std.Pa.Prac.2d § 42.2 (1982). Although our courts have not directly addressed the issue presented by this case, other jurisdictions have held that where a party exchanges his right to a jury trial for some tactical advantage to be obtained from the court, that party’s consent is binding. In Hanlon v. Providence College, 615 F.2d 535 (1st Cir.1980), the defendant had agreed during the first day of trial to waive his right to a jury if the court would hear his parol evidence de bene. The United States Court of Appeals for the First Circuit concluded that the defendant had had ample opportunity to consult with experienced counsel and that his decision to waive a jury trial had not been coerced and was not involuntary. It was not error to deny a subsequent request for a jury trial. Id. at 538-539. See also: 60 C.J.S. Motions & Orders § 65 (1969) (“... parties who have availed themselves of the benefit of the order are bound by it and may not be heard to complain of conditions imposed by it. A party may not question the validity of an order made at his request and on his stipulation.”).

The decision of the Supreme Court of California in Hawes v. Clark, 84 Cal. 272, 24 P. 116 (1890), although not of recent vintage, is instructive because of its factual similarity to the instant case. In Hawes, the parties’ contract action had been scheduled for trial before a certain judicial department of the Superior Court of San Francisco. In order to obtain a trial delay, the defendant’s counsel offered to waive his client’s right to a jury trial if, in return, the plaintiff’s attorney would accede to a transfer of the case to another department. When counsel for the plaintiff agreed to the terms, the attorney for the defendant appeared in open court and consented to waive trial by jury. Applying reasoning that is as cogent today as it was in 1890, the California Court rejected a contention by the defendant that a subsequent request for a jury trial should have been granted. The Court said:

... it is plain that the defendant is not in a position to complain of its [the court’s] action. He got the benefit of one part of the stipulation, — that is, the transfer of the cause to another department of the court than the one in which it was peremptorily set for trial, — and secured about a month’s delay, which seemed to be his prime object, and should not be allowed to avoid the accompanying burden of a trial by the court without a jury, which he had in open court, by his counsel, waived.

Id. at 275, 24 P. at 116.

Like the defendant in Hawes, the Rodneys agreed to waive trial by jury in order to obtain a delay in the commencement of trial. There is no suggestion that appellants’ waiver was otherwise coerced. As in Hanlon and Hawes, appellants’ decision was made after consultation with and approval by their attorney. Having received the desired benefit of their bargain, the Rodneys cannot now complain that their consent to the agreement was not voluntarily given. We conclude, therefore, that the Rodneys’ consent to proceed nonjury was an effective waiver of their right to trial by jury.

Appellants argue alternatively that although they initially consented to waive a jury trial, they later “rescinded [their] ratification of [the calendar control judge’s] non-jury direction.” Appellants’ Brief at 12. Simply stated, they contend that they effectively withdrew their earlier consent to proceed nonjury. We disagree.

As a general rule, where a party has expressly consented to waive a jury trial, an application to withdraw the waiver is addressed to the sound discretion of the trial court. Ladner v. Forman, 107 Pa.Super. 245, 250, 163 A. 359, 361 (1932); Mathewson v. Lehigh Valley Coal Co., 46 Luz.Leg.Reg. 93, 94, 7 D. & C.2d 91, 93 (1956); Brenzel v. Philadelphia Transp. Co., 51 Pa.D. & C. 367, 368 (Phila.Co. 1944); 7 Std.Pa.Prac.2d § 42.10 (1982). See also: 64 A.L. R.2d 506, § 5, at 519. A court will permit the withdrawal of the waiver upon a showing of “legal cause satisfactorily established.” Mathewson v. Lehigh Valley Coal Co., supra. See: Brenzel v. Philadelphia Transp. Co., supra; 7 Std.Pa.Prac.2d § 42.10 (1982). See generally: 64 A.L.R.2d 506, § 8, at 536 (delineating those circumstances that have and those which have not been accepted as good cause). Courts in this and other jurisdictions have held uniformly that a mere change of heart will not constitute sufficient legal cause for withdrawing an express jury waiver. See, e.g.: Brenzel v. Philadelphia Transp. Co., supra; Hanlon v. Providence College, supra at 538-539; West v. Devitt, 311 F.2d 787, 788 (8th Cir.1963); County (Social) Club of Savannah Inc. v. Sutherland, 411 F.2d 599, 600 (5th Cir. 1969). Accord: Ladner v. Forman, supra; Mathewson v. Lehigh Valley Coal Co., supra; General Business Services, Inc. v. Fletcher, 435 F.2d 863 (4th Cir.1970); Hollembaek v. Alaska Rural Rehabilitation Corp., 447 P.2d 67 (Alaska 1968); Hawes v. Clark, supra; Cowan v. Stubblebine, 73 A.D.2d 750, 423 N.Y.S.2d 316 (3d Dep’t 1979); Ezzell v. Endsley, 197 Okl. 194, 169 P.2d 309 (1946); Osage Oil & Ref. Co. v. McDowell, 93 Okl. 201, 220 P. 609 (1923); Cope v. Henderson, 460 S.W.2d 183 (Tex.Civ.App.1970). Moreover, a withdrawal of the waiver will not be permitted where it would either delay the trial or prejudice an adverse party. Ladner v. Forman, supra. See generally: 64 A.L.R.2d 506, §§ 10, 12 and cases cited therein.

Appellants’ attempted withdrawal of their jury waiver was inadequate for two reasons. First, because they made no formal attempt to withdraw their waiver of trial by jury until the day of the nonjury trial, the granting of a demand for a jury trial at that late date would have caused unnecessary delay. This would have caused prejudice to Wise and Liquid Carbonic who already had incurred the expense of bringing out-of-state witnesses to court for trial. Second, when the Rodneys finally raised the issue with the trial court, they failed to articulate any legal excuse to justify a withdrawal of their consent to proceed nonjury. At that time, their counsel told the court merely that his clients had changed their minds.

It seems clear, under these circumstances, that the trial court did not abuse its discretion by denying the Rodneys’ belated request to empanel a jury.

The order entering judgment is affirmed.

      . As the trial court correctly observed, Pa.R.C.P. 227.1 now provides that the appropriate label for such post-trial motions is "Motion for Post-Trial Relief.”

      . Cf. Warden v. Zanella, supra (where this Court held that an attorney’s decision to proceed nonjury was a strategic decision binding on his client).

      . Although the trial court reached the same conclusion in its opinion, it did so by relying on this Court’s decision in Warden v. Zanella, supra. We do not find Warden controlling. There defendants had originally requested a jury trial in a motion to quash service. Plaintiffs later filed a Certicate of Readiness representing that the trial would be nonjury. Defendants failed either to challenge this statement or to renew their demand for a jury trial either before or during the trial. This Court found that defendants impliedly had waived their right to jury trial by failing to make a timely demand. Id. 283 Pa.Super. at 141, 423 A.2d at 1028 (emphasis added). Because Warden did not involve an express agreement to waive the right to a jury, it is not dispositive of the contention in this case.

      . The Rodneys maintain in their brief that during the hearing of appellees' motion to compel the Rodneys to select between a jury and nonjury trial, the judge stated that “if it was the Appellant, Andrew Rodney’s desire to have his case heard before a jury, and he had previously elected to do so, then the matter must be so heard." Appellants’ Brief at 6. The appellants assert that it was therefore their understanding that the case would be held before a jury, and that no written order was necessary to confirm this fact. They contend that this understanding explains their failure to formally challenge their consent to proceed nonjury until the day of trial.
      Appellants’ version of the facts is not supported by the record. Moreover, appellants’ misconception of the law does not excuse their failure to act. It is a fundamental principle of the law that “[t]he court speaks by its order, and effect must be given according to its terms, but not extended beyond its terms, and ordinarily an order will not be construed as going beyond the motion in pursuance of which it is given.” 60 C.J.S. Motions & Orders § 64 (1969). See also: 56 Am.Jur.2d Motions, Rules & Orders § 29 (1971). As noted previously, the order of March 28, 1984 merely denied appellees’ motion to compel the Rodneys to choose between a jury and nonjury trial. The order neither referred to nor purported to affect the earlier order directing appellants to proceed nonjury. Both orders, therefore, were valid according to their terms until modified, vacated, or reversed. 60 C.J.S. Motions & Orders § 64 (1969). A party who believes that an order is improper must either "obtain a stay, move to set it aside, or take other steps to eliminate its burdensome effect.” Id. Having failed to do so, appellants’ dissatisfaction with their agreement to waive a jury trial remained unrecognized in the eyes of the law until it was formally raised at trial.


author: SPAETH, President Judge:

text:
    500 A.2d 1191
    COMMONWEALTH of Pennsylvania v. Walter M. JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1985.
    Filed Nov. 15, 1985.

      Charles F. Gilchrest, Sharon, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.

      Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for driving under the influence of alcohol. Appellant argues that he is entitled to a new trial, for two reasons. During its deliberations the jury returned to the courtroom to ask the court a question. While there, the jury heard testimony in an unrelated trial. Appellant argues that there is a reasonable likelihood that he was prejudiced by this testimony. He also argues that the result of the breathalyzer test was improperly admitted. We affirm.

The Commonwealth presented the testimony of Police Officers Ronald Wiernicki and Gregory J. Sterling of the Township of Hermitage. Both testified that appellant’s car was swerving or drifting back and forth in its own lane, that it crossed the center line at one point and straddled the center line at another, that appellant was unable to pass the field sobriety tests, and that in their opinion appellant was intoxicated. Officer Sterling presented a videotape of appellant performing the same sobriety tests at the police station. He also testified that appellant submitted to a breathalyzer test, which he conducted. The test disclosed that appellant’s blood alcohol content was .15 percent alcohol. Appellant and his wife, who had been a passenger in the car, testified that appellant had driven properly and had passed the field sobriety tests. They also testified that the officer did not demonstrate how the tests were to be performed. After the jury began its deliberations, it returned to the courtroom to ask the court a question. See N.T. 1/12/83, 26. Another trial for driving under the influence of alcohol was in progress, and the arresting officer was testifying. When the jury entered the courtroom, the last few questions were being asked on cross-examination. The jury then heard the officer’s redirect testimony, which included the following:

Q. Now, Mr. Bogaty [defense counsel] questioned you in some great detail as to your report and we covered certain areas of it. Do you have your report in front of you, officer? I’m referring to the page where you describe breath, attitude, unusual actions, speech and performance.
A. [by Officer Tod Douglas Reiser] Yes sir.
Q. I believe you testified in response to Mr. Bogaty’s questions that as to breath you checked or made an X as to moderate; unusual actions, there was no check; and performance there was nothing. Is that your testimony?
A. Yes, that was my testimony.
Q. As to the category of attitude, were there any checks on that section of your report?
A. Yes sir.
Q. What did you check on that section?
A. I checked talkative, profane, insulting.
Q. As to the section marked speech, what sections or what blocks did you check, or X-ed, if any?
A. Mumbled, slurred speech and thick tongue.
Q. Further down below under those sections in observer’s opinion, effects of alcohol, did you check any blocks?
A. Yes, I did.
Q. And what did you check on that line?
A. Obvious.
Q. Mr. Bogaty also questioned you regarding your report and I believe you gave a definition of a police report. What again is your understanding of what a police report should reflect?
A. A police report should reflect as much as possible a summary of the events that took place.
Q. Have you ever been trained to write down absolutely everything you observe or do regarding an incident? A. No sir, we were trained that every single detail does not have to be included in a report.
Q. And have you followed that training since you’ve been an officer?
A. Yes sir, I have.
N.T. 1/12/83, 27-28.

At the conclusion of the officer’s redirect testimony, the court turned its attention to the jury’s question. After the court had answered the question, appellant made a motion for a mistrial. N.T. 1/12/83, 32-33. The court denied the motion.

While it was not good practice to bring the jury into a courtroom where a trial was in progress, especially another trial for driving under the influence, we do not believe that the fact that the jury heard some of the testimony in that other trial is by itself sufficient reason to grant appellant a new trial. Appellant maintains, however, that he is entitled to a new trial because there is a “reasonable likelihood” that he was prejudiced by the other officer’s testimony in that other trial that “[a] police report should reflect as much as possible a summary of the events that took place ... [and] that every single detail does not have to be included in a report.” Id., 28. In this regard, appellant cites Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983), where the Supreme Court “h[e]ld that only those ex parte communications between a court and jury which are likely to prejudice a party will require reversal.” Id., 501 Pa. at 27, 459 A.2d at 734. Assuming that this is the correct standard to apply, we find no error in the court’s denial of the motion for a mistrial.

At appellant’s trial, Officer Sterling was asked on cross-examination about three omissions from the description of the incident in his report, as compared with the description he gave on his direct examination: “that the traffic light was green when Mr. Jones [appellant] got to a street intersection at which he made a right turn ...; that the police officer had demonstrated the field sobriety tests to Mr. Jones at the scene of the arrest before asking Mr. Jones to perform them ...; and that Mr. Jones was talking to himself as Sterling transported him from Hermitage to Farrel for the breathalyzer test....” Brief for Appellant at 9. See N.T. Vio, Wss, 40, 50-51, 81, 140-41, 143-44. Counsel then argued to the jury that because of these omissions, it should not accept the officer’s testimony. The gist of appellant’s argument now is that this attempt to impeach the officer was undone when the jury overheard the testimony by the officer in the unrelated trial that police reports do not include “every single detail.”

We are not persuaded by this argument. The issue before the jury was whether appellant was driving under the influence of alcohol so as to render him incapable of driving safely. Indeed, as already noted, the jury returned to the courtroom to clarify this issue. N.T. 1/12/83, 31-32. Whether the light was red or green when appellant turned at the intersection was collateral to this issue, and so was whether the officer demonstrated how the sobriety tests were to be performed, for appellant did not testify that his performance was affected by a lack of such instruction. Finally, whether appellant talked, as well as “mumbled”, as noted by the officer in his report, is, if an inconsistency at all, so slight a one as to be insignificant. The evidence presented at the trial included the testimony of two police officers who observed appellant’s driving and saw him perform the sobriety tests, a videotape of appellant performing those tests at the police station, and the results of a breathalyzer test. We find no reasonable likelihood of prejudice from the jury’s overhearing the other police officer’s testimony.

Appellant also argues that the results of the breathalyzer test should not have been admitted because the Commonwealth failed to prove that the machine “was working accurately, properly and reliably.” Brief for Appellant at 18. Specifically, appellant maintains that there was no proof that a simulator test was conducted immediately after the test of appellant’s breath; that the ampoules were properly prepared; and that the device used had been periodically tested or calibrated for accuracy. Id. at 18-19. We find that the trial court’s opinion adequately disposes of this issue. Slip op. of tr. ct. at 11-17.

Affirmed.

      . Act of June 17, 1976, Pub.L. 162, No. 81, § 1, 75 Pa.C.S. § 3731. This provision was amended by Act of Dec. 15, 1982, Pub.L. 1268, No. 289, § 9, effective in 30 days, but the amendment is inapplicable for the offense here was on August 7, 1982.

      . The question was, “Are we to decide whether Mr. Jones was driving under the influence of alcohol or that he was driving unsafely because he was under the influence of alcohol?”

      . Appellant also argues that there is a reasonable likelihood that the jury may have concluded from the officer's testimony that the police only arrest those “extremely intoxicated or under the influence and [ ] severely incapable of safe driving.” Brief for Appellant at 16. The record does not support this deduction. N.T. 1/12/83, 30-31.

      . See note 2, supra.