author: WIEAND, Judge:

text:
    538 A.2d 1363
    COMMONWEALTH of Pennsylvania v. Richard SULLIVAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1987.
    Filed March 16, 1988.

      Richard C. Tinucci, Media, for appellant.
    Ann A. Osborne, Assistant District Attorney, Media, for Com., appellee.

      Before WIEAND, KELLY and HESTER, JJ.
   WIEAND, Judge:

Richard Sullivan was tried by jury and was found guilty of involuntary deviate sexual intercourse, indecent assault, indecent exposure, unlawful restraint, and corrupting the morals of a child as a result of sexual acts, particularly anal intercourse, committed upon a ten year old, female child during the three month period between May and July, 1985. Post-trial motions were dismissed, and Sullivan was sentenced to serve a term of imprisonment for not less than five years nor more than ten years. On direct appeal, he contends that the verdict was contrary to the weight of the evidence and that several evidentiary rulings by the trial court were erroneous.

“The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). In reviewing the weight of the evidence we must look at all the evidence. Commonwealth v. Gonce, 320 Pa.Super. 19, 26 n. 1, 466 A.2d 1039, 1043 n. 1 (1983). To warrant a new trial, “it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981).

The child victim, who suffered from a mild learning disability, testified to fifteen or twenty instances of sexual contact with appellant, who was a neighbor and a friend of her parents. Because of this parental friendship, her parents initially said that they would not press charges if appellant would obtain psychiatric help. When the psychiatric appointments were discontinued, however, the victim's parents decided to prosecute. Dr. Steven Ludwig, a pediatrician, did not examine the child until approximately ten months after the abuse had been discovered. He testified that he found a “skin tag” in the child’s rectal area which suggested a healed trauma consistent with penile-rectal contact. On the other hand, Dr. Charles Heil, who examined the child in July, 1985, found no evidence of sexual abuse and a hymen which had not been broken. It is also true that appellant denied the accusations. The trial court which heard the witnesses, however, did not find the jury’s verdict shocking, and our own review of the record does not disclose any basis for reaching a contrary conclusion.

Appellant argues that Dr. Ludwig’s examination of the victim on April 9, 1986 was too remote and that his findings, therefore, should have been excluded from the jury’s consideration. “The question of remoteness, which is basically one of relevance, is properly vested in the discretion of the trial court, and its decision thereon will not be reversed unless a clear abuse of discretion is shown.” Tolentino v. Bailey, 230 Pa.Super. 8, 13, 326 A.2d 920, 922 (1974) (footnote omitted). Although a medical examination closer in time to the alleged abuse would have been preferable, it cannot be said that the trial court’s ruling was an abuse of discretion. Dr. Ludwig based his opinion that the child had been abused on a combination of social and psychological factors and said that his physical finding regarding the “skin tag” was merely a small piece of supportive evidence.

Appellant also contends that it was error to permit appellant’s wife, who testified as a defense witness, to be cross-examined about inter-spousal sexual relations including, specifically, requests by appellant to his wife to engage in anal intercourse. However, appellant failed to object to this cross-examination. Therefore, any objection thereto was waived. Commonwealth v. Clark, 347 Pa.Super. 128, 131, 500 A.2d 440, 441 (1985), allocatur granted, 512 Pa. 1, 515 A.2d 1320 (1986).

The victim’s parents initially determined that they would not prosecute appellant if he agreed to seek psychiatric help. Appellant testified that he had made an appointment with an abuse counselling clinic but had been arrested before he could keep the appointment. In an effort to rebut this testimony, the Commonwealth called Patricia Rygiel, an intake worker at Media Child Guidance. She identified an intake report which had been prepared upon receipt of a call received from a person identifying himself as Richard Sullivan, 1105 Third Avenue, Prospect Park, Pennsylvania, 19076, and having a birth date of January 6, 1955. The witness also testified that, according to the intake report, an appointment had been made for January 23, 1986, but that the appointment had not been kept. In addition, the witness, over defense objection, was permitted to read from the intake report as follows:

Q. Patty, when you received this phone call, did you inquire as to why this individual was requesting____
A. Yes, I did.
Q. And what was the response?
A. He said his problem was that he had a high sex drive.
Q. Anything else as far as his problem?
A. And then I said, “Well, what do you mean by that?” And he said that his neighbors had accused him of molesting their daughter and that they were asking him to come for treatment.

On appeal, Sullivan argues that the trial court’s allowance of this testimony was prejudicial error. More specifically, he contends (1) that because the witness was reading from a report, her testimony was hearsay; (2) that there was no evidence that the caller in fact was the defendant; and (3) that the caller’s statement that he had a high sex drive was improper rebuttal, irrelevant, and unfairly prejudicial. The Commonwealth responds that the report was admissible as a business record and, because it was an admission made by appellant, was relevant to attack his credibility.

The Uniform Business Records as Evidence Act provides as follows:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S.A. § 6108(b). In Ganster v. Western Pennsylvania Water Company, 349 Pa.Super. 561, 504 A.2d 186 (1985), we said,

The rule

is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regularly kept records have a high degree of accuracy (as compared to other memoranda). The very regularity and continuity of the records are calculated to train the recordkeeper in habits of precision; if of a financial nature, the records are periodically checked by balance-striking and audits; and in actual experience the entire business of the nation and many other activities function in reliance upon records of this kind.

McCormick on Evidence § 306, at 872 (3rd ed. 1984).

To satisfy the requirements of the rule, a business record in the form of memoranda reports or data compilations must be made at or near the time of the events reflected in the records. “A determination as to whether the recording of the event is sufficiently contemporaneous with the event is left to the broad discretion of the trial court.” In re Estate of Indyk, supra 488 Pa. [567] at 572 n. 2, 413 A.2d [371] at 373 n. 2 [(1979)]. See: Henderson v. Zubik, 390 Pa. 521, 524, 136 A.2d 124, 126 (1957).

The records must also be kept in the course of a regularly conducted business, and it must be the regular practice of the business to keep records of the type offered into evidence. “In the regular course of business” includes entries made systematically and as part of a regular routine which requires the recording of events or occurrences, the reflection of transactions with others. These essentials must be established by testimony of the custodian or of another qualified witness. It is not essential for the admission of evidence under this rule, however, to produce either the person who made the entries in question or the custodian of the record at the time the entries were . made. The witness need only possess adequate knowledge of the regularity of the record keeping process to qualify the records under the Act. In re Estate of Indyk, supra 488 Pa. at 573, 413 A.2d at 373-374.
Finally, it is essential that no lack of trustworthiness appear in the source of information or the method or circumstances of preparation. The factors to be weighed in evaluating the trustworthiness of business records include whether there was either motive or opportunity to prepare an inaccurate record, the period of delay prior to preparation of the record, the nature of the information recorded, the systematic checking, whether there was regularity and continuity in maintaining the records and whether the business relied on them. “In the case of records kept in the regular course of business the circumstantial guarantee of trustworthiness arises from the regularity with which they are kept.” Fauceglia v. Harry, supra 409 Pa. [155] at 160, 185 A.2d [598] at 601 [(1962)].

Id., 349 Pa.Superior Ct. at 567-569, 504 A.2d at 189-190.

Appellant argues that the intake report lacked trustworthiness because the person preparing the same could not have recognized the voice of the caller. “It is now well settled that the recipient of a telephone call may not testify as to the conversation unless the voice of the caller can be identified.” Burton v. Pacific Mutual Life Ins. Co., 368 Pa. 613, 617, 84 A.2d 310, 313 (1951). The rule regarding identification of persons with whom a witness has had a telephone conversation is more stringent where the witness is the recipient of the call than where the witness placed the call, for the rule requiring identity of the speaker is subject to the exception that where the witness calls a listed telephone number of a party, testimony as to a conversation had with a person answering the telephone and representing himself or herself to be the person called is competent, even though the witness does not recognize the voice of the person who answered and is unable to identify the speaker. 14 P.L.E. Evidence § 61; Kobierowski v. Commonwealth Mut. Ins. Co., 175 Pa.Super. 387, 105 A.2d 179 (1954). Generally, however, it is not enough that during the course of a conversation a party stated that he or she was a certain person. Smithers v. Light, 305 Pa. 141, 157 A. 489 (1931). Nevertheless, the identity of the caller may be established by the circumstances. Limestone Products & Supply Co. v. Tom Brown, Inc., 198 Pa.Super. 375, 181 A.2d 696 (1962). Thus, authentication may be accomplished by circumstantial evidence showing facts that only one person would be likely to know. McCormick on Evidence § 226 (3d ed. 1984).

In the instant case, the caller gave his name, address and date of birth. He also stated that he had been accused of molesting the neighbors’ daughter and that the neighbors were requesting that he seek treatment. Even more importantly, appellant’s wife testified without objection that appellant had called the Child Guidance Center for an appointment. In view of these circumstances, we hold that appellant’s identity as the caller was sufficiently established.

Finally, appellant contends that even if this evidence were relevant to impeach his testimony, it was not relevant to show that he told the intake worker that he had a “high sex drive.” The trial court disagreed with this objection. Although the court excluded the recorded opinion of the intake worker regarding the caller’s attitude, the court held that the caller’s telephone response to or explanation for the neighbors’ accusation was a relevant fact for the jury to consider.

“The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.” Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954). Therefore, issues of relevancy are left in large measure to the sound discretion of the trial court, whose decisions will not be reversed in the absence of a clear abuse of discretion. See: Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987); Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820 (1985); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984).

In the instant case, although the decision is a close one, we conclude that the decision of the trial court was not an abuse of discretion. Appellant, who denied sexual contact with the alleged victim, had called Child Guidance for assistance and, when asked to explain the nature of the help requested, said that he had been accused of sexually molesting a neighbor and explained that his problem was a “high sex drive.” Because it was appellant’s response to the neighbors’ accusation and was offered in response to an inquiry regarding the treatment being requested, we cannot say that it was wholly irrelevant. The trial court, therefore, did not err in allowing it in evidence. Its weight and effect were for the jury.

Having found no error requiring a new trial, the judgment of sentence will be affirmed.

Affirmed.

      . Sullivan was found not guilty on a charge of rape.

      . Appellant’s objection in the trial court and his argument on appeal are limited to the remoteness of Dr. Ludwig’s finding.

      . Whether it was proper to attempt to attack appellant’s credibility by contradicting his testimony on a collateral matter has not been argued, and with respect thereto we express no opinion.

      . The intake report was neither offered nor received in evidence, and the record discloses that the witness did not testify to the precise date on which the call had been received.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    538 A.2d 1368
    COMMONWEALTH of Pennsylvania, v. Christine Marie LYMPH, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1987.
    Filed March 17, 1988.

      Douglas B. Marcello, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from a Judgment of Sentence. Because we find that Capitol Police Officer Chiricos acted within the parameters of his authority, we affirm.

On the evening of January 2, 1986, Officer Kessler, State Capitol Police Department, was on foot patrol in the area of the parking garage near the Main Capitol Building. A vehicle approached and stopped at the entrance booth to the garage. The driver of the vehicle informed Officer Kessler that he intended to drop off his female passenger, appellant, Christine Lymph, at her car. Officer Kessler testified at trial:

A. At that point when I leaned down to answer the driver, so I could speak to him, I looked in the vehicle. I saw the passenger who was identified as the defendant.
She appeared — I might note there are bright lights there. There is fluorescent lights overhead so it is quite illuminated. She appeared to be slouched. Her eyes appeared to be glassy. She appeared, generally, to be intoxicated.

N.T. 5/15/86 at 7.

The car proceeded down into the lower levels of the garage. A minute or two later, Officer Kessler heard a woman’s voice, loud but unintelligible. The officer next observed two vehicles leaving the garage — one operated by the male in the same vehicle in which he had arrived, and the other operated by appellant. Officer Kessler then broadcast an alert for a driver under the influence together with a description of appellant and her vehicle, stating his belief that she was under the influence of alcohol.

Capitol State Police Officer Chiricos received Officer Kessler’s radio communication while in his patrol car within the Capitol Complex. He then observed defendant’s vehicle approximately two blocks ahead as it entered the State Street Bridge going eastbound. He followed her vehicle and made the following observations:

A. The vehicle braked sharply right at 21st Street, right near the Parkside Cafe, on that curve there. The vehicle braked sharply and traveled over the yellow line and an oncoming car kind of veered off a little to avoid it. Then, after that, the vehicle crossed the center yellow line approximately four to five times between 21st Street and 25th Street, in that four block area.

N.T. 5/15/86 at 22.

Officer Chiricos testified that at the time of his observations he was on official patrol duty which included state owned property at 21st Street and State Street. The officer’s patrol route was the same as appellant’s course of travel. After making his observations Officer Chiricos stopped appellant’s vehicle. He testified that appellant’s eyes were red and glassy and that he could detect an odor of alcohol emanating from appellant’s car window. He asked her to perform various field tests which she failed to perform satisfactorily. Appellant was then placed under arrest for driving under the influence of alcohol. Subsequent blood tests revealed a .20% blood alcohol content in appellant’s blood.

On May 15,1986, following denial of appellant’s motion to suppress, appellant was tried and found guilty in a nonjury trial of Driving Under the Influence, 75 Pa.C.S. § 3731(a) before the Honorable Sebastian D. Natale. Post-trial motions were filed, briefed and denied.

On April 28, 1987, the Court sentenced appellant to not less than two (2) days nor more than twelve (12) months. This appeal followed.

The case presents the following issues:

I. WHETHER THE ORIGINAL OBSERVING OFFICER HAD PROBABLE CAUSE TO BELIEVE A CRIME HAD BEEN COMMITTED WITHIN HIS PRIMARY JURISDICTION TO JUSTIFY PURSUIT OUTSIDE HIS JURISDICTION?
II. WHETHER OFFICER CHIRICOS, THE ARRESTING OFFICER, CONDUCTED AN ILLEGAL, EXTRA-TERRITORIAL INVESTIGATION PURSUANT TO THE PENNSYLVANIA ADMINISTRATIVE CODE AND THE MUNICIPAL POLICE JURISDICTION ACT?
III. WHETHER SUPPRESSION OF THE EVIDENCE IS THE APPROPRIATE REMEDY FOR AN ILLEGAL, EXTRA-TERRITORIAL INVESTIGATION AND ARREST?

Appellant contends that Officer Kessler, the original observing officer did not have the probable cause necessary for arrest and search and seizure. Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979). We agree with the trial court that his lack of probable cause, standing alone, is of no legal significance. The proper focus of the probable cause issue is Officer Chiricos, the arresting officer. Officer Chiricos directly observed appellant driving erratically. (N.T. 5/15/86 at 22).

Observation of erratic driving has been recognized as providing the basis for probable cause to arrest for reckless driving. Commonwealth v. Barkley, 234 Pa.Super, 503, 341 A.2d 192 (1975); Commonwealth v. Mathious, 237 Pa.Super. 522, 352 A.2d 172 (1975).

In addition probable cause to arrest is also established by considering Officer Chiricos’ stop of appellant’s automobile, which was an investigatory stop based on reasonable suspicion after having observed erratic driving. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When appellant subsequently failed the field sobriety tests Officer Chiricos had probable cause to make the arrest. We therefore agree with the trial court that Officer Chiricos had probable cause for arrest.

Appellant’s next argument is that her arrest was illegal because Officer Chiricos was outside his jurisdiction as a Capitol Police Officer and therefore had no authority to act. The authority and jurisdiction of the Pennsylvania State Capitol Police are defined in § 2416 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 646 (Purdon Pamp.1987) which provides in relevant part:

The Capitol Police ... and the Security or Campus Police of all State colleges and universities, State aided or related colleges and universities and community colleges shall have the power, and their duty shall be:
(a) To enforce good order in State buildings and on State grounds in Dauphin County ...
(e) To exercise the same powers as are ... exercised____by the police ... [in the municipalities in which they are located].
(h) To arrest any person who shall damage, mutilate or destroy the trees, plants, shrubbery, turf, grass-plots, benches, buildings, or commit any other offense within [ ... their respective jurisdictions].
Security and Campus Police shall exercise their powers and perform their duties only on the premises of the colleges and universities ... by or for which they are employed and only and after they have completed a course of training including crisis intervention training and riot control ... except, that Campus Police employed by state owned colleges and universities located in ... municipalities ... are authorized, in emergency situations occurring within the municipality, upon the request of the mayor or other executive authority and under the direction of the local law enforcement authorities, to exercise those powers and perform those duties conferred pursuant to this section within the municipality for the limited purpose of aiding local authorities in emergency situations.

Id.

Appellant contends that this section must be construed narrowly to confine the jurisdiction of Capitol Police to the limits of state property. But we read this statute as granting Capitol Police the same powers as the local (traditional) police in the municipalities in which they are employed. The breadth of their powers is further exemplified by § 646(d), which provides; “[i]n the performance of their duties [Capitol Police and campus police may] ... adopt whatever means necessary.” Id. Municipal police (traditional police officers employed by a municipality), have the power to make extra-territorial arrests when in pursuit of summary offenders pursuant to 42 Pa.C.S. § 8953(a)(2) and (5):

Statewide municipal police jurisdiction
(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.

42 Pa.C.S. § 8953(a)(2) and (5).

The trial court found that Officer Chiricos made a legal arrest pursuant to 42 Pa.C.S. § 8953(a)(5) because he was on duty within the official patrol route when he observed appellant’s erratic driving.

Special police in Pennsylvania possess arrest and search powers codified under widely scattered statutes which differ as to the scope of subject matter jurisdiction and territorial jurisdiction. The most contemporaneous, practical and conclusive interpretation of a statute is to be gained from that given to it by state courts. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

Appellant’s reliance on Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626 (1986) to indicate that special police have no authority to make an arrest outside their geographic jurisdictions is misplaced. The police officers in Roberts were local park police who observed an offense off park property and made an arrest off park property. Park police receive their authority from the Act of August 9, 1955, P.L. 323, 16 P.S. § 2512 which does not provide specific authority for extra territorial arrests nor does it provide that park police have the same authority as their municipal counterparts. The authority of park police was found by the Court in Roberts to be narrowly limited to their geographic jurisdiction.

Conversely, Pennsylvania courts that have considered the arrest and search powers of Capitol Police and Campus Police have treated them as traditional police officers. In Commonwealth v. Holderman, 284 Pa.Super. 161, 425 A.2d 752 (1981) this Court considered whether Campus Police Officers had the power to pursue and arrest summary offenders who flee their jurisdiction. The defendant in Holderman, relying on 71 P.S. § 646 (Purdon Pamp.1987) argued that the authority of Campus Police is limited by statute to the premises of the school where the officers are employed. This Court rejected the argument and held that Campus Police have all the powers possessed by their local counterparts, including the right to arrest summary offenders when in fresh pursuit of them. See generally Comment, Arrest and Search Powers of Special Police in Pennsylvania: Do your Constitutional Rights Change Depending on the Officer’s Uniform?, 59 Temp.L.Q. 497 (1986) (for general review of search powers in Pennsylvania).

In Commonwealth v. Pennsylvania Labor Relations Board, 502 Pa. 7, 463 A.2d 409 (1983) the Pennsylvania Supreme Court, in the context of a labor dispute, concluded that Capitol Police were “police” and not merely guards for purposes of a statute providing police with binding arbitration in case of an impasse during labor negotiations. In so concluding, the Court emphasized that Capitol Police possess statutorily mandated powers and duties that are equivalent to those of traditional police. After review of the case law, statutes, and trial court opinion, we agree with the trial court that both the plain meaning of 71 P.S. § 646(e) and 42 Pa.C.S. § 8953 and the interpretation of the statutes by the courts of this Commonwealth provide Capitol Police with the authority to make extra territorial arrests under certain circumstances. Capitol Police Officer Chiricos was acting within the scope of 71 P.S. § 646(e) as delineated in 42 Pa.C:S. § 8953 when, while on duty within his official patrol route he directly observed the misdemeanor offense which led to his extra territorial arrest of appellant. Accordingly, appellant’s arrest was not illegal.

Appellant’s final argument is that the evidence from the illegal arrest must be suppressed. Since we find appellant’s arrest to be legal, we find this argument to be without merit.

Judgment of sentence affirmed.


text:
    538 A.2d 1372
    Twila J. MITCHELL, Mother and Natural Guardian of Carl R. Mitchell, a minor, v. TRAVELERS INSURANCE COMPANY and Public Service Mutual Insurance Company. Appeal of TRAVELERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1987.
    Filed March 16, 1988.
    Petition for Allowance of Appeal Granted Aug. 31,1988.

      William J. Begley, Pittsburgh, for appellant.
    Louis C. Long, Pittsburgh, for appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

In the event that an uninsured pedestrian is struck and injured by a motorcycle, is it the insurer of the motorcycle or the Assigned Claims Plan carrier which is required to pay basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act? The trial court held that it was the Assigned Claims Plan carrier. We conclude that this was error and that the insurer of the motorcycle is liable for no-fault benefits. Therefore, we reverse.

On March 24, 1983, while crossing an alley in Johnstown, Pennsylvania, twelve-year-old Carl Mitchell was struck by a motorcycle owned by Louis Wattman and operated by Michael Wattman. The Mitchell boy was uninsured and was not otherwise covered by a policy of insurance providing no-fault benefits. The motorcycle which struck Mitchell was insured under a policy issued by Public Service Mutual Insurance Company (PSMI).

On October 31, 1984, Twila J. Mitchell, the mother and natural guardian of the injured boy, commenced an action for basic loss benefits on his behalf against Travelers Insurance Company (Travelers), the carrier designated by the Assigned Claims Plan, and PSMI, the insurer of the motorcycle. Both Travelers and PSMI denied liability on grounds that the other was the primary obligor and applicable source of security for the payment of basic loss benefits. On April 15, 1987, the trial court entered a final order granting a motion by PSMI for summary judgment and dismissing it from the action. Travelers appealed.

PSMI argues at the outset that Travelers lacks standing to appeal. We reject this argument. The law is clear that a defendant has a sufficient interest in and, therefore, standing to appeal from an order entering judgment in favor of a co-defendant or otherwise letting the co-defendant out of the case. East Broad Top Transit Co. v. Flood, 326 Pa. 353, 357, 192 A. 401, 403 (1937); Schwartz v. Jaffe, 324 Pa. 324, 330-331, 188 A. 295, 298 (1936); Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 427 n. 1, 381 A.2d 990, 992 n. 1 (1977). This is particularly so where, as here, the only real issue is which of two insurance carriers is required by statute to pay the plaintiffs claim.

Section 204 of the No-fault Act “in effect creates a hierarchy among potential sources of security” which are responsible for the payment of basic loss benefits to a person injured in an automobile accident. Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 29, 457 A.2d 95, 97 (1983). Section 204(a) provides:

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

In determining the applicable source of benefits under this section’s priority system, “the pertinence of each subsection must be considered seriatim — that is, the applicability of each preceding subsection must be excluded before the next may be considered. The security provided by the assigned claims plan is applicable only as a last resort.” Tyler v. Insurance Co. of North America, supra, 311 Pa.Superior Ct. at 30, 457 A.2d at 97.

Instantly, the inapplicability of subsections (1), (2), and (3) has been established beyond peradventure. The minor plaintiff was not an employee, was not an insured under any policy of insurance, and was not the driver or occupant of a vehicle at the time of the accident. Whether subsection (4) is applicable depends on whether the motorcycle involved in the accident is a “motor vehicle.”

Section 103 of the No-fault Act defines a motor vehicle as a “vehicle of a kind required to be registered under ... The Vehicle Code.” Under the Vehicle Code, a motorcycle is a vehicle which must be registered. See: 75 Pa.C.S. §§ 102, 1302. The conclusion is inescapable, therefore, that a motorcycle is a “motor vehicle” within the meaning of the No-fault Act and is subject to the same insurance coverage requirements as are other vehicles. See: Tyler v. Insurance Co. of North America, supra, 311 Pa.Superior Ct. at 29 n. 3, 457 A.2d at 96 n. 3; Samsel v. Travelers Indemnity Co., 295 Pa.Super. 188, 190, 441 A.2d 412, 413 (1982). See also: Singer v. Sheppard, 464 Pa. 387, 406 n. 29, 346 A.2d 897, 907 n. 29 (1975) (motorcycles are motor vehicles for purposes of compulsory insurance; no-fault benefits, therefore, are available to third persons injured by a motorcycle). This is not altered by the provisions of Section 103 of the No-fault Act which preclude the operator or passenger of a motorcycle from recovering basic loss benefits. This exclusion was inserted because of the greater risk attaching to operators of motorcycles. See: Singer v. Sheppard, supra, 464 Pa. at 406, 346 A.2d at 906-907. It was not intended to exclude a motorcycle from the definition of a motor vehicle or exempt a motorcycle insurer from liability for basic loss benefits to a person injured as a result of an accident involving the motorcycle. See: Tyler v. Insurance Co. of North America, supra 311 Pa.Super. at 29 n. 3, 457 A.2d at 96 n. 3.

PSMI argues, however, that its policy does not contain a specific provision requiring it to pay basic loss benefits to an uninsured pedestrian who may be struck by the motorcycle of its insured. We reject this argument. PSMI was required by statute to provide such coverage. Section 104 of the No-fault Act provided as follows:

(a) Security covering a motor vehicle. — Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth. Security shall be provided for the payment of basic loss benefits, and for the payment of sums up to a total limit of thirty thousand dollars ($30,000) which the owner or any person operating the vehicle with the express or implied permission of the owner may become liable to pay as damages because of bodily injury or death arising out of any one accident (subject to a sublimit of fifteen thousand dollars ($15,000) for damages arising out of the bodily injury or death of any one person) and for the payment of damages for injury to or destruction of property in any one accident of amounts up to a total limit of five thousand dollars ($5,000)____ (Emphasis added.)

Section 209(a) of the No-fault Act also provided:

(a) Included coverage. — A contract of insurance covering liability arising out of the ownership, maintenance, or use of a motor vehicle registered in this Commonwealth, shall include basic loss benefits and any other benefit coverages required by the no-fault plan for motor vehicle insurance in effect in this Commonwealth unless such contract provides tort liability coverages only in excess of any of those required by the no-fault plan.

These sections made it eminently clear that all motor vehicles registered in this Commonwealth, including motorcycles, were required to carry insurance providing coverage for basic loss benefits. By virtue of these statutory provisions, a contract providing coverage for basic loss benefits was imposed by law. The law was not overridden by the absence of a specific provision in the policy providing such coverage or the failure to collect an additional premium therefor. See: Wilbert v. Harleysville Mutual Ins. Co., 254 Pa.Super. 217, 225-226, 385 A.2d 987, 992 (1978).

PSMI also bases its argument on a regulation of the Insurance Department which suggested that basic loss benefits coverage for pedestrians eligible to receive basic loss benefits as a result of an accident involving a motorcycle should be provided through the Assigned Claims Plan. See: 31 Pa.Code § 66.111. It contends that in view of this regulation it was not required to write a policy which provided coverage for basic loss benefits payable to a pedestrian struck by the insured motorcycle. This argument must also fail. It is well established that “an administrative agency may not promulgate regulations contrary to the legislative intent expressed in the statutory provision to which the regulation relates.” Serefeas v. Nationwide Ins. Co., 338 Pa.Super. 587, 592-593, 488 A.2d 48, 51 (1985). See also: Wilbert v. Harleysville Mutual Ins. Co., supra, 254 Pa.Super. at 226, 385 A.2d at 992.

For all these reasons, we conclude that the applicable security for the payment of the minor plaintiffs basic loss benefits was the security for the motorcycle which struck him. See: Pennell v. Travelers Ins. Co., 73 Del.Co.R. 263 (1986), aff'd, 359 Pa.Super. 634, 515 A.2d 622 (1986); Phillips v. Bockwood Ins. Co., 42 Pa.D. & C.3d 548 (Bucks Co. 1986). Because PSMI was the insurance carrier providing coverage for the motorcycle, it was responsible for payment of plaintiffs claim for basic loss benefits. The trial court erred when it entered summary judgment in PSMI’s favor.

PSMI also contends that the plaintiff executed a release which bars her no-fault claim against it. The record does not disclose that this issue was either considered or decided by the trial court. Moreover, the record is not adequate to permit appellate review of this issue at the present time. With respect to this issue, therefore, we express no opinion.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, as amended, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . 40 P.S. § 1009.204 (repealed).

      . 40 P.S. § 1009.103 (repealed).

      . 40 P.S. § 1009.104 (repealed).

      . 40 P.S. § 1009.209(a) (repealed).

      . Section 66.111 provides as follows:
      (a) Motorcyclists. Motorcyclists shall maintain security providing the following:
      (1) Bodily injury liability coverage, including guest passenger liability coverage, in limits of at least $15,000 per person, $30,000 per accident; and property damage liability coverage to a limit of at least $5,000 per accident.
      (2) Uninsured motorist’s coverage in limits of at least the amounts required by Article XIV of the Vehicle Code (75 P.S. §§ 1401-1436).
      (b) Assigned Claims Plan. The Assigned Claims Plan shall apply as follows:

        (1) Obligors providing security to motorcyclists shall contribute to and participate in the Assigned Claims Plan and the Plan for Availability of Insurance on an equitable basis, as required by the act.
      (2) Basic loss benefits coverage for pedestrians and other persons eligible to receive basic loss benefits pursuant to the act shall be provided through the Assigned Claims Plan.


author: BROSKY, Judge: CIRILLO, President Judge,

text:
    538 A.2d 1376
    Michael F. CHESONIS v. Frank M. CHESONIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed March 23, 1988.

      Kenneth C. Myers, Reading, for appellant.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from an order compelling appellant to pay $15.00 weekly towards appellee’s college educational endeavor. Appellant presents two arguments for our consideration: (1) appellee has failed to meet his burden of proof to demonstrate a need for support; and (2) appellant should not be required to contribute to the college expense of an estranged child where there is no contribution by the child’s mother and the expense would constitute a hardship. After careful consideration of the record and arguments advanced by the parties, we reverse the order of support.

At the time of the initiation of this proceeding, appellee was nineteen years of age and enrolled as a full-time student at Penn State University, Berks County. He was employed and worked approximately thirty-five hours a week with an average weekly net income of $110.00. Although his tuition is $1,123.00 per semester, he receives grants totalling $575.00 per term, leaving a balance of $548.00 to be paid per term. He testified to additional weekly expenses of: $30.00 room and board to his mother, $15.00 transportation costs, and $15.00 meal expenses. Appellee als° pays a $365.00 per year car insurance expense and approximately $180.00 per semester for books.

Appellant’s pay stubs show his bi-weekly net income to be $840.65. Appellant testified that he is currently working, yet had been unemployed at times prior to the support hearing. He admitted to an existing weekly obligation of $40.50 for the support of another child (appellee’s sister), liabilities in excess of $53,000 to the Commonwealth of Pennsylvania for unpaid unemployment and sales taxes, and over $17,000 for employee withholding, taxes, debts of over $17,000 attributable to a former wife (not appellee’s mother), and a $23,000 mortgage.

Both parties maintain that they have had no contact in the last three years and appellee admits that he never discussed his educational plans with his father before enrolling in college. Upon this record, the trial court found that appellee had demonstrated a need for educational support and that appellant was capable of contributing to his son’s college education without undue hardship.

The trial court correctly indicated in its opinion that consideration must be given to the financial situation and capacity of both parent and child in determining whether or not to order educational support. Leonard v. Leonard, 353 Pa.Super. 604, 510 A.2d 827 (1986), Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986). With respect to the parent’s financial ability, any ordered support should be payable by the parent without imposing an undue hardship upon that parent. The trial court found that appellant was capable of paying support without undue hardship. We cannot agree.

During initial proceedings the hearing officer found appellee’s weekly net income to be $120 and appellant’s to be $165.52. Although the documentation contained in the record does not detail the exact specifications of this finding, it does appear to reflect that, taking financial obligations into account, the parties are not that disparately situated financially speaking. One breakdown of appellant’s monthly expenses was contained in the record. It indicated monthly expenses of $1,794.37 and did not include such items as medical expenses, work tools and trade journals and publications. Appellant was earning a net pay of $840.65 every two weeks and it would appear that his entire income must be devoted to meet these monthly expenses. But, perhaps more troubling to the court is the fact that appellant is indebted to the extent of over $70,000 which he currently appears unable to satisfy in the least regard. Appellant has been held personally liable for unpaid taxes, sales and use taxes and employee withholding taxes of a failed business with which he was previously associated. Appellant testified that he receives periodic statements regarding the tax liability, but that he has not been making any payments due to a lack of money. For the amount of his income, appellant’s accumulated debt would appear financially disabling. Although the amount of support ordered by the trial court is not substantial, it could amount to the proverbial straw that breaks the camel’s back. Further, because the amount is not substantial, appellee will not suffer greatly from its absence from his budget. Under the particular facts of this case we believe that if any court is to order appellant to contribute to the support of his son’s college education it be the court of his own conscience. For these reasons, we reverse the order of support.

Order reversed.

CIRILLO, President Judge, files a concurring opinion.

POPOVICH, J., concurs in the result.

CIRILLO, President Judge,

concurring:

I write separately to respond to the majority’s footnote concerning estrangement as a potential factor in determining the obligation of a parent to provide post-minority support for college-bound offspring. This issue has never been directly addressed by this court. The majority finds on the record before us that this issue need not be addressed because the economic facts are dispositive. While I agree that appellant was able to show undue financial hardship sufficient to justify our reversal of the trial court’s support order for his nineteen year old son, I wish to go on record as supporting the inclusion of willful estrangement as a consideration in making such support awards.

Extending a duty of support beyond the age of majority is grounded in a recognition of the modern day importance of a college degree and a policy of judicial paternalism. This policy seeks to insure that children from broken homes are not arbitrarily denied an opportunity for such a degree because of the problems of their parents. All too often what parents would have done willingly had their relationship not deteriorated must, after the fact, be coerced for the benefit of their children. Emotionalism and bitterness displace reason, and it is indeed noble for us to step between warring parents to rescue their children’s dreams. However, while with one hand we support the modern family ideal of helping to prepare our children through higher education, when these same adult children have repudiated a parent and we force that parent to endorse such behavior, we take away from another family ideal of even longer standing with the other: respect for one’s parents. Since the strong policy of this Commonwealth is to support the family, we cannot abdicate our responsibility to promote the values inherent in that relationship. One of the primary values is basic respect for one’s parents; another is the value of purposeful interaction to meet the needs of each family member. To order support where an adult child is willfully estranged from a parent is to judicially endorse that kind of behavior and to fail to recognize that, in all families, communication is basic to the ability to work through difficulties and reach compromise, if not harmony and understanding.

The two-tiered test used in this Commonwealth to determine the propriety of a post-majority support award for an adult child wishing to pursue post-secondary education purports to consider only the desire and ability of the child to do college work and the financial ability of the parents to contribute without undue hardship to that child’s expenses in obtaining a degree. I suggest that in examining the totality of the circumstances presented in each of these cases that come before us for review, we look to see whether the petitioning adult child has made the decision to disassociate him or herself from the parent from whom support is sought. Our court, in the exercise of our quasi-parental responsibility, should in such cases make it clear that such an adult child must accept the consequences of that decision and, as Judge Moss said in a 1980 Montgomery County case, “let the parties remain in the beds they have made for themselves.” Commonwealth ex rel. Wallace v. Simoes, 19 Pa.D. & C.3d 614 (1980).

It seems clear that refusal on the part of an adult child to associate with a parent should preclude that child’s ability to reach into that parent’s pocket for funds to attend college. It is most certainly an “undue hardship” to compound a parent’s loss of society, affection, respect and opportunity to guide by requiring a parent from whom an adult child is willfully estranged to support that child.

For the foregoing reasons I respectfully concur in the majority’s holding.

      . Our decision today is based solely on our finding that the support order will create a hardship on the father in light of his woeful financial situation. We express no opinion in this decision as to whether estrangement relieves a parent of a duty to support a child who has reached majority.


author: TAMILIA, Judge:

text:
    538 A.2d 1379
    William COYLE, a Minor, By his Parents and Natural Guardians, William and Marie COYLE, and William and Marie Coyle, in their own Right, Appellants, v. RICHARDSON-MERRELL, INC. and David Rubin and Seymour Margolis, as Bonnet Lane Pharmacy.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1988.
    Filed March 14, 1988.

      Thomas R. Kline, Philadelphia, for appellants.
    Nina M. Gussack, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the Order granting summary judgment in favor of defendants Rubin & Margolis, individually, and trading as Bonnet Lane Pharmacy. There are two issues which we must consider: 1) whether our decision in Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super, 589, 523 A.2d 374 (1987) is applicable to the instant case; and 2) whether a denial of a motion for judgment on the pleadings forever precludes a party from receiving a subsequent grant of summary judgment.

Appellants brought this suit claiming their son, William, was born with badly deformed limbs due to ingestion of the drug Bendectin by his mother during the early part of her pregnancy. The Bendectin was prescribed by Mrs. Coyle's doctor to relieve her nausea and vomiting associated with pregnancy. Appellants filed their complaint on January 9, 1981 against Merrell-Dow Pharmaceuticals, Inc. as manufacturer of the drug and Bonnet Lane Pharmacy (Bonnet Lane) as supplier of the drug. Bonnet Lane was a defendant based upon appellant’s claim of strict liability under the Restatement (Second) of Torts § 402A. Appellees had the case removed to the district court for the eastern district of Pennsylvania claiming Bonnet Lane was fraudulently joined to defeat diversity jurisdiction in the federal court. Bonnet Lane also moved for judgment on the pleadings. The district court found that Pennsylvania did not have any case law which would support either party in their contentions regarding the liability of pharmacists under § 402A. Therefore, without more, there was no basis for finding fraudulent joinder and no basis for granting Bonnet Lane’s motion for judgment on the pleadings. The case was remanded to state court for lack of diversity jurisdiction. The state court, on September 26, 1986, granted summary judgment to Bonnet Lane, holding that pharmacists are not strictly liable under § 402A of the Restatement (Second) of Torts for damages which occur as a result of ingestion of a prescribed drug. The court relied on several trial court Opinions to reach its conclusion, one of which was Makripodis, supra, before it came to us on appeal and we affirmed. Thus, using our reasoning of Makripodis, we now affirm the trial court.

The facts of Makripodis are exactly on point with the instant case. A child with congenital abnormalities was born to a mother who had taken Bendectin during her pregnancy. Merrell-Dow was sued along with Rite-Aid Corporation, the supplier of the drug to the mother. We found that a pharmacy is not strictly liable under § 402A of the Restatement (Second) of Torts for failure to warn of any teratogenic potential. Nor is a pharmacy strictly liable as a retailer of a drug which results in harm to the user. Makripodis, supra, 361 Pa.Super. at 595-597, 523 A.2d at 378. Appellants in the instant case try to distinguish their case from Makripodis by stating “[I]n Makripodis, the only theory of liability under 402A [sic] was failure to warn, whereas in the present case the plaintiffs also present a theory of liability under § 402A of the Restatement of Trots [sic] (Second) that Bendectin was itself unsafe and inherently defective for use at all by pregnant women.” (Emphasis in original.) (Brief of appellant, p. 11.) This attempt at distinguishing their case overlooks, however, our conclusion in Makripodis regarding any type of strict liability imposition upon pharmacists: “[W]e can perceive no benefit to be derived from the imposition of strict liability upon the pharmacist who properly dispenses a prescription drug upon the prescription of a duly licensed physician.” Makripodis, supra 523 A.2d at 379. It is clear, therefore, that a pharmacist will not be held strictly liable under § 402A of the Restatement (Second) of Torts as a supplier in the chain of distribution of a prescription drug.

Finally, appellants claim the trial court erred in granting summary judgment to Bonnet Lane since the district court, five years earlier, had denied Bonnet Lane’s motion for judgment on the pleadings. This argument, too, is without merit. Judgment on the pleadings is exactly that — a judgment rendered for either party based solely on the pleadings themselves; no outside material may be considered. Summary judgment is a judgment rendered on the basis of pleadings along with other material such as depositions, interrogatories, affidavits, etc. Although a party does not receive a favorable judgment based solely on the pleadings, the party may later be able to show through other material that judgment in their favor is appropriate. See Harvey v. Hansen, 299 Pa.Super. 474, 481 n. 7, 445 A.2d 1228, 1231 n. 7 (1982).

Order granting summary judgment affirmed.

      . The appeal was properly taken from the Order granting summary judgment which is final and appealable and need not be reduced to judgment. Sidkoff, et al. v. Pennsylvania National Mutual Casualty Insurance Co., 369 Pa.Super. 35, 534 A.2d 1066 (1987).

      . Merrell-Dow Pharmaceuticals, Inc. (Merrell-Dow) was sued as Richardson-Merrell, Inc. Merrell-Dow is the successor corporation to Richardson-Merrell, Inc.

      . Section 402A provides in pertinent part:
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

      . We note that appellants assert Makripodis has no application to their case since it was decided after their complaint was filed. This argument is without merit since the rationale used in deciding Makripodis is equally applicable here. Furthermore, since Makripodis was the first pronouncement by an appellate court in Pennsylvania concerning liability of pharmacists under § 402A, Restatement (Second) of Torts, we are not changing the law on appellants prior to the conclusion of their case but are merely applying the law which governs their case.


author: POPOVICH, Judge:

text:
    539 A.2d 360
    Paul D. SCHAFFER v. LITTON SYSTEMS, INC. and Dorr-Oliver, Inc. Link Belt Co., a Division of FMC Corp., Nazareth Steel Fabricators, a Division of United Industrial Syndicate and Sterns Magnetics, Inc. and Rexnord, Inc. and Harrison Construction Co. and Baldwin Belting, Inc. v. GOODYEAR TIRE AND RUBBER CO. Appeal of DORR-OLIVER, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Feb. 1, 1988.
    Reargument Denied April 8, 1988.

      Richard A. Kraemer, Philadelphia, for appellant.
    Stephen M. Feldman, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which denied a motion for reconsideration filed by appellant-defendant, Dorr-Oliver, Inc. We must reverse and remand the matter for proceedings not inconsistent with this opinion.

At the outset, we must address the jurisdictional issue, which is the subject of appellee’s motion to quash. According to appellee, the order which forms the basis of the instant appeal, an order denying leave to amend new matter to plead the defense of a statute of repose, is interlocutory. Appellee states that by allowing an appeal in this case would contravene the policy against piecemeal appeals and protracted litigation. We disagree and must deny appellee’s motion to quash for the reasons stated below.

We must apply the following general guidelines regarding the finality of orders:

Our decisions adhere to the principle that discouraging interlocutory appeals furthers the goals of judicial economy. “It is fundamental law in this Commonwealth that an appeal will lie only from final orders unless otherwise expressly permitted by statute.” T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). Discouraging interlocutory appeals avoids “piecemeal determinations and the consequent protraction of litigation.” In re Marino[’s] Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970) (quoting Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954)). As to what constitutes a final order, the Court in T.C.R. Realty stated:
[W]e have looked beyond the technical effect of the adjudication to its practical ramifications. Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Piltzer v. Independence Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974); James Banda, Inc. v. Virginia Manor Apartments, Inc., 451 Pa. 408, 409, 303 A.2d 925, 926 (1973). Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant “out of court.” Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). In Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 [1970], we said that an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court.
T.C.R. Realty, Inc., supra, 472 Pa. at 337, 372 A.2d at 724.
Stevenson v. General Motors Corp., 513 Pa. 411, 417-418, 521 A.2d 413, 417 (1987).

Next, we must examine the statute of repose, which is the subject of appellant’s request for leave to amend, and which is set forth in 42 Pa.C.S.A. § 5536. Essentially, this statute eliminates all causes of action arising out of the negligence in construction or design of an improvement to real property which occurred more than twelve (12) years before the accident. Section 5536 reads as follows:

§ 5536. Construction projects
(a) General rule. — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).
(b) Exceptions—
(1) If an injury or wrongful death shall occur more than ten and within 12 years after completion of the improvement a civil action or proceeding within the scope of subsection (a) may be commenced within the time otherwise limited by this subchapter, but not later than 14 years after completion of construction of such improvement.
(2) The limitation prescribed by subsection (a) shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death for which it is proposed to commence an action or proceeding.
(c) No extension of limitations. — This section shall not extend the period within which any civil action or proceeding may be commenced under any provision of law.

In analyzing Section 5536, our Court has referred to its predecessor statute, the Act of December 22, 1965, P.L. 1183, 12 P.S. § 65.1 et seq., and has commented in the following manner:

The Act of 1965, does not merely bar a litigant’s right to a remedy, as a statute of limitations does, but the Act completely abolishes and eliminates the cause of action itself. By eliminating a cause of action, the Act of 1965 is a statute of repose and as such it is properly raised in a Motion for Nonsuit, Directed Verdict, or Judgment N.O.V.

In First Pool Gas Coal Co. v. Wheeler Coal Co., et al., 301 Pa. 485, 152 A. 685 (1930), the supreme court explained the distinction between the statute of limitations in actions personal, and a statute of repose. The court there was referring to the Act of April 22, 1865, P.L. 533, 12 P.S. Section 838, a limitation respecting actions to enforce trusts as to realty. The court went on to explain that such limitation on actions does not have to be pleaded and stated as follows:

... this Rule (Pleading a Statute of Limitations), however, refers to the statute of limitations of actions personal, and is inapplicable to the Act of 1865. In the former case, the statute merely applies to the remedy, the claim remains and may be revised by a new promise; while in the latter there is no right of action unless served in accordance with the provisions of the statute ... the Act of 1965 ... is a statute of repose which need not be specifically pleaded.

Id., 301 Pa. at 489, 152 A. at 687.

We find that because the Act of 1965 is a non-waivable statute, abolishing and destroying the cause of action against any person lawfully performing or furnishing the design, planning, supervision or observation of construction or construction of real property improvements, such defense is not waived by the failure to plead the statute as a statute of limitations defense pursuant to Pa.R.C.P. No. 1030.

Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 487, 434 A.2d 1243, 1248-1249 (1981). Accord Fetterhoff v. Fetterhoff 354 Pa.Super. 438, 441, 512 A.2d 30, 31 (1986).

Thus, although the theoretical effect of an order involving the statute of repose indicates that a litigant can raise this defense at anytime, our examination of the practical ramifications of the trial court’s order in this case, leads us to a different conclusion. At the proceedings below, the trial court concluded that appellant could not amend its answer for the following reasons:

In the case at bar, this Court is of the opinion that the prejudice to Plaintiff is too great to allow the amendment in that material evidence has been lost since appellant filed its Answer and New Matter, other Defendants have been dismissed by stipulation, most discovery efforts have been directed against appellant, the expert report is directed to appellant and the site of the accident has been sold and the machinery no longer in operation. Accordingly, the Motion to Amend was denied.

Trial Court’s Opinion at 2.

Because the trial court ruled that appellant could not raise the statute of repose in its answer, it effectively would be precluded from presenting evidence of the defense at the trial. Joyce v. Safeguard Mutual Insurance Co., 362 Pa.Super. 522, 525, 524 A.2d 1362, 1363 (1987) (The order denying leave to amend to include the statute of limitations defense "... is sufficiently final to allow review, since the refusal to allow appellant an opportunity to present the proposed affirmative defense of the statute of limitations put appellant ‘out of court’ as to that defense.”); Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 24, 218 A.2d 350, 351 (1966) (The order denying leave to amend to include the defense of res judicata effectively precluded proof of trial “of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant ‘out of court’. It is, therefore, an appealable order.”)

Under these circumstances, we also must deny appellee’s motion to quash the appeal.

The issues which appellant raises in his appeal concern whether the trial court erred in refusing appellant’s request for leave to amend its answer. More specifically, appellant sets for the following issues: (1) whether the trial court erred as a matter of law in refusing to allow Dorr-Oliver to amend it answer to raise the statute of repose, a non-waivable defense, as an affirmative defense; (2) whether appellee-plaintiff’s cause of action was barred from the outset by the statute of repose; (3) whether the alleged prejudice has no significance to appellant’s proposed amendment where appellee’s claim was barred from the outset by the statute of repose, a non-waivable defense; and, (5) whether the appellant’s motion for leave to amend its answer was filed in a timely fashion.

In this case, we conclude that an amendment should have been permitted and that the trial court erred in ruling otherwise.

Generally, we recognize that:

Under Pa.R.C.P. 1033, “A party either by filed consent of the adverse party or by leave of court, may at any time ... amend his pleading.” The decision to permit an amendment to pleadings is committed to the sound discretion of the trial judge. That discretion however is not unfettered. Our courts have established as parameter a policy that amendments to pleadings will be liberally allowed to secure a determination of cases on their merits. Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 137, 467 A.2d 1164, 1167 (1983) (and cases cited therein).
Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super. 311, 313, 484 A.2d 148, 150 (1984).

Because the statute of repose can be “properly raised in a Motion for Nonsuit, Directed Verdict, or Judgment [,]”, the question of whether appellee will be prejudiced by the amendment is collateral to this kind of inquiry into the statute of repose.

The record reveals that on November 24, 1982, plaintiff, Paul Schaffer, filed a complaint in trespass against appellant and defendants, Litton Industrial Systems (later changed to Litton Systems, Inc.), Link Belt Company, Nazareth Steel Fabricators, Rexnord, Inc., Stearns Magnetics, Inc., Harrison Construction Company, and Baldwin Belting, Inc. for physical injuries which he sustained while working as a crusher operator at New Jersey Zinc. According to plaintiffs complaint, the plaintiff was working near the conveyor system and crusher, when his left arm became caught in the conveyor belt and was severed at the elbow. The plaintiff worked at an ore processing system at a mine and each of the defendants allegedly “shipped its product into Pennsylvania specifically for use in the ore processing system at the New Jersey Zinc, Friedensville Mine.” Complaint at Allegation No. 27.

Appellant filed an answer on December 28, 1982 and raised as new matter the defenses of contributory negligence, assumption of risk, misuse, and substantial change. Appellant sought to amend its complaint and sought to add the defense of the statute of repose on August 19, 1986 in the following manner:

4. The ore crushing system in question was originally designed and installed at plaintiffs place of employment in the 1940’s and 1950’s.
5. As such, at the time of filing an Answer, defendant Dorr-Oliver was not in a position to make a clear determination regarding what if any involvement it may have had with the system and the components thereto, as it no longer had any records in its possession.
6. Extensive discovery has taken place to date, which reveals that defendant Dorr-Oliver apparently did not supply any machinery or components for the system in question.
7. If Dorr-Oliver had any involvement at all with the system in question, it was merely in supplying certain engineering drawings or schematics.
8. Defendant Dorr-Oliver seeks at the present time to amend its New Matter to raise the Statute of Repose as a defense.
9. A copy of defendant’s proposed Amended Answer and New Matter is attached hereto as Exhibit “C”.
10. The evidence adduced reveals that if Dorr-Oliver had any involvement, it was merely in the design or planning of improvements to real property and as such the plaintiff’s claim is barred by the twelve year Statute of Repose.
11. Defendant will be severely prejudiced if it is not permitted to amend its Answer and New Matter at this time.

Reply of Defendant, Dorr-Oliver, Inc.

In this case, the trial has not begun and we are convinced that an amendment should be allowed at this time. The remarks which our Supreme Court have articulated in the past are aptly persuasive:

On the posture of the present record, it is far from clear whether or not the doctrine of res judicata should be applied. Certainly, the question is not so open and shut as to now permit its determination as a matter of law. The facts need enlargement on this facet of the case, and the only manner in which this can be accomplished is to permit the amendment.
Posternak v. American Casualty Company of Reading, 421 Pa. at [25], 218 A.2d at 352. (amendment allowed where the defense of res judicata as asserted four years after the complaint was filed.) (footnote added) Accord Gallo v. Yamaha Motor Corp., U.S.A., supra (amendment allowed where the defense was asserted two years after the answer was filed).

Similarly, we are able to say that the question of whether the ore processing system constitutes an improvement to real estate “is not so open and shut as to now permit its determination as a matter of law.” Id. See, e.g., Cantanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1986) (a skylight/skydome is an improvement to real estate); Mitchell v. United Elevator, supra (an elevator is an improvement to real estate); Keeler v. Commonwealth Department of Transportation, 56 Pa.Cmwlth. 236, 424 A.2d 614 (1981) (highway guard rails, lights, signs and directional signals constitute improvements to real property).

The trial court denied the amendment solely on the grounds of the prejudice which appellee has alleged exists on the record. However, our Supreme Court has said that “[t]he fact that the amendment may affect the cause of the adverse party is not, in itself, sufficient reason to deny the amendment.” Id. Additionally, the trial court’s statement that material evidence has been lost is insufficient to deny appellant’s amendment.

We recognize that the right to amend a pleading is to be construed liberally. Winterhalter v. West Penn Power Co., 355 Pa.Super. 17, 512 A.2d 1187 (1986). We have said that the statute of repose defense:

sets out a much longer period than is set out in a statute of limitation, as for example, twelve years from the date of completion of an improvement to real property, 42 Pa.C.S.A. § 5536, and it strikes a very different balance than is struck by a statute of limitations. Where a statute of limitation controls the time within which a cause of action must be brought, a statute of repose “completely eliminates” the cause of action. Misitis v. Steel City Piping Co., 441 Pa. 339, 343, 272 A.2d 883, 885 (1971).
Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 108, 425 A.2d 428, 442 (1980).

The very nature of the twelve-year period which the legislature has established under § 5536 is an indication that the statute of repose “strikes a very different balance”. Hence, we are unable to conclude as a matter of law that appellant should be barred from asserting and attempting to prove its defense.

We also are not persuaded that Swank v. Bensalem Township, 504 Pa. 291, 472 A.2d 1065 (1984) suggests a contrary conclusion. In Swank, our Supreme Court held that a township could not be held liable for damages resulting from the negligent design or construction of a highway which had been adopted as a state highway. The Court in dictum stated the following in a footnote:

2. In footnote (1) of its brief, Appellant [the township] addresses the applicability of the twelve-year statute of limitations for alleged deficiencies in the design, planning or supervision of construction of improvements to real property. 42 Pa.C.S.A. § 5536. Because the issue was not raised in the lower court, it has not been preserved for appeal.
Swank v. Bensalem Township, 504 Pa. 291, 293, n. 2., 472 A.2d 1065, 1066 n. 2 (1984).

In view of the Supreme Court’s holding which established that the township could not be held liable as a matter of law, it is difficult to read anything else into the court’s statement in dictum that the township’s failure to raise § 5536 at the trial court level rendered that issue waived. However, in any event, Swank is inapposite to this case because the appellant did raise the statute of repose issue at the trial level.

Under these circumstances, we must remand for proceedings not inconsistent with this opinion. Motion to quash is denied, and jurisdiction is relinquished.

      . Mitchell v. United Elevator Co., Inc., 290 Pa.Super. at 487, 434 A.2d at 1249.

      . Because of the state of the record, we are unable to state as a matter of law that appellant is entitled to prevail on its defense.


author: CERCONE, Judge: GRILLO, President Judge,

text:
    539 A.2d 365
    COMMONWEALTH of Pennsylvania v. Jay MOTT a/k/a Leroy Tillman, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 6, 1987.
    Filed March 1, 1988.

      Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence of January 6,1987. Appellant Leroy Tillman was sentenced to nine (9) to twenty-four (24) months imprisonment for simple assault. On this appeal Appellant argues that trial counsel was ineffective in failing to preserve for appeal errors made in the trial court’s instructions to the jury concerning: 1) the definition of bodily injury and 2) the requisite intent for simple assault. In addition, appellant contends his counsel was ineffective for not objecting to the court’s admission into evidence of a prior inconsistent statement by a nonparty witness as substantive evidence. Appellant further argues that the verdict was against the weight and sufficiency of the evidence and that trial counsel was ineffective for failing to preserve these arguments for appeal.

The relevant facts of the case are as follows. The charge of simple assault against appellant arose from a shoplifting incident which occurred at a supermarket in Pittsburgh on May 10, 1986. The evidence adduced at trial shows that appellant was observed placing meat items into a plastic bag by the store manager, Mr. Petrelli. Following questioning of appellant by Mr. Petrelli, an elderly female shopper was knocked down while appellant was attempting to flee the store with Mr. Petrelli in pursuit. The victim, Mrs. White, testified at a preliminary hearing that she did not know who knocked her down. Mr. Petrelli was firm in his testimony that it was the appellant who ran into Mrs. White with a shopping cart causing her to fall.

At trial Mrs. White was not called as a witness for the Commonwealth. At the close of the Commonwealth’s case defense counsel raised a demurrer to the evidence. He claimed that the state did not prove bodily injury, as required for a charge of simple assault. The demurrer was denied and appellant presented his case in which he called Mrs. White to the stand. At that time, she testified that Mr. Petrelli the store manager caused her to fall and that she had sustained injuries from the fall. During cross-examination, Mrs. White admitted that she had brought a civil suit against the supermarket for her injuries. Following a trial by jury, appellant was found guilty of simple assault.

I

Appellant’s first contention is that trial counsel was ineffective in failing to preserve for appeal three issues of trial error. We note that the Supreme Court has recently pronounced a two component standard for reviewing ineffectiveness claims:

First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit____
Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him.

Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 975 (1987).

Appellant’s first claim of ineffectiveness is that counsel did not object to the court’s failure to define “bodily injury” in its instructions to the jury. As to this claim, we find no error. In Commonwealth v. Goins, 348 Pa.Super. 22, 501 A.2d 279 (1985), this court determined that a trial court’s failure to define bodily injury was not prejudicial to the defendant who was charged with simple assault. The court held that while “bodily injury” is a legal term, its meaning is comprehensible to laymen without judicial guidance. Id., 348 Pa.Superior Ct. at 24, 501 A.2d at 280. As in Goins, the jury in the present case heard testimony from which it could have concluded that bodily injury occurred. First, witnesses testified that paramedics were required at the scene. Furthermore, Mrs. White described her injuries when called as a witness during appellant’s case. Trial counsel could hardly be deemed ineffective for failing to object to the trial court’s definition of bodily injury when its meaning was understandable to the jury.

Appellant’s second claim of ineffectiveness is that trial counsel failed to object to the court’s jury instruction regarding the requisite intent which the Commonwealth must prove to establish the crime of simple assault. The disposition of this claim depends upon our characterization of the trial court’s ruling on appellant’s demurrer.

At the close of the Commonwealth’s case, appellant’s counsel demurred and moved to have the simple assault charges against appellant dismissed. Counsel argued that the Commonwealth had failed to prove bodily injury, an essential element of the crime. Counsel’s assertion and the trial court’s statements and ruling concerning the demurrer were as follows:

MR. SWEM: Your Honor, as to the charge of simple assault, again I would ask that that particular count be demurred and the verdict sustained. It is my understanding that the Commonwealth has not presented Mary White [the victim], and there has in effect been no victim, Your Honor.
COURT: Well, that is not necessarily fatal. We heard a description of the action on the conduct on the part of the defendant putting him in bodily contact with the person and knocking her to the floor of the store. And there was further evidence that she remained on the floor, prone on the floor until the paramedics transported her to the hospital. I think that that provides a certain element of charges of the assault, but I don’t think that we have had enough evidence on the other elements that has to do with the—
MR. SWEM: Your Honor—
THE COURT: No, we might not have had enough. The charges here are attempt to cause bodily injury to her. There is no evidence that bodily injury resulted. I am sure it did, but the Commonwealth did not put in any evidence in that regard, but it may be sufficient to let the jury decide whether or not there was an attempt to cause bodily injury.
MR. SWEM: Your Honor, it would go to my position that the only thing that the Commonwealth has shown is that there was contact, that the person was knocked down.
THE COURT: That she flew eight to ten feet in the air and landed on the floor. The demur [sic] is overruled.

The statutory definition of simple assault reads, “A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). As appellant correctly points out, the crime of simple assault can be committed in two distinct ways. In the first instance, simple assault-injury attempted, a specific intent to injure is required. See, Interest of J.L., 327 Pa.Super. 175, 475 A.2d 156 (1984). In the second instance, simple assault-injury inflicted, the intent may be either actual and specific or the intent may be implied from the circumstances, such as acting in a manner which manifests a reckless, culpable disregard for the safety of others. See Commonwealth v. Comber, 374 Pa. 570, 582 n. *, 97 A.2d 343 (1953); Commonwealth v. Aurick, 342 Pa.Super. 282, 288, 19 A.2d 920 (1941). Thus, the actor can be charged for the crime if he acts recklessly as well as intentionally or knowingly causing injury.

Appellant argues that the trial court effectively granted his demurrer as to simple assault-injury inflicted and denied it as to simple assault-injury attempted and then erroneously charged the jury on the general intent element of simple assault-injury inflicted. Upon our review of the record, we can only conclude that the court clearly denied, in its entirety, appellant’s demurrer to the evidence.

Although the court’s statements preceding his ruling on the demurrer are confusing, the court did not grant a partial demurrer to the charge of simple assault. We can find no cases in this jurisdiction to support the notion that a statute describing, and an information charging the defendant with a single count of simple assault, can be bifurcated for purposes of the defendant’s demurrer to the evidence. Moreover, the law is settled in Pennsylvania that since the trial court denied the demurrer and appellant thereafter presented a defense, his ability to challenge the propriety of the order denying the demurrer is foreclosed. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976), Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1973). At this point a challenge to correctness of the trial judge’s ruling can only be regarded as a challenge to the sufficiency of the evidence. Commonwealth v. Hammock, 319 Pa.Super. 497, 466 A.2d 653 (1983). Since we characterize the court’s ruling as a complete denial of appellant’s demurrer to the evidence, it was not improper for the court to instruct the jury on recklessness as a form of intent through which it could find appellant guilty. Thus, we find no merit in appellant’s argument that trial counsel was ineffective for not objecting to the court’s charge in that regard.

Appellant’s third contention concerning ineffectiveness of trial counsel involves counsel’s failure to object to the court’s lack of a limiting instruction regarding a witness’ prior inconsistent statements. Defense witness Mary White testified at trial that she was knocked down by Mr. Petrelli rather than the appellant. During cross-examination Mrs. White admitted testifying at the preliminary hearing that she did not know who hit her. The Pennsylvania Supreme Court has recently reversed its previous position and held that “otherwise admissible prior inconsistent statements of a declarant, who is a witness in a judicial proceeding, and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Commonwealth v. Brady, 510 Pa. 123, 131, 507 A.2d 66, 70 (1986). The Brady case is in no way limited to the admissibility of prior inconsistent statements that are recorded, as appellant suggests. The only question presented in the instant case is whether Mrs. White fits within the confines of the rule as set forth above. Mrs. White was a non-party witness testifying in a judicial proceeding — trial, and was subject to cross-examination. Moreover, although not required by the Brady decision, the prior inconsistent statement of the witness was given while under oath in testimony at a preliminary hearing. The Supreme Court in Brady suggested that the prior statement in that case possessed superior indicia of reliability because it was made at a point in time closer to the event which took place. Id., 510 Pa. at 130, 507 A.2d at 69. Clearly, the statement involved herein is equally if not more reliable, since it was made close in time to the assault and was given while the declarant was under oath. Thus, counsel was not ineffective for failing to object to the court’s lack of a limiting instruction, when such an instruction was not necessary under the current status of the law in this state.

Pursuant to the preceding discussion, we find each of appellant’s arguments regarding error in the court’s instruction and charging defense counsel with ineffectiveness lacking arguable merit.

II

Appellant’s second argument is that is that because the Commonwealth introduced no evidence of specific intent to injure this court should find the evidence to be insufficient as a matter of law. As evidenced from our discussion in the preceding section, the case against appellant proceeded on both simple assault-injury attempted and simple assault-injury inflicted. The record contains ample evidence to support appellant’s conviction for simple assault-injury inflicted as the testimony of his reckless conduct was sufficient to support a finding of general intent to commit the assault. Accordingly, we find no merit to his claim that the evidence is insufficient, as a matter of law, to support the conviction, and, therefore, trial counsel was not ineffective for failing to properly raise this claim.

Ill

Appellant’s third argument is that the verdict is against the weight of the evidence. However, since trial counsel failed to raise this issue in appellant’s post trial motion the argument is waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), Commonwealth v. Byers, 349 Pa.Super. 162, 502 A.2d 1324 (1986). Therefore, we can only determine whether counsel’s failure to raise the argument was ineffective assistance. The crux of appellant’s argument is the fact that the victim in this case testified that the appellant did not assault her but rather a store employee knocked her down causing her injuries. This witness was impeached by the Commonwealth’s attorney by admitting that she was seeking relief for her injuries in a civil suit against the supermarket. Appellant argues that although it was shown that Mrs. White had an interest in testifying as she did, Mr. Petrelli had an equal interest in protecting his employer by stating that the appellant assaulted Mrs. White. The trier of fact in determining the weight to be given the evidence is free to believe all, part, or none of the evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985). In the present case, the jury was in the best position to examine the credibility of both witnesses in order to resolve the issue of who had in fact knocked the victim down. Therefore, counsel was not ineffective in failing to preserve an argument for appeal which was not meritorious.

Judgment of sentence affirmed.

GRILLO, President Judge, files a concurring opinion.

GRILLO, President Judge,

concurring:

While I am constrained to join in the result reached in Judge Cercone’s opinion since Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) is the law in this Commonwealth, I write separately to emphasize my concern with the precedent set by that case.

I believe that the Pennsylvania Supreme Court, in deciding Brady, mistakenly discarded a well-tried rule of jurisprudence. Before the court’s decision in Brady, it had long been the law in this Commonwealth that prior inconsistent statements were admissible only for impeachment purposes. See Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). The concern was, and still is in many jurisdictions, that hearsay problems arose from its introduction, that is, that the prior statement was too unreliable to be introduced as substantive evidence because the declarant had not been under oath or subject to punishment for perjury, because the declarant was not in the presence of the trier of fact, and because the declarant was not to punishment for perjury, because the declarant was not in the presence of the trier of fact, and because the declarant was not subject to cross-examination. Id., 467 Pa. at 134-35, 354 A.2d at 880; 3A Wigmore, Evidence, § 1362; State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, 92 (1986).

Justice Larsen, writing for the majority in Brady, intimated that these concerns were outdated. According to his majority, the presence of the out-of-court declarant in court and his availability for cross-examination at trial obviates the need for contemporaneous cross-examination. Brady, 510 Pa. at 129, 507 A.2d at 69. Further, the majority states that the jury is allowed to observe the declarant during the present cross-examination, and he quotes the eminent jurist Judge Learned Hand that should the jury then determine that the declarant’s first statement is the truth, they are deciding from what they see and hear in the courtroom. Id. Finally, the Brady majority states that the former statement made by the declarant may be considered to “possess superior indicia of reliability” when compared to the latter, for the former statement was made at a point in time much closer to the event in question, when arguably the memory is much fresher, and the opportunity for fabrication less. Id., 510 Pa. at 130, 507 A.2d at 69.

I have considered the criticisms of the orthodox rule along with Justice Larsen’s opinion in Brady, but I am not convinced that this Commonwealth should have departed from the well-settled former rule. I do not agree that the opportunity to cross-examine a declarant at trial perhaps several years after the original statement was made, and certainly after a declarant has had time to consider both responses, can replace contemporaneous cross-examination. I am persuaded by the reasoning of the Supreme Court of West Virginia in State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655 (1975). That court reasoned that later cross-examination could in no way replace contemporaneous cross-examination, and pointed out difficulties which would arise in later cross-examination where the witness will only say in response to questioning that he does not remember. “Although the jury would be free to determine how much weight they should accord the prior statement as opposed to the present in-court testimony, there is little choice when the in-court testimony consists merely of an averment of loss of memory.” Id. at 246, 220 S.E.2d 655.

I also disagree with the argument that the prior statement has as great or even greater indicia of reliability than the later one. As the West Virginia court held, errors can arise in transcription, in misstatement by the officer preparing the statement for signature, and from leading questions which create misapprehension on the part of the declarant. Further, as that court pointed out, “Frequently, witnesses in criminal cases are implicated in the criminal activity at issue ..., and the prosecutorial authorities can induce fear, a sense of guilt, and panic, in such a way as to cause distortion of the facts.” Id. at 251, 220 S.E.2d 655. This scenario bears similarity to the situation that arose in Brady. In Brady, Traxler gave a tape recorded statement to police the night after the incident in question allegedly occurred. She admitted to being with the defendant during the day that the murder occurred, and could have easily been concerned for her own welfare when the statement was given to police. No contemporaneous cross-examination had occurred.

Hearsay considerations aside, I am most greatly concerned with the possibility of unfairness to defendants arising from the Brady ruling. Unless the declarant has made the statements at a prior judicial proceeding where he was under oath and subject to contemporaneous cross-examination by the same parties, or parties with similar interests, it seems to me that by allowing prior inconsistent statements to be offered for the truth of the matter asserted, we are making it possible for defendants to be convicted upon unsworn testimony. Arguments have been made that the oath does not necessarily convey the awe that it had been wont to do, and that insisting that testimony of declarants must be given under oath before it becomes admissible as substantive evidence does not necessarily insure that it is truthful. Regardless of the aptness of this charge, I find it fundamentally unfair to allow defendants to be convicted upon statements the veracity of which the declarant refuses to affirm in a public proceeding. See People v. Collins, 49 Ill.2d 179, 274 N.E.2d 77 (1971); State v. Dick, 27 Ohio St.2d 162, 271 N.E.2d 797 (1971). I would not have allowed prior inconsistent statements into evidence for the truth of the matters asserted in them. For these reasons, I respectfully concur in the majority’s decision.

Judge HOFFMAN joins in the result reached in Judge CERCONE’s opinion, and joins President Judge CIRILLO’s concurring opinion.

      . 18 Pa.C.S.A. § 2701(a)(1).

      . We note that this is not a case in which the trial judge failed to instruct the jury as to an element of the crime. The judge merely failed to give the statutory definition of bodily injury which is defined as "impairment of physical condition or substantial pain”. 18 Pa.C.S. § 2301.

      . Appellant does not question the effectiveness of trial counsel’s performance in proceeding, during defense, to provide evidence of bodily injury, and foreclose a challenge to the demurrer. Therefore, we decline to pass upon counsel’s effectiveness in that regard since it is not properly before this court.