author: PRICE, Judge:

text:
    452 A.2d 1372
    COMMONWEALTH of Pennsylvania v. C.B., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Nov. 30, 1982.

      Robert J. O’Shea, Jr., Assistant Public Defender, Norris-town, for appellant.
    Richard Faux, Assistant County Solicitor, Norristown, for participating party.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PRICE, Judge:

Appellant challenges the legality of his 90 day involuntary commitment to Norristown State Hospital. On November 9, 1979, appellant voluntarily committed himself to the state hospital. Upon his admission, he executed an agreement providing that should he elect to withdraw from treatment, his release could be delayed for up to 72 hours. On January 2, 1980, he notified the hospital authorities that he wished to be discharged. One day later, on January 3, 1980, the hospital filed a petition requesting the Court of Common Pleas of Montgomery County to enter an order for appellant’s involuntary treatment for 90 days, pursuant to § 304 of the Mental Health Procedures Act (“Act”). A hearing before a mental health review officer was scheduled for January 4, 1980, prior to the expiration of the 72 hour period during which his release was delayed. Thus, the petition was not served on appellant until the day before the hearing. The hearing was held as scheduled and appellant was committed for 90 days. Appellant requested that a judge of the Court of Common Pleas review the order for his involuntary treatment. The commitment was affirmed, and this appeal taken. Appellant asserts that the procedure approved by the court below abridged his rights under the Act and deprived him of liberty and property without due process of law, in violation of the Constitution of the United States. We agree with appellant that he was not afforded his rights under the Act, and thus we need not address the merits of his Fourteenth Amendment claim.

Section 304(c) of the Act provides for procedures to be followed in initiating court-ordered involuntary treatment for persons not already in involuntary treatment, and requires in relevant part that

... A copy of the petition shall be served on such person at least three days before the hearing together with notice advising him that an attorney has been appointed who shall represent him unless he obtains an attorney himself, that he has a right to be assisted in the proceedings by an expert in the field of mental health, and that he may request or be made subject to psychiatric examination under subsection (c)(5).

50 P.S. § 7304(c)(4). It is undisputed that appellant was not served with the petition until the day before his hearing. The court below concluded, however, that for the purposes of the notice requirements of the Act, a voluntary patient who has elected to terminate treatment and is being held for 72 hours is, during this 72 hour period, an involuntary patient, and thus subject to the “reasonable notice” requirement of § 304(b)(3), rather than the three day notice specified by § 304(c)(4). The court found 24 hours notice to be reasonable under the circumstances, and sustained the commitment. Slip op. at 4. We cannot agree with this interpretation of the statutory language.

Section 304(b) of the Act clearly applies only to “persons already subject to treatment under sections 303, 304, and 305” of the Act, and therefore was not appropriately invoked in this case. The court below resorted to § 304(b) to resolve a dilemma it perceived was presented by appellant’s situation. The court was concerned that § 206(a) of the Act, covering withdrawal from voluntary treatment, provides for only 72 hours of delayed release when a patient committed voluntarily gives notice of intent to withdraw from treatment. Therefore, an individual detained under § 206(a) alone would inevitably be released before the expiration of the three day period prior to hearing, given that some time must be consumed in the preparation of a petition.

This dilemma is illusory, however, because of another option available to the hospital under the Act. Section 302 provides for involuntary emergency treatment not to exceed 120 hours, and § 303 for extended emergency treatment after an informal conference before a review officer or judge, not to exceed twenty days. If convinced that appellant could not safely be released pending a hearing, hospital officials could have properly proceeded under these applicable provisions, and then, if they determined appellant required treatment beyond the twenty day period, filed a petition for a ninety-day commitment under § 304(b).

As this court has stated,
Not only is the Act very specifically drawn, but it has been held that it must be construed very strictly by the courts. As the Federal District Court stated in Eubanks v. Clarke, 434 F.Supp. 1022, 1028 (E.D.Pa.1977) “. . . [T]he very nature of civil commitment entails an extraordinary deprivation of liberty ... A statute sanctioning such a drastic curtailment of the rights of citizens must be narrowly, even grudgingly construed, in order to avoid deprivation of liberty without due process of law.”

In Re S.C., 280 Pa.Superior Ct. 539, 546, 421 A.2d 853, 857 (1980); see also, Commonwealth v. Blaker, 293 Pa.Superior Ct. 391, 446 A.2d 976 (1981).

The structure of the Act evidences a legislative intent to create a treatment scheme under which the patient’s procedural protections expand progressively as the deprivation of his liberty gradually increases. In Re Ann S., 279 Pa.Superior Ct. 618, 421 A.2d 370 (1980). Where a 90 day commitment is sought for an individual not already subject to involuntary treatment under §§ 303, 304 or 305, service of the petition is the first official notice he will have that such a course of action is contemplated. The three day period after service of the petition was apparently deemed necessary by the legislature, in order that an individual in this situation may meaningfully avail himself of his rights under the Act, including the assistance of counsel and of a mental health expert.6 **

Although Pennsylvania Courts have not fully delineated the nature of process that is due with respect to civil commitment, there is no question that the substantial deprivation of individual liberty inherent in such commitments may only be accomplished in accordance with due process standards. Appeal of Niccoli, 472 Pa. 389, 372 A.2d 749 (1977); Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975). Where, as here, the Act has provided for specific procedural protections, and the procedures mandated are not followed, involuntary commitment is improper. Accordingly, and particularly in light of statutory procedures properly available to the hospital in such a situation, the order of the court below must be reversed.

Appellant, in addition to urging reversal, requests that the order of commitment be expunged and suppressed, and that all court and hospital records documenting the commitment be destroyed. In Wolfe v. Beal, 477 Pa. 477, 384 A.2d 1187 (1978), our Supreme Court held that a person who has been unlawfully committed to a state mental hospital has a right to the destruction of the hospital records which were created as a result of the illegal commitment. In Wolfe, the question of expungement of court records was not at issue, because the lower court’s decision to order such relief had not been challenged. We have held, however, that it is clear that the court’s reasoning is equally applicable to the expungement of court records. As the Court observed in Wolfe,

The Pennsylvania Constitution specifically provides that “all men ... have certain inherent and indefeasible rights, among which .. . [is] acquiring, possessing, and protecting reputation ...” Const. Art. 1, § 1. We cannot ignore the fact that many people in our society view mental illness with distain and apprehension. We . . . approved of the concept of protecting the reputation of a person who was unlawfully thrust into the criminal process by sanctioning the expungement of his criminal record. We should not do less for appellant. The continued existence of the hospital records pose a threat to appellant’s reputation.

Wolfe v. Beal, 477 Pa. at 480, 384 A.2d at 1189; Commonwealth v. J.T., 279 Pa.Superior Ct. 127, 129, 420 A.2d 1064, 1065 (1980).

We reverse, and in accordance with the holding in Wolfe v. Beal, supra, order expungement of all hospital and court records of appellant’s January 4, 1980 order of commitment.

      . This type of agreement is authorized by 50 P.S. § 7203, entitled “Explanation and Consent”.

      . 50 P.S. § 7304.

      . The court below was of the opinion that, as appellee argues here, this appeal is moot, because appellant’s 90 day commitment is no longer in effect. As the order of involuntary commitment affects an important liberty interest, and because by their nature most involuntary commitment orders expire before appellate review is possible, this appeal is not moot. Commonwealth v. Blaker, 293 Pa.Superior Ct. 391, 446 A.2d 976 (1981); In Re S.C., 280 Pa.Superior Ct. 539, 421 A.2d 853 (1980); In Re Ann S., 279 Pa.Superior Ct. 618, 421 A.2d 370 (1980); Commonwealth ex rel. Bielat v. Bielat, 257 Pa.Superior Ct. 446, 390 A.2d 1321 (1978).
      In maintaining that the appeal is moot, appellee also argues that since appellant initially committed himself voluntarily, no significant additional stigma was created when he was involuntarily committed for 90 days. This court has rejected the argument that the degree of stigma associated with a particular commitment should be evaluated in deciding whether the discharge of the committed party has made moot the question of the legality of the commitment. In Re S.C., 280 Pa.Superior Ct. 539, 421 A.2d 853 (1980).

      . 50 P.S. § 7304(b)(3).

      . 50 P.S. § 7206(a).

      . 50 P.S. § 7302.

      . 50 P.S. § 7303.

      . Appellee argues that appellant would have been adversely affected had they proceeded under § 302, because such a course of action would have necessitated moving appellant to a different facility, interrupting his treatment. Even if we assume that such concern for appellant’s welfare would justify abridging his rights under the Act, we find nothing in the Act requiring that an individual detained under § 206(a) be moved to a different facility for treatment under § 302.

      . Appellee maintains that at the time appellant informed hospital authorities that he intended to withdraw from treatment, they told him that they would petition the court for involuntary treatment, that a lawyer would be appointed, and that he had an opportunity to call this lawyer. Thus it is argued that appellant had 72 hours of “constructive notice”, so that the full three day period after service J was not necessary.
      Such “constructive notice” is simply not comparable to the receipt of a petition which “set[s] forth facts constituting reasonable grounds to believe that the person is within the criteria for court-ordered treatment ...” and states “the name of any examining physician and the substance of his opinion regarding the mental condition of the person.” 50 P.S. § 7304(c)(2). In any event, the Act clearly requires the service of the petition, followed by a three day period before hearing, rather than any informal “constructive notice.”


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    452 A.2d 1376
    Douglas J. MEYER, a Minor by his Guardian, Larry M. MEYER and Larry M. Meyer and Boneta F. Meyer, Appellants, v. Russell M. HEILMAN, Jr. and Helen V. Heilman, t/d/b/a R.F. Heilman and Son and International Harvester.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Granted March 29, 1983.

      Thomas A. Ehrgood, Lebanon, for appellants.
    Daniel K. Deardorff, Carlisle, for Heilman, appellees.
    James R. Clippinger, Harrisburg, for International, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

On August 8, 1974, Douglas J. Meyer (Douglas) then aged 10 years, suffered injuries when he fell from the axle of a tractor operated by an employee of the defendants Heilman which had been manufactured by defendant International Harvester Company (International). Douglas had been riding the tractor by standing on the axle holding on to the operator’s seat and the headlight bar. The axle was flat on the top and the evidence indicates that one of Douglas’s feet was placed on a chain wound around the axle. No fault was attributed to the tractor operator, a friend of Douglas, and Douglas had no occasion to be riding on the Heilman tractor on Heilman land other than for “the fun of it”. The tractor had been engaged in a common farm activity of pulling a manure spreader and providing power thereby by means of a revolving shaft, known as a power take off (PTO). The injuries incurred by Douglas were caused by entanglement with the PTO shaft.

The tractor in question had been manufactured by International in 1952 and had become the property of Heilman from a third party some years previously. Originally that tractor had been equipped with a safety shield which had been removed by Heilman some years previously because with the safety shield affixed, the field sprayer (not made by International) could not physically be attached. Heilman also owned John Deere tractors manufactured in 1949 and 1951 which were equipped in addition to the main safety shield with a small (flipper) shield on a spring which unless in some way wired or tied up would render the PTO inoperable. On a larger tractor also manufactured by International the master shield was in place while operating a manure spreader. On the tractor in issue the PTO was only used in connection with the manure spreader and sprayer. Douglas’s testimony that he had ridden on that tractor at least ten times with Heilman employees and once with a Heilman partner was not contradicted, although admittedly he never rode it before with the PTO in operation. Nor was it contradicted that he did not know then what a PTO was and that he had never been warned of it.

Douglas and his parents sued for damages predicating liability as to International under Section 402A, Restatement (Second) of Torts and as to defendants Heilman on negligence. The matter was tried to a judge and jury. At the conclusion of the plaintiffs’ case the court granted International’s motion for a compulsory non-suit. The trial then proceeded against defendants Heilman alone and the jury returned a verdict in favor of the defendants Heilman. Post-trial motions to remove the compulsory non-suit as to International and for judgment n.o.v. and new trial were refused.

Section 402A

As acknowledged by the court below the entry of a compulsory non-suit is limited to clear cases where the facts and circumstances have as the only conclusion the absence of liability. Pa.R.C.P., 231(b), McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982); Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981); McKenzie v. Cost Brothers Inc., 487 Pa. 303, 409 A.2d 362 (1979); Speicher v. Reda, 290 Pa.Super. 168, 434 A.2d 183 (1981). The primary error of the opinion below lay in regarding the plaintiffs’ case as though it were wholly bottomed on the testimony of plaintiffs’ expert, which was indeed frail. The error of the court below in the discussion leading to the grant of the non-suit was its iteration that the defect alleged must be unreasonably dangerous at the time it left the manufacturer’s hand.

Section 402A of the Restatement (Second) of Torts is part of Pennsylvania law. Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981). It reads:

Section 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer.

(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 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.
(2) The Rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Where, , as here, bad design of a product is charged, the words “unreasonably dangerous” have no independent significance and merely represent a label to be used where it is determined that the risk of a loss should be placed upon the supplier. In this type of case, the manufacturer is a guarantor, and the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use. It is clear that the term “unreasonably dangerous” has no place in the instructions to the jury as to the question of “defect” in this type of case: Azzarello v. Black Bros. Co., 480 Pa. 547, 556, 559, 391 A.2d 1020 (1978).

In the case at bar, it was error for the court below to, in effect, charge itself during the discussion before the. entry of the non-suit, that the defect must be “unreasonably dangerous”, when it could not have charged the jury so. In its opinion the court below did indeed reveal the weakness of the expert testimony but went no further. It did not consider whether the unrefuted lay testimony was sufficient to raise a jury question.

That testimony, from a Heilman partner and the tractor operator; established that the tractor in issue could not be connected to a commonly used spraying attachment requiring application of power from the tractor through the PTO while the master shield was in place; that John Deere tractors of a similar vintage were designed with a secondary safety device in the form of a flipper shield which rendered the PTO inoperable when it was in place; and that tractors manufactured by International have a similar attachment permitting PTO power with the master shield in place while using a manure spreader. There was, then, evidence that the tractor in issue left International’s control lacking elements (i.e., adaptability to use of PTO with safety and inoperability when unsafe) necessary to make it safe for its intended use or possessing a feature that rendered it unsafe for its intended use, within the meaning of Azzarello, supra. That evidence was not, of course, conclusive, but it did raise a question for the jury’s decision. Under the plaintiffs’ averments recovery would be justified. It was for the jury to determine if the facts supported the averments. Azzarello, supra. Upon a new trial if there is testimony as to alternatives to the manufacturer’s safety shield design, that theory of defect should also be considered by the jury.

Negligence

The compulsory non-suit in favor of International Harvester was entered immediately after the plaintiffs rested their case. The trial court informed the jury that International had been removed “as a party to this suit and is no longer to be considered by you as a party-defendant” and the matter went forward against defendants Heilman alone. The jury found against the plaintiffs.

In their motion for a new trial the plaintiffs complained that they were prejudiced by the court’s granting a compulsory non-suit in their case against International. The court below labeled plaintiff’s argument as labored; a unique theory not supported by authority (R. 574a).

It was error, and a grave breach of established trial practice, to enter the compulsory non-suit before all testimony had been presented. The proper practice before entering a non-suit in favor of one of two or more defendants, is to allow the other defendants to present their testimony on the question of the liability of each and all of them. As Chief Justice Horace Stern observed in Frank v. W.S. Losier & Co., Inc., 361 Pa. 272, 275-6, 64 A.2d 829 (1949), while it is true that Pa.R.C.P. 2232(d) provides that when a plaintiff joins two or more defendants and the evidence does not justify a recovery against all, the court shall enter a non-suit or direct a verdict in favor of any defendant not shown to be liable either jointly, severally or separately, this provision was merely intended to abrogate the strict common law rule that where a joint liability of defendants was pleaded the plaintiff was obliged to recover against all or none; it certainly was not intended to deprive a defendant of the right to present testimony before a co-defendant should be relieved from liability by a non-suit in his favor. In Loch v. Confair, 372 Pa. 212, 218, 93 A.2d 451 (1953), it was stated that each defendant should be given the opportunity as well as the duty of establishing that it was not guilty of any negligence that resulted in the accident.

Although these authorities are couched in terms of the rights and duties of defendants inter se and the prejudice that can result to one defendant by prematurely entering a compulsory non-suit as to another, it is evident that premature entry of a non-suit can also prejudice a plaintiff, particularly when the premature entry of the non-suit was erroneous in the first instance. As we recently stated in Mazza v. Mattiace, 284 Pa. Super. 273, 277-78, 425 A.2d 809, 811 (1981):

We think this principle as to the grant of non-suits in multi-defendant litigation is sound and reaffirm its applicability. In support pf this reaffirmation we note that a nonsuit is an extraordinary intervention into the jury process and as such is properly entered only in a clear case. Hader v. Coplay Cement Manufacturing Company, 410 Pa. 139, 189 A.2d 271 (1963); Frangis v. Duquesne Light Company, 232 Pa.Super. 420, 335 A.2d 796 (1975). A non-suit may not be granted unless the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). Further, experience has shown that in multi-defendant litigation the evidence of one defendant may inculpate another the same as if introduced as part of plaintiff’s case. See Smith v. Lit Brothers, supra [174 Pa.Super. 102, 100 A.2d 390]; Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936). If a nonsuit has already been granted as to that defendant there is a serious risk that the case will not be disposed of on its merits. Finally, if the whole record is devoid of evidence from which a jury might find a defendant liable there is time enough to eliminate that defendant by granting an appropriate motion for a directed verdict.

Our removal of the compulsory non-suit here as to International without granting a new trial as to the negligence of the defendants Heilman would unfairly deprive International of the opportunity to defend on the basis, for example, that defendants Heilman were wholly responsible for the injury to Douglas in that they had removed the master shield.

Accordingly, it is ordered that the compulsory non-suit entered in favor of defendant International be removed and that a new trial be afforded to plaintiffs as to both defendants on all issues.

VAN der VOORT, J., concurs in result.

      . The Court: We recognize that as dangerous. But the question begged is: Is it unreasonably dangerous?
      Mr. Ehrgood: That’s for the jury to decide.
      The Court: Not necessarily. (R. 447a, also Sec. R. 476a).


text:
    452 A.2d 1379
    COMMONWEALTH of Pennsylvania, v. Arthur RICHARDSON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1982.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Michael J. Eagen, Scranton, for appellant.
    Ernest D. Preate, District Attorney, Scranton, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   CAVANAUGH, Judge:

Appellant was found guilty of homicide by vehicle and driving while under the influence following a trial before the Honorable S. John Cottone of Lackawanna County, sitting without a jury. On appeal, appellant alleges several errors by the lower court. For the following reasons, we reverse the appellant’s conviction for homicide by vehicle, and affirm his conviction for driving while under the influence.

On April 25, 1980, at approximately 12:10 a.m., appellant was driving his vehicle with two passengers, Ellwyn Beeman and Clarence Jennings, on the North Main Avenue entrance of the northbound Scranton expressway in Scranton, Pennsylvania. Due to construction which closed the right lane of the northbound expressway at that time, entering traffic was directed to come to a stop (as posted), before entering the left lane of the normally two northbound lanes. But appellant instead drove his vehicle to the right of a posted stop sign approximately 258 feet along the expressway’s shoulder before colliding with a temporary concrete abutment. Officer Robert Williams testified that Mr. Beeman was killed in the accident. Appellant was taken to Scranton State Hospital for treatment of injuries sustained in the accident and a blood test was taken to determine his bJood alcohol content. The test results indicate that appellant’s blood alcohol level was 199.1 milligrams (approximately .20 percent), well above the .level for legal presumption that the appellant was under the influence of alcohol. 75 Pa.C.S.A. § 1547(d). Appellant was later charged with homicide by vehicle and driving while under the influence. Following appellant’s conviction, the lower court denied post verdict motions and this appeal followed.

Appellant argues that the lower court erred in admitting the results of the blood alcohol test on April 25,1980 because (1) the witness was not qualified to attest to the scientific reliability of the test and its proper administration; (2) her testimony failed to prove that the machine was approved by the Department of Health as required by 75 Pa.C.S.A. § 1547(c); (3) the Commonwealth failed to establish the chain of custody necessary for admission of evidence of this type; (4) the Commonwealth failed to establish that the blood test was ordered by a doctor for medical reasons and not performed at the request of an officer; and (5) had the appellant had the Commonwealth’s answer to the application to suppress (which appellant erroneously perceives to be a Commonwealth admission that the blood test was taken at police request), the suppression hearing would have centered upon voluntary consent. However, we need not address these issues because we find the evidence, without the results of the blood test, to be sufficient to find the appellant guilty of driving while under the influence. Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981).

The evidence, read in a light most favorable to the verdict winner, reveals that about 12:10 a.m. on April 25, 1980, the appellant had driven his 1977 AMC Javelin up the North Main Street entrance of the Scranton Expressway, traversing the expressway shoulder before crashing into a temporary concrete abutment used during highway construction. Officer Williams, responding to an emergency call, arrived on the accident scene not more than seven minutes later. Officer Williams looked into the vehicle in which appellant was sitting in the driver’s position before assisting medical personnel in removing the three occupants from the vehicle. The passengers at that time were at best semi-conscious. Officer Williams stated that he immediately recognized a strong odor of alcohol on appellant’s breath as he removed appellant from the vehicle. He also found seven empty beer bottles in the vehicle. Accordingly, we find the evidence to be sufficient to find the appellant guilty of driving under the influence. Commonwealth v. Slout, supra.

Finally, appellant argues that the Commonwealth failed to prove that the death of Ellwyn Beeman occurred as a result of the defendant’s conduct. We agree.

Under the 1977 Vehicle Code, homicide by vehicle occurs when:

§ 3732. Homicide by vehicle
Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death. 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977.

The Commonwealth must only establish three facts to prove homicide by vehicle:

1. ) Defendant deviated from the standard of care established by the underlying Vehicle Code provision [or municipal Ordinance].
a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle Code provision [or municipal ordinance].
2. ) A death occurred.
b) The death was, at the very least, a probable consequence of the defendant’s violation of the underlying Vehicle Code provision [or municipal ordinance].

Commonwealth v. Koch, 297 Pa.Super. 350, 356, 443 A.2d 1157, 1160 (1982). The Commonwealth need not prove that the defendant acted with either reckless disregard or gross negligence, but only that “defendant ‘knew or should have known, he engaged in the conduct claimed to be in violation of that section.’ ” Commonwealth v. Koch, supra.

Our Supreme Court has held that the legislature, in enacting this section, intended to “expand the scope of criminal liability for violations of the Vehicle Code causing death.” Commonwealth v. Field, 490 Pa. 519, 525 n. 4, 417 A.2d 160, 163 n. 4 (1980). “This legislative ‘expansion’ was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation,” Commonwealth v. Houtz, 496 Pa. 345, 348, 437 A.2d 385, 387 (1981). As in involuntary manslaughter, the Commonwealth must establish that the victim died, and that his death was a result of injuries sustained in the incident or of a chain of events stemming from the incident in order to prove homicide by vehicle. Unlike involuntary manslaughter, however, the Commonwealth need then only show that “the actor ‘knew or should have known,’ that he engaged in the conduct claimed to be in violation of the Vehicle Code and that at the very least, death was a ‘probable consequence’ of the conduct.” Id. Thus, although the homicide by vehicle statute lessens the Commonwealth’s burden of proving that the defendant’s illegal conduct was the legal cause of the victim’s death, the Commonwealth must still prove beyond a reasonable doubt that death occurred as a result of injuries received in the incident or of a chain of events stemming from the incident. If the Commonwealth fails to prove any one of the elements, it has not established homicide by vehicle.

Commonwealth v. Baker, 299 Pa.Super. 241, 247, 445 A.2d 544, 547 (1982) (emphasis added).

We find that the Commonwealth has failed to prove beyond a reasonable doubt that the victim died as a result of injuries sustained in the accident or of a chain of events stemming from the accident. The Commonwealth called three witnesses: William Sweeney, Lackawanna County Coroner; Officer Robert Williams of the Scranton Police, and Donna Dohman, a Scranton State Hospital laboratory technician.

Mr. Sweeney testified that he had been the County Coroner since 1972. When asked whether his office had performed any duties with regard to Ellwyn Beeman, Sweeney stated it had. Defense counsel’s objection to Mr. Sweeney reading from his notes absent a proper foundation was then overruled.

The direct examination of Mr. Sweeney concluded as follows:

By Mr. Krushinsky (assistant district attorney):
Q. Please continue, Coroner?
A. I received a call on the morning of April 25th from the County Medical Center that they had brought in a Mr. Beeman and he was dead on arrival. The following day in the morning of that same date, an autopsy was conducted and cause of death issued as a massive internal hemorrhage due to—
By Mr. Eagen (defense counsel):
I object, your Honor, to Mr. Sweeney testifying as to a cause of death unless it is established he can form an opinion as to the cause of death in this case.
The Court:
Have a better foundation laid for that.
By Mr. Krushinsky:
Q. Can you tell me whether or not a death certificate in this case has been issued?
A. Yes, it has been.
Q. Do you have a copy of the death certificate?
A. I have a copy of it here.
Q. May I see the copy, sir? Does your signature appear on the death certificate?
A. Yes it does.
Q. Can you tell me, again, what the cause of death was?
By Mr. Eagen:
I object your Honor, for the same reason: he has not established a foundation for Mr. Sweeney’s qualifications to give a cause of death in this matter.
The Court:
The objection is sustained; the Coroner should testify as to the process that led up to the cause of death.
By Mr. Krushinsky:
Q. Did you personally perform the autopsy?
A. An autopsy was performed at my direction at the Community Medical Center on the above date; following the autopsy—I was present for it—I conferred with the pathologist and we arrived at a cause of death, which I did sign the death certificate to that effect; it is signed by myself on the date, I believe, the 26th of April.
Q. No further questions.

N.T., November 21, 1980, p. 4-5.

The cross-examination of Mr. Sweeney was limited to as follows:

By Mr. Eagen:
Q. Mr. Sweeney, someone other than yourself established the cause of death?
A. The cause of death was established at an autopsy which was done by a pathologist at my direction; I was present for it.
Q. You didn’t establish it, the pathologist did, is that right?
A. Exactly.
By Mr. Eagan: No further questions.

N.T., November 21, 1980, p. 5.

Officer Williams testified that the appellant was in the driver’s position of the vehicle in which Ellwyn Beeman was a passenger and “was killed in the accident.” N.T., November 21, 1980, p. 8. Ms. Dohman’s testimony was concerned only with the blood test of the appellant and its administration. No other testimony regarding the cause of death was admitted.

In Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1979), our Supreme Court held that the Commonwealth had failed to prove beyond a reasonable doubt that a victim’s death was caused by a criminal act because the Coroner could not state his opinion as to the cause of death with a reasonable degree of certainty. See also Commonwealth v. Kominsky, 240 Pa.Super. 532, 361 A.2d 794 (1976). Instantly, the Commonwealth failed to prove that Ellwyn Beeman died due to injuries sustained in the accident because it failed to qualify the Lackawanna County Coroner William Sweeney so that he could state his opinion as to the cause of death or allow the death certificate to be admitted into evidence. We need not reach the question of whether Mr. Sweeney (Lackawanna County Coroner) could have been qualified to state the cause of death of Ellwyn Beeman. Commonwealth v. Baker, supra, (lay coroner).

Absent an indisputable cause of death, for example, to state an obvious case, decapitation, the testimony of Officer Williams is insufficient to prove that the accident was the cause of death. Commonwealth v. Baker, supra. The Commonwealth has failed to meet its burden of proof. Therefore, we must reverse appellant’s conviction for homicide by vehicle.

Judgment of sentence for homicide by vehicle reversed; judgment of sentence for driving under the influence is affirmed.

      . 75 Pa.C.S.A. § 3732.

      . 75 Pa.C.S.A. § 3731.

      . Due to our disposition of this case, we need not comment upon appellant’s constitutional challenge of the homicide by vehicle statute, 75 Pa.C.S.A. § 3732, or that the Commonwealth is required to show a gross deviation from the normal standard of care to prove homicide by vehicle. See Commonwealth v. Fields, 490 Pa. 519, 417 A.2d 160, supra; Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157, supra; Commonwealth v. Hartzell, 282 Pa.Super. 549, 423 A.2d 381 (1981).

      . Moreover, in Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), our Supreme Court held that the use of an autopsy report to establish the cause of death in a murder prosecution absent an opportunity for the defendant to confront and cross-examine the medical examiner who performed the autopsy was an impermissible violation of an accused’s right to confront and cross-examine witnesses. Pa. Const., art. I, § 9. Instantly, Mr. Sweeney, a lay coroner, admitted that the autopsy of Ellwyn Beeman was performed by a pathologist, not the witness himself. If the use of a qualified pathologist other than the one who performed the autopsy was impermissible, the propriety of a lay coroner testifying as to the cause of death is, at a minimum, constitutionally questionable.


author: McEWEN, Judge:

text:
    452 A.2d 1384
    Caroline ACE, Appellant, v. ARGONAUT INSURANCE COMPANY, William A. Black, Jr., M.D., Homayoon Froozan, M.D., Severino Y. Piczon, M.D., Northeastern Neurological Associates, Inc., John R. Lenahan, Sr., William J. Dempsey, Joseph A. Murphy, John R. Lenahan, Jr., Lenahan, Dempsey and Murphy, P.C.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed Nov. 30, 1982.
    Petition for Allowance of Appeal Denied March 18, 1983.

      Roger Mattes, Scranton, for appellant.
    Allan Molotsky, Philadelphia, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here consider an appeal from an order of the Common Pleas Court of Lackawanna County which sustained the appellees’ preliminary objections in the nature of a demurrer to the suit instituted by appellant for malicious use of process and abuse of process. We affirm.

This action is based on a prior suit, commenced in 1975, in which the appellees had joined appellant, a licensed practical nurse, as a third party defendant in a wrongful death and survival action which had been brought against appellees Black, Froozan and Piczon, individually and trading as Neurological Associates. In that medical malpractice action a summary judgment was granted, in favor of appellant in February, 1980.

Appellant then filed a complaint in trespass on April 3, 1980 and an amended complaint on November 17, 1980, in which she sought damages for malicious use of process and abuse of process. Appellees filed preliminary objections in the nature of a demurrer in which they alleged that no cause of action was stated for either malicious use of process or abuse of process since appellant had not alleged an interference with either her person or property. We note that our study of this issue is subject to the principle that “a party presenting a preliminary objection in the nature of a demurrer admits, for purposes of the motion, all material and relevant facts that are pleaded and every reasonable inference that may be deducible therefrom. The same standard is applied on appeal from a trial court’s order sustaining a demurrer.” Triester v. 191 Tenants Assoc., 272 Pa.Super. 271, 276, 415 A.2d 698, 701 (1979) (citations omitted).

Appellant presents two issues for our review: (1) whether a plaintiff must prove an arrest or seizure of property in order to establish a cause of action for abuse of process; and (2) whether the appellant pleaded sufficient facts to meet the requirement of an arrest or seizure of property. Our Supreme Court in Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 348-49, 32 A.2d 413, 415 (1943), articulated the distinction between these two causes of action:

Decisions in this state and in other jurisdictions have drawn a distinction between actions for abuse of legal process and those for malicious prosecution, which, when founded on civil prosecutions, are usually described as malicious use of civil process. The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it: Mayer v. Walter, 64 Pa. 283 [1870]; annotation, 80 A.L.R. 581. ‘An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. * * * On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated * * * other than its proper effect and execution.’ Mayer v. Walter, supra, 64 Pa. 285; Johnson v. Land Title B. & T. Co., 329 Pa. 241, 242, 198 A. 23 [1938]. Malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of a process after it is issued. All the analogies of an action for a malicious arrest belong to an action for malicious use of civil process.

We first address the contention of appellant that, unlike an action for malicious use of process, a suit brought for abuse of process does not require the plaintiff to prove an arrest or seizure of property. The law of this Commonwealth, prior to the passage of the Act of December 19,1980, P.L. 1296, No. 232 (codified at- 42 Pa.C.S.A. §§ 8351-54), required that a plaintiff prove an arrest of the person or seizure of property in order to state a cause of action for either malicious use of process or abuse of process. See Publix Drug Co. v. Breyer Ice Cream Co., supra; Garland v. Wilson, 289 Pa. 272, 137 A. 266 (1927). That requirement was abrogated in part by the enactment in 1980 of 42 Pa.C.S.A. § 8351 which eliminates the element of arrest or seizure of the person or property in actions for malicious use of civil proceedings. That statute does not eliminate as a condition precedent for abuse of process the requirement that there have been an arrest or a seizure for abuse of process; nor does the statute eliminate that requirement for the malicious use of process that is alleged to have occurred in the instant case, since this cause of action accrued in 1975, more than five years prior to the effective date of the Act which eliminated the requirement. Thus, we conclude that in this suit an arrest or seizure of property is a required element for both the claim of malicious use of process, as well as the claim of abuse of process.

We must determine whether sufficient facts were pleaded in the complaint to state a cause of action for either abuse of process or malicious use of process. Appellant alleged in her amended complaint the following facts:

Plaintiffs person has been summoned into the jurisdiction of this court by the service of this court’s process by the Wyoming County Sheriff’s office; her liberty curtailed by being required to attend to discovery procedures in Lackawanna County as well as being required to travel to Lackawanna County on numerous occasions.
Plaintiff’s property, i.e. her good name and professional reputation was seized by the defendants in their assertion of her malpractice from such prestigious, professional sources.
Also, in the interim, Plaintiff’s property, i.e., her employment rights were seized by her being terminated at two different places of employment because of the unbased allegations of the defendants.
Also, in the interim, the Plaintiff’s property rights in her estate were seized by the necessity of her incurring $3,612.62 in legal expenses.

In order to determine whether particular facts establish a seizure of property, it is helpful to look at the rationale for the requirement. Our court in Triester v. 191 Tenants Assoc., supra, 272 Pa.Super. at 280, 415 A.2d at 703-704, discussed this rationale:

Such a requirement was established in Kramer v. Stock, 10 Watts [(Pa.) ] 115 (1840), and has remained an essential element of the action in this Commonwealth. See, e.g., DeLeo v. Munley, 261 Pa.Super. 90, 395 A.2d 957 (1978); Garcia v. Wall & Ochs, Inc., 256 Pa.Super. 74, 389 A.2d 607 (1978). The rationales advanced for this requirement have been numerous. In Garcia v. Wall & Ochs, Inc., supra, this court stated that the rule was necessary to prevent parties to civil actions from being inhibited in presenting their claims. In Mayer v. Walter, 64 Pa. 283 (1870), it was noted that a plaintiff who brings a frivolous suit is sufficiently punished by being forced to pay the costs of the suit. But see Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 Yale L.J. 1218, 1227 (1979). Finally, in Muldoon v. Rickey, 103 Pa. 110, 113 (1883), the Supreme Court, in discussing the burden of defending a frivolous suit, observed that ‘[a]ll are troublesome, expensive and often ruinous, and if for such damage the action of the case could be maintained, there would be no end of litigation, for the conclusion of one suit would be but the beginning of another. It has, therefore, been wisely determined that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie.’ See also Norcross v. Otis Bros. & Co., 152 Pa. 481, 25 A. 575 (1893); Eberly v. Rupp, 90 Pa. 259 (1879).

With this rationale in mind, we must determine whether the Common Pleas Court properly determined that the deprivations and losses alleged by the appellant were insufficient to establish a claim for malicious use of process or abuse of process. Our distinguished colleague, Judge Gwilym A. Price, Jr., in the Triester case, supra, 272 Pa.Super. at 281,415 A.2d at 703, provided guidance for our inquiry when he opined:

In determining what is a sufficient seizure for purposes of an action for malicious use of process, it is necessary to distinguish between those losses that result from a direct seizure arising from the suit, and those that are mere indirect or incidental losses that may be associated with any legal proceeding.

The allegation of appellant that her liberty was curtailed and that she incurred costs in defending the suit are not such losses as constitute a deprivation of property. Rather, as the eminent Judge J. Sydney Hoffman declared, such consequences are “an often unavoidable burden on litigants and cannot be construed as the kind of immediate seizure or interference with the person and property contemplated by Pennsylvania case law.” Garcia v. Wall & Ochs, Inc., 256 Pa.Super. 74, 80 n. 6, 389 A.2d 607, 610 n. 6 (1978); citing Publix Drug Co. v. Breyer Ice Cream Co., supra.

We further note that no deprivation of property was alleged in the averments relating to interference with the good name and professional reputation of appellant. This court has stated that injury to reputation is “the kind of secondary [consequence] which the seizure requirement was designed to make non-compensable.” Garcia v. Wall & Ochs, Inc., supra, 256 Pa.Super. at 80-81 n. 6, 389 A.2d at 610 n. 6; Citing Muldoon v. Rickey, 103 Pa. 110 (1883); Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969). And while a wrongful shadow upon reputation inflicts grave harm upon the dignity of the individual, Garcia reiterates that the requirement of “seizure of property” will not be extended by interpretation to include other, even more harmful, consequences of malicious use or abuse.

Nor is there authority for the proposition urged by appellant that the loss of employment is a “seizure of property” in a malicious use or abuse case. The loss of employment follows upon and flows from the damaged reputation. Since the more direct and immediate harm of a damaged reputation does not meet the seizure requirement, an even further consequence of that very harm, the loss of employment due to the damaged reputation, may not be considered a seizure.

We are not unmindful of the considerable unfavorable consequences of malicious use and abuse behavior. However, the courts long ago concluded that it was the more urgent and beneficial policy to eliminate any factor that might inhibit citizens from reliance upon the law and its courts to resolve disputes. The legislature in 1980 reflected certain misgivings concerning that policy and somewhat eased, as we have seen, the seizure requirement but that legislation was not sufficiently timely to benefit appellant.

The order of the distinguished Lackawanna County Common Pleas Court Judge James M. Munley is affirmed.

      . § 8351 provides as follows:
      Wrongful use of civil proceedings
      (a) Elements of action.—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
      (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
      (2) The proceedings have terminated in favor of the person against whom they are brought.
      (b) Arrest or seizure of person or property not required.—The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant -to this sub-chapter. (emphasis added). 1980, Dec. 19, P.L. 1296, No. 232, § 1, effective in 60 days.

      . Sheridan v. Fox, 531 F.Supp. 151 (E.D.Pa.1982).

      . Section 2 of the Act of December, 1980, P.L. 1296, No. 232 provides that said act, “shall take effect in 60 days and shall be applicable to causes of action accruing thereafter.” The cause of action in the instant case accrued prior to December 19, 1980.


author: MONTEMURO, Judge:

text:
    452 A.2d 1388
    Eva TUBNER, Administratrix of the Estate of Jerry Amey, Deceased, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1981.
    Filed Nov. 30, 1982.

      Charles J. Duffy, Jr., Pittsburgh, for appellant.
    Mark B. Aronson, Kenneth W. Behrend, Pittsburgh, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

The instant appeal concerns a question of wage loss benefits under the No-Fault Motor Vehicle Insurance Act. 40 P.S. § 1009.101 et seq.

The uncontested facts of the case are as follows:

Jerry Amey, a recent high school graduate, was seriously injured in a motor vehicle accident on October 3, 1977. He remained unconscious for months. On March 20, 1978, his mother, appellee herein, filed application in his name for basic loss benefits, wage benefits being one part of the demand.

On April 3, 1978, appellant insurance company acknowledged the right of the comatose victim to wage loss benefits. On May 17, 1978 the victim died. On May 25, 1978 appellee was appointed administratrix of her son’s estate, and on June 15, 1978 she received $2,643.84 for wage loss benefits from appellant. This sum represented the amount owing to the deceased from the date of the accident to the date of his death. Appellant, however, has refused to issue further benefits up to the maximum of $15,000 which appellee seeks under the policy terms and the Act.

Appellee filed a Motion for Summary Judgment on the pleadings on February 11, 1980. Thereafter the parties stipulated to continue any argument on the matter until the case of Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) should be decided by the Supreme Court.

In September of 1980, the Supreme Court decision in Heffner was published. That case rejected an argument that “survivor’s loss benefits” and “work loss benefits” overlapped “in that each includes that portion of the deceased’s income as would have been contributed to support his family and dependents” and thus would represent a double recovery if both were permitted to the widow in that case. The companion case, argued with Heffner and bearing the same citation, Pontius v. United Fidelity and Guaranty Co., also concerned benefits for a spouse of a deceased victim; however, in that case the bereaved husband sued in the capacity of administrator of the estate. The Superior Court opinion in the Pontius matter was unreported and was based solely upon the Heffner opinion. The Supreme Court treatment of Pontius was also sketchy. Sub silencio, however, the issue of whether any distinction should be made between recovery for a spouse directly or as executor of an estate was settled: either way, the spouse recovered.

Using Heffner, supra as its guide, on December 22, 1980 the lower court issued an order granting summary judgment in the instant case and awarded the bereaved mother-administratrix the sum of $12,356.16. This represented the maximum wage payment under the Act, less the sum of $2,643.84 already paid and also less 15% for tax savings.

The appellant appealed on three grounds: (1) material issues of fact were in dispute, making summary judgment inappropriate; (2) a surviving parent must prove dependency upon the deceased in order to recover; (3) an estate is not a proper claimant for work loss benefits. We will consider these arguments in reverse order.

The case of Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (filed 1982) stated as a holding the result already apparent in the Heffner-Pontius outcome:

We hold today that the estate of a deceased victim is entitled to recover work loss benefits under the No-Fault Act. 301 Pa.Superior Ct. 354, 447 A.2d at 1004.

Therefore, appellant in the instant case cannot now dispute the lower court’s decision to award a sum to the estate of Jerry Amey, an estate being a proper claimant.

The issue of whether a parent (as distinguished from a spouse) must prove “dependency” before being eligible for recovery of a decendent’s wage loss has also now been settled. The case of Chesler v. Government Employees Insurance, 302 Pa.Super. 356, 448 A.2d 1080 (1982), companion case to Freeze, supra, has stated as follows.

We hold today that the word “dependent” contained in the definition of “survivor” in Section 103 of the No-Fault Act does not modify the entire subsection, i.e. the words “child, parent, brother, sister” but was intended by the General Assembly to modify only the word preceeding it—“relative.” (302 Pa.Superior Ct. at 365, 448 A.2d at 1085)

The mother of the decedent in Chesler was not dependent upon her son, but his estate, of which she was administratrix, was eligible for benefits. That situation is identical to the present case: this mother is also administratrix of her decedent son’s estate, and the estate is a proper recipient of the funds.

Appellant also argues that material issues of fact are in dispute and that summary judgment was thus improper. One issue raised is the lack of proof in the record of dependency of the decedent’s mother. However, as seen supra, the issue has been settled by the Freeze court: the status of “parent”, like the status of “spouse” is sufficient to support recovery, and dependency need not be proved.

Appellants also argue that material issues of fact exist as to the formula that should apply to the calculation of benefits received. This argument once again attempts to distinguish “work loss” from “survivor’s loss”, but approaches the question as if it were factual rather than legal. In fact, however, the issue has been settled under the holding of Heffner, reviewed supra. The Supreme Court has already determined that recovery calculated as a surviv- or’s loss and recovery calculated as work loss are distinct, and are not “double recovery.” Qualified survivors are entitled to both. Appellant here asked for and received work loss benefits calculated from exactly the formula used by appellees to calculate Jerry Amey’s work loss prior to his death. No issue of material fact exists, and therefore, summary judgment on the undisputed facts of record is proper.

Order affirmed.


author: PER CURIAM:

text:
    452 A.2d 1390
    Richard MEDICUS t/a Karrosseris Coach Work, Appellant, v. UPPER MERION TOWNSHIP.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1982.
    Filed Nov. 30, 1982.
    William A. Jones, Norristown, for appellant.

      Thomas J. Finarelli, Philadelphia, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   PER CURIAM:

This appeal is from an order granting appellee’s motion for judgment on the pleadings. It will be transferred to the Commonwealth Court.

Appellant argues that we should apply portions of the “Political Subdivision Tort Claims Act,” 53 P.S. §§ 5311.-201-02, now 42 Pa.C.S.A. §§ 8541-42, concerning governmental immunity and exceptions to such immunity. Appellant also argues that we should construe “water culverts” and “storm drains” as within the meaning of “facilities of sewer systems” and “facilities of water systems,” as these two latter phrases are used in § 5311.202.

We think both of these related issues are within the jurisdiction of the Commonwealth Court, 42 Pa.C.S.A. § 762(a)(4), 42 Pa.C.S.A. §§ 8501, 8541, 8542(3) & (5), and, if only for the sake of uniformity in decision, should be heard there.

This appeal is transferred to the Commonwealth Court.


author: BECK, Judge:

text:
    453 A.2d 1
    COMMONWEALTH of Pennsylvania v. Robert McKNIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Oct. 15, 1982.
    Reargument Denied Dec. 27, 1982.
    Petition for Allowance of Appeal Denied May 4, 1983.

      Marc Alan Krefetz, Philadelphia, for appellant.

      Nancy Dena Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

Appellant was convicted by a jury of robbery and criminal conspiracy. His nunc pro tunc post-verdict motions were argued and denied. Thereafter he was sentenced to incarceration of from eight to sixteen years on the robbery conviction and from one to two years on the criminal conspiracy conviction; said sentences to run consecutively.

The charges resulted from an August 21, 1979 robbery of a Northeast Philadelphia bar. Two men wearing stockings over their heads entered through the front door of the bar; one was carrying a shotgun and the other a pistol. Notes of Testimony (“N.T.”) 9/17/80 at 32. A third man entered through the rear door. He also wore a stocking over his head and carried a pistol. Id. They ordered the people in the bar to lie on the floor and threatened to kill them. Id. at 32-34. After taking money and personal possessions from the patrons and employees, the robbers ordered them to enter the bathroom, and they left. Id. at 34-36. At trial none of the people in the bar was able to supply a description of the robbers. The manager who was tending bar at the time of the robbery testified at trial that he was unable to see the faces of any of the robbers because of the stockings pulled over their heads. Id. at 35. He stated that he was only able to ascertain that they were black men, but he was unable to discern their features. Id. at 35, 38.

The only testimony linking appellant and two co-defendants, Michael Forrest and Clifton Fruster, to the crime was provided by Robert Duld who stated that he was driving home from work when he saw three men backing out of the bar and pulling off their masks. Id. at 45-47. He stated that one was carrying a shotgun. Id. at 46. He testified that it was broad daylight and that he stopped his car when he saw them leaving the bar. Id. at 47. But it was clear from his testimony that his opportunity for observation was not ideal. He saw them from behind and at a distance of approximately twenty feet. After exiting the bar, the three men proceeded hurriedly in the opposite direction from the witness. He stated that he never observed them from a distance of any less than twenty feet, and he never saw more than a profile of any of the three. Id. at 65-67.

Appellant correctly notes that trial counsel failed to request an instruction concerning identification testimony and that the trial court failed to instruct the jury concerning such testimony. It is clear that trial counsel failed to preserve the issue of whether the trial court erred in failing to instruct the jury on identification testimony. The question we face then is whether this omission to preserve that issue amounted to ineffective assistance of counsel. Our standard for evaluating such claims is well-settled:

In considering appellant’s claim of ineffective counsel, we are governed by Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel’s stewardship in light of available alternatives. The inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s actions had a reasonable basis designed to effectuate the client’s interests. The test is not whether it appears on hindsight that another course of action would have been more reasonable. Further, counsel is not ineffective in failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981).

We therefore evaluate the foregone claim to see whether it bore arguable merit. If it did, we must ascertain whether counsel had a reasonable basis for foregoing that claim. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

The Commonwealth argues that appellant’s foregone claim was meritless because under Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 689 (1954), the requested instruction “is required where a witness has equivocated in his identification or has previously failed to identify a defendant.” Commonwealth’s brief at 11. In so discussing that case, the Commonwealth omits the primary prong of the Kloiber test for when the court is required to instruct the jury to receive identification testimony with caution: “where the witness is not in a position to clearly observe the [robbers.]” Id., 378 Pa. at 424, 106 A.2d at 826-827. Of course, “[w]here the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution[.]” Id., 378 Pa. at 424, 106 A.2d at 826.

We are convinced by our foregoing review of Mr. Duld’s testimony concerning his observation at the robbery scene, that his opportunity positively to identify the three men was far from optimal.

It is true, as the Commonwealth asserts, that a central focus of the defense was that Duld’s testimony was unbelievable, and that in fact Duld fabricated his account in order to maliciously implicate appellant and his co-defendants because of ill-will toward them; ill-will that could have culminated in the shooting by Duld of co-defendant Forrest and the decision by Duld to frame them for a crime they did not commit.

It is equally clear, however, that a second focus of the defense was to point out the poor opportunity that Duld had to observe the three men leaving the bar.

It is well-established that where there is evidence of record upon which a jury could find that the opportunity for positive identification was not good, a defendant is entitled to a Kloiber instruction. E.g., Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974); Commonwealth v. Johnson, 433 Pa. 34, 248 A.2d 840 (1969); Commonwealth v. Boone, 286 Pa.Super. 384, 428 A.2d 1382 (1981).

We find that appellant’s trial counsel could have had no reasonable basis for failing to request an instruction that Mr. Duld’s identification testimony should be evaluated with caution. If, as the Commonwealth suggests, he neglected to do so because he chose to rely on a theory that the whole story was fabricated out of malice toward the defendants, we find that decision to have been unreasonable. Appellant was clearly not required to choose one theory over the other. There was evidence of record demonstrating Duld’s poor opportunity to observe. Failing to request a cautionary instruction, therefore, had no reasonable basis.

Judgment of sentence reversed and new trial granted.

      . We find it curious that although Duld testified at trial that he recognized the three men and knew the nicknames of two of them, “Tweety Bird” (appellant herein) and “Jellyfish” (Fruster), he also testified that he failed to supply their names to Officer Martin T. Walsh when he called him the evening of the robbery. N.T. 9/17/80 at 45-48, 132-133.
      Officer Walsh testified that he heard no more from Duld until the 24th, three days after the robbery. On that date, he received two calls from the witness. In the first conversation, the witness stated that he had decided to tell his story to the detectives, although he did not think they would believe it. Later, Officer Walsh received a second call from the witness who stated that he had just shot someone and that the police were waiting outside his house. Id. at 138-139. (In a rather bizarre twist, Duld shot co-defendant Forrest and was taken into custody for the shooting, but he was released and not charged.)

      . Since “[tjhis is the first stage of the proceedings at which trial counsel is no longer representing appellant [,] allegations of his ineffectiveness are properly raised in this direct appeal.” Commonwealth v. Webster, 490 Pa. 322, 325, 416 A.2d 491, 492 (1980). We note that our disposition of this ineffectiveness claim obviates the need to address appellant’s other claims.


author: WIEAND, Judge:

text:
    453 A.2d 4
    Thomas P. GUISLER, Chief Probation Officer v. Paul ALEXANDER and Ida Alexander, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 29, 1982.
    Filed Nov. 30, 1982.

      Paul Alexander, Huntingdon, appellant, in pro. per.
    Stewart L. Kurtz, District Attorney, Huntingdon, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

The appeal in this case is from an order making absolute a rule to show cause why Paul and Ida Alexander should not be held in contempt for failing to pay an order for the support of their son. The order from which the appeal was filed, however, was not a final adjudication of contempt. It merely made absolute a rule to show cause why appellants should not be held in contempt and provided: “A hearing on the issue of the Defendants’ contempt shall be scheduled by the Court Administrator and held accordingly.” The order, on its face, discloses that it is interlocutory and not a final adjudication.

The law in Pennsylvania is settled that in civil contempt proceedings a final adjudication involves a five step, two hearing procedure. These steps include: (1) a rule to show cause why an attachment should not issue; (2) a hearing thereon; (3) a rule absolute; (4) a hearing on the contempt citation; and (5) an adjudication of contempt. See: Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 5-6, 253 A.2d 263, 266 (1969); Commonwealth v. Wright, 287 Pa.Super. 252, 254, 429 A.2d 1196, 1197 (1981); Cahalin v. Goodman, 280 Pa.Super. 228, 233, 421 A.2d 696, 698 (1980); Matter of Elemar, Inc., 44 Pa.Cmwlth. 515, 520, 404 A.2d 734, 737 (1979); Kramer v. Kelly, 265 Pa. Super. 58, 65, 401 A.2d 799, 802 (1979); Joseph Horne Co. v. International Union of Operating Engineers, Local Union No. 95-95A, 250 Pa.Super. 145, 154, 378 A.2d 868, 872 (1977); Crislip v. Harshman, 243 Pa.Super. 349, 352, 365 A.2d 1260, 1261 (1976).

Because appellant has not been held in contempt, and because there is no final order from which an appeal can be taken, this Court is without jurisdiction to hear the instant appeal. It cannot hear an appeal from an interlocutory order setting the case down for final hearing. Cedar Valley Civic Association v. Schnabel, 239 Pa.Super. 486, 362 A.2d 993 (1976); Commonwealth v. Guardiani, 226 Pa.Super. 435, 310 A.2d 422 (1973). The instant appeal, therefore, must be quashed and jurisdiction relinquished. See and compare: Brodsky v. Philadelphia Athletic Club, Inc., 277 Pa.Super. 549, 552 n. 2, 419 A.2d 1285, 1287 n. 2 (1980); Matter of Elemar, Inc., supra, 44 Pa.Cmwlth. at 520-521, 404 A.2d at 737.

It is so ordered.


text:
    453 A.2d 5
    COMMONWEALTH of Pennsylvania, v. Eddie WARREN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1982.
    Filed Nov. 30, 1982.

      Frank H. Morgan, Ardmore, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

Eddie Warren entered negotiated pleas of guilty to burglary and conspiracy on March 18, 1977. He was sentenced to a term of imprisonment of not less than three nor more than 23 months for burglary, to be followed by a three year period of probation for conspiracy. He filed neither post-sentencing motion nor direct appeal. During the period of his probation, Warren was arrested and charged with robbery and burglary. Following a hearing, his probation was revoked, and he was sentenced to prison for not less than three nor more than ten years. He then filed a P.C.H.A. petition in which he sought to withdraw his original pleas of guilty. In support thereof he alleged that he had received ineffective assistance of counsel because counsel had failed (1) to advise him of his constitutional rights prior to entering pleas of guilty and (2) to object to the fact that the informations contained only a rubber stamp facsimile of the District Attorney’s signature. A hearing was held, and the P.C.H.A. petition was denied on June 3, 1980. This appeal followed.

Appellant’s petition was filed three years after sentence had been imposed. “When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing ... ‘a showing of prejudice on the order of manifest injustice’ ... is required before withdrawal is properly justified.” Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982) (citations omitted). See also: Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Accord: Commonwealth v. May, 485 Pa. 371, 373 n. 2, 402 A.2d 1008, 1009 n. 2 (1979). Manifest injustice requires a showing that “ ‘the plea was involuntary, or was entered without knowledge of the charge.’ ” Commonwealth v. Shaffer, supra, quoting American Bar Association Standards for Criminal Justice, Pleas of Guilty (2d ed. 1980), Standard 14-2.1(b)(ii)(C) relating to Withdrawal of Pleas.

In the instant case, appellant has made no such showing. Although appellant contends that the guilty plea colloquy was defective because the elements of the offense were not recited, his contention is refuted by the record. Appellant’s pleas of guilty were entered simultaneously with pleas of guilty by his co-defendant, Larry Williams. Appellant was present and heard the colloquy conducted with Williams and acknowledged his understanding. The record discloses that the elements of burglary and conspiracy were stated not once, but twice. During the first colloquy, moreover, the right to trial by jury, including the right to remain silent, and also the right of appeal from a conviction and the right to be represented by counsel on appeal were fully explained.

In Commonwealth v. Harris, 286 Pa.Super. 601, 429 A.2d 685 (1981), this Court specifically rejected the argument that separate and complete colloquies must be given to each of two co-defendants entering pleas of guilty at the same time. “The rule that a complete colloquy be given to each defendant, is not an end in itself; rather, it is intended to protect a defendant’s constitutional rights, so that each defendant understands his or her constitutional rights and knowingly and voluntarily waives those rights.” Id., 286 Pa.Superior Ct. at 607, 429 A.2d at 688.

Appellant also contends that the colloquy was inadequate because it did not include advice concerning a right to trial without jury. However, “[t]he right to a non-jury trial is not a constitutionally guaranteed right and has never been a required part of a colloquy in this Commonwealth.” Commonwealth v. Harris, supra, 286 Pa.Superior Ct. at 608, 429 A.2d at 689.

The record demonstrates clearly that appellant’s pleas of guilty to burglary and conspiracy were entered knowingly, intelligently and voluntarily. Thus, counsel was not ineffective, and appellant demonstrated no persuasive reason for permitting him to withdraw his pleas of guilty. Moreover, he has failed to explain in any satisfactory way the delay of three years in filing a petition to withdraw these pleas. Commonwealth v. Shaffer, supra, 498 Pa. at 354, 446 A.2d at 597 (Concurring Opinion by Roberts, J.).

Appellant’s second objection to counsel’s stewardship pertains to a failure to object to informations which bore only a rubber stamp facsimile signature of the District Attorney. “In determining whether counsel was constitutionally ineffective, ‘we examine counsel’s stewardship under the standards as they existed at the time of his actions, and counsel will not be deemed ineffective for failing to predict future developments in the law.’ Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977).” Commonwealth v. Jefferson, 274 Pa.Super. 140, 147, 418 A.2d 335, 338 (1979).

The informations in this case were filed on October 21, 1976. At that time there was no Pennsylvania decision holding that Pa.R.Crim.P. 225(b), which requires that “[t]he information shall be signed by the attorney for the Commonwealth .. .,” precluded the use of a rubber stamp signature by the District Attorney. Only subsequent decisions have held that a rubber stamp facsimile of the District Attorney’s signature is not a proper signature. See: Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981). See also: Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981); Commonwealth v. Dupree, 290 Pa.Super. 202, 434 A.2d 201 (1981); Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980). When counsel for appellant reviewed the instant information for adequacy, he did not then have the benefit of these decisions. His course of conduct must be examined under the standards existing at the time of his action. We will not hold counsel constitutionally ineffective merely because he failed to anticipate later appellate court decisions. To do so would be illogical and unfair, and we do not do so. See: Commonwealth v. Brinton, 303 Pa.Super. 14, 21, 449 A.2d 54, 57-58 (1982).

The order denying appellant’s P.C.H.A. Petition is affirmed.

      . The effect of a rubber stamp facsimile of a District Attorney’s signature has been argued before the Superior Court en banc and is awaiting decision.


text:
    453 A.2d 7
    Marilyn L. CLARK, Administratrix of the Estate of Darrah D. Clark, Deceased, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Occidental Fire & Casualty Company, and Ryder Truck Lines, Inc.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed Nov. 30, 1982.

      John J. Speicher, Reading, for appellant.
    Stephen Gary Welz, Shillington, for Aetna, appellee.
    Kenneth E. Sands, Reading, for Occidental, appellee.
    Edward L. McCandless, Philadelphia, for Ryder, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

Darrah D. Clark was killed as a result of a one vehicle accident involving a tractor-trailer unit which he owned and was operating on the Pennsylvania Turnpike. His widow, Marilyn L. Clark, commenced an action in assumpsit to recover benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act. Named as defendants were Occidental Fire & Casualty Company, which had issued a policy of insurance on Clark’s truck naming Clark as the insured; Aetna Casualty & Surety Company, which provided coverage for a private passenger vehicle owned by Clark; and Ryder Truck Lines, Inc. (hereinafter sometimes referred to as “Ryder”). Ryder was the lessee of the truck being operated by Clark at the time of the fatal accident and “was self-insured for its drivers and motor vehicles under the No-fault Act.” After the pleadings had been closed, Ryder filed a motion for summary judgment and an affidavit reciting that insurance coverage for Clark’s truck had been provided by Clark and that Ryder did not provide coverage for leased vehicles. The trial court granted Ryder’s motion and entered summary judgment in its favor. Marilyn Clark appealed. We affirm.

A summary judgment may be entered where there is no genuine issue as to any material fact and the record, viewed most favorably to the non-moving party, discloses that the moving party is entitled to judgment as a matter of law. Davis v. Pennzoil Co., 438 Pa. 194, 202, 264 A.2d 597, 601 (1970); Nationwide Insurance Co. v. Donegal Mutual Insurance Co., 299 Pa.Super. 205, 208, 445 A.2d 526, 527 (1982); Vend-a-matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 498, 442 A.2d 1158, 1161 (1982); Community Medical Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 244-45, 376 A.2d 247, 249-50 (1977); Dowlin v. Coatesville Area School District, 22 Pa.Cmwlth. 433, 436, 350 A.2d 190, 192 (1975); Pa.R.C.P. 1035. In the instant case there is no dispute regarding the facts. The issue, one of law, is whether primary security under the Pennsylvania No-Fault Motor Vehicle Insurance Act has been assumed by Ryder.

Darrah Clark, appellant’s decedent, had entered a written, one-way lease agreement with Ryder by the terms of which his truck was to be used for the purpose of transporting cargo from Reading, Berks County, to Springfield, Ohio. Ryder was to pay an agreed fee for the use of the tractor and trailer. The lessor, Clark, was to provide a driver and, if the lessor did not drive himself, to pay the driver. The lessor was also to provide and carry insurance acceptable to Ryder. Ryder, in brief, had no cost other than the agreed rental.

Section 104(a) of the No-fault Law, 40 P.S. § 1009.104(a), provides:

(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 ....

Thus, both the No-fault Law and the lease agreement between Ryder and appellant’s decedent required the decedent to provide insurance coverage for the truck which He owned. Ryder, although self-insured, provided coverage for its own employees only while operating vehicles furnished by Ryder.

Appellant argues that her decedent was in the employ of Ryder at the time of the accident and was operating a vehicle which had been leased by and, therefore, provided by Ryder. This argument is specious. Even if appellant’s decedent could be found to be an employee of Ryder, it is an admitted fact that he was the owner of the truck and required by law and by contract to provide the necessary insurance coverage.

Section 204(a) of the No-fault Act, 40 P.S. § 1009.204(a), does not call for a contrary result but supports the judgment in favor of Ryder. This section 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.

Under this section, the applicable security is that found in subsection (2), which provides that where the injury is caused to the insured, the applicable security is that “under which the victim or deceased victim is insured.”

Appellant argues that if she can prove that her decedent was an employee of Ryder, the security for basic loss benefits must come from Ryder. This derives from an incorrect reading of subsection (1). It ignores the language of the section which looks to the employer for security only “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.” It also ignores Section 104 of the Act which requires the owner of the vehicle to provide security for the vehicle.

In the instant case, appellant’s decedent was operating his own tractor trailer, a vehicle which was covered by insuranee which he, himself, had purchased. The source of the vehicle was the decedent lessor. It was not a vehicle furnished by an employer to an employee. It is this fact which distinguishes the instant case from Gradler v. Prudential Property and Casualty Insurance Co., 464 F.Supp. 575 (W.D. Pa.1979), where the vehicle had been furnished by the employee’s employer. Here, even if appellant’s decedent could somehow be found for purposes of respondeat superior to be an employee of Ryder, the fact that he was operating his own vehicle required that the claim for no-fault benefits upon his death be presented to the carrier providing coverage for such vehicle. See: Schimmelbusch v. Royal-Globe Insurance, 247 Pa.Super. 28, 32, 371 A.2d 1021, 1023 (1977). It seems clear, therefore, that appellant cannot succeed in this action against Ryder even if she is able to prove that her decedent was technically a Ryder employee at the time of the accident. The primary security was that provided by the insurance carrier which insured decedent’s vehicle.

The judgment is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq.

      . In reaching this conclusion we have intentionally avoided any discussion regarding a potential claim for workmen’s compensation benefits against Ryder or, if such a claim is allowed, the effect thereof upon appellant’s action for no-fault benefits against the remaining defendants in this action.


text:
    453 A.2d 10
    COMMONWEALTH of Pennsylvania, v. Richard Alan BURTNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1982.
    Filed Nov. 30, 1982.

      Daniel McGee, Public Defender, Bellefonte, for appellant.
    David Edward Grine, District Attorney, Bellefonte, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The appellant, Richard Burtner, entered pleas of guilty to informations charging him with unauthorized use of an automobile and five counts of burglary. He was sentenced to an aggregate term of two and one-half (2y2) to five (5) years imprisonment. On direct appeal, he contends that the lower court abused its discretion by imposing a manifestly excessive sentence and by refusing to consider, during proceedings on a motion to modify the sentence, evidence which he wished to offer regarding deficiencies in the drug and alcohol program of the State Correctional Institution at Camp Hill. Finding appellant’s arguments to be meritless, we affirm the judgment of sentence.

At sentencing on October 5, 1981, appellant requested a continuance to obtain additional evidence pertaining to the Daytop Village Drug Treatment Center as a sentencing alternative to total confinement. This request was granted, and the sentencing hearing was resumed on October 26, 1981. At that time, the court considered appellant’s evidence regarding the programs offered at Daytop Village and Gaudenzia House. It also considered a presentence investigation and particularly appellant’s drug and alcohol problems, prior convictions, and his unsatisfactory prior attempts to achieve rehabilitation. The sentencing judge entered on the record a lengthy and thoughtful statement of the factors considered in formulating the sentence and then imposed a sentence of not less than one (1) nor more than two (2) years imprisonment on the conviction for unauthorized use of an automobile and a consecutive sentence for not less than one and one-half (l1/^) nor more than three (3) years on the burglary convictions, with credit to be given for time served. Appellant was also sentenced to make restitution to the burglary victims and to pay the costs of prosecution.

On November 5, 1981, appellant filed a petition for reconsideration of the sentence. A hearing thereon was held on November 16, 1981. At that time, appellant attempted to present evidence regarding inadequacies in and unavailability of the drug and alcohol treatment program at Camp Hill, the facility at which he was then incarcerated. The court refused to receive such evidence but allowed appellant to make an offer of proof regarding the treatment program at Camp Hill. The court then explained again, in depth and on the record, the reasons for the sentence of imprisonment and the considerations militating against placing appellant in the Gaudenzia House program.

“Our scope of review when confronted by a challenge to the severity of a sentence is well known and has been oft-repeated. Where no statutorily mandated sentence is implicated, trial judges in this Commonwealth are vested with broad discretion in sentencing.” Commonwealth v. Rooney, 296 Pa.Super. 288, 292, 442 A.2d 773, 774 (1982). Accord: Commonwealth v. Mead, 300 Pa.Super. 510, 512-513, 446 A.2d 971, 972-973 (1982); Commonwealth v. Hollerbush, 298 Pa.Super. 397, 400, 444 A.2d 1235, 1240 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 54, 444 A.2d 170, 172 (1982); Commonwealth v. Campolei, 284 Pa.Super. 291, 297, 425 A.2d 818, 821 (1981); Commonwealth v. Michenfelder, 268 Pa.Super. 424, 427, 408 A.2d 860, 862 (1979). “[I]n exercising its discretion the sentencing court must not overlook pertinent facts, disregard the force of evidence or commit an error of law. Nor may it impose a sentence exceeding that prescribed by statute. In addition, the trial court must examine the circumstances of the crime and the individual background of the defendant. For the sentence imposed must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitation needs of the defendant.” Commonwealth v. Edrington, 490 Pa. 251, 255-256, 416 A.2d 455, 457 (1980). Accord: Commonwealth v. Knight, 479 Pa. 209, 212-213, 387 A.2d 1297, 1299 (1978); Commonwealth v. Lee, 278 Pa.Super. 609, 612, 420 A.2d 708, 710 (1980).

A sentence will not be found excessive and will not be disturbed on appeal where, as here, it does not exceed statutory limits and the sentencing colloquy clearly demonstrates that the sentencing court carefully considered all evidence relevant to the determination of a proper sentence. See: Commonwealth v. Kalson, 301 Pa.Super. 31, 446 A.2d 1320 (1982); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. Garrison, 292 Pa.Super. 326, 332-333, 437 A.2d 407, 410 (1981); Common wealth v. Ziomek, 291 Pa.Super. 251, 254, 435 A.2d 894, 895-896 (1981).

Appellant next complains because, upon motion to reconsider the sentence, the court refused to allow evidence of the inadequacy and unavailability to him of an existing treatment program at Camp Hill. The purpose of a petition for reconsideration of sentence is to afford the sentencing court an opportunity, prior to appellate review, to correct any errors that may have occurred at sentencing. See: Commonwealth v. Anderson, 304 Pa.Super. 476, 480, 450 A.2d 1011, 1014 (1982); Commonwealth v. Ziomek, supra, 291 Pa.Superior Ct. at 254-255, 435 A.2d at 896; Commonwealth v. Koziel, 289 Pa.Super. 22, 24, 432 A.2d 1031, 1032 (1981); Commonwealth v. Ruschel, 280 Pa.Super. 187, 421 A.2d 468 (1980); Commonwealth v. Gottshalk, 276 Pa.Super. 102, 105, 419 A.2d 115, 117 (1980). “A modification of sentence hearing ... is only necessary if the sentencing record discloses errors by the trial court. Should the modification petition fail to raise such errors, then the trial court is under no obligation to hold an obviously frivolous hearing or write an unnecessary opinion supporting its denial of the modification petition. It is within the trial court’s discretion to rely upon the sentencing record.” Commonwealth v. Ziomek, supra, 291 Pa.Superior Ct. at 255, 435 A.2d at 896.

We do not hold that a sentencing judge cannot receive additional evidence in response to an application to modify sentence. However, the court is not required to afford the defendant a second opportunity to present evidence not related to any alleged error occurring at a prior proceeding. Where the sentencing procedure has been properly conducted, it is within the court’s discretion whether to receive additional evidence or rely on the sentencing record. In the instant case, the court did not abuse its discretion by refusing to consider evidence not presented at the initial sentencing hearing and not relevant to any allegations of error contained in the petition for modification of sentence.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3928.

      . 18 Pa.C.S. § 3502.

      . Failure to raise such error in a petition for reconsideration will preclude consideration of the issue on appeal. Commonwealth v. Anderson, supra; Commonwealth v. Koziel, supra, 239 Pa.Superior Ct. at 24, 432 A.2d at 1032; Commonwealth v. Shaw, 280 Pa.Super. 575, 583, 421 A.2d 1081, 1085 (1980).


text:
    453 A.2d 12
    Robert S. OHRIN, Administrator of the Estate of Paul G. Ohrin, Deceased, and In His Own Right, Appellant v. ERIE INSURANCE EXCHANGE.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1982.
    Filed Nov. 30, 1982.
    Lee C. Swartz, Harrisburg, for appellant.

      Clyde W. McIntyre, Harrisburg, for appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant appeal concerns a question of wage loss benefits under the No-Fault Motor Vehicle Insurance Act. 40 P.S. § 1009.101 et seq. The operative facts are these. On October 26, 1978, Erie Insurance Exchange (hereinafter appellee) issued a No-Fault motor vehicle insurance policy to Paul G. Ohrin (hereinafter referred to as deceased victim) in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act. On May 24, 1979, the deceased victim was involved in a two-car motor vehicle accident which resulted in his death. At the time of his death the deceased victim was 21 years old, single, and without dependents.

On January 22, 1981 the deceased victim’s father, (hereinafter appellant) in his capacity as administrator of his son’s estate, instituted suit against appellee to obtain payment for work loss benefits as defined in the No-Fault Act. Appellee filed preliminary objections, in the nature of a demurrer and motion for more specific pleadings, asserting that the complaint failed to allege that appellant was “dependent” upon the deceased victim, and therefore was not a “survivor” entitled to benefits under the Act. In an order dated April 8, 1981, the lower court overruled and denied appellee’s preliminary objections.

Subsequently, appellee filed an answer with new matter. The lower court reconsidered its order of April 8, 1981, on the basis of its holding on remand in Pontius v. United States Fidelity & Guaranty Company (Dauphin County, No. 2707-S-1977). On April 30,1981, the lower court vacated its order of April 8, 1981 and ordered appellant to file an amended complaint alleging appellant’s dependency upon the deceased victim, or suffer the sustaining of appellee’s demurrer. On May 6, 1981, the order of April 30, 1981 was then amended to permit the appellant to pursue an interlocutory appeal from it. Appellant’s petition to appeal from an Interlocutory Order was granted by this court on September 22, 1981.

Appellant argues and appellee concedes, that the decision of this court is controlled by our recent holdings in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982) and Miller v. United States Fidelity and Guaranty Company, 304 Pa.Super. 41, 450 A.2d 91 (1982). We agree.

In Freeze, supra, on a set of facts almost identical to those in the instant case, we held that the estate of a deceased victim is entitled to recover work loss benefits under the No-Fault Act.

Subsequent to Freeze, supra, this court reaffirmed the holding of that case in Miller, supra, which also was a case brought by a personal representative to recover “work loss” benefits under the No-Fault Act. In Miller, supra, the court went on to examine certain definitional terms utilized in the No-Fault Act and then to elaborate upon the rational for one’s entitlement to “work loss” benefits under the Act. In regard to the term “dependency”, the court stated explicitly what was implicit in our holding in Freeze, supra:

In assiduously reviewing the No-Fault Act, this court finds no requirement of proving “dependency” in order to recover “work loss”. In fact, in defining “work loss”, the No-Fault Act no where mentions survivor or survivors, thus no showing of dependency is necessary.
(304 Pa.Superior Ct. at 54, 450 A.2d at 97) (Footnote omitted)

Accordingly, the order of the lower court is reversed and the case is remanded for disposition not inconsistent with this opinion. Jurisdiction is relinquished.

      . It is significant to note that while appellee takes exception to this court’s holding in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982) and Miller v. United States Fidelity and Guaranty Company, 304 Pa.Super. 41, 450 A.2d 91 (1982), they concede that these cases are controlling and agree that this court is bound to enter judgment in favor of the appellant in this action. (Appellant’s Reply Brief, appendix)


author: WATKINS, Judge:

text:
    453 A.2d 14
    COMMONWEALTH of Pennsylvania, Appellant, v. Larry D. LIGHTLY.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1982.
    Filed Nov. 30, 1982.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This is an appeal by the Commonwealth from the judgment of sentence imposed by the court below on the defendant-appellee after conviction, non-jury, of robbery and related offenses. The defendant’s post-trial motions were denied.

At the sentencing hearing, the Commonwealth for the first time raised the Act of November 26, 1978; P.L. 1316 No. 319 (42 Pa.C.S.A. 9721). The defense contends that this act should not be applied to the defendant because his prior convictions which made him a repeat defendant occurred before the effective date of the Act.

The court below sentenced the defendant to twenty-three (23) months confinement on the robbery conviction, but suspended sentence on the remaining charges.

The Commonwealth made no objection to the ruling of the court at the sentencing hearing concerning the act in question nor did the Commonwealth file a motion for reconsideration of the sentence with the court below in accordance with Pa.Rule Crim.Pro. 1410, but filed this appeal.

The court below found that the Commonwealth failed to follow proper procedure in its limited right to appeal in failing to file in writing the application of the Act of 1978, supra. The court also found that the Commonwealth failed to comply with Rule 1410 Pa.Rules Crim.Pro. by filing a motion with the court below for modification of the sentence in view of the Act in question so that the sentencing court had the first opportunity to consider it. We agree with the latter and find that the Commonwealth failed to preserve the sentencing issues.

The appeal of the Commonwealth is quashed.