author: HESTER, Judge:

text:
    671 A.2d 1166
    Shirley GRAY v. Alice M. GRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1995.
    Filed Feb. 23, 1996.
    Reargument Denied April 29, 1996.

      Deborah L. Barr, Towanda, for appellant.
    Ray DePaola, Towanda, for appellee.
    Before DEL SOLE, SAYLOR and HESTER, JJ.
   HESTER, Judge:

Appellee, Shirley Gray, instituted this action for specific performance of an agreement for the sale of land against her mother-in-law, Alice Gray, on June 25, 1993. Alice Gray, appellant, contends that the equity court’s decision awarding specific performance of the contract was erroneous in a number of respects. We affirm.

The important facts in this case are not in dispute. They largely are resolved by the contract entered by the parties and admissions contained in appellant’s deposition. Appellee was married to appellant’s son, Larrison, who died in January, 1993.

On December 17, 1976, appellant agreed to sell a farm to Larrison and appellee. The contract was recorded in the Recorder of Deeds Office of Bradford County on March 7, 1977. The contract obviously was entered in large part due to the relationship among the parties since its terms are liberal in favor of Larrison and appellee. The contract provides that appellant agreed to sell to Larrison and appellee the farm for the total sum of $40,000, $100 of which appellant acknowledged that she received on December 17,1976.

The contract provides that payment of “the balance of the purchase price of Thirty-nine Thousand Nine Hundred ($39,-900.00) Dollars shall bear no interest on the unpaid balance and will be amortized over a period of 33 — % years or less.” Article of agreement, 12/17/76, at 1 (emphasis added). The principal amount was to be paid in 399 monthly installments of $100 each, “the entire amount to be applied against principal.” Id. The first payment was due on January 1, 1977, and successive monthly payments were due on the first day of each month thereafter. Under the agreement, any major improvements to the farm were to be deducted from principal.

Appellee and her husband made twenty of the monthly payments, and Larrison made $800 in additional payments. Appellee and Larrison also continued to live on the farm without incident, paying taxes and also paying insurance until the property became uninsurable. After Larrison died, however, appellant and appellee had a dispute because appellant failed to honor the contract. Appellee wanted to tender the unpaid balance under the contract and have the land transferred into her name. Appellant wanted Larrison’s son on the deed, which appellee did not want.

The parties’ depositions were taken, and we examine appellee’s deposition first. Appellee and her husband lived on the land from December 17, 1976, until Larrison died on January 17, 1993, when appellee went to live with her daughter for approximately ten months. Appellee’s daughter lives across a hill from the property. Initially, appellee intended to move back to the farm, but she broke her ankle severely and could not negotiate the steps. Appellee then moved into the same house in which appellant resided. Appellant then went to live in a personal care home.

Appellee knew that the payments under the contract had stopped, but she was not aware of how much was owed under the contract because appellant kept the records and Larrison made the payments directly to appellant. She testified that she and Larrison paid the real estate taxes and the insurance until the property became uninsurable just prior to her husband’s death.

After Larrison’s death, appellee spoke with appellant about the property approximately five times. The first time they spoke about paying off the balance due under the contract, appellee told appellant if she “would get a figure up, that we would pay her. I had the money, and I wanted to get it paid.” Deposition of Shirley Gray, 7/13/94, at 14. Another time, appellee offered “[appellant] a check to settle — pay it up, yes.” Id. at 15. Appellee indicated, “I just told her that I would make the check out, and I’ve got the money and I wanted to pay it.” Id. at 16. Appellant refused to accept any money and never offered an explanation. Appellee was not able to determine how much she owed since she and her husband had failed to keep their ledger of the transaction current. Appellee stated that appellant kept the complete ledger of the payments.

Appellant’s deposition confirms appellee’s deposition in all material respects. Appellant signed the agreement, and from November, 1976, until Larrison died, her son and daughter-in-law resided on the farm. She recalled the terms of the land contract clearly, stating, “Well, they’re supposed to pay me a hundred dollars a month. That was the agreement. They had the privilege of — if they wanted to pay it up at any time, I would accept it or if I wanted to demand payment at any time, why, they would accept that.” Deposition of Alice Gray, 7/13/94, at 9.

Appellant stated that twenty monthly payments were made and admitted that she kept the complete record, of the payments, as follows. “They had signed receipts, but I kept the receipt book. Larry also gave me, at two different times, two hundred dollars besides that, and that’s recorded on the next page there.” Id. at 10. At another time, Larrison sold logs and stones from the land and from those two sales, he paid appellant $400. Id.

Appellant never attempted to declare the agreement void due to non-payment because Larrison “wanted the place. It was home, and he was a great homebody from the time he was a little kid. He wanted the home, and I wanted him to have it.” Id. at 12. She said that she had made the arrangements to have the contract drafted so that Larrison “could have the place.” Id. at 13.. After this statement, the following exchange occurred:

Q So is it fair to say that you wanted him to have the farm whether he—
A Very definitely.
Q —paid you or not? Whether he paid you or not.
A Right.
If I hadn’t had three other children, I probably would have given it to him long before that. Because, you know — As I say, he was the one that wanted it. He wanted to keep it as a farm, and that was the way I wanted it, and that was the way my husband wanted it.

Id. at 13. Appellant testified that the only reason she would not deed the property to appellee was that she wanted her grandson to be on the deed:

Q Alice, you would not have given her a deed no matter what price she paid to you if Wade [, the son of Larrison and appellee,] was not included; isn’t that true?
A That’s right.
Q So, if we’re honest with each other, this lawsuit really isn’t — you’re not claiming that she wouldn’t pay when the money was due, because you let that slide all of these years.
A Right.
Q Your gripe is that Wade is not being included.
A He is not coming into what I considered rightfully his.
Q That’s why you’re refusing to give a deed to Shirley no matter what she pays to you.
A Right.

Id. at 18.

Appellant admitted that appellee and Larrison paid the real estate taxes on the property from 1976 to the present and that appellee had offered to pay off the entire balance during the conversations that followed Larrison’s death. Appellant also acknowledged that appellee refused to tender the full contract price only after appellant indicated that she wanted her grandson’s name on the deed. Id. at 16-17. Finally, appellant said that she refused to give appellee the final figure as to what was required for full tender.

Based on the contract and these depositions, the equity-court awarded appellee specific performance under the contract upon tender by appellee of the outstanding balance due under the contract, $37,200. This appeal followed.

Appellant first contends that the trial court improperly. refused to allow her to raise the defense of laches. Initially, we note that this contract is not due to expire until 2009; thus, there is no question that it is timely under the statute of limitations applicable to contracts. However, the law is that even when an action is timely under the applicable statute of limitations, the equitable doctrine of laches can be applied as a bar to the action.

The doctrine of laches, however, will not be applied unless two conditions are satisfied. The complaining party must be guilty of a want of due diligence in failing to assert his rights and the failure must have worked to the prejudice of the party seeking its application. See Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988); Doppler v. Doppler, 393 Pa.Super. 600, 574 A.2d 1101 (1990). The doctrine should be applied only in cases where evidence supporting such a claim is clear. See Fuisz v. Fuisz, 386 Pa.Super. 591, 563 A.2d 540 (1989), reversed on other grounds, 527 Pa. 348, 591 A.2d 1047 (1991).

Herein, appellant makes one argument in favor of application of laches. “[A] review of the record as a whole indicates that the claim for laches is a viable one as Alice may be able to prove that Shirley left the property without making a tender, had not maintained the insurance.” Appellant’s brief as 10. Thus, it is clear that appellant bases her application of laches on the fact that appellee may have breached the contract. She certainly makes no attempt to establish prejudice.

Under the above case law, laches will be applied only where the defending party has changed his position in reliance upon the inaction of the complaining party. Appellant, who bears the burden of establishing her entitlement to appellate relief, has not only failed to indicate how she changed her position in reliance upon appellee’s breach of the contract, she has failed to cite to a single case applying the doctrine of laches and to set forth the elements of the doctrine itself.

We remind appellant that

“The argument shall be followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a), 42 Pa.C.S.A. Arguments that are not appropriately developed are waived. Nimick v. Shuty, 440 Pa.Super. 87, 100, 655 A.2d 132, 138 (1995); Smith v. Penbridge Assoc., Inc., 440 Pa.Super. 410, 427, 655 A.2d 1015, 1024 n. 12 (1995). Appellant has failed to cite any authority in support of his contention.... Thus, we deem that claim waived.

Gallagher v. Sheridan, 445 Pa.Super. 266, 270-71, 665 A.2d 485, 487 (1995) (footnote omitted). It is the appellant who has the burden of establishing his entitlement to relief. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984) (the appellant has the burden to demonstrate the trial court’s decree is erroneous due to the evidence or the law). In light of the cursory treatment of this contention and the failure to offer any elaboration or citation to relevant case law or the record, we decline to consider the merits of this claim. Hercules v. Jones, 415 Pa.Super. 449, 609 A.2d 837 (1992) (where appellant presented a position -without elaboration or citation to case law, we declined to address phantom argument); see also Taurino v. Ellen, 397 Pa.Super. 50, 58, 579 A.2d 925, 930 (1990).

Appellant also contends that the chancellor erred in finding that appellant “waived any damages under this land contract” by not commencing a separate action. Appellant’s brief at 10. Appellant has attempted to obfuscate this issue due to the obvious lack of merit of her claim. In fact, the equity court did not state that appellant waived any damages. It awarded appellant the full measure of her damages, viz. the amount of principal due under the contract. The only measure of damages which she was not permitted to recover was interest on the unpaid principal. In fact, it is apparent that the failure to award her interest on the $37,200 is the only complaint that she has with respect to damages. See Appellant’s brief at 11-12.

. Meanwhile, appellant is not entitled to interest under this contract, and it is not an element of damages that can be awarded under her counterclaim, which was for breach of contract. The contract provides that payment of “the balance of the purchase price of Thirty-nine Thousand Nine Hundred ($39,900.00) Dollars shall bear no interest.” Article of agreement, 12/17/76, at 1 (emphasis added). The principal amount was to be paid in 399 monthly installments in the amount of $100 each, “the entire amount to be applied against principal.” Id. Appellant admitted in her deposition that she was not entitled to interest under the contract, saying “[Larrison and appellee] had the privilege of — if they wanted to pay it up at any time, I would accept it or if I wanted to demand payment at any time, why, they would accept that.” Deposition of Alice Gray, 7/13/94, at 9. As the contract clearly prohibits interest, the equity court was correct in failing to award that as a measure of damages.

Appellant was awarded the full amount that she was due under the contract, in accordance with her own deposition. In that deposition, she stated that her son made twenty $100 payments, one $400 payment, and two $200 payments. The court awarded her the balance due under the contract of $37,200.

Appellant next claims that the equity court erred in concluding that tender had been made, stating:

[A] review of the record indicates that [appellee] had the ledger which indicates that only $2,400 had been paid on the land contract. (Complaint at Exhibit B). Despite having this document in her possession, [appellee] requested that the Chancellor direct that [appellant] convey the property for $35,000.00 (Complaint, Para. 6 & 7). For this reason, there was never a full tender of the balance of the contract price by Shirley Gray contrary to the findings of the Chancellor.

Appellant’s brief at 14. This argument contains two misstatements of fact. First, appellant admitted in her deposition that appellee did not have a complete record of the payments, stating, “They had signed receipts, but I kept the receipt book. Larry also gave me, at two different times, two hundred dollars besides that.” Appellant said that Larrison also gave her an additional $400 after he sold some items from the land. Id. at 10. Thus, appellant admitted that her son privately gave her payments totalling $800. While appellee admitted she had a ledger, she also knew that Larrison had made payments, not put them in the ledger, and she did not know the amount of the payments. Indeed, the amount listed as due in the complaint was an approximation. Appellant also admitted that she refused all offers of money and that it would not have mattered what appellee offered, she would not have complied with the terms of the contract. Thus, the record belies appellant’s assertion that appellee should have known of the outstanding balance on the loan and could have tendered the proper amount.

Appellant’s final claim is that the contract is not enforceable due to appellee’s breach of the agreement by failing to make the required payments thereunder. However, the law is that a purchaser’s default in making payments under a land contract may be waived either by express agreement or by the words or conduct of the seller. Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966); Davis v. Laurenzi, 263 Pa.Super. 71, 397 A.2d 1 (1978). If the seller waives the purchaser’s default, he may not thereafter take advantage of it by seeking rescission of the contract on the ground of late payment. Cohn v. Weiss, 356 Pa. 78, 51 A.2d 740 (1947); Davis v. Laurenzi, supra. Herein, appellant admitted in her deposition that she elected not to treat her son’s failure to make payments under the contract as grounds for its rescission. She said that if he would have come forward to enforce the contract at any time during his lifetime, she would have transferred the property to him. Thus, the equity court correctly determined that the failure to make timely payments did not entitle appellant to rescind the contract.

In 2401 Pennsylvania Avenue Corp. v. Federation of Jewish Agencies, 319 Pa.Super. 228, 242—43, 466 A.2d 132, 139 (1983), we stated, “Whether a breach is so substantial as to justify an injured party’s regarding the whole transaction as at an end ‘is a question of degree; and it must be answered by weighing the consequences in the actual custom of men in the performance of contracts similar to the one that is involved in the specific case.’ 4 Corbin, Contracts, § 946 (1951).” The Restatement (2d) of Contracts provides that the following circumstances are relevant in determining whether a failure is material:

§ 241. Circumstances Significant in Determining Whether a Failure Is Material
In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

Herein, appellant expected to receive $40,000, without interest, by 2009 under the contract. She will receive this benefit. If the contract is not enforced, appellee will suffer forfeiture of the taxes she and her husband paid, the $2,800 they tendered under the contract, and the benefits of her husband’s labor on the farm. Appellee attempted to cure default repeatedly, and since the contract has not expired, the default can be cured by tendering the purchase price.

As to the elements of good faith and fair dealing, a few observations are called for. First, this was not an arm’s length transaction between strangers. Appellant admitted that she wanted to give the land to her son and that she was aware that appellee’s name was on the contract. She said at the deposition that she considered the contract valid, however, only as to her son and that she refused to honor it after he died despite the fact that appellee had as much legal right to enforce the contract as Larrison had. Specifically, appellant said that she would have considered “the contract in effect if he [Larrison] would have come forward.” Deposition of Alice Gray, 7/13/94, at 36. She admitted that the only reason that she felt that appellee was not entitled to the land was due to the fact that Larrison died and that this feeling was not altered by the fact that appellee’s name was on the contract. Id. at 38, 39.

We also note that throughout her brief, appellant has attempted to give the impression that she was awarded nothing by the equity court. Meanwhile, she was awarded the full amount she agreed to accept in payment for the land under the contract at issue. In 1976, appellant agreed to accept $40,000 for this land from appellee and Larrison. She agreed that this amount would not bear interest. Appellant obtained the lawyer who drafted the land sales agreement and admitted that her intent was to give the property to her son. Appellee’s name is contained on that document as well as Larrison’s name. Appellee is as much entitled to enforce its terms as Larrison was. Thus, we affirm the equity court’s determination that appellee’s failure to make the required payments under the agreement was not a material breach of its terms under the circumstances presented. Accordingly, we affirm the judgment of the equity court awarding appellee specific performance of the contract upon tender of $37,200.

Judgment affirmed.

      . We are aware that the equity court granted summary judgment in this action based upon testimonial evidence. However, summary judgment may be granted if the moving party supports his motion for summary judgment by the use of depositional admissions of the opposing party. Rivoli Theatre Co. v. Allison, 396 Pa. 343, 152 A.2d 449 (1959); Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375, 1378 n. 3 (1991). Herein, the propriety of the order is apparently based on the contract language and appellant’s deposition. Therefore, summary judgment can be upheld.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    672 A.2d 314
    COMMONWEALTH of Pennsylvania, Appellant v. Yashpaul S. PARMAR.
    Superior Court of Pennsylvania.

      Argued Sept. 21, 1995.
    Filed Jan. 18, 1996.
    Reargument Denied March 25, 1996.

      Jerome T. Foerster, Assistant District Attorney, Harrisburg, for the Commonwealth, appellant.
    Lee G. Nollau, State College, for appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the lower court which granted appellee’s post-sentencing motions and arrested judgment on his convictions for bribery in official and political matters and criminal conspiracy to commit this offense.

Appellant presents the following issues for our review: (1) whether the trial court erroneously concluded that appellee should have been prosecuted for violations of the Conflicts of Interest Law (“COIL”), 65 P.S. § 403(a) and (c) and the State Adverse Interest Act (“SAIA”), 71 P.S. § 776.7; (2) whether appellee waived his claim that he had been prosecuted for the wrong offense; and (3) whether the trial court erroneously arrested judgment on appellee’s criminal conspiracy conviction. For the reasons set forth below, we reverse the trial court’s order and reinstate the judgment of sentence with respect to appellee’s convictions.

Before addressing these issues, it is necessary to recount the pertinent facts giving rise to this appeal. Appellee, Yashpaul Parmar, was a civil engineer employed by the Pennsylvania Department of Transportation (“PennDoT”). In the course of his duties, appellee was responsible for reviewing the drainage control on highway occupancy permits as well as other matters relating to traffic design and flow patterns. As a result, appellee’s supervisor directed him to evaluate a highway occupancy permit application submitted by Sheetz, Inc. in connection with the construction of its new store, which was scheduled to open in mid- to late September, 1990.

Appellee went to the Sheetz site and met with the construction superintendent, Joseph Pastorelli. Appellee informed Mr. Pastorelli that the plans contained several deficiencies which had to be rectified before a permit could be approved and issued. While appellee was present, Mr. Pastorelli contacted Sheetz personnel and was advised that it could possibly take up to a month to prepare and submit revised plans and, thus, would potentially delay the opening of the store. After this conversation was completed, appellee told Mr. Pastorelli that he could perform the requisite revisions and “walk the application through the approval process” for approximately $5,000.00. Mr. Pastorelli submitted the offer to Sheetz for approval, but was told that Sheetz would only agree to pay appellee $3,500.00. Appellee accepted.

Appellee subsequently prepared the revised plans so that they would comply with PennDoT’s regulations. Appellee then gave the plans to Mr. Pastorelli along with instructions as to the manner in which they were to be submitted to PennDoT. After the revised plans were submitted, they were reviewed by appellee, who indicated to his supervisor that he saw no problems therewith and that a highway occupancy permit could be issued. PennDoT thereafter approved the application and issued the permit, which was received by Sheetz in time for the scheduled opening of its store.

Appellee initially requested that Sheetz pay him in cash for his work. Sheetz refused and apprised him that he would be paid by check upon submission of an invoice for his services. As a result, appellee instructed his daughter to prepare an invoice in the name of her roommate, Dianne Carson. Appellee submitted the invoice in Ms. Carson’s name to Sheetz, who gave a check to appellee, made payable to Dianne Carson, in the sum of $3,500.00. Appellee, his daughter and Ms. Carson thereafter went to her bank to cash the check. Because Ms. Carson did not have sufficient funds in her account to cover the check at the time, the bank required her to deposit the check. Ms. Carson, appellee’s daughter and appellee returned to the bank a few days later at which time she withdrew the funds and gave them to appellee.

Appellee’s involvement and receipt of payment in connection with the Sheetz permit was subsequently uncovered. After investigation by the state inspector general’s office, appellee was arrested and charged with various offenses arising out of this incident. Appellee filed omnibus pre-trial and habeas corpus motions, all of which were denied. A jury trial was held in January, 1994, following which appellant was convicted of the above offenses, but acquitted of conspiracy to commit forgery and bribery, as defined in 18 Pa.C.S.A. § 4701(a)(1). Appellee prematurely filed a motion for judgment of acquittal in which he challenged the sufficiency of the evidence. Appellee was subsequently sentenced on February 15, 1994 to serve two concurrent twenty-four (24) months of probation with respect to each of his convictions.

Appellee then timely filed a post-sentencing motion in which he incorporated and reiterated his request for an acquittal based on a lack of sufficient evidence. Oral argument was scheduled and heard thereon. During oral argument, appellee asserted for the first time that his conviction was improper because he had been prosecuted on a general bribery offense rather than the more specific offenses defined under the Conflicts of Interest Law and the State Adverse Interest Act. The trial court agreed and arrested judgment on the bribery and conspiracy convictions. The Commonwealth filed a motion for reconsideration which was denied. The Commonwealth then timely perfected this appeal.

Appellant, the Commonwealth, first challenges the trial court’s decision to arrest judgment on appellee’s bribery conviction. Appellant contends that this determination was improper because it was premised upon the erroneous conclusion that appellee should have been prosecuted under the more specific statutory provisions of the COIL and SAIA. Appellant’s Brief at 16. Appellant also argues that it was improper for the trial court to have addressed this issue since appellee waived it by failing to raise it in his omnibus pre-trial motion. Appellant’s Brief at 23. We will begin our analysis with a discussion of appellee’s alleged waiver.

A claim that the information or indictment charges the defendant with the wrong crime must be made by written pre-trial motion to quash. Commonwealth v. Gemelli, 326 Pa.Super. 388, 397, 474 A.2d 294, 299 (1984); Pa.R.Crim.P., Rule 306, 42 Pa.C.S.A. and comment. The failure to preserve an issue in this manner will result in its waiver. Commonwealth v. Gemelli, 326 Pa.Super. at 397-398, 474 A.2d at 299; Pa.R.Crim.P., Rule 9020(d), 42 Pa.C.S.A. However, the appellate courts have subsequently recognized that challenges to the propriety of a charge can be properly litigated in a post-verdict motion for arrest of judgment where the general and specific statutes in question do not contain an irreconcilable conflict on their face and the determination of whether an actual conflict exists can be determined only after the facts of the case are fully developed at trial. Commonwealth v. Warner, 504 Pa. 600, 607-610, 476 A.2d 341, 344-346 (1984); Commonwealth v. Miller, 414 Pa.Super. 56, 62-63, 606 A.2d 495, 498, allocatur denied, 531 Pa. 639, 611 A.2d 711 (1992).

• It is undisputed that appellee filed pre-trial motions which did not assert that he was improperly prosecuted for the wrong offense. Instead, appellee’s challenge was not raised until oral argument on his post-sentencing motions. Under these circumstances, the claim would- ordinarily be deemed waived. However, the statutes in question here do not irreconcilably conflict on their face. In fact, the conflicts of interest law explicitly states that its provisions shall control in the event they conflict with any other statute, ordinance, regulation or rule. 65 P.S. § 412. Thus, no irreconcilable conflict can exist, at least on the face of the statutes. Moreover, waiver should not be found where an issue is raised in a procedurally defective manner and the trial court overlooks the misstep and addresses the merits of the claim. Commonwealth v. Metz, 534 Pa. 341, 345, 633 A.2d 125, 127 (1993). We are also cognizant of the fact that appellee’s claim was raised in the context of a motion for judgment of acquittal, which can be raised in post-sentencing motions. Pa.R.Crim.P., Rule 1124(a)(6), 42 Pa.C.S.A. and comment. Finally, we note that the Commonwealth did not specifically articulate to the lower court that appellee’s claim had been waived. In light of the above reasoning,, we accordingly decline to invoke the waiver doctrine against appellee.

Having resolved this threshold issue, we must next ascertain whether appellee’s bribery and conspiracy convictions were proper.

It is the well-settled law.of this Commonwealth that prosecutions under, general provisions of a penal code are prohibited where applicable special provisions are available. However, our Supreme Court has held that this general policy is only applicable where the conflict between the statutes is irreconcilable____ Thus, where the general provision is wholly subsumed by the special, ie., the general statute has no elements which may distinguish it from the special', the two statutes are said to “irreconcilably conflict,” and the prosecution must proceed under the special statute.

Commonwealth v. Miller, 414 Pa.Super. at 62-64, 606 A.2d at 497-498 (citations and quotation marks omitted). Accord Commonwealth v. Warner, 504 Pa. at 606-610, 476 A.2d at 344-346; Commonwealth v. Gautieri, 431 Pa.Super. 412, 415-416, 636 A.2d 1153, 1155 (1994).

Appellee was convicted of bribery in an official matter, which is defined as follows:

§ 4701 Bribery in official and political matters
(a) Offenses defined. — A person is guilty of bribery, a felony of the third degree, if he ... solicits, accepts or agrees to accept from another: ... (3) any benefit as consideration for a violation of a known legal duty as public servant....

18 Pa.C.S.A. § 4703(a)(3). The Crimes Code further defines the terms “benefit” and “public servant.” A benefit within the meaning of the Crimes Code is a “[g]ain or advantage or anything regarded by the beneficiary as gain or advantage, including benefit to any other person or entity in whose welfare he is interested....” 18 Pa.C.S.A. § 4501. A public servant is defined as “[a]ny officer or employee of government, including members of the General Assembly and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function.... ” Id. In comparison, the conflicts of interest law provides that:

§ 403 Restricted Activities
(a) No ... public employee shall engage in conduct that constitutes a conflict of interest.... (c) No ... public employee ... shall solicit or accept, anything of monetary value, ... based on any understanding of that ... public employee that the ... official action, or judgment of the ... public employee ... would be influenced thereby.

65 P.S. § 403. Under this act, a public employee includes any individual who is employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to, inter alia, inspecting, licensing or regulating any person or any other activity where the official action has more than a de minimis economic impact on the interests of any person. 65 P.S. § 402. A conflict of interest is defined as the “[u]se by a ... public employee of the authority of his ... employment or any confidential information received through his holding public ... employment for the private pecuniary benefit of himself. :.Id. Finally, SAIA states that:

§ 776.7 Employe[e] representing another before state agency
No State employe[e], except in the performance of his duties as such employe[e], shall for remuneration, directly or indirectly, represent any other person upon any matter pending before or involving any State agency.

71 P.S. § 776.7. A state employee is an appointed officer or employee in the service of a state agency and who receives a salary or wage for such service. 71 P.S. § 776.2(10).

Examination of the above statutes demonstrates that each precludes a public servant or public employee from soliciting or accepting any benefit, remuneration or anything else of monetary value in connection with the performance -of his official duties. However, both COIL and SAIA absolutely prohibit the conduct respectively proscribed therein. Thus, no showing of culpability is required to convict a public/state employee for a violation of these statutes. See 18 Pa.C.S.A. § 305(a)(2) (general culpability requirements do not apply to offenses defined by statutes other than the Crimes' Code where a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears).

In contrast, culpability must be established in order to convict an individual of bribery. See 18 Pa.C.S.A. § 302(a) (a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense). As applied here, the bribery statute, does not specify the level of culpability applicable to the material elements of this offense. Consequently, it is sufficient to show that, a person acted intentionally, knowingly or recklessly with respect to the material elements of the crime. See 18 Pa.C.S.A. § 302(c) (when the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto).

Because the crime of bribery contains an element of culpability which is not required by either COIL or SAIA, it is not wholly subsumed by the more specific statutes. Compare Commonwealth v. Miller, 414 Pa.Super. at 64-65, 606 A.2d at 499 (general crime of false swearing in official matters and violation of specific Liquor Code provision penalizing false statements on liquor licensing applications contained identical elements where both required an intent and a misrepresentation which was designed to mislead a public servant in the performance of his official function; thus, the general penal statute was wholly subsumed by the more specific provision of the Liquor Code and only prosecution under the specific statute was permitted). Prosecution of appellee for the general bribery offense was therefore permissible. See Commonwealth v. Warner, 504 Pa. at 607, 476 A.2d at 344 (so long as the general statute has elements outside the special, the Commonwealth is not restricted in pursuing both charges in one trial; under such circumstances, the legislature can be presumed to have given the prosecuting authorities discretion to proceed under either or both); Commonwealth v. Miller, 414 Pa.Super. at 62-64, 606 A.2d at 498 (following Warner and recognizing that prosecution under a general statute is proper so long as the general has elements outside the special; prosecution under the special statute is only required where the elements of the general are wholly subsumed by the special statute). Appellee’s prosecution for conspiracy was permissible for similar reasons, since the element of intent must be shown to establish the commission of this offense. See 18 Pa.C.S.A. § 903(a)(1) (a person is guilty of conspiracy with another person to commit a crime if, with the intent of promoting or facilitating its commission, he agrees with such other person that they or one or more of them will engage in conduct which constitutes such crime).

Because the trial judge erroneously concluded that the elements of bribery and conspiracy were identical to those set forth in COIL and SAIA, we are obliged to reverse his order and reinstate the judgment of sentence with respect to appellee’s convictions.

Order reversed. Judgment of sentence reinstated. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 4701(a)(3).

      . 18 Pa.C.S.A. § 903(a).

      . The parties refer to this statute as the State Ethics Act. Earlier caselaw likewise utilizes this terminology as well as other various names. However, the statute was rewritten in 1989 and was not given a specific designation by the legislature. Since the title of the act indicates that it involves conflicts of interest by public officials, public employees or those who are nominees or candidates for public office, we will refer to the statute as the Conflicts of Interest Law.

      . Ms. Carson and appellee’s daughter shared an apartment. Ms. Carson was employed as a waitress at the time and had absolutely no training, or certification to work as a civil engineer.

      . The Commonwealth’s appeal is properly before this court. See, e.g., Commonwealth v. Rawles, 501 Pa. 514, 519-520, 462 A.2d 619, 621 (1983); Commonwealth v. Feathers, 442 Pa.Super. 490, 497, 660 A.2d 90, 94 (1995) (en banc); Commonwealth v. Coleman, 367 Pa.Super. 108, 118-121, 532 A.2d 477, 482-483 (1987), allocatur denied, 518 Pa. 635, 542 A.2d 1365 (1988).


author: JOHNSON, Judge:

text:
    672 A.2d 319
    COMMONWEALTH of Pennsylvania v. James Edward BALOG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1995.
    Filed Feb. 13, 1996.

      Linda Chambers, Waynesburg, for appellant.
    David F. Pollock, District Attorney, Waynesburg, for Com- . monwealth, appellee.
    Before CAVANAUGH, JOHNSON and OLSZEWSKI, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine whether that portion of the animal cruelty statute, which pertains to animal fighting, is vague and overbroad in violation of the United States Constitution. For the reasons set forth below, we find that James Edward Balog has failed to carry his burdén of showing that the statute is unconstitutionally overbroad. We also find that because Balog’s conduct fell within the scope of the statute, he cannot complain of vagueness. Accordingly, we affirm the judgment of sentence.

Following trial, á jury found Balog guilty of cruelty to animals (gamecocks), pursuant to 18 Pa.C.S. § 5511(h.1)(3). The trial court sentenced Balog to a term of 54 months’ probation, a $1,000 fine and ordered him to pay restitution. No post-sentence motions, were filed. Balog then appealed to this Court. On November 8, 1995, we quashed the appeal because the trial transcript was not included in the certified record. Thereafter, Balog filed an application requesting reargument and/or reconsideration of that decision. By order dated January 11, 1996, we granted Balog’s application, and we now consider the merits of his appeal.

On appeal, Balog raises the following three issues:

I. Whether 18 Pa.C.S.A. § 5511(h.1)(3) which prohibits owning animals for animal fighting is vague and overbroad in violation of the First and Fourteenth Amendments to the United States Constitution and Article 1, § 1 of the Pennsylvania Constitution?
II. Whether the trial court erred in denying [Balogl’s request to instruct the jury on the statutory exception to the crime of cruelty to animals concerning conduct occurring in a “normal agricultural operation,” where [Balog] raised the exception as an affirmative defense?
III. Whether the trial court erred in qualifying a humane society officer with no practical experience or appropriate education as an expert at trial?

Brief for Appellant at 4.

First, Balog asserts that 18 Pa.C.S. § 5511(h.1)(3), which makes it a felony to own, possess, keep, train, promote, purchase or knowingly sell any animal “for animal fighting,” is unconstitutional on its face because it is vague and overbroad, in violation of the United States and Pennsylvania Constitutions.

Initially, we note that the trial court concluded that it could not rule upon the constitutionality of this statute because Balog failed to give proper notice to the Attorney General of the Commonwealth of Pennsylvania. See Memorandum to Record, dated May 11, 1995, at 2. While the record reveals that Balog did not notify the Attorney General of his intent to challenge the constitutionality of the statute, we find that no such notice was required in this case. Pursuant to Pa.R.A.P. 521(a), a party has the duty to notify the Attorney General of a constitutional challenge to a statute only “in any matter in an appellate court to which the Commonwealth or any officer thereof, acting in his official capacity, is not a party....” (Emphasis added). See Commonwealth v. Hashem, 363 Pa.Super. 111, 525 A.2d 744 (1987), rev’d on other grounds, 526 Pa. 199, 584 A.2d 1378 (1991); Mark v. Commonwealth, 135 Pa.Cmwlth. 150, 580 A.2d 901 (1990), aff'd, 532 Pa. 209, 615 A.2d 337 (1992). Thus, we may address Balog’s claim.

Balog contends that § 5511(h.1)(3) is overbroad. In addressing Balog’s overbreadth challenge,

we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably, and plainly violates the constitution.

Commonwealth v. Stock, 346 Pa.Super. 60, 67, 499 A.2d 308, 311-12 (1985) (citation omitted). A statute is overbroad if it “authorize[s] the punishment of constitutionally protected conduct. ...” Commonwealth v. Stenhach, 356 Pa.Super. 5, 25, 514 A.2d 114, 124 (1986), appeal denied, 517 Pa. 589, 534 A.2d 769 (1987). Here, Balog maintains that the statute in question is overbroad because it “unconstitutionally infringes his right to show gamefowl at fairs, poultry shows and other competitions based upon the appearance of the cock.... [T]he exhibition of gamefowl in organized events for that purpose is a method of expression and, as such, it is protected by the First Amendment of the United States Constitution.” Brief for Appellant at 9.

Even assuming that the right to show gamefowl at a competition is constitutionally protected conduct, Balog could not be convicted pursuant to § 5511(h.1)(3) if he established that he owned the gamefowl for show purposes. Rather, the prohibited activity sought to be controlled by the statute is not the mere owning or possessing of gamefowl, but owning or possessing such fowl “for animal fighting.” In order to convict a person under this statute, the Commonwealth must prove that a defendant owns or possesses the gamefowl for fighting purposes. Thus, Balog has failed to carry his burden of showing that the statute is unconstitutionally overbroad on its face, as he could not be convicted for owning or possessing gamefowl for any purpose other than animal fighting.

In addition, Balog asserts that section § 5511(h.1)(3) is unconstitutionally vague because it permits the Commonwealth to combine several legal activities, namely, owning gamecocks and collecting cockfighting paraphernalia and publications, in order to convict him of illegal activity.

“A statute is unconstitutionally vague where it fails to provide reasonable notice of the conduct to the person charged with violating its prohibitions.” Commonwealth v. Gonzalez, 403 Pa.Super. 157, 165, 588 A.2d 528, 532 (1991). “Importantly, ‘the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged,’ and in view of the specific facts of the case before us.” Id. at 166, 588 A.2d at 533, quoting Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245 (1976). Thus, one may not successfully challenge a statute for vagueness when his conduct clearly falls within the prohibited acts set forth therein. Id.; see also Commonwealth v. Tavares, 382 Pa.Super. 317, 324, 555 A.2d 199, 202 (1989), appeal denied, 524 Pa. 619, 571 A.2d 382 (1989).

In a similar case, this Court recently addressed the question of whether § 5511(h.1)(3) is unconstitutionally vague. Gonzalez, supra. There, defendant was convicted of owning and possessing roosters for fighting purposes. Defendant claimed that this statute was “unconstitutionally vague because [it] fail[ed] to specify what constitutes an animal which is owned ‘for animal fightingId. Defendant relied on his expert’s testimony that “a fighting bird’s physical characteristics, such as cut combs and wattles, may be shared by gamefowl raised for breeding or showing purposes.” Id. However, we concluded that the statute was not unconstitutionally vague as applied to defendant’s conduct. First, we reasoned that there is “no ambiguity in the phrase ‘animal fighting[,]’ ” id. at 167, 588 A.2d at 533, which is defined as “[flighting or baiting any bull, bear, dog, cock or other creature.” 18 Pa.C.S. § 5511(q). More importantly, we found that the following evidence, in addition to the birds’ appearance, established that the animals were intended or had already been used for fighting purposes:

The gamefowl had wounds in the face, chest, leg and eye areas which were consistent with cockfighting ...; some of the wounds still had blood clots on them. Also found on [defendant]^ premises were sharp metal claw-like objects known as spurs which are fitted to the fighting rooster’s leg to be used in fighting another rooster. The investigating police and [Society for the Prevention of Cruelty to Animals (SPCA) ] agent found wax which is used to attach the spur to the bird, special vitamins and hormones ... clippers and scissors, and a [fighting] pit____ Further, the roosters were found housed in the same manner as fighting cocks are kept, that is, in separate cages so as to prevent them from fighting each other.

Gonzalez, supra, at 167, 588 A.2d at 533. Accordingly, this Court held that the animal cruelty statute provided reasonable notice that the phrase “for animal fighting” applied to defendant’s roosters. Id. Because defendant’s conduct fell within the scope of the prohibited acts, we concluded that he could “not complain of vagueness.” Id. at 168, 588 A.2d at 533-34.

In the present case, Balog contends that his situation differs from that in Gonzalez. Specifically, he alleges that his- birds did not have scars or wounds with blood clots, and the police found no trophies, wax, clippers, scissors, hormones, vitamins or a fighting pit on the premises. Brief for Appellant at 16-17. However, after a review of the record, we find that the evidence presented by the Commonwealth established that Balog owned or possessed’ gamecocks for fighting purposes.

Specifically, the record reveals that Greene County Children and Youth Services received information that Balog’s children had been injured by a fighting chicken. N.T., January 4, 5, and 6, 1995, at 258. Balog, however, told the caseworker that his children were injured in an accident on an all terrain vehicle. Id. at 261. Trooper Brian Burden went to the Balog home to investigate this matter. Id. at 8, 28. As he approached the Balog residence, he saw a number of cages and birds on leashes. Id. at 9. Thereafter, the officer obtained a search warrant and returned to the property with several SPCA officers. Id. At that time, Trooper Burden discovered individually caged roosters, various hens located in a building at the rear of the property, and cages that contained several different birds. Id. at 10. Trooper Burden then seized seven birds because he believed they were “fighting birds.” Id. He testified that these birds were altered for fighting in that they “had their combs and wattles cut and also the spike on the back of the legs had been sawed off.” Id. The trooper also observed the birds’ aggressive nature as they were removed from their cages. Id. at 11. Trooper Burden then requested another warrant to search Balog’s residence for “implements of fighting birds.” Id. The following day, the trooper conducted a search of Balog’s house and seized a diary containing information concerning fighting birds, 36 magazines on fighting birds, and two sets of spurs. Id. at 13.

Further, Balog’s neighbor, Joseph Intorre, testified that he had visited Balog and observed the birds that were raised as “fighting roosters.” Id. at 76-77. Intorre also testified that in late 1992 or early 1993, he and Balog drove to a “chicken fight.” Id. at 78. He stated that Balog brought one of his birds with them, and, when they arrived at the fight, the bird was fitted with hooks. Id. at 78-79. Thereafter, the bird participated in a fight and won by killing its opponent. Id. at 79. Based upon these facts, we find that Balog’s conduct fell within the scope of § 5511(h.1)(3). We further conclude that this statute provided reasonable notice to Balog that his conduct was prohibited. Thus, like the defendant in Gonzalez, supra, Balog cannot complain of vagueness.

We also note that Balog asserts that the statute in question violates his rights under both the United States and Pennsylvania Constitutions. However, he has made no effort to explain how the state constitution differs from the protection afforded by its federal counterpart. In addition, Balog has failed to comply with the requirements set forth in Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991) (describing the four factors one must analyze when state constitution is implicated). As a result, we will not address a state constitutional claim. See Commonwealth v. Toro, 432 Pa.Super. 383, 393 n. 10, 638 A.2d 991, 996 n. 10 (1994); Commonwealth v. Lucas, 424 Pa.Super. 173, 177, 622 A.2d 325, 327 (1993), appeal denied, 537 Pa. 648, 644 A.2d 733 (1994).

As his second issue, Balog contends that the trial court erred when it denied his request to instruct the jury regarding the “normal agricultural operation” defense. “Our standard of review of a decision denying a requested point for charge is well[-]settled. Jury instructions must be viewed in their totality to assess whether the charge accurately and adequately explains the relevant law to the jury and guides the jury in its deliberations.” Commonwealth v. Donahue, 428 Pa.Super. 259, 277, 630 A.2d 1238, 1247 (1993), appeal denied, 538 Pa. 612, 645 A.2d 1316 (1994).

Balog claims that he maintained his birds in a manner that fell within the exception to § 5511(h.1)(3), which provides that “[t]his subsection shall not apply to activity undertaken in a normal agricultural operation.” The phrase normal agricultural operation is defined as “[njormal activities, practices and procedures that farmers adopt, use or engage in year after year in the production and preparation for market of poultry, livestock and their products in the production and harvesting of agricultural ... crops and commodities.” 18 Pa.C.S. § 5511(q) (emphasis added). Balog argues that an instruction on this exception should have been given because he considers his family farm to be an “agricultural operation.” However, Balog presented no testimony establishing that he was in the business of raising the birds “for market.” In fact, Mrs. Balog testified that the family did not sell any of the birds they raised. N.T., supra, at 203. Moreover, in his brief to this Court, Balog concedes that he “do[es] not ... engage in farming as a business.” Brief for Appellant at 18. Accordingly, we conclude that Balog has failed to bring himself within the scope of the exception for “normal agricultural operation[s].” See Commonwealth v. Barnes, 427 Pa.Super. 326, 344, 629 A.2d 123, 132 (1993) (although defendants asserted neglect of horses was “normal agricultural operation,” they presented no evidence indicating that “they were in the business of raising horses to be sold for dog food or that they had formed the definite intention” of selling horses for that purpose). Because the charge adequately explains the relevant law to the jury, we find no error by the trial court.

Finally, Balog maintains, in essence, that the trial court erred when it admitted the expert testimony of SPCA Agent Gary Lovett because he was not qualified as an expert in the area of cockfighting. Balog argues that the agent “presented only vague claims of training in the area of gamecock fighting and presented absolutely no evidence of experience in the area of cockfighting.” Brief for Appellant at 26.

“In Pennsylvania, a liberal standard for the qualification of an expert prevails. Generally, if a witness has any reasonable pretension to specialized knowledge he may testify[,] and the weight to be given to his evidence is for the fact[-]finder.” Commonwealth v. Long, 425 Pa.Super. 170, 184, 624 A.2d 200 (1993), appeal denied, 535 Pa. 645, 633 A.2d 150 (1993). The “qualification of expert testimony lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion.” Commonwealth v. Echevarria, 394 Pa.Super. 261, 266, 575 A.2d 620, 623 (1990).

In the present case, the Commonwealth offered the agent as an expert witness “in the area of the features that are present with gamecocks,” N.T., supra, at 121, to explain that the birds confiscated from Balog’s property were groomed in a manner consistent with birds raised for fighting purposes. Agent Lovett testified that he has worked for the Pennsylvania SPCA for 16 years and attended seminars at which veterinarians and animal shelter employees explained to participants what they should look for when investigating birds used in cockfighting and how to handle them. Id. at 101. Further, he participated in “on-the-field” training with respect to cockfighting. Id. at 99-100. The agent has also participated in approximately 100 investigations that involved cockfighting, and has been qualified as an expert on that subject matter in 20 court cases. Id. at 100. Agent Lovett further explained that birds raised for fighting purposes are more aggressive and are classified in two categories, Anglo or Latino. Id. at 101-02. Based on this testimony, the court qualified him as an expert. Thus, we find that the trial court did not abuse its discretion when it admitted the expert’s testimony.

Based on the foregoing, we affirm the judgment of sentence.

Judgment of Sentence Affirmed.


author: DEL SOLE, Judge:

text:
    672 A.2d 324
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael FARRELL, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed Feb. 21, 1996.

      Stuart B. Suss, Assistant District Attorney, Frazer, for Commonwealth, appellant.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge:

This is an appeal by the Commonwealth from a Suppression Order. The issue presented is whether a police officer possessed sufficient reasonable suspicion to justify the investigatory stop of the automobile which Appellee was driving.

The facts reveal that Sergeant Spirito, received a radio call advising that an anonymous report stated a person named Michael had driven to the Valley Tavern in a maroon Buick LeSabre and was under the influence of alcohol. Sergeant Spirito arrived at the tavern and observed a maroon Buick LeSabre parked in front. Shortly thereafter, he noticed the Buick leaving the parking lot and proceeding east bound on Yellow Springs Road.

The officer testified that he followed the vehicle down Yellow Springs Road which is a winding, narrow, country road and that about a third of a mile down the road, the car cut the corner too short and was very close to the edge of the road. Later, when the car came to a 90-degree bend in the road, it swung out and made too wide of a turn. Next, the vehicle turned into a development and was heading directly toward a concrete divider, when it suddenly made a correcting maneuver. The officer then received notice that the owner of the vehicle was Appellee, Michael Farrell. At this point, the Officer stopped Appellee’s car.

In reviewing the grant of a motion to suppress, our responsibility is (1) to determine whether the record supports the factual findings of the court below and (2) to evaluate the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Bull, 382 Pa.Super. 559, 555 A.2d 1341 (1989). When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, 112 (1985).

The sole issue in this appeal is whether Sergeant Spirito possessed a legal justification for an investigatory vehicle stop. The Commonwealth emphasizes that although a police officer may stop a motor vehicle if he has articulable and reasonable grounds to suspect a violation of the Vehicle Code, he may also form an articulable and reasonable suspicion of impaired driving based upon the observation of conduct which does not violate the Vehicle Code.

The Commonwealth cites the case of Commonwealth v. McElroy, 428 Pa.Super. 69, 630 A.2d 35 (1993) (en banc) for the proposition that the proper legal standard to be applied when determining whether a police officer may legally stop a vehicle is “articulable and reasonable grounds to suspect.” In McElroy, the observing Officer opined that the vehicle was travelling at least 80 miles an hour in a posted 35 mile per hour zone. We held in McElroy that the Officer was entitled to stop and perform a registration check. We had previously held that a police officer’s opinion testimony of a vehicle’s speed may be sufficient to convict a defendant of driving at an unsafe speed in certain circumstances. Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987).

Most recently, our Supreme Court has considered a similar suppression question. In Commonwealth v. Whitmyer, 668 A.2d 1113 (1995), the court granted allocutur to review the standard applied by the lower courts in addressing the legality of automobile stops by police.

The appellee in Whitmyer was stopped after a trooper observed him cross a solid white line and pass the vehicle in front of him. Also, the trooper, utilizing his speedometer for two-tenths of a mile rather than the three-tenths required by the Vehicle Code, 75 Pa.S.C. § 3368, estimated that the appellee’s speed was 70 miles per hour. The trial court ordered all the evidence obtained as a result of the stop to be suppressed, after concluding that there was no probable cause to establish that the appellee was in violation of the Vehicle Code. The Supreme Court affirmed, since under the evidence presented, there could be no violation of the vehicle code. However, the Court reiterated that police officers are vested with authority to stop a vehicle if there are “articulable and reasonable grounds to suspect a violation of the Vehicle Code.” Id. at 1115.

When viewing the facts of the present case under the standard of “articulable and reasonable grounds to suspect,” we find that unlike Whitmyer, the facts here support the officer’s stop of Appellee’s vehicle on the reasonable belief that it was being operated by someone under the influence of alcohol. First, the anonymous tip that a person named Michael had driven in a maroon Buick LeSabre to the Valley Tavern while intoxicated, was corroborated when the officer observed the maroon Buick LeSabre parked in front of the tavern and found it was registered to Michael Farrell. Following this corroboration, the officer did not then stop Appellee but waited and observed his driving. After observing three incidents of exaggerated and erratic driving, further corroborating that Appellee was under the influence, the stop occurred. We find that the record adequately demonstrates “articulable and reasonable grounds to suspect” a violation of the Motor Vehicle Code, namely driving under the influence. Therefore, we reverse the order of suppression and remand for trial.

Order reversed. Case remanded for trial.

Jurisdiction relinquished.


text:
    672 A.2d 326
    NATIONAL PENN BANK F/K/A National Bank of Boyerstown v. Curtis J. SHAFFER and Nancy J. Shaffer, Husband and Wife, Jointly and Severally. Appeal of Nancy SHAFFER, and Eugene H. Evans, Esquire, Junior Lienholder. NATIONAL PENN BANK F/K/A National Bank of Boyerstown v. Curtis J. SHAFFER and Nancy J. Shaffer, Husband and Wife, Jointly and Severally. Appeal of Curtis J. SHAFFER.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed Feb. 22, 1996.

      Albert P. Massey, Frazer, for Nancy Shaffer and Eugene Evans.

      Anthony Morris, West Chester, for National Penn Bank.
    Before McEWEN, SAYLOR and BROSKY, JJ.
   BROSKY, Judge.

This is a consolidated appeal from the final order of the lower court which granted appellee’s petition to set aside the sheriffs sale and ordered á resale of the property. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.

Before addressing the issues raised by the appellants, it is necessary to recount the pertinent facts of this case. Curtis and Nancy Shaffer were the owners of the dwelling and lot located at 102 Elmwood Drive, Downingtown, Pennsylvania. This property was subject to a mortgage held by the Navy Federal Credit Union in the sum of $105,050.00. In August of 1988, the Shaffers obtained a $50,000 line of credit from appellee, National Penn Bank, formerly known as National Bank of Boyerstown (hereinafter “NPB”). This credit line was secured by - a second mortgage on the Elmwood Drive property. In addition to the above mortgages, the property was subject to judgment and federal tax liens (hereinafter junior liens) in excess of $50,000.00.

The Shaffers defaulted on the second mortgage owed to NPB. As a result, NPB instituted foreclosure proceedings. The Shaffers did not respond to or otherwise contest the foreclosure action. Consequently, default judgments were entered against the Shaffers in the sum of $55,652.63. A writ of execution was issued, following which a sheriffs sale of the Elmwood Drive property was held on January 20, 1995. The junior lienors and the Shaffers were all duly notified of the sale.

Acting through its attorneys, NPB participated in the bidding and acquired the property for the sum of $140,000.00. After the sale, NPB’s counsel was advised by the title insurance company, who was preparing the proposed schedule of distribution, that the property had been purchased subject to the first mortgage. NPB, represented by new counsel, filed a petition to set aside the sale because of its prior attorneys’ mistake in calculating the bid. The Shaffers and the junior lienors all filed answers in opposition to the petition and requested that the court confirm the sale.

A hearing on the petition was held on March 13, 1995. The trial court subsequently granted NPB’s petition and ordered a resale of the Elmwood Drive property. Appellants, Eugene Evans, Nancy Shaffer and Curtis Shaffer, timely appealed therefrom. Appellants Evans and Nancy Shaffer present the following issues on appeal: (1) whether the trial court abused its discretion in setting aside the sale where there was evidence that a third-party would have purchased the property but for NPB’s mistake; (2) whether the trial court abused its discretion by allowing expert testimony to be introduced regarding the fáir market value of the property; and (3) whether the trial court abused its discretion in concluding that the Shaffers would reap an unconscionable benefit if the sale were not set aside. In addition to these issues, Mr. Shaffer contends in his appeal that the trial court abused its discretion in setting aside the sale on the following grounds: (a) by failing to follow existing precedent announced by the Pennsylvania Supreme Court in regard to the avoidance of a sale; and (b) by misapplying the law relating to mistake, as set forth in the Restatement (Second) of Contracts. To the extent that the above issues are interrelated, they will be addressed together.

“The decision to set aside a sheriffs sale is within the sound discretion of the trial court and the court’s decision will not be reversed on appeal unless there is a clear abuse of such discretion.” S & T Bank By Dalessio v. Dalessio, 429 Pa.Super. 282, 286, 632 A.2d 566, 568 (1993), allocatur denied, 538 Pa. 614, 645 A.2d 1318 (1994). Accord First Federal Savings Bank of Delaware v. CPM Energy Systems Corp., 422 Pa.Super. 308, 313, 619 A.2d 371, 373 (1993).

An abuse of discretion is not merely an error , of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or [the judgment is] the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is abused. We emphasize that an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.

Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995). We further recognize “that a petition to set aside a sheriffs sale is based on equitable principles.... ” First Federal Savings Bank of Delaware v. CPM Energy Systems Corp., 422 Pa.Super. at 313, 619 A.2d at 373. It is also well established that:

The burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriffs sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence.

Id., 422 Pa.Super. at 313-314, 619 A.2d at 373 (citations and quotation marks omitted). We will evaluate the decision of the trial court with these considerations in mind.

To correctly assess the propriety of the trial court’s determination, it is first necessary to clarify the grounds on which relief was sought and the genesis of the parties’ dispute. With regard to this issue, it is important to note that the parties did not contest the validity of the sale proceedings. Nor did they allege any deficiencies pertaining to the notice of the sale. The sale similarly was not challenged because of any gross inadequacy in price. Appellee instead sought to avoid the sale solely because its attorney mistakenly submitted a bid which exceeded the amount needed to protect appellee’s interests. The question to be resolved then is whether appellee’s mistake in paying too much, standing alone, constitutes a sufficient basis on which the sheriffs sale may be set aside.

There are only two decisions which appear to have considered this issue: Cummings’ Appeal, 23 Pa. 509 (1854) and First National Bank of Koppel v. Mount, 132 Pa.Super. 518, 1 A.2d 547 (1938). Both cases involved a situation in which the purchasers paid too much for the property due to their mistakes. As a result, the appellate courts set aside the sales. Cummings’ Appeal, 23 Pa. at 511-512; First National Bank v. Mount, 132 Pa.Super. at 523-524, 1 A.2d at 550. However, neither of these decisions can be deemed controlling instantly.

Mount involved a situation in which the purchaser’s mistake was clearly induced by the conduct of the execution creditor’s counsel. Mount, 132 Pa.Super. at 523-524, 1 A.2d at 550. Unlike the facts established in Mount, there is absolutely no evidence that appellants or their counsel took action to mislead or confuse appellee with respect to the calculation of its bid. In fact, appellee did not seek to set aside the sale because of any misconduct committed by the debtors, the junior lienors or their respective counsel. Appellee instead explicitly acknowledged in its petition that the mistake was solely attributable to the negligence of its own counsel. See Appellee’s Petition to Set Aside Sheriffs Sale of Real Property Pursuant to Pa.R.C.P. 3132 and to Order Resale, filed 2/16/95, at paragraphs 7 and 13-14. Mount is therefore distinguishable from the facts presented here.

We reach a similar conclusion regarding Cummings’ Appeal. In Cummings, the Supreme Court’s decision was primarily influenced by the fact that the law had been in a state of flux, thus causing unwary and unsophisticated purchasers to be uncertain as to the effect of the sale on mortgage liens. Cummings, 23 Pa. at 512, 513-514. The court was also inclined to grant relief to the purchaser on equitable grounds. Id., 23 Pa. at 511-512. Moreover, the majority relied upon dicta in support of its decision and, as pointed out in the concurrence, ignored controlling precedent. Id., 23 Pa. at 511-512.

Since Cummings was decided, the law governing this area has become well-settled; our statutory law now clearly and unambiguously provides that, subject to certain exceptions, a judicial or other sale of real estate shall not affect the lien of a mortgage thereon where it is or shall be prior to all other liens upon the same property. 42 Pa.C.S.A. § 8152(a). Further, the purchaser in this case was an experienced financial, lender who was well aware of the risks inherent in judicial sales and entrusted this matter to legal counsel. The difficulties and expense of ascertaining the state of a title which existed at the time of Cummings likewise have been substantially reduced by the advent of advanced information technology. Equitable considerations therefore no longer favor the protection of purchasers to the extent necessary in the mid-nineteenth century. We thus do not believe that Cummings should be blindly applied in this instance, especially in light of more recent appellate authority.

The appellate courts have held that the purchaser takes all of the risk at a sheriffs sale and that the rule of caveat emptor applies with full force. Taylor v. Bailey, 323 Pa. 278, 284, 185 A. 699, 702 (1936); CSS Corporation v. Sheriff of Chester County, 352 Pa.Super. 256, 259, 507 A.2d 870, 872 (1986), allocatur denied, 514 Pa. 627, 630, 522 A.2d 556, 559 (1987).

Bidders, therefore, must look out and take care of themselves. It is their business to examine beforehand, and after having made themselves acquainted with the facts and circumstances in relation to encumbrances, if any exist, then to decide for themselves as to what will be the legal effect and operation of the sale upon them.

Taylor v. Bailey, supra (citation and quotation marks omitted). The Supreme Court has additionally noted that relief will not be awarded for a mistake where, inter alia, a contract has been fairly made with full knowledge of the facts, even though a party thereto may have been under a misapprehension concerning its legal effect, where the parties cannot be restored to their original position or where there is a mistake of law, pure and simple, without any circumstances or equitable considerations which would move a chancellor to grant relief. First National Bank of Sunbury v. Rockefeller, 333 Pa. 553, 559, 5 A.2d 205, 207 (1939).

As applied here, appellee’s mistake was a pure mistake of law, in that their counsel erroneously concluded that the sale had the legal effect of discharging the first mortgage. Other than this mistake, appellee had full knowledge of the pertinent information and, in fact, had specifically directed its counsel to only bid the amount necessary to cover its own debt and costs. N.T. 3/13/95 at 22.

It also is not possible to return the parties’ to the position which they held at the time of the sale. The parties stipulated and admitted in their petition and answers that at the time of the first sale, the last of the other bidders offered a bid of $135,000.00. See N.T. 3/13/95 at 7, 18-19; Appellee’s Petition to Set Aside Sheriffs Sale of Real Property Pursuant to Pa.R.C.P. 3132 and to Order Resale, filed 2/16/95, at paragraph 9; Evans’ and Nancy Shaffer’s Answers to Petition to Set Aside Sale, filed 2/27/95 at paragraph 9; Curtis Shaffer’s Answer to Petition to Set Aside Sale, filed 2/27/95 at paragraphs 1-11; United States’ Answer to Petition to Set Aside Sheriffs Sale, filed 3/13/95 at paragraphs 1-11. It is evident that, but for appellee’s mistake, the property would have been purchased by this bidder.

Unfortunately, the identity of this bidder is unknown. It would therefore be inappropriate to speculate as to whether this individual would make any bid at a subsequent sale, let alone offer such a high purchase price. There is also no reason to believe that an equivalént bid could be obtained at a subsequent sale. The parties thus cannot be placed into the same position that they occupied at the time of the sale with regard to the anonymous next-highest bidder.

We likewise discern no equitable considerations which support the grant of relief. Although appellee claims that it is unconscionable to permit the sale to stand, we are not persuaded by this bald contention. Appellee was a sophisticated financial lender who was obviously aware of the ramifications associated with the judicial sale as well as the existence of the first mortgage. Appellee did not attend the sale but instead engaged the services of counsel who calculated and entered the bid on appellee’s behalf. Notwithstanding appellee’s directives to the contrary, counsel misinterpreted Pennsylvania law which in turn caused him to submit a bid in excess of the client’s wishes. Under these circumstances, it is appellee, rather than the opposing parties, who should rightfully bear the risk of the error committed by counsel. Moreover, the other parties have not been unjustly enriched due to the mistake. Were it not for appellee’s erroneous bid, the property would have been sold to the next highest bidder. The bid submitted by appellee exceeded the next highest bid by only a few thousand dollars. Appellants’ retention of this amount simply is not unjust.

We further note that the courts have refused to award relief solely because of a party’s unilateral mistake of law or fact. See, e.g., First Federal Savings & Loan Association of Lancaster v. Swift, 457 Pa. 206, 213, 215, 321 A.2d 895, 898, 900 (1974) (wherein a majority of the participating justices agreed that courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised; bank’s mistaken reliance regarding the date of the tax sale thus did not entitle it to relief); Westmoreland Guarantee Building & Loan Association v. Nesbit, 21 Pa.Super. 150, 153 (1902) (refusing to set aside a properly conducted sheriff’s sale, despite the gross inadequacy of the price and evidence that a higher bid could have been obtained, where the creditor was not deceived or misled by any other person and sought relief exclusively because of his own personal negligence in failing to attend the sale). See also Smith v. Thomas Jefferson University Hospital, 424 Pa.Super. 41, 45-46, 621 A.2d 1030, 1032 (1993), allocatur denied, 535 Pa. 638, 631 A.2d 1009 (1993) (unilateral mistake affords no basis for relief where the mistake is not due to the fault of the party not mistaken, but to the negligence of the one who acted under the mistake; mistaken party was therefore not entitled to rescind contractual release).

In light of the above reasoning, we conclude that the sale should not have been set aside in this instance. We accordingly reverse the order of the trial court and remand for distribution of the proceeds obtained as a result of the sheriffs sale.

Order reversed. Remanded for further proceedings. Jurisdiction relinquished.

      . Curtis and Nancy Shaffer divorced in 1994.

      . Eugene Evans, Esq., had a judgment lien in the sum of $10,000.00. There were also two federal tax liens for $33,389.20 and $8,433.85 respectively. The junior liens thus total $51,823.05 ($10,000.00 + $33,389.20 + $8,433.85 = $51,823.05).

      . In calculating the bidding price, NPB’s counsel erroneously included the amount of the first mortgage therein, even though Pennsylvania law clearly provides that subject to certain exceptions which are not relevant here, a judicial or other sale of real estate shall not affect the lien of a mortgage thereon where, as here, the mortgage is or shall be prior to all other liens upon the same property. 42 Pa.C.S.A. § 8152(a).

      . The appeal filed by Nancy Shaffer and Eugene Evans is docketed at No. 01463 Philadelphia 1995; Curtis Shaffer’s appeal is docketed at No. 01464 Philadelphia 1995. These appeals were subsequently consolidated for review. The United States has neither filed a separate appeal nor otherwise participated in the Shaffer-Evans appeals.
      Jurisdiction over this matter is properly vested in this court since the trial court's order completely disposed of all of the parties’ claims and, therefore, is a final order. See 42 Pa.C.S.A. § 742 (vesting exclusive jurisdiction over appeals from final orders in the Superior Court); Pa.R.A.P., Rule 341(a), 42 Pa.C.S.A. (permitting an appeal to be taken as of right from any final order of a lower court) and Pa.R.A.P., Rule 341(b)(1), 42 Pa.C.S.A. (defining a final order as one which disposes of all claims or parties). See also First Federal Savings & Loan Association of Lancaster v. Swift, 457 Pa. 206, 208-209 n. 3, 321 A.2d 895, 896 n. 3 (1974) (appeal from order setting aside judicial tax sale was properly before the Supreme Court which, in accordance with the law in effect at that time, had exclusive jurisdiction over appeals from final orders in equity actions or proceedings, unless jurisdiction was otherwise vested in the Commonwealth Court).

      . Our disposition renders it unnecessary for us to consider whether the trial court erred in allowing testimony as to the fair market value of the property to be admitted at the hearing.


author: PER CURIAM:

text:
    672 A.2d 331
    Sandra Jean SHAW, a Minor by Lorrie Ann INGRAM, her Parent and Natural Guardian and Lorrie Ann Ingram, In Her Own Right, Appellants, v. Vernon F. BRADLEY, M.D. and Altoona Hospital.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1995.
    Filed Feb. 27, 1996.

      Regis M. McClelland, Pittsburgh, for appellant.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   PER CURIAM:

This is an appeal from the March 2, 1995 Order awarding plaintiffs’ counsel attorneys’ fees of $268,750.00 plus costs of $14,711.68. The fees represent twenty-five per cent (25%) of the $1,075,000 verdict secured for the minor plaintiff, a reduction from the forty per cent (40%) contingency fee on which the parties had originally agreed and the thirty-five per cent (35%) fee to which plaintiffs’ counsel had acquiesced at time of settlement.

The appellant law firm of Harrington Schweers Dattilo and McCleland argues the court abused its discretion by arbitrarily reducing its fee in accordance with the court’s own policy regarding minors’ cases, without proper consideration for the work performed and based on irrelevant legal factors and facts not of record. Accordingly, appellant prays the Order be vacated and an Order directing payment of $376,250 or 35% of the award be entered.

Pennsylvania Rule of Civil Procedure 2039 provides the parties’ power to settle and/or discontinue a minor.party’s lawsuit is subject to court approval. Likewise, the rule mandates any agreement entered into on behalf of a minor plaintiff for payment of counsel fees from the settlement reached requires court approval. Id. The factors to be taken into consideration by the court when determining the reasonableness of counsel fees include, but are not limited to, 1) the amount of work performed; 2) the character of the services rendered; 3) the difficulty and importance of the litigation; 4) the amount of money in question;. 5) the skill and standing of the attorney(s); and 6) the client’s ability to pay. In re Trust Estate of LaRocca, 431 Pa. 542, 246 A.2d 337 (1968); Gilmore by Gilmore v. Dondero, 399 Pa.Super. 599, 582 A.2d 1106 (1990). A trial court’s decision in awarding attorneys’ fees pursuant to Pa.R.C.P. 2039 will be reversed only upon the showing of an abuse of discretion or error of law. Romano by Romano v. Lubin, 365 Pa.Super. 627, 530 A.2d 487 (1987), alloc. granted sub nom. Petition of Toner, 518 Pa. 620, 541 A.2d 747 (1988) (appeal discontinued April 26, 1988). Plain error will be found where the award is based either on- factual findings for which there is no evidentiary support or on legal factors other than those which are relevant to such an award. Gilmore, supra.

Our thorough review of the record and the trial court’s thoughtful, well-reasoned Opinions reveals no abuse of discretion or error of law, the court having carefully applied the LaRocca criteria to the facts with which it was faced. This medical malpractice case, which was initiated by plaintiff mother’s visit to counsel on January 15,1992 and concluded by settlement reached on or about March 9, 1994, involved no extraordinarily complex issues and was settled prior to trial throdgh implementation of the discovery process. The court reviewed counsel’s breakdown of its billable hours (667.5) and found only 440 of those hours reflected actual legal involvement by attorneys, with the balance representing time for which an attorney does not ordinarily expect to be compensated. Acting as parens patriae or financial steward for the minor child, the court recognized the importance of the litigation to the anticipated lifetime maintenance required for the permanently incapacitated plaintiff. The settlement figure reached, with a present value of $1,075,000, exhausted the policy of defendant Altoona Hospital and included catastrophic loss (CAT) funds. While admittedly plaintiffs’ counsel negotiated the settlement, the court reasonably opined the hospital’s willingness to offer the limits of its policy prior to trial was reflective of the strength of the case and not necessarily indicative of appellant’s advocacy. Appellant’s argument it is receiving a low percentage of an expected dollar figure should plaintiff reach her life expectancy is spurious as appellant is receiving its fees contemporaneous to the award, based on its present $1,075,000 value. Counsel’s skill was not questioned by the trial court, nor does this Court now challenge appellant’s expertise or effort. As guardian of the minor plaintiffs award, the trial court properly considered her ability to pay a reasonable fee and her inability, given her prognosis, to pay a fee which was more than reasonable. In further support of its decision reducing attorneys’ fees from 35% to 25%, the trial court referenced Blair County awards in excess of $1,000,000 which often have resulted in the grant of attorney fees totaling 20%. In its supplemental Opinion, the trial court went on to cite neighboring counties’ policies and recent Superior Court cases corroborating its decision to reduce the fees to 25% of the award. Estate of Murray v. Love, 411 Pa.Super. 618, 602 A.2d 366 (1992); Gilmore by Gilmore v. Dondero, 399 Pa.Super. 599, 582 A.2d 1106 (1990). While recognizing the contingent fee as the “poor man’s key to the courthouse”, referring to Romano, supra, the trial court nevertheless reiterated its role and obligation as caretaker of the minor plaintiffs financial interests. The trial court took particular care to note it did not, as suggested by appellant, weigh the injured child’s interest against the deep-pockets law firm. “We have tried to weigh only in the sense of treating each party fairly out of a designated pool of money.” (Supplemental Op., Carpenter, J., 5/23/95, p. 18.) “We cannot imagine that this award is unjust in any significant particular.” (Id. at 20.)

Our review of the record confirms the trial court’s decision awarding attorneys’ fees in the amount of $268,750, representing adequate compensation for services rendered, and being indicative of a fee which is fair but not excessive. Based on the foregoing reasons of law and fact, we affirm the Order awarding to plaintiffs’ counsel attorneys’ fees of $268,750 and costs totaling $14,711.68.

Order affirmed.

      . - Appellees have not file’d a brief.

      . The trial court penned one Opinion, in support of- its Order and a second supplemental Opinion in support of its decision denying appellant’s motion for reconsideration.

      . Beginning in August, 1996, plaintiff will receive a monthly payment of $1,467, as well as lump sum payments at specified ages. Should minor plaintiff reach her life expectancy, total payment would be in excess of five million dollars.


author: TAMILIA, Judge:

text:
    672 A.2d 333
    Joseph T. SUROWIEC and Jean Surowiec, Husband and Wife v. GENERAL MOTORS CORPORATION, a Corporation, Appellant. Joseph T. SUROWIEC and Jean Surowiec, Husband and Wife, Appellants, v. GENERAL MOTORS CORPORATION, a Corporation.
    Superior Court of Pennsylvania.
    Argued June 27, 1995.
    Filed Feb. 27, 1996.

      Louis C. Long, Pittsburgh, for General Motors.
    Kelly M. Tocci, Aliquippa, for Surowiee.
    Before DEL SOLE, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

On June 29,1990, a car owned and operated by the plaintiff, Joseph T. Surowiee, accelerated inexplicably while plaintiff was attempting to park, resulting in property damage and personal injury. Surowiee and his wife, Jean Surowiee, brought suit against General Motors Corporation alleging negligence, breach of warranty and strict liability. A jury returned a verdict in favor' of the plaintiffs, and defendant filed post-trial motions seeking judgment n.o.v., a new trial or remittitur. The trial court denied the request for judgment n.o.v., but granted a new trial reasoning it had erred in granting plaintiffs’ motion in limine to preclude expert testimony concerning Surowiec’s alcohol intake prior to the accident and relation-back testimony addressing husband’s alleged alcohol-related driving impairment. The parties now present cross-appeals, consolidated sua sponte, challenging the trial court’s ruling.

Plaintiffs argue the trial court erred by reversing its decision regarding the motion in limine. Defendant agrees with the decision allowing testimony regarding husband’s intoxication, but argues judgment n.o.v., rather than a new trial, was appropriate because plaintiffs failed to establish the existence of a vehicular malfunction.

Plaintiffs proceeded on the theory their 1990 Chevrolet Cavalier malfunctioned as husband was backing into a parking space, causing the vehicle to jump the curb and strike another vehicle before shooting forward and striking two garages. Plaintiff provided no expert testimony to show there was a defect in the automobile, but relied on a “malfunction theory” which may be established by circumstantial evidence. See Rogers v. Johnson & Johnson Products, 523 Pa. 176, 565 A.2d 751 (1989); Ducko v. Chrysler Motors Corp., 433 Pa.Super. 47, 639 A.2d 1204 (1994). Plaintiffs argue they presented sufficient circumstantial evidence from which the jury should have concluded the vehicle malfunctioned.

Plaintiff/driver testified he had experienced no problem with the vehicle he had purchased just the day prior to the accident. Surowiec explained the vehicle accelerated inexplicably and he was unable to stop the car despite applying the brakes. He also testified he consumed between 30 and 32 ounces of beer within three and one-half hours of the accident, and medical records indicated blood drawn from plaintiff approximately one and one-half hours after the accident revealed an alcohol level of .082 per cent. A witness to the accident, Anthony Rinaldi, testified the car’s engine roared loudly, sounding like a jet engine. General Motors offered expert testimony no engine, transmission or braking system defects were detected, and the automobile could not have malfunctioned as alleged. General Motors’ position is that actions taken by the plaintiff himself had caused the car to perform as it did.

Plaintiffs contend the trial court erred by granting a new trial on the basis the expert testimony regarding husband’s alcohol intake should have been allowed. Defendant was prepared to produce testimony by toxicologist Charles L. Winek, Ph.D., that the amount of alcohol which plaintiff had consumed, knowledge of when plaintiff had taken his last drink, the time of the accident, and his blood level one and one-half hours after the accident, established plaintiff had a blood alcohol level of .104 per cent at the time of the accident. Dr. Winek also would have testified the plaintiff was unfit to safely operate the vehicle at the time of the accident. The trial court granted plaintiffs’ motion in limine to exclude Dr. Winek’s testimony, relying on Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970), and Locke v. Claypool, 426 Pa.Super. 528, 627 A.2d 801 (1993).

This aspect of the case turns on a single, narrow issue of whether expert testimony of intoxication, corroborated by other evidence, is admissible to establish the intoxication of plaintiff to a degree that his intoxication was the cause of the accident. We believe it is.

The plaintiff relies on the ease of Locke, supra, in assigning error to the trial court in granting a new trial. The rule enunciated in Locke is that where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial unless it reasonably establishes intoxication. This is a correct statement of law. The facts in Locke required the denial of admission of evidence of intoxication as to Locke because the evidence was insufficient to establish intoxication.

A review of the record reveals that the only evidence regarding Locke’s intoxication was (1) the officer's testimony that he smelled the odor of beer emanating from the ambulance which housed Locke at the time of the accident; (2) the blood test which indicated that Locke’s blood alcohol content was at .06% (a- level well below the statutory presumption of the unfitness to operate a vehicle); and (3) the expert, who extrapolated the test results and concluded that because Locke was a minor, he would have an exaggerated reaction to alcohol.

Id. at 533, 627 A.2d at 803-04 (footnotes omitted). This Court found the above-detailed evidence standing alone was insufficient to establish intoxication. The Court pointed out that cases which admitted blood alcohol tests had independent corroboration, such as erratic driving and his or her blood alcohol content was above .10 per cent, the'statutory presumptive level of unfitness to operate a vehicle.

While the presumption of intoxication arising from a blood alcohol level of .10 per cent alone is not evidence of intoxication in a civil action, the testimony of an expert is helpful in interpreting the significance of a blood alcohol content above .10 per cent, without reference to the “presumption.” Ackerman v. Delcomico, 336 Pa.Super. 569, 486 A.2d 410 (1984). In Crosby v. Dept. of Transportation, 378 Pa.Super. 72, 548 A.2d 281 (1988), this Court stated:

We find that the .101% level of intoxication, especially when joined with the expert’s testimony that the same would impair one’s motor skills, was properly admitted by the trial court for the jury’s consideration in assessing what 'transpired on the evening in question. Especially is this so since we have evidence that the plaintiff smelled of alcohol at the time of the accident when his vehicle left the roadway and struck various objects before coming to rest.

Id. at 77, 548 A.2d at 283. Our Court concluded that the totality of the evidence pointed to more than a “mere hint of intoxication” and justified the submission to the jury of the evidence of husband’s intoxication and blood alcohol test results.

The case before us is analogous in most respects to Crosby. Here, the plaintiff testified he had consumed between 30 and 32 ounces of beer within three and one-half hours of the accident. Blood tests taken one and one-half hours after the accident established a blood level of .082 per cent. Expert toxicologist evidence would have established a blood level of .104 at the time of the accident. The accident occurred, in a new automobile with only 10 to 12 miles on the odometer, when the car lurched forward and backward suddenly while plaintiff was parallel parking. The vehicle sustained only sheet metal damage, was able to be driven after the accident, revealed no evidence whatsoever of a mechanical or product defect, and subsequently was driven, without mechanical repair, for 12,000 miles.

As stated above, the plaintiff relied on a malfunction theory, which in turn required the plaintiff to negate reasonable secondary causes of the accident. Brill v. Systems Resources Inc., 405 Pa.Super. 603, 592 A.2d 1377 (1991). Since no evidence of mechanical failure was proven, the jury was forced to operate in a vacuum when the defendant was denied the right to establish a reasonable secondary cause of the accident: to wit, intoxication. Under these circumstances, the jury was improperly allowed to speculate the accident was caused by malfunction instead of human error which could have been explained by intoxication. While the malfunction theory relieves the plaintiff of the burden of proving the precise defect which caused the harm, Rogers, supra, the mere fact an accident happens does not permit a case to go to the jury on conjecture or guess work, Woodin v. J.C. Penney Company, Inc., 427 Pa.Super. 488, 629 A.2d 974 (1993); see Roselli v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685 (1991) (Plaintiffs could not proceed on malfunction theory based upon spontaneous breakage of a coffee carafe where evidence of product use raised an equally probable explanation of breakage); Lonon v. Pep Boys, 371 Pa.Super. 291, 538 A.2d 22 (1988) (Trial court erred in charging jury on malfunction theory where evidence an external factor may have caused the battery to explode during a jump start was just as likely an explanation as plaintiffs theory of an internal defect).

Based on the foregoing analysis, we find the trial court did not err by granting a new trial and allowing expert testimony concerning husband’s alcohol intake prior to the accident. We caution, however, that evidence of alcohol consumption is not per se admissible in automobile accident cases, but rather its admissibility is always subject to the test of relevance and must be balanced against any prejudice that evidence of drinking will engender. Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969). Here, the expert’s opinion was that the level of appellant’s alcohol consumption negatively affected “his normal sober sensory, motor and judgement functions.” (Report of May 28, 1993, R.R. 44.) Since the issue was whether a malfunction caused the erratic performanee of the vehicle, evidence establishing a different cause would be relevant and therefore admissible. The admission of blood alcohol test results is a matter entrusted to the discretion of the trial court, and unless we perceive an abuse of that discretion, we will not disturb the trial court’s ruling. Having found no abuse of discretion, we affirm.the Order granting General Motors’ request for a new trial.

We now consider the appeal by General Motors from the denial of its motion for judgment n.o.v. and the plaintiffs’ counter issue that vehicle malfunction, as evidenced by the car’s erratic performance, made out a prima facie case of negligence without expert testimony establishing a malfunction defect. These matters will be discussed simultaneously.

“In reviewing a motion for judgment n.o.v., ‘the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, any conflict in the evidence must be resolved in his favor’.” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992), quoting Broxie v. Household Finance Co., 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). “[J]udgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper.” Murray v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 212, 640 A.2d 446, 449 (1994).

On the facts of this case it is conceivable that reasonable minds could differ as to the cause of the accident, although depending on the weight given to the evidence of intoxication on retrial, this may not be the case. The trial court, on the state of the record after trial and verdict, was unable to make a ruling in favor of judgment n.o.v. since the excluded evidence of intoxication could not enter into his decision.

Applying the standard of established law as stated above does not permit us to speculate upon how or why the jury reached its verdict. Absent proven secondary causes, the jury had before it a case involving a new car with no apparent defects performing in an erratic and uncontrolled manner. No defects were detected in the acceleration system, nor were the brakes faulty. A jury could decide, after a charge was presented on the malfunction theory, based on the mere preponderance of the evidence, that a spontaneous one-time malfunction occurred purely on circumstantial evidence presented. The weight given to the testimony of all of the witnesses, plaintiffs’ as well as defendant’s, could be unbalanced in favor of the plaintiff in the absence of evidence of any secondary causes. As we stated above, under these circumstances, two reasonable minds might differ on the cause of the accident. For this reason, although judgment n.o.v. was not warranted, a new trial was justified because of the exclusion of the evidence on intoxication which could have resulted in a verdict in favor of defendant.

We hold the trial court properly weighed the evidence and recognized reversible error in its denial of the entry of intoxication evidence, but agree it would have been improper to enter judgment n.o.v. at that time. The underlying cause of the accident remains an issue for the jury to decide and it should not be denied that opportunity by this Court.

Order granting a new trial inclusive of evidence of intoxication and denying judgment n.o.v. is affirmed.

      . The question of remittitur as requested by General Motors in post-trial motions is not before us and in any event is rendered moot by our affirmance of the trial court's Order granting a new trial.