author: ROWLEY, Judge:

text:
    518 A.2d 276
    Cherlyn CLARK, Appellant, v. Gene JETER.
    Superior Court of Pennsylvania.
    Argued March 26, 1986.
    Filed Oct. 28, 1986.
    Reargument Denied Dec. 18, 1986.

      Eileen D. Yacknin, Pittsburgh, for appellant.
    Craig A. McClean, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order dismissing appellant’s complaint for support. Appellant, the natural mother of a child born on June 11, 1973, filed a support action on behalf of the child against appellee, the putative father of the child, in August, 1983, approximately two years and two months after appellee had last provided financial support for the child. Appellee filed an answer and new matter denying paternity and raising the six-year statute of limitations, 42 Pa.C.S. § 6704, as a defense. The trial court dismissed the petition because it was barred by the statute of limitations, because case law had held the statute to be constitutional, and because appellee engaged in no activity justifying the tolling of the statute of limitations.

Appellant has appealed from the order dismissing the action and argues: 1) that the trial court erred in concluding that the six year statute of limitations for support/paternity actions brought on behalf of children born out of wedlock does not violate the equal protection and due process clauses of the United States Constitution; and 2) that the trial court erred in refusing to toll the statute of limitations based on appellee’s abusive conduct towards appellant.

Following the filing of the appeal, the legislature enacted a new statute of limitations applicable to determinations of paternity relative to an action for support as follows:

§ 4343. Paternity.
(b) Limitations of actions. — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

Act of October 30, 1985, P.L. 264, No. 66, Subchapter C § 4343(b) [to be codified at 23 Pa.C.S. § 4343(b)]. Appellant petitioned the Superior Court to remand the case to the trial court prior to the Superior Court’s disposition of the aforementioned issues so that the trial court could decide the issue of the retroactivity of the new statute, for if the new statute is to be given retroactive application, then the arguments raised on appeal are moot. Appellant’s petition to remand was denied. However, we will address the issue of whether the 18 year statute of limitations should be given retroactive effect.

I.

A.

The Statutory Construction Act of 1972, 1 Pa.C.S. § 1926, provides, “No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” The new 18 year statute of limitations itself makes no provision for retroactive application, but provides only that the act shall take effect in 90 days. 1985 Pa.Legislative Service # 4, P.L. 264, No. 66, § 4 p. 106. However, when the legislature wants to make a statute retroactive, it clearly and unambiguously does so. For example, when the legislature amended the act providing for Commonwealth Court jurisdiction, it included a clause stating that the act “shall take effect immediately and shall be retroactive to December 5, 1980.” Section 404(1) of Act 1982, December 20, P.L. 1409, No. 326. Not only does the 18 year statute of limitations for paternity/support actions not include language suggesting that it was intended to be applied retroactively, but there is no legislative history to support retroactive application of the act. Therefore, we hold that the 18 year statute of limitations for paternity/support actions is not to be applied retroactively.

We find support for our conclusion in Maycock v. Gravely Corporation, 352 Pa.Super. 421, 508 A.2d 330 (1986). In Maycock, 42 Pa.C.S. § 5533, which tolls the running of the statute of limitations for civil actions during minority, was held not to apply retroactively to a claim which had been barred under the previous statute of limitations in the absence of a clear intention of the legislature for the act to be retroactive. Although not identical to the new paternity/support statute of limitations, the statute of limitations involved in Maycock is similar in several material respects for determining retroactivity. Both statutes greatly expand the period during which a minor’s cause of action can be brought; both conspicuously lack any indication that the legislature intended for them to be applied retroactively; and both provide a prospective effective date only. Therefore, just as the statute of limitations in Maycock is not retroactive, so too is the paternity/support statute of limitations not retroactive.

B.

Even if the statute were to be given retroactive effect, however, it could not revive appellant’s cause of action and her complaint would still be time barred. Several courts of this Commonwealth have held that a retroactive statute of limitations can apply only to actions which have not been concluded or barred under the former statute. Upper Montgomery Joint Authority v. Yerk, 1 Pa.Cmwlth. 269, 274 A.2d 212 (1971). If the right to sue under the prior statute of limitations has not expired, then the new statute of limitations can be applied retroactively. In re Condem nation of Real Estate by Carmichaels, 88 Pa.Cmwlth. 541, 490 A.2d 30 (1985), interpreting Seneca v. Yale and Towne Manufacturing Co., 142 Pa.Super. 470, 16 A.2d 754 (1940). However, once the right to sue has expired, no subsequent legislation can revive it. Overmiller v. D.E. Horn and Co., 191 Pa.Super. 562, 159 A.2d 245 (1960).

In the instant case, the child was born in 1973, and the last voluntary support payment for the child from appellee was made in June, 1981, two years and two months prior to the filing of the complaint for support in August, 1983. The statute of limitations applicable when the Complaint was filed required the action to be commenced within six years of the birth of the child or within two years of the last written admission of paternity or voluntary payment of support. 42 Pa.C.S. § 6704(e). Thus appellant’s cause of action expired in June 1983 when the child was ten years old and two years after appellee’s last voluntary support payment. The new 18 year statute of limitations became effective in January, 1986, some two and one-half years after appellant’s cause of action expired. Therefore, even retroactive application of the new 18 year statute of limitations would not affect appellant’s rights.

II.

Having determined that the new statute of limitations shall not be applied retroactively and that even if it were applied retroactively, it would not remove the time bar on appellant’s action, we now address the arguments raised by appellant as to why the six year statute of limitations should not be applied.

The six year statute of limitations provides:

(e) Limitation of actions. — All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.

42 Pa.C.S. § 6704(e). This act is included within the general provisions regarding support actions, and it applies only to an action to determine paternity brought pursuant to a support action. Therefore, it applies only to children born out of wedlock who must establish paternity prior to seeking support. It does not directly preclude all children from obtaining support after the six year period has run or after a putative father ceases to make voluntary support payments for two years, but only precludes children born out of wedlock from establishing paternity. However, because establishment of paternity is a prerequisite to a support order, the statute of limitations operates to deny children born out of wedlock the right to seek support long before they reach majority unless the child, through his guardian, has already had his paternity established.

Appellant argues that the six year statute of limitations deprives a child born out of wedlock the equal protection of the laws and therefore is unconstitutional. In Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) , the Supreme Court held that the period during which support suits can be brought on behalf of illegitimate children must be sufficiently long to allow a reasonable opportunity for the claim to be brought and the limitation on such suits must be substantially related to the state’s interest in avoiding the initiation of stale claims. In Mills, the court found a one year statute of limitations to deny equal protection; in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), the court similarly found that a two year statute of limitations was unconstitutional. In Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983) the Pennsylvania Supreme Court held that in light of Mills and Pickett, the Pennsylvania six year statute of limitations on paternity/support actions for children born out of wedlock did not deny equal protection because six years provided ample opportunity for a support action to be brought after birth-related financial and emotional problems had subsided and because the state’s interest in avoiding claims of paternity where the proof of paternity had become stale was substantially related to the six year statute of limitations.

Appellant recognizes that the Pennsylvania Supreme Court has held that the statute does not deny equal protection based upon Mills and Pickett. Appellant also recognizes that the Superior Court cannot overrule a decision of the Pennsylvania Supreme Court. Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983). However, appellant suggests that we should “carefully scrutinize the logic” utilized in Astemborski to uphold the statute.

Appellant argues that a six year statute of limitations in paternity actions is not substantially related to the state’s purported interest in precluding paternity actions in which the proof is stale. If the state had a legitimate and substantial interest in precluding paternity claims where the proof other than blood tests was non-existent or dimmed by the passage of time, then, appellant argues, the state would consistently place time limitations on all paternity determinations. However, the state has not done this. For example, the Probate, Estates and Fiduciaries Code includes no limitations on the time in which a child must establish paternity in order to inherit from the putative father. 20 Pa.C.S. § 2107(c)(3). Thus, the state does not have a legitimate and substantial interest in limiting the time in which paternity actions for support must be brought, and the Pennsylvania statute does not satisfy the second requirement of Mills.

Further authority for this position is found in State ex rel Adult and Family Services v. Bradley, 295 Or. 216, 666 P.2d 249 (1983). In this case, the Supreme Court of Oregon held unconstitutional on equal protection grounds a six year statute of limitations on paternity actions for out-of-wedlock children. The court stated that the equal protection clause requires at a minimum that states refrain from totally precluding illegitimate children from exercising their rights for reasons of proof problems alone. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); see also Bradley, Id., at 253, n. 12, 666 P.2d 249. Therefore, any restraints on the rights of children born out of wedlock to establish paternity must relate specifically to problems of proof in establishing paternity. The court examined the Oregon statutes and found that the proof problem had been addressed by the provisions regarding the use of blood tests (O.R.S. 109.258) and by the requirement of evidence of paternity corroborating the mother’s testimony. (O.R.S. 109.145). The court stated that “although proof of paternity in some cases may become difficult with the passage of time, that possibility does not condone the total preclusion of illegitimate children beyond a certain age from attempting to ascertain their father’s identity,” Bradley, Id., at 254, 666 P.2d 249. Thus the court held that the six year statute of limitations denied equal protection, especially where a child could bring a paternity action up to ten years after the death of a parent to determine his right to inherit from the deceased putative father.

In Astemborski, the Pennsylvania Supreme Court did not consider that proof of paternity problems have been addressed by other Pennsylvania statutes such as 42 Pa.C.S. § 6136 which provides that blood tests can be conclusive as to paternity, nor that the legislature has already expressed a lack of state interest in proof problems in paternity actions by placing no limitation on when a child must establish paternity in order to inherit by intestate succession. Similarly the court did not address the seeming inconsistency of limiting out of wedlock children’s rights to support by allowing them to establish paternity only within six years of the date of birth or within two years of the last voluntary support payment, but to place no limitation on the putative parent’s right to establish paternity at any time and thereafter seek enforcement of his parental rights. See: In re Mengel, 287 Pa.Super. 186, 429 A.2d 1162 (1981) (unwed putative father has standing to establish paternity through a petition for declaratory judgment.) Despite the logic of these considerations and their acceptance in developing case law, the Pennsylvania Supreme Court has thus far remained steadfast in its holding that the six year statute of limitations is constitutional. As an intermediate appellate court, we are bound by the decisions of the Supreme Court. Therefore, we hold that the six year statute of limitations, 42 Pa.C.S. § 6704(e), does not deny equal protection.

III.

Appellant also argues that the six year statute of limitations denies due process of law. Even though a child has a right to support throughout his minority, a child born out of wedlock can only sue to receive the support to which he is entitled by bringing an action within six years of birth or two years of the putative father’s last voluntary support. Moreover, the statute, which limits when the action must be brought, requires that the complaint for support of a minor child be brought by the person having custody of the child. 20 Pa.C.S. § 6704(b). Thus, although it is the child’s right to support, the child’s custodian has exclusive control to exercise or not to exercise the child’s right. By failing to commence an action for the child’s support within the statute of limitations, the custodian can forfeit the child’s right to ever receive support from the putative father. Therefore, appellant argues, the child is denied due process.

In some jurisdictions which have considered the due process argument against paternity statutes of limitations, the controlling issue has been whether the statute precludes the child’s only avenue for enforcement of the parent’s obligation for support. In some jurisdictions, the statutory procedure for obtaining support, to which the statute of limitations applies, is not the exclusive means of establishing paternity and support. Kaur v. Singh Chawla, 11 Wash.App. 362, 522 P.2d 1198 (1974) (to keep the statute of limitations from being declared unconstitutional, the court held that the statutory filiation procedures were not the exclusive means of securing the child’s right to support); Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974) (a child has a common law cause of action separate from the statutory bastardy proceedings). And in some jurisdictions, the statute of limitations has been interpreted as applying only to the mother or guardian’s right and not to the child’s right. Doak v. Milbaurer, 216 Neb. 331, 343 N.W.2d 751 (1984); Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974).

The only procedure for bringing a paternity and support action in Pennsylvania is pursuant to the support statute. 42 Pa.C.S. § 6701 et seq. Yet under this statute, the child’s custodian must bring the action and must do so while the child is still a minor. If the person who has custody of the child fails to file a complaint for support/paternity before the child is six years old, the child is foreclosed from seeking and obtaining support throughout the remainder of his minority even though, in theory, he has the right to support until he reaches majority.

It is the settled rule in Pennsylvania, “that it is not violative of any constitutional rights to hold minors bound equally with adults to the prescribed statutory periods within which legal causes of action may be brought.” Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982); Von Colln v. Pennsylvania Railroad Co., 367 Pa. 232, 80 A.2d 83 (1951). In DeSantis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981) a panel of the Superior Court seriously questioned the continuing validity of the Supreme Court’s rule stating: “a chose in action is a form of personal property that without question now belongs to the injured child himself, and yet he is legally debarred from pursuing his claim.” Id., 290 Pa.Superior Ct. at 542, 434 A.2d at 1276. The Supreme Court has not re-addressed the issue of whether children who are held to be equally bound to statutes of limitations with adults are denied due process, and the Superior Court has been compelled to continue to follow the long-established rule. Stein v. The Washington Hospital, 302 Pa.Super. 124, 448 A.2d 558 (1982). Until the Supreme Court changes its rule, we are bound to follow it. Therefore, we hold that the six year statute of limitations, 42 Pa.C.S. § 6704(e), does not deny due process.

IV.

Appellant’s final argument is that appellee should be equitably estopped from raising the statute of limitations as a defense because of his conduct towards her. Appellant avers that when she told appellee that she was pregnant with his child, he physically abused her and threatened her in order to prevent her from listing him as the child’s father on the birth certificate. As found by the trial court, however, even if appellee did threaten and abuse appellant, this behavior lasted only a few years after 1972, and there were at least six years in which to have commenced the action after the abuse ceased. Therefore, we find no merit to this argument.

Order affirmed.

      . Appellant has provided no notice to the Attorney General of her constitutional challenge to the statute in violation of Pa.R.C.P. 235 and Pa.R.A.P. 512.

      . Case law holds that blood tests are admissible as some evidence of paternity but are not conclusive. Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985); Connell v. Connell, 329 Pa.Super. 1, 477 A.2d 872 (1984); Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    518 A.2d 282
    COMMONWEALTH of Pennsylvania v. Kim MASON, Appellant. COMMONWEALTH of Pennsylvania v. Darryl LAMAR, Appellant. COMMONWEALTH of Pennsylvania v. Eugene MILLER, Appellant. COMMONWEALTH of Pennsylvania v. Darryl FORD, Appellant. COMMONWEALTH of Pennsylvania v. Gerald JONES, Appellant. COMMONWEALTH of Pennsylvania v. Mack SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued and Submitted May 24, 1986.
    Filed Nov. 5, 1986.
    Reconsideration Denied Dec. 2, 1986.

      Steven Dickstein, Philadelphia, for Kim Mason.
    Thomas L. McGill, Jr., Philadelphia, for Darryl Lamar.
    Francis X. Nolan, Philadelphia, for Eugene Miller.
    Christopher G. Bokas, Philadelphia, for Darryl Ford.
    Joseph P. Zawrotny, Philadelphia, for Gerald Jones.
    Vincent M. Lorusso, Philadelphia, for Mack Smith.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for the Com.
    Garold E. Tennis, Assistant District Attorney, Philadelphia, for the Com. in No. 1158.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.

      . 18 Pa.C.S.A. § 2502.

   DEL SOLE, Judge:

The procedural history of this case reveals that on June 13, 1979, the Philadelphia County Investigating Grand Jury of November 29, 1978 issued indictments charging each of the six Appellants with the following criminal offenses arising from two separate firebombing incidents of Philadelphia residences on December 3,1977: three separate counts of murder; two separate counts of arson, endangering persons and endangering property; causing a catastrophe and risking a catastrophe; and criminal conspiracy.

Pursuant to the Investigating Grand Jury Act (the Act), a probable cause hearing was scheduled but thereafter continued pending disposition of Appellants’ motions to quash which challenged the constitutionality of the Act for failure to provide a preliminary hearing following indictment. The motions were subsequently denied. However, since the Legislature had amended the Act to provide for a preliminary hearing after indictment, such a hearing was conducted at the conclusion of which Appellants were held for trial on all charges. Appellants also filed motions to dismiss based on alleged prosecutorial misconduct during the grand jury proceedings. These motions were denied.

Following the denial after hearing of Appellants’ suppression motions, a jury trial commenced on June 12, 1980. On June 27, 1980, guilty verdicts were returned on all counts against all Appellants with the exception of Appellant Smith. Appellants Jones, Mason and Ford were found guilty of first degree murder whereas Appellants Lamar and Miller were convicted of second degree murder. A mistrial was declared as to Appellant Smith because the jury was deadlocked. On retrial however, Smith too was found guilty on all counts and specifically second degree murder.

Post-trial motions were filed and denied. Each Appellant was sentenced to consecutive terms of life imprisonment for the three murder convictions and consecutive sentences of imprisonment imposed for the other convictions. Timely appeals from the judgments of sentence were filed, consolidated, and are presently before this Court for review.

A summary of the relevant facts indicates that on the evening of December 8, 1977, members of the “Taylor Street” gang prepared to retaliate for the firebombing of a members home by the rival “Pierce Street” gang. Appellant Ford reportedly phoned the home of Fitzgerald Lawrence telling him to purchase some gasoline. Present at the Lawrence home, and on an extension phone was Alex Harper. Ford told Harper to obtain bottles sufficient for firebombs. Shortly thereafter, Ford and other members of the Taylor Street gang arrived at the Lawrence home. It was alleged that the members included Appellants Smith, Lamar, Miller, and Jones. Ford gave Lawrence keys to a car in order to obtain gasoline while Lawrence’s brother Tyrone along with Harper and another individual, Keith Woodward, prepared for the arrival of the gasoline by obtaining bottles and tearing rags. Lawrence returned and the four filled six to ten “Colt 45” bottles with gas and placed rags into the bottlenecks. Ford reportedly then directed Lawrence to drive Lamar and an unidentified male to 2809 Mountain Street. Two other cars apparently went to a Gadson residence at 1380 Bancroft Street. Both homes were firebombed. At the Bancroft Street address, a woman and two children died in the fire. The Mountain Street residence failed to ignite as the bottle failed to break.

After grand jury indictment, Harper, Woodward, and both Lawrence brothers agreed to testify on behalf of the Commonwealth in return for favorable sentencing consideration on related crimes.

At trial, Fitzgerald Lawrence testified concerning the events of December 3, 1977 as well as to a conversation with Appellant Mason while both were incarcerated for unrelated crimes after the firebombings. Lawrence testified that Mason had admitted his participation in the firebombings.

Initially it is noted that:

[o]ne must either file post-verdict motions within ten days under Pa.R.Crim.P. 1123(a) or seek permission to file post-verdict motions nunc pro tunc under the Post Conviction Hearing Act as required by Pa.R.Crim.P. 1123(f). As we recently reiterated in Commonwealth v. Jackson, 336 Pa.Super. 609, 623, 486 A.2d 431, 439 (1984), “[o]ur Court will review only those issues which have been properly preserved for review, i.e., errors which have been raised specifically in written post-trial motions pursuant to Pa.R.Crim.P. 1123(a).”

Commonwealth v. Rosko, 353 Pa.Super. 307, 310, 509 A.2d 1289, 1290 (1986).

Additionally, “[w]e have not considered oral presentation adequate to preserve the issue since Commonwealth v. Blair, [460 Pa. 31, 331 A.2d 213 (1975)]”.... Commonwealth v. Gravely, 486 Pa. 194, 198 n. 1, 404 A.2d 1296 n. 1 (1979). “The only exception to this strict enforcement of the terms of Rule 1123(a) is the situation where an appellant, after failing to file proper motions, submits a brief raising alleged error and the post-verdict court, without objection, disposes of the appeal on the basis of the merits of the issues belatedly raised.” Commonwealth v. Bil hardt, 269 Pa.Super. 95, 98, 409 A.2d 81, 82 (1979). This exception does not exist for cases in which post-verdict motions were filed after September 4, 1979. Id., 269 Pa.Superior Ct. at 95 n. 1, 409 A.2d at 82 n. 1.

Our review of the record fails to locate any written post-trial motions on behalf of Appellant Ford. He does not qualify for an exception to this rule and we therefore conclude that the issues which he attempts to raise at this time are not preserved for review and the judgment of sentence as to Appellant Ford is affirmed.

Appellants first contend the trial court erred in excluding any reference to the psychiatric history of Fitzgerald Lawrence, either through cross-examination or by independent medical testimony.

[t]he crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness’s mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him.* The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime. See Commonwealth v. Repyneck, 181 Pa.Super. 630, 124 A.2d 693, allocatur refused, 181 Pa.Super. XXIV (1956).
[*] Pennsylvania’s position on the introduction of evidence of mental imbalance to discredit a witness who is admittedly competent to testify was first stated in dicta in Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479 (1931): “Mere mental derangement on some matter not connected with the subject of the litigation and not affecting the testimonial ability of the witness is not even to be considered by the jury in determining the credibility of the witness.” Id., 305 Pa. at 156, 157 A. 482-483.
This statement was later reaffirmed as the general rule in Commonwealth v. Towber, 190 Pa.Super. 93, 152 A.2d 917 (1959). Despite the recognition of a general rule of inadmissibility where the mental unsoundness is unrelated to the matter at hand, this Court in Towber went on to find reversible error where evidence of a psychopathic mental disorder requiring commitment 7 months prior to a burglary trial, offered to impeach an important witness, was refused.

Commonwealth v. Dudley, 353 Pa.Super. 615, 620, 510 A.2d 1235, 1238 (1986) quoting Commonwealth v. Butler, 232 Pa.Super. 283, 287-288, 331 A.2d 678, 680 (1974).

Appellants argue that Lawrence’s psychological problems were of such severity that the accuracy of his recollection of the events of December 3, 1977 is questionable. To this end, Appellants’ counsel attempted to introduce into evidence psychiatric records from the Philadelphia State hospital where Lawrence had been committed prior to trial. The court reviewed the psychiatric report on the record and noted that Lawrence was admitted in September 1978, discharged in November of that year and diagnosed as “schizophrenia, paranoid type with features of depression, mild mental retardation.” (Trial Transcript at 2027). The court further noted that the report indicated Lawrence had been taking Thorazine prior to this commitment and that this medication should continue upon his discharge. (Trial Transcript at 2207-2208). During his commitment, there is also an indication that Lawrence denied knowing his mother, who lived with him, heard voices, and was said to have poor remote and immediate recall. (Trial Transcript at 1031, 1035). The court determined the records to be inadmissible as there was not enough in them to show that Lawrence could not remember or testify as to the events of December 3, 1977. We disagree.

Because the information contained in the psychological reports “shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime” Commonwealth v. Butler, 232 Pa.Super. at 287-288, 331 A.2d at 680, the court erred in its determination that the psychological reports were inadmissible.

Impeachment of Lawrence’s testimony with evidence of his psychological problems was vital to the defense of Appellants Lamar and Smith as our review of the record indicates that Lawrence was the only individual to inculpate them. See Commonwealth v. Towber, 190 Pa.Super. 93, 152 A.2d 917 (1959) (finding reversible error where evidence of mental disorder offered to impeach important witness was refused). However, we are equally convinced that impeachment of Lawrence’s testimony with evidence of his psychological problems was not vital to the remaining Appellants defense. Appellants Mason, Jones, and Miller were implicated in the events of December 3, 1977 by the testimony of Harper and Woodward. Harper testified that Ford phoned and ordered him to obtain bottles for firebombs, (Trial Transcript at 874) and that "... Kim, he came in sometime ...” speaking of Mason. (Trial Transcript at 880). Harper saw no one else specifically, but only knew that others were present. (Trial Transcript at 881). Woodward though testified that he saw Mason on the third floor of the Lawrence home, (Trial Transcript at 1460) and while carrying bombs downstairs he saw Miller and Garwood at the door. (Trial Transcript at 1468). Neither Harper nor Woodward testified to seeing Lamar or Smith.

We therefore vacate the judgments of sentence with respect to Appellants Lamar and Smith.

The remaining Appellants, Jones, Mason and Miller next argue that the court erred in denying their motions to quash the indictments on the basis of alleged prosecutorial misconduct before the Grand Jury. The alleged misconduct is said to encompass: a) the eliciting of crimes totally unrelated to the matter under investigation, b) exploitation of the juror’s fears concerning the well being of witnesses and their families, and c) generalized character assassination of members of the gang simply by virtue of their membership.

This Court has recently noted that when presented with a motion to quash a grand jury indictment on the basis of alleged prosecutorial misconduct:

[t]he decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion____ A court, moreover, “should not sustain a motion to quash ... except in a clear case where it is convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights.”

Commonwealth v. Bradfield, 352 Pa.Super. 466, 477, 508 A.2d 568, 573 (1986). We further indicated that when comments of counsel are not so egregious, in view of the totality of the evidence presented to a grand jury, a court is not required to invalidate a presentment. Id.

Having reviewed the transcript, we do not find Appellant’s claim completely devoid of merit. However, there was ample credible evidence to support the presentment and the court did not err in denying the motions to quash.

Appellants Jones and Mason argue that their right to a prompt trial pursuant to Pa.R.Crim.P. 1100 has been violated. We disagree.

The indictments in this matter were returned on June 13, 1979 and for purposes of Rule 1100, trial was required to commence no later than 180 days thereafter. The Appellants filed a variety of motions to quash the indictments and because the motions remained unresolved for several months the Commonwealth filed petitions for extensions of time which were granted. Appellants contend the record fails to demonstrate why the delay, which they termed judicial delay, could not have been avoided as required by the Court in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). The flaw in Appellants’ argument is not in their understanding of Mayfield but rather in their characterization of the delay as judicial. In Commonwealth v. Bond, 350 Pa.Super. 341, 504 A.2d 869 (1986), this court en banc considered the effect of an appellants pre-trial motion to dismiss a complaint based on a constitutional challenge to the statute under which she had been charged. For purposes of Rule 1100, then President Judge Spaeth wrote in a concurring opinion that “the general requirement of Rule 1100, that the accused must be tried within 180 days, has certain exceptions, stated in the Rule itself and developed in the case law. Thus in calculating the 180-day period, one does not include a period during which the accused was ‘unavailable’, Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), ....” Commonwealth v. Bond, 350 Pa.Super. at 358, 504 A.2d at 878. Furthermore, it was stated that:

[t]he critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant’s motion to the date of the trial court’s order denying the motion should be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner. Id.

We find this reasoning to be dispositive of Appellant’s Rule 1100 claim. The delay in commencement of trial was not judicial but rather due to Appellants unavailability, and such periods of unavailability, as already indicated, are excluded from the 180-day Rule 1100 period. The time from July 16, 1979 when Appellants filed motions to quash the indictments until these motions were denied on October 4, 1979 is excludable as Appellants were unavailable. The new Rule 1100 run date became February 27, 1980. However, the record indicates that a motion to quash was filed November 14,1979 and denied March 12, 1980. In addition, a motion to dismiss was filed February 11, 1980 and denied May 16, 1980. The period between November 14, 1979 and May 16, 1980 is therefore also excludable. The result is that the new Rule 1100 run date became August 28, 1980. Voir dire began June 9, 1980, well within the time period mandated by Rule 1100.

Appellants Jones and Miller next aver the trial court abused its discretion in denying motions to sever. Appellants claim prejudice in that the jury was burdened in segregating the evidence as to each defendant and was affected by the evidence of gang involvement, equating gang membership with guilt in this case.

‘Questions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion.’ Commonwealth v. Tolassi, 258 Pa.Super. 194, 199, 392 A.2d 750, 753 (1978), aff’d, 489 Pa. 41, 413 A.2d 1003 (1980).... When the crimes charged arise from the same acts or series of acts and much of the same evidence is necessary or applicable to all defendants, a joint trial is ‘permissible, if not advisable.’ Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973).... Especially where a conspiracy to commit crime is alleged, the defendants should be tried together, ‘unless it can be shown that one or more of the defendant’s will be actually prejudiced by doing so.’ Commonwealth v. Johnson, 291 Pa.Super. 566, 582, 436 A.2d 645, 653 (1981).

Commonwealth v. Granberry, 346 Pa.Super. 395, 399, 499 A.2d 671, 673 (1985) quoting Commonwealth v. Hamm, 325 Pa.Super. 401, 409-10, 473 A.2d 128, 132-133 (1984).

In this case, the crimes charged arose from the same acts and much of the same evidence was applicable to all defendants. Additionally, one of the crimes charged was conspiracy. The record indicates that the jury deliberated over thirty hours. Further, three Appellants received second degree murder convictions, three received first degree murder convictions and with respect to one Appellant, the jury was deadlocked. There is no indication the jury had difficulty segregating the evidence as to each Appellant. The allegations of prejudice are general and our review discloses no manifest abuse of discretion by the trial court in denying the motions to sever.

Appellants Jones and Miller argue the trial court abused it’s discretion in denying their motions for mistrial based on a statement elicited by counsel for Appellant Ford from Fitzgerald Lawrence, that Ford had ordered him to kill someone, a crime unrelated to the present case. “The decision to declare a mistrial was within the sound discretion of the trial court and, absent a flagrant abuse of that discretion, the decision will not be reversed.” Commonwealth v. Thomas, 346 Pa.Super. 11, 17, 498 A.2d 1345, 1348 (1985). We fail to see how the statement could have prejudiced anyone other than Appellant Ford and had we not already found that Ford has failed to preserve any issue for appeal we note he has not even raised this contention in his brief. There was no abuse of discretion by the trial court in denying Appellants motions for mistrial.

It is next asserted that the trial court erred in limiting the number of peremptory challenges to seven during voir dire, establishing a policy of majority rule when counsel could not establish uniformity in the exercise of challenges, and in refusing to ask relevant questions.

The scope of voir dire examination rests with the sound discretion of the trial judge. Commonwealth v. Drew, 500 Pa. 585, 590, 459 A.2d 318 (1983). Absent a gross abuse of discretion, a reviewing court will not reverse the trial court’s ruling. Commonwealth v. Mayo, 272 Pa.Super. 115, 120, 414 A.2d 696 (1979). The lower court did not grossly abuse its discretion by disallowing defendant’s proposed questions.

Commonwealth v. Lark, 350 Pa.Super. 558, 565-566, 504 A.2d 1291, 1295 (1986).

Further:

[i]t had been provided by statute at the time of the instant trial that in noncapital felony cases the Commonwealth and the accused were each entitled to seven peremtory challenges. Act of October 7,1976, P.L. 1089, No. 217,19 P.S. § 811(a) (repealed). However, in trials involving more than one defendant, the defendants were entitled only to the maximum number any one of them would have received if tried separately.

Commonwealth v. Hamm, 325 Pa.Super. at 419, 473 A.2d at 137. There was no trial court error.

Appellants Jones and Miller contend the court erred in denying motions to suppress statements made to the police following arrest. Having reviewed the record, we find it contains no motion to suppress. Additionally we are perplexed by appellant Jones’ contention in this regard as he concedes the statement he made was not introduced at trial. “[T]his Court will not consider claims of error arising from the failure to suppress evidence not introduced at trial, unless it is alleged that there was some resulting infringement upon the defendant’s constitutional rights.” Commonwealth v. Horner, 492 Pa. 536, 539, 424 A.2d 1320, 1322 (1981). “Appellant’s complaint is thus merely an allegation that Appellant’ counsel would have handled the case differently had he known the Commonwealth would not introduce Appellant’s [statement]....” Id.

Appellant Miller makes the argument that his statement should have been suppressed as he was intoxicated at the time of arrest and when he gave his statement, rendering the statement involuntary.

In reviewing the ruling of a suppression court, the reviewing court’s initial task is to determine whether the factual findings are supported by the record. In making this determination, if the suppression court held for the prosecution, the reviewing court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole remains uncontradicted.

Commonwealth v. Monarch, 510 Pa. 138, 144, 507 A.2d 74, 78 (1986).

The suppression court found:

41. Upon his arrival at the Police Administration Building, Homicide Unit at 12:55 a.m., Miller appeared alert and responsive. He gave no signs of illness, nor of being under the influence of drugs or alcohol. There was no slurred speech and no indication of alcohol on his breath.

(Suppression Court Opinion at 9).

Our review of Detective Bennett’s testimony at the suppression hearing (Transcript of Suppression Hearing of June 3, 1980, at 253-289), indicates Appellant Miller appeared alert and responsive {Id. at 259), did not appear drunk (Id. at 261) did not stagger when he walked (Id. at 262), have slurred speech or the odor of alcohol on his breath. (Id.).

Although there was testimony that the Appellant vomited, Detective Bennett indicated this occurred after Appellant was shown the arrest papers charging him with murder and indicated he did not want to hear about the victims as it upset him. (Id. at 263-264).

Appellant testified that he had six or seven gin and grapefruit juice drinks and some beer (Transcript of Suppression Hearing of June 5, 1980 at 598) and characterized himself as drunk at the time of arrest. (Id.) However in explaining his condition further, he indicated he knew what was going on around him, his mind wasn’t foggy, knew who he was talking to and what he was saying (Id. at 598-599).

Given our scope of review, as previously indicated, we have no difficulty in determining that the factual finding of the court is supported by the record and there was no error in denying Appellants motion to suppress his statement.

Appellants Jones and Mason next allege the court erred in restricting the cross-examination of Keith Woodward and Alex Harper by refusing to permit the introduction of independent evidence to impeach credibility, and to show motive, bias and interest. This argument with respect to the cross-examination of Alex Harper is waived as it does not appear in Appellants post-trial motions. See Commonwealth v. Gravely, 486 Pa. 194, 198 n. 1, 404 A.2d 1296, 1296 n. 1 (1979); Commonwealth v. Rosko, 353 Pa.Super. 307, 308-09, 509 A.2d 1289, 1290 (1986); Commonwealth v. Bilhardt, 269 Pa.Super. 95, 98, 409 A.2d 81, 82 (1979).

“The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.” Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986). Appellants wished to show Woodward’s bias through cross-examination on a charge of terroristic threats/retaliation against a witness which had been lodged against him in an unrelated case. Appellant hypothesizes that Woodward was motivated to testify against Appellants because a bench warrant arising from Woodward’s failure to appear at a hearing on the terroristic threats charge was lodged against him moments after his preliminary hearing on the charges in the case sub judice. Our review of the record reveals that the jury was well informed of Woodward’s motivation for testifying. The jury heard that a) the Commonwealth dropped all murder charges against Woodward in spite of his admitted involvement (Trial Transcript at 1480); b) in place of up to three consecutive life sentences he could have received, Woodward would receive a single sentence of eleven and one-half to twenty-three months in prison following his guilty plea to arson, conspiracy, and manufacturing incendiary devices (Trial Transcript at 1480, 1495-96); c) the Commonwealth agreed not to oppose Woodward’s bail petition (Trial Transcript at 1481), and; d) Woodward admitted on cross-examination that he was testifying to save “my own skin” (Trial Transcript at 1498).

Appellants further assert that the court erred in denying a Motion In IAmine to prohibit the introduction of evidence concerning Appellants gang activities and prior crimes. We disagree. Testimony concerning the criminal homicide is “inextricably interwoven with a history of gang warfare.” Commonwealth v. Johnson, 496 Pa. 546, 549, 437 A.2d 1175, 1176 (1981). Additionally, since Appellants were “charged with criminal conspiracy, evidence of the gang activity in the present case is highly probative of whether a conspiracy existed.” Commonwealth v. Gwalt ney, 497 Pa. 505, 514, 442 A.2d 236, 241 (1982). Accordingly, we find that the trial court did not err in denying Appellant’s motion. With our resolution of this claim, it is noted that there are no remaining issues asserted by Appellant Mason and therefore judgment of sentence as to Appellant Mason is affirmed.

Appellants Jones and Miller contend the court erred in instructing the jury in its charge on conspiracy and further in answering a jury question in that the court failed to distinguish in the conspiracy charge among knowledge, presence and mere association, and improperly defined transferred intent. Appellant Miller also contends the court erred when refusing to charge the jury on the special treatment given and self-interest of the two witnesses, Woodward and Lawrence.

“In viewing jury instructions for reversible error, we must read the charge as a whole. Error cannot be predicated on isolated excerpts of the charge; it is the general effect that controls.” Commonwealth v. Sweger, 351 Pa. Super. 188, 194, 505 A.2d 331, 334 (1986). Further, “[a] trial court is not required to accept requested points for charge verbatim, but is free to use its own form of expression so long as the applicable law is clearly, adequately, and accurately explained to the jury.” Id.

We have reviewed and find the courts instructions concerning conspiracy to be an accurate reflection of the law. While Appellants are correct that mere presence at the scene of a crime is insufficient to establish the existence of a criminal conspiracy, Commonwealth v. Gordon 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347, (1984), it does not necessarily follow that they are entitled to an instruction to that effect. Appellants’ position throughout trial was that they were not present at the crime scene at all. The Commonwealth in contrast presented witnesses who testified to the Appellants affirmative involvement in preparing to commit the firebombing.

A trial judge need not include in his instructions to the jury a principle of law that bears no relationship to the issues in the case, or that is inconsistent with either party’s position. Certainly, the Commonwealth’s position was that appellant was far more than merely present at the scene____ Appellant’s position was that he was not present at all____ Therefore, there was no reasonable basis, in fact, for inclusion of a charge on ‘mere presence’.

Commonwealth v. Keaton, 276 Pa.Super. 518, 524-525, 419 A.2d 578, 581-582 (1980).

The court also correctly instructed the jury as to the suspect nature of Woodward’s and Lawrence’s testimony as follows:

Fitzgerald Lawrence and Keith Woodward have pled guilty to the same crimes with which the defendants are charged.
Experience shows that after being caught in the commission of a crime, a person may falsely blame others because of some corrupt and wicked motive or in the furtherance of his own selfish interest. On the other hand, sometimes such a person may tell the truth about how he and others committed the crime together. In deciding whether or not to believe Alex Harper, Fitzgerald Lawrence, and Keith Woodward, you should be guided by the following principles which apply specifically to their testimony.
First, the testimony of Alex Harper, Fitzgerald Lawrence and Keith Woodward should be looked upon with disfavor as coming from corrupt and polluted sources.
Second, you should closely and separately examine the testimony of Alex Harper, Fitzgerald Lawrence and Keith Woodward and accept the testimony of each only with caution and care.

(Trial Transcript at 2269-70) (emphasis added).

Based on the foregoing, the judgments of sentence as to Appellants Mason, Miller, Ford and Jones are affirmed. Judgments of sentence as to Appellants Lamar and Smith are vacated and their cases are remanded for new trials. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3301.

      . 18 Pa.C.S.A. § 3302.

      . 18 Pa.C.S.A. § 903.

      . Act of November 22, 1978, P.L. 1148, 19 P.S. § 265 et seq., "repealed and reenacted into the Pennsylvania Statutes by the Act of October- 5, 1980, P.L. 693, No. 142, § 216, 42 P.S. § 20010. et seq., the ‘JARA Continuation Act of 1980’. The effect of this Act was to transfer 19 P.S. §§ 265-276 to 42 Pa.C.S. § 4541-4553.” Commonwealth v. Taraschi, 327 Pa.Super. 179, 193-194, 475 A.2d 744 (1984).

      . One issue raised by all Appellants is that the indictments issued by the Investigating Grand Jury should have been quashed based on prosecutorial misconduct in the grand jury proceedings. In support, Appellants cited examples from the grand jury transcripts which alleged a pattern of misconduct by the grand jury prosecutor. On review of the record, it was determined that this Court was without the benefit of the original transcripts of the grand jury proceedings nor had there been any opinion filed by the trial court stating its reasons for the denial of Appellants’ motions to dismiss or its dismissal of the argument on post-verdict motions. Therefore, we remanded the case to the trial court for the filing of an opinion on the issue of prosecutorial misconduct in the grand jury proceedings. In addition, the court was directed to seal and file with the prothonotary of this court the original transcripts of the grand jury proceedings. Commonwealth v. Garwood, No. 1287 Philadelphia 1981 (filed March 8, 1985). As the trial court has complied with this Court’s mandate, we are now able to address the merits of Appellant’s arguments.

      . Lawrence testified at the trial following which Appellants were convicted and again at Smith’s retrial.

      . It is unnecessary to address the remaining issues raised by Appellants Lamar and Smith due to our disposition of their appeals on the basis of improperly excluded impeachment evidence.

      . Appellant Jones, in his brief on appeal, has argued that the trial court’s denial of his motion to quash the indictment on the ground of pre-arrest delay was error. Appellant has failed to preserve the issue by filing a written post-trial motion on this alleged error and it is not considered. See, Commonwealth v. Gravely, 486 Pa. 194, 198 n. 1, 404 A.2d 1296, 1296 n. 1 (1979); Commonwealth v. Rosko, 353 Pa.Super. 307, 310, 509 A.2d 1289, 1290 (1986); Commonwealth v. Bilhardt, 269 Pa.Super. 95, 98, 409 A.2d 81, 82 (1979).

      . In Commonwealth v. Mallon, 356 Pa.Super. 493, 515 A.2d 1 (1986) this court held "in cases originating with investigating grand jury presentments which are referred to the prosecutor, the Rule 1100 period begins to run only after the prosecutor, reaches the decision to prosecute the defendant, publicly accusing him through the filing of a criminal complaint." Id. In the present case, the Investigating Grand Jury issued indictments, a practice the Appellants have not challenged on appeal and which was permitted by the Act of November 22, 1978, See supra., n. 5.

      . In a concurring opinion joined in by Judges Rowley, Beck and Tamilia, Judge Wieand agreed that, "trial could not be commenced until ... the trial court rendered a decision on appellant’s pre-trial motions. In the interim, as Judge Spaeth has observed, appellant’s pre-trial motion had, in effect, rendered her unavailable for trial.” Commonwealth v. Bond, 350 Pa.Super. at 364, 504 A.2d at 881. Judge Brosky filed a concurring opinion in which he joined the concurring opinion of Judge Spaeth. Id., 350 Pa.Superior Ct. at 361, 504 A.2d at 880.

      . The comment to Pa.R.Crim.P. 1100 provides in part, "For the purpose of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire____”

      . Appellant Miller’s additional assertion that his request for severance should have been granted because he requested a bench trial is unavailing as he specifically requested a trial by jury. (Trial Transcript of 9/9/80 at 770).

      . Present practice is controlled by Pa.R.Crim.P. 1126 which provides in pertinent part:
      (b) Trials Involving Joint Defendants:
      (1) In trials involving joint defendants, the defendants shall divide equally among them that number of peremptory challenges that the defendant charged with the highest grade of offense would have received if tried separately, provided, however, that each defendant shall be entitled to at least two (2) peremptory challenges. Where such division of peremptory challenges among joint defendants results in a fraction of a peremptory challenge, each defendant shall be entitled to the next highest number of such challenges.

        (2) In trials involving joint defendants, it shall be within the discretion of the trial judge to increase the number of peremptory challenges to which each defendant is entitled up to the number of peremptory challenges that each defendant would have received if tried alone.


author:
WIEAND, Judge:
      DEL SOLE, Judge,

text:
    518 A.2d 292
    COMMONWEALTH of Pennsylvania, Appellee, v. Marlin E. SESLER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed Nov. 19, 1986.

      Alexander H. Lindsay, Jr., Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Marlin E. Sesler, Jr. was tried by jury and was found guilty of operating a vehicle while under the influence of alcohol and operating a vehicle with a blood alcohol content in excess of .10 percent. He was also found guilty by the court of speeding, a summary offense. On direct appeal, Sesler argues that the results of the intoxilyzer test should not have been received into evidence because the equipment had not been calibrated as required by statute. We reject this argument and affirm the judgment of sentence. However, the fine for speeding will be modified to comply with the statutory mandate.

Sesler was arrested and an intoxilyzer test was administered on May 26, 1984. It measured the alcohol in Sesler’s blood at .18 percent. At an evidentiary hearing to determine the admissibility of the test results, the evidence showed that the police had used a Model 4011-AS. This was an approved device. It had been tested and found accurate on May 9, 1984. The equipment had been calibrated permanently at the factory. The qualifications of the officer using the equipment to administer the test were not challenged. Sesler argued that the results of the test were inadmissible because the Model 4011-AS had not been calibrated pursuant to regulations of the Departments of Health and Transportation as required by statute. The trial court rejected Sesler’s argument, and the test results were received in evidence. On appeal, Sesler renews his argument that the test results were inadmissible because the intoxilyzer had not been calibrated. It is undisputed that at the time when the test was conducted, regulations with respect to calibration had not been adopted by the Departments of Health and Transportation.

“The technique of testing breath samples for blood alcohol content has general acceptance in the scientific community, and thus meets the test for admissibility of scientific evidence....” See: United States v. Smith, 776 F.2d 892, 898 (10th Cir.1985). The failure to “calibrate” the instrument, if relevant to attack the weight of test results, does not render those results inadmissible. See: United States v. Smith, supra; United States v. Benally, 756 F.2d 773 (10th Cir.1985).

In Pennsylvania, the legislature has established by statute that the amount of alcohol in a person’s blood, as shown by chemical testing of the person’s breath, is admissible in evidence if the tests “were conducted by qualified persons using approved equipment.” 75 Pa.C.S. § 1547(c). See also: Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986). The intoxilyzer used to measure the alcoholic content of appellant’s blood was an approved device, and the qualifications of the person using the equipment were not challenged.

Appellant contends that the results of tests “conducted by qualified persons using approved equipment” are nevertheless inadmissible unless the equipment “shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation.” 75 Pa.C.S. § 1547(c)(1). On the date of appellant’s arrest, the Departments of Health and Transportation had by regulations established the time and manner for testing devices for accuracy. On that date, however, the Departments had not adopted regulations pertaining to the calibration of such devices. The reason was explained by the Departments when regulations were subsequently promulgated:

This calibration procedure has been added to the proposal to remove whatever confusion may have existed relating to the phrase “calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation,” 75 Pa.C.S. § 1547(c). The Departments believe that “calibrated” refers to the requirement that breath test devices be tested and adjusted for accuracy in accordance with the manufacturer’s specifications, particularly following malfunction and prior to being placed back into service. It is the position of the Departments that §§ 77.5(b) and 77.6(b)(4) of the interim regulations require that this be done. However, defense attorneys in several counties have raised the issue that the existing regulations do not specifically provide for “calibration” and several judges ... have held that “calibrated” means that breath test devices should be tested for accuracy across a range of readings on a periodic basis. Although the Departments do not agree with this reading of section 15j7(c) of the Vehicle Code, they have added such a procedure to remove any doubt about the validity of breath test results.

Pa.Bull., Vol. 14, No. 51, Saturday, December 22, 1984 (emphasis added).

We reject appellant’s argument that the absence of regulations establishing the time and manner of calibration on May 26, 1984 rendered inadmissible the results of the breath test administered to him. In the first place, the statutory requirement for admissibility of test results is that the tests be “conducted by qualified persons using approved equipment.” These requirements were met in the instant case.

Secondly, the statutory language “within a period of time and in a manner specified by regulations ...,” refers only to the words “tested for accuracy.” This language was not intended to require regulations pertaining to the “calibration” of breath testing devices. If approved equipment has been calibrated at the factory and has been tested for accuracy as “specified by regulations,” there is no reason for refusing to receive test results in evidence so long as the equipment has been used by a qualified person. Here, the calibration had been done at the factory. Moreover, the equipment had been tested for accuracy within thirty (30) days of its use as required by regulations of the Departments of Health and Transportation. This was sufficient to render the test results admissible in evidence. The failure to make a recent test of the equipment’s calibration, if such was the case, was relevant with respect to the weight to be given the test results, but it did not render the results incompetent or inadmissible.

We have also examined the trial court’s instructions to the jury, particularly as they pertained to the Commonwealth’s burden of proving appellant guilty beyond a reasonable doubt. These instructions were full, complete, and accurate. Contrary to appellant’s assertion, they did not cause the burden of proof to be shifted because of the test results. With respect to the burden of proof, the trial court was quite clear. The court specifically instructed the jurors that if they had any reasonable doubt as to whether appellant had violated either subsection (1) or (4) of 75 Pa.G.S. § 3731(a), they should find appellant not guilty of either or both charges. These instructions were not erroneous.

Therefore, we will affirm the judgment of sentence for driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(1) and (4). However, we will reduce the fine for speeding from $85.00 to $65.00. The trial court in an opinion written pursuant to Pa.R.App.P. 1925(a) has conceded with commendable candor that the fine imposed was in violation of the statute. See: 75 Pa.C.S. § 3362. Rather than remanding for resentencing, we will amend the fine to $65.00.

The judgment of sentence for driving while under the influence of alcohol is affirmed. The judgment of sentence for speeding is modified as set forth in the foregoing opinion and as so modified is affirmed.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

While I have no objection to the majority’s modification of the fine imposed on Appellant for speeding, I strongly disagree with the majority’s conclusion that the results of the intoxilzer test administered to Appellant were admissible in evidence.

In Pennsylvania the legislature has declared by statute the circumstances where the results of a chemical test of a person’s breath are sufficiently reliable to be admissible in evidence in a criminal proceeding. 15 Pa.C.S.A. § 1547(c)(1) provides:

“(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments of Health and Transportation. Devices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation. For purposes of breath testing, a qualified person means a person who has fulfilled the training requirements in the use of the equipment in a training program approved by the Departments of Health and Transportation. A certificate or log showing that a device was calibrated and tested for accuracy and that the device was accurate shall be presumptive evidence of those facts in every proceeding in which a violation of this title is charged.” (emphasis added)

At the time Appellant was tested, there were established provisions for inspecting the accuracy of equipment. See: 67 Pa.Code § 77.3 — § 77.6. To determine accuracy, the regulations provide that an inspection must be made within thirty days prior to the use of the device. In this case an intoxilyzer Model 4011-AS was used, which is an approved device, and the officer testified he performed the required inspection tests 17 days prior to Appellant’s test.

Although this device was “tested for accuracy” according to the regulations, the intoxilyzer was never “calibrated”. 75 Pa.C.S.A. § 1547(c)(1) states: “(d)evices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation”. I believe the statute mandated creation of, and compliance with, the calibration regulations as a condition precedent to the admissibility of test results. However, the Departments of Health and Transportation had not promulgated testing regulations regarding “calibration” as they had done for “accuracy” at the time Appellant was administered the intoxilyzer. Such regulations were later enacted and the Departments of Health and Transportation now require annual calibration of breath testing equipment. See: 67 Pa.Code § 77.26(a), adopted December 21, 1984, effective December 22, 1984.

Other jurisdictions have considered similar situations in which a statute had delegated the authority to promulgate rules or regulations to an administrative agency. Where the rules or regulations pertaining to conducting a test of blood alcohol concentration were not promulgated by the administrative agency which was delegated the authority to do so by statute, the courts have held the test results to be inadmissible. See: State v. Jones, La., 316 So.2d 100 (1975); State v. Karol, — La.—, 316 So.2d 106 (1975); State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967), (which held the requirements of the statute were mandatory and not permissive).

A test for calibration serves a different purpose than a test for accuracy. See: Commonwealth v. Simmeth, 133 P.L.J. 242 (1984). The regulations, in describing a test for accuracy, proscribe the use of a standard level of solution (.10 percent). Five vials of this solution must be tested in the device. To establish the intoxilyzer’s accuracy the same level of alcohol concentration should register. On the other hand, a test for calibration measures graduated levels. This process insures the correct value of each scale reading on the instrument, whereas with an accuracy test the machine’s validity is established at only one particular level.

After examining the distinct purpose of each test procedure, it appears clear why the legislature foresaw the need to require both calibration and accuracy tests before a subject's intoxilyzer results could be deemed accurate. The necessity for such a requirement becomes readily apparent when considering the tremendous significance attributed to intoxilyzer and breathalyzer results in establishing a defendant’s guilt or innocence. Regardless of the general reliability of these devices, the heavy reliance placed upon the results obtained from these tests necessitates that the directives of the statute requiring proscribed methods for calibration and accuracy testing be followed to insure the device was functioning properly at the time of its administration.

In Commonwealth v. Hess, 349 Pa.Super. 440, 503 A.2d 448 (1986), this court considered a situation where the approval of the device and the procedures for administrating the test in accordance with 75 Pa.C.S.A. § 1547(c)(1) were satisfied prior to trial but not prior to administration of the test. The court stated: “It cannot be said that the reliability of the test result is vitiated if approval of the device and the procedures comes after the administration of the test.” Id., 349 Pa.Superior Ct. at 442, 503 A.2d at 449. (emphasis added). In the instant case, however, the lack of calibration testing did involve the reliability of the test result. Further there was no testimony that the device was calibrated within one year of its administration to Appellant as required under the later developed regulations of the Departments of Health and Transportation.

Prior to admitting a defendant’s test results into evidence, the breath testing instrument must be both calibrated and tested for accuracy in accordance with regulations developed by the Departments of Health and Transportation. Inasmuch as the Departments of Health and Transportation had failed to promulgate regulations regarding calibration, in addition to those already created regarding accuracy, the testing instrument utilized in this case was not calibrated as required. For these reasons, I believe this court has no choice but to rule the intoxilyzer results herein inadmissible, vacate Appellant’s judgments of sentence on these charges and remand the case for a new trial.

      . 75 Pa.C.S. § 3731(a)(1).

      . 75 Pa.C.S. § 3731(a)(4).


text:
    518 A.2d 297
    COMMONWEALTH of Pennsylvania v. Robert G. KINCADE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1986.
    Filed Nov. 21, 1986.

      Dan P. Wimer, New Castle, for appellant.
    William M. Panella, District Attorney, New Castle, for Com., appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Appellant was charged with criminal trespass, simple assault, and criminal mischief. At the close of the Commonwealth’s case, the court granted a motion to dismiss the charge of criminal trespass and stated, “[t]he motion of the Defendant to dismiss or order a directed verdict on the criminal mischief charge ... is refused; however the degree of the offense is reduced to a summary.” (Trial Transcript at 132). The court at that time also removed the charge of criminal mischief from the jury. Appellant was subsequently found not guilty of simple assault and the court found Appellant guilty of criminal mischief. Post-trial motions were filed and denied. Thereafter Appellant was sentenced to ninety days probation, fined two hundred fifty dollars and ordered to pay the costs of prosecution. This timely appeal followed.

On appeal, Appellant asks:

1. Whether a person can be found guilty of criminal mischief when the Commonwealth introduces no evidence as to pecuniary damage.
2. Whether trial counsel was ineffective for:
a. failing to sufficiently raise the issue of Appellant’s ownership of the property in question.
b. failing to object to the District Attorney’s conflict in representing Appellant’s adversary in a related civil action.
c. failing to object when the court took the charge of criminal mischief from the jury’s consideration.

Appellant’s initial claim is that absent evidence of pecuniary damage, there can be no conviction for the summary offense of criminal mischief. We disagree.

Appellant was charged with a violation of 18 Pa.C.S.A. § 3304(a)(2) which states:

(a) Offense defined. A person is guilty of criminal mischief if he:
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property;

18 Pa.C.S.A. § 3304(a)(2).

Pecuniary damage is not an element of the charged offense of criminal mischief. With respect to the grading of the offense, 18 Pa.C.S.A. § 3304(b) provides:

(b) Grading. Criminal mischief is a felony of the third degree if the actor intentionally causes pecuniary loss in excess of $5,000, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service. It is a misdemeanor of the second degree if the actor intentionally causes pecuniary loss in excess of $1,000, or a misdemeanor of the third degree if he intentionally or recklessly causes pecuniary loss in excess of $500. Otherwise criminal mischief is a summary offense.

18 Pa.C.S.A. § 3304(b) (emphasis added).

We decline Appellant’s invitation to read into the statute that which is not there. Proof of pecuniary loss is not required by the statute when criminal mischief is charged under 18 Pa.C.S.A. § 3304(a)(2) as a summary offense.

Appellant next contends trial counsel was ineffective in several respects.

Pennsylvania law regarding ineffectiveness of counsel is well documented. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit, and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests ____ In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial.

Commonwealth v. Brandt, 353 Pa.Super. 250, 252-53, 509 A.2d 872, 874 (1986).

Trial counsel is first said to have been ineffective for failing to sufficiently raise the issue of Appellant’s ownership of the property in question. Appellant directs our attention to Commonwealth v. Shaffer, 32 Pa.Super. 375 (1907) wherein this Court discussed the offense of malicious mischief and noted, “where the injurious act is done or committed in the exercise or enforcement of what the defendant honestly believes to be his legal right, even though such belief should be a mistaken one, there can be no conviction.” Id., 32 Pa.Superior Ct. at 379-380.

It is necessary to distinguish a claim that the trial court erred in finding Appellant guilty of criminal mischief when he reasonably believed he owned the property in question from the issue of whether counsel was ineffective for failing to sufficiently raise the issue of Appellant’s ownership of the property. Alleged error by the trial court on this matter is not before us. The record reflects that Appellant’s alleged ownership of the property was sufficiently raised. Appellant points out:

The trial transcript in this case contains numerous references to the fact that the ownership of portions of the sewer pipeline was disputed between Mr. Kincade and Laurel Courts, Inc. which ran the trailer park. The Defendant ordered several other people, “to get off his property”. (T.N. P. 40). This was at the location of the manhole in question. The person who was the victim of the alleged assault also testified that he had knowledge of the dispute over the ownership of the sewer line in question. (N.T. p. 111). This person was also an officer of the corporation which ran the trailer park adjacent to Defendant’s property. Also the Defendant testified that, “they are on my property and the sewer line is on my property. So what’s contained on my property belongs to me.” (N.T. p. 138).
The Defendant testified that there had been a survey performed at the request of the trailer park. The defendant also stated that the surveyor had testified at a prior proceeding that the manhole in question was not on the trailer park’s right of way, but rather was on the property of the Defendant.

(Appellant’s Brief at 6-7).

We therefore reject Appellant’s claim of ineffectiveness of counsel on this point.

It is next asserted that counsel was ineffective for failing to object to the District Attorney’s conflict in representing Appellant’s adversary in a related civil action. Appellant acknowledges that the District Attorney did not serve as trial counsel at the criminal trial and fails to assert in any event impropriety on the part of the staff of the District Attorney’s office trying the case. “[C]ounsel will not be considered ineffective for failure to assert a merit-less claim.” Commonwealth v. Buehl, 510 Pa. 363, 379, 508 A.2d 1167, 1175 (1986).

Finally Appellant argues that counsel was ineffective for failing to object when the court took the charge of criminal mischief from the jury’s consideration.

“A summary offense is one punishable by ninety days imprisonment, or a $300 fine, or both. See 18 Pa.C.S. §§ 106(c)(2); 1101(6).” Eichenlaub v. Eichenlaub, 340 Pa. Super. 552, 558, 490 A.2d 918, 921 (1985). “The Constitution requires that one accused of a ‘serious offense’ be given a jury trial.” Commonwealth v. Mayberry, 459 Pa. 91, 97, 327 A.2d 86, 89 (1974).

The question becomes whether the crime charged ... is ‘serious’. The test is clear. The decisions of the Supreme Court of the United States ‘have established a fixed dividing line between petty and serious offenses: those crimes carrying more than six months sentence are serious and those carrying less are petty crimes.’

Id., 459 Pa. at 98, 327 A.2d at 89.

Appellant was not entitled to a trial by jury on the summary offense of criminal mischief and counsel can not as a result be found ineffective for failing to object when the court took the charge from the jury’s consideration.

Order affirmed.

      . 18 Pa.C.S.A. § 3503(b)(1).

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 3304(a)(2).

      . Although not raised by the parties:
      [w]e note that a motion for dismissal of the charges, made after the jury has been empaneled and opening statements have been made, is not a proper motion at that stage of the proceedings. Commonwealth v. Africa, 281 Pa.Super. 419, 428, 422 A.2d 539, 543 (1980). A motion for dismissal may only be made prior to the commencement of trial. Commonwealth v. Africa, supra. Pa.R.Crim.P. 315.

        Commonwealth v. Adams, 349 Pa.Super. 200, 211, 502 A.2d 1345, 1351 (1986).
      The procedure which Appellant should have followed at this stage of the proceeding is set forth at Pa.R.Crim.P. 1124 which states in pertinent part:
      (a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged by a:
      (1) demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth’s case in-chief.

      . In his brief on appeal, Appellant raises the following additional questions:
      1. Whether a person can be found guilty of criminal mischief when the defendant reasonably believes that he owned the property in question.
      2. Whether the defendant can be convicted of a crime which is directly related to a civil action in which the District Attorney represents the Defendant’s adversary.
      3. Whether the Court erred in removing the charge of criminal mischief from the jury’s deliberation.
      ‘[I]t is no longer merely a warning, but the law, that all issues not specifically raised in post-verdict motions are waived on appeal.’
        Commonwealth v. Cardona, 316 Pa.Super. 381, 386, 463 A.2d 11, 14 (1983). See also Pa.R.Crim.P. 1123(a), (c)(3).

        Commonwealth v. Little, 354 Pa.Super. 546, 554, 512 A.2d 674, 678 (1986).

      . Appellant’s argument on this issue is waived. See supra n. 5.


author: HOFFMAN, Judge:

text:
    518 A.2d 300
    COMMONWEALTH of Pennsylvania v. Desmond BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 25, 1986.
    Filed Nov. 26, 1986.

      James R. Protasio, Williamsport, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before WATKINS, HOFFMAN, and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for unlawfully dispensing controlled substances and falsifying or failing to provide material information. Appellant contends that the trial court erred in denying his motion to suppress evidence obtained through an administrative inspection warrant issued by a district justice. We find this contention to be meritless and affirm the judgment of sentence.

On April 12, 1985, appellant was arrested and charged with several counts of unlawfully dispensing controlled substances and falsifying or failing to provide material information in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 to 780-144. Appellant filed a pre-trial motion to suppress evidence obtained pursuant to an administrative inspection warrant on the grounds that the warrant was defective because it was issued by a district justice. His motion was denied. Appellant was convicted and sentenced to a three-to-twenty-three month term of imprisonment. He filed post-verdict motions again alleging that the warrant was defective because it was issued by a district justice. The motions were denied and this appeal followed.

Appellant contends that the trial court erred in denying his motion to suppress evidence obtained pursuant to an administrative inspection warrant. Specifically, appellant argues that the warrant was defective because it was issued by a district justice who has no authority to issue such warrants. We disagree.

The Controlled Substance, Drug, Device and Cosmetic Act provides in pertinent part that:

Any judge of a court may, within its territorial jurisdiction, and upon proper oath or affirmation showing probable cause, issue warrants for the purpose of conducting administrative inspections authorized by this act or regulations thereunder, and seizures of property appropriate to such inspections.

35 P.S. § 780-124(d)(l). The Act defines “court” as:

all courts of the Commonwealth of Pennsylvania including magistrates and justices of the peace.

Id. at § 780-102.

As used in the Act, a “court” is any court of the Commonwealth, including the court of a district justice. All courts may hear applications for administrative inspection warrants under the Act. An administrative inspection warrant may be issued by any judge of a court. Thus, it follows, that when an application for an administrative inspection warrant is made to the court of a district justice, it will be a district justice who issues the warrant. Accordingly, we conclude that the administrative inspection warrant was not defective because it was issued by a district justice.

For the above-stated reason, we affirm the judgment of sentence.

Affirmed.

      . An express reference in any statute or other law to a justice of the peace or to the office of justice of the peace shall hereafter be deemed a reference to a district justice or the office of district justice. Any person appointed or elected to judicial office in a magisterial district shall be known as and hereafter shall be commissioned as the "district justice” in and for the appropriate magisterial district.
      42 Pa.S.A. § 20003(d).


author:
JOHNSON, Judge:
      BECK, Judge,

text:
    518 A.2d 302
    John S. ZIZZA, Jr., Appellant, v. DRESHER MECHANICAL CONTRACTORS, INC. and The Philadelphia Electric Company and Plymouth Transport, Inc. John S. ZIZZA, Jr. v. DRESHER MECHANICAL CONTRACTORS, INC. and the Philadelphia Electric Company and Plymouth Transport, Inc. Appeal of PLYMOUTH TRANSPORT, INC.
    Superior Court of Pennsylvania.
    Argued June 30, 1986.
    Filed Nov. 28, 1986.

      Robert J. Greenberg, Broomall, for appellant (at 3222) and for appellee (at 3277).
    Thomas K. Ellixson, Morton, for appellant (at 3277) and for appellee (at 3222).
    Andrew L. Braunfeld, Norristown, for Dresher, appellee.
    Kevin Connors, Philadelphia, for Philadelphia Elec., appellee.

      Before CIRILLO, President Judge, and WICKERSHAM, BROSKY, McEWEN , OLSZEWSKI, MONTEMURO, BECK, KELLY and JOHNSON, JJ.

       McEwen, J. recuses himself.

   JOHNSON, Judge:

We are asked to determine whether the owner of a construction site and the contractor on that site qualify as statutory employers of a subcontractor’s employee, and are thus immune from an action at law for damages under the Pennsylvania Workmen’s Compensation Act (the Act). Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1, et seq. We find that the owner does not qualify as a statutory employer, but that the contractor does qualify as a statutory employer within the meaning of the Act.

This case comes to us on appeal from orders granting motions for summary judgment. Pennsylvania Rule of Civil Procedure 1035 provides that on a motion for summary judgment:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b).

The facts viewed in this way are as follows. John Zizza Jr. commenced the instant suit to recover damages from the Philadelphia Electric Company (PECO), Dresher Mechanical Contractors, Inc. (Dresher), and Plymouth Transport, Inc. (Plymouth), for injuries he suffered when a trench that he was digging collapsed and injured his right leg. The injury occurred on the premises of the Cromby Generating Station (station) in Phoenixville, Pennsylvania. At the time of the injury PECO was the owner of the station and its premises. PECO had entered into a contract with Dresher for the provision of mechanical and excavation work at the station, which included installation of underground piping to carry run-off water from a coal pile to a waste treatment building. Dresher entered into a subcontract with Heller and Karpowich, Inc., for whom Zizza worked at the time of the injury, to provide backfill and excavation work incident to the laying of the run-off piping. At the time Zizza was injured, Plymouth was operating heavy trucks at the site.

The court below granted motions for summary judgment in favor of PECO and Dresher on the basis that each qualified as a statutory employer under the Workmen’s Compensation Act, and was therefore immune from suit. Plymouth and Zizza appeal from the orders granting the motions for summary judgment and entering judgment in favor of PECO and Dresher.

We are thus asked to determine whether Dresher and PECO are Zizza’s statutory employers within the meaning of the Act.

We address first the question of whether Dresher, the general contractor, qualifies as a statutory employer. The Workmen’s Compensation Act, Section 203, establishes the requirements for statutory employer status in negligence actions in the following language:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

Act of June 2, 1915, P.L. 736, art. II, § 203 as amended; 77 P.S. 52. In the seminal case of McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), our supreme court enunciated the five elements essential to create the relation of statutory employer under section 203. The court stated them as follows:

(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

Id., 302 Pa. at 295, 153 A. at 426. This Court continues to follow these criteria in evaluating a claim of statutory employer status. Cranshaw Construction Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981).

We believe that there is no genuine issue that Dresher, the employer, was under contract to PECO, the owner, to perform certain excavation work. This contract is appended as Exhibit C to PECO’s motion for summary judgment. Affidavits attached to Dresher’s motion for summary judgment establish that the Cromby site was occupied by Dresher in fulfillment of its contract. Exhibit D to PECO’s motion for summary judgment contains Dresher’s subcontract with Heller & Karpowich, Inc. The subcontract awards Heller & Karpowich the order to provide backfill and excavation work at the Cromby site. Such work was part of Dresher’s regular business as delineated in its general contract with PECO. Zizza was an employee of the subcontractor, Heller & Karpowich. Viewing the pleadings, answers to interrogatories, affidavits, etc. as we are required under Pa.R.C.P. 1035, we find that there is no genuine issue as to any material fact concerning Dresher’s status as a statutory employer. The requisites for such status have been established such that Dresher can properly be considered Zizza’s statutory employer and thus receives the immunity from suit granted under the Workmen’s Compensation Act. Dresher was properly entitled to judgment as a matter of law and we affirm the lower court’s rulings on this issue.

Appellant Zizza seems to argue in his brief that Dresher must establish both control and occupancy of the Cromby site in order to qualify as a statutory employer of Zizza. Such is not the case. Section 203 of the Act phrases the requirement as occupancy or control, not occupancy and control. See § 203 supra. Our supreme court in construing section 203 articulated the requirement as “Premises occupied by or under the control of such employer.” McDonald, supra, 302 Pa. at 295, 153 A. at 426. Thus it is not necessary that Dresher establish that it both occupied and controlled the Cromby site. As we have stated above, we believe tht Dresher establishes occupancy in the affidavit attached to its motion for summary judgment.

We disagree, however, with the lower court’s ruling on PECO’s motion for summary judgment. PECO was the owner of the Cromby site, where the injury occurred. PECO was not the general contractor or a subcontractor. As, we stated in Cranshaw, supra, section 203 is the section of the Workmen’s Compensation Act which applies to negligence actions brought by injured employees. See Barbieri, Pennsylvania Workmen’s Compensation and Occupational Disease, Vol. 1, § 4.09(3) (1975).

Both PECO and Zizza contend that section 302 of the Act applies to this case. Each urges a different application of the section, but nonetheless asks this Court to apply section 302. We believe that section 302 has no applicability to the facts of this case. Section 302, as amended in 1974, provides in part that:

A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act.

Act of June 2, 1915, P.L. 736, Art. Ill, § 302(a) as amended by Act of December 5, 1974, P.L. 782, No. 263, § 5; 77 P.S. § 461. Thus, by its terms section 302 controls the payment of compensation. It does not deal with negligence actions, as does section 203, and is not applicable to the instant action.

We interpreted section 203 in Ashman v. Sharon Steel Corp., 302 Pa.Super. 305, 448 A.2d 1054 (1982). In that case a truck driver, Ashman, and his wife, brought suit in trespass against Sharon Steel Corporation for injuries Ash-man sustained while working on the property of Sharon Steel. The trial court found that Sharon Steel was not protected from a common-law negligence action. This Court affirmed that finding. In so doing we stated:

Appellant [Sharon Steel] is not a “principal contractor,” but an owner of the property. Our courts have held that this distinction is significant; an independent contractor’s employe is not ordinarily considered to become an “employe” of the owner of the property for Compensation Act purposes. Brooks v. Buckley & Banks, 291 Pa. 1, 139 A. 379 (1927); Freeny v. William Penn Broadcasting Co., 180 Pa.Super. 434, 118 A.2d 275 (1955).

Ashman, 302 Pa.Super. at 313, 448 A.2d at 1058. We concluded that Sharon Steel was not the “employer” of Ashman under the relevant provisions of the Workmen’s Compensation Act, Id.

The rule of law applied in Ashman is equally applicable in the case now before us. Ashman was decided after the 1974 amendments of the Workmen’s Compensation Act. Although it did not deal with excavation work, as does this case now before us, this difference, under section 203, does not warrant a refusal to follow Ashman.

In accordance with the view expressed in Ashman, Alexander Barbieri, in Pennsylvania Workmen’s Compensation and Occupational Disease states that “The statutory employer status does not include an owner or entrepreneur.” Barbieri, supra, at § 4.09(3) (1975). Barbieri discusses the situation in which an employee of independent contractor is injured. In such a situation the independent contractor was working under contract with the owner. Barbieri states that if:

the contractor is performing work for the owner or entrepreneur that is not “part of the ... regular business” of the owner, then the statutory employment status does not arise and the injured employe of the contractor may look only to the contractor, the immediate employer, for compensation, and the owner or entrepreneur will have no immunity defense to a suit for negligence by the injured man.

Barbieri, supra (footnote omitted).

In the case now before us it has not been contended that the excavation of ditches is part of PECO’s regular business. We see no reason to deviate from Ashman. Accordingly, we find that PECO is not Zizza’s statutory employer, and thus is not immune from suit by Zizza. We thus reverse the order which granted PECO’s motion for summary judgment and entered judgment in its favor.

As the fourth part of its argument before this Court Appellee, PECO, contends that the trial court erred in granting summary judgment in favor of Dresher inasmuch as Dresher had entered into a written contract of indemnification with PECO prior to the date of the plaintiffs injury. We recognize that, pursuant to Pa.R.C.P. 2252(d), PECO asserted in its Answer as New Matter, Count II, that Dresher owes indemnity, as well as a defense, to PECO. Dresher, in turn, has filed a Reply to the New Matter Joinder of PECO.

The Motion for Summary Judgment filed by Dresher sought only “judgment in its favor on the cause of action pleaded by plaintiff John S. Zizza, Jr.” It is clear that the only issue addressed by the trial court in ruling on the separate motions for summary judgment was whether defendants PECO and Dresher were statutory employers under the Act and, as such, immune from suit by the plaintiff.

In its Answer to Dresher’s Motion for Summary Judgment, PECO adequately preserved its claim of indemnification against Dresher. However, the trial court did not discuss this issue, nor include it in its order granting summary judgment. As the issue of indemnification was not addressed by the trial court, we treat the order in favor of Dresher as running only to its liability to the plaintiff, Zizza, consistent with Dresher’s claim for pretrial relief. We decline to address the issue of Dresher’s alleged indemnification of PECO on this appeal.

The order granting summary judgment in favor of Dresher and against plaintiff Zizza is affirmed. The order granting summary judgment in favor of appellee PECO is reversed. The case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority’s conclusion that PECO is not a statutory employer and that Dresher is a statutory employer. As to PECO I would reverse and remand.

Unlike the majority, however, I would not affirm the summary judgment as to Dresher in toto. I would remand for amendment of the summary judgment in order to preserve PECO’s cross claim for indemnification.

The majority declines to address the issue of indemnification because “[t]he issue of indemnification was not addressed by the trial court ...” (Maj. op. at 607). While the majority’s statement is accurate, the question of indemnification is implicitly before us. The trial court could not address the issue, because once it granted summary judgment to both PECO and Dresher the indemnification issue was moot.

I would find that despite the granting of summary judgment in favor of Dresher, Dresher is not completely immune from suit in the instant case. In its response to Zizza’s complaint, PECO filed a cross-claim for indemnity against Dresher, citing a provision of its contract with Dresher. See Answer and New Matter of [PECO] to Zizza’s Complaint in Trespass at ¶¶ 9-11. Under the Act, third party cross-claims against a statutory employer are disallowed except as provided for in 77 P.S. § 481(b):

In the event injury or death to an employee is caused by a third party, then such employee ... may bring [an] action at law against such third party, but the employer ... shall not be liable to a third party for damages, contributions or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence wich gave rise to the action.

(Emphasis added). In the instant case, PECO’s contract with Dresher expressly provides that Dresher shall indemnify PECO for any loss or damages resulting from injury to Dresher’s employees arising out of the performance of the contract, thus giving rise to PECO’s cross-claim.

The better view is for the Superior Court to recognize that its reversal of the trial court’s order granting summary judgment in favor of PECO revives the cross-claim against Dresher and requires that the order granting Dresher’s motion for summary judgment be modified accordingly. I therefore would remand to the trial court so that its order may be amended to reflect the fact that summary judgment should have been granted in favor of Dresher only with respect to Zizza’s complaint and not with respect to PECO’s cross-claim for indemnification.

      . Article 13 of PECO’s contract with Dresher provides, in pertinent part:
      The Contractor shall indemnify and hold harmless Owner and its Agent, the Construction Managers, and all officers, agents and employees from any loss, damage, liability or expense, on account of damage to persons, including Contractor’s employees, arising or in any manner growing out of the performance of any work or the supplying of any material under this Contract, regardless of whether or not it is cause in part by the act or omission, whether negligent or not, of a party indemnified hereunder, and shall defend at its own expense any suits or other proceedings brought against Owner and its Agent, the Construction Managers, and all officers, agents and employees, or any of them, on account thereof, and pay all expenses and satisfy all judgments, which may be incurred by or rendered against them or any of them in connection therewith.