author: POPOVICH, Judge:

text:
    560 A.2d 212
    Jeffrey BLUM, a Minor by his Parents and Natural Guardians, Joan and Fred BLUM and Joan and Fred Blum, in Their Own Right, Appellees, v. MERRELL DOW PHARMACEUTICALS INC. and Rite-Aid Pharmacy. Appeal of MERRELL DOW PHARMACEUTICALS, INC. Jeffrey BLUM, a Minor by his Parents and Natural Guardians, Joan and Fred BLUM and Joan and Fred Blum, in Their Own Right, Appellants, v. MERRELL DOW PHARMACEUTICALS INC. and Rite-Aid Pharmacy, Appellees. Jeffrey BLUM, a Minor by his Parents and Natural Guardians, Joan and Fred BLUM and Joan and Fred Blum, in Their Own Right, Appellants, v. MERRELL DOW PHARMACEUTICALS INC. and Rite-Aid Pharmacy, Appellees. Jeffrey BLUM, a Minor by his Parents and Natural Guardians, Joan and Fred BLUM and Joan and Fred Blum, in Their Own Right, Appellees, v. MERRELL DOW PHARMACEUTICALS INC. and Rite-Aid Pharmacy. Appeal of MERRELL DOW PHARMACEUTICALS, INC. (“MERRELL DOW”).
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed June 14, 1989.

      Joseph E. Conley, Jr., Philadelphia, for appellant (at 1813, 2016) and appellees (at 1866, 1867).
    Thomas R. Kline, Philadelphia, for appellees (at 1813, 2016) and appellants (at 1866, 1867).
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves cross-appeals from the orders of the Court of Common Pleas of Philadelphia County, all reduced to judgment, challenging the entry of delay damages (at Nos. 1866 & 2016 PHL 1988), the grant of Rite Aid Pharmacy’s judgment n.o.v. (at No. 1867 PHL 1988), and the denial of a judgment n.o.v. and/or a new trial by Merrell Dow Pharmaceuticals, Inc. (at No. 1813 PHL 1988). We reverse in part and affirm in part.

Our inquiry starts with the judgment n.o.v. allegation, and, as a result, we must view the evidence in a light most favorable to the verdict-winner. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982). Under such a standard, the evidence reveals that Joan Blum was prescribed Bendectin in February and March of 1980 by her obstetrician for treatment of nausea and vomiting (“morning sickness”) during the first trimester of her pregnancy.

In September of 1980, Mrs. Blum gave birth to a son (Jeffrey) diagnosed as having a “severe” case of talus equinovarus (bilateral “clubbed feet”). Thereafter, a complaint in trespass was filed against the manufacturer (Merrell Dow) and distributor (Rite Aid) of the drug, asserted by the Blums to be the direct and proximate cause of Jeffrey’s deformity. The theories of recovery encompassed claims based on, inter alia, negligence, strict liability, breach of express and implied warranties, and fraud and misrepresentation of the testing and marketing (“labelling”) of the drug’s efficacy.

The 44-day trial (which generated over 4,000 pages of testimony) began with the appearance of Doctor Alan Kim-ball Done, a specialist in the field of pediatrics. He testified to conducting an examination of Jeffrey, perusing all the medical records and the deposition testimony of the attending orthopedic surgeons. He testified to relying upon the structure/activity of the drug, as well as in vitro, animal and epidemiologic studies in reaching his conclusion that Bendectin is a teratogen (causes or increases the risk of birth anomalies) in humans, and, to a degree of reasonable medical certainty, was “capable of contributing to the formation of Jeffrey’s limb malformation[;]” there “being no reasonable likelihood ... that there could be any other basis for explaining it.”

As for the Bendectin label, Doctor Done believed that it contained misinformation by citing the incidence of birth defects in offspring as being no higher in women who ingested the drug when compared to those who were not exposed. His review and interpretation of the studies indicated otherwise. Moreover, because Merrell Dow’s Unisom label read that it was “contra-indicated in women who were pregnant or nursing”, the same warning should have appeared in the Bendectin packaging since both drugs contained doxylamine succinate, thought by Doctor Done to be the teratogenic component. Accordingly, it was the witness’ opinion that the standard of pharmaceutical care in 1980 required Merrell Dow to list the hazards associated with Bendectin, i.e., it should not have been used during pregnancy, on the labelling material. Merrell Dow’s failure to warn of the “high degree of risk of harm”, associated with the ingestion of Bendectin during pregnancy, was felt by the witness to be inconsistent with the information available on the drug’s teratogenic qualities.

The next expert to testify was a Doctor Gross. He subjected Merrell Dow’s data and animal studies to analysis to determine whether the results were statistically significant (had “power”), such that Bendectin could be considered the cause of the increase in birth defects; in other words, was the drug a teratogen? He decided it was, and he stated his position thusly;

... the overall conclusion is that in each of the studies, the agent on test, which was either bendectin, the three ingredients, bendectin or doxylamine succinate or one of its ingredients, can be regarded as teratogenic, in that it should be regarded as teratogenic, in that it significantly affects and it increases the frequency of birth defects, resorption, death, in the totality of all of these studies ... in sum total adds up to the same picture. * * * These agents interfere with normal development of the young.

Further, it was the contention of Doctor Gross that Bendectin was “clearly, without any question, a marked, significant teratogen” that should not have been marketed for use during pregnancy.

Doctor Gross also considered the 1980 Bendectin label to be “false” in discussing the absence of any “drug-induced fetal abnormalities” occurring at levels of up to ninety times the maximum human dose. His review of the evidence indicated, “unequivocally”, that the drug should be branded a teratogen. Although the witness conceded he did not review any epidemiological studies on the subject, he was still able to “extrapolate” the risk Bendectin posed to humans from the animal studies performed. Similarly, he was unaware of any drug found to cause birth defects in animals, which, upon investigation, did not cause birth defects in humans.

Doctors Done and Gross held fast to their opinions — despite the flaws which plagued some of the studies they relied upon and the existence of a body of contrary views held by others in the field as to Bendectin’s teratogenic attributes — that Bendectin caused Jeffrey’s clubbed feet.

Other witnesses to testify on behalf of the plaintiffs included Mr. and Mrs. Blum, their obstetrician, the two orthopedic surgeons who operated on Jeffrey and the pharmacist who filled Mrs. Blum’s prescription. Thereafter, the plaintiffs’ case came to a close and the presentment of a motion for non-suit was denied.

The defense’s side of the case started with the presentment of the deposition testimony of Doctor Herschel Jick, a clinical pharmacologist, who collected data on Bendectin and other drugs to see if they were producing any abnormalities in the children born to women who took the drug(s) during pregnancy.

The time-frame for Jick’s study covered July of 1977 through December of 1979. The results, published in the Journal of the American Medical Society in July of 1981, were that there was no “strong” association between the use of any of the drugs and all congenital disorders.

To the extent that the study initially showed a statistically strong association between Bendectin and some of the deformities, it was discovered that this occurred as a result of a disorganization in the data, which, upon examination of additional (future) data, evidenced no nexus between Bendectin and the minor limb disorders that were excluded, correctly, from the study.

Doctor Jick did state, however, that:

... there really isn’t a large enough or complete enough study to rule out at all a teratogenic effect with this, or any other drug. * * * The best we can do is present the results as we have them in an undisputed manner as possible and everybody has to decide from their own point of view whether, is the evidence here for or against the effect of the drug. (Emphasis added)

In Jick’s opinion, the data did not show Bendectin having an adverse effect on developing limbs. However, he did caution “one cannot rule out from these data a small effect.”

The second expert to appear on behalf of the defense was Doctor Paul E. Stolley, a specialist in the science of epidemiology (the study of the distribution and determinants of disease in human populations). He reviewed 30-35 studies (cohort and case control) and found that there was no correlation between congenital malformations and Bendectin. As stated by Doctor Stolley:

Bendectin has not been shown ... to be associated with any particular birth defect; and what is, perhaps, more important, no causal relationship can be inferred from the occasional associations that have been shown in some studies, but not confirmed in others.

Doctor Peter Mamunes, board certified in pediatrics and endocrinology, was the next expert to take the stand. He did a genetic evaluation of Jeffrey and his parents. His opinion, within a reasonable degree of medical certainty, was that Bendectin did not cause Jeffrey’s condition. On cross-examination, Doctor Mamunes repeated his position that Jeffrey had multifactorially inherited clubbed feet, and he was predisposed to some environmental event (meaning anything other than a genetic cause) in útero, which resulted in his abnormality.

Doctor Mamunes was of the belief that Bendectin could not cause clubbed feet, and he was never impressed by the literature to lead him to believe that Bendectin should not be administered during pregnancy. Nonetheless, the doctor agreed with counsel for the plaintiffs that:

... in the medical literature, there is a suggestion of at least a possibility of an association of bendectin and some congenital malformations as reported in some of the epidemiologic studies.

Further, when Doctor Mamunes was asked by plaintiffs’ counsel whether he would consider Bendectin “totally safe”, the witness responded that he would not use such terms to describe any drug, including Bendectin. Thus, to the inquiry: “If you can’t be absolutely certain that any drug is totally safe, then we can’t be absolutely certain about bendectin as one of the drugs?” the witness answered: “That’s correct.”

In regard to the basis for the belief that Bendectin was safe, Doctor Mamunes relied upon a series of textbooks; one was by the author Briggs. Yet, on cross-examination, plaintiffs’ counsel elicited from the witness that, during his earlier deposition, he had agreed with the last paragraph in the 1986 edition of Briggs’ textbook, which read:

Although the literature supports the relative safety of this product [Bendectin] when compared to the normal background of malformations, it is not possible to state that it was completely without risk to the fetus.

As to Doctor Mamunes’ diagnosis of Jeffrey having Ehler-Danlos syndrome, which exhibits itself by hyperextensibility of the skin and joints, the witness admitted:

[He] only had the opportunity to examine [Jeffrey’s] hands and his arms and his fingers because his feet and legs were in casts. So it was very hard to be certain [as to his diagnosis], when only examining one part of the body____

In response to the question whether drug ingestion alone could cause birth defects, Doctor Mamunes answered:

That’s a very debatable point. There are lots of — I am not sure that that’s true. And I don’t think that the literature is clear on that. Because there are many people who take that same drug [ — Bendectin—] and have no problem with their offspring and other people who do have problems with that drug, and the offspring who is malformed.

The defense continued with its parade of experts by presenting Doctor James Lee Goddard, former chief of the Communicable Disease Center in Atlanta. He opined that Merrell Dow complied with the standards that existed in the pharmaceutical industry at the time (1966) it submitted its then new drug application to the Food and Drug Administration for Bendectin, and that Bendectin was safe for use in human pregnancy. Next in line was a Doctor Brent, an epidemiologist, who reviewed the literature on Bendectin and concluded that it caused no reproductive toxicology effects and no birth defects. It was not a teratogen. This was consistent with the beliefs of expert-witness Doctor Hoekenga.

The sixth expert was Doctor Steven Lamm, a specialist in epidemology and a pediatrician by profession, he examined all of the information on hand and pooled the data (with regard to the sales of Bendectin and its correlation to birth defects) to reach his decision that women who take Bendectin are not at an increased risk of having children with any congenital malformations. However, he could not dispute the fact that in certain studies there are statistically significant associations between the ingestion of Bendectin and various birth defects, even though the witness’ pooled data did not show a statistically significant association.

Doctor Peter D. Pizzutillo, an expert in pediatric orthopedics, examined Jeffrey’s medical records and the available literature in the field. He saw no casual relationship between Bendectin and the resultant clubbed feet. In his opinion, Jeffrey’s condition would be considered “idiopathic”, a diagnostic term meaning “no identifiable cause for the problem. It is yet to be identified.”

The last expert to testify of note was Doctor Richard Skalko, a specialist in developmental and experimental teratology. He found that Bendectin was neither mutagenic (ability of a drug to mutate chromosomes or DNA) nor teratogenic (producing congenital malformations). His review of Merrell Dow’s studies failed to evidence the presence of any dose-response, ie., with an increase in dosage of a drug one would expect an increase in response/effect to the drug treatment. This did not occur.

With the completion of the testimony, the jury was charged and returned a verdict finding Bendectin to be a substantial contributing factor in causing Jeffrey’s birth defect, and, as such, Merrell Dow (the manufacturer) and Rite Aid (the supplier of the product to Mrs. Blum) were held liable in the amount of 2 million dollars (in compensatory and punitive damages) to the plaintiffs. Thereafter, delay damages, in the amount of $30,680.00, were added to the verdict, while Rite Aid was dismissed as a party to the litigation on its motion for judgment n.o.v. With the filing and denial of various post-trial motions, the various orders relating thereto were reduced to judgment and the multiple appeals presently before this Court were perfected.

The initial issue deals with Merrell Dow’s contention that its right under the Pennsylvania Constitution to a trial by jury, composed of twelve members, was violated when the court below permitted the case to proceed with eleven jurors, despite its objections.

Before addressing the jury-composition issue, we must respond to the plaintiffs’ assertion that the matter has not been preserved for appellate review.

The plaintiffs point to Merrell Dow’s failure to set forth anywhere in its pleadings a demand for a jury of twelve, let alone a request for a jury trial. The plaintiffs also make reference to an unrecorded pretrial conference (held on or about September 18, 1988) as the time when Merrell Dow’s counsel agreed to an eight-person jury. See Plaintiffs’ Brief at 15. Further, the plaintiffs argue that it was “understood” by the parties that the trial court would begin with twelve jurors and allow the case to go forward with as few as ten jurors if need be, a fact which was admitted, allegedly, by counsel for Merrell Dow when Juror # 3 was excused. Id. at 16.

Our review of the record is at odds with the plaintiffs’ accounting. For example, the first pleading filed by Merrell Dow, i.e., the complaint in trespass, had on the face-sheet: “JURY TRIAL DEMANDED”. This is clearly consistent with the requirements set forth in Pa.R.Civ.P. 1007.-1(a) that a demand for a jury trial is to be made either by endorsement on a pleading (as was the case here) or by a separate writing not later than twenty days after the service of the last permissible pleading. Compare Stathas v. Wade Estate, 251 Pa.Super. 269, 274, 380 A.2d 482, 484 (1977); Cowan v. Rubin, 28 Pa.D. & C.2d 455, 460 (Phila. Cty.1962). Moreoever, on October 24, 1986, Merrell Dow demanded in a written submission to the trial court a twelve-person jury with two alternates. Albeit Merrell Dow’s request for 12 jurors was granted, no alternates were permitted to be chosen before the case went to trial on December 3, 1986.

As for the plaintiffs’ referral to a pretrial conference in which Merrell Dow supposedly acquiesced to a trial composed of less than the twelve-member panel requested, the support for the same is not of record and appears only in the plaintiffs’ brief, factors which preclude us from placing any credence in such a statement attributing Merrell Dow with the waiver of its jury-trial argument. This is proper in the face of a barren record, the rectification of which is not accomplished by the plaintiffs’ attempt to reconstruct what occurred below. See McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987); Hartgraves v. Don Cartage Co., 63 Ill.2d 425, 348 N.E.2d 457 (1976).

The course we pursue is proper in the face of transcribed discussions in which the trial court excused Juror # 3 and its proceeding in his absence was objected to by Merrell Dow via a motion for a mistrial. See Reproduced Record at 2265-2275. As such, this ground was not waived. Compare Love v. Harrisburg, Coca-Cola Bottling Co., 273 Pa.Super. 210, 216, 417 A.2d 242, 245 (1979).

We now turn to Merrell Dow’s contention that “prejudicial error” occurred in the continuation of the case, over its objection, when Juror # 3 became seriously ill and could not appear for the twelfth day of trial. Such action, argues Merrell Dow, violated its right to a trial by jury guaranteed by Article 1, § 6 of the Pennsylvania Constitution, as amended May 18, 1971; viz.:

Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case.

It is the position of Merrell Dow that nowhere does the Pennsylvania Constitution or statute (42 Pa.C.S. § 5104(b)) authorize deliberations by a jury of fewer than twelve where a party/litigant has made an unrelinquished demand for such an empanelment.

Before discussion of any case law on the subject at hand, we will give an overview, from an historical perspective, of the concept of juries of twelve in this Commonwealth, which has its origin in a document introduced and adopted in Pennsylvania in 1682 by William Penn and known as “Laws Agreed Upon in England”. Comment, The Jury Size Question In Pennsylvania: Six Of One And A Dozen Of The Other, 53 Temple L.Q. 89, 100 (1980).

Penn’s other writings discussed the evolution of the jury and his belief that it was a “fundamental” part of the government and important to a free society. However, “nowhere did he endeavor to explain why a jury required twelve members to fulfill its purpose.” Id. at 103 (Footnote omitted). One commentator has observed:

... Penn’s own writings and deeds appear to show that his commitment to twelve-member juries was not based on any reasoned notion that twelve was required to assure fairness, but instead stemming from his adherence to traditional common law principles that required twelve-member juries____

Id. at 104-105 (Footnote omitted). Likewise, there is very little information available that casts any light on the intent of the framers of the Pennsylvania Constitution of 1776 regarding the size of juries. Id. at 106. The same can be said with regard to the Constitutional Conventions of 1790 and 1838. As for the 1873 Convention, discussion was had on the deletion of the unanimity requirement and the elimination of the term “heretofore”. Some saw no problem with this since they equated a trial by jury with a jury of twelve men, whereas others believed excising the word “heretofore” would pave the way for a jury of “ ‘three or five or seven ... [or less than twelve] as a constitutional jury____’” Id. at 112-113. The proposal was defeated without explanation.

The framers at Pennsylvania’s 1968 Convention did not consider the jury provision at all, believing that it was beyond their jurisdiction to affect that right. See Comisky & Krestal, Analysis of New Judiciary Article, 40 Pa.B. A.Q. 68, 77 (1968). Even so, our first Constitution of 1776 contained verbiage which has survived and appears in the present-day Article 1, § 6. Kg., the 1776 Constitution declared that “trials by jury shall be as heretofore.” The Constitution of 1790, and the amended ones of 1838, 1873 and 1968, adopted substantially the same provision. Their language was “trial by jury shall be as heretofore, and the right thereof remain inviolate.” From our reading of the case law, we find that the previous Constitutions were preoccupied with the preservation of a trial by jury, not its extension. See, e.g., Byers v. Commonwealth, 42 Pa. 89, 94 (1862); Pa. Publications v. Penn. Public Utility Commission, 152 Pa.Super. 279, 290, 32 A.2d 40, 45 (1943), rev’d on other grounds, 349 Pa. 184, 36 A.2d 777 (1944).

It has been written that “[t]he great purpose of the constitution in providing that ‘trial by jury shall be as heretofore, and the rights thereof remain inviolate,’ was not to contract the power to furnish modes of civil procedure in courts of justice, but to secure the right of trial by jury in its accustomed form before rights of person or property shall be finally decided.” Haines v. Levin, 51 Pa. 412, 414 (1865). More to the point, in Smith v. Times Publishing Co., 178 Pa. 481, 36 A. 296 (1897), the Pennsylvania Supreme Court was reviewing the claimed excessiveness of a jury’s award under the then recently promulgated Act of 1891 authorizing such an inquiry on appeal.

The Smith Court, in reversing the judgment and upholding the validity of the Act of 1891 as not an infringement of one’s right to a trial by jury, made some observations which, albeit dicta, are germane to our ruling this date; to-wit:

... [I]n the constitution ... the phrase . “shall be as heretofore” refers to the method of trial itself and means that it shall be preserved with its substantial elements, while the second phrase, “the right thereof shall remain inviolate” refers to the right to a jury trial before the final decision in all cases where it would have existed at the time of the adoption of the constitution.
$ * * $ $ $
“Trial by jury is by twelve free and lawful men who are not of kin to either party, for the purpose of establishing the truth of the matter in issue. * * * The definition of a jury ... is ... and all the authorities agree that the substantial features, which are to be “as heretofore,” are the number twelve, and the unanimity of the verdict. These cannot be altered, and the uniform result of the very numerous cases growing out of legislative attempts to make juries of less number, or to authorize less than the whole to render a verdict, is that as to all matters which were the subject of jury trials at the date of the constitution, the right which is to remain inviolate, is to a jury “as heretofore,” of twelve men who shall render a unanimous verdict. * * * “The constitutional provisions do not extend the right, they only secure it in cases which it was a matter of right before. But in doing this they preserve the historical jury of twelve men, with all its incidents[.]”

178 Pa. at 498-499, 36 A. at 297 (Citations omitted; emphasis in original). Accord Commonwealth v. Fugmann, 330 Pa. 4, 29, 198 A. 99, 111 (1938); Wellitz v. Thomas, 122 Pa.Super. 438, 440, 185 A. 864 (1936); Commonwealth v. Collins, 268 Pa. 295, 299, 110 A. 738, 739 (1920). Thus, we have the unequivocal pronouncement in Smith that a “trial by jury” is inextricably linked to the number “12”. Given this fact, it is not for Superior Court, as an intermediate appellate court, to alter established law, regardless of one’s argument that the case is dated. On this exact topic, this Court, through this writer, has stated its position as follows:

... be it known that, regardless of the vintage of a case or its attack by legal scholars in their erudite treatises on the state of the law, in the final analysis it is for the highest court in this jurisdiction to decide when and to what extent, if any, a case has lost its vibrancy so as to signal its demise. No trial [or intermediate appellate] court is to usurp this function under the guise of changes presaged by the winds of judicial time, marked by the shifting tides of legal thinking.

Mohn v. Hahnemann Medical College and Hospital of Philadelphia, 357 Pa.Super. 173, 176, 515 A.2d 920, 922 (1986), reargument denied October 14, 1986.

Although there is no denying that a scrutiny of the Constitutional debates, treatises on the matter and case law leave one without any (“concrete”) insight as to the origin of the number 12, there is no doubt that this number was considered an essential element of á jury and was incorporated into our inviolate constitutional right of a trial by jury. See Fugmann, supra; Wellitz, supra; Collins, supra; Smith, supra.

As an “essential” feature of a trial by jury, the number 12 is implicit in the term “jury” as found in the Pennsylvania Constitution and is not subject to change except by way of a constitutional amendment, or a pronouncement of the Pennsylvania Supreme Court re-examining its initial interpretations of the “jury trial” question and altering its stance as occurred in Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970), by the United States Supreme Court, wherein it held that the Sixth Amendment did not require a 12-man jury trial in criminal cases, and the fact that the jury at common law was composed of precisely 12 was an historical accident, unnecessary to effect the purposes of the jury system and wholly without significance “except to mystics”.

With respect to the need for a constitutional amendment to alter the numerical configuration (“12”) of a trial by jury in civil cases, this is not unprecedented when one considers that the unanimity requirement has undergone change. For instance, in 1971, the Legislature adopted language in Article 1, § 6 giving itself the power to promulgate the authorization of a verdict rendered by less than all the members of a jury, i.e., five-sixths of the jury in any civil case. And, attempts to limit the five-sixths majority verdict to those cases where counsel agreed to it were defeated. See 1975 Pennsylvania Senate Legislative Journal at 807-809. This culminated in the codification of the Legislature’s efforts in 42 Pa.C.S. § 5104(b), wherein the five-sixths rule was made law and the century-old “inviolate” unanimity requirement was dispensed with. Therefore, since it was necessary to amend the Pennsylvania Constitution in order to grant the Legislature authority to tamper with the essential element of unanimity, it should be no different when it comes to another essential element, the number 12. Compare State v. Hamm, 423 N.W.2d 379, 381 (Minn.1988) (similar case except it deals with the question in a criminal context).

Furthermore, the cases reviewed by this Court have indicated that, in the absence of stipulation or consent on the record to receive a verdict of less than the constituted number, the verdict of the jury is to be considered a nullity. See, e.g., Kardibin v. Associated Hardware, 284 Pa.Super. 586, 598-599, 426 A.2d 649, 655-656 (1981), quoting Commonwealth v. Beard, 48 Pa.Super. 319, 324 (1911). Accord Waldman v. Cohen, 125 A.D.2d. 116, 512 N.Y.S.2d 205, 207-208 (1987); Hartgraves, supra; Brame v. Garwood, 339 So.2d 978 (Miss.1976); Bourne v. Atchison, Topeka and Santa Fe Railway Co., 209 Kan. 511, 516-519, 497 P.2d 110 (1972); State ex rel. Polk v. Johnson, 47 Wis.2d 207, 177 N.W.2d 122, 125-127 (1970); Johnson v. Holzemer, 263 Minn. 227, 116 N.W.2d 673 (1962); see also Commonwealth v. A Juvenile, 384 Mass. 390, 425 N.E.2d 294 (1981); Anno., Proper Procedure Upon Illness Or Other Disability Of Civil Case Juror, 99 A.L.R.2d 684 (1965). Because Merrell Dow objected to the continuation of the case when Juror # 3 was excused, we find that the Constitutional right to a trial by jury of twelve members was violated instantly.

To the extent that the plaintiffs proffer Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973), in support of a contrary view, we find it to be distinguishable. It is true that in Colgrove, the United States Supreme Court, on the heels of Williams v. Florida, supra, found that a 12-member jury trial in a civil case was not constitutionally mandated by the Seventh Amendment of the United States Constitution.

Unlike Colgrove, at bar we have the highest state court interpreting its state’s constitution to embrace the approbation of a 12-person jury panel. See Smith, supra; see also Palmer v. Ford Motor Co., 498 F.2d 952, 954 (10th Cir. 1974). As a consequence, we find Colgrove to be unpersuasive, and, even if we were to hold otherwise, it has been oft-stated that the courts of a state can ascribe greater constitutional protection to its citizenry than does its federal counterpart. See, e.g., Commonwealth v. Beaver, 317 Pa. Super. 88, 99, 463 A.2d 1097, 1103 (1983). We do so now on the strength of our Supreme Court’s decisions cited supra. And, by doing so, we affirm over 700 years of English common law history since the 12-person jury became established at the end of the reign of Henry II in the 12th century. Concomitantly, we leave the door open for the Pennsylvania Supreme Court to change, if it so decides, its 1891 decision defining what constitutes a jury under the Pennsylvania Constitution.

Because the trial court has acted inconsistently with established, albeit vintaged, case law in this jurisdiction, we need to reverse and remand for a new trial.

Notwithstanding our primary ruling, to the extent that the trial court granted Rite Aid’s judgment n.o.v., our review of the facts and law on this aspect of the case necessitates an affirmance of this segment of the trial court’s appealed orders. See Coyle v. Richardson-Merrell, Inc., 372 Pa.Super. 118, 538 A.2d 1379 (1988). As a result, the orders reduced to judgments and appealed at Nos. 1816, 1866 and 2016 PHL 1988 are reversed and remanded for a new trial. However, judgment entered and appealed at No. 1867 PHL 1988 is affirmed.

Judgments reversed in part and affirmed in part. Jurisdiction is relinquished.

      . Section 5104(b) reads:
      (b) Civil verdicts. — In any civil case a verdict rendered by at least five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury.
      As amended April 28, 1978, P.L. 202, No. 53, §§ 10(57), 21, effective June 27, 1978.

      . See Pa.R.Crim.P. 1103 ("Consent To Be Tried By Less Than Twelve Jurors"). If consent is needed to be tried by less than 12 in a criminal scenario, there is no reason to think that the same analogy cannot be utilized in the civil arena.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    560 A.2d 220
    Kathryn ELLIS and Richard Heckman, Wife and Husband and as Parents and Natural Guardians of Jessica Heckman, a minor, Appellants, v. Jeffrey L. GRAVES.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1989.
    Filed June 14, 1989.

      Richard C. Angino, Harrisburg, for appellants.
    Harvey Freedenberg, Harrisburg, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Kathryn Ellis and Richard Heckman, wife and husband and the parents and natural guardians of Jessica Heckman, appeal from the judgment entered in the Court of Common Pleas of Cumberland County on July 25,1988, following the denial of their post-trial motions. Appellants assert that the jury’s verdict in this negligence action was contrary to the weight of the evidence and that the trial court improperly refused a requested instruction regarding imputed negligence. For the reasons set forth below, we find that the second assertion is meritorous. Accordingly, we reverse and remand for a new trial.

At 9:15 p.m. on July 19, 1986, Richard Heckman, accompanied by his wife and minor daughter, turned his automobile into the intersection of the Carlisle Pike and Bernheisel Bridge Road in Silver Spring Township, where it collided with a motor vehicle driven by Jeffrey L. Graves. One year later, appellants initiated the present action. On February 15, 1988, the case went to trial. The following day the jury returned a defense verdict. Subsequently, appellants, who challenged among other things, the evidence supporting the jury’s verdict and the court’s denial of several of their points for charge, moved for a new trial. On July 25, 1988, after the court denied the requested relief, judgment was entered. This timely appeal followed.

The first witness to testify at trial was Corporal Gerald Steigelman of the Spring Township Police Department. Corporal Steigelman, who investigated the accident, testified as follows. The Carlisle Pike consists of two lanes for northbound traffic, two lanes for southbound traffic, and a left-turn lane in the center. Its intersection with Bernheisel Bridge Road is controlled by a traffic light and is not illuminated by streetlights. Finally, on that dark evening, there were no adverse weather conditions that affected the roadway in that area, which is both level and straight.

The next witnesses to testify were Jeffrey Graves and Richard Heckman. Their testimony was summarized adequately in the trial court’s opinion.

The defendant [Mr. Graves] testified that he waited at the subject intersection for approximately five seconds before executing his left turn. While waiting, there was a van directly in front of and facing him executing a left turn from the center turn lane of the roadway. While there was initially some confusion about the lane from which the defendant turned, he testified at trial that he did so from the appropriate center lane. The defendant also testified that, before turning, he waited for a car travelling southbound to clear the intersection. Both the van and the car, observed by the defendant, had their headlights on. When the defendant executed his turn, he did not see the Heckman vehicle but, being nearly successful in completing his turn, was hit in the rear by it. Mr. Heckman, likewise, testified that he never saw Mr. Graves’ vehicle though ... he testified that his headlights were on. Mr. Heckman went on to relate that, following the collision, while his car was on the side of the roadway, he changed the position of the light switch so that only the parking lights were on. The defendant, Mr. Graves, testified that the day following the accident he want to the location where the Heckman vehicle had been towed and observed the light switch to be in the parking light position.

Trial court opinion, at 3-4. Based on this conflicting evidence, the jury rendered a verdit for the defense.

Appellants assert that the trial court erred in failing to instruct the jury that the contributory negligence of Mr. Heckman could not be imputed to either his wife or daughter. We agree. In Finkelstein v. McClain, 331 Pa. 198, 200 A. 596 (1938), the supreme court considered a similar contention and stated:

From the evidence it clearly appears that the wife was a guest passenger, riding in the rear seat of the automobile. Hence the negligence of the husband cannot be imputed to her: Rodgers v. Saxton, 305 Pa. 479 [158 A. 166]; Cormican v. Menke, 306 Pa. 156 [159 A. 36]; Janeway v. Lafferty Bros., 323 Pa. 324 [185 A. 827]; Watkins v. Overland Motor Frt. Co., 325 Pa. 312 [188 A. 848].
It is the duty of the court, in cases of this character, to instruct the jury that if there was negligence on the part of the defendant, and they so find, they still may render a verdict for the wife-plaintiff notwithstanding her husband was at fault in the operation of his automobile.
Here it should have been requested on behalf of the wife-plaintiff that specific instructions be given to the jury concerning the non-imputability of the husband’s contributory negligence; or an exception should have been taken to the court’s refusal or failure so to charge, but such neglect will not preclude the question of the adequacy of the charge being raised upon appeal. The failure of the trial judge properly to instruct the jury with respect to the rights of the wife-plaintiff as a guest passenger was basic and fundamental error that went to the heart of her case....

Id., 331 Pa. 201-02, 200 A. at 597-98 (emphasis added); see also Cobb v. Chubeck, 399 Pa. 201, 160 A.2d 207 (1960); Lind v. Thomas, 265 Pa.Super. 121, 401 A.2d 830 (1979).

During its jury instructions, the trial court charged only on general negligence principles. Appellants requested the specific charge on not imputing negligence, and the charge was denied. The supreme court’s decision in Finkelstein requires the jury to be charged on this concept. There is no doubt that this may have affected the jury’s verdict. The jury may not have understood that the defendant could be found negligent with respect to the wife and daughter plaintiffs even though the husband-plaintiff could not recover due to his own contributory negligence. As the Finkelstein court noted, this went to the “very heart” of the guest passengers’ cases. Where an erroneous instruction may have contributed to the verdict, a new trial is required. Spearing v. Starcher, 367 Pa.Super. 22, 532 A.2d 36 (1987).

It is clear that this charge failed to inform the jury that Mrs. Heckman and her daughter could recover, notwithstanding the negligence of Mr. Heckman, if it found Mr. Graves to be negligent in operating his vehicle. Consequently, we find that the court’s failure to charge specifically on the issue of imputed negligence was error that may have contributed to the verdict against the wife and daughter.

Judgment reversed and case remanded for a new trial consistent with this opinion. Jurisdiction relinquished.

      . Appellants also contend that the trial court erroneously refused a requested jury instruction regarding the question of contributory negligence. However, since our review of their brief reveals that this contention was not raised in the statement of questions involved, the issue is not preserved for our review. See Pa.R.A.P. 2116(a).


author: MONTEMURO, Judge: TAMILIA, Judge,

text:
    560 A.2d 222
    Chester KUKOWSKI and Sophie Kukowski, h/w v. Chester KUKOWSKI and Matt Slap Chevrolet, Inc. Appeal of MATT SLAP CHEVROLET, INC. Chester KUKOWSKI and Sophie Kukowski, h/w, Appellants v. Chester KUKOWSKI and Matt Slap Chevrolet, Inc.
    Superior Court of Pennsylvania.
    Argued March 29, 1989.
    Filed June 21, 1989.

      William F. Sweeney, Philadelphia, for Matt Slap, appellant (at 2178) and appellee (at 3039).
    Harris R. Rosen, Philádelphia, for Sophie Kukowski, appellee (at 2178) and appellant (at 3039).
    James M. Marsh, Philadelphia, for Chester Kukowski, appellee (at 2178).
    Janis Smarro, Philadelphia, for Chester Kukowski, appellee (at 2178) and appellant (at 3039).

      Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is a consolidated appeal. Matt Slap Chevrolet, Inc., appeals from the June 24, 1988, Order of the Court of Common Pleas of Philadelphia County, wherein the court denied Matt Slap’s motion for a new trial. Chester and Sophie Kukowski appeal from the October 13, 1988, Order wherein the trial court denied their request for the entry of delay damages against Matt Slap. Following a careful review of the record before us, in light of the applicable law, we are constrained to reverse the latter order.

The facts underlying this matter are essentially undisputed. On November 5, 1981, Chester and Sophie Kukowski had taken a car to Matt Slap Chevrolet for repair work. When the repairs were completed, the couple proceeded to leave the car dealership, with Chester Kukowski driving and Sophie Kukowski in the passenger seat. Chester Kukowski testified that as he was driving towards the exit gate, “the car went out of control. And I looked around. There was some potholes.” R.R. at 13a. The Kukowski’s car collided with an exit gate. As a result of the accident, Sophie Kukowski was injured and subsequently hospitalized. Chester Kukowski also sustained injuries for which he received medical treatment.

Sophie Kukowski and Chester Kukowski commenced a negligence action against Matt Slap for failure to “provide a safe means of ingress and egress to and from [their] parking lot____” R.R. at 3a. The complaint also set forth a claim by Sophie against Chester for negligent operation of the motor vehicle, as well as a loss of consortium claim by Chester Kukowski against Matt Slap. At the close of trial, a jury rendered a verdict in favor of Sophie Kukowski in the amount of $80,000.00. The jury apportioned negligence as follows: sixty (60%) percent against Matt Slap and forty (40%) percent against Chester Kukowski. Chester Kukowski’s consortium damages were set at $20,000.00 by the jury.

We will first address Matt Slap’s claim that the trial court erred in failing to grant a new trial. Matt Slap contends that the following jury instructions were erroneous and prejudicial, necessitating the grant of a new trial:

Now the other defendant is Chester Kukowski, the driver of the car in which his wife was a passenger. And there is a body of law governing the operators of automobiles. It’s quite simple.
The operator of a motor vehicle must at all times exercise reasonable care under the circumstances, and must have his ear under such control that it can be stopped before doing injury to any person or thing, and any situation reasonably apt to arise in the circumstances.
Now we also have what has been called the assured cleared distance principle. That is that if there is an object that is reasonably understood to be dangerous, it could be another vehicle, or it could be one that is not dangerous, it could be a pedestrian; or it could be a deep hole. That the driver of the automobile must be able to stop within an assured clear distance before coming into contact with that person or that object.
******
... Now even though Chester Kukowski was operating [sic] and had the duty of exercising reasonable care, ordinarily he is not bound to anticipate the negligence of others. But where such negligence is evident he must act as a reasonable man in seeking to avoid harm to others. And you must determine, based upon the testimony on the size of this fault, whether Mr. Kukowski did or did not have sufficient time to avoid the accident.
******
Now negligence should not be implied because of a failure to perform a duty, that came about so suddenly and unexpectedly that there was no opportunity to comprehend the situation, and to act according to the emergency. You have to decide in a review of the evidence, whether Mr. Kukowski was faced with such an emergency situation. And he would not be liable if faced with such a situation, as long as he acted as a reasonable person would under those situations.

R.R. at 101a-102a, 108a, 122a.

It is well established law that an appellate court must review a jury charge as a whole, against its evidentiary background. Reversible error will be found only where the jury instruction has been shown to have been harmful or prejudicial to the complaining party, as well as erroneous. Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); Mickey v. Ayers, 336 Pa.Super. 512, 514, 485 A.2d 1199, 1201 (1984) (citations omitted). Although we find error in the content of the court’s jury instructions in the instant case, we find no accompanying prejudice to the complaining party, Matt Slap.

The trial court charged the jury concerning the “assured clear distance ahead” rule, which is derived from the Pennsylvania Vehicle Code:

§ 3361. Driving vehicle at safe speed
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead rule____

75 Pa.C.S.A. § 3361. “If a fact finder determines that a driver has failed to operate his or her vehicle at a speed and with such control that the vehicle can be stopped within the assured clear distance ahead, the driver must be found negligent as a matter of law.” Spearing v. Starcher, 367 Pa.Super. 22, 28, 532 A.2d 36, 39 (1987) (citations omitted). Recently, in McKee et al. v. Evans et al., 380 Pa.Super. 120, 551 A.2d 260 (1988), this Court, sitting en banc, discussed the interplay of the assured clear distance rule and the “sudden emergency” doctrine. We defined the sudden emergency doctrine in the following terms:

The ‘sudden emergency’ doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately____ The doctrine is successfully applied as a defense where the defendant proves that he did not create the emergency ... and where he responded in a reasonable fashion____

380 Pa.Superior Ct. at 146-147, 551 A.2d at 272 (citations omitted). The McKee Court recognized that “[o]ne invoking the defense of sudden emergency cannot be responsible for creating the very peril and is ordinarily excused from liability because he lacked the time to react as he would have done under otherwise foreseeable circumstances.” Id., 380 Pa.Superior Ct. at 147, 551 A.2d at 273.

We find that, in the instant case, although the trial court correctly charged the jury concerning the assured clear distance rule, the court erred in finding that the sudden emergency doctrine was applicable to this case. In motor vehicle accident cases, the sudden emergency doctrine may be invoked where there is testimony suggesting “the sudden intellection of a moving object” into a vehicle’s path of travel. Brown v. Schriver, 254 Pa.Super. 468, 475, 386 A.2d 45, 49 (1978). “Consequently, evidence of confrontation with pre-existing, static road conditions does not properly call for an instruction on the applicability of the sudden emergency doctrine.” McKee, supra, 380 Pa.Super. at 149, 551 A.2d at 274. In Brown v. Schriver, for example, the driver of a car had lost control of his vehicle when it apparently slipped on some gravel or cinders on the roadway surface. The driver had testified that he did not notice the gravel prior to losing control of his car. We granted a new trial in Brown, because the trial court had not charged the jury concerning the assured clear distance ahead rule, but had instead charged them regarding the sudden emergency doctrine. We recognized that “the ‘assured clear distance ahead’ rule applies to static or essentially static objects while the ‘sudden emergency’ doctrine only applies to moving instrumentalities suddenly and unexpectedly thrust into a driver’s path of travel.” Brown, supra, 254 Pa.Super. at 470, 386 A.2d at 46 (footnote and citations omitted). In Brown, the jury determined that the driver of the car which had encountered the gravel was not negligent in his operation of the vehicle. See also Hanlon v. Sorenson, 289 Pa.Super. 268, 433 A.2d 60 (1981) (trial court erred in charging the jury on the “sudden emergency” doctrine with respect to the fact that the highway was covered with gravel); McErlean v. McCartan, 280 Pa.Super. 531, 421 A.2d 849 (1980) (where jury returned a verdict in favor of the defendant-driver, new trial was required because the ‘sudden emergency’ doctrine, which was included in the jury instructions, does not apply to a wet road surface involved in an auto accident); Sullivan v. Wolson, 262 Pa.Super. 397, 396 A.2d 1230 (1979) (snow and ice on road, as well as presence of stopped automobile, were all preexisting conditions so that defendant motorist was not entitled to sudden emergency doctrine).

The existence of a pothole or potholes in the parking lot of Matt Slap Chevrolet was a preexisting, static road condition. Thus, it is evident that the trial court erred when it instructed the jury concerning the sudden emergency doctrine. Only the assured clear distance ahead rule was applicable. Even though the court erred in mentioning the sudden emergency doctrine to the jury, Matt Slap has failed to demonstrate any specific prejudice resulting from this erroneous charge. Chester Kukowski was found by the jury to have been forty percent negligent with regard to this accident. We find that, under the particular facts of the instant case, the actual verdict returned by the jury demonstrates a rejection of the sudden emergency doctrine by the factfinder or, in the alternative, a failure to consider it. See Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984). Indeed, the rejection of this doctrine is supported by the testimony of Sophie Kukowski, wherein she states that she and her husband were having difficulty driving over the terrain of the parking lot prior to the accident, thus indicating that they were not surprised by an isolated patch of rough roadway:

Q. Now, could you tell the jury in your own words what happened after you went to pick up your car.
jfe s¡c sfc s>¡ sjs $
A. This second day we had to go around quite a few cars which gave us a one-way lane out to the exit. In that direction, we found it was very difficult. The paving was — made the car jolt violently where my husband had the accident.
Q. Well, could you describe to the jury what you mean by jolting violently?
A. The car went from side to side, and I went up in the air. I remember when I hit my head up, the car suddenly went to the right____

R.R. at 66a-67a. Based upon the jury’s determination that Chester Kukowski was forty percent negligent in the operation of his motor vehicle, we find that no prejudice resulted to Matt Slap from the sudden emergency jury instruction. Generally, where a factfinder determines that a motor vehicle operator was faced with a sudden emergency, which required a spontaneous response to avoid the impending danger, the operator is “excused from liability because he lacked time to react as he would have done under otherwise foreseeable circumstances.” McKee, supra, 380 Pa.Super. at 147, 551 A.2d at 273. While it may be true that a motor vehicle operator will not be fully excused from liability where he responded to a sudden emergency in a reckless or otherwise unreasonable manner, we need not consider this aspect of the sudden emergency doctrine because there is nothing in the record to indicate that Chester Kukowski acted unreasonably at the time he lost control of his car. See Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498, 454 A.2d 645 (1983) (sudden emergency defense is available to a defendant where, inter alia, defendant proves he did not create the emergency and he responded in a reasonable fashion). The jury verdict in the instant case reveals a complete rejection of the sudden emergency doctrine or a failure to consider it and, consequently, the trial court did not err when it refused to grant a new trial.

We must now address the contention of Sophie Kukowski that the trial court erred in failing to award delay damages pursuant to Pa.R.C.P. 238. The trial court relied upon Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), in deciding whether to award delay damages to Sophie Kukowski. However, while the present case was pending in this Court, our Supreme Court promulgated a new Rule 238. New Rule 238 applies to “actions pending on or after the effective date of this rule [November 7, 1988] in which damages for delay have not been determined.” This Court en banc has held that new Rule 238 is applicable in cases pending on appeal on the effective date of the new rule. See Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989).

We must remand the instant case for a hearing to determine delay damages in accordance with new Rule 238. Only two periods of time may be excluded from the calculation of damages under the Rule: (1) any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever first occurs, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125 percent of the offer; and (2) any periods of time during which the plaintiff caused delay of the trial. Instantly, it appears from the record before us that no written settlement offers were made which would satisfy the requirements set forth above. Thus, Sophie Kukowski is entitled to recover delay damages, provided she did not cause the delay of trial.

The trial court, in its Opinion, concluded that Sophie Kukowski’s settlement demands of $600,000.00 and $200,-000.00 “may have been unreasonable thus causing delay in resolving this case.” Op. of Trial Court, October 13, 1988, at 9. The trial court also states the following in its Opinion:

Additionally, plaintiff made requests for continuance to take depositions of his expert witnesses on January 31, 1987. Thereafter, on April 21, 1987 Sophie Kukowski was hospitalized for back surgery. On April 23, 1985 plaintiff refused to complete her deposition and insisted on having another female present due to the allegedly objectionable nature of questions asked her. The deposition was not rescheduled until July 21, 1986. Furthermore, she refused to release compensation records from the Pennsylvania State Workmen’s Insurance Fund. However, counsel for plaintiff in a letter dated July 21, 1986 advised defense counsel to subpoena the compensation records, thereby causing an extension of the discovery period.

Id. Under new Rule 238, there must be a finding that the plaintiff caused a delay of trial in order to deny the award of delay damages. Thus, the trial court’s emphasis on the reasonableness of Sophie Kukowski’s settlement demands, while relevant under the Craig decision, is misplaced in light of the provisions of the new Rule 238. Further, as the comment to the new Rule makes clear, failure by a plaintiff to comply with discovery should not affect the award of delay damages unless the trial was delayed as a result. Whether any of Sophie Kukowski’s actions actually delayed the trial in the instant case is a question of the fact, which must be determined by the trial court upon remand.

Accordingly, we affirm the Order entered June 24, 1988, (No. 02178 Philadelphia 1988), and we reverse the Order entered October 13,1988, (No. 03039 Philadelphia 1988), and remand for further proceedings consistent with this opinion. Jurisdiction is relinquished.

TAMILIA, J., files a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

I concur in the result as to remand for the purpose of reconsideration of delay damages in light of new Rule 238, and I also concur in the analysis by. the majority of the interplay of the emergency doctrine and the assured clear distance rule. However, I respectfully dissent to the conclusion by the majority that the trial court’s charge on the emergency doctrine was ignored by the jury and therefore was harmless.

We are unable to say to what extent the jury considered the effect of that charge on their decision to apportion damages 40 per cent against Matt Slap Chevrolet and 60 per cent against Chester Kukowski. Pursuant to the analysis of the interrelationship between the emergency doctrine and the assured clear distance rule, which I believe is sound and correct, a jury charge in keeping with that analysis and which made certain that the emergency doctrine did not apply, could well have turned the jury away from a finding of negligence against Matt Slap or reduced its apportionment against it considerably.

I believe the only manner in which justice can be rendered in this case is to grant a new trial with directions that the sudden emergency charge not be given.

Should the result of a new trial once against be in favor of the appellee, then the remand instructions as to the appeal of Rule 238 damages would apply.

      . Generally, where a sudden and clear emergency takes place within the range of the assured clear distance, the assured clear distance rule is inapplicable and the jury should not be instructed concerning it. Brown v. Schriver, 254 Pa.Super. 468, 477, 386 A.2d 45, 49 (1978). It is only proper to charge the jury on both the assured clear distance ahead rule and the sudden emergency doctrine where the facts do not conclusively establish the existence of a sudden emergency. Mickey v. Ayers, 336 Pa.Super. 512, 518, 485 A.2d 1199, 1203 (1984) (citations omitted). See abo Cervone v. Reading, 371 Pa.Super. 279, 538 A.2d 16 (1988) (trial court properly instructed jury on the assured clear distance ahead rule and the sudden emergency doctrine, where evidence conflicted as to whether a truck, involved in an accident with a motorcycle, suddenly moved onto the highway in front of the motorcycle).


author: OLSZEWSKI, Judge:

text:
    560 A.2d 228
    Denise BRENNER, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 25, 1989.
    Filed June 23, 1989.
    Charles S. Morrow, Pittsburgh, for appellant.

      John C. Donaher, III, Pittsburgh, for appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   OLSZEWSKI, Judge:

Denise Brenner appeals from the judgment entered in the Court of Common Pleas of Allegheny County.

The facts as found by the trial court are as follows: Denise Brenner was injured in an automobile accident on July 23, 1978. On or about February 9, 1981, Brenner filed an action in assumpsit against Nationwide, the basis of which was Nationwide’s failure to pay Brenner’s additional medical benefits for the injuries arising out of the July 23, 1978, accident. In January of 1983, a conciliation was held before the Honorable Ralph H. Smith, Jr. At that time, the parties reached an agreement wherein Brenner would accept the payment of $203.04 in full settlement of all unpaid no-fault medical benefits.

On January 11, 1983, Nationwide forwarded to Brenner a release to be signed, informing Brenner that upon return of the executed release, the settlement draft already issued would be forwarded. Numerous written requests were made by Nationwide’s counsel to Brenner’s counsel for return of the release. Not receiving any response over a period of ten months, Nationwide petitioned the trial court to enforce the settlement.

Finally, on January 17, 1984, Brenner executed the release and satisfied the docket. Since it had been over a year from the issuance of the original settlement check, which now bore a stale date, a new check was promptly issued on January 24, 1984, and sent to Brenner.

The instant action was commenced on December 27, 1985. In this second action, Brenner requested payment for further medical bills allegedly incurred as a result of the July 1978 automobile accident. These expenses totaled $7,887.64. Upon review, the trial court held that pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.S. § 1009.106(c)(1) (repealed 1984), Brenner’s claim was barred by the statute of limitations since it was commenced later than two years after the last payment of benefits. Thereafter, the trial court entered judgment in favor of Nationwide, and Brenner filed the instant appeal.

On appeal, Brenner contends that the trial court erred in its determination since she did not actually receive the check until January 24, 1984. As such, since the instant action was commenced on December 27, 1985, approximately one year thereafter, Brenner alleges that the claim is within the two-year time limitation. We disagree.

The statutory provision in question dictates that: if no-fault benefits have been paid for loss arising otherwise from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant may be commenced not later than two years after the last payment of benefits. 40 Pa.S. § 1009.106(c)(1) (emphasis added). In interpreting a statute, this Court may not disregard its clear and unambiguous language. Miller v. Prudential Property and Casualty Insurance Co., 344 Pa.Super. 28, 495 A.2d 973 (1985). Further, this Court will not reverse the decision of the trial court absent a manifest abuse of discretion or error of law. Carlson Mining Co. v. Titan Coal Co., Inc., 343 Pa.Super. 364, 494 A.2d 1127 (1985).

Upon review, it is evident that this is an issue of first impression. As such, we shall review the facts of the instant case and apply them to the statute in question without the aid of prior caselaw.

Instantly, the record demonstrates that on January 24, 1983, Nationwide’s attorney notified Brenner that he was in possession of the settlement check and would forward the same to her upon receipt of an executed release. The release had been sent to her attorney on January 11, 1983. Brenner, however, failed to respond in any way. After ten months of unsuccessfully trying to execute the settlement, Nationwide petitioned the trial court to ensure its enforcement. Finally, on January 17, 1984, Brenner responded and executed the release. Since, however, the date on the check was stale, Nationwide was forced to issue a new check which bore the date of January 24, 1984. As such, Brenner contends that the new date constituted the date of the last payment of benefits. It is evident, however, that but for Brenner’s unwillingness to cooperate, she would have received the check on January 24, 1983. In effect, Brenner is now seeking to benefit from her unjustifiable failure to comply with the terms of the settlement agreement.

Although Brenner did not actually receive the check, it was clearly within her power to do so. Moreover, the record demonstrates that Nationwide did nothing to prevent her from obtaining the check. As such, Nationwide should not be punished for Brenner’s uncooperative behavior. Accordingly, since Brenner “constructively” received the check on January 24, 1983, the last payment of benefits, for purposes of the statute, occurred on January 24, 1983. Therefore, Brenner’s subsequent action of December 27, 1985, which is approximately three years from the date of the last payment of benefits, is barred by the statute of limitations and the trial court did not err in its determination.

Accordingly, this Court affirms the decision of the trial court.


author: BROSKY, Judge: McEWEN, Judge,

text:
    560 A.2d 229
    COMMONWEALTH of Pennsylvania v. David Robert MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1989.
    Decided June 13, 1989.

      Anthony J. Martino, Bangor, for appellant.
    William J. Parker, Assistant District Attorney, Hones-dale, for Com., appellee.
    Before BROSKY, McEWEN and OLSZEWSKI, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence following appellant’s jury conviction for default in required appearance.

Appellant raises five issues: The first one challenges the admission at trial of evidence of voice identification without compliance with the discovery rule (Pa.R.Crim.P. 305 B). The second and third issues relate to the trial court’s refusal to grant appellant’s demurrer on the basis of failure to make an in-court identification of appellant and because the charge for which he stood trial was de minimis. Appellant’s fourth contention concerns the denial of his Motion for a directed verdict of acquittal because the Commonwealth did not offer any evidence to- rebut appellant’s affirmative defense of mistake of fact. Finally, it is alleged that the trial court improperly instructed the jury that appellant could be found guilty of the crime charged if the evidence showed that he acted recklessly. We affirm.

The instant charge arises from appellant’s failure to appear at a preliminary hearing on an underlying charge.

As his initial issue, appellant avers that he was not given access to evidence of voice identification in violation of Pa.R.Crim.P. 305 B(l), the mandatory discovery rule. On this basis, he charges, the trial court erred in permitting the Commonwealth to introduce evidence of his voice identification via the testimony of Trooper Todd, the prosecuting State Police Trooper, or, alternatively, that his counsel should have been given the opportunity to prepare to respond to this evidence.

During direct examination of Trooper Todd, counsel for appellant protested the Trooper’s affirmative response to the query, “Would you know his [appellant’s] voice if you heard it?” N.T., 1-21-88, 22. Counsel for appellant took the position that because the item which he requested — the results of any identification of appellant by voice — is considered mandatory discovery material (see Pa. R.Crim.P. 305 B(l)(d)), it should have been automatically provided to him by the Commonwealth. We disagree. It is clear from the wording of Pa.R.Crim.P. 305 B(l) that a defendant must first request the item(s) of information deemed mandatory under the Rule. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Counsel conceded that he had received a host of discovery material from appellant’s prior counsel pursuant to the conduct of informal discovery between prior counsel and the District Attorney. See Pa.R.Crim.P. 305 A. Hence, present counsel was aware that noticeably absent from among the discovery materials obtained pursuant to informal discovery was this alleged result of voice identification.

Appellant’s trial counsel made no informal request to the District Attorney for this information as provided by Pa.R. Crim.P. 305 A, nor did counsel file a Motion with the court pursuant to the Rule demanding this item of information. Appellant’s concern over the absence of the voice identification material first surfaced at trial during direct examination of Trooper Todd despite trial counsel having entered his appearance on behalf of appellant in excess of two months before the commencement of trial. The Commonwealth stated at trial that it had given prior counsel material which was contained in its files. As stated above, appellant’s counsel admitted that he had received discovery material from former counsel as a result of informal discovery procedures.

The following exchange ensued between the court and appellant’s counsel with regard to the latter’s complaint of the allegedly missing voice identification material:

THE COURT: I am sure if you had formal discovery and asked for it, I am sure you would have gotten it. You simply haven’t asked for it in informal discovery and it wasn’t there. Is it their duty on the Commonwealth’s part to supply it? Obviously, you anticipated this to be a problem.
So, do you have a case for me? An authority?
MR. MARTINO: Offhand, I don’t, Your Honor.
THE COURT: Your motion is denied.

Id.; emphasis supplied. Appellant’s counsel failed to supply the trial court with authority to support his argument that the mandatory nature of the information automatically required its disclosure or notice of its non-existence by the Commonwealth without either an informal request or by the filing of a formal motion. His appellate Brief is similarly deficient, and, consequently, the issue merits no further discussion.

The next three issues attack the legal sufficiency of the evidence adduced against appellant.

The first of these raises the sufficiency of the evidence in the context of the trial court’s failure to grant a demurrer on the basis of an in-court identification. Appellant elected to put in a defense when his Motion for a demurrer was denied after the close of the Commonwealth’s case. It is true that when a defendant chooses to put in a defense after the denial of a demurrer instead of resting his case, the correctness of this ruling is no longer an available issue on appeal. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Watson, 355 Pa.Super. 160, 512 A.2d 1261 (1986), appeal denied, 515 Pa. 579, 527 A.2d 540 (1987); Commonwealth v. Hammock, 319 Pa.Super. 497, 466 A.2d 653 (1983). However, it is equally the case that this challenge may be considered by an appellate court as an attack upon the sufficiency of the evidence as a whole. Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983). We will therefore address the issue as an attack upon the sufficiency of the evidence adduced for the charge of default in required appearance.

The portion of the statute defining the offense of default in required appearance applicable to appellant reads:

§ 5124. Default in required appearance
(a) Offense defined. — A person set at liberty by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place, commits a misdemeanor of the second degree if, without lawful excuse, he fails to appear at that time and place____

According to the above, the Commonwealth would only have to prove that appellant failed to appear at the scheduled preliminary hearing on the underlying criminal charge. Commonwealth v. Winkleman, 11 D. & C.3d 53 (Clinton Co.1979). The Commonwealth was able to meet its burden of proof in this case through its witness, Trooper Todd.

Trooper Todd, the prosecuting State Trooper, indicated that he received a telephone call from appellant on the date of the preliminary hearing on the underlying charge. When asked if he was familiar with appellant’s voice and had recognized it, he responded affirmatively. The issue raised here — the inadequacy of the voice identification — was never pursued on cross-examination. In his testimony, appellant denied that he had made the telephone call to Trooper Todd.

It is well-settled that a witness may make an identification by voice, alone. Commonwealth v. Reid, 448 Pa. 288, 292 A.2d 297 (1972); Commonwealth v. Woodbury, 329 Pa.Super. 34, 477 A.2d 890 (1984); Commonwealth v. Lane, 245 Pa.Super. 146, 369 A.2d 335 (1976); Commonwealth v. Johnson, 201 Pa.Super. 448, 193 A.2d 833 (1963). Moreover, voice identification testimony goes to evidentiary weight rather than to sufficiency and is for the trier of fact to assess. Commonwealth v. Woodbury, supra. It is obvious that the factfinder, here the jury, chose to believe the Trooper’s version rather than that rendered by appellant. Thus, on this basis, alone, we would find the evidence sufficient to support appellant’s conviction of the instant charge.

The relevant arguments to appellant’s third and fourth issues appear to have been transposed in appellant’s Brief to this court. Appellant’s third allegation of error, raised once again in the context of a demurrer, sets forth, without supporting authority, four reasons why the demurrer should have been granted because of the alleged de minim-is nature of the charge. Each of the reasons which appellant proffers is allegedly based on Trooper Todd’s testimony.

The first is that the victim (on the underlying charge) was not willing to testify and that Trooper Todd knew this on the day of the hearing. The second reason advanced is that no harm was suffered by anyone because of appellant’s failure to appear. Thirdly, the underlying charge was not refiled until over one year after the originally scheduled preliminary hearing. Lastly, appellant indicated his belief that he would not have to appear. It is true that Trooper Todd testified that the witness was unwilling to appear against appellant. Trooper Todd also testified at trial as to the telephone conversation between himself and appellant as to the latter’s statement that he would not be appearing at the preliminary hearing because the victim had allegedly dropped or would be dropping the underlying charge. However, Trooper Todd informed appellant that the latter was still required to appear at the preliminary hearing because the victim, herself, could not cause the charge to be dismissed since the Trooper had initially filed the complaint.

In like manner, the record at trial relates that the underlying charge was not refiled until one year after the preliminary hearing because the State Police were attempting to locate appellant during this period of time.

Appellant also asserts that Trooper Todd testified that no one was harmed because of appellant’s failure to appear for his preliminary hearing on the underlying charge. Upon review of the record, we find that appellant has mischaracterized the Trooper’s testimony. Trooper Todd never testified in the fashion alleged by appellant. Rather, the testimony evinces the following exchange between appellant’s counsel and the Trooper:

Q. In your mind was anyone harmed or any injuries sustained by the defendant not appearing on August 27, 1986?
A. No.

N.T. 1-21-88, 35. As noted by the Commonwealth, this response is different from the affirmative declaration attributed to the Trooper by appellant and does not support the argument that the instant violation was de minimis.

Section 5124, the provision of the Crimes Code defining default in required appearance, appears as part of Chapter 51 thereof which is entitled “Obstructing Governmental Operations.” So, while assuming for the sake of argument that the victim was not harmed by the non-appearance of appellant at the scheduled preliminary hearing, it does not follow that no harm was done at all by appellant’s non-appearance for his preliminary hearing at the Office of the District Justice.

According to the terms of the statute, appellant was a person set at liberty by the District Justice upon the condition that he subsequently appear for his preliminary hearing on the underlying charge. Appellant failed to appear for his preliminary hearing and did not have a lawful excuse therefor. Informing the prosecuting officer that he would not appear because the victim allegedly had dropped or would be dropping the underlying charge is not a lawful excuse for non-appearance. Rather, it constitutes an obstruction of the operation of the criminal justice system. This is all that the Commonwealth had to and did prove to the satisfaction of the trier. By far, this offense does not meet the standards of a de minimis infraction. Appellant’s conduct was not licensed or of the type tolerated by custom, no extenuating circumstances appear to excuse the conduct and, as we have discussed above, it caused the harm sought to be prevented by the default statute.

In the last of his trilogy of sufficiency claims, appellant states that his Motion for a directed verdict at the close of all the evidence should have been granted because the Commonwealth failed to rebut his affirmative defense of mistake of fact. As we have discussed previously, it was Trooper Todd’s testimony that appellant had called to inform the Trooper that he would not be present because the victim had dropped or would be dropping the underlying charge. It was also Trooper Todd’s testimony that his response to appellant was that appellant must appear at the scheduled preliminary hearing and that only he [the Trooper], not the victim, could drop any charges. Appellant was, therefore, on notice to appear. While appellant denied having had this telephone conversation with Trooper Todd, the jury found otherwise. Since no basis exists upon which appellant could have been factually mistaken about his obligation to appear at the preliminary hearing, the Commonwealth was not bound to rebut a nonexistent defense.

Appellant’s final contention charges the trial court with error in instructing the jury that it must find appellant to have acted recklessly in order to establish his guilt on the instant charge. Appellant argues that the element of recklessness is irrelevant to a charge of default in required appearance since one could not recklessly fail to appear when no risk to person or property exists.

Section 302 of the Crimes Code, 18 Pa.C.S.A. § 302, defines the requirements for the various types of culpable conduct. Section 302(b)(3) states that recklessness involves a conscious disregard of “a substantial and unjustifiable risk that the material element [of the offense] exists or will result from his [the actor’s] conduct.” In failing to appear for his preliminary hearing, appellant consciously disregarded the substantial and unjustifiable risk that he would be obstructing a governmental operation — the criminal justice system — by his non-appearance. Appellant knew, from his telephone conversation with Trooper Todd, that he was required to appear at the Office of the District Justice for a preliminary hearing. Despite this warning, he chose to ignore it, taking the aforesaid substantial and unjustifiable risk that criminal proceedings would be initiated against him for failing to appear. Therefore, the charge was proper.

Moreover, the court restated or clarified the now objected-to portion of the charge at counsel’s request. After doing so, the court then queried appellant’s counsel, “All right?” Appellant’s counsel responded, “Thank you, Your Honor.” N.T. 77. Counsel for appellant never excepted to the charge as reread, nor did he request any further relief from the court, even though the court’s query following the rereading of the questioned portion of the charge would appear to have invited further comments, suggestions or corrections. Counsel, however, was in apparent agreement with the court’s instructions as reread. This type of action (or inaction) on the part of counsel has been held to preclude appellate review of the claimed error. Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978); Commonwealth v. Raison, 458 Pa. 378, 326 A.2d 284 (1974); Commonwealth v. Lloyd, 376 Pa.Super. 188, 545 A.2d 890 (1988); Commonwealth v. Hodge, 270 Pa.Super. 232, 411 A.2d 503 (1979); Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978); Pa.R.Crim.P. 1119(b). However, as noted from our discussion, this issue lacks considered merit in any event.

Judgment of sentence affirmed.

McEWEN, J. files a dissenting statement:

McEWEN, Judge,

dissenting statement:

While I am ever so hesitant to differ with such distinguished colleagues as compose the majority, I am compelled to dissent for the reason that the record in my view requires that the judgment of sentence be vacated and appellant discharged.

      . We have already deemed the evidence sufficient on the basis of the voice identification by Trooper Todd. It would seem unnecessary then, to discuss the merits of this issue, as well, especially since it is raised in the context of a demurrer. However, the issue lacks merit, in any event, and we are able to dispose of it briefly.