author: BROSKY, Judge.

text:
    577 A.2d 585
    Benjamin C. SCHECTER, M.D., Appellant, v. Donald R. WATKINS, M.D., Edward S. Konwinski, M.D. and Surgical Associates of Bradford.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1989.
    Filed June 20, 1990.

      Robert Gawlas, Wilkes-Barre, for appellant.
    William J. Kubiak, Bradford, for appellees.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment entered on a jury verdict in favor of appellees and against appellant after denial of post-trial motions.

Appellant raises the following issues on appeal: (1) whether the trial court erred in granting appellees a compulsory non-suit on appellant’s breach of contract action and denied his points for charge; (2) whether the trial court erred in refusing certain points for charge regarding appellant’s “freeze-out” claim in favor of its own instructions; (3) whether the trial court erred in prohibiting appellant from presenting testimony that he owned an interest in Surgical Associates and in ruling, instead, that no stock option existed; (4) whether the trial court erred in refusing to permit appellant to read certain admissions made by appellees, in permitting appellant to read only portions of certain admissions of appellees and in failing to charge the jury concerning the effect of the admissions; (5) whether the trial court erred in denying appellant’s Motion in limine at trial concerning acts of misconduct occurring prior to the renewal of his employment contract and in refusing to permit appellant to read into the record various admissions; and (6) whether the trial court erred in refusing to allow appellant to present evidence and argument relative to his claim for punitive damages and whether the court incorrectly instructed the jury on this claim. We affirm.

Appellant, Benjamin C. Schecter, M.D., was employed as a surgeon in Bradford, Pennsylvania, by Surgical Associates of Bradford (Associates). The appellees are Donald R. Watkins, M.D., Edward S. Konwinski, M.D., and Associates, which terminated the employment of appellant at a meeting of the Board of Directors on August 10, 1984. Appellant filed an action alleging, inter alia, breach of his written employment contract with appellees. At the time of his termination, Dr. Schecter was recovering from a bout with alcoholism at the Marworth Facility, which is part of the Geisinger Medical Center. At issue are two provisions of this contract, Paragraph Three and paragraph Five. These two provisions read as follows:

3. TERM OF EMPLOYMENT The term of this Agreement shall be one (1) year from the date set forth unless either party shall give ninety (90) days notice of their intention to terminate the agreement prior to the end of the term. This Agreement shall otherwise terminate at any time if the Employee should cease to be authorized to practice medicine in the Commonwealth of Pennsylvania, if he should die or become permanently disabled or if the Employer and Employee should mutually so agree in writing. At any time after six (6) months from the date herein, Employer and Employee may renegotiate the term of this Agreement.
5. DISABILITY.
A. In the event of the inability of the Employee to perform his duties pursuant to this contract for a period of up to six (6) successive months due to sickness or accident his full salary shall continue to be paid by the Employer during such period. In the event such disability continues beyond six (6) months he shall be compensated to the extent that the disability income insurance shall provide. The term disability shall be defined in accordance with the definition as contained in those contracts recited in paragraph C. In determining periods of disability, periods of disability shall be counted as successive if the Employee has not returned to work for at least one (1) month between such periods of disability.
B * * *
Q * * *

Dr. Schecter argues that appellees’ termination of his employment with Associates is in breach of Paragraph Five of the employment contract, above, because he was wrongfully terminated due to an illness, i.e., alcoholism. Dr. Schecter maintains that Paragraph Five prohibits termination on account of illness because its terms provide for continuation of salary payments during the disability period and, if necessary, the payment of disability insurance income. Appellees counter that Dr. Schecter’s termination was in accordance with Paragraph Three of the contract. At the end of Dr. Schecter’s presentation of evidence at trial, appellees moved for and were granted a non-suit on the breach of contract claim. The rule regarding the entry of a non-suit has been oft-stated.

The entry of a non-suit is reserved for the clearest of cases. The plaintiff must be given the benefit of all the evidence and the reasonable inferences therefrom. All conflicts in evidence must be resolved in favor of the plaintiff. Viewing the evidence in this manner, if the trier could not reasonably conclude that the cause of action has been established, then a non-suit is proper. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Grounds exist for the entry of a non-suit if the plaintiff has failed to introduce sufficient evidence to maintain the cause of action. In that event, it becomes the duty of the court to determine, prior to sending the case to the jury, whether the plaintiff has met his evidentiary burden. Id.

The court concluded at the close of Dr. Schecter’s case that the latter had not presented evidence upon which his breach of contract claim could be sustained. Our review of the trial transcript supports the trial court’s ruling.

At trial, Dr. Schecter attempted to introduce and did, in fact, introduce evidence that alcoholism is an illness and, from that premise, attempted to prove that his discharge was in breach of Paragraph Five of the contract. Dr. Schecter presented evidence in the nature of testimony from health care personnel at the Marworth Center to this effect. He also presented evidence that this was the official position of the American Medical Association (AMA) and the Pennsylvania Medical Society (PMS). According to these organizations, fellow physicians had the responsibility to help each other on the road to recovery from alcoholism by encouraging the recovering alcoholic physician to once again become a productive member of the profession. Dr. Schecter attempted to demonstrate that appellees’ termination of his employment with Associates was not in keeping with the position espoused by these professional organizations and, therefore, effected a breach of Paragraph Five of the employment contract.

Appellees have never contested that alcoholism is an illness. However, by the introduction of evidence to this effect, Dr. Schecter attempted to demonstrate that appellees’ termination of him was because of his alcoholism and, therefore, constituted a breach of the terms of Paragraph Five of the employment contract. Dr. Schecter attempted to show that the official position of the AMA and the PMS was binding upon appellees to support his breach of contract claim. In addition, Dr. Schecter introduced evidence through the testimony of Dr. Colangelo, the president of the Marworth Center, that an individual who has lost employment because of alcoholism has a lesser chance of recovery. In short, the only evidence introduced by Dr. Schecter at trial to support his breach of contract claim was that alcoholism is an illness, that both the AMA and the PMS recognized this to be so and that appellees disregarded this position as well as that of the health care personnel at the Marworth facility.

At trial, appellees denied that Associates had terminated Dr. Schecter because of his alcoholism. At the meeting of August 10, 1984, Associates decided to terminate Dr. Schecter. According to the minutes of that meeting, as testified to by appellee, Dr. Watkins, Associates decided to terminate Dr. Schecter’s employment under Paragraph Three of the contract. The termination was to be effective ninety days after notice to Dr. Schecter pursuant to the terms of Paragraph Three of the employment contract. According to the minutes, “Doctor Schecter [would] be discharged for reason of his material failure to perform and satisfy the terms and convenants [sic] set forth in paragraphs one, two and three of said employment agreement.” N.T. 62. Nothing in the minutes of the meeting of Associates held on August 10, 1984, nor any other testimony adduced in the presentation of Dr. Schecter’s case, specifically indicates as the reason for his termination his illness.

Dr. Schecter presented evidence at trial that Dr. Watkins, an appellee here, was previously stricken with coronary disease, was not dismissed because of this and continued to receive his salary, as well. Dr. Schecter urged at trial and now urges on appeal that illness due to coronary disease is no different from illness because of alcoholism in terms of continuing his salary and employment with Associates under the terms of Paragraph Five of the agreement. Appellees counter, however, that Associates was not dissatisfied with the services of Dr. Watkins, and, consequently, that physician was not terminated.

Although Dr. Schecter relies solely on Paragraph Five of the agreement to support his claim of breach, a fair reading of this paragraph indicates that it is not a term of employment clause. This paragraph provides for contingent financial security in the event an employed physician of Associates is unable to work because of illness or accident. This paragraph, according to its terms, would support a breach of contract action only if Dr. Schecter had remained an employee of Associates and then only if Associates had refused to pay the salary of Dr. Schecter for the specified period during his disability or if it had not maintained a contract of disability insurance on him or if the disability insuror had refused to compensate him according to the terms of the policy.

Paragraph Three of the agreement, however, is a term of employment clause and is specifically labeled as such. This paragraph provides for a term of employment of one year from the date set forth in the agreement unless either party to the agreement gives ninety days’ notice of intent to terminate prior to the end of the one-year term. Unlike the employment-at-will situation, the contract here in question was an express one limiting Associates’ ability to discharge its employees. An employment contract of definite duration cannot be legally terminated by an employer prior to its expiration date. Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 534 A.2d 798, appeal denied, 518 Pa. 656, 544 A.2d 1342 (1988). An employer may not terminate an employee for the duration of the contract period absent just cause. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987). The employment contract at issue here, however, expressly permits termination at the behest of either party to the contract prior to the end of the contract period without a showing of any cause.

In his Reply Brief, Dr. Schecter, in effect, concedes this point:

If Defendants [appellees here], as they have contended from the very beginning of this litigation, could at any time terminate the employment relationship upon ninety (90) days [sic] notice, then they needed no justification for doing so; they needed only to show that the Contract allowed them to terminate on ninety (90) days [sic] notice and that they provided DR. SCHECTER with such notice.

At 8; emphasis supplied. Dr. Schecter does not argue that he was not given the requisite ninety-day notice of termination, nor does he argue that the terms of the employment contract were not the result of an arms’ length bargained-for exchange. He admitted at trial that the language of the contract was clear and that the contract was not one of adhesion. At trial, counsel for Dr. Schecter stated the following:

MR. LEVINSON:
I object to the question as being irrelevant. The language of the contract speaks for itself. We have the document in evidence, [sic] I don’t see there’s any relevance concerning negotiations or terms of the contract.

N.T. 145.

MR. LEVINSON:
Counsel agrees it was a contract negotiated at arms length, [sic] it’s not a contract of adhesion.

N.T. 146.

With regard to this issue, we find as follows: (1) Paragraph Five of the employment agreement is not a term of employment clause. We have discussed the nature and purpose of this clause, above; (2) Paragraph Three of the employment agreement is a term of employment clause. As discussed above, it sets forth the duration of the term of employment and the circumstances under which the employee may terminate or may be terminated. It does not require cause for termination on the part of either the employer or the employee; (3) Dr. Schecter has not alleged or proven at trial any breach of Paragraph Three of the employment agreement. Specifically, Dr. Schecter has neither alleged nor proven that he was terminated without the requisite ninety-days’ notice prior to the end of the contractual term, the only condition of termination applicable to him under the circumstances. Nor has he alleged or proven that the ninety-day termination provision is unconscionable, adhesive or was not bargained for. In short, Dr. Schecter failed to introduce any evidence at trial which the fact finder could consider as giving rise to a breach of the subject employment agreement. We therefore conclude that the grant of the non-suit with respect to this claim was proper.

Dr. Schecter’s next challenge is to the jury charge on his claim of “freeze-out”. He contends that his points for charge on this claim were correct and that the trial court’s charge was erroneous and confusing. We disagree.

It is now well-settled that in reviewing a challenge to a jury charge, an appellate court will scrutinize the entire charge against the evidence presented to determine if prejudicial error has occurred. This court will not reverse on the basis of isolated inaccuracies if the charge as a whole was not erroneous and did not prejudice the complaining party. Nobel C. Quandel Co. v. Slough Flooring, Inc., 384 Pa.Super. 236, 558 A.2d 99 (1989). We have reviewed the charge relating to Dr. Schecter’s “freeze-out” claim, in particular, as well as the entire charge, generally, according to the aforementioned standard. From this reading, we are satisfied that the charge was accurate and sufficiently covered Dr. Schecter’s requested points for charge on this issue.

The term “freeze-out”, also known as and referred to by the trial court as a “squeeze-out”, is defined in Black’s Law Dictionary as follows:

Action taken by persons in control of corporation resulting in termination of a shareholder’s interest, and term implies a purpose to enforce a liquidation or sale of other stockholder’s shares, not incident to some other wholesome business goal____ The use of corporate control vested in the statutory majority of shareholders from the enterprise or to reduce to relevant insignificance their voting power or claims on corporate assets. It implies a purpose to force upon the minority shareholder a change which is not incident to any other business goal of the corporation____

At 599. The trial court explained the concept of “freeze-out” to the jury as follows:

The question you must decide is whether Doctor [sic] Watkins and Konwinski acted together to use their majority power to act without legal justification to do things which were intended to and did harm the plaintiff’s economic position as a shareholder. Did they in other words freeze out another owner, did they breach their duty of loyalty and fairness so that they themselves would be economically benefited.

N.T. 690. Upon request for clarification, the trial court further explained the theory of “freeze-out”:

In order for the plaintiff to win you must be satisfied ... that ... the defendants used their ownership position to freeze out or force out Doctor Schecter unjustifiably and that as a result, he was economically harmed. To determine whether or not a freeze out has occurred, you have to examine the entire course of dealings between the parties. Did the defendants have good reason to do what they did. Or did they engage in a course of conduct with the intent of forcing the plaintiff out of the business and financially harming him____ If you determine that what the defendants did was motivated by an unethical or unfair or improper motive, then you may conclude that a freeze out has occurred. If however you determine that what they did was properly motivated, then a freeze out has not occurred.

Id., 712-713. This charge not only comports with the legal definition of “freeze-out” but is also substantially similar to the definitional charge requested by Dr. Schecter.

Any mention of damages on Dr. Schecter’s claim for breach of the employment contract which was requested in connection with the' points for charge on damages for the “freeze-out” claim was properly disallowed as the former claim was not before the jury. However, the court did instruct on damages relative to the “freeze-out” claim as follows:

Now I have told you that whether or not Doctors Watkins and Knowinski and Surgical Associates of Bradford broke the employment contract is not an issue for you to decide. You may, however, take into account all of the circumstances surrounding the corporations’ [sic] decision to discharge Doctor Schecter and in deciding whether or not he was frozen out.
[Y]ou must be satisfied ... that the plaintiff’s [sic] used their ownership position to freeze out or force out Doctor Schecter unjustifiably and did so for their own economic benefit. If you decide that they did freeze out Doctor Schecter, then you must decide how much money, if any, they should pay Doctor Schecter to reimburse him for the loss he incurred due to their action.

At 690-91.

As part of his challenge to the jury charge, Dr. Schecter alleges that the court gave no instruction relative to the personal liability of Doctors Watkins and Konwinski, as officers of Associates, as requested in Point for Charge number fifteen. Using the aforementioned standard of reviewing a jury charge for errors or omissions, we conclude that the charge was not derelict in this regard. Throughout the jury charge, the trial court mentioned the potential liability of both Doctors Watkins and Konwinski to Doctor Schecter.

As his final challenge to the jury instructions, Dr. Schecter claims that the trial court erroneously, inadequately and in a confusing manner instructed the jury on the method of determining the fair value of Dr. Schecter’s stock in Associates. According to Dr. Schecter, this instruction permitted the jury to consider any factor that body deemed appropriate in determining the fair value of the stock. Dr. Schecter avers that the trial court failed to instruct the jury in the manner requested by his Point for Charge number sixteen. The charge as given by the court reads as follows:

The law says that if he was frozen out he’s entitled to be paid the fair value of his stock. What fair value is, how much money, is for you to decide. You have heard several factors which bear on this testified to and argued. They include for example book value, asset value, earnings and profit trends, absence of a covenant not to compete, the agreement of allocation of accounts receivable between Doctor Watkins and Doctor Konwinski and the market value of the shares. You may consider any such factor you think is appropriate in deciding what Doctor Schecter’s twenty-five shares are worth.

Id., 691-92. In In re Watt & Shand, 452 Pa. 287, 304 A.2d 694 (1973), our Supreme Court explained that in determining the fair value of a minority holder’s stock, “consideration must be given to all factors and elements which reasonably might enter into the fixing of value.” 452 Pa. at 292, 304 A.2d at 698. The court then listed some of the factors which must be considered, viz: asset value, market value and price, management and its policies, earnings, dividends, valuation of assets, reserves for contingencies, tax liabilities, future earnings and projected business. We find that the court charged substantially according to the language of Watt which Dr. Schecter had cited as authority for his requested point. Therefore, Dr. Schecter’s claim that the jury was impermissibly informed that it could consider any factor in the context of assessing fair valuation of his stock is unfounded.

In his next issue, Dr. Schecter complains that he was improperly prohibited from presenting testimony and argument that he owned or was entitled to one-third of the stock of Associates. He also alleges that the court erred in concluding as a matter of law that no option existed to permit him to purchase additional stock to complete his one-third share. At trial, Dr. Schecter and Dr. Watkins both testified that Dr. Schecter, upon joining Associates, purchased twenty-five shares of the corporation. At several annual meetings of Associates, he was made an offer to purchase and asked if and when he would purchase the remaining shares, thus bringing him up to ownership parity with Doctors Watkins and Konwinski. Dr. Schecter, throughout his tenure with Associates, informed the corporation that he was financially unable to purchase the remaining shares.

At a meeting held on November 14, 1984, Associates resolved to ratify the withdrawal of its offer to Dr. Schecter to purchase any additional shares of stock. At trial, Dr. Schecter admitted that he never made demand upon Associates to exercise his option to purchase the remaining shares prior to the meeting of November 14, 1984. Dr. Schecter, despite his testimony, attempted to show that by letter of October 30, 1984, through his then counsel, Mr. Roth, he made a demand to purchase the remaining shares of stock which would then place him on parity with his colleagues at Associates. However, the court instructed the jury to disregard any indication that Dr. Schecter had made the demand because of the uncertainty surrounding the representation made in the letter. The court similarly disallowed any reference to this letter as representing a demand to purchase the outstanding shares when Mr. Wick, the secretary of Associates, was examined concerning his knowledge of Dr. Schecter’s demand. The purpose of representing this letter to be a demand by Dr. Schecter to purchase the outstanding stock was to demonstrate that Associates had withdrawn its offer to purchase only after Dr. Schecter had attempted to exercise that right. Based upon this testimonial background, we conclude that Dr. Schecter’s complaint that the trial court prohibited him from presenting evidence that he owned or was entitled to the remaining stock is lacking in factual basis.

The trial court held as a matter of law that Dr. Schecter had no right to acquire the additional stock because it did not construe the language of Paragraph Four of the employment agreement, which addresses the purchase of stock, as an option to sell or purchase. An option contract is a contract to keep an offer open. However, the option arises and exists only if and unless the optionee elects to exercise the option by unequivocally accepting the offer. Warner Bros. Theatres, Inc. v. Proffitt, 329 Pa. 316, 198 A. 56 (1938). Moreover, if an option is not exercised within the time set forth in the contract, it necessarily expires. Western Savings Fund Society v. SEPTA, 285 Pa.Super. 187, 427 A.2d 175 (1981). Two notable commentators have stated that while “time is of the essence in an option contract ... this means only that the option cannot be exercised after the offer has lapsed.” J. Calamari and J. Perillo, The Law of Contracts, at 91 (2d ed. 1977).

Based upon the foregoing principles of law, we conclude that an option to purchase the stock did exist but that its purported acceptance was, as a matter of law, at least untimely, if not equivocal. As noted above, Dr. Schecter, by his own admission, never accepted the offer to purchase during any contractual period of the employment agreement, although Associates periodically reminded him of his right under the agreement to elect to purchase the stock. The trial court ruled that the letter of October 30, 1984, which purportedly contained a demand to purchase under the agreement was, at best, equivocal.

However, an even more compelling reason exists to hold that Dr. Schecter’s option to purchase the outstanding shares of Associates was not valid even if acceptance of the offer to purchase had been unequivocal. Paragraph Four of the employment agreément, which is entitled “Compensation”, addresses the purchase of stock as follows: “After the first year, should employment continue [sic] Employee shall have the right from time to time to purchase capital common stock of the corporation, the number of shares so purchased to be mutually agreed upon by Employer and Employee.” (Emphasis supplied). Associates, at a meeting held on August 10, 1984, voted to terminate Dr. Schecter’s employment relationship with it. As we stated elsewhere, Dr. Schecter does not argue that he did not receive notice of this meeting or of the ultimate decision of Associates to terminate his employment relationship with it. On November 14, 1984, Associates, by written resolution, ratified the withdrawal of its offer to Dr. Schecter to purchase any additional shares of Associates. As noted elsewhere, Paragraph Three of the employment agreement provides for a ninety-day notice of termination. The November 14, 1984 ratification of the withdrawal of the offer and the November 8, 1984 letter to Dr. Schecter notifying him of the said withdrawal both occurred after the ninety-day notification of termination. Thus, withdrawal of the offer was proper because Dr. Schecter at that time was no longer an employee of Associates.

Additionally, because the trial court ruled that the terms of the letter of October 30, 1984 purporting to accept the offer to purchase were uncertain, the option to purchase expired by operation of the terms of the contract, in any event, ninety days after Dr. Schecter was notified on August 10, 1984, that he would be terminated. See Western Savings, supra, and Calamari & Perillo, supra. Therefore, no error occurred here.

Next, Dr. Schecter maintains that the trial court erred in denying his motion in limine to preclude evidence of his misconduct prior July 1, 1984, the date on which the renewal of his employment contract became effective through June 30, 1985. The misconduct referred to is Dr. Schecter’s behavior due to the effects of alcoholism.

Dr. Schecter initially argues that evidence of his behavior prior to July 1, 1984, prejudiced him before the jury and may have influenced the jury to bring in a verdict against him. The basis for Dr. Schecter’s suit against appellees was that the latter had unjustly terminated him because of his bout with alcoholism. Dr. Schecter testified at trial that he recognized that he had been an active alcoholic for thirty years prior to obtaining treatment, that he had gone to the Marworth facility for initial evaluation in 1983 and was told then that he had a problem with alcohol, that he knew in the early 1970’s that he had had a drinking problem, that he had this problem when he was hired by and all through his tenure with Associates and that Doctors Konwinski and Watkins had approached him about this problem as early as 1980 or 1981. Dr. Schecter also testified concerning an incident report which was filed against him in October 1983 concerning his behavior in the emergency room at Bradford Hospital. He stated that this incident resulted in a letter of January 4, 1984, from the hospital administrator that such behavior would not be tolerated. In short, Dr. Schecter presented the very evidence which he sought to have excluded by the Motion. Therefore, in light of his testimony, Dr. Schecter can hardly complain that the denial of the motion in limine was prejudicial to him.

Alternatively, Dr. Schecter contends that even if evidence of his behavior prior to July 1, 1984, were relevant, appellees waived their defense of discharge on the basis of Dr. Schecter’s problem with alcohol because Associates continued to renew Dr. Schecter’s employment contract each year with concomitant salary increases. However, at trial, Doctors Watkins and Konwinski denied that they had discharged Dr. Schecter because he was an alcoholic. The minutes of the meeting of August 10, 1984, introduced as evidence at trial, gave as the reason for Dr. Schecter’s termination breach of Paragraphs One, Two and Three of the employment agreement. The Doctors also testified that Associates discharged Dr. Schecter in accordance with the terms of Paragraph Three of the agreement. Hence this argument is also meritless.

Dr. Schecter’s next complaint is that the trial court erroneously refused to permit him to read into the record various admissions made by Doctors Watkins and Konwinski in their depositions. These admissions refer to the stock purchase option and the breach of contract issue. Specifically with respect to the latter, Dr. Schecter wished to read into evidence Dr. Watkins’ admission that he agreed that alcoholism is an illness. We have reviewed the deposition testimony to which Dr. Schecter refers and find that it is virtually identical to the testimony given by this witness at trial. The trial court properly refused to allow these admissions to be read into the record since the evidence was merely cumulative to that already presented. We have exhaustively discussed the substance of the breach of contract and stock purchase issues elsewhere in this Opinion and will not repeat it here.

Dr. Schecter also argues that an admission of Dr. Watkins in his deposition concerning a conversation with Mrs. Schecter should have been read into evidence as being relevant to the “freeze-out” claim, the claim for punitive damages and to impeach Dr. Watkins’ testimony. That deposition testimony merely refers to a conversation between Dr. Watkins and Mrs. Schecter concerning Dr. Schecter’s departure for Marworth and Dr. Watkins’ concern for the future well-being of Dr. Schecter and Associates. We have reviewed this deposition testimony and are unable to ascertain how it relates to the “freeze-out” claim, the claim for punitive damages or in what respect it could be used to impeach Dr. Watkins. This argument constitutes a mere recital of bald allegations to that effect.

Dr. Schecter’s last allegation of trial error relates to the court’s refusal to admit into evidence the AMA and PMS standards on alcoholism and alcohol-impaired physicians because admission of these standards would be relevant to an award of punitive damages on the “freeze-out” claim. Dr. Schecter alleges that punitive damages were awardable on the basis that Dr. Watkins’ and Dr. Konwinski’s deviation from the aforesaid AMA and PMS standards constituted outrageous conduct and reckless indifference to Dr. Schecter’s rights. Dr. Schecter also maintains that the trial court erroneously instructed the jury that it could award punitive damages only if it found that Dr. Schecter was entitled to compensatory damages in excess of one thousand eight hundred eighty-two dollars and seventy-two cents, representing the amount which he paid for the initial twenty-five shares of stock of Associates. The trial court’s charge does not support the interpretation suggested by Dr. Schecter. The trial court merely stated the amount which Dr. Schecter paid for the twenty-five shares of stock and then instructed the jury that it could award punitive damages if it determined that Dr. Schecter had suffered a financial loss as a result of a “freeze-out”.

The purpose of punitive damages is to punish for outrageous conduct done in reckless disregard of another’s rights. The aim of punitive damages is deterrence of similar conduct. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989), on remand, 385 Pa.Super. 292, 560 A.2d 809 (1989). Punitive damages must arise out of liability on the cause of action because they are an element of damages flowing therefrom. Thus, if no actual damages are sustained, an award of punitive damages is not appropriate. Id. Dr. Schecter’s arguments, then, are moot in light of the jury’s rendition of a verdict of non-liability in favor of appellees.

Judgment affirmed.

CAVANAUGH, J., concurs in the result.

      . Doctors Watkins and Konwinski are officers as well as employees of Associates.

      . The parties, both at trial and in their respective appellate briefs and the court at trial and in its Opinion filed in support of its order denying post-trial motions, refer to the dismissal of the breach of contract claim interchangeably as a non-suit or a demurrer to the evidence. Since in modern practice the demurrer has been virtually superseded by the compulsory non-suit, the procedures are, in effect, identical. Vernon D. Cox & Co., Inc. v. Giles, 267 Pa.Super. 411, 406 A.2d 1107, n. 2 (1979).

      . The minutes of the August 10, 1984 meeting disclose some doubt as to whether the subject employment contract, which was dated July 1, 1980, was still in force at the time Associates decided to notify Dr. Schecter that he would be terminated. This is because Paragraph Three of the employment contract provided that the duration of the agreement would be for one year from July 1, 1980. Each year subsequent to July 1, 1980, Associates held a meeting on June 30, renewing the contract for another year and increasing the salaries of the physicians employed by Associates. However, no meeting was held in 1984 until August 10. Because of the possibility that the employment contract was not in effect at the time of the August 10, 1984 meeting, Associates "elect[ed] to terminate Doctor Schecter’s employment relationship with the corporation effective immediately because of his failure to provide services and meet the standards expected of him and set forth in the employment agreements heretofore in effect.” N.T. 62. At trial, however, all parties agreed that the employment contract had been renewed and was in effect at the time of the August 10, 1984 meeting. Even under this contingency, however, Dr. Schecter’s employment was not terminated because of his illness.

      . Other reasons for termination contained in Paragraph Three are lack of authority to practice medicine, death, permanent disability or a mutual agreement in writing to terminate. These conditions do not require the ninety days' notice, nor are they applicable to the case at bar.

      . Dr. Schecter also makes the related argument that the trial court erroneously refused his Points for. Charge relating to the breach of contract claim. The trial court stated that since it granted a non-suit to this claim, the points for charge on that issue were irrelevant. Although we agree that the points for charge were properly not given, a more accurate statement of the law is that a trial court must refuse to give a requested point which has no application to the facts or which assumes the existence of evidence not in the record. Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984).

      . Dr. Schecter, as part of this issue, reiterates his argument on the breach of contract claim. This matter has been discussed elsewhere in this Opinion.

      . Although the trial court admitted this letter as an exhibit, we have not been able to examine its contents because it does not appear of record.

      . The minutes of this meeting indicate that Dr. Schecter was actually notified of withdrawal of the offer by letter dated November 8, 1984. Dr. Schecter does not dispute this.

      . Dr. Schecter also appends to this issue two inconsistent arguments, viz: that a directed verdict should have been granted on the issue that he had the option to purchase additional stock and that whether he had the option to purchase the stock was a jury question. He also raises the contention that it was error to refuse Dr. Schecter’s request to read the deposition testimony of Doctors Watkins and Konwinski into the record concerning the stock option. The former two arguments have not been included as part of or suggested by the Statement of Question relating to the issue under discussion. See Pa.R.App.P. 2116(a). The latter will be addressed as part of another issue, infra.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    577 A.2d 595
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard Edgar WAMSHER, JR., Appellee.
    Superior Court of Pennsylvania.
    Submitted Nov. 27, 1989.
    Filed June 26, 1990.

      Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for the Com., appellant.
    James M. Bucci, Reading, for appellee.
    Before ROWLEY, KELLY and MONTGOMERY, JJ.
   KELLY, Judge:

The Commonwealth appeals from an order dismissing burglary charges against appellee, Richard Edgar Wamsher, based upon the trial court’s determination that the Commonwealth had failed to exercise “due diligence” in bringing appellee to trial within 120 days of the withdrawal of appellee’s guilty plea, as required under the former version of Pa.R.Crim.P. 1100. We find that the run date under the new version of Rule 1100 was applicable in this case, and that it had not yet expired. We find alternatively that the Commonwealth had acted with “due diligence.” Consequently, we reverse.

Facts and Procedural History

Appellee was charged by complaint with burglary and related offenses on April 26, 1987. Appellee consented by stipulation and an express waiver of Rule 1100 rights to an extension of the original Rule 1100 date to February 12, 1988. On December 15, 1987, appellee offered a guilty plea which was conditionally accepted. At sentencing on December 18, 1987, upon review of the file and following objection to the plea bargain by the victim of the offense, the trial court permitted appellee to withdraw his plea.

On April 15, 1988, the Commonwealth filed a petition for an extension of the Rule 1100 run date, asserting the unavailability of the defendant, the unavailability of the defense counsel, and judicial delay. The petition was denied following a hearing on April 27, 1988. Charges pending against appellee were dismissed with prejudice, and this timely appeal, followed.

On appeal, the Commonwealth contends that the trial court erred in failing to apply our Supreme Court’s amendments to Rule 1100 in this case, as the run date under the former version of Rule 1100 had not expired when the amendments became effective. The Commonwealth also contends that it acted with due diligence in bringing this case to trial.

Appellee responds that when his case was called for trial on April 24, 1988, 130 days had passed since his plea had been withdrawn, and 366 days had past since the original complaint was filed. Appellee argues that the 120 day period under the former rule controls this case; or alternatively, if the new rule applies, its 365 day period runs from the date of the filing of the complaint, and not the date of the withdrawal of appellee’s guilty plea. Appellee concludes that in either case discharge was required.

The trial court, in its Pa.R.A.P. 1925(a) opinion, reasoned that the former version of Rule 1100 controlled this case, notwithstanding the amendment of the Rule 1100 by our Supreme Court on December 31, 1987. The trial court further explained that review of its own docket (which the court and not the prosecutor controlled) supported a conclusion that the prosecution had not acted with due diligence in bringing appellee to trial. The trial court did not elaborate as to how its docket revealed the Commonwealth’s lack of due diligence, nor did the trial court indicate that the Commonwealth had failed to appear ready to try this case on any date for trial scheduled by the trial court.

Application of Amended Rule 1100

Appellee was arrested and charged on April 25,1987. He was thereafter released on bail and remained at liberty on bail at all relevant times.

On November 24, 1987, the trial court granted an extension of the Rule 1100 run date to February 22, 1988, based upon the stipulation of the parties and an express written waiver of Rule 1100 rights signed by appellee. On December 15, 1987, appellee entered a guilty plea. Appellee’s plea, though conditional, nonetheless satisfied the Rule 1100 requirement, as it occurred before the extended run date of February 22, 1988, and placed appellee on trial within the meaning of the constitutional speedy trial requirement and Rule 1100. Commonwealth v. Whittall, 304 Pa.Super. 258, 262, 450 A.2d 669, 671-72 (1982); Commonwealth v. Lewis, 295 Pa.Super. 61, 67, 440 A.2d 1223, 1226 (1982) (en banc).

On December 18, 1987, however, the trial court permitted appellee to withdraw his plea. Under the version of Rule 1100 then in effect, the withdraw of the plea was treated as the grant of a new trial, and triggered a new 120 day period within which to again bring appellee to trial. See Commonwealth v. Hollenbach, 375 Pa.Super. 281, 290 n. 3, 544 A.2d 471, 476 n. 3 (1988); Commonwealth v. Jensch, 322 Pa.Super. 304, 310, 469 A.2d 632, 636 (1983); Commonwealth v. Whittal, supra, 437 A.2d at 671-72; Pa.R.Crim.P. 1100(e)(1) & note (effective December 9, 1974 through December 31, 1987) (note—“Withdrawal, rejection of, or a successful challenge to a guilty plea should be considered the granting of a new trial for purposes of this rule.”). The new run date under the former version of Rule 1100 thus became April 16, 1988.

On December 31, 1987, our Supreme Court amended Rule 1100(e)(1) effective immediately, and renumbered the amended provision Rule 1100(d)(1). It is now well-settled that the amendments to Rule 1100, including those made to former Rule 1100(e)(1), promulgated and rendered effective immediately on December 31, 1987, operate to extend Rule 1100 run dates in accordance with the provisions of the new version of Rule 1100, so long as the applicable run date under the former version of Rule 1100 had not expired as of December 31, 1987. See Commonwealth v. Monahan, 392 Pa.Super. 55, 56-57, 572 A.2d 230, 231 (1990); Commonwealth v. Corbin, 568 Pa.Super. 243, 246, 568 A.2d 635, 636 n. 4 (1990); Commonwealth v. Palmer, 384 Pa.Super. 379, 381-84, 558 A.2d 882, 883-84 (1989). Because the run date in this case under the former version of Rule 1100 was April 16, 1988 (a date after December 31, 1987), the new version of Rule 1100, rather than the former version of Rule 1100 applied. Hence, the trial court erred in calculating the Rule 1100 run date solely with reference to the former rule.

Appellee argues, however, that even under the new version of Rule 1100 the run date applicable in this case had expired. Appellee bases this argument on a rigidly literal, and only superficially plausible, construction of the new Pa.R.Crim.P. 1100(d)(1) which provides:

(d)(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial, unless the defendant has been released on bail, in which instance, trial shall commence in accordance with the provision of subsection (a)(3).

(Emphasis added). Because appellee had been released upon bail, we must refer to the provisions of subsection (a)(3):

(a) (3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint is filed.

(Emphasis added). Seizing upon the emphasized language in Pa.R.C.P. 1100(a)(3), appellee argues that proceedings after a new trial is granted must be held within 365 days of the filing of the original complaint, rather than 365 days from the granting of a new trial. We cannot agree.

As noted above, the original plea placed appellee “on trial” and fulfilled and extinguished the original speedy trial requirement which arose when the complaint was initially filed against appellee. See Commonwealth v. Whittall, supra; Commonwealth v. Lewis, supra. When appellee was permitted to withdraw his plea this effectively granted a new trial and triggered an entirely new speedy trial run date. At issue here is the manner in which our Supreme Court intended new Rule 1100(a)(3) to be incorporated by reference into new Rule 1100(d)(1), to govern the determination of the new Rule 1100 run date.

Regarding incorporation by reference, it has been cogently observed that:

[The] greatest advantage gained by incorporating terms by reference is that the new bill may be shortened with two practical benefits, reduction in volume of the statute books, and application of established precepts of proven worth to a new situation with a minimum of legislative tinkering. Balanced against these benefits, mere inconvenience of looking “beyond the four corners” of the new bill and act should mean little, and as a screen for fraud the device can as a practical matter largely be discounted. However, since any incorporation of terms by reference inevitably renders them indeterminate as to the referring act, great care should be taken to insure that they are readily and surely determinable. Hence, very serious consideration should be given to the degree to which a proposed referential adoption will render the terms of the new measure difficult to discover, unworkable or unintelligible.
A [cautious] draftsman will first of all if the proposed reference is to adopt an act or portion of an act examine the whole of that act, its textual environment, construction, history and administrative application, to make sure that the adoption will neither heap up a series of statutes, be unsuitable, nor achieve unintended results. Having satisfied himself that serious dangers of that sort are avoidable, he will employ at least the following safeguards: (a) Make the reference express and clear, (b) Use only specific reference when adopting statutory precepts with exact citation, never mere description. There is a saying that the strength of a statute lies in its general phrases. But Ernst Freund showed that to be a half truth, that in some statutes general phrases constitute weakness. The foregoing analysis has demonstrated that in most statutes general references usually do so. (c) Be explicit concerning the extent of the reference in quantity, and never affirmatively provide that the statutory provision referred to shall apply “so far as applicable” or “so far as practicable.” (d) When necessary to adapt the adopted precepts to the subject matter of the referential act, do so expressly in the new bill; do not leave the task to the courts and administrative officials.

Read, “Is Referential Legislation Worth While?,” 2A Sutherland’s Statutory Construction 719, 729-30 (4th Ed., Singer’s 1985 Rev.), extracting from 25 Minn.L.Rev. 261 (1941). (Emphasis added). The same holds true when a court acts the part of a legislature in promulgating procedural rules, and is applicable to incorporation of provisions within statutes or rules from within the same act or rule as well as to incorporations from without the act or rule.

For reasons explained infra, we find a need to construe the incorporated provision of new Rule 1100(a)(3) into new Rule 1100(d)(1) with a portion of the former provision redacted as unintended surplusage when incorporated in the latter provision.

Construction of the Rules of Criminal Procedure is governed by Pa.R.Crim.P. 2, which provides:

These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay, and as nearly as may be in consonance with the rules of statutory constructions.

(Emphasis added). Two provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., may plausibly be suggested for application in this case: the rule of strict construction of “penal provisions” (1 Pa.C.S.A. § 1928(b)(1)), and the presumption that results which are absurd, impossible of execution, or unreasonable were not intended (1 Pa.C.S.A. § 1922(1)). We reject the former as inapplicable, and apply the latter.

“Penal provisions” include “all statutes and embodiments of the common law [or parts thereof] which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.” See Pa.R.Crim.P. 3(n); see also In re Investigating Grand Jury, 496 Pa. 452, 437 A.2d 1128 (1981); Commonwealth v. Cluck, 252 Pa.Super. 228, 381 A.2d 472 (1977). Rules of Criminal Procedure do not establish, create, or define crimes, offenses or ordinances authorizing incarceration, fine, or other penalty; hence, Rules of Criminal Procedure are not “penal provisions” and are not subject to strict construction. To hold otherwise would ignore the specific mandate of Pa.R. Crim.P. 2 to construe Rules of Criminal Procedure to ensure justice, secure simplicity and fairness, and to eliminate unjustifiable expenses and delay. This we may not and will not do.

On the other hand, a presumption that our Supreme Court did not intend results which were absurd, impossible of execution, or unreasonable is entirely consonant with the express considerations set forth in Pa.R.Grim.P. 2 as guides to construction. Consequently, we deem 1 Pa.C.S.A. § 1922(1) incorporated by reference in Pa.R.Crim.P. 2, and we will apply that presumption in this case.

Applying Pa.R.Crim.P. 2 and 1 Pa.C.S.A. § 1922(1) we reject the rigidly literal construction of new Rule 1100(d)(1) suggested by appellee, i.e. that the 365 day period under new Rule 1100(d)(1) for unincarcerated defendants runs from the date of the complaint, rather than the date of an unappealed order granting a new trial, as absurd, unreasonable, and impossible of execution. While we are aware of the clear mandate from our Supreme Court that we not engraft new requirements upon our Supreme Court’s Rules of Criminal Procedure, we find that more than sufficient ambiguity and uncertainty as to the proper construction of new Rule 1100(d)(1), arises from the patent absurdity of a rigid literal construction of new Rule 1100(d)(1), to warrant this Court in embracing a less literal, but more common sense construction of the rule. Cf. Commonwealth v. Revtai, 516 Pa. 53, 57-58, 532 A.2d 1, 11 (1987); In Re JS., 387 Pa.Super. 432, 447-49, 564 A.2d 468, 476 (1989) (Kelly, J., concurring and dissenting); Commonwealth v. Sandley, 371 Pa.Super. 486, 491-95, 538 A.2d 546, 548-49 (1988) (Kelly, J., dissenting).

If appellee’s rigid literal incorporation approach were embraced as the true construction of new Pa.R.Crim.P. 1100(d)(1), then in cases where the defendant was released on bail, and where trial properly commenced under the applicable run date, but 365 days from the date of the complaint had past before the eventual grant of a new trial, the time period under new Rule 1100(d)(1) would have already expired when the new trial was granted, as illustrated by the following scenario:

— suspect charged January 1, 1988, and then released on bail;
— defendant brought to trial, or plea entered December 15, 1988;
— new trial granted, mistrial declared, or plea withdrawn, rejected, or successfully challenged on January 3, 1989.

Under this hypothetical, yet not atypical scenario, appellee’s construction would set the Rule 1100(d)(1) run date for the new trial to commence at January 1, 1989, two days before the new trial was granted. Moreover, in the scenario above, the run date for a defendant released on bail would be January 1,1989, while the run date for an incarcerated defendant would be April 28, 1989. Such a construction of new Rule 1100(d)(1) is patently absurd and unreasonable, and would render compliance with the rule impossible in many cases.

In rejecting a similarly absurd construction of another aspect of Rule 1100 in Commonwealth v. Marconi, 523 Pa. 342, 567 A.2d 628 (1989), Justice Larsen opined for our unanimous Supreme Court:

According to the plain meaning of Rule 1100, the triggering events for the running of the 120-day period are either 1) the date on which the trial court grants a new trial (or declares a mistrial), and no appeal has been perfected; or 2) the date on which the record has been remanded to the trial court following all action by an appellate court which either grants a new trial or affirms a trial court order granting a new trial (or declaring a mistrial). The problem herein is that the trial court, ... commenced counting the 120-day period from the date on which a mistrial had been declared and subtracted the days on which appellant had waived Rule 1100 and the days during which the case was pending on appeal before Superior Court and this Court. The trial court’s math was correct; however, the trial court should have started counting the Rule 1100 120-day limitation period for retrial after all of the appeals had been resolved. Because the retrial in this case was scheduled to commence 40 days after we remanded the record, there was no violation of Rule 1100 herein.
Sj! * !}! # *
It is obvious that when a matter is on appeal, the case cannot be retried. To compute the limitation period as the trial court computed it in this case would allow defendants to manipulate the filings of their motions and appeals in such a manner that they could mathematically ensure that 120 days had lapsed and thus escape retrial. Obviously, this type of legal gymnastics will not be countenanced by this Court.

567 A.2d at 630. (Emphasis added). We consider it appropriate to infer from Marconi that our Supreme Court did not intend a construction of new Rule 1100(d)(1) which would result in a run date which would have expired prior to the date of the event giving rise to the need for a new run date.

Moreover, new Rule 1100(d)(2) contains precisely the same language incorporating new Rule 1100(a)(3) by reference when the defendant is released on bail as is used in new Rule 1100(d)(1). Can it be, that despite the unequivocal language in Marconi, our Supreme Court nonetheless intended that the 365 day run date for defendants released on bail to be calculated from the date of the original complaint, rather than the date when the record is remanded finally to the trial court following the last appeal as emphatically stated in Marconi? The suggestion of such a construction is even more absurd in this context, as the construction suggested for the same language in new Rule 1100(d)(2) would lead to a new run date in such cases which would have expired long before the return of the record would have permitted the commencement of a new trial. This cannot have been our Supreme Court’s intent. Cf. Commonwealth v. Marconi, supra, 567 A.2d at 630.

In a footnote in Marconi, our Supreme Court stated: Rule 1100(e), as it existed in 1983 (Rule 1100 has since been amended to provide for a 120-day limitation period except where the defendant has been released on bail. Pa.R.Crim.P. Rule 1100(d), as amended December 31, 1987, effective immediately. In that instance, trial must commence within 365 days. Id.).

567 A.2d 628 n. 1. (Emphasis added). We read this dicta to express an intent that the 365 day period for unincarcerated defendants under new Rule 1100(a)(3) as incorporated in new Rule 1100(d)(1), is to be calculated in precisely the same manner as the 120 day period for incarcerated defendants under that rule.

Thus, we construe new Rule 1100(d)(1) to intend that:

When a trial court has granted a new trial, and no appeal has been perfected:'
the new trial shall commence within 120 days of the date of the entry of the order granting a new trial, unless the defendant is released on bail, in which instance, the new trial shall commence within 365 days of the order granting a new trial.

We consider this construction far more consonant with the mandate of Pa.R.Crim.P. 2, and the precedent of Commonwealth v. Marconi, supra, than appellee’s rigidly literal, yet ultimately absurd, proposed construction.

In declining to embrace a pedantically literal construction of the new Rule, we also heed the authoritative statements upon this subject of three of the greatest lights of American jurisprudence. Justice Holmes informs us that, “there is no canon against common sense in construing laws as saying what they obviously mean.” Justice Frankfurter admonishes us that, in reading legislation, “literalism and evisceration are equally to be avoided.” Finally, Justice Cardozo encourages and assures us that, when one construction “invigorates the act” and the other “saps its life,” “the choice between them is not hard.” Indeed, the choice is not hard in this case, as common sense commands that we reject an absurd literal construction, which would eviscerate the Rule.

We are also supported in this construction by the generally recognized rules regarding the disregarding of words in an enactment as unintended surplusage:

§ 47.37. Words disregarded or eliminated.
A majority of the cases permit the elimination or disregarding of words in a statute in order to carry out the legislative intent or meaning. Words may be eliminated only when such action is consistent with the legislative intent or meaning. Courts permit the elimination of words for one or more of the following reasons: where the word is found in the statute due to the inadvertence of the legislature, where it is necessary to give the act meaning, effect, or intelligibility, where apparent from the context of the act that the word is surplusage, where the use of the word would lead to an absurdity or irrationality, where the inclusion of the word was a mere inaccuracy, or clearly apparent mishap, or it was obviously erroneously inserted, where the use of the word is the result of a typographical or clerical error, where it is necessary to avoid inconsistencies and to make the provisions of the act harmonize, where the words of the statute do not have any useful purpose or are entirely foreign to the subject matter of the enactment, or where it is apparent from the caption of the act or body of the bill that the word is surplusage.

2A Sutherland’s Statutory Construction § 47.37, at 258 (4th Ed., Sand’s Rev.1985). (Emphasis added).

Applying the new Rule 1100(d)(1) as construed above, the new Rule 1100 run date for this case (as of December 31, 1987) was December 17, 1988. Thus, the trial court erred in discharging appellee upon a supposed violation of Rule 1100 on April 27, 1988.

Judicial Delay/Due Diligence

Alternatively, we find no evidence upon which to sustain a finding of a lack of due diligence on the part of the Commonwealth. Even under appellee’s alternate constructions of the Rule 1100 run dates, there was only a 10 day {ISO days from the withdraw of the plea) or 1 day {366 days from the filing of the original complaint) unexcused delay in this case. As the trial court, and not the prosecutor controlled the docket, and there is no indication that the prosecutor ever failed to appear ready for trial on a date scheduled for trial, we find that the trial court abused its discretion in finding that a lack of due diligence on the Commonwealth’s part, rather than excusable judicial delay on its own part, caused the minimal delay involved here.

Trial courts are not required to rearrange their dockets to accommodate Rule 1100 run dates. See Commonwealth v. Smith, 524 Pa. 72, 569 A.2d 337 (1990); Commonwealth v. Miller, 390 Pa.Super. 129, 568 A.2d 228 (1990); Commonwealth v. Bell, 386 Pa.Super. 164, 562 A.2d 849 (1989). If cases are taken out of order or reassigned to other judges, however, some care must be taken to avoid excessive, prejudicial delays. See Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990) (placing appellant’s case at the bottom of different judges’ dockets when the case was transferred resulted in excessive and prejudicial delays requiring discharge).

Here, the brief delay involved was entirely attributable to the trial court’s own docket management; moreover, it was entirely inconsequential. Had the prosecutor failed to appear ready for trial on a date set for trial, or had it controlled the docket, that would be different. As it is, we must agree with the Commonwealth that the trial court abused its discretion in finding a lack of due diligence on the Commonwealth’s part, and in denying the Commonwealth’s timely petition for an extension on grounds of judicial delay. For this reason too, the order of the trial court must be vacated, the charges reinstated, and the case remanded for a new trial.

Conclusion

We must vacate the order dismissing the charges against appellee. We note that the reinstatement of criminal charges following an appeal falls within the same rationale which treats a withdrawn plea as the grant of a new trial. Hence, new Rule 1100(d)(2) will control on remand, as appellee faces, in effect, another new trial. Another new speedy trial run date must be calculated in accordance with new Rule 1100(d)(2), Commonwealth v. Marconi, supra, and the reasoning set forth in this opinion.

Order Vacated, Charges Reinstated, Jurisdiction Relinquished.

      . We note that not many cases make it from trial through final appeal to the Supreme Court of the United States in less than 365 days.

      . Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 336, 73 L.Ed. 722, 728 (1929).

      . United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48, 53 (1943). (Emphasis added).

      . Panama Ref. Co. v. Ryan, 293 U.S. 388, 439, 55 S.Ct. 241, 256, 79 L.Ed. 446, 469 (1935).

      . Prior to Commonwealth v. Smith, supra, a closely divided en banc panel of this Court held that judicial delay of 298 days beyond the Rule 1100 run date required discharge. See Commonwealth v. Hawk, 390 Pa.Super. 382, 568 A.2d 953 (1990) (per Del Sole, J.; McEwen, Montemuro, Beck and Popovich, JJ., join; Cirillo, P J., dissents; Tamilia, J., dissents; Johnson, J., dissents and Brosky, J., joins the dissent of Johnson, J.). Commonwealth v. Smith, supra, which involved a 555 day delay substantially undermined, if not overruled sub silentio, the majority’s reasoning in Commonwealth v. Hawk, supra.


author: TAMILIA, Judge:

text:
      577 A.2d 603
    COMMONWEALTH of Pennsylvania v. Albert William SPERRY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Filed July 2, 1990.

      James Cunilio, Bryn Mawr, for appellant.
    Patricia V. Radisch, Asst. Dist. Atty., Glen Mills, for Com., appellee (submitted).
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, TAMILIA, JOHNSON and HUDOCK, JJ.
   TAMILIA, Judge:

This is an appeal from the August 22, 1988 Order of court dismissing appellant’s petition to withdraw guilty pleas and vacate judgments of conviction pursuant to the Pennsylvania Motor Vehicle Code. Appellant was charged with violating 75 Pa.C.S. § 1543, Driving while operating privilege is suspended or revoked, on five separate occasions dating from October 1982 to October 1984. On a sixth occasion, April 26, 1985, he was charged with violating 75 Pa.C.S. § 6503, Subsequent convictions of certain offenses. The violations occurred in the following municipalities on the following dates:

1. Media Borough—October 7, 1982

2. Marple Borough—October 12, 1982

3. Collingdale Borough—November 28, 1982

4. Sharon Hill Borough—July 5, 1984

5. Sharon Hill Borough—October 4, 1984

6. Sharon Hill Borough—April 26, 1985

Appellant pled guilty to each of the six violations above and paid $200 in fines and costs for each conviction.

Subsequently, appellant moved to Florida and attempted to obtain a drivers license. His application for a Florida drivers license was denied because his license was suspended in Pennsylvania. In fact, appellant’s driving privileges in this Commonwealth have been suspended for approximately twelve and one-half (12V2) years as a result of the six convictions discussed above, and he is, therefore, unable to have his driving privileges restored until February 11, 1994. In an attempt to clear his record, appellant filed a petition to withdraw the guilty pleas, which the trial court denied. This appeal followed.

Appellant contends his guilty pleas are invalid because he was unaware he was entitled to a jury trial and was not given notice of any sentence enhancement provision. To support his claim, appellant points out that although he was convicted under section 1543, which by its own terms is a summary offense statute, he was susceptible to application of the enhancement provision under the subsequent conviction section, section 6503, which at the time of the offenses authorized a maximum prison term of one year. This being so, appellant asserts he is entitled to a jury trial pursuant to. Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974), and the failure of the various trial courts to inform him of this right vitiates his guilty pleas.

Furthermore, appellant argues the district justices did not have subject matter jurisdiction to dispose of these six violations. Appellant claims that because 18 Pa.C.S. § 106(b)(8) classifies third-degree misdemeanors as crimes punishable by up to one year in prison, a repeat offense of driving while under suspension is a misdemeanor, and as such, district justices have no jurisdiction over these types of cases. We reject appellant’s claims as to the first five convictions as being without merit but find merit to his claims as to the sixth conviction for reasons other than he suggests.

Despite appellant’s contentions, the record shows without question that appellant pled guilty to each of the first five separate offenses before different district justices, who viewed each offense as an initial offense. In each of these five cases, the Commonwealth opted to charge appellant under section 1543 supra, a summary offense statute, and therefore the district justices had before them only a charge of driving under suspension, pursuant to section 1543. Appellant’s claim that despite the charges being filed pursuant to section 1543(a), they were in reality properly chargeable as section 6503 violations is unsupportable because to sustain a charge under section 6503, it was necessary for the Commonwealth to allege in the complaint under the enhancement section, the prior violation and conviction under section 1543. See Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985) (en banc); Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980). The Commonwealth elected not to charge under the enhancement section and in filing a complaint under section 1543(a), it did not allege prior violations of that section. As provided by section 1543(a) appellant was not subject to any imprisonment or sentence enhancement as a second or subsequent violator as he erroneously suggests, and he therefore had no right to a jury trial. It is ingenious but borders on sophistry for appellant to now argue that an injustice was created in charging him with a lesser offense, which was legal when he should have been charged with a more serious offense which would have to be set aside because of its illegality. We refuse to engage in this attempt to stultify the law. We find appellant’s guilty pleas as to the first five offenses were valid, and we uphold the trial court’s refusal to permit their withdrawal.

Moreover, we conclude subject matter jurisdiction properly resided in the district justices in these five cases. Under section 1543, appellant was not subject to imprisonment and he was not charged with a misdemeanor. Consequently, the district justices did have jurisdiction over the first five cases and properly disposed of them, in each case sentencing appellant to the mandated fine of $200.

As for appellant’s claims in relation to his sixth conviction, we find the claims are meritorious. With regard to this conviction only, appellant was charged under section 6503 as existing prior to the 1986 amendment. Hence, he was subject to a maximum prison term of one year and thus entitled to notice of his right to a jury trial under Mayberry, supra. The trial court, therefore, having failed to inform appellant of his right to a jury trial or of the possibility of sentence enhancement, improperly accepted appellant’s constitutionally infirm guilty plea. We conclude that appellant’s April 26, 1985 conviction is improper.

Order affirmed as to the first five convictions dating from October 7, 1982 to October 4, 1984. Order reversed and judgment of sentence vacated as to the sixth conviction of April 26, 1985.

Jurisdiction relinquished.

WIEAND, J., concurs in the result.

      . Section 1543 provides, inter alia:
      (a) Offense defined.—Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

      . We also note appellant was previously convicted of violating section 1543 on April 10, 1981 in Lower Merion Township and fined $200, but appellant has not challenged that conviction here.

      . At the time of the offense, section 6503, in pertinent part, stated:

        Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than one year or both:
      Section 1543 (relating to driving while operating privilege is suspended or revoked).
      P.L. 544, No. 96, § 3, effective in 60 days.
      Following the 1986 amendment, the statute provided for a maximum prison term of six months, to comply with the decision in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), which held that a defendant was entitled to a jury trial whenever he was prosecuted for an offense punishable by a sentence of imprisonment of more than six months.

      . Although appellant relies on an unpublished Memorandum as support for this claim, we hasten to note that such Memoranda have no precedential value and will not be considered here. However, we would point out, as we found in Commonwealth v. Lyons, 395 Pa.Super. 184, 576 A.2d 1105 (1990), that in light of 75 Pa.C.S. § 6502(c), (providing that the Crimes Code is inapplicable to vehicle violations insofar as it relates to fines and imprisonment for convictions.of summary offenses) renders this argument untenable. This issue cannot be resolved on the statutory designation of the offenses under either the Crimes Code or the Vehicle Code.

      . See, Commonwealth v. Lyons, 395 Pa.Super. 184, 576 A.2d 1105 (1990), in which this Court determined a second violation of 75 Pa.C.S. § 1543(a) is a summary offense. Lyons may be distinguished from this case in that section 6503 as construed there, involved the amendment of 1986, which reduced the penalty from one year imprisonment to six months and therefore meets the test for proceeding without a jury enunciated in Baldwin, supra. The statute we construe here is the original of section 6503 which provided for one year imprisonment for a second or subsequent offense.

      . While the date the petition for withdrawal of guilty pleas was filed, August 2, 1988, was more than three years after the pleas were entered, the Comment to Pa.R.Crim.P. 90 notes that in the interest of justice a party not represented by counsel at the time of the summary proceedings may raise procedural defects for the first time after trial. We, therefore, decline to find error in the trial court’s consideration of the petition. We are bolstered in this position by recent Supreme Court decisions which have permitted review by this Court, even when in violation of procedural rules, when the trial court has entertained the petition and ruled upon it. See Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (Table), reversing Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987); also see Commonwealth v. Moore, 369 Pa.Super. 473, 567 A.2d 701 (1989).


author: OLSZEWSKI, Judge:

text:
    577 A.2d 607
    COMMONWEALTH of Pennsylvania v. Frederick E. WOMMER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Filed June 26, 1990.
    Ronald L. Collins, Clearfield, for appellant.

      Fredric J. Ammerman, Dist. Atty., Clearfield, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, TAMILIA, JOHNSON and HUDOCK, JJ.
   OLSZEWSKI, Judge:

After trial by jury, Frederick Wommer was found guilty of first-degree murder but mentally ill. He appeals his judgment of sentence, arguing that the trial court erred in denying his petition to dismiss pursuant to Pa.R.Crim.P. 1100. He asserts that the trial court should not have extended the time for trial because of his involuntary civil commitment in a state hospital. He also argues that the trial court should have granted a mistrial due to prosecutorial misconduct. We find no error; accordingly, we affirm the decision of the trial court.

In April, 1987, Frederick Wommer was charged with criminal homicide. His preliminary hearing was continued for psychiatric evaluation of his competence to stand trial. In June, 1987, Wommer was found competent to stand trial, the preliminary hearing proceeded, and arraignment was scheduled. Before arraignment, Wommer attempted suicide and was committed to a state hospital pursuant to a petition for involuntary civil commitment. Wommer’s criminal case was removed from the arraignment list.

By September 29, 1987, less than a month before the Pa.R.Crim.P. 1100 mechanical run date, Wommer had not yet been arraigned. The Commonwealth petitioned the court to order Wommer’s return for purposes of arraignment, pre-trial preparation, scheduling for trial, and trial. That motion was heard on October 30, 1987, along with a petition for extension of time under Rule 1100. The trial court never formally responded to the petition for Wommer’s return, though it entered orders for Wommer’s return as they became necessary. The court granted the petition for extension of time, as well as a subsequent similar petition. The defendant was tried in April, 1988, and the jury returned a verdict of guilty but mentally ill.

Wommer asserts that the trial court erred in granting the Commonwealth’s petitions for extension of time. He notes that under Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980), time spent in a state hospital during involuntary commitment is not excludable time under Rule 1100. We have reviewed Fisher and subsequent cases carefully, and we find that the panel’s decision in Fisher was erroneous. Accordingly, we must overrule Commonwealth v. Fisher and affirm the decision of the trial court.

Rule 1100(c) provides that “[i]n determining the period for commencement of trial, there shall be excluded therefrom: ... (3) such period of delay at any stage of the proceedings as results from: (i) the unavailability of the defendant or his attorney.” The comments explain “unavailability:”

[i]n addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for the period of time ... during which the defendant was physically or mentally incompetent to proceed.

In the last ten years, three cases have examined the application of this unavailability provision to involuntary civil commitment. In Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980), the defendant was examined, was found incompetent to stand trial, and was committed to a mental health facility. The defendant was later found competent but remained committed pending trial. Subsequently, the defendant was found incompetent, and then was found competent again. The trial court granted an extension due to the defendant’s commitment.

Upon review, a panel of this Court found that the trial court erred in concluding that Fisher was unavailable for trial throughout the period of hospitalization. Relying on the explanatory comments to Rule 1100, the panel found that a committed defendant is not “unavailable” unless he is “mentally incompetent to proceed,” that is, unless he is incompetent to stand trial. The Court, therefore, found that the time while Fisher was committed but competent was erroneously excluded. Fisher’s conviction was reversed.

Two subsequent panel decisions have called the Fisher rule into question. In Commonwealth v. Caden, 326 Pa. Super. 192, 473 A.2d 1047 (1984), the defendant attempted to commit suicide after his arrest. He was involuntarily committed for twenty days to stabilize his mental condition. A panel of this Court found that those twenty days were excludable time under Rule 1100 because the defendant “required immediate hospitalization to stabilize his precarious mental condition.” Caden, supra, 326 Pa.Superior Ct. at 201, 473 A.2d at 1051. The panel further noted that “[t]he circumstances which caused a delay in bringing appellant to trial, appellant’s hospitalization following his suicide attempt, were created by appellant’s own actions,” Caden, supra, 326 Pa.Superior Ct. at 201 n. 5, 473 A.2d at 1051 n. 5, and a defendant should not benefit from a delay that he caused.

Similarly, in Commonwealth v. Mansberry, 356 Pa.Super. 413, 514 A.2d 926 (1986), the defendant was committed as a result of suicide attempts. The panel noted that the defendant was committed to provide appropriate treatment at a critical time, that the defendant was not under the Commonwealth’s control during the period of commitment, and that the delay was caused by the defendant’s own actions. Following Caden, the panel found that the 280-day period of hospitalization was excludable time.

We believe that the approach taken in Caden and Mans-berry is the better reasoned approach; consequently, we overrule Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980). The panel’s decision in Fisher relies solely on the explanatory comment that periods of physical or mental incompetence are excludable. From this comment, the panel concluded that a defendant is available if he is competent. This conclusion is erroneous. The comment states that periods of mental incompetency should be ex-eluded “in addition to any other circumstances precluding the availability of the defendant or his attorney.” Thus, the reference to mental incompetency in the comment is merely an example of unavailability; it is not a limitation on unavailability.

In accord with Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984) and Commonwealth v. Mansberry, 356 Pa.Super. 413, 514 A.2d 926 (1986), we find that a defendant is “unavailable” for trial under Rule 1100(c)(3)(i) whenever he is involuntarily civilly committed. By definition, any period of involuntary civil commitment provides appropriate treatment at a critical time, because involuntary civil commitment occurs only when a person is severely mentally disabled and in need of immediate treatment. 50 Pa.C.S.A. § 7301.

Our holding today also increases the consistency of the application of excludable time under Rule 1100. This Court has recognized that a person who is hospitalized for a physical illness is unavailable for trial. See, e.g., Commonwealth v. Glessner, 337 Pa.Super. 140, 486 A.2d 521 (1985). Mental illnesses should be given equal treatment under Rule 1100. In addition, our holding recognizes that delays from commitment are caused by the defendant and are beyond the Commonwealth’s control. See, e.g., Commonwealth v. Gallo, 276 Pa.Super. 562, 419 A.2d 601 (1980) (defendant cannot benefit from delays caused by her actions). Furthermore, our holding recognizes the practical difficulties involved in trying a defendant while he is being treated in a state hospital. From the record, it appears that this case was delayed on several occasions due to the difficulty in obtaining Wommer. See also Commonwealth v. Mansberry, 356 Pa.Super. at 418-20, 514 A.2d at 929 (several scheduled preliminary hearings were postponed during the hospitalization).

We find that the period of hospitalization was excludable under Rule 1100; consequently, the trial was timely.

Wommer also argues that the trial court erred in failing to grant a mistrial due to “prosecutorial misconduct.” During discovery and at the preliminary hearing, the Commonwealth claimed that a latent footprint found at the scene of the crime was not appropriate for comparison with Wommer’s sneakers. At trial, Trooper Richard Brown testified that there was some similarity between the latent print and Wommer’s sneaker.

We have reviewed the record carefully, and we find that the difference between Trooper Brown’s testimony and the Commonwealth’s position before trial is not substantial. Although Trooper Brown apparently tried to suggest some similarity between Wommer’s sneakers and the print, he finally said, “what I attempted to do was try to make a comparison to this partial shoe print that I found on the floor to the shoes of Frederick Wommer. I couldn’t do that. There’s not enough of characteristics in this partial latent that I am able to say that whoever left this footprint on the floor was indeed wearing a sole ... that had a pattern similar to this.” N.T., April 27, 1988, Vol. II at 127. Furthermore, the trial court allowed broad cross-examination regarding any inconsistency in the trooper’s testimony. Accordingly, we find that any error in admitting the testimony was harmless.

Judgment of sentence affirmed.