author: CIRILLO, Judge:

text:
    662 A.2d 16
    Bernard Wyn HILES, as Personal Representative and Administrator of the Estate of Connie Elaine Hiles, Deceased, Appellant, v. The BRANDYWINE CLUB, the Continental Room, Inc., t/a the Brandywine Club and William J. Diviney.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed July 20, 1995.

      Richard I.G. Jones, Kennett Square, for appellant.
    L. Rostaing Tharaud, Philadelphia, for appellees.
    Before CIRILLO, JOHNSON and SAYLOR, JJ.
   CIRILLO, Judge:

Bernard Hiles, as personal representative and administrator of the estate of his wife, Connie Hiles, appeals from the judgment entered in the Court of Common Pleas of Chester County. We affirm.

Hiles filed two separate wrongful death and survival actions, which were consolidated, seeking to recover damages for the death of his wife in an automobile crash involving William J. Diviney, an intoxicated driver who fell asleep at the wheel and struck the vehicle operated by Connie Hiles. Hiles instituted the actions against Diviney and Appellee, The Brandywine Club, an after hours drinking establishment at which Diviney consumed several bottles of beer prior to the accident.

A jury trial ensued, and the following evidence was revealed. Diviney arrived at Pulsations, a night club, at approximately 11:00 p.m. on November 29, 1985, the evening before the accident. While there, Diviney drank a gin and tonic and one or two bottles of beer. Diviney left Pulsations at about 12:45 a.m. and went to The Brandywine Club (Brandywine). By virtue of its club/catering license, Brandywine was permitted to remain open and serve food for as many hours as it saw fit; however, it was only permitted to serve alcohol until 3:00 a.m. See 47 P.S. §§ 4-406 & 4-493(16). The club manager, James Montisano, testified that he often stayed open past 3:00 a.m. and, when a band had been hired to play at the club, frequently served alcohol after 3:00 a.m.

Diviney arrived at Brandywine at approximately 1:00 a.m. and was served alcohol until approximately 4:00 a.m. While at Brandywine, Diviney consumed from five to seven bottles of beer. Diviney was unable to recall exhibiting signs of visible intoxication, nor did Hiles introduce any eyewitness testimony indicating that Diviney was visibly intoxicated. Diviney left Brandywine, stopped for breakfast, and drove toward his home in Toughkenamon, Pennsylvania. The accident occurred at approximately 6:30 a.m. on November 30, 1985, when Diviney’s vehicle crossed the center line and struck Connie Hiles’ vehicle head-on. Diviney subsequently pled guilty to driving under the influence of alcohol and homicide by vehicle.

Following trial, the jury rendered a verdict finding Diviney 100% liable and awarded Hiles $925,000.00 ($338,000.00 for the wrongful death claim and $587,000.00 for the survival claim). The jury determined that Brandywine was not liable because Hiles failed to prove that Diviney was visibly intoxicated when he was served there.

Judgment was entered solely against Diviney. Hiles filed post-trial motions asserting that the jury should have been instructed that if Brandywine served liquor after the hours permitted by its license, such conduct was negligence per se in violation of the Liquor Code, 47 P.S. § 4-493(16). Hiles also averred that the trial court erred in instructing the jury that, pursuant to section 4-497 of the Liquor Code, Brandywine was liable to third persons injured by a Brandywine customer only when Brandywine serves liquor to a visibly intoxicated customer. Post-trial motions were denied, and this appeal followed.

Hiles raises the following issues for our consideration:

(1) Whether when Hiles established at trial that Brandy-wine, by its illegal “after-hours” service of alcohol violated 47 P.S. § 4-493(16), and was guilty of negligence per se, and when Hiles further established to the satisfaction of the jury that such violation was a proximate cause of Diviney’s intoxication, which was also a proximate cause of the accident, is Brandywine then precluded by its own legal conduct from asserting an immunity under 47 P.S. § 4-497?
(2) Whether the trial court erred when it erroneously instructed the jury concerning Hiles’ burden of proof on the issue of “visibly intoxicated?”

Initially, we set forth the following pertinent provisions of the Liquor Code:

§ 4-493 Unlawful Act relative to liquor, malt and brewed beverages
It shall be unlawful—
(1) For any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated____
(16) For any licensee, his servants, agents or employes, to give, furnish, trade, barter, serve or deliver any liquor or malt or brewed beverages to any person during hours or on days when the licensee is prohibited by this act from selling liquor or malt or brewed beverages.
§ 4-497 Liability of licensee
No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employee when the said customer was visibly intoxicated.

47 P.S. §§ 4-493(1), (16) & 4-497 (emphasis added).

By way of history, our modern Liquor Code (47 P.S. §§ 1-101-9-902), enacted in 1951, replaced the Act of May 8, 1854, which made it a misdemeanor to furnish intoxicating drinks to an intoxicated person, and also provided a civil remedy for injuries to persons resulting from the furnishing of alcoholic beverages in violation of “any existing law.” See Act of May 8, 1854, P.L. 663, No. 648, §§ 1 & 3. The Liquor Code, while incorporating the misdemeanor provision of the former Act, did not adopt the civil liability provision.

Nonetheless, in Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958), seven years after the enactment of the Liquor Code, this court imposed civil liability on a licensee for a violation of section 4-493(1) of the Liquor Code. See 47 P.S. 4-493(1), supra. There, a visibly intoxicated bar patron became an annoyance to the other customers in the bar. Eventually, he got into an argument with one of the customers, who eventually struck the visibly intoxicated patron from behind, injuring him. The plaintiff based his theory of liability on the fact that the bartender served him alcoholic beverages while he was visibly intoxicated in violation of section 4-493(1) of the Liquor Code. Although the civil liability provision of the 1954 Act had been repealed, this court held that “[w]hen an act embodying in express terms a principle of law is repealed by the legislature, then the principle of law as it existed at common law is still in force.” Id. at 346,146 A.2d at 651. The court applied the Restatement of the Law of Torts § 286 (Violations Creating Civil Liability), and allowed plaintiff recovery under a common law theory. Negligence was established by the violation of section 4-493(1) and, since the jury determined that the negligence was the proximate cause of the plaintiffs injury, liability was imposed on the licensee.

The evolution of licensee liability continued with the addition of 47 P.S. § 4 — 497 in 1965 (reenacted in 1987), which specifically limits the liability of licensees to third parties injured by a licensee’s customer. See 47 P.S. § 4-497, supra. With the exception of cases involving minors, discussed infra, section 4-497 shields liquor licensees from liability to third persons, unless the customer invoking the injury exhibits signs of visible intoxication at the time he/she is served.

Since enactment of the Liquor Code, both section 4 — 493(1) and section 4-497 have been used to impose (or limit) civil liability on licensees. See Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965) (a violation of section 4 — 493(1) is negligence per se and, where the violation is a proximate cause of plaintiffs injury, defendant licensee is liable for such injury); Conner v. Duffy, 438 Pa.Super. 277, 652 A.2d 372 (1994) (in order for an injured plaintiff to recover for a violation of section 4 — 493(1), he must prove that (1) the tortfeasor was served alcoholic beverages while visibly intoxicated and (2) this violation proximately caused his injuries); Johnson v. Harris, 419 Pa.Super. 541, 615 A.2d 771 (1992) (same, citing both 4—493 and 4-497); McDonald v. Marriott Corp., 388 Pa.Super. 121, 564 A.2d 1296 (1989) (same); Peluso v. Walter, 334 Pa.Super. 609, 483 A.2d 905 (1984) (in order to sustain an action against a tavern owner, plaintiff must demonstrate that the owners served liquor to a customer when he was visibly intoxicated pursuant to section 4-497 of the Liquor Code); Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (a violation of section 4-493(1) is negligence per se and, where the violation is a proximate cause of plaintiffs injury, defendant licensee is liable for such injury).

It stands to reason that the dispenser of alcoholic beverages shall not provide more alcohol when the signs of intoxication become visible; this law’s practical effect is to insist that the licensee be governed by appearances, as opposed to medical diagnoses. Johnson, 419 Pa.Super. at 551, 615 A.2d at 776; McDonald, 388 Pa.Super. at 127, 564 A.2d at 1298. The legislature, in imposing this restriction, undoubtedly sought to hold licensees liable only where a customer’s actions predictably contributed to the plaintiffs injuries.

Since its enactment, section 4-493(1), one of twenty-eight unlawful acts enumerated in section 4-493 of the Liquor Code, is the only enumerated unlawful act which has been used as a basis for imposing liability on licensees for injury to a licensee’s customer or to a third person, and then only when the violation is a proximate cause of the injuries. The Liquor Code provides its own sanctions for violations of the enumerated unlawful acts included in section 4-493. See 47 P.S. §§ 4— 471 & 4-494 (Penalties). Included in this itemization of unlawful acts is section 4-493(16) (furnishing liquor at unlawful hours). See 4-493(16), supra. While violators of section 4-493(16) have received penalties pursuant to sections 4-471 and 4-493 (ie., fines), we know of no Pennsylvania authority which imposes liability on a licensee for a violation of section 4-493(16).

Keeping in mind the development of the Liquor Code and ensuing case law, we turn to the facts of the instant case. A review of the record reveals nothing to indicate that Diviney was served while visibly intoxicated during his hours at Brandywine. Diviney’s own testimony was that he could not recall exhibiting signs of visible intoxication, nor did Hiles introduce any eyewitness testimony indicating that Diviney was visibly intoxicated. The jury, therefore, had every reason to conclude that Brandywine did not serve Diviney when he was visibly intoxicated. Without the evidence of visible intoxication, a licensee (Brandywine) cannot be found liable for damages to a third party (Connie Hiles) by a customer (Diviney). 45 P.S. § 4-497.

Hiles maintains that Brandywine’s service of liquor beyond its 3:00 a.m. deadline on the morning of the accident constituted negligence per se pursuant to section 4-493(16) and that this violation, if a proximate cause of his intoxication and the accident, would preclude Brandywine from asserting the immunity granted by section 4-497. It follows, Hiles asserts, that the trial court erred by not instructing the jury on this point. The trial court agreed only in part, and stated in its opinion that while it may have been error to fail to instruct that section 4-493(16) is negligence per se, the error was harmless, as Brandywine could not have been held liable unless it served Diviney while he was visibly intoxicated pursuant to section 4-497. We agree that with no evidence to indicate visible intoxication, Brandywine cannot be held liable under the statute; therefore, the trial court did not err in instructing the jury.

While it is unlawful for a licensee to serve liquor at times not provided for by its license, and penalties may be assessed against a licensee who does so, this type of violation, standing alone, cannot result in a licensee’s liability for damages by a customer to a third party. The Liquor Code simply does not provide for such a result. Hiles clings to the fact that section 4-493(1), an enumerated unlawful act found in the same section as 4-493(16), has been cited as the basis for licensee liability where the violation of such is found to be the proximate cause of a plaintiff’s injury. The same should hold true, Hiles argues, for section 4-493(16). We disagree.

Section 4-493(1) and the case law arising from this section was undoubtedly the impetus for the legislature’s subsequent addition of the specific, third-party liability statute, section 4-497. We decline Hiles’ invitation to utilize the unlawful act of “service after hours” as another avenue by which to impose liability on licensees. Section 4-497 is clear; imposing liability on licensees for third party injuries is governed by the specific provisions of 4-497. We need not look elsewhere in disposing of the third-party liability issue instantly before us.

Thus, even if we were to assume, arguendo, that Hiles’ contention and the trial court’s suggestion that a violation of section 4-493(16) is negligence per se, there is no support for Hiles’ proposed jury instruction, i.e., that serving alcohol beyond the hours permitted by a license, where such violation was the proximate cause of an injury, would result in liability to a licensee, were a licensee’s customer to injure a third party. Visible intoxication must be proven under section 4-497 as a prerequisite to imposing any liability upon a licensee. See Majors, supra; Johnson, supra; McDonald, supra. Unless or until the legislature provides otherwise, we will not adopt Hiles’ interpretation of the law in question.

Hiles argues that Brandywine cannot assert section 4-497 immunity pursuant to Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987). We find Matthews distinguishable from the case at hand. In Matthews, the Court held that statutory immunity from a third party lawsuit against licensees, where the party served was not visibly intoxicated, did not insulate the sellers, as licensees, from liability based on service to minors. The Court reasoned that minors do not have the legal capacity to purchase alcohol. It stated, “We simply cannot accept the contention that the General Assembly intended to provide immunity from suit to licensees who conduct their businesses in violation of the Crimes Code.” Id. at 117, 527 A.2d at 514. Specifically, the Court held that “the statutory immunity provided in section 4-497 of the Liquor Code may not be asserted by a licensee unless the customer in question was of legal age.” Id. The Matthews decision clearly aims to prevent the sale/service of alcohol to minors; we will not equate this to a situation involving the service of alcohol to legally competent customers beyond the licensee’s legal serving hours.

Finally, Hiles contends that the trial court erred during the course of the trial when it erroneously instructed the jury. Specifically, during the cross-examination of one of Hiles’ witnesses, the trial court stated, in part, “The Dram Shop Act in Pennsylvania imposes liability for the service of one who is visibly intoxicated. That is done to protect people when they stagger out the door and fall down.” Hiles argues that a showing of “staggering” and “falling down” is not a requirement to prove visible intoxication, and that such a statement greatly prejudiced his case and affected the outcome of the verdict. We disagree. In reviewing a challenged jury instruction, this court’s scope of review is whether there was an abuse of discretion. Williams v. Philadelphia Transportation Co., 415 Pa. 370, 203 A.2d 665 (1964). Here, the trial court’s comment was clearly not one which would affect the outcome of the verdict, especially in light of the fact that no evidence was presented to prove that Diviney was visibly intoxicated. We find no abuse of discretion.

Judgment affirmed.

      . Diviney is not participating in this appeal.

      . Following the verdict, the trial court, in a rather unusual request, asked the jury to render an alternative or “advisory” verdict based upon the points for charge originally submitted by Hiles. The court asked the jury to assume that Pennsylvania law allowed liability to be imposed against Brandywine if it had served Diviney after 3:00 a.m., the time at which its license required it to stop serving liquor, and whether such service was a substantial factor in causing the accident in question. The jury determined that, assuming the law was written in the manner posited, Brandywine served Diviney after 3:00 a.m., and such service was a substantial factor in causing the accident. The jury, in rendering an "alternative verdict,” found Brandywine 40% liable, and Diviney 60% liable. As we find no basis for the submission of the second set of jury instructions/interrogatories, we shall disregard this “advisory” verdict.

      . Interestingly, even after the enactment of 4-497, relating solely to the liability for injuries to third persons, this court has continued, in some cases, to use section 4-493(1) as the sole and/or partial basis for liability in cases involving injuries to third persons. See e.g. Conner, supra; Johnson, supra; Couts, supra. Given its history, it comes as no surprise that section 4-493(1) provides a basis for liability where the visibly intoxicated customer is herself/himself the injured party seeking recovery, see e.g. McDonald, supra; Majors, supra; Schelin, supra. It is perplexing, however, that with the existence of section 4-497, section 4-493(1) continues to be cited as a basis for liability in cases involving injuries to third persons.

      . Violation of a statute only constitutes negligence per se when the enactment’s purpose is, exclusively or in part, to protect a class of persons which includes the one whose interest is invaded, to protect the particular interest invaded, to protect that interest against the resulting harm, and to protect that interest against the hazard from which the harm results. Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982); Restatement (Second) of Torts, section 286. Hiles concedes, in his appellate brief, that there is no Pennsylvania authority which dictates that section 4-493(16) was enacted to protect third persons (such as Connie Hiles) from intoxicated drivers.


source: Caselaw Access Project

author: TAMILIA, Judge.

license: Public Domain

text:
    662 A.2d 21
    COMMONWEALTH of Pennsylvania v. Kerry MINNICH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1995.
    Filed June 13, 1995.

      Emmanuel H. Dimitriou, Reading, for appellant.
    Iva C. Dougherty, Asst. Dist. Atty., Reading, for Com., appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge.

Appellant, Kerry Minnich, appeals from the judgment of sentence of April 24, 1994 imposing two consecutive terms of imprisonment of fourteen and one-half (14}6) months to twenty-nine (29) months. Appellant pled guilty to two counts of homicide by motor vehicle.

The facts agreed to at the guilty plea colloquy establish that on January 31, 1993, appellant was the driver of an automobile containing two passengers. While driving on a two-lane road in rural Berks County, appellant failed to negotiate a turn, crossed the center line and collided with an oncoming car. Appellant’s passengers were both killed and the three occupants of the other car were injured. Appellant concedes that he and his passengers had been consuming alcohol.

Appellant’s argument, which appears to be one of first impression in this Commonwealth, is that multiple sentences imposed as a result of a single criminal act violate appellant’s due process and equal protection rights under the United States and Pennsylvania Constitutions. Specifically, appellant asserts that the imposition of consecutive sentences in instances of multiple deaths bears no rational relationship to a legitimate state interest and is therefore unconstitutional, where a defendant has no “control or knowledge” of how many individuals he ultimately kills. (Appellant’s brief at p. 9.) In support of this proposition, appellant offers a hypothetical example wherein three motorists all “committed the act of homicide by vehicle, one of whom struck another vehicle and killed the operator; the [second] of whom struck another vehicle and killed his passenger, the operator of the other vehicle and a passenger in the other vehicle; and the third of whom hit a mini-bus with fifteen passengers whose gas tank exploded killing all occupants. In the foregoing example, each of the individuals committed exactly the same offense in exactly the same manner. Yet, [under the statute] the first individual would be subject to imprisonment for five years, the second individual for fifteen years, and the third individual for seventy-five years.” (Appellant’s brief at p. 10.) Believing such a sentencing arrangement unconstitutional, appellant concludes “[s]ince the culpability of the Defendant is identical in each case ... [o]ne is led inexorably to the conclusion that no legitimate state interest is served by the imposition of consecutive sentences.” (Id. at 11.) We believe that appellant’s own example, on its face, undermines his position more effectively than any amount of constitutional analysis.

While the violator might not know specifically the tally of the persons who might be killed by his actions, the Commonwealth has a legitimate interest in assessing punishment in relation to the harm done, even if the result is not specifically within the knowledge of the actor at the commission of the crime. Under appellant’s theory, the perpetrator(s) of the bombing of the Federal Building in Oklahoma City would be subject to punishment for the least degree the law would permit for the offense rather than in relation to the incredible carnage and loss of life which actually occurred. A more irrational interpretation of due process and equal protection cannot be contemplated. The federal authorities have issued a count or indictment for each of the persons killed, despite the fact that a single explosion caused the huge number of deaths. There is no equal protection or due process argument which prevents this. For these reasons and others which follow, we affirm the judgment of sentence.

The equal protection clause mandates that those statutory classifications which do not implicate “fundamental interests” or “suspect classes” bear a rational relationship to a legitimate state interest. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). Our Supreme Court has found that article III, section 32 of the Pennsylvania Constitution contains an identical mandate. Baltimore and Ohio Railroad Co. v. Dept. of Labor and Industry, 461 Pa. 68, 83, 334 A.2d 636, 643 (1975). We also note that statutes are presumed to be constitutional, Hughes v. Commonwealth Dept. of Transportation, 514 Pa. 300, 523 A.2d 747 (1987), and a plaintiff challenging that presumption must demonstrate unconstitutionality by a plain, clear and palpable showing, Commonwealth v. Irving, 347 Pa.Super. 349, 500 A.2d 868 (1985).

Initially, the Pennsylvania Supreme Court has held that the legislative purpose in enacting the homicide by vehicle statute was the reduction of highway fatalities. Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983). That such purpose is a legitimate exercise of legislative authority is beyond doubt.

The question then becomes whether punishing violations of the statute, dependent on the number of fatalities, bears a rational relationship to reducing traffic fatalities. Instructive on this issue is Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). In Frisbie, the appellant challenged, on double jeopardy grounds, the imposition of nine consecutive terms of probation as punishment for a single act of reckless driving, which caused nine injuries. We discern no legal or constitutional basis for treating an equal protection application differently, under the facts of this case, than did the Supreme Court in Frisbie under double jeopardy.

Finding that the imposition of consecutive sentences serves two of the general purposes underlying the Crimes Code, namely, that punishment is proportionate with criminal liability and that more serious offenders are punished more severely, the Court concluded:

[a]n offender whose unlawful act harms or is likely to harm many people is more culpable, and thus deserving of more severe punishment, than an offender whose unlawful act harms only one person. By holding that multiple sentences may be imposed for a single unlawful act, both purposes are served. [Id. at 461, 464, 485 A.2d at 1101].

The Supreme Court has thus recognized that the imposition of multiple sentences serves to further the general goals of the criminal law. It is therefore logical to find, as did the trial court, that the imposition of consecutive sentences in the instant case serves to deter future violations of the act, thereby advancing the goal of reducing traffic fatalities. One cannot claim that the Pennsylvania and United States Constitutions require the treatment of a person who commits an act resulting in the death of one person the same as the identical act which results in the death of two or more persons. The loss of different number of lives is clearly entitled to different levels of punishment because the law protects and values each life to the same extent, and establishing punishment to fit the act without consideration of the consequences of the act ignores this essential principle. Thus a person whose act results in more serious consequences than that of another person who commits the same act with less severe consequences is not denied due process or equal protection when the sentence imposed is related to the harm caused. The entire structure of the Sentencing Code and particularly the Sentencing Guidelines takes into account aggravating circumstances, and where sentences may be compounded, provides specific directions for treatment, and where silent, leaves the sentence to the discretion of the trial judge.

Based on the foregoing, we conclude that the imposition of consecutive sentences for multiple fatalities under the homicide by vehicle statute is rationally related to the recognized purpose of the statute and therefore is constitutional.

Appellant next challenges the trial court’s imposition of sentence in the aggravated range. Since this contention concerns the discretionary aspects of sentencing, the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), apply. However, appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. Only where it is determined that a substantial question has been presented as to the appropriateness of the sentence under the Sentencing Code, 42 Pa.C.S. § 9781(b), may this Court review the manner in which the lower court exercised its discretion. Tuladziecki, supra. Since the appellant has failed to include a 2119(f) statement and the Commonwealth made proper objection in its brief, we are precluded from addressing the merits of appellant’s challenge. Commonwealth v. Birdseye, 432 Pa.Super. 167, 637 A.2d 1036 (1994); Commonwealth v. Miller, 414 Pa.Super. 56, 606 A.2d 495 (1992), appeal denied, 531 Pa. 639, 611 A.2d 711 (1992), citing Tuladziecki, supra.

We note additionally that appellant has failed to raise the appearance of a substantial question. The court below placed on the record its reasons for the sentence imposed and “the sentencing judge’s decision regarding the aggravation of sentence will not be disturbed absent a manifest abuse of discretion.” Commonwealth v. Prestidge, 372 Pa.Super. 282, 286-287, 539 A.2d 439, 442 (1988). We find no such abuse.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3732. Appellant does not contest his sentence for careless driving, id., § 3714, and failing to drive on the right side of the roadway, id., § 3301(a).

      . (N.T., 2/10/94, pp. 3-4.)

      . Appellant herein does not assert either basis of increased scrutiny.

      . 18 Pa.C.S. § 104(3).

      . Id., § 104(5).


author: TAMILIA, Judge:

text:
    662 A.2d 658
    COMMONWEALTH of Pennsylvania v. John WILLIAMS a/k/a Wayne Jacobs, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1995.
    Filed June 19, 1995.
    Reargument Denied Aug. 22, 1995.

      Mark D. Mungello, Blackwood, NJ, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, P.J., and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

John Williams a/k/a Wayne Jacobs appeals from the July 27, 1994 judgment of sentence imposing a term of three and one-half (3/é) to seven (7) years’ imprisonment. The sentence followed a determination that appellant had violated his probation.

An annotated review of appellant’s extensive criminal history reveals the following. On February 15, 1990, appellant pled guilty to attempted theft by unlawful taking and was sentenced to eleven and one-half (ll-Jé) to twenty-three (23) months’ imprisonment and to a consecutive term of three (3) years’ probation. Appellant served the minimum sentence and was released on parole. Subsequently, on April 27, 1992, appellant was adjudicated in violation of his parole as a result of convictions for new crimes. Appellant’s parole was revoked, he served the remainder of the 23 months under the original sentence, and his probation was continued. On July 27, 1994, appellant’s probation was revoked following his conviction for involuntary manslaughter. Appellant was then sentenced to 3$ to 7 years’ imprisonment, the maximum sentence allowable for appellant’s February 15, 1990 plea of guilty to attempted theft by unlawful taking, a third degree felony. 18 Pa.C.S. § 1103(3). Appellant was allowed credit only for the time served on the violation of probation detainer and not for the cumulative 23 months which he had already served for the original offense. It is the failure to credit appellant with the 23 months already served which is the basis of his appeal.

Our scope of review on appeal from the judgment of sentence imposed following a probation revocation “is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence.” Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990). Initially, we note that the trial court considered appellant’s basis of appeal waived by his failure to raise it at the July 27, 1994 hearing. However, a challenge to the legality of a sentence is nonwaivable and may be considered sua sponte by our Court. Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994); Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723 (1992).

The Legislature has established the manner by which credit for time served is to be computed. Specifically, 42 Pa.C.S. § 9760 provides:

§ 9760. Credit for time served
After reviewing the information submitted under section 937 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.

According to appellant, this section requires that the 23 months he served on the unlawful taking sentence should be credited against the 3% to 7 year term imposed on July 27, 1994. We are constrained to agree.

Pursuant to section 9760(1), “the criminal charge for which a prison sentence [was] imposed” was the charge of attempted theft by unlawful taking, to which appellant pled guilty on February 15, 1990. Thereafter, he served lijé months pursuant to the February 15, 1990 adjudication and another lijé months, the balance of the original sentence, pursuant to the adjudication of April 27, 1992. These sentences were both served on the underlying attempted theft offense. Likewise, the 3jé to 7 year term imposed on July 27, 1994 was the maximum sentence allowed by law for that offense. Thus, if appellant is not credited with the 23 months already served, his sentence for attempted theft by unlawful taking would be 65 months (or 5 years and 5 months) to 107 months (or 8 years and 11 months). Clearly, this sentence is illegal. See 18 Pa.C.S. § 1103(3).

Therefore, appellant must be credited with the 23 months already served. Also, as noted by the trial court at the July 27, 1994 hearing, appellant must be credited with the 8 months and 23 days he served on the probation violation detainer, from November 4, 1993 until July 27, 1994. In sum, the maximum sentence imposed on July 27, 1994 will be reduced by 31 months and 23 days making the new maximum sentence 52 months and 7 days. The new sentence, therefore, based on the fact the minimum term can be no greater than half the maximum, is 26 to 52 months.

In accordance with this Opinion, the judgment of sentence is vacated and the case is remanded for imposition of the revised sentence of 26 to 52 months.

Jurisdiction relinquished.

      . The record reveals that appellant, under various alias, has been arrested in excess of 50 times, has 25 convictions and 18 parole or probation violations.


author: KELLY, Judge: DEL SOLE, Judge,

text:
    662 A.2d 660
    Harold MUDD and Zita Mudd, Appellants, v. NOSKER LUMBER, INC., Jode R. DELP, Appellees.
    Superior Court of Pennsylvania.
    Argued April 25, 1995.
    Filed July 20, 1995.

      Robert J. Fall, Pittsburgh, for appellants.
    Jack J. Steiner, Kittanning, for Delp, appellee.
    David L. Montgomery, Butler, for Nosker Lumber, appellee.
    Before DEL SOLE, KELLY, and BROSKY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether the presumption of prejudice which arises from a delay in the prosecution of a civil complaint in excess of two years may be rebutted by the conduct of the defendant seeking a judgment of non pros. We hold that where the circumstances indicate that the party seeking non pros has come to the court of equity with unclean hands, that party is estopped from obtaining this equitable remedy. Accordingly, we hold that the trial court erred as a matter of law in granting appellee’s motion for a judgment non pros, and therefore reverse the judgment of the trial court and remand for further proceedings consistent "with this opinion.

This appeal arises out of the trial court’s grant of appellees’, Nosker Lumber, Inc.’s (“Nosker”) and Jode R. Delp’s (“Delp”), motion for a judgment non pros. Accordingly, the relevant facts and procedural history of this case are as follows. On July 16,1990, the Mudds filed a complaint against Nosker Lumber, Inc. to recover damages for breach of a written contract for the sale of timber located on a tract of land owned by the Mudds. On September 7, 1990, Nosker filed its answer and new matter. The Mudds filed a reply to Nosker’s new matter on October 4, 1990. On January 31, 1991, Nosker filed a complaint to join Delp as an additional defendant, alleging that Delp was an independent contractor hired by Nosker for the actual cutting and removal of the timber from the appellant’s property. Delp did not respond to the complaint nor did anyone enter an appearance on the court docket. Delp was insured by Rockwood Insurance Company.

On August 27, 1991, the appellants received a notice from the Pennsylvania Insurance Department stating that the Rockwood Insurance Company was liquidated and directing that all claims be filed with the appointed liquidator by August 28, 1992. On July 8, 1992, the Mudds filed their claim with the Insurance Department and awaited further direction from the liquidator regarding settlement negotiations.

There was no further docket activity until August 31, 1993, when the Armstrong County Prothonotary mailed notice to the Mudds that their case was listed for possible termination due to docket inactivity. On October 13, 1993, the Mudds’ counsel filed a praecipe to list the case for trial and the case was placed on the civil trial list, which was scheduled to be called on November 12, 1993.

On the eve of trial, November 11, 1993, according to the Mudds, Nosker’s attorney asked the Mudds’ counsel to continue the case to the next trial list so that there could be additional time to negotiate settlement. On December 13, 1993, Nosker filed its motion for judgment of non pros, seeking dismissal of the suit for lack of docket activity in excess of two years. By order dated December 15, 1993, the trial court issued a rule upon the Mudds to show cause why the motion should not be granted and scheduled a hearing for January 31, 1994. After the hearing, the court entered judgment in favor of the appellees. On February 24, 1994, the Mudds sought reconsideration and requested that the trial court remove the judgment of non pros. On October 7, 1994, the trial court denied the request making the judgment of non pros a final, appealable order. This timely appeal followed.

On appeal, the Mudds raise the following issue:

WHETHER THE LOWER COURT ERRED BY GRANTING A JUDGMENT OF NON PROS AGAINST APPELLANTS FOR THE LACK OF DOCKET ACTIVITY.

Appellants’ Brief at 4.

The Mudds argue that the trial court abused its discretion in three ways. First, the Mudds contend that the trial court erred in holding that the liquidation of appellee’s insurer was not a compelling reason to excuse further pursuit of the action. Second, the Mudds assert that in determining the length of the “delay,” the trial court erred by using as its benchmark the last docket entry rather than the filing of the proof of claim, which occurred on July 8, 1992 and would not have appeared as a docket entry. Third, the Mudds aver that neither Nosker nor Delp has been prejudiced by the delay.

At the outset, we note that the question of whether to enter a judgment of non pros because of the plaintiffs failure to prosecute his action within a reasonable time rests within the discretion of the trial court and will not be disturbed on appeal unless there is proof of a manifest abuse of that discretion. Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992). In order to dismiss a case for lack of activity, the movant must show: 1) a party has failed to diligently proceed with reasonable promptitude; 2) there was no compelling reason for the delay; and 3) the delay has caused some prejudice to the adverse party, which will be presumed in actions in which the delay exceeds two years. Id. at 355, 603 A.2d at 1008; Pine Township Water Company v. Felmont Oil, 425 Pa.Super. 473, 476, 625 A.2d 703, 706 (1993), appeal denied, 537 Pa. 665, 644 A.2d 1202 (1994); Pennridge Electric, Inc. v. Souderton Area Joint School Authority, 419 Pa.Super. 201, 204, 615 A.2d 95, 98 (1992). The analysis is the same whether the motion for a judgment of non pros is brought sua sponte by the court or by the defendant. Penn Piping v. Insurance Co. of North America, supra at 356, 603 A.2d at 1009.

We begin with appellant’s third argument. In Penn Piping v. Insurance Co. of North America, supra, our Supreme Court held that in the absence of a compelling reason, a two year delay in the prosecution of a claim is presumptively prejudicial. Penn Piping v. Insurance Co. of North America, supra at 356, 603 A.2d at 1009. A defendant is not required to make any specific showing of prejudice. Id. The Supreme Court listed a number of reasons for establishing such a presumption. For one, after a significant lapse in time, defendants may have a difficult time defending themselves. Witnesses may disappear. Evidence may go stale or become unavailable. Plaintiffs may gain an unfair bargaining chip in negotiations for settlement. Id. at 354, 603 A.2d at 1008. Additionally, defendants who are kept in the dark regarding the status of a lawsuit may be subjected to needless anxiety. Id.

What is not clear either from Penn Piping v. Insurance Co. of North America, supra or its progeny is whether the presumption of prejudice may be rebutted by defendant’s own conduct. Based on the following, we conclude that any presumption of prejudice arising from the delay in pursuit of the claim may be rebutted by other circumstances. See Van Loon v. Smith, 103 Pa. 238 (1883).

Instantly, the record indicates that prior to praeciping their case for trial, the last docket activity initiated by the Mudds occurred on January 31, 1991. On November 11, 1993, the day before the trial was due to begin, Nosker’s attorney requested that the trial be postponed for another month, ostensibly so that the parties could pursue a settlement. Four weeks later, and several weeks shy of the continued trial date, Nosker moved for non pros on December 13, 1994.

These circumstances suggest that the appellees used this additional time to draft a motion for a judgment of non pros. It is simply unreasonable to accept the proposition that the appellees were somehow prejudiced by the delay in prosecution when they themselves requested additional delays. Our Supreme Court’s decision in Penn Piping v. Insurance Co. of North America, supra, was meant to protect defendants from the unfairness, anxiety and prejudice that can result from a plaintiffs failure to pursue a threatened lawsuit. Id. at 354, 603 A.2d at 1008. We are hard-pressed to accept the notion that our Supreme Court, in establishing the “presumption of prejudice” in that case envisioned a situation in which defendants, through their own subterfuge, are able to avoid a final determination of liability. Therefore, we are of the opinion that Nosker and Delp should be estopped from utilizing this equitable remedy.

Moreover, to accept the proposition that the appellees have been prejudiced by the delay would stand the principle underlying the grant of non pros on its head. The grant of non pros has evolved as a mechanism to ensure that plaintiffs do not take advantage of defendants through dilatory tactics. Id. at 354, 603 A.2d at 1008. This principle should apply equally to defendants. If a plaintiff cannot delay a lawsuit to achieve a desired result, then neither should a defendant.

Additionally, a party seeking equitable relief, as Nosker is doing in this case, must come before the court with clean hands. In re Francis Edward McGillick Foundation, 406 Pa.Super. 249, 263, 594 A.2d 322, 329 (1991), affirmed in part, reversed in part on other grounds, 537 Pa. 194, 642 A.2d 467 (1994). One guilty of wrongdoing should be denied access to the court. Id.; Sprague v. Casey, 520 Pa. 38, 46, 550 A.2d 184, 188 (1988) (“he who seeks equity must do equity”). It is our determination that Nosker has come before the court with unclean hands. Nosker’s request for a continuance was apparently made in bad faith. The appellees misled the Mudds into believing they wished to negotiate a settlement and now ask that this Court reward them for their tactics by affirming the grant of non pros. We cannot, in good faith, affirm a judgment based on principles of equity when Nosker’s own behavior raises fundamental questions of fairness.

Therefore, under these circumstances, it is our determination that the presumption of prejudice has been rebutted. Accordingly, we conclude that the trial court misapplied the law of Penn Piping v. Insurance Co. of North America, supra, to justify non pros in the instant case. Because the court’s erroneous application of the law to these facts effectively denied the Mudds their day in court, we hold that this error constitutes a manifest abuse of the trial court’s equitable discretion. Therefore, we vacate the judgment of non pros, and remand this case to the trial court to be listed for a trial on the merits.

Order reversed; case remanded. Jurisdiction relinquished.

DEL SOLE, Judge,

dissenting.

In my view, the Majority is substituting its judgment for that of the trial court. The question before us is whether the trial judge abused his discretion by entering and then refusing to remove the non pros. Recently, our Supreme Court had occasion to discuss the proper review of discretionary actions by trial courts. In Paden v. Baker Concrete Const., Inc., 540 Pa. 409, 658 A.2d 341 (1995), a unanimous court reversed the Superior Court when we engaged in a prejudice analysis to support a determination of trial court error in enforcing a Rule of Civil Procedure. In its discussion, the Court stated:

There is little doubt that this is a situation in which Rule 126 might appropriately have been applied, had the trial court deemed it to be required in the interest of justice. Nevertheless, the trial court having rejected the reprieve allowed by Rule 126, we do not deem the striking of the improper joinder to show manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. Thus, even if we might have reached a different conclusion had the decision been ours in the first instance, it was not an abuse of discretion for the trial court to rule as it did.
... it is not an abuse of the trial court’s discretion to enforce the rules of civil procedure, even when the result has a serious adverse effect on the party violating the rules

540 Pa. 415, 658 A.2d at 344.

I conclude that the trial judge correctly analyzed this case and properly entered the non pros. There was over a two year delay. It is disingenuous to blame that delay on the insolvency of the insurer of one of the parties, since no stay of litigation against its insureds was issued. Most importantly, the plaintiffs complaint included both a breach of contract claim and a negligence claim. It was filed against Nosker Lumber, Inc. who then joined Jode R. Delp as an additional defendant. It was Delp’s insurer that was insolvent.

Two aspects of the case are important. First, the breach of contract claim was for payment for timber removed and would not be covered by insurance, therefore the insurers insolvency had no bearing on this count. Second, it was the additional defendants insurer that was insolvent, again this did not effect the claim against the original defendant.

Also, this Court has held that a claim of possible settlement negotiations is an insufficient reason to excuse delay. Pennridge Electric, Inc. v. Souderton Area Joint School Authority, 419 Pa.Super. 201, 615 A.2d 95 (1992). A claim that a party is awaiting what will happen to the insurer of an additional defendant should be treated the same. The case could and should have proceeded against the original defendant.

The Majority misinterprets the application of the Supreme Courts decision in Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). The trial court had granted a non pros for inactivity exceeding two years. On appeal, this court reversed finding that there was no showing of prejudice against the defendant from the delay. The Supreme Court reversed this court, holding that there is a presumption of prejudice after two years. It went on to state:

Thus, if there is a lack of due diligence in failing to proceed with reasonable promptitude; if there is no compelling reason for the delay; and if the delay is for two years or more, the case may be dismissed for lack of activity on the docket.

529 Pa. at 356, 603 A.2d 1006.

This courts engaging in a prejudice analysis was rejected in Penn Piping, and in Paden. It should be rejected in this case. Since I cannot agree that the trial court abused its discretion in entering the non pros, I dissent.

      . The motion for continuance was apparently made orally. The trial record contains no written motion for a continuance. Nosker does not deny that it made the request.

      . Under section 1901(c) of the Pennsylvania Rules of Judicial Administration, a court can motion for a judgment of non pros sua sponte if the plaintiff has failed to take any steps that would constitute docket activity in the previous two years. Pa.RJ.A. 1901(c).

      . Appellee Delp was granted permission to join Nosker’s motion on January 18, 1994.

      . Although Nosker and Delp's behavior in this case clearly raises questions of fairness, the doctrine of equitable estoppel is not strictly applicable here. Equitable estoppel arises when "one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief so that he will be prejudiced if the former is permitted to deny the existence of such fact.” Zitelli v. Dermatology Educ. and Research Foundation, 534 Pa. 360, 370, 633 A.2d 134, 139 (1993) (quoting In re Estate of Tallarico, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967)). When estoppel is established, "The person inducing the belief in the existence of a certain state of facts is estopped to deny that the state of facts does in truth exist, over a different or contrary state of facts or deny or repudiate his acts, conduct, or statements.” Id., 425 Pa. at 288, 228 A.2d at 741. In the instant case, although Nosker and Delp, by asking for a continuance have acted in such a way as to prejudice the Mudds, they are not attempting to deny their request for a continuance. They are not denying the existence of a set of facts. Strictly speaking, equitable estoppel is not a remedy. In this case, we are using the term "estoppel” in its dictionary sense, i.e., “That [a] party is prevented by his own acts from claiming a right to the detriment of the other party who was entitled to rely on such conduct and has acted accordingly.” Black’s Law Dictionary, 5th Ed. at 494.

      . The doctrine of unclean hands applies when the wrongdoing directly relates to the matter in controversy and affects the relationship between the parties. In re Francis Edward McGillick Foundation, supra at 263, 594 A.2d at 329. Further, it may be raised by an appellate court sua sponte. In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984); see also Jackman v. Pelusi, 379 Pa.Super. 361, 550 A.2d 199 (1988), superceded by statute on other grounds as stated in Benjamin v. Benjamin, 408 Pa.Super. 320, 596 A.2d 877 (1991) (same).


author: POPOVICH, Judge:

text:
    662 A.2d 665
    Irene J. YANKOWSKY, Appellant, v. KATZ, INC., a Corporation, Price’s of Oakland, Inc., a Corporation, Sears, Roebuck & Co., a Corporation, and Roper Corporation, a Corporation v. B & L INDUSTRIES and Jaftex Inc. Irene J. YANKOWSKY v. KATZ, INC., a Corporation, Price’s of Oakland, Inc., a Corporation, Sears, Roebuck & Co., a Corporation, and Roper Corporation, a Corporation, v. B & L INDUSTRIES and Jaftex Inc. Appeal of SEARS ROEBUCK AND CO. and Roper Corporation.
    Superior Court of Pennsylvania.
    Argued May 17, 1995.
    Filed July 21, 1995.

      Arthur Cutruzzula, Pittsburgh, for Yankowsky.
    Timothy J. Burdette, Pittsburgh, for Sears, Roebuck & Co.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Allegheny County. Herein, appellant challenges the propriety of several evidentiary rulings made by the trial court. We affirm.

We recount the history of this product liability action as follows: On January 27, 1988, appellant was seriously burned when her gas stove ignited her nightgown. She brought suit against the manufacturer and distributor of the stove, Sears, Roebuck & Company and Roper Corporation (“appellees”), and against certain garment manufacturers and sellers. The case proceeded to trial beginning on March 10, 1993, and a jury returned its verdict on April 15, 1993. The jury found that the stove was defective but was not a substantial factor in causing appellant’s injuries. The jury determined that the nightgown was not defective.

Post-trial motions were timely filed by both parties, and on October 21, 1993, the lower court entered an order denying these motions. On November 18, 1993, appellant filed a notice of appeal. On November 24, 1993, appellees filed a cross appeal. The parties then timely filed a concise statement of matters complained of on appeal. On January 4, 1995, the lower court issued a statement in lieu of opinion.

In this case, appellant presents the following arguments for our evaluation:

I. THIS HONORABLE COURT ERRED IN NOT ALLOWING THE VIDEO TAPE OF THE OPERATION OF THE STOVE, PREPARED BY DEFENDANT, SEARS-ROPER, (PLAINTIFF’S EXHIBIT 13) TO GO OUT WITH THE JURY, AND ERRED IN ADMITTING INTO EVIDENCE THE “FIELD” PHOTOGRAPHS CONTAINED IN SEARS-ROPER EXHIBITS O, P, Q, R, S AND T AND IN ALLOWING THE SAME TO GO OUT WITH THE JURY.
II. IN LIGHT OF THE PARTICULAR FACTS OF THIS CASE AND THE PARTICULAR VERDICT OF THE JURY THIS HONORABLE COURT ERRED IN NOT ALLOWING THE ADMITTED SEARS-ROPER EXHIBIT F, THE IRENE YANKOWSKY PARAMEDIC TRIP SHEET, AND A PORTION OF THE ADMITTED PLAINTIFF’S EXHIBIT 41, DR. CHAMBERS WRITTEN WEST PENN HOSPITAL HISTORY, TO GO OUT WITH THE JURY.
III. THE TRIAL COURT’S REFUSAL TO PERMIT OR COMPEL THOMAS MCGUIRE’S TESTIMONY, GIVEN THE CIRCUMSTANCES UNDER WHICH THIS TESTIMONY WAS SOUGHT, CONSTITUTES REVERSIBLE ERROR.
IV. THIS HONORABLE COURT ERRED IN NOT PERMITTING THE PLAINTIFF TO WEAR PLAINTIFF’S EXHIBIT 6, WHILE DEMONSTRATING HOW SHE IGNITED THE STOVE.

Appellant’s Brief at i-ii.

Because appellant’s first and second points of error both challenge the lower court’s rulings as to evidence going out with the jury, we address them concurrently. “[C]ase law provides that the trial court has the discretion to determine which exhibits should be permitted to go out with the jury.” Wagner by Wagner v. York Hosp., 415 Pa.Super. 1, 15-16, 608 A.2d 496, 503 (1992), appeal discontinued, 532 Pa. 646, 614 A.2d 1143 (1992), citing, Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986). See DeVita v. Durst, 167 Pa.Commw. 105, 647 A.2d 636 (1994).

As to the denial of the video going out with the jury, appellant argues that the jury was unable to inspect closely “the size, direction, height, volume and proximity to the control knobs and to [appellant’s] gown of the extended flame upon ignition.” Appellant’s Brief at 19. That video was prepared by appellees’ expert witness at appellant’s house on May 17, 1991, and was marked as “Plaintiffs Exhibit 13”. Additionally, appellant contends that the jury’s examination was skewed by allowing appellees’ “stills” or “frames”, i.e. photographic images frozen in time, of the aforesaid video to go out with the jury. The “stills” were provided in appellees’ exhibits O, P, Q, R, S and T. Appellant maintains that the “stills” failed to depict accurately the flame image since they contained only one half of the visual information as compared to the video.

Our review of the trial transcript reveals that the video tape was shown to the jury during appellant’s direct examination of her expert witness. Trial N.T. 3/19/93 at 261-269. Over appellees’ objection, the trial court also allowed appellant to rewind the tape to focus the jury’s attention on a particular segment which appellant contended showed the range flaring upon ignition. Trial N.T. 3/19/93 at 268. On cross-examination of appellees’ expert witness, the video was again shown to the jury. Trial N.T. 4/1/93 at 686-689. Appellant questioned this witness extensively about the accuracy of the flame image captured in the “stills” compared to that revealed in the video tape. Trial N.T. 4/1/93 at 684-687; Trial N.T. 4/2/93 at 708-720, 763-765.

We conclude that the trial court’s decision of allowing the “stills” and precluding the video to go out with the jury was not prejudicial to appellant. We do not find that the jury gave undue weight to the reliability of the “stills” versus that of the video merely because they had access to the former during deliberation. The relevant substance of the video tape was scrutinized by the jury throughout the trial. See Kearns v. Clark, 343 Pa.Super. 30, 37-38, 493 A.2d 1358, 1362 (1985) (trial court did not abuse discretion in refusing to allow documents admitted into evidence to go out with jury; documents had been read to jury and were the subject of direct testimony and cross-examination).

Similarly, we are convinced that the trial court did not abuse its discretion in refusing to allow a paramedic trip sheet and a medical report relating to the occurrence of appellant’s injuries to go out with the jury. Each was admitted into evidence, read to the jury and was intensively probed into during direct testimony and cross-examination. Trial N.T. 3/30/93 at 13-14, 30, 32-33, 35-36, 40-47, 68-69, 72-73; Trial N.T. 4/6/93 at 833-839.

Directing our attention to appellant’s third issue raised herein, we recognize that as a general rule, “the admission or rejection of rebuttal evidence is within the sound discretion of the trial judge.” Neal by Neal v. Lu, 365 Pa.Super. 464, 476, 530 A.2d 103, 110 (1987), quoting, Mapp v. Dube, 330 Pa.Super. 284, 294, 479 A.2d 553, 557 (1984). See Kline v. Behrendt, 396 Pa.Super. 302, 578 A.2d 526 (1990) (trial court did not abuse its discretion in excluding rebuttal testimony where that testimony was composed solely of information already presented or immaterial).

Appellant argues that Thomas McGuire’s testimony was essential to rebut the testimony presented by defense on the issue of causation. Mr. McGuire and three other paramedics attended to the injuries of appellant. The lower court denied appellant’s request for a continuance to procure Mr. McGuire’s appearance at trial. Trial N.T. 4/6/93 at 885.

Appellant asserts that Mr. McGuire would have testified as follows: appellant was “screaming when the paramedics arrived; that [appellant’s] injuries were caused by the stove, but that he was not certain how she was injured; that he remembered nothing wrong with either the back door or the screen door in [appellant’s] kitchen; and that the paramedics are instructed to write in their trip sheet how an incident occurred .... ” Appellant’s Brief at 30-31.

From our view of the notes of testimony, we conclude that the lower court did not abuse its discretion in refusing to allow Thomas McGuire to testify in rebuttal. We are of the opinion that testimony about appellant screaming at the time the paramedics arrived and about the condition of the kitchen doors were immaterial to the issue of causation. We find that testimony proffered by Mr. Murphy with respect to the occurrence of the stove igniting appellant’s nightgown would have been cumulative, at best, of the testimony presented by appellant’s treating physician, Dr. Theodore P. Chambers. Trial N.T. 4/6/93 at 839. Further, we find, as cumulative, testimony proffered by Mr. Murphy concerning the propriety of a trip sheet prepared by the other attending paramedics. Trial N.T. 3/30/93 at 14, 40, 72.

Appellant’s final point of error contests the trial court’s ruling which precluded appellant from wearing an exemplar nightgown while demonstrating how she ignited the stove. “A wide discretion is vested in the trial court judge in permitting demonstrations or experiments to be made in the presence of the jury.” Commonwealth v. Thomas, 394 Pa.Super. 316, 324-25, 575 A.2d 921, 925 (1990), quoting, Commonwealth v. Soli, 273 Pa.Super. 158, 165, 417 A.2d 216, 219 (1979).

Here, the trial court allowed appellant to place her right arm through the sleeve of the exemplar gown and inform the jury about the approximate fit of the sleeve worn when she was injured. Trial N.T. 3/16/93 at 227-228. The trial court then denied appellant’s request that she be able to approach the range and demonstrate how the ignition occurred while wearing the exemplar gown. Trial N.T. 3/16/93 at 228-229. The exemplar gown was a different size compared to the gown worn by appellant when she was injured. The lower court found that a demonstration was not appropriate in view of the fact that appellant did not provide a gown of the same size. Trial N.T. 3/16/93 at 229. However, the court below permitted appellant to approach the range and show how the ignition occurred without wearing the exemplar gown. Trial N.T. 3/16/93 at 229.

Upon examination of appellant’s claim, we conclude that the trial court did not abuse its discretion in denying her request to wear the exemplar gown during the demonstration. We find no basis to disturb the lower court’s determination in light of the fact that the sizes of the gowns were dissimilar and that the trial court was in the position to assess the experiment’s negative impact compared to its probative value.

Having scrutinized appellant’s contentions and finding them to lack merit, we, accordingly, affirm the order entered by the lower court.

Judgment affirmed.

      . The manufacturers and sellers of the nightgown have not submitted briefs herein because appellant's points of error relate only to evidence of the manufacture and distribution of the stove.

      . Appellees filed post-trial motions seeking relief in the event that the lower court found merit to appellant’s post-trial motions. Because the lower court determined that the issues raised in appellant’s post-trial motions were meritless, it denied appellees’ motions.

      . In the statement in lieu of opinion, the lower court determined that a brief filed by appellees properly explained the court’s reasoning behind its evidentiary rulings. R. 154. We find the statement issued by the lower court fails to satisfy the requirement of Rule 1925(a). Nevertheless, from our examination of the notes of testimony and the parties’ briefs, we are able to consider thoroughly the issues raised by appellant. Thus, we decline to remand this matter to the trial court for compliance with Rule 1925(a). Compare Commonwealth v. Pate, 421 Pa.Super. 122, 617 A.2d 754 (1992), appeal denied, 535 Pa. 656, 634 A.2d 219 (1993) (trial court may not simply defer to earlier rulings of other judges for its 1925(a) opinion; record was complete to review the issues meaningfully).

      . Because we find appellant’s contentions are meritless, we need not address the issue raised by appellees on their cross appeal. The viability of that issue hinges upon the finding that a claim of appellant has merit.

      . Appellant initially asserts that the lower court erred in admitting the "stills” into evidence. Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court whose rulings will not be disturbed absent a clear abuse of discretion. Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 210-11, 478 A.2d 34, 38 (1984). At side-bar, the trial judge extensively examined the arguments from counsel regarding the probative value of the "stills” and determined that they should be admitted into evidence. Trial N.T. 3/31/93 at 463-475. The trial judge found that the “stills” depicted the flame front more specifically than a compacted video frame prepared and offered by appellant as “Plaintiff's Exhibit 14”. Trial N.T. 3/31/93 at 471-474. We conclude that the lower court did not abuse its discretion in admitting the "stills” into evidence. See Commonwealth v. Hindi, 429 Pa.Super. 169, 631 A.2d 1341 (1993) (trial court did not abuse its discretion in admitting into evidence still photographs taken from video tape but precluded admissibility of slow motion and freeze frame from the same video tape).

      . Wc also note that Mr. Murphy’s testimony about the condition of the doors would have been cumulative of the testimony presented by Frances Tate, a neighbor of appellant. Trial N.T. 4/2/93 at 809.


author: HOFFMAN, Judge:

text:
    662 A.2d 669
    Martin HEIL and Elizabeth Heil, H/W, Appellants, v. Idee BROWN, M.D., Lydia Schut, M.D., Santiago Hernandez, PH.D., David D. Springer, M.D. Martin HEIL and Elizabeth Heil, H/W, Appellants, v. CENTRALIZED COMPREHENSIVE HUMAN SERVICES, INC. t/a/ John F. Kennedy Community Mental Health/Mental Retardation Center and Maxine Weiner. Martin HEIL and Elizabeth Heil, H/W, Appellants, v. Idee BROWN, M.D. and Lydia Schut, M.D., Santiago Hernandez, PH.D.
    Superior Court of Pennsylvania.
    Argued April 20, 1995.
    Filed Aug. 1, 1995.

      John G. Malone, Philadelphia, for appellants.
    Dorothy Duffy, Plymouth Meeting, for Lydia Schut, M.D.
    Richard W. Yost, Flourtown, for Santiago Hernandez, PH. D., David D. Springer, M.D, Centralized Comprehensive Human Services & Maxine Weiner, appellees.

      Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from several orders granting summary judgment in favor of appellees, the John F. Kennedy Community Mental Health and Mental Retardation Center, [“Center”] and its mental health-care providers. Appellants, Martin and Elizabeth Heil, husband and wife, present the following issues for our review:

A. DID THE COURT BELOW APPLY LAW INAPPLICABLE TO THE FORESEEABLE POLICE RESCUE OF [APPELLEES’] NEGLECTED AND DANGEROUSLY PSYCHOTIC PATIENT?
B. DID THE COURT BELOW IGNORE THE GENUINE ISSUES OF MATERIAL FACT PRESENTED BY OFFICER MARTIN HEIL’S STATUS AS AN ON DUTY POLICE OFFICER CHARGED WITH THE RESPONSIBILITY OF RESCUING THE DANGEROUS PSYCHOTIC PATIENT NEGLECTED BY [APPELLEES]?
C. DID THE COURT BELOW IGNORE APPLICABLE PROCEDURAL AND CONTROLLING SUBSTANTIVE LAW?-

Appellants’ Brief at 3. For the following reasons, we affirm.

In 1981, Mr. Edward Holden began treatment for mental illness at the Center on a voluntary outpatient basis. During the course of his treatment, Mr. Holden went to the Center for therapy on November 16, 1987, at which time the symptoms of his mental illness had worsened. He was given a week supply of thorazine and told to return in one week so that he could be monitored. When Mr. Holden returned to the hospital on November 23, 1987, his treating physician was unable to see him and no other psychiatrists were available. Instead, Mr. Holden was seen by his social worker, Maxine Weiner, who drafted a treatment plan and told Mr. Holden to return during regular hours to see a psychiatrist. Although he appeared very agitated and was becoming increasingly paranoid, no steps were taken to initiate emergency hospitalization. The next day Mr. Holden, while experiencing a psychotic episode, drove his car into a police van, driven by appellant-husband, who was on duty as a Philadelphia police officer. As a result of the accident, Officer Heil was severely injured.

Appellants filed a complaint on March 21, 1989, against the Center and Ms. Weiner alleging that appellant-husband’s injuries were caused by appellees failure to properly medicate, treat, monitor, and hospitalize Mr. Holden. The hospital and Ms. Weiner joined Mr. Holden as a defendant. Appellant filed a second complaint on July 26, 1990, against Dr. Idee Brown, Dr. Lydia Schut, M.D., Dr. Santiago Hernandez, Ph.D., and Dr. David Springer, M.D. On April 11, 1991, the actions were consolidated.

Motions for summary judgment were filed and on June 14, 1994, the trial court adopted the recommendation of Judge Pro Tem Rutter and granted summary judgment in favor of all defendants, except Mr. Holden.

Preliminarily, we note that a motion for summary judgment may properly be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the non-moving party and must resolve all doubts against the moving party. Fletcher v. Raymond Corp., 424 Pa.Super. 605, 609, 623 A.2d 845, 847 (1993). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

The primary issue raised by appellants is whether the trial court erred in granting summary judgment and holding that mental health professionals do not owe a duty to protect third parties. Specifically, appellants argue that appellees breached their professional duty by failing to initiate the required emergency hospitalization and appellant’s injuries were a foreseeable result. We will assume, for purposes of this appeal, that appellees’ treatment of Mr. Holden fell below the applicable standard of care. Goryeb v. Department of Public Welfare, 525 Pa. 70, 75, 575 A.2d 545, 547 (1990) (in summary judgment context, all doubts must be resolved in favor of the non-moving party).

The legal obstacle to [finding liability] is that there is no relationship between [appellees] and [appellant] which creates any legal obligation, [a duty], from [appellees] to [this appellant]. As explained by Justice Cardozo, negligence is a matter of relation between parties, and must be founded upon the foreseeability of harm to the person in fact injured. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 at 101 (1928).

Brady v. Hopper, 570 F.Supp. 1333 (D.Colo.1983) (no duty on part of psychiatrist to protect plaintiffs injured in patient’s attempt to assassinate President), affirmed, 751 F.2d 329 (10th Cir.1984). In Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991) (POPOVICH, J. author, DEL SOLE, J. and BROSKY, J. concurring) pedestrians, who were injured by auto operated by diabetic who lost consciousness at the wheel, sued the diabetic’s physician. Our Court, in dicta, stated that even if the physician had a duty to notify the Department of Transportation of the diabetic’s condition, that duty did not give rise to a duty of care to the pedestrians, as they were not foreseeable victims of the physician’s action or inaction. Crosby, 405 Pa.Super. at 543, 592 A.2d at 1345. Here, as in Crosby, “to discount the important element of foreseeability [would] effectively overrule well-established and precedential tort law, [and would] extend liability ... to treating physicians vis-a-vis third party victims.” Crosby, supra.

Accordingly, for the above reasons, we affirm the trial court’s granting of summary judgment.

Affirmed.

      . Elizabeth Heil sought damages for loss of her husband’s assistance, services, and companionship.

      . Although trial court opinion states that summary judgment was granted in favor of all defendants, the opinion did not address the claims against Mr. Holden.

      . Appellants also assert that the “rescue doctrine” as a basis for liability. However, we find the duty to rescue is inapplicable in this case. 57A Am.Jur.2d § 693 (under the " ‘professional rescuer doctrine,’ ” a paid professional rescuer, who has sustained injury while attempting to rescue persons or property, cannot recover from one whose negligence has created the hazard ...). Although this Commonwealth has previously declined to adopt the "fireman's rule” in a land owner’s duty context, we find no prohibition to its application here. Holpp v. Fez, Inc., 440 Pa.Super. 512, 656 A.2d 147 (1995) (No. 01493 PGH 1994); Mull v. Kerstetter, 373 Pa.Super. 228, 540 A.2d 951 (1988), appeal denied, 520 Pa. 606, 553 A.2d 968 (1988). Cf. Bell v. Irace, 422 Pa.Super. 298, 304, 619 A.2d 365, 368 (1993) (rescue doctrine is a narrow exception used only in very special cases).

      . We note that Dunkle v. Food Service East, Inc., 400 Pa.Super. 58, 582 A.2d 1342 (1990) and Leonard v. Latrobe Area Hospital, 425 Pa.Super. 540, 625 A.2d 1228 (1993), cases cited by the trial court, are not controlling. Dunkle and Leonard both held that a therapist owes no duty to warn third parties of the violent propensities of his or her patient, where the victim is not specifically identified. The Dunkle and Leonard plaintiffs relied on a failure to warn theory and consequently issues arose relating to the confidential nature of the communications between patient and therapist. Here, appellant did not proceed under a failure to warn theory, but rather a negligence theory.