author: HOFFMAN, Judge:

text:
    594 A.2d 688
    Irvin V. UHLER v. Gloria T. UHLER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1991.
    Filed July 23, 1991.

      Robert A. Longo, Lancaster, for appellant.
    Douglas Y. Flick, Lancaster, for appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the trial court’s Order of August 16, 1990, denying the Master’s recommendation of alimony to appellant, Gloria Uhler, but otherwise approving the Master’s Report. Appellant contends that the trial court abused its discretion in denying her alimony. For the reasons that follow, we reverse the trial court’s Order denying alimony and remand for proceedings consistent with this Opinion.

The parties were married on September 12, 1968. This was the third marriage for both parties. No children were born of the marriage. The parties separated in September of 1983, and husband filed a complaint in divorce. A Master was appointed on May 27, 1988. The Master held hearings on April 12, and June 6,1989. On March 19,1990, the Master filed his Report and Recommendation with the Court. In his report, the Master recommended that each party be awarded one-half of the marital estate. In addition, the Master recommended that husband pay alimony to wife in the amount of $900.00 per month until the death of either party. Husband filed timely exceptions to the Master’s recommendation. In an Opinion and Order of August 16, 1990, the trial court affirmed all provisions of the Master’s Report except for the payment of alimony, which it denied. A Decree in Divorce was entered on October 5, 1990, and, on October 9, 1990, wife filed the instant appeal.

Appellant contends that the trial court abused its discretion in denying alimony. We note at the outset that an appellate court will reverse an order granting or denying alimony only for an abuse of discretion by the trial court. See Grandovic v. Grandovic, 387 Pa.Super. 619, 622-23, 564 A.2d 960, 962 (1989); Geyer v. Geyer, 310 Pa.Super. 456, 459, 456 A.2d 1025, 1026 (1983). An abuse of discretion will be found where the trial court failed to follow proper legal procedure or misapplied the law. See Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985).

Alimony and equitable distribution are interrelated in the Divorce Code. As stated by this Court in Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984):

The Divorce Code was remedial and provided for economic fairness for both parties upon divorce through the vehicle of equitable distribution (Chapter 4) and alimony (Chapter 5). Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983); Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). Alimony and equitable distribution must be viewed as part of the legislative intention: to do economic justice. This is apparent in § 501(a) which requires that the court in determining the entitlement to alimony consider the property distributed equitably pursuant to Chapter 4.

Id. 327 Pa.Super. at 283-84, 475 A.2d at 798-99. A trial court is required to determine whether alimony is appropriate in light of the factors set forth in 23 Pa.S.A. § 501 (repealed by 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days (23 Pa.C.S.A. § 3701)). The pertinent sections of that statute are as follows:

§ 501. Alimony
(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties____
******
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
******
(8) The standard of living of the parties established during the marriage.
******
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as a homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage____

Id. § 501(a) and (b) (repealed by 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days (23 Pa.C.S.A. § 3701)). Similarly, in a divorce proceeding, the trial court shall, upon request of either party, equitably divide the marital property between the parties after considering all relevant factors including the following:

(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.

23 Pa.S.A. § 401(d) (repealed by 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days (23 Pa.C.S.A. § 3502)).

Appellant contends that the trial court erred in denying alimony because it failed to consider all of the relevant factors in § 501 of the Divorce Code. Specifically, appellant argues that the trial court, in denying her alimony, failed to account for the income appellee was receiving from his annuity with Great-West Life Assurance Company (“Great-West annuity”).

The Master, in his exhaustive report, considered all relevant factors in making his recommendation regarding equitable distribution and alimony. The Master’s Report indicated that, at the time of the hearing, appellant was 67 years old and appellee was 76 years old. See Master's Report at 19, 21. Both parties were in poor health. Id. The Master found that appellee was receiving income from the following sources: $1,100 per month from Social Security; an annuity with Federal Life Insurance which pays $118 per month; a quarterly income of $57 from his oil and gas investment ($19 per month); approximately $816 per month from a partnership interest in rental property; and $1,800 per month from the Great-West annuity. Id. at 21-22. The Master found that appellant was receiving $1,200 per month in spousal support, $413 per month from Social Security, and $900 per year from two municipal bond funds. Id. The Master’s report also indicated that appellee had a monthly need of $3,725.63 including the spousal support. Id. Appellant was found to have a monthly need of $2,984.55. Id. The Master determined that neither appellant nor appellee was employable in any respect. Id. at 23.

The Master recommended that appellant and appellee each receive fifty percent of the marital estate through equitable distribution. Appellee was required to pay appellant a lump sum of $159,809.73 in order to effectuate the distribution scheme. This resulted in a total value of $326,-375.73 to appellee and $326,375.00 to appellant. The only marital asset that was not included in this distribution was the Great-West annuity. The Master also determined that appellant should be awarded alimony in the sum of $900 per month, based on a finding that appellant lacked sufficient funds to support herself and was incapable of self-support through employment. Id. at 29-30. The $900 per month figure was based on the fact that appellee was receiving $1,800 per month from the Great-West annuity. The Master’s report explained this finding as follows:

Additionally, Mr. Huber [appellee’s expert] testified concerning the value of the Great Western [sic] Life Annuity. Mr. Huber testified that as [appellee] has already selected the option to annuitize the policy and receive monthly payments the whole value of the policy cannot now be surrendered. Mr. Huber testified that the annuity is being annuitized monthly at $1,800 and that [appellee] receives $1,800 per month. Thus, [appellee] would realize approximately $21,600 per year from the annuity. As [appellee] can no longer cash in the value of the annuity, the Master will not treat the monthly installments of the annuity as property subject to equitable distribution, but rather, will consider the monthly payments as income to [appellee] to be considered pursuant to [appellant’s] request for Alimony.

Master’s Report at 17-18.

Following the filing of appellee’s exceptions, the trial court entered an Order denying alimony but approving the Master’s report in all other respects. With regard to alimony, the trial court’s Opinion stated only that “[i]f Mrs. Uhler invests her share of the marital estate she will have income in excess of $1,200.00 per month [the amount Mrs. Uhler had been receiving in spousal support] which, together with her monthly social security check, is more than enough to meet her needs. Thus, the Court sees no need to award Mrs. Uhler alimony.” Trial Court Opinion, August 16,1990, at 8.

On the record before us, we would not hold that it was error for the trial court to deny alimony to appellant. See, e.g., Grandovic v. Grandovic, supra, 887 Pa.Super. at 629, 564 A.2d at 965 (citations omitted) (alimony available only where economic justice and reasonable needs of parties cannot be achieved by way of equitable distribution award and development of appropriate employable skill). Indeed, the Master stated in his report that he distributed the annuity in the form of alimony only because of the nature of that asset. However, the trial court’s denial of alimony calls into question the distribution scheme as a whole.

The difficulty with the trial court’s decision denying alimony is that it does not account for the value of the Great-West annuity. Appellant claims, and appellee does not contest, that the annuity was marital property. Thus, in formulating a distribution scheme and determining whether alimony was appropriate, the trial court was required to consider the annuity as income to appellee. See 23 Pa.S.A. §§ 401(d)(3) and (6), 501(b)(3) (repealed by 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days (23 Pa.C.S.A. §§ 3502, 3701)). The effect of the court’s Order denying alimony was to award the entire value of the annuity to appellee. The Order was inconsistent in that the court purported to leave the Master’s fifty-fifty distribution scheme intact, but, by denying appellant any entitlement to the value of the annuity, it altered the fifty-fifty distribution in favor of appellee. We realize, of course, that there is no presumption in favor of a fifty-fifty distribution of property between parties. See, e.g., Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). Nevertheless, where a court purports to effect a certain distribution scheme, but then fails to properly calculate the award, it abuses its discretion. Cf. Wayda v. Wayda, 395 Pa.Super. 94, 104, 576 A.2d 1060, 1065 (1990). Accordingly, we must remand for the trial court to distribute the Great-West annuity in a manner consistent with this Opinion.

For the reasons set forth above, we reverse the Order below denying alimony and remand for proceedings consistent with this Opinion.

Order reversed and case remanded. Jurisdiction relinquished.

      . We note that this appeal is timely because the order of August 16, 1990 was interlocutory until the Decree in divorce was entered. See, e.g., Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986).

      . Neither party has raised a question concerning the possible retroactive effect of the 1990 amendments to the Divorce Code concerning alimony and equitable distribution. Thus, we cannot consider this question. See D’Huy v. D'Huy, 390 Pa.Super. 509, 515 n. 2, 568 A.2d 1289, 1292 n. 2 (1990); see also Bell v. Bell, 390 Pa.Super. 526, 530 n. 1, 568 A.2d 1297, 1299 n. 1 (1990) (en banc) (plurality opinion by BECK, J.). We note, however, that the changes in § 401 (equitable division of marital property) and § 501 (alimony) would not effect the disposition of this case.

      . The Master noted, however, that appellant was no longer paying a car payment in the amount of $242.55 and that her housing costs had increased $33.00 per month. In addition, appellant listed on her Income and Expense Statement that she spent $3,600 per year for a health spa, but she admitted that she had not been there in three years.

      . The portion of the trial court’s Opinion concerning alimony focused primarily on the court’s apparent disagreement with the Master’s findings regarding the investment assets and income available to each party. The court, however, failed to articulate how these errors affected the Master’s distribution scheme and, more importantly, why these errors led it to conclude that alimony was unwarranted here.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    594 A.2d 692
    DOMESTIC RELATIONS SECTION for Cathy A. DIEHL, Appellee, v. Patrick A. MULHERN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1991.
    Filed July 24, 1991.

      Edward Schellhammer, Johnstown, for appellant.
    Charles P. Wasovich, Altoona, for appellee.
    Before WIEAND, DEL SOLE and HOFFMAN, JJ.
   WIEAND, Judge:

In this proceeding for the support of a child born out of wedlock to Cathy A. Lilly, now Cathy A. Diehl, the trial court entered an order directing Patrick A. Mulhern, Jr. to pay support of one hundred ($100.00) dollars per month. Mulhern appealed. We reverse. The record is clear that there has been neither an adjudication of paternity nor an acknowledgement by Mulhern that he is the father of the child.

Cathy A. Lilly gave birth to a daughter, Jennifer Marie Lilly, on April 1, 1977. On April 25, 1977, she filed in Cambria County a criminal complaint against Mulhern in which she charged him with refusing to support a child born out of wedlock, which was made a misdemeanor by 18 Pa.C.S. § 4323. The case was tried before a jury, which returned a verdict of guilty. Subsequently, however, the trial court granted Mulhern’s post-trial motion and awarded a new trial. Before the case could be tried a second time, the case was settled for the lump sum of six thousand ($6,000.00) dollars. This settlement was approved by the court, which told appellant that the settlement would be effective to release him from any further liability for the child and entered an order as follows:

AND NOW, February 13,1979, defendant to pay $6,000 lump sum settlement to the Domestic Relations Office. This is to be distributed in $50.00 monthly payments to the child until the fund is exhausted. The case is to be transferred from the Criminal Division to the Civil Division. Costs are placed on the County.

On December 1, 1989, shortly before the six thousand dollars was exhausted by payments, Cathy Lilly, now Diehl, filed a petition to obtain additional support for her child from Mulhern. After hearing, a hearing officer recommended that Mulhern pay the sum of one hundred ($100.00) dollars per month. Mulhern filed exceptions, but the court accepted the hearing officer’s recommendation and entered an order in accordance therewith. Further exceptions were filed, but they were dismissed, and Mulhern appealed. He argues that (1) the settlement of the criminal action was a final determination of the rights of the parties and, therefore, constituted a bar to the present action; and (2) the court could not properly order him to support a child whose paternity he has never acknowledged without a judicial determination that he is the father of the child.

Prior to 1963, issues of paternity were decided by criminal actions brought pursuant to Section 506 of the Penal Code of 1939, 18 P.S. § 4506 (fornication and bastardy) and/or Section 732,18 P.S. § 4732 (willful failure to support a child born out of wedlock). Prosecutions for willful failure to support a child born out of wedlock had to be initiated within (2) years following the birth of the child, except where the reputed father had acknowledged paternity in writing or had voluntarily contributed to the support of the child. In such cases, a prosecution could be maintained within two years after the written acknowledgment or within two years of the last payment of support.

In 1963, however, the Civil Procedural Support Law of July 13, 1953, P.L. 431, No. 95, § 1, 62 P.S. § 2043.31 et seq., was amended by the Act of August 14, 1963, P.L. 872, No. 420, § 1, 62 P.S. § 2043.32, to permit a civil determination of paternity in proceedings for the support of a child born out of wedlock. The amendment, however, did not eliminate a defendant’s right to a jury trial in cases where he was accused of being the father of a child born out of wedlock. See: Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968).

Later, the criminal statutes pertaining to paternity were repealed by the Act of April 28, 1978, P.L. 106, No. 46, § 3, effective June 27, 1978. The Judiciary Act Repealer Act then repealed the Civil Procedural Support Law and reenacted it in substantially the same form as part of the Judicial Code, 42 Pa.C.S. § 6701 et seq. In pertinent part, the provisions of 42 Pa.C.S. § 6704 were as follows:

(e) Limitation of actions.—All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.
(f) Character of action.—An action brought under this subchapter shall be a civil action governed by general rules applicable to civil matters.
(g) Trial of paternity.—Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.
Finally, by the Act of October 30, 1985, P.L. 264,

No. 66, § 1, the legislature provided as follows:

(a) Determination.—Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury unless either party demands trial by jury. The burden of proof shall be by a preponderance of the evidence.
(b) Limitation of actions.—
(1) An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.
(2) As of August 16, 1984, the requirement of paragraph (b)(1) shall also apply to any child for whom paternity has not yet been established and any child for whom a paternity action was brought but dismissed because of a prior statute of limitations of less than 18 years.
(c) Genetic tests.—
(1) Upon the request of any party to an action to establish paternity, the court shall require the child and the parties to submit to genetic tests.
(2) Genetic test results shall be considered prima facie evidence of paternity.
(3) To ensure the integrity of the specimen and that the proper chain of custody has been maintained, the genetic tests of the biological mother, the child or children in question and the alleged father should be conducted by an established genetic-testing laboratory in the course of its regularly conducted business activity, and certified records should be issued. The laboratory must be certified by either the American Association of Blood Banks or the American Association for Histocompatibility and Immunogenetics.
(4) A fee for performing genetic tests may be imposed on any individual who is not a recipient of public assistance. The amount of the fee will be in accordance with applicable Federal regulation.

23 Pa.C.S. § 4343.

The law in 1977 was such that criminal actions to determine paternity could be settled to avoid the notoriety, embarrassment and humiliation attendant upon such proceedings. See: Commonwealth v. Terry, 275 Pa.Super. 184, 186, 418 A.2d 673, 675 (1980); Commonwealth v. Luciano, 205 Pa.Super. 397, 400, 208 A.2d 881, 883 (1965). When a defendant was charged with an offense which was not alleged to have been committed by force of violence or threat thereof, the court could order the case dismissed upon a showing of an agreement of satisfaction made to the aggrieved party. See: Pflaum v. McClintock, 130 Pa. 369, 18 A. 734 (1889) (prosecution for fornication and bastardy may be settled and a nolle prosequi entered); Rohrheimer v. Winters, 126 Pa. 253, 17 A. 606 (1889); Stumpf's Appeal, 116 Pa. 33, 8 A. 866 (1887). See also: King Coal Co. v. Commonwealth, 82 Pa.Cmwlth. 487, 475 A.2d 939 (1984).

Consistently with this practice, the original action for the support of a child born out of wedlock to Cathy Lilly was settled for the sum of six thousand ($6,000.00) dollars. This settlement, however, was not effective to bar future claims for the support of the child. The obligation of a parent to support his or her child is an unwavering one, and one parent will not be permitted to contract away the right of his or her child to seek support from the other parent. In Commonwealth ex rel. Shoemaker v. Coulson, 335 Pa.Super. 626, 485 A.2d 70 (1984), the mother of a child born out of wedlock instituted an action for support of her child in which she averred the defendant’s paternity. A directed verdict and lump sum settlement of four thousand eight hundred ($4,800.00) dollars were negotiated by the parties. Four years later, the mother filed an action against the same defendant for support of her daughter. The defendant thereupon filed a declaratory judgment action to determine whether the mother was precluded from claiming child support following the entry and satisfaction of a lump sum settlement. The trial court found that the mother was not estopped from maintaining her support action, and the Superior Court affirmed. The Court reasoned:

This Commonwealth has always attributed the utmost importance to the duty and responsibility of parents to financially support their children to the extent of their resources. Although a parent’s circumstances may vary, the obligation of child support is an unwavering one. As such, this Court has repeatedly held that one parent cannot contract away the right of his or her child to seek adequate support from the other parent. Oman v. Oman, 333 Pa.Super. 356, 359, 482 A.2d 606, 608 (1984), quoting Brown v. Hall, 495 Pa. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Mallinger v. Mallinger, 197 Pa.Super. 34, 175 A.2d 890 (1961). In fact, we once observed that “agreements or disputes are almost irrelevant when balanced against the overwhelming concern of the law with the welfare of children.” Commonwealth ex rel. McCartney v. McCartney, 217 Pa.Super. 417, 420, 274 A.2d 206, 207 (1970).

Id., 335 Pa.Superior Ct. at 629, 485 A.2d at 72.

Other jurisdictions have adopted a similar approach. They have held that an illegitimate child’s right to support from a putative father cannot be bargained away by its mother and that any release or compromise executed by the mother and putative father is invalid to the extent that it purports to prejudice the welfare of the child involved. See: Tuer v. Niedoliwka, 92 Mich.App. 694, 285 N.W.2d 424 (1979); Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Shinall v. Pergeorelis, 325 So.2d 431 (Fla.App.1975).

Because our paramount concern must be for the welfare of the child, therefore, we hold that appellant’s obligation to contribute to her support is not barred by the earlier settlement. The nature of this obligation is superior in effect to an incorrect statement of the law by a trial judge regarding the finality of a lump sum settlement.

Appellant is correct, however, that before he can be compelled to contribute to the support of the child born out of wedlock to Cathy Lilly, there must be a determination that he is the father of the child. He is also correct that there has been no such determination in this case. The verdict of the jury which made this determination was set aside by the trial court, and a new trial was granted. A second trial was never held, because the claim was settled before the second trial took place.

The lump sum settlement cannot be deemed a legally binding acknowledgement of paternity. Appellant has consistently denied that he is the father of the child born to the claimant, and the record made at the time of the lump sum settlement contains no admission of paternity. Under these circumstances, it cannot be said that the paternity of the child has been acknowledged by appellant. Without an acknowledgement of such paternity, appellant cannot be made to pay support for the child unless it is first determined that he is the father of the child.

Because there has been no such determination, the order entered by the trial court is reversed, and the case is remanded for further proceedings. Jurisdiction is not retained meanwhile.

      . This section of the Crimes Code was subsequently repealed by the Act of April 28, 1978, P.L. 106, No. 46, § 3, effective in 60 days.

      . The amended statute provided that the "duty of support” enforceable in civil proceedings included
      any duty of support imposed or imposable by law or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance, prosecution for failure to support a child born out of lawful wedlock, or otherwise, (emphasis added).

      . This statute of limitations was held to violate principles of equal protection and was declared unconstitutional in Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988).


text:
    594 A.2d 696
    COMMONWEALTH of Pennsylvania v. Donald J. WHARTON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1991.
    Filed July 25, 1991.

      William T. Renz, Doylestown, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   WIEAND, Judge:

On October 27, 1989, at or about 7:35 p.m., a vehicle owned by Donald J. Wharton, Jr., left a roadway in Bucks County and struck a utility pole. Killed in the accident was Wharton’s girlfriend, Debra Felver. Wharton was arrested and charged with involuntary manslaughter, homicide by vehicle while driving under the influence of alcohol, homicide by vehicle, and driving while under the influence of alcohol and/or a controlled substance. He was also charged with the summary offenses of driving at an unsafe speed, reckless driving, driving an unregistered vehicle and driving while his operating privileges were under suspension. At trial before a jury, Wharton defended on grounds that his deceased girlfriend had been the driver of the vehicle and not he. On March 14, 1990, the jury acquitted him of involuntary manslaughter, homicide by vehicle while driving under the influence, homicide by vehicle and driving while under the influence of alcohol and/or a controlled substance. On March 26, 1990, the trial court received additional evidence and found Wharton guilty of the summary offenses. Sentences were immediately imposed, and thereafter post-trial motions were filed and dismissed. Wharton then appealed. He contends that the convictions for the summary offenses were barred by constitutional guarantees against double jeopardy and the provisions of 18 Pa.C.S. § 110.

Appellant’s argument is based upon the premise that he was tried twice for offenses arising out of the same incident. The Commonwealth contends, however, that all charges were tried in a single proceeding, so that jeopardy attached at the same time on all charges.

The doctrine of collateral estoppel, which is part of the concept of double jeopardy, “requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant.” Matter of Huff, 399 Pa.Super. 574, 578 n. 5, 582 A.2d 1093, 1095 n. 5 (1990). See also: Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980). With respect to 18 Pa.C.S. § 110, the Superior Court has said:

Section 110 “applies only where the prosecution is attempting to bring charges to trial on a new offense which follows a previous trial for the same conduct.” Commonwealth v. Pounds, supra, 281 Pa.Super. [19] at 22, 421 A.2d [1126] at 1127 [(1980)]. It was designed to limit successive prosecutions where all charges arising out of the same criminal transaction could have been brought in a single prosecution. See: Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

Commonwealth v. Harris, 400 Pa.Super. 12, 24-25, 582 A.2d 1319, 1325 (1990).

A careful review of the record in this case discloses that the felony, misdemeanor and summary charges against appellant were, in fact, consolidated in a single trial in which the jury was the fact finder in the felony and misdemeanor charges and the trial court was fact finder in the summary charges. The Commonwealth contends that the trial court made a ruling prior to trial by which appellant’s driving record and the status of his vehicle’s registration were to be presented at a continued hearing after the conclusion of the jury trial in order to avoid the prejudice which might have resulted if the jury had been made aware of such evidence. Although we can find no indication of this ruling in the record which has been certified to this Court, it is clear from the record that all evidence pertaining to the identity of the vehicle’s driver at the time of the accident was presented during the jury trial. At the reconvened hearing, the court received evidence of appellant’s driving record and the status of his vehicle’s registration. No additional evidence was received. In particular, no evidence was presented during the reconvened hearing as to who was driving the vehicle at the time of the accident. Thus, it was solely on the basis of evidence presented while the jury was present that the trial court found appellant to be the driver at the time of the accident. It is apparent, therefore, that the evidence necessary to a determination of the common issues of fact on the summary and felony/misdemeanor offenses was presented at a single proceeding. As the trial court said in its opinion, “[w]hat was conducted here was a single trial.”

The circumstances surrounding this trial are analogous to those in Commonwealth v. Yachymiak, 351 Pa.Super. 361, 505 A.2d 1024 (1986). There, the defendant had been tried in a single proceeding on a charge of driving while under the influence of alcohol and the summary offenses of driving while under suspension and driving on the wrong side of the highway. The jury acquitted the defendant of drunk driving, but the trial court found him guilty of the summary offenses. On appeal the defendant argued, as appellant argues instantly, that the jury’s verdict of acquittal on the drunk driving charge constituted a specific factual finding that he had not been driving the vehicle at the time of the alleged offenses. The Superior Court rejected this argument and held that the trial court was not bound by the jury’s verdict when deciding the defendant’s guilt of the summary offenses. The Court reasoned as follows:

Appellant’s reasoning is that the jury’s acquittal on the charge of driving under the influence necessarily rested upon a specific finding that appellant was not operating the vehicle, due to his admission that he was intoxicated. The judge’s opposite finding, that appellant was driving, is so basically unfair that it should not be tolerated in our criminal justice system.
Appellant recognizes that inconsistent verdicts may be rendered by a jury and that such verdicts are not grounds for a new trial or for reversal. Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971). The same rule applies in nonjury trials. Commonwealth v. Harris, 239 Pa.Super. 603, 606, 360 A.2d 728, 729 (1976). Appellant does not argue that a different rule of law holds for cases in which both judge and jury sit as fact-finders on summary and misdemeanor offenses tried in one proceeding as required by Commonwealth v. Campana, 452 Pa. 233, 253, 304 A.2d 432, 441 (1973), vacated 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand 455 Pa. 622, 314 A.2d 854 (1974), cert. denied 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).
Instead, he argues that the rationale of Commonwealth v. Bittinger, Somerset County, 25 Pa.D. & C.3d 627 (1982), should be adopted in order to alleviate the basic unfairness of inconsistent verdicts in a combined judge-jury trial. The issue in Bittinger was identical to the one under review—whether a judge may convict on a summary offense when such a conviction is logically inconsistent with a jury’s acquittal in the same trial. President Judge Coffroth granted a motion in arrest of judgment after he had found Bittinger guilty of harrassment [sic] and a jury had acquitted Bittinger of assault in the consolidated trial.
The judge explained his decision in a lengthy opinion, holding that “a criminal accused is protected against inconsistent findings of essential facts by different fact-finders in a consolidated jury-nonjury trial of misdemean- or and summary offenses arising from a single episode of conduct,” and that “the judge must defer to the jury’s finding upon common essential issues, if clear, because public policy favors jury trial.” Id. at 643-44. The holding was based upon the belief that inconsistent verdicts constituted “a double jeopardy of sorts” or might be “merely a matter of collateral estoppel.” Id. In any event, the unfairness to the accused puts the judicial system in a bad light as not knowing its own mind, makes justice appear aleatory and reduces both public confidence in the judicial system and judicial self-respect. Id.
We decline to adopt the foregoing rationale for two reasons. First and foremost is the difficulty, if not impossibility, of determining when two verdicts are truly inconsistent. In the case at bar, for instance, conviction of driving under the influence would have entailed three findings of fact: appellant was operating the vehicle, he was under the influence of alcohol and he was incapable of safe driving. An acquittal entails reasonable doubt of any one of the essential facts. The judge’s finding that appellant was operating the vehicle is inconsistent only if the acquittal was based on the jury’s doubt that appellant was driving rather than on the absence of either of the other two elements of the offense. Despite appellant’s insistence that he did not contest the issue of his intoxication so that his acquittal must be interpreted as a jury finding that he was not the operator of the vehicle, there is at least a reasonable possibility that the verdict was based upon an absence of proof that appellant was intoxicated to a degree which rendered him incapable of safe driving.
For these reasons it has been held that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence. [The acquittal may be] ... no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenienty.” Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959).
A second reason we decline to adopt appellant’s view as presented in Bittinger, supra, is that it functionally abrogates Pa.R.Crim.P. 63(b) and 1102(a). These rules taken together designate the judge as trier of fact in summary cases which are conjoined with court cases pursuant to Campana, supra. As to the summary offenses, “the trial judge shall determine all questions of law and fact and render a verdict which shall have the same force and effect as a verdict of a jury.” Pa. R.Crim.P. 1102(a). He surely cannot fulfill this duty if he follows the requirement in Bittinger that he “must defer to the jury’s finding upon common essential issues.” Bittinger, supra, at 644.
Although the law permitting inconsistent verdicts occasionally seems to produce paradoxical results, we find no error in the trial judge’s performance of his role as finder of fact under the rules of criminal procedure.

Id. 351 Pa.Super. at 365-367, 505 A.2d at 1026-1027 (footnote omitted).

It was for the trial court in this case, sitting as fact finder, to weigh the evidence and render a verdict on the summary charges. That the court’s verdict was not consistent with the jury’s verdict on the felony and misdemeanor charges is not an adequate basis for granting relief, for, as the decision in Commonwealth v. Yachymiak instructs, in a consolidated jury/nonjury trial, the trial court is not required to defer to the findings of the jury on common factual issues. Instead, the trial court is free to conclude, as it did in the instant case, that appellant was driving the vehicle at the time of the accident and, therefore, was guilty of the summary offenses charged.

Principles of double jeopardy have not been violated merely because the receipt of additional evidence was delayed until after the verdict of the jury had been returned. Jeopardy attached simultaneously on all alleged offenses at the start of the trial, and the delay in receiving evidence pertaining to appellant’s driving record and registration of his vehicle was occasioned in order to prevent the jury from hearing evidence irrelevant to the issues which it was being called upon to decide. This was not altered because there was a delay of twelve days.

For similar reasons, the procedure followed by the trial court did not constitute a violation of 18 Pa.C.S. § 110.

The judgment of sentence is affirmed.

      . Wharton’s notice of appeal was not filed until thirty-six (36) days after entry of the judgment of sentence. Usually, this would require the quashing of an appeal. In the instant case, however, the trial court imposed sentence immediately following the adjudication of guilt. This was procedurally improper. The court should not have imposed sentence prior to the filing and disposition of post-trial motions. Therefore, because Wharton did file his notice of appeal within thirty (30) days of the denial of his post-trial motions, we will treat his appeal as having been timely filed. See: Commonwealth v. Schauffler, 397 Pa.Super. 310, 314, 580 A.2d 314, 316 (1990); Commonwealth v. Eliason, 353 Pa.Super. 321, 323, 509 A.2d 1296, 1297 (1986).


author: JOHNSON, Judge:

text:
    594 A.2d 700
    COMMONWEALTH of Pennsylvania, Appellant, v. George MABREY.
    Superior Court of Pennsylvania.
    Argued May 8, 1991.
    Filed July 25, 1991.

      Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellant.
    Mel D. Kardos, Newtown, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from an order which suppressed the breath test results obtained from an intoxilyzer in the course of a prosecution for driving under the influence (DUI). It asks us to find error in the suppression hearing court’s conclusion that the deviations found in the prior results of the machine in question arose from mechanical malfunction, rather than as a result of poor breath samples. The Commonwealth contends that the evidence should have been found competent and that the deviations are then relevant only to the weight to be given to the test results by the fact-finder and not to the admissibility of the test.

We reject these contentions of the Commonwealth. We find the regulations to be clear and the conclusions of the suppression hearing court to be supported by sufficient evidence. Accordingly, we affirm the order which suppressed the breath test results as having been secured in violation of the regulations of the Department of Transportation relating to test procedures and accuracy certification for breath test devices, 67 Pa.Code §§ 77.21-77.27.

George Mabrey’s automobile was pulled over late one night by Officer Mark Blaszczyk. At the suppression hearing, Officer Blaszczyk testified that he had seen Mabrey’s vehicle swerving on the roadway. The officer further testified that Mabrey’s breath smelled strongly of alcohol, that Mabrey’s eyes were glassy and his speech slurred. The officer also testified that Mabrey failed field sobriety tests and appeared to be under the influence of alcohol. Mabrey was transported to police headquarters where, after consulting with an attorney, he agreed to take an intoxilyzer test. Officer Blaszczyk administered the test through the use of an Intoximeter 3000, and the test indicated that Mabrey’s blood alcohol content was 0.16%.

The evidence produced at the suppression hearing indicated that the intoxilyzer machine in question had been calibrated within a year of Mabrey’s tests and that the machine had last been tested for accuracy approximately two weeks before Mabrey’s test. However, the evidence also indicated that, between its last calibration and Mabrey’s test, the intoxilyzer had, on seven occasions, failed to render consecutive results on the same subject differing by no more than 0.020%. Mabrey sought and was granted suppression of the results of his intoxilyzer test, not on the basis that the machine had malfunctioned during his test, but on the basis that the machine had malfunctioned while testing other subjects but was not re-calibrated as required by the applicable regulations. The Commonwealth appeals.

Our legislature has provided that, under certain conditions, the results of chemical testing for blood alcohol level shall be admissible in court. The Motor Vehicle Code provides, in relevant part:

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

75 Pa.C.S. § 1547(c) (emphasis added).

Pursuant to this statute, regulations governing the proper administration of intoxilyzer tests were developed. These regulations read, in pertinent part:

(b) Procedures. ... The procedures for alcohol breath testing shall include, at a minimum:
(1) Two consecutive actual breath tests, without a required waiting period between the two tests.
(2) ... The test results will be disregarded, and the breath device will be removed from service ... if one of the following occurs:
(i) If the difference between the results of two actual alcohol breath tests is .02 or more, for machines read to the second decimal place, or .020 or more for machines read to the third decimal place.
(c) Procedures for adjustment. Breath test equipment which fails the testing under ... subsection (b) shall be placed out of service and shall be serviced, repaired and adjusted, as necessary, ... prior to being placed back into service.

67 Pa.Code 77.24(b) and (c) (emphasis added).

At the suppression hearing, various officers testified regarding the entries in the log in which results of consecutive breath tests differed by more than 0.020%. Generally, the explanations given were related to how forcefully the subject exhaled into the device. Although the log generally reflected the officer’s opinion of why differing results were achieved, one test of a Mr. Sweeney, which differed by 0.023%, had no such notation. One inconsistent reading was alleged to have occurred as a result of a solution jar which had not been tightly screwed to the machine. On behalf of the defendant, Dr. Richard Saferstein testified that the velocity of the breath sample should not cause the results to differ by as much as .020%.

In granting suppression, the court stated:

Although an explanation that an improper breath sample was given might be credible in one or two instances, the fact that so many deviations occurred indicates that the machine should have been removed from service and fully checked and calibrated. Also, the fact that no notation was made as to the deviations in the test performed on Mr. Sweeney is a factor affecting the credibility of the Commonwealth’s case. Moreover, the test performed upon Mr. Grow which yielded a variance of .044 is the greatest indicia of machine malfunction. Despite the officer’s testimony that the subject performed an improper breath sample, this Court was persuaded that serious questions about the accuracy of the machine were raised, and should have been a concern to the Bensalem Township Police Department under the circumstances. Therefore this Court finds that the machine should have been taken out of service until it was recalibrated or repaired as required by the statute.

Opinion of December 20, 1990, at 7.

On appeal, the Commonwealth argues first that evidence that the intoxilyzer has malfunctioned goes to the weight attributable to the results, but not its admissibility. The Commonwealth argues in the alternative that the trial court erred in determining that the machine had malfunctioned.

For the proposition that evidence of malfunctions is properly admitted to attack the weight of intoxilyzer results, but not its admissibility, the Commonwealth relies upon Commonwealth v. Sweet, 232 Pa.Super. 372, 335 A.2d 420 (1975), Commonwealth v. Sesler, 358 Pa.Super. 582, 518 A.2d 292 (1986), and Commonwealth v. Shiffler, 373 Pa.Super. 497, 541 A.2d 780 (1988).

In Commonwealth v. Sweet, this court held that the result of an intoxilyzer test was properly admitted where the Commonwealth had satisfied the then-existing statutory requirements for admission, and that the defendant’s concerns regarding the undocumented composition of the simulator solutions would go only to the weight of the test result, not its admissibility. The present case, however, is controlled by regulations which specify that, where the machine renders consecutive actual breath test results which vary by more than 0.020%, the results are inadmissible and the machine is to be taken “out of service and serviced, repaired and adjusted ... prior to being placed back into service.” § 77.24(c). Sweet is inapposite, for the issue here involves the Commonwealth’s purported failure to comply with the statutes and regulations which are the only vehicle through which the results may be introduced at trial.

The admissibility of blood alcohol test results depends upon strict compliance with 75 Pa.C.S. § 1547(c). In Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986), even though the model of testing device had been approved pursuant to § 1547, test results were held inadmissible on the basis that the machine had been modified.

Further, unlike in Sweet, the terms of § 1547 go on to require compliance with “procedures prescribed jointly by regulations of the departments” and that the machines be “calibrated and tested for accuracy within a period of time and in a manner specified by the regulations — ” § 1547(c)(1). Compliance with the terms of 67 Pa.Code § 77.24, therefore, determines whether the results of the test will be admissible. Commonwealth v. Diulus, 391 Pa.Super. 379, 571 A.2d 418 (1990). In Diulus, this court held that, because the regulation requires “two consecutive actual tests,” a single breath test result fails to satisfy the requirements of the regulations and is inadmissible. Similarly, admissibility in the instant case depends upon whether the procedures employed by the Commonwealth complied with both § 1547(c) and § 77.24.

In Commonwealth v. Sesler, supra, we held that evidence that an intoxilyzer had never been calibrated since it left the manufacturer went only to the weight of the test result and not to its admissibility. Sesler, however, had been tested before the promulgation of regulations mandating specific procedures for the testing, calibration and accuracy testing of equipment and requiring exclusion of test results for failure to comply. This court held then that the results were properly admitted on the basis that, when conducted, the test satisfied the statutory requirements for admissibility and no regulations then existed with which to comply. The Commonwealth’s reliance on Sesler is, therefore, misplaced.

Finally, in Commonwealth v. Shiffler, supra, this court reversed a conviction where the trial court had excluded evidence that the intoxilyzer device on which the defendant had been tested had previously malfunctioned. Our opinion in that case made clear, however, that the defendant was denied suppression because his motion to suppress had been untimely. Shiffler cannot be relied upon for the proposition that an order granting a timely motion to suppress test results rendered by a malfunctioning machine is improper.

To resolve this issue, we look to and reaffirm our position in Diulus, supra, and hold that the statutory requirements of 75 Pa.C.S. § 1547 and the regulations in 67 Pa.Code § 77.24 both establish the requisite procedures for a valid breath test. We further hold that, when the statute or regulations require that a machine be taken out of service, subsequent test results will be inadmissible if rendered before “service, repair and adjustment, as necessary,” occurs.

We are left, then, to determine whether the suppression court erred in determining that the regulations required the machine in question be removed from service and calibrated. These devices need not be removed from service merely because consecutive results on the same subject differ by more than .020%, Commonwealth Department of Transportation, Bureau of Driver Licensing v. Pestock, 136 Pa.Cmwlth. 694, 584 A.2d 1075 (1990); rather, removal from service is required only where such variance is found as to “two actual alcohol breath tests----” § 77.24(b)(2)(i); Pestock. In Pestock, the Commonwealth Court held that “[although the regulation does not address the situation of deficient samples ..., we must conclude that such samples do not constitute ‘actual breath tests.’ ” Pestock, 136 Pa.Cmwlth. at 700, 584 A.2d at 1078. Therefore, whether the suppression court erred in holding that the machine was required by the regulations to be removed from service depends upon whether sufficient evidence was presented upon which that court could base its finding that the results were caused by a malfunction, not deficient breath samples.

We believe that the suppression court’s conclusion that the machine in question had malfunctioned was supported by sufficient evidence. The court considered the explanations proffered by the officers, as well as the explanations entered in the log. The court considered Dr. Saferstein’s testimony that the officers’ explanations did not account for the discrepancies in the log. Finally, the court made a determination of credibility with which we may not interfere. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Torres, 396 Pa.Super. 499, 578 A.2d 1323 (1990). We hold that the suppression court’s determination that the intoxilyzer in question had malfunctioned and was required by the regulations to be removed from service was supported by the evidence presented, and accordingly affirm the order granting suppression of the results of Mabrey’s test.

Order affirmed; case remanded; jurisdiction relinquished.


author: OPINION PER CURIAM: POPOVICH, Judge,

text:
    594 A.2d 703
    COMMONWEALTH of Pennsylvania, Appellee, v. Blair R. HYDE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1991.
    Filed July 25, 1991.

      James B. Yelovich, Somerset, for appellant.
    Donley C. Logue, Jr., Dist. Atty., Bedford, for Com., appellee.
    Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   OPINION PER CURIAM:

Appellant, Blair R. Hyde, was convicted by a jury of driving with a blood alcohol level of .10 percent or greater. Posttrial motions were denied and appellant was sentenced to forty-eight hours to eighteen months imprisonment. This direct appeal followed. We affirm.

Appellant asserts three issues for our review: (1) whether the district attorney abused its discretion by not approving appellant for the Accelerated Rehabilitation Disposition program; (2) whether the evidence was insufficient; and (3) whether the prosecutor engaged in misconduct.

Appellant first claims that the district attorney abused its discretion by not approving appellant for the ARD program. It is within the district attorney’s discretion which defendants qualify for an ARD program. A defendant’s admission into an ARD program is not a matter of right but rather a privilege. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The areas of concern, when implementing criteria for an ARD program, are the protection of society and whether the defendant is the type of person who can benefit from ARD. Commonwealth v. Lutz, supra; Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930 (1990).

The emphasis in Bedford County appears to be on the protection of society. The district attorney determined that anyone with a blood alcohol level in excess of .230% may not qualify for ARD. This criteria does not amount to an abuse of discretion. Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988) (A cut off point of .250% was not an abuse of discretion and serves the purpose of ARD). Appellant’s blood alcohol level was .245%, and thus the district attorney did not abuse his discretion by not admitting appellant into the ARD program.

Appellant’s next two claims are that the evidence was insufficient because the Commonwealth failed to relate the results of the blood alcohol test back to the time appellant was operating his vehicle and that the prosecutor engaged in misconduct and went beyond the bounds of propriety in his closing argument. Appellant has the responsibility of providing a complete and comprehensive record to the reviewing court. Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d 636 (1990); Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986); Pa. R.App.P. 1911.

In the instant case, appellant has failed to provide this court with a complete trial transcript, and thus the trial record is inadequate. The record reveals that appellant only ordered isolated excerpts from the trial. Therefore, we are unable to meaningfully review appellant’s claims. Absent an adequate record, there is no support for appellant’s arguments that the evidence was insufficient or that the prosecutor’s remarks were prejudicial and not a fair commentary on the evidence presented.. Commonwealth v. Williams, supra.

Judgment of sentence affirmed.

POPOVICH, J., files a concurring opinion.

POPOVICH, Judge,

concurring:

I join the majority because its statement of the law is 'correct. However, I write separately to express my views regarding the arbitrary nature through which one may be accepted into the ARD program. In so doing, I re-visit Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), especially that portion of the opinion which held that the decision of a prosecutor to exclude individuals from ARD in one county, but not in another, did not result in a denial of equal protection. Id., 247 Pa.Superior Ct. at 107-10, 371 A.2d at 1350-51.

In Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), the appellant, Charles Kindness, raised a Fourteenth Amendment claim, asserting that the district attorney’s refusal to admit his case into the ARD program denied him equal protection under the law. He argued that the policy, which disallowed the admission of all drunk drivers into ARD, discriminated among intoxicated persons. Id., 247 Pa.Superior Ct. at 107-08, 371 A.2d at 1350. Following discussion, this Court upheld the policy of the Dauphin County district attorney’s office. This Court found that the Dauphin County practice was not violative of the Equal Protection Clause because (a) the law, as administered, dealt alike with all members of that class and (b) the classification was reasonable. Id., 247 Pa.Superior Ct. at 107-08, 371 A.2d at 1350.

The second facet of Kindness’ argument was that “exclusion of drunken drivers from ARD in Dauphin County, but not in other counties, resulted] in a denial of equal protection.” Id., 247 Pa.Superior Ct. at 107-08, 371 A.2d at 1350. In Dauphin County, the district attorney denied eligibility for ARD treatment to all drunk drivers, whereas prosecutors in other counties felt free to move for such disposition in similar cases. The district attorney’s recommendation was the sole basis for a defendant’s contention in the program.

After analysis, this Court, referring to United States Supreme Court decisions, noted that “[territorial uniformity is not a constitutional requisite.” Id., 247 Pa.Superior Ct. at 109-10, 371 A.2d at 1351 (citation omitted). In addition, this Court stated that “[t]he Constitution does not forbid the state from experimenting by utilizing disparate methods for different counties.” Id. (citations omitted). Finally, this Court held that the Dauphin County policy was constitutional.

One of the most noteworthy observations contained in the Kindness decision may be found in Judge Spaeth’s concurring and dissenting opinion, where he recognizes the necessity to promulgate valid and fair rules to promote the administration of justice. In particular, Judge Spaeth comments, “[t]he validity of rules ... must be determined by what the rules do, not by who administers them.” Id., 247 Pa.Superior Ct. at 127, 371 A.2d at 1360. He concludes by expressing his hope that our supreme court will exercise its supervisory powers to render the ARD rules “constitutional.”

Presently, the rules applicable to Accelerated Rehabilitative Acceleration include Pa.R.Crim.P. 160-186. Clearly, the district attorney is responsible for determining which cases will be recommended for entry into the ARD program. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). As a result, discretion is vested in the district attorney to decide whether an individual should be eligible for this sort of rehabilitation, or whether that individual’s case should be rejected. Even within the same county, the district attorney’s powers are unfettered and thus, as Judge Spaeth noted in his concurring and dissenting opinion in Kindness, supra., the risk remains that “[h]is choices will always be arbitrary, no matter how principled he may be, for with no objective standard to guide and restrain him, they must be personal choices; and they may be arbitrary in a far more invidious sense than that.” Id., 247 Pa.Super. at 127-28, 371 A.2d at 1360.

My concerns today are less with the legality of the rules of criminal procedure and more with the arbitrary standards through which they are employed. I do not advocate delimiting the prosecutor of all discretion. However, I am of the belief that to afford guidance to all of the Commonwealth attorneys and to guarantee equal protection to all citizens of the Commonwealth, the ARD program should contain and should be implemented according to uniform guidelines.

In Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986), the Pennsylvania Supreme Court recognized its

liberty to “interpret our Constitution in a more generous manner than the federal courts” have interpreted the Constitution of the United States____ In the equal protection area, however, we have chosen to be guided by the standards and analysis employed by the United States Supreme Court and have adopted those standards and analysis in interpreting and applying Article I, section 26 of our Constitution.

Id. 512 Pa. at 83, 515 A.2d at 1362-63 (citations and footnote omitted).

If we were to engage in an equal protection analysis, our duty would be to determine whether the State has created a classification which promotes unequal treatment. I do not think that such an evaluation is necessary here, as the Rules of Criminal Procedure do not, on their face, “carve out classifications or single out any distinct class of persons for unequal treatment, but by its terms applies equally to all.” Id. 512 Pa. at 85, 515 A.2d at 1363. Additionally, as our supreme court recognized further:

Any equal protection problem with arbitrary classifications can ... arise only upon enforcement of the Act when the prosecutor or agency chooses to prosecute a violator under one or the other section. But that is a different issue than whether the Act creates classifications that may deny equal protection of the laws—that is an issue of “selective enforcement” by the prosecutor/agency. The United States Supreme Court addressed this precise issue in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), and unanimously held that an act which contained two separate penalty provisions proscribing identical conduct does not violate equal protection principles.

Id. 512 Pa. at 85, 515 A.2d at 1363-64. See also James v. SEPTA, 505 Pa. 137, 143-44, 477 A.2d 1302, 1305 (1984).

Here, although ARD certainly may be classified as a penalty provision, it is nevertheless a beneficial choice, or at least an attractive option open to a defendant who has been charged with driving drunk. Under Pa.R.Crim.P. 176, “[a]fter criminal proceedings in a court case have been instituted, the attorney for the Commonwealth may move, before a judge empowered to try court cases, that the case be considered for accelerated rehabilitive disposition.” Once ARD proceedings are initiated, the defendant has a host of opportunities before him to prove himself worthy of the program and, in the end, to have the charges against him dismissed and to have his arrest record expunged. Pa. R.Crim.P. 185, 186. Conversely, if the defendant is not recommended to the court as a candidate for the ARD program, his case will proceed just as any other. See Commonwealth v. Melnyk, 378 Pa.Super. 42, 548 A.2d 266 (1988). See Lutz, supra.

Cognizant of the fact that most district attorneys’ offices have implemented procedures designed to insure that similarly situated defendants will receive similar treatment under like circumstances, my concern is not that prosecutorial discretion will be abused intra-county. I would like to see safeguards in the form of standards. I believe that uniform rules would help guarantee that when an individual crosses a county line, he will not become a criminal excluded from ARD consideration, simply because he was caught in a county with more stringent standards. See Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988) (cut-off point of .250% served the purpose of ARD). Compare Knowles with the instant case (the district attorney determined that any individual whose blood alcohol level exceeded .230% may not qualify for ARD treatment). Here, Hyde’s blood alcohol level was .245%. Thus, had he been stopped in Monroe County (the situs of Knowles) rather than in Bedford County, he may well have been eligible for admission into the ARD program.

I neither condone drunk driving nor purport to suggest an appropriate cut-off point for admission into an ARD program. Rather, I acknowledge the value and benefits of the ARD program. However, enforcing the policy behind it, to wit, the rehabilitation of the offender and the protection of society (see Knowles, supra., 373 Pa.Super. at 206-07, 208-09, 540 A.2d at 940, 941), should be the Commonwealth’s goal. In order to accomplish this end, I believe it is incumbent upon the district attorneys in the various counties to enact uniform standards and procedures which will ensure that the same unlawful activity yields the same punishment. Currently, Pennsylvania employs arbitrary standards in admitting candidates or precluding admission into the ARD program as among counties.

My understanding of the procedures utilized in drunk driving cases is as follows. There is a presumption that one is intoxicated (for purposes of operating a motor vehicle) when one manifests a certain amount of alcohol in the bloodstream. Once a defendant is found behind the wheel of a vehicle with a blood alcohol level which assumedly affects his ability to drive safely, then he may be deemed intoxicated for statutory purposes and his case should be taken to the district attorney. At that time, the district attorney, in his/her discretion, enforces (and should enforce) the applicable rules against the defendant.

I do not dispute the prosecutor’s duties. However, I am strong in my conviction that all defendants should be subject to the same rules. All defendants should be afforded equal treatment no matter where in the Commonwealth they are apprehended. By applying the laws and the courses of action evenhandedly, all defendants will be affected by the same procedures in the same way. By enacting uniform rather than arbitrary standards, those who violate the law will know their punishment, and those implementing and enforcing the law will understand their limits.

In Kindness, supra., the majority stated: “[i]t may very well be that uniform statewide standards for ARD admission are desirable, but not everything that is desirable is constitutionally required.” Id., 247 Pa.Super. at 110, 371 A.2d at 1351. I believe, conversely, that in a mobile society such as ours, the type of precedent which I propose has become a necessity. Thus, while I agree with the majority that “[a] defendant’s admission into an ARD program is not a matter of right but rather a privilege,”1 fail to see why every individual residing in this Commonwealth should not have the same rights and privileges as those in similarly situated positions. See James v. SEPTA, 505 Pa. at 149-50, 477 A.2d at 1308 (Larsen, J., dissenting) (discussing the standards to be employed when evaluating an equal protection question).

      . See Commonwealth v. Lutz, 508 Pa. 297, 311-12, 495 A.2d 928, 935 (1985) (discussing 75 Pa.C.S.A. §§ 1552, 3731).

      . This concurrence will not reach the issue of the rules’ constitutionality.

      . Pa.R.Crim.P. 160 was rescinded January 31, 1991, effective July 1, 1991, and replaced by new Rules 160, 161, and 162. See, in particular, Pa.R.Crim.P. 160(b)(2) (new rule) and 160(c)(2) and (d) (new rule). The rules presently in effect appear in volume 525 of the Pennsylvania State Reports. See Committee Introduction, Pa.R.Crim.P. 160, et seq., at 525 Pa. at CL-CLV. See also id. at CL-CLXV. Rules 160-162 address the availability of and procedures for ARD in summary cases.

      . Judge Spaeth dedicates most of his discussion to the question of the constitutionality of the rules of criminal procedure as they relate to ARD. Here, I do not address that issue, but rather concentrate on the unequal application of these rules as between counties.

      . I realize, of course, that the trial judge has the power to dismiss a case under the appropriate circumstances, or to order probation. The discussion above is not meant to discount these possibilities.

      . Majority opinion, at 447.

      . The majority states: “The emphasis in Bedford County appears to be on the protection of society.” Majority opinion, at 447. The Lutz case and its progeny make clear that in considering one’s admission to an ARD program, the Commonwealth must take into consideration the protection of society and the defendant’s rehabilitative needs and abilities. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). I do not believe that the majority should confine itself to a discussion of only one prong of the test; whether the defendant can benefit from ARD is an equally strong concern. See also Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930 (1990) (en banc).


author: TAMILIA, Judge:

text:
    594 A.2d 708
    Carole A. CALLOWAY, Appellant, v. Thomas W. CALLOWAY.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed July 25, 1991.

      Rebecca Nelson Tortorici, York, for appellant.

      William H. Poole, Jr., York, for appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the August 22, 1990, Order dismissing appellant’s petition for contempt from a previous Order of support, and suspending the Order of support retroactive to January 10, 1989.

Appellant, Carole Calloway, applied for child support by filing a complaint against appellee, Thomas Calloway, on April 8, 1982. On May 12, 1982, appellee acknowledged paternity of the children involved and a support Order for those children was entered. On March 19, 1986, after two petitions for amendment were filed by appellee, he was ordered to pay $105 per week for the support of his five children. At the time this Order was entered against appellee, he was employed full-time at the Cole Steel Corporation. On January 10, 1989, he was placed on medical leave because of hip problems and eventually had a hip replacement operation. While on leave, his medical benefits were $155 per week, and while on such benefits, he continued his part-time painting business. When Cole learned of this, they fired appellee. He filed a grievance through his union but did not prevail. Appellee appealed, but before there could be a disposition of his appeal, Cole went out of business. Hence, it is impossible for the appellee to be reinstated. Appellee has claimed consistently that under the circumstances his firing was unjustified.

Since his firing, appellee has been conducting his painting business but is barely making enough money on which to live. His $155 per week medical benefits were consumed by reasonable living expenses. Currently, appellee is materially restricted in his job alternatives because of his physical condition.

On August 22, 1990, a hearing was held to determine if appellee was in contempt of court for failing to pay support for his five children. The court held the appellee was not in contempt of court, and at the request of appellee, suspended the support Order retroactive to January 10, 1989. The court-found although appellee was not faultless in failing to notify Cole before resuming his painting business, appellee did not act in bad faith sufficient to have that fact held against him and, under the circumstances, suspension of the support Order was reasonable.

Appellant now argues the trial court abused its discretion by retroactively suspending the Order of support when it lacked jurisdiction to do so because appellee had not filed a petition to modify the existing Order. In this contention, appellant is correct.

Our scope of review in child support cases is limited. It is within the trial court’s discretion to determine the parameters of a support Order, and its judgment should not be disturbed absent a clear abuse of discretion. Meltzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Such abuse exists where there is insufficient evidence to sustain the Order. Dechter v. Kaskey, 379 Pa.Super. 45, 549 A.2d 588 (1988); Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988).

Unquestionably, the court had it within its discretion to dismiss the contempt action as contempt is founded on failure to comply with a valid support Order but also requires a finding of present ability to pay. Contempt in support actions is governed by 23 Pa.C.S. § 4345, Contempt for noncompliance with support order, providing for punishment by jail or fine, and procedurally by Pa.R.C.P. 1910.-21, Civil Contempt. Here, the court made findings of fact that during the period in question, appellee was unemployed, or marginally employed, and lacked the ability to pay. His present situation was such that he was unable to pay toward the arrearages and, therefore, the court was unable to impose a contempt Order, since there was no basis upon which the appellee could purge himself of a civil contempt. Civil contempt by its nature is curative and not punitive; therefore, the inability to impose an Order which the appellee could fulfill required that the petition for civil contempt be dismissed.

The court, however, exceeded its authority, in suspending the Order retroactive to January 10, 1989. Unquestionably, the court had continuing jurisdiction over the support Order, pursuant to 23 Pa.C.S. § 4352, Continuing jurisdiction over support orders, which provides as follows:

(a) General rule.—The court making an order of support shall at all times maintain jurisdiction of the matter for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding the order without limiting the right of the obligee to institute additional proceedings for support in any county in which the obligor resides or in which property of the obligor is situated. A method shall be developed for the automatic review of each order of support at least once every three years from the date of establishment or the most recent review, for the purpose of making any appropriate increase, decrease, modification or rescission of the order. If, however, it is determined that such a review would not be in the best interests of the child and neither parent has requested a review in the interim, no review shall be required.

Id. However, this jurisdiction may not be exercised in a vacuum and a proceeding on one facet of a support action such as a contempt matter, or visitation or custody proceedings may not be a basis for remitting arrearages by entering a retroactive modification of the support Order. While the Act requires a means for automatic review every three years from date of the Order or the most recent review for purpose of modification or rescission, no review is required if it is not requested in the interim. Retroactive modification of a support Order is not permitted on or after the date it is due except during the period pending a petition for modification. Mosier v. McCaughtry, 387 Pa.Super. 405, 564 A.2d 241 (1989) (a court does not have jurisdiction to modify accumulated arrearages before a petition to modify is filed). Under certain conditions, the statute does provide for modification for an earlier period than the date of the petition if for some reason petitioner was precluded from filing a petition. Section 4352(e) provides as follows:

(e) Retroactive modification of arrears.—No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of the emancipation of the child for whose support the payment is made.

Id.

To avail oneself of these remedies, a petition for modification must be filed with pleadings conforming to Rule 1910.19, Support Order. Modification. Termination, which requires “[a] petition for modification ... shall specifically aver the reasons for the relief sought.” Id. The Rule further states: “The procedure ... shall be in accordance with Rule 1910.10 et seq.” Id. This Rule requires that a material change in circumstance be proven and the same procedure be followed as in an original action. See Explanatory Note—1981. The least of the reasons for proceeding in this fashion is to allocate the burden of proof and to give notice to the opposing party as to the matters on which it must defend. Because of implications of federal and state policies which, in many cases, share in the burden of supporting dependent children, modification or termination of support Orders must undergo rigorous scrutiny and Order may not be arbitrarily rescinded. Haley v. Haley, 379 Pa.Super. 323, 549 A.2d 1316 (1988). Since the issue of retroactive modification was not properly presented or fully explored with notice to appellant, the Order concerning it must be vacated and the arrears and support Order reinstated pending appellee’s filing of a petition and review by the court.

The Order dismissing the petition for contempt is affirmed, and that part of the Order retroactively suspending the Order of support to January 10,1989, is hereby vacated. Case remanded to the trial court for proceedings consistent with this Opinion.

Jurisdiction relinquished.


text:
    594 A.2d 711
    Stephen W. PEFFER, Appellant, v. PENN 21 ASSOCIATES, Morris Schwab, Holy Spirit Hospital of the Sisters of Christian Charity, and Hayes, Large, Suckling, Fruth and Wedge.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed July 25, 1991.

      John P. Hohenadel, Lancaster, for appellant.
    Stephen L. Grose, Harrisburg, for appellees.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Stephen W. Peffer, appellant, takes this appeal from the July 19,1990, Order granting appellees’, Penn 21 Associates and Morris Schwab, motion for summary judgment.

On February 28, 1985, appellant, an employee of Steel Building Erectors, Inc., was seriously injured while working on a construction site owned by Penn 21 Associates. Appellant averred that while standing on a ladder, tightening bolts in the steel beams which were to become part of the structure’s roof, the ladder kicked out from under him causing him to be thrown through an opening in the flooring to the ground 48 feet below.

Almost two years later, in February, 1987, appellant initiated a negligence suit against Penn 21 Associates, the owner of the building under construction; Morris Schwab, general partner of Penn 21; the Holy Spirit. Hospital of the Sisters of Charity, which it was believed owned the property on which the building was being constructed; and the architectural firm of Hayes, Large, Suckling, Fruth and Wedge. Howard Hogg, the general contractor on the construction project, was joined as an additional defendant but later the action against him was discontinued with prejudice. The parties also stipulated to discontinue without prejudice the action against Holy Spirit. On June 21, 1989, the court granted defendant Hayes’ motion for summary judgment. Penn 21 and Schwab remain as the sole defendants in this suit and appellees herein.

Appellant argues the court erred by granting appellees’ motion for summary judgment because a genuine issue of material fact existed; whether appellant’s working on a ladder in an area which allegedly did not conform with safety standards constituted a special danger or peculiar risk, thereby invoking appellees’ liability for personal injuries resulting from his fall.

This Court will overturn a trial court’s Opinion only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 551 A.2d 283 (1988). Summary judgment should not be entered unless the case is free from doubt. Hathi v. Krewstown Park Apts., 385 Pa.Super. 613, 561 A.2d 1261 (1989).

In its Opinion granting appellees’ motion for summary judgment, the court discussed the liability of employers, owners, contractors and subcontractors for work-related injuries suffered by employees on the job. As stated supra, the appellees are the owners of the construction project at which appellant was hurt. Appellees contracted with general contractor Hogg who, in turn, contracted with subcontractor Steel Building Erectors, Inc., appellant’s employer. The relationship between the parties is identical to that which existed in the leading case on this issue, Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987). The Ortiz court reiterated the general Restatement of Torts, which states an “employer of an independent contractor is not liable for the physical harm caused by another by an act or omission of the contractor or his servants.” Id., 365 Pa.Superior Ct. at 52, 528 A.2d at 1357. See Restatement (Second) of Torts, § 409 (1965). An exception to this general rule of non-liability arises where the work to be performed by the independent contractor, herein appellant’s employer, involves a special danger or peculiar risk. Pennsylvania has adopted this exception to an employer’s non-liability as set forth in sections 416 and 427 of Restatement (Second) of Torts:

§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
§ 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

Id. Ortiz held a special danger or peculiar risk exists where:

1) the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary [sic].

Ortiz, 365 Pa.Superior Ct. at 53, 528 A.2d at 1358.

Appellant alleged his work area did not comply with federal and state safety regulations and contends appellees should have foreseen the possibility of a fall such as that suffered by appellant. Considering these allegations in the light most favorable to appellant as plaintiff, we agree with the trial court and find the appellees could have foreseen the risk of workers falling from the upper decks if adequate safety precautions were not taken. Violation of safety conditions alone, however, cannot be a basis for carving out exceptions to the rule that the owner is not liable for injuries incurred by employees of a subcontractor, as to do so would nullify the rule for all practical purposes since many, if not most, industrial accidents can be attributed to a failure to comply with safety regulations of either state or federal agencies.

The Ortiz test is, however, a two-part test, the second prong of which the appellant has failed to satisfy. A peculiar risk exists if the danger encountered is different than that normally associated with the general type of work being done. Appellant was employed by a company which is in the business of erecting buildings. More often than not, constructing any type structure necessitates above the ground work requiring the use of a ladder. The risk of falling from a ladder is an ordinary risk associated with the construction of all buildings.

Appellant’s allegations of safety violations existing in the work area surrounding the ladder from which he fell were not substantiated. Also, in addressing the identical question (i.e. safety violations allegedly causing injury), the Ortiz court stated:

In order for the liability concepts involving contractors to retain any meaning, especially in industries such as construction where almost every job task involves the potential for injury unless ordinary care is exercised, peculiar risk situations should be viewed narrowly, as any other exception to a general rule is usually viewed.

Ortiz, 365 Pa.Superior Ct. at 55, 528 A.2d at 1359. Citing Marshall v. SEPTA, 587 F.Supp. 258, 264 (E.D.Pa.1984).

In this case, the trial court correctly found construction work on a ladder while tightening bolts of a steel structure is not a peculiar risk for an individual employed by a steel erector company. The exception to the general rule of non-liability of the employer of an independent contractor is not applicable to the case presently before us and summary judgment in favor of appellees was proper.

Order affirmed.

      . For liability purposes, Ra-EI, owner of the construction site, was the employer of Ortiz’ employer, independent contractor A-V Brick Corporation, and potentially liable for injuries suffered by Ortiz. This is so despite the fact it was general contractor Arnko Builders, and not Ra-El, who contracted with A-V. See Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 323 A.2d 300 (1974). Accordingly, here, appellees are considered the employer of appellant for the purpose of possible personal injury liability.

      . As noted in footnote 2 of the Ortiz Opinion, the terms "peculiar risk” and "special danger” may be used interchangeably. Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987).

      . The broader implication of the restatement would be more consistent to application to third parties, who might, for example, be injured by falling debris from overhead work or uncontrolled acid spray from cleaning buildings. The employer/landlord could be liable for injuries from toxic waste he buried on the premises, a buried power line of which a contractor had no knowledge, Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616 (1984), or failure to provide adequate lighting at night in a work area controlled by the landowners for work which was inherently dangerous. McDonough v. U.S. Steel Corp., 228 Pa.Super. 268, 324 A.2d 542 (1974). Ortiz did not amplify upon this aspect of the restatement, although in his concurring statement, Cavanaugh, J., would have limited the application of the restatement to third parties.