author: DEL SOLE, Judge: BROSKY, Judge,

text:
    530 A.2d 1357
    BLAIR DESIGN AND CONSTRUCTION CO., INC., v. Michael J. KALIMON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1987.
    Filed Sept. 8, 1987.

      Kurt A. Miller, Pittsburgh, for appellant.
    John W. Murtagh, Jr., Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Before us is an appeal from the Order entered May 2, 1986. The Order consisted of a preliminary injunction prohibiting Appellant from conducting business in violation of a restrictive covenant he entered into with Appellee pursuant to an employment contract.

By his brief, Appellant raises the following issues:
1. Can a restrictive covenant which specifically prohibits a former employee only from dealing with customers named on a list attached to the employment agreement be construed to prohibit the former employee from dealing with customers not named on the list?;
2. Is the non-competition covenant involved in this action unenforceable because, as interpreted and enforced by the court below, its prohibitions are broader than necessary to protect the former employee’s interests?;
3. Is the non-competition covenant involved in this action unenforceable because it is not reasonably limited in duration?; and,
4. Is the injunction issued by the lower court overbroad and indefinite?

The underlying facts of this case may be briefly summarized as follows. Appellee is in the business of retail store construction and remodeling. In December of 1983, Appellant was hired by Appellee to work as a project manager. Subsequent to commencement of work, Appellant signed an employment agreement which contained the following provisions:

DISCLOSURE OF INFORMATION: The Employee recognizes and acknowledges that the list of the Employee’s [sic] customers which is attached hereto, and made a part hereof and designated Exhibit “A”, and any new customers obtained during his employment with Em-. ployer, constitute a valuable, special and unique assets [sic] of the Employer’s business. The Employer [sic] further recognizes and acknowledges that the Employer’s customers are not located in any single geographical area but are situated throughout the entire United States of America. The Employee will not, during or after the terms of his employment, disclose the list of the Employer’s customers or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatsoever. In the event of a breach or threaten to breach of the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the employee from disclosing, in whole or part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed as prohibiting the Employer from pursuing any other remedies available to the Employer from such breach or threatened breach, including the recovery of damages from the Employee. RESTRICTIVE COVENANT: For a period of three (3) years after the termination of this Agreement for any reason, the Employee will not directly or indirectly, own, manage,' operate, control, by [sic] employed by, participate in, or be connected in any manner with the ownership management, operation or control of any business similar to the type of business conducted by the Employer at the time of termination of this Agreement, which deals in any manner or solicits any business from customers named on the list referred to in the immediately preceding paragraph. In the event of any actual or threatened breach by the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the Employee from owning, managing, operating, controlling, being employed by, participating in, or being in any so connected with any business similar to the type of business conducted by the Employer at the time of termination. Nothing herein stated shall be construed as prohibiting the Employer from prusuing [sic] any other remedies available to the employer including the recovery of the damages from the employee. (Emphasis supplied).

In February of 1985, Appellant terminated his employment with Appellee so that he could pursue a career in the painting business. However, this plan did not transpire; therefore, Appellant entered the remodeling business as an independent contractor. Appellant proceeded to either bid upon, or perform construction work on, certain Corn Dog, Hot Sam Pretzel, and Original Cookie stores. Although these companies had been customers of Appellee, they did not appear on the customer list designated as Exhibit “A” in the employment contract. Likewise, they were not new customers obtained during Appellant’s tenure with Appellee. Despite protests received by Appellee, Appellant continued to conduct business with these clients.

Appellee thereafter filed a complaint in equity requesting preliminary and permanent injunctive relief. On February 25, 1986, following a hearing on this matter, the Honorable Maurice Louik denied Appellee’s request for a preliminary injunction. Upon receiving information that Appellant had performed work for, and was continuing to solicit work from, the Original Cookie store chain, Appellee filed another complaint in equity. A preliminary injunction hearing was scheduled to be held before the Honorable I. Martin Wekselman on May 2, 1986. Following arguments by both parties, Judge Wekselman granted Appellee’s request for a preliminary injunction. The hearing court fashioned the Order, sub judice, which provides:

Michael J. Kalimon ... is preliminarily enjoined from doing business with customers of the plaintiff Blair Design and Construction Company, Inc. in violation of the restrictive covenants contained in the contract between the parties, or otherwise interfering with the plaintiff’s relationship with plaintiff’s customers in any manner or method whatsoever.

This timely interlocutory appeal follows. See Pa.R.A.P. 311(a)(4) (an appeal may be taken as of right for an order granting an injunction).

Preliminarily, we discuss our appellate scope of review. A preliminary injunction is an extraordinary remedy which should be granted only after careful deliberation by the hearing court has resulted in the conclusion that such relief is a necessity. Beck Computing Services, Inc. v. Anderson, 362 Pa.Super. 505, 508, 524 A.2d 990, 991 (1987). Prior to granting a preliminary injunction, four essential prerequisites of law must be found by the hearing court to coalesce:

immediate and irreparable harm which could not be compensated by damages; the greater injury would result by refusing it than by granting it; that it.would properly restore parties to their status as existing immediately prior to the alleged wrongful conduct; and that the activity sought to be restrained is actionable and that an injunction is reasonably suited to abate such activity.

Id., 362 Pa.Superior Ct. at 508, 524 A.2d at 991-992. See New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 392 A.2d 1383, 1385 (1978).

Our scope of review in these matters is narrowly defined. It is not the function of this court to explore the merits of the controversy. Rather, our examination of the record must be confined to whether or not there exists any apparently reasonable grounds for the hearing court’s actions. Ogontz Controls Co. v. Pirkle, 346 Pa.Super. 253, 257, 499 A.2d 593, 595 (1985). Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the chancellor. Sidco Paper Co. v. Aaron, 465 Pa. 586, 600, 351 A.2d 250, 257 (1976).

In keeping with our appellate scope of review, we shall refrain from addressing Appellant’s contentions with respect to the merits of the covenant. Such determinations are reserved to the chancellor in equity. However, it is within the purview of this court to discern whether the hearing court acted reasonably in enforcing the covenant and in applying relevant principles of law.

We have examined the record and find that the hearing court acted reasonably in enforcing the covenant. Testimony elicited during the hearing demonstrated that the restrictive covenant was needed to protect Appellee’s legitimate business interests. Appellee’s associate explained that it took many years to develop Appellee’s client list. This list was regarded as Appellee’s most important asset. During the hearing, the Appellee adequately described a course of conduct taken by Appellant which threatened Appellee’s interests in maintaining its exclusive clientele list. Thus, the enforcement of an anticompetition agreement that was to prevent this from occurring was an appropriate remedy.

Furthermore, there is not indication that the hearing court either relied upon palpably erroneous law or misconstrued applicable law. Equitable enforcement of restrictive covenants is permitted when they are incident to an employment relation between the agreement’s parties, they are reasonably necessary for the protection of the employer, and they are reasonably limited in duration and geographic extent. Sidco supra, 465 Pa. at 591, 351 A.2d at 252. The record demonstrates that the restrictive covenant was signed by both parties incident to Appellant’s contract of employment. The clause, as pointed out, supra, was written expressly to protect Appellee from business competition by former employees. Further, the terms of the covenant did not manifest unreasonable limitations in either duration or geographic extent.

Accordingly, we conclude that the hearing judge’s decision to uphold the restrictive covenant was in accordance with the legal principles established in this Commonwealth.

Next, we must determine whether the hearing court acted reasonably in fashioning the preliminary injunction. The breadth of the injunction was confined to business relations in violation of the restrictive covenant entered into by the parties. By his brief, Appellant argues that the preliminary injunction is overbroad as applied to Corn Dog, Hot Sam Pretzel, and Original Cookie, which are Appellee’s customers. Appellant relies on the fact that these stores were not specified on the customer list attached to the employment contract and had already been Appellee’s clients prior to, and during, Appellant’s tenure. Arguably, these customers fall within a gray area of the restrictive covenant inasmuch as they are not listed as Appellee’s customers or were acquired after Appellant was hired. Nonetheless,- the record is replete with testimony to the effect that Appellant knew that Corn Dog, Hot Sam Pretzel, and Original Cookie were Appellee’s customers at the time he was employed by Appellee. Moreover, Appellant was even assigned to work on these accounts during his employment with Appellee. (N.T. 31, 32, 40).

From these undisputed facts, we conclude that the hearing court acted reasonably in holding that Appellant’s knowledge of the status of these stores as Appellee’s customers established grounds on which to restrain Appellant from dealing with Corn Dog, Hot Sam Pretzel, and Original Cookie under the restrictive covenant.

We are mindful that a chancellor may decide later, upon final hearing, that the restrictive covenant was improperly construed. A determination of that nature would be proper by virtue of the fact that it is the chancellor’s function to address the merits of the case. If, for any reason, the chancellor should find error with the preliminary injunction, Appellant would not be without recourse. It was established during the preliminary injunction hearing that bond would be set at $25,000.00 in the event a chancellor, by final decree, disposes of the instant case in a contrary manner.

Accordingly, we affirm the granting of the preliminary injunction.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I must respectfully dissent from the majority’s affirmance of the preliminary injunction fashioned below. I concur in the majority’s finding that the hearing court had reasonable grounds for the granting of an injunction enforcing the restrictive covenant. However, I feel that appellant’s fourth issue on appeal, challenging the breadth of the injunction, has merit.

It is well-established proposition that the scope of appellate review with respect to the grant, refusal, or continuance of a preliminary injunction, is very limited. We may only determine if there were any apparently reasonable grounds for the actions of the court below; we may not further consider the merits of the case, or pass upon the reasons for or against such action, unless it is plain that no such grounds existed, or that the rules of law relied upon were palpably wrong or clearly inapplicable. Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250, 257 (1976); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816, 818 (1973); Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748, 750 (1972). Moreover, to determine if reasonable grounds existed for the action of the hearing court, an appellate court must review the evidence below to discern if the three prerequisites for the grant of a preliminary injunction were present: a clear right to relief in the plaintiff, an immediate need for relief, and the danger of irreparable injury to the plaintiff in the absence of an injunction. Sidco, supra; Credit, supra; Zebra, supra.

With this in mind, it is clear that we may not reach the merits of the covenant itself unless we find that the record below is totally devoid of any evidence to support the court’s decision to enforce the covenant, or that the court patently misapplied the law on post-employment restraints. Any decision on the merits of the covenant, with respect to its breadth in terms of proscribed activity, geographical area, and duration, are reserved to the chancellor in equity.

Preliminary review of the record indicates that the hearing court’s findings were not totally unsupported by the evidence, or the result of misapplied law.

Appellee Blair presented testimony as to why the anti-competitive clauses in appellant’s employment agreement were needed to protect the legitimate business interests of Blair, and that appellant was aware that he was prohibited from soliciting business from Blair’s customers for a period of three years. I question the hearing court’s interpretation of the term “customers” as it relates to the agreement’s prohibitions, and the ultimate chancellor in equity may find fault with the court’s broad reading of the term. However, I cannot deem this interpretation to be totally devoid of evidentiary support, or patently unreasonable.

Furthermore, I cannot aver that the hearing court relied upon palpably inapplicable law, or committed clear error in its reading of the law. It is not unreasonable as a matter of law for an employer to assert a protective interest in the goodwill it has developed, by virtue of effort and expenditures, over a period of time, as to customers acquired prior to an employee’s tenure, as well as during his employment. Sidco, supra, p. 254. Furthermore, a three year prohibition is not, per se, illegal, if related to the employer’s legitimate business interests. See Restatement of Contracts, Second, § 188, Comment d. Hence, while a chancellor in equity may ultimately decide to limit the scope of the prohibition in terms of customers involved and time span, the hearing court did not uphold any terms in the covenant which were clearly contrary to law.

As such, I do not feel that any analysis of the first three contentions on appeal, with respect to the actual merits of the covenant, is appropriate. This leaves appellant’s fourth contention: in light of the three prerequisites for a preliminary injunction, is the injunction overbroad or indefinite?

With respect to the latter two criteria, a need for immediate relief and the possibility of irreparable harm, I am in accord with the hearing court that the testimony presented supports a finding that appellant’s actions constituted both immediate and irreparable harm. Clearly, appellant had been submitting bids on projects involving Corn Dog, Hot Sam Pretzel, and Original Cookie stores. As a further matter, appellant did not indicate an intention to blanketly refrain from submitting bids on jobs involving Blair customers apart from these three chains. The threatened loss of goodwill to Blair alone, as a result of appellant’s actions, mandated an immediate preliminary determination of the protection afforded Blair by the covenant, and an injunction enforcing that protection. It is only with respect to the initial criterion, the clarity of Blair’s right to relief as to all past and present customers, that I discern a problem of overbreadth with the injunction as issued.

The injunction fashioned by the hearing court enjoins appellant from:

... doing business with customers of the plaintiff Blair Design and Construction Company, Inc. in violation of the restrictive covenants ..., or otherwise interfering with the plaintiff’s relationships with plaintiff’s customers in any manner or method whatsoever____

The hearing court did not find the omission of Corn Dog, Hot Sam Pretzel, and Original Cookie, from the customer list to be problematic in its determination of the appropriate prohibition to be issued against appellant. Clearly, the hearing court found appellant’s subjective knowledge as to the status of these three chains as customers of Blair to be some evidence that appellant was well aware of the identity of Blair’s customers, and consequently relied upon appellant’s knowledge, in addition to the covenant itself, to fashion an injunction barring appellant from contact with all past and present customers of Blair, including these three. The majority, moreover, expressly holds that the hearing court acted reasonably in placing reliance upon appellant’s subjective knowledge when it fashioned an injunction restraining appellant from further dealings with Corn Dog, Hot Sam Pretzel, and Original Cookie. This, however, cannot be deemed the clear and indisputable intent of the parties from the language of the covenant. The covenant specifically refers to a prohibition with respect to customers on the list, and new customers acquired during appellant’s employment. While a chancellor in equity may determine at a later date, that the covenant was intended to include customers not specified on the list, it cannot be said at this time that Blair has a clear right to restrain appellant from dealing with, and submitting bids to, omitted customers, such as Corn Dog, Hot Sam Pretzel, and Original Cookie. Even the majority concedes that the omitted customers fall within a “gray area of the restrictive covenant.” Taken at face value, the hearing court’s restraint is, in reality, a resolution on the merits of the interpretation question: it restrains appellant from dealing with Blair customers not specified on the list, based upon its interpretation of the intent behind the covenant. This, clearly, was in excess of the hearing court’s function. In affirming the hearing court’s restraint as to omitted customers such as Corn Dog, Hot Sam Pretzel, and Original Cookie, the majority places its imprimatur upon the hearing court’s usurpation of the function of the chancellor in equity. I, however, cannot condone the hearing court’s impropriety, and would hold the injunction to be overbroad in restraining appellant from further dealings with omitted customers, such as these three.

With respect to customers on the list, as well as new customers acquired during appellant’s tenure, I feel that the hearing court’s restraint was appropriate. If nothing else, Blair is clearly entitled to relief with respect to them. My difficulty here, however, results from the hearing court’s decision to issue a blanket restraint. Because the court below took the position that all Blair customers were “off limits” to appellant, it did not make any factual findings as to what companies became Blair customers after appellant was hired.

In light of the foregoing, I would modify the preliminary injunction, and remand the matter for further proceedings as follows: I would vacate the preliminary injunction with respect to those Blair customers that were already customers at the commencement of appellant’s employment, but who were omitted from the customer list attached to the employment agreement. I would affirm the injunction as to those customers specifically named on the customer list, as well as to those customers who were acquired by Blair during appellant’s period of employment, whose names would be determined by further hearing below.


source: Caselaw Access Project

author: MONTEMURO, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    530 A.2d 1362
    Tia Marie GLOMB, a Minor by her Guardian Ad Litem, John F. SALOPEK, Appellee, v. John and Marie GLOMB, Husband and Wife, Appellants, v. Sherry GINOSKY.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1986.
    Filed Sept. 10, 1987.
    Petition for Allowance of Appeal Denied Feb. 16,1988.

      James D. Crawford, Philadelphia, for appellants.
    Keith R. McMillen, Assistant District Attorney, Aliquippa, for appellee.
    Before CIRILLO, President Judge, and ROWLEY, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and POPOVICH, JJ.
   MONTEMURO, Judge:

Appellants John and Marie Glomb challenge the denial of their post-trial motions. A jury found that the Glombs had negligently hired and retained appellee Sherry Ginosky to care for the Glombs’ one-year-old daughter, appellee Tia Marie Glomb. Tia Marie, through her guardian ad litem, instituted this action against her parents, who in turn joined Ms. Ginosky as an additional defendant. We address two issues on appeal: (1) whether the trial court properly refused to allow the jury to apportion liability between the Glombs and Ms. Ginosky; and (2) whether the $1.5 million jury verdict in favor of Tia Marie was excessive. None of the Glombs’ arguments on these issues convince us that we should disturb the judgment of the Beaver County Court of Common Pleas. We therefore affirm.

The evidence at trial established the following facts. Tia Marie is the only child of John and Marie Glomb. At the time of Tia Marie’s birth, both John and Marie worked full-time. John’s employment required him to travel away from home up to six days a week. Marie worked Monday through Friday from 7:00 in the morning until 5:30 or 6:00 in the evening. The Glombs therefore employed baby-sitters to provide in-home care for Tia Marie during the work week. Sometime during the summer of 1982, Tia Marie’s second baby-sitter quit on short notice because of ill-health. In need of an immediate replacement, the Glombs hurriedly hired Sherry Ginosky at the beginning of August, 1982. Within two or three weeks, the Glombs began to notice problems. Small bruise marks appeared on Tia Marie’s face and body. When asked about the marks, Ms. Ginosky would offer explanations that John Glomb found implausible. On one occasion, John observed that his daughter seemed afraid of Ms. Ginosky. After the Glombs discovered a large, hand-shaped bruise on Tia Marie’s leg in late October of 1982, John threatened to discharge Ms. Ginosky if any more bruises appeared. Two days after this warning, however, Tia Marie suffered grave injuries to her face and head while in the care of Ms. Ginosky. The paramedics whom Ms. Ginosky summoned to the Glomb residence on the morning of November 3, 1982 found the child unconscious. Ms. Ginosky explained that Tia Marie had tripped over a toy and struck her head on a child’s rocking chair. While unconscious, Tia Marie experienced periodic seizures during which she stopped breathing. Her face and head were severely bruised, and she remained in the hospital for nearly two weeks. Since her discharge from the hospital, Tia Marie has required extensive physical rehabilitation to remedy the effects of the brain damage she suffered. The parties agree that Sherry Ginosky intentionally inflicted these injuries upon her charge.

As a result of the November 3, 1982 incident, the court appointed a guardian ad litem for Tia Marie. The guardian filed a complaint on Tia Marie’s behalf against John and Marie Glomb. The Glombs immediately joined Ms. Ginosky as a third party defendant. Following a trial at which Ms. Ginosky was neither present nor represented by counsel, the trial court directed the jury to find that Ms. Ginosky had “intentionally injured” Tia Marie and that the Glombs therefore “are entitled to indemnification” from Ms. Gino-sky. The court refused, however, to instruct the jury on apportionment of liability between Ms. Ginosky and the Glombs. At sidebar, the court informed counsel that the Glombs could seek “indemnification” from Ms. Ginosky in a separate proceeding if the Glombs ultimately bore the burden of satisfying a judgment. The jury returned with a $1.5 million verdict against both the Glombs and Ms. Gino-sky, jointly and severally. The trial court denied the Glombs’ motions for post-trial relief, and this timely appeal followed the entry of judgment. Although a three-judge panel of this court decided to affirm 'the judgment, we granted the Glombs’ petition for reargument before the court en banc.

We will address first the question of whether the trial court properly refused to allow apportionment of liability in this case and second the question of whether the verdict was excessive.

I.

As this case clearly illustrates, a decision to impose “joint and several” liability upon multiple tort-feasors, rather than to “apportion” liability between them, can alter significantly the risks of tort litigation. Imposition of joint and several liability enables the injured party to satisfy an entire judgment against any one tort-feasor, even if the wrongdoing of that tort-feasor contributed only a small part to the harm inflicted. Apportionment of liability, on the other hand, limits the liability of each tort-feasor to that portion of the harm which he or she caused. Thus, if the court imposes joint and several liability, and if only one of the joint tort-feasors is financially responsible, the injured party can attempt to recover the full measure of damages against that single source. The financially responsible tortfeasor who satisfies more than his or her equitable share of the joint liability then bears the risk of recovering the excess from his or her less responsible fellow tort-feasors. If, however, the court decides to apportion liability, the injured party bears the risk that the financial irresponsibility of one tort-feasor will defeat a complete recovery. See generally, W. Keeton & W. Prosser, Prosser and Keeton on Torts § 52 (5th ed. 1984). By asserting that the court should apportion liability, the Glombs seek to avoid the risk that Ms. Ginosky, their fellow tort-feasor, will lack the resources to satisfy her share of the $1.5 million verdict.

A court can direct the apportionment of liability among distinct causes only when the injured party suffers distinct harms or when the court is able to identify “a reasonable basis for determining the contribution of each cause to a single harm.” Restatement (Second) of Torts § 433A(1) (1965). See Martin v. Owens-Coming Fiberglass Corp., 515 Pa. 377, 528 A.2d 947 (1987); Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981). In the present case, the parties agree that Tia Marie has suffered a single harm. The availability of apportionment therefore hinges upon whether the party who seeks it can demonstrate some logical, reasonable or practical basis for assigning discrete portions of the over-all liability to discrete causes. See Martin v. Owens-Coming Fiberglass Corp., supra; Bryant v. Girard Bank, 358 Pa.Super. 335, 517 A.2d 968 (1986); Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249 (1984); Wade v. S.J. Groves & Sons Co., supra; Restatement (Second) of Torts § 433A comment d and § 433B(2); W. Keeton & W. Prosser, supra at § 52. Determining whether a “logical, reasonable or practical” basis for apportionment exists necessarily requires the court to consider the unique circumstances of each case. Although most single personal injuries defy objective apportionment, see Capone v. Donovan, supra, 332 Pa.Superior Ct. at 189, 480 A.2d at 1251, we should not allow one party to bear an entire liability if the particular facts of the case will support a reasonable alternative. On the other hand, we cannot allow an arbitrary apportionment merely to avoid imposition of entire liability. A court should not limit the innocent plaintiffs ability to recover the full measure of damages unless the court has some reasonable basis for doing so. See Restatement (Second) of Torts § 433A comments h and i.

As the Glombs correctly observe, this court in Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982), identified seven “factors” that courts often consider in determining whether liability is apportionable:

the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiff; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential^] responsibility of the defendants for the same injuria as distinguished from damnum.

Voyles, supra, 295 Pa.Superior Ct. at 130-131, 441 A.2d at 383 (quoting W. Prosser, Law of Torts § 46 n. 2 (4th ed. 1971)). See also Harka v. Nabati, 337 Pa.Super. 617, 487 A.2d 432 (1985). The Glombs suggest that the trial court in the present case should have considered these “factors” in determining whether to allow apportionment. The Glombs further suggest that if the court had applied this multipronged “test” supposedly established by Voyles, it would have allowed the jury to apportion liability between the defendants and the additional defendant. The Voyles court, however, did not intend to establish a single, cumulative “test” of apportionability. Nor did it intend to establish an exhaustive list of independent “tests.” The determination of whether to allow apportionment is entirely a practical inquiry into the circumstances of each case. In some cases, reference to one or more of the Voyles factors might aid the inquiry. See, e.g., Harka v. Nabati, supra (court considered differences between duties that each defendant owed to plaintiff, differences between causes of action asserted against each defendant and differences in evidence that plaintiff would use against each defendant to determine that causes of injury were apportionable); Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979) (court considered difference in time between each defendant’s negligent act and differences between duties that each defendant owed to plaintiff to determine that causes were apportionable). In other cases, the Voyles “factors” will not help the court to determine whether a “logical, reasonable or practical” basis for apportionment exists. See, e.g., Martin v. Owens-Coming Fiberglass Corp., supra (court cited Voyles but refused apportionment because jury could only “roughly approximate” from expert opinion evidence amount of lung disorder caused by smoking and amount caused by exposure to defendant’s asbestos: evidence did not address with “reasonable certainty” duration of exposure to each aggravation). Although a fixed and talismanic “test” would certainly foster ease of analysis and predictability of result, it would also blind the court to the particular problems of the case at hand and would lead, in some cases, to artificial and arbitrary apportionment.

In the present case, some of the Voyles factors would support apportionment of liability between the Glombs and Ms. Ginosky. For example, Ms. Ginosky breached a duty different from the one breached by the Glombs, just as the negligent driver in Lasprogata v. Qualls, supra, breached a duty different from the one breached by the negligent treating physician in the same case. The evidence that would establish the liability of Ms. Ginosky for assault, moreover, would not establish the liability of the Glombs for negligent hiring. Nevertheless, some of the Voyles factors weigh against allowing apportionment in this case. For example, the brain damage, disfiguration and attendant physical disabilities that Tia Marie has suffered are divisible for purposes of medical diagnosis, but they are indivisible for purposes of attributing them to either the willful misconduct of Ms. Ginosky or the negligent misconduct of the Glombs. Similarly, the misconduct of Ms. Ginosky and the misconduct of the Glombs have produced the same result: Tia Marie’s severe and debilitating injuries. Even if most of the Voyles factors superficially support apportionment, our analysis leaves us without a “logical, reasonable or practical” basis upon which a jury could even roughly apportion the percentage of Tia Marie’s injuries attributable to the Glombs’ negligence. None exists.

The negligence of the Glombs worked in tandem with the deliberate misconduct of Ms. Ginosky to cause a single harm to Tia Marie. Although the Glombs did not act in concert with Ms. Ginosky, they acted concurrently with her. Their ongoing neglect of Tia Marie’s welfare facilitated the ultimate infliction of the actionable harm. This case therefore differs from such cases as Lasprogata and Voyles, in which one party adds to or aggravates an injury already caused by another party. Had the Glombs heeded the signs of danger, they could have averted the harm altogether. Moreover, had Ms. Ginosky not acted upon the opportunity that the Glombs created, the Glombs’ breach of duty would have constituted injuria absque damno, a mere legal wrong without loss or damage, The drafters of the Restatement (Second) of Torts recognized that a court cannot direct apportionment between a party whose misconduct facilitates the infliction of a harm and a party who actually inflicts that harm:

One defendant may create a situation upon which the other may act later to cause the harm. One may leave combustible material, and the other set it afire; one may leave a hole in the street, and the other drive into it. Whether there is liability in such a case may depend upon the effect of the intervening agency as a superseding cause ... but if the defendant is liable at all, he is liable for the entire indivisible harm which he has caused.

Restatement (Second) of Torts § 433A comment i (emphasis added). The facilitative negligence of the Glombs in the present case is akin to the facilitative negligence of the party who leaves combustible material for another to ignite.

In Wade v. S.J. Groves & Sons Co., supra, we refused to apportion damages under circumstances analogous to those in the present case. The defendant landowners in Wade had permitted the co-defendant contractor to use their property as a landfill. During heavy rainfall, waste from the landfill washed onto the plaintiff’s adjoining property. We reversed the trial court’s decision to apportion ten percent of the resulting liability to the landowners and ninety percent to the contractor. We observed that the landowners “did not cause ten percent or any other reasonably identifiable percentage of the dirt or fill to be deposited on the [plaintiff’s] land” and that the court therefore lacked a reasonable basis for the apportionment. Wade, supra 283 Pa.Super at 474, 424 A.2d at 907. Likewise in the present case, we cannot attribute any “reasonably identifiable percentage” of Tia Marie’s injuries to the negligence of her parents. The Glombs, like the landowners in Wade, were facilitators of another party’s wrongdoing. As such, their negligence is bound inextricably to the wrongdoing of Ms. Ginosky. Because the trial court thus lacked any reasonably certain basis for isolating the Glombs’ proportionate “share” of the liability, it properly refused to submit the question of apportionment to the jury.

II.

The Glombs further contend that the excessiveness of the jury’s $1.5 million verdict warrants a new trial. We approach this claim ever-mindful that our standard of review is extremely narrow. The determination of damages lies initially within the discretion of the jury, which weighs the evidence and assesses the credibility of the witnesses. See Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974). The decision to grant or to deny a new trial on the ground of excessiveness lies, in turn, within the discretion of the trial court. We will not disturb the decision absent a clear abuse of that discretion. See Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963); Ammon v. Arnold Pontiac-GMC, Inc., 361 Pa.Super. 409, 522 A.2d 647 (1987); Powell v. City of Philadelphia, 311 Pa.Super. 526, 457 A.2d 1307 (1983). A verdict will stand unless its excessiveness shocks our sense of justice. See Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965); Ammon v. Arnold Pontiac-GMC, Inc., supra; Robert v. Chodoff, 259 Pa.Super. 332, 393 A.2d 853 (1978). This court has often reviewed excessive verdict claims in terms of six factors, which together provide a useful framework for our analysis:

(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will effect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

Ammon v. Arnold Pontiac-GMC, Inc., supra 361 Pa.Super. at 413, 522 A.2d at 649 (quoting Robert v. Chodoff, supra 259 Pa.Super. at 367, 393 A.2d at 871). See also Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986); Powell v. City of Philadelphia, supra; Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976). A proper evaluation of whether a verdict is excessive, however, eludes fixed standards and facile comparisons with past cases “because each case is unique and dependent on its own special circumstances.” Kemp v. Philadelphia Transportation Co., supra, 239 Pa.Superior Ct. at 382, 361 A.2d at 364. See also Trent v. Trotman, 352 Pa.Super. 490, 508 A.2d 580 (1986); Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980). In some cases, we have sustained verdicts without considering all six of the factors. See, e.g., Trent v. Trotman, supra (noted only severity of injuries, temporary disability, high medical expenses); Thompson v. Anthony Crane Rental, 325 Pa.Super. 386, 473 A.2d 120 (1984) (severity of injuries, objective physical evidence, interference with employment). In others, we have observed that not all of the factors were applicable under the particular circumstances. See, e.g., Ammon v. Arnold Pontiac-GMC, Inc., supra (out-of-pocket expenses and amount demanded in complaint held inapplicable).

The Glombs in the present case do not question the severity of Tia Marie’s injuries or that these injuries were “manifested by objective physical evidence.” Uncontradicted testimony at trial established that Tia Marie suffered severe bruising on her head and face, that she remained unconscious for several days after the beating, that she remained in the hospital for two weeks, that she has suffered and continues to suffer neurological impairment, that the resulting loss of normal “language skills” and “motor skills” has required several years of intensive physical therapy and that three-year-old Tia Marie was unable to walk by herself at the time of trial. The Glombs focus instead upon the progress that Tia Marie has made towards recovery, the prospects for future employment and the lack of evidence on the out-of-pocket expenses incurred by their daughter. Due consideration of these factors, they argue, would support the grant of a new trial based on the excessiveness of the verdict. We disagree.

Although Tia Marie’s recovery appears to have exceeded the grim prognosis of the physicians who treated her at the hospital immediately after the beating, testimony at trial indicated that Tia Marie will continue to suffer significant problems for the rest of her life. The expert medical testimony included that of Tia Marie’s pediatrician, Julius Vogel, Jr., M.D., who has treated the child since her discharge from the hospital. Dr. Vogel discussed Tia Marie’s continued lack of dexterity and inability to walk. Toward the close of his direct examination, the following exchange occurred:

Q. Doctor, based on your years of experience in pediatrics and your treatment of Tia Glomb in this case, are you able today to give us an opinion as to what you believe her prognosis is?
A. I would say that to some degree she will carry these injuries throughout life, the results of these injuries. It is very difficult to say whether it will be very mild or more than that, but to some degree this will have some effect.

N.T. 10/22/84 at 158. The testimony also included that of Suzanne Mills, M.D., who assisted in the treatment of Tia Marie at the hospital in November of 1982. Dr. Mills testified in part as follows:

Q. Doctor, for my next question I want you to assume that as of last Saturday [Tia Marie] was unable to walk by herself; that is, in order for her to walk, she would have to be aided or hold onto something. How does that fit in with your prognosis as to permanent damage?
A. That would be consistent with what we felt her prognosis to be at the time we discharged her.
Q. So you are saying then within a reasonable degree of medical certainty, that she will never be normal?
A. That is, most likely she will never be normal.
Q. In your opinion, will she require treatment in the future?
A. Yes. At the time of discharge, we strongly recommended rehabilitation in D.T. Watson or a similar rehabilitation institute for a prolonged period of time. We felt that she should stay in the institute for intensive therapy, because her situation was so poor.
Q. In terms of treatment, would that be the main course of treatment, therapy?
A. At that time that was what we felt would be the best treatment for Tia medically.
Q. What other kinds of treatment would there be besides therapy, if any?
A. At this time there’s no medically proven way of reversing diffuse brain injury. So you have to deal with trying to rehabilitate patients who have diffuse brain injury.

N.T. 10/23/84 at 221-23. Of course, the experts who testified at trial could not offer a unanimous and definite prognosis. We assign to the fact finder, however, the task of assessing the worth and credibility of the testimony on the issue of damages. See Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). The jury in this case certainly had ample reason to conclude that Tia Marie’s injuries will affect her permanently.

Similarly, the jury had reason to conclude that Tia Marie’s injuries will impair her future earning capacity. Because Tia was only fourteen months old on November 3, 1982, we look not to her ability to “continue with her employment” but to the effect of her injuries on her capacity to earn a living in the future. As we observed in Lewis v. Pruitt, 337 Pa.Super. 419, 430, 487 A.2d 16, 21 (1985), “[t]he test for impaired earning capacity is whether the economic horizon of the disabled person has been shortened because of the injuries sustained as a result of the tort-feasor’s negligence.” See also, Bochar v. J.B. Martin Motors, 374 Pa. 240, 97 A.2d 813 (1953). Although none of the evidence at trial directly addressed the issue of future earning power, the jury could have inferred from the evidence that Tia Marie’s potentially permanent disabilities will shorten considerably her “economic horizon.”

We find sufficient evidence in the record to justify the verdict of the jury in this case. Given the severity of the injuries, the ability of the fact finder to ascertain the extent of those injuries through objective evidence, the potential permanence of at least some of Tia Marie’s physical disabilities and the consequential impairment of future earning capacity, the $1.5 million award neither shocks our sense of justice nor evidences undue passion and sympathy for the plaintiff. We agree with the Glombs that the record fails to substantiate Tia Marie’s claim for $13,304.72 in medical expenses. This lone deficiency in the evidence, however, does not render the jury’s award excessive.

III.

For the above reasons, we affirm the judgment of the Beaver County Court of Common Pleas.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur in the result reached by the majority. Although I join wholeheartedly in Part II of the majority’s opinion, I differ with the rational underlying the majority’s approach in Part I.

The majority concludes that the question of whether liability is capable of apportionment depends on whether a “logical, reasonable or practical” basis exists for apportionment. I however, believe that the majority’s position begs the question of how to properly ascertain whether liability is capable of apportionment. The majority determines whether liability is capable of apportionment by using a purely arbitrary ad hoc standard lacking in any legal principle.

I believe that the better approach, in determining whether liability is capable of apportionment, would be to determine whether the defendants acted as joint tortfeasors. The question of whether liability is capable of apportionment has consistently been determined by whether the alleged tortfeasors acted jointly or separately. Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 508 A.2d 1247 (1986), appeal denied, 514 Pa. 648, 524 A.2d 494 (1987) (issue of whether liability is capable of apportionment hinges on whether defendants acted separately or as joint tortfeasors); see Harka v. Nabati, 337 Pa.Super. 617, 487 A.2d 432 (1985); Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249 (1984); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982); Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982); Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981); Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979). To be a joint tortfeasor, two or more persons “ ‘must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.’ ” Wade, 283 Pa.Super. at 475 n. 8, 424 A.2d at 907 n. 8 (quoting Black’s Law Dictionary (4th ed. 1968)); see Pratt, 298 Pa.Super. at 150-151 n. 50, 444 A.2d at 705 n. 50; Lasprogata, 263 Pa.Super. at 179, 397 A.2d at 805 n. 4. This approach provides a terse and conclusive means of determining whether liability is joint or separate.

■ Under the approach that I propose, if a court determines that the defendants are joint tortfeasors, each defendant is liable for the entire amount of the judgment. See Restatement (Second) of Torts § 875 (1979). If one tortfeasor pays the entire amount, he or she may seek contribution from his or her co-defendant(s). See Wade, 283 Pa.Super. 464, 424 A.2d 902 (contribution distributes the loss equally or each joint tortfeasor pays his or her pro rata share). On the other hand, if a court determines that the defendants are not joint tortfeasors, i.e., that liability is capable of apportionment, then the issue of the actual apportionment itself is submitted to the jury. See Restatement (Second) of Torts § 434(l)(b) and (2)(b) (1977) (function of the court is to make the initial determination of whether apportionment is possible; if so, function of the jury is to make the apportionment).

In the instant case, I would find that the actions of Ginosky and the Glombs come within the definition of joint tortfeasors. The negligence of the Glombs merged with the intentional misconduct of Ginosky to cause a single harm to Tia. Although the Glombs did not act in concert with Ms. Ginosky, they acted concurrently. The ■ Glombs’ continual neglect of Tia’s welfare facilitated the ultimate infliction of Tia’s injury by Ginosky. Consequently, I concur in the majority’s result that the trial court properly refused to submit the question of apportionment to the jury on the basis that the Glombs and Ginosky are joint tortfeasors who are each liable for the entire amount of the judgment.

      . We do not address in this appeal whether the Glombs can seek indemnity from Ms. Ginosky or whether they should instead seek contribution pursuant to the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321 et seq. See Svetz v. Land Tool Co., 355 Pa.Super. 230, 240-243, 513 A.2d 403, 409-10 (1986), for a discussion of the difference between these two equitable remedies.

      . We distinguish at the outset between "apportionment” of separate liabilities between separate tort-feasors, which the Glombs seek here, and "equitable apportionment” of a joint liability between joint tortfeasors. “Equitable apportionment” of joint liability, also known as the apportionment of "equitable shares," is a device by which a defendant obtains contribution from his or her co-defendant. See Restatement (Second) of Torts § 886A comment h (1965). We do not address the equitable right to contribution among joint tort-feasors in this case.

      . The Glombs argue that we cannot hold negligent tort-feasors jointly and severally liable with intentional tort-feasors. We disagree. In Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986), this court determined that the Uniform Contribution Among Tort-Feasors Act, 42 Pa.C.S. § 8321 et seq., which governs the equitable right to contribution among joint tort-feasors, applies to co-defendants whose liability rests on different theories. We therefore concluded that the negligent distributor and the strictly liable manufacturer of a defective product were "joint tort-feasors” within the meaning of the Uniform Act. See also McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987). Our reasoning in Svetz applies with equal force to a baby-sitter who assaults his or her charge and the parents who negligently hire and supervise that baby-sitter.

      . The Glombs also argue that the court erred in not deciding the apportionability issue until after the jury rendered its verdict. The Glombs failed, however, to raise this issue in their motion for post-trial relief. We therefore consider the issue waived for purposes of appellate review. See Pa.R.A.P. 302(a); Sullivan v. City of Philadelphia, 314 Pa.Super. 381, 460 A.2d 1191 (1983). Even assuming that the Glombs preserved the issue for our review, and that the trial court did not rule conclusively on the issue before the jury retired to deliberate, we fail to see how this "error,” if any, harmed the Glombs. The court could not have apportioned liability in this case, and the Glombs would not have benefited from knowing this before the jury retired.

      . The Glombs concede that the amount of damages demanded by Tia Marie in her “original complaint” is not material to our review of the excessiveness claim. Our rules of procedure require that "[a]ny pleading demanding relief for unliquidated damages shall without claiming any specific sum set forth only whether the amount is or is not in excess of $10,000.” Pa.R.C.P. 1021(b). When Rule 1021(b) prohibits a plaintiff from demanding a specific amount of damages in his or her complaint, the court cannot consider the amount demanded in evaluating the excessiveness of the verdict. See Ammon v. Arnold Pontiac-GMC, Inc., supra, 361 Pa.Super. at 414-415, 522 A.2d at 650.

      . In their petition for reargument, the Glombs argue that the trial court failed to follow the directive of our supreme court in Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971). The Glombs observe that when the court decided in Falco to abrogate parental immunity in personal tort actions, it cautioned trial courts to devise means of discouraging collusive lawsuits. In the present case, the Glombs raise the possibility of collusion between the guardian ad litem and Tia’s paternal grandmother. We find this issue waived for two reasons. First, the Glombs failed to raise it in their brief on appeal. This court will not consider issues that the appellant has not set forth or suggested in the "Statement of Questions Involved” portion of his or hcr brief. See Pa.R.A.P. 2116(a). Second, the trial court afforded counsel for the Glombs the opportunity during the trial to discuss the issue of collusiveness on the record at sidebar. As the trial court observed in its opinion, counsel "opted to forgo such discussion.” Tr.Ct.Op. at 16. Failure to raise an issue in the form of a timely objection at trial will constitute waiver of that issue on appeal. See Reilly v. Southeastern Pennsylvania Transportation Auth., 507 Pa. 204, 489 A.2d 1291 (1985).

      . The majority's reliance on Martin v. Owens-Coming Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987), is inapposite to the instant case. In Martin, a products liability case, our Supreme Court addressed the issue of whether liability for plaintiff’s disability was capable of apportionment between plaintiff himself and the defendants where plaintiff had a long history of cigarette smoking and worked with products containing asbestos manufactured by the defendants. Our Supreme Court, however, was not confronted, as we are in the instant case, with the question of whether liability is capable of apportionment when the actions of two or more persons combine to harm a third party.

      . The approach that I espouse varies from prior decisions of this Court which determined whether the tortfeasors acted separately or as joint tortfeasors by considering certain "factors” rather than utilizing the well established definition of joint tortfeasors. See Voyles, 295 Pa.Super. at 130-131, 441 A.2d at 383. The text of Prosser from which these "factors” were taken indicates that each "factor” was actually a test in itself that was developed by a court or proposed by an author to determine joint tortfeasor status. See Prosser & Keeton on the Law of Torts § 46, at 322 (5th ed. 1984). I disagree with the majority’s continued use of these factors since they constitute a series of subtle and complex considerations that create a very restrictive standard for courts to use in determining whether liability is joint or separate. The majority’s opinion demonstrates this. While the majority states that most of the factors weigh in favor of allowing apportionment of liability between the Glombs and Ginosky, the majority ultimately concludes that apportionment is not possible in the instant case. The majority states: “Even if most of the Voyles factors superficially support apportionment, our analysis leaves us without a ‘logical, reasonable or practical’ basis upon which a jury could even roughly apportion the percentage of Tia Marie’s injuries attributable to the Glombs’ negligence. None exists.” Majority opinion at 214-215. I, consequently, conclude that these "factors” should be eliminated from a court’s consideration in determining whether liability is joint or separate.

      . The majority's opinion avoids addressing the question of whether defendants are joint tortfeasors. The majority avoids this determination because the majority’s primary concern in resolving the issue of whether liability is capable of apportionment, is to prevent the situation where a joint tortfeasor satisfies the entire amount of the judgment and is then unable to obtain contribution from his or her joint tortfeasor(s). Majority opinion at 211-213. I, however, do not believe that the primary focus should be on protecting the wrong-doer’s finances but rather, on ensuring that the innocent injured victim is compensated.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    530 A.2d 1372
    COMMONWEALTH of Pennsylvania, Appellee, v. Arthur W. HECKMAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1987.
    Filed Sept. 18, 1987.

      John T. Forry, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, for Com., appellee.

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

This is an appeal from the judgment of sentence imposed following appellant’s conviction for involuntary deviate sexual intercourse, corruption of minors, and indecent exposure. Appellant presents three issues for our review: (1) whether the trial court erred in ruling that the victim, age five at the time of the offense, possessed the requisite competency to testify; (2) whether the trial court properly imposed consecutive sentences for the three convictions; and (3) whether the evidence was sufficient to sustain the verdict in light of the trial court’s refusal to allow defendant’s alibi witness to testify. For the reasons which follow, we conclude that issues (1) and (3) are waived. Having considered appellant’s remaining issue, we find it to be without merit and therefore affirm the judgment of sentence.

This matter involves appellant’s sexual assault of a five-year-old child. The victim, J.M., testified at trial that appellant licked his “pee-pee” and identified his “pee-pee” as being his penis. J.M. further stated that appellant “pulled his [appellant’s] pee-pee out” and made J.M. and his sister, H. M., touch it. The jury returned a verdict of guilty on November 15, 1984. Thirteen days later, on November 28, 1984, appellant filed post-verdict motions which the trial court subsequently denied. Appellant was then sentenced on August 12, 1985, to prison terms of five to ten years on his conviction of involuntary deviate sexual intercourse and six months to three years each on his convictions of corruption of minors and indecent exposure. Appellant’s sentence for indecent exposure was to be served concurrently with his sentence for corruption of minors and those sentences were to be served consecutively with appellant’s sentence for involuntary deviate sexual intercourse. Thereafter, on August 26, 1985, appellant filed a pro se motion for reconsideration and modification of sentence nunc pro tunc, which the trial court denied, treating it as having been timely filed. Appellant filed a timely notice of appeal on August 27, 1985.

We do not address the merits of appellant’s first and third issues as they have not been properly preserved for our review. Pennsylvania Rule of Criminal Procedure 1123(a) states in pertinent part:

Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment ... [0]nly those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard.

Pa.R.Crim.P. 1123(a).

Interpreting this rule, our courts have held that only those issues included in post-verdict motions will be considered preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Cherpes, 360 Pa.Super. 246, 520 A.2d 439 (1987); Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). Appellant’s first issue is not included in his post-verdict motions. Under the foregoing case law, this issue has been waived.

Our courts have also addressed post-verdict motions set out in boilerplate fashion. In Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc), we held that:

a post-verdict motion, either that “the evidence was insufficient to support the verdict,” or that “the verdict was against the weight of the evidence,” will preserve no issue for appellate review unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence.

Id., 315 Pa.Superior Ct. at 259-260, 461 A.2d at 1270 (emphasis in original). See also Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987). Appellant’s third issue was set out in boilerplate fashion. As a result, this issue has also been waived.

We also observe that appellant’s post-verdict motions were not timely, having been filed thirteen days after entry of the jury’s verdict. In Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983), we held that “a violation of the time requirements of R. 1123(a) will work a waiver on appeal, notwithstanding the trial court having treated a tardily filed post-verdict motion on its merits.” Id., 309 Pa.Superior Ct. at 535, 455 A.2d at 1213. As we stated in Gregory, “R. 1123(a) must be complied with; and trial court indulgence of violations will not serve to insulate parties on appeal from the consequence of violations of the Rule.” Id., 309 Pa.Superior Ct. at 533, 455 A.2d at 1212. See Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

We now turn to appellant’s second issue. Appellant asserts that the acts which constituted corruption of minors and indecent exposure were basically the same as the acts required for the conviction of involuntary deviate sexual intercourse and that, as a result, the trial court erred in imposing consecutive sentences. We note that the trial court did impose separate sentences for each of these convictions, directing that the corruption of minors and indecent exposure sentences run concurrently with each other, and consecutively with the involuntary deviate sexual intercourse sentence.

Our Supreme Court recently addressed the common law merger doctrine in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987). There, the Supreme Court cited and approved of a two-pronged test adopted by an en banc panel of this court in Commonwealth v. Leon Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) {en banc), summarizing that test as follows:

Under this test, merger is required only when two prerequisites are met. First, the crimes must “necessarily involve” one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest.

Commonwealth v. Michael Williams, supra, 514 Pa. at 136-137, 522 A.2d at 1101, citing Commonwealth v. Leon Williams, supra, 344 Pa.Super. at 125, 496 A.2d at 50. See also Commonwealth v. Taylor, supra, 362 Pa.Super. at 408, 524 A.2d at 942.

Our Supreme Court has previously held that the offenses of indecent exposure and corruption of minors do not merge, the court finding that they protect different interests of the Commonwealth. Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986). We, therefore, address only whether either of these offenses merge with the offense of involuntary deviate sexual intercourse. We need not discuss the first prong of the foregoing merger test, however, because we find that, even if these crimes necessarily involve one another, substantially different Commonwealth interests have been injured by the appellant’s act. At stake with respect to the offense of involuntary deviate sexual intercourse is the Commonwealth’s interest in preventing people from being forced against their will to submit to sexual conduct and in preventing minors from being sexually used by adults, see Commonwealth v. Bonadio, 490 Pa. 91, 95, 415 A.2d 47, 49 (1980), while the offense of indecent exposure concerns the Commonwealth’s interest in proscribing exhibitionism and in shielding any victim from such conduct, and the offense of corruption of minors involves the Commonwealth’s interest in protecting minors from corrupting influences, “the consequences of which may follow them all their days,” Commonwealth v. Sayko, supra, 511 Pa. at 616, 515 A.2d at 897. These are substantially different interests, in our view, each of which has been injured by the appellant’s conduct in this case. For these reasons, appellant’s argument that the trial court erred in imposing consecutive sentences is without merit.

Judgment of sentence is affirmed.

WIEAND, J., filed a concurring statement.

WIEAND, Judge,

concurring:

I agree that the first and third issues raised by appellant were waived when appellant failed to include them in his post-trial motions. I cannot agree, however, that these issues were waived merely because appellant’s post-trial motions were filed thirteen days after the verdict had been entered. In my judgment, counsel’s untimeliness should be overlooked where, as here, the trial court has allowed the same and has considered the issues raised therein as though the motions had been timely filed and where, as here, our ability to conduct a meaningful review has not been impaired in any way.

I would also find that the second issue raised by appellant was waived because it was not included in appellant’s motion to modify sentence. In my judgment, issues concerning merger of convictions for purposes of sentencing do no call into question the legality of the sentence and, therefore, are waived if not included in a motion to modify sentence. See: Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986) (Wieand, J., concurring).

      . 18 Pa.C.S.A. § 3123(5).

      . 18 Pa.C.S.A. § 6301(a).

      . 18 Pa.C.S.A. § 3127.

      . By order dated August 27, 1985, the trial court directed that the motion be treated as timely filed.

      . Appellant’s motion for a new trial and/or arrest of judgment set forth the issues as follows:
      1. The verdict is contrary to the law.
      2. The verdict is contrary to the evidence.
      3. The verdict is contrary to the weight of the evidence.
      4. The evidence was insufficient to sustain the verdict of the jury.
      5. The evidence was insufficient for the jury to determine that the defendant engaged in involuntary deviate sexual intercourse in that the Commonwealth failed to prove intercourse per os.

      . We note that appellant did not include this issue in his motion to modify sentence. As held by an en banc panel of this Court, however, ”[t]he question of the legality of multiple sentences, based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court." Commonwealth v. Campbell, 351 Pa.Super. 56, 63, 505 A.2d 262, 265 (1986) {en banc).

      . See also Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984).

      . Appellant did allege in post-trial motions that the evidence was insufficient to sustain the conviction of involuntary deviate sexual intercourse because penetration had not been proved. However, on appeal, he has abandoned this issue and instead argues only that the evidence was insufficient in light of the victim’s inability to testify as to the exact date of the incident and the trial court’s refusal to permit appellant to prove alibi. Because this issue was not argued before the trial court, I agree that it was waived.


author: BROSKY, Judge: OLSZEWSKI, Judge, TAMILIA, Judge,

text:
    530 A.2d 1375
    COMMONWEALTH of Pennsylvania, Appellant v. Charles S. TALARIGO.
    Superior Court of Pennsylvania.
    Argued March 9, 1987.
    Filed Sept. 18, 1987.

      Ross H. Cooper, Assistant District Attorney, Bellefonte, -for Com., appellant.
    Deborah Lux,'Assistant Public Defender, Bellefonte, for appellee.
    Before CIRILLO, President Judge, and BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, POPOVICH and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the Order of the trial court dismissing the prosecution of this case of driving under the influence.

Appellant presents two issues for our consideration: (1) whether the criminal complaint issued against appellee was filed within the five (5) day limitations of Rule 130(d); and (2) whether the language of Rule 130(d) that a complaint “shall” be filed within five (5) days of release is directory and not mandatory, and whether a motion to dismiss based upon a filing on the sixth (6th) day, should be granted absent a showing of specific prejudice resulting from the delay as required by Rule 150.

The trial court dismissed the prosecution of this case; however, we respectfully reverse the trial court’s order.

Appellee was arrested and released on January 28, 1986, for driving under the influence of alcohol. On Monday, February 3, 1986, a criminal complaint was - filed and a summons issued by the District Magistrate. A preliminary hearing was held on March 19, 1986, and, even though appellee moved to dismiss his charges, he was bound over to the Court of Common Pleas of Centre County. Appellee filed a timely pre-trial Omnibus motion for dismissal of his case due to an alleged violation of Pa.R.Crim.P. 130(d). A hearing on the motion was held on May 29, 1986, and, on June 9, 1986, an order was entered dismissing the case due to a violation of Pa.R.Crim.P. 130(d). Appellant Commonwealth filed a timely notice of appeal in this Court from the Order of June 9, 1986.

Turning first, to the second contention raised by appellant, (that being the need for a showing of prejudice when a complaint was filed on the sixth day following release), we find that this exact issue has been recently decided in Commonwealth v. Schimelfenig, et al., 361 Pa.Super. 325, 522 A.2d 605 (1987). Like the defendants in Schimelfenig, appellee here was released pursuant to Pa.R. Crim.P. 130(b), which states:

(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.

Pa.R.Crim.P. 130(d) provides the procedure to be followed pursuant to such a release:

(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

Because the instant complaint was not issued until February 3rd, following appellee’s January 28th release, the trial court dismissed the prosecution of the matter. Appellant argues that Rule 130(d) must be read in conjunction with Pa.R.Crim.P. 150 which provides:

Rule 150. Defects in Form, Content, or Procedure— Court Cases
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

Previous case law had held that dismissal of charges was mandated for a violation of the five day limitation of Rule 130(d), and that Rule 150 did not apply to Rule 130(d) because, according to the legislative history, the five-day rule was specifically added to eliminate the guesswork of what constituted “unnecessary delay.” See Commonwealth v. Press, 342 Pa.Super. 507, 493 A.2d 705 (1985), allowance of appeal granted, 509 Pa. 534, 505 A.2d 251 (1986) and Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985), allowance of appeal granted, 509 Pa. 496, 503 A.2d 932 (1986). Both Press and Revtai, however, have been specifically overruled by an en banc panel of our court in Schimelfenig, sujpra. The Schimelfenig court based its decision upon several factors. Without reiterating the entire opinion verbatim, it is, nevertheless, useful to highlight that court’s reasoning. With regard to the use of the word “shall” in Rule 130(d) as requiring mandatory effect, the Schimelfenig court stated that, “[decisions both prior and subsequent to the effective date of Rule 130(d) have held that similar rules of procedure, containing the same “mandatory” language, should not be enforced with dismissal of charges in the absence of prejudice to the defendant.” 361 Pa.Super. 325, 332, 522 A.2d 605.

Citing the Committee Report which accompanied the 1984 Amendments to Rule 130 (which added the five-day limitation period), along with other developments in the Rules of Criminal Procedure, the Court in Schimelfenig; also discussed, in detail, the reasons for the amendments, along with the legislative intent of bringing into accord the rules for misdemeanor and summary cases. Finding many parallels between these various rules, the Schimelfenig court decided that a broad reading of the rules was proper, leading to the conclusion that Rule 130(d) must be read in conjunction with Rule 150.

One last rationale used by the Schimelfenig court, and also raised by appellant in the instant case, is the idea that no conflict exists between Rule 130(d) and Rule 150, as they address different aspects of criminal procedure, and that because both were placed within Chapter 100, they are mutually applicable.

Based upon our court’s holding that Pa.R.Crim.P. 130(d) must be considered together with Pa.R.Crim.P. 150, we arrive at the conclusion that the trial court’s dismissal of the instant case was improper absent a showing of prejudice to appellee. Therefore, we must reverse the decision of the court below. While, under Schimelfenig we would remand to the trial court for a determination of prejudice, this action is not necessary in the instant case because we find the complaint to be timely filed as discussed below.

The other issue raised by appellant involves the manner in which the five-day limitations period of Rule 130(d) is calculated. As stated earlier, appellee was released on Tuesday, January 28, 1986 and the complaint was filed on Monday, February 3, 1986. The question at hand is whether the fifth day, which fell on a Sunday, should have been extended to Monday.

Appellant contends that Rule 130(d) should be construed according to 1 Pa.C.S. § 1908, and that if it is so construed, filing the complaint on February 3rd did not violate Rule 130(d). This question of the applicability of § 1908 to Pa.R.Crim.P. 130(d) was addressed by a three-panel member of this court in Commonwealth v. Oeler, 357 Pa.Super. 281, 515 A.2d 977 (1986).

In the Oeler case the precise issue was whether the day of releasé was to be included in the computation of the five-day period of Rule 130(d). In that case the defendant was released on February 23, 1985 and a complaint was filed on February 28, 1985. The trial court, in holding that the complaint was untimely filed, counted the five-day period as February 23, 24, 25, 26 and 27.

In reversing the court below, the Superior Court agreed with the Commonwealth that Section 1908 applies to Rule 130(d). 1 Pa.C.S. § 1908 provides:

§ 1908. Computation of time
When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this tile (relating, to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of any such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

- In the instant case, it is the provision dealing with Saturdays, Sundays and holidays with which we must concern ourselves; however our reasoning is in accord with that of Oeler, supra. According to Pa.R.Crim.P. 2, the Rules of Criminal Procedure are to be “construed ... as nearly as may be in consonance with the rules of Statutory construction.” This principle has been applied with regard to the construction of the rules dealing with the calculation of speedy trial run dates. Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982).

While it may be argued that, because of the enactment of Pa.R.Crim.P. 23, Section 1908 does not apply to Rule 130(d), we cannot agree. Pa.R.Crim.P. 23 provides in pertinent part as follows:

Rule 23. Continuous Availability and Temporary Assignment of Issuing Authorities
(a) The president judge of each judicial district shall be responsible for insuring the availability at all times within his judicial district of at least one issuing authority.

The argument then takes the form that, since an issuing authority is available, and there is no need for the involvement of a Prothonotary or other court office, which would be closed on Saturdays, Sundays and holidays, Section 1908 should not apply to these special circumstances. This reasoning ignores the comment to Rule 23 which states, “[tjhis rule is intended to impose the responsibility on the president judge to prevent the violation of the rights of defendants caused by the lack of availability of the district justice.” As we have already stated, Pa.R.Crim.P. 130(d) must be read together with Pa.R.Crim.P. 150, thus requiring a showing of prejudice prior to dismissing an action. This comports with the legislature’s concern with the violation of a defendant’s rights and acts as a safeguard to assure that no violation occurs; for if any prejudice/violation is shown, the action will be dismissed.

Additionally, this concern for a defendant’s rights is much more valid in those cases where the defendant is under arrest or being detained. In that scenario, untimeliness is more likely to give rise to a prejudicial situation. Such was the case in Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975) (fifteen hours and ten minutes elapsed between defendant’s arrest and his initial inculpatory statement; court said this was unnecessary delay but denied relief because issue was not properly preserved); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974) (defendant was originally unwilling to admit complicity in a homicide until told he had failed a polygraph test approximately twelve hours later, during which time defendant had been subjected to six hours of questioning and lengthy periods of isolation; Pennsylvania Supreme Court held that defendant’s confession should have been suppressed as the product of unnecessary delay between his arrest and arraignment); Commonwealth v. Johnson, 458 Pa. 425, 327 A.2d 618 (1974) (fourteen-year-old defendant was arrested in connection with homicide, was given Miranda warnings and denied involvement in the crime. He was interrogated several times, orally admitted complicity and, after speaking with his mother, was given a polygraph test with his mother’s consent. Defendant then signed a statement and the court held that his confession should have been suppressed as the product of unnecessary delay between arrest and arraignment); Commonwealth v. Wilson, 458 Pa. 285, 327 A.2d 621 (1974); Commonwealth v. Bradwell, 231 Pa.Super. 35, 326 A.2d 887 (1974).

Looking at these cases, it is clear to see why Pa.R.Crim.P. 23 is necessary to ensure that situations similar to those cited in the cases above do not become regular occurrences within our criminal justice system. What is less clear is the need for the same stringent safeguards for those who are not under any type of detention. Those defendants who have been released under Pa.R.Crim.P. 130(b) and (c), run a substantially decreased risk of making inculpatory statements or being subjected to lengthy investigations such as would be in violation of their rights.

It should also be noted that the cases in which a violation of rights was found to have occurred all involved defendants who were arrested pursuant to Pa.R.Crim.P. 130(a) which reads as follows:

(a) Except as provided in paragraphs (b) and (c), when a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay, (emphasis added)

Thus, no time period was specified, but as usually happens in these cases, arraignment takes place within a matter of hours, not days. See, Segers, supra; Cherry, supra; Johnson, supra; Wilson, supra; and Bradwell, supra. When working within a time frame of hours, any delay becomes more significant than when a period of five days is permitted for action to be taken, as per Pa.R.Crim.P. 130(d).

■ Therefore, we do not feel that by construing Pa.R.Crim.P. 130 according to 1 Pa.C.S. § 1908 we are ignoring or failing to lend credence to any legislative intent behind the enactment of Pa.R.Crim.P. 23. Accordingly, because we now hold that Rule 130(d) is to be construed according to 1 Pa.C.S. § 1908, we agree with appellant in the instant case, that the complaint filed against appellee was not untimely.

Therefore, for the reasons discussed above, we respectfully reverse the decision of the trial court and reinstate the Commonwealth’s complaint against appellee.

Order reversed. Complaint reinstated. Jurisdiction relinquished.

OLSZEWSKI, J., concurs with' opinion, which was joined by CIRILLO, President Judge, and JOHNSON, J.

TAMILIA, J., dissents with opinion.

OLSZEWSKI, Judge,

concurring:

While I agree with the result reached on both issues, I wish to express my view regarding Pa.R.Crim.P. 23. As a rule of criminal procedure, Rule 23 is applicable in every case involving a proceeding before an issuing authority. I believe, however, that Rule 23 is simply not controlling here.

Granted, Rule 23 speaks of the availability of an issuing authority “at all times.” As the Court points out, however, the purpose of Rule 23 is “to prevent the violation of the rights of defendants caused by the lack of availability of the district justice.” In my view, Rule 23 was designed to both prevent overbearing and oppressive police conduct and to ensure that the defendant is given a prompt determination before a judicial officer. See Pa.R.Crim.P. 71(c); Pa.R. Crim.P. 122; Pa.R.Crim.P. 130(a). See also Pa.R.Crim.P. 22 (power to issue warrants). The evils sought to be avoided by having a district justice available at all times are simply not at issue when a defendant has been arrested and released by the police officer pursuant to Rule 130(b) and (d). In other words, I believe Rule 23 is controlling where the constitutional rights of the defendant may be in jeopardy, not where the defendant is released pursuant to the discretionary provision of Rule 130(b).

CIRILLO, President Judge, and JOHNSON, J., joins.

TAMILIA, Judge,

dissenting:

Appellant was arrested on January 28, 1986, at approximately 7:30 p.m. for the offenses of driving under the influence and driving on. the right side of the roadway. On Monday, February 3, 1986, six (6) days after the arrest, a criminal complaint was filed and a summons issued by the District Magistrate. I respectfully dissent and would affirm the Order of the trial court dismissing the case for failure to file the criminal complaint in a timely fashion.

The Commonwealth contends the criminal complaint was filed in compliance with the requirements of Pa.R.Crim.P. 130(d) as the fifth and final day under Rule 130(d) fell on a Sunday and the court should treat the sixth day (Monday) as the final day for computation purposes. The Commonwealth cites to the statutory Rules of Construction, at 1 Pa.C.S.A. 1901 et al., specifically section 1908, “Computation of time” which reads:

When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in Section 1909 of this title (relating to publication for successive weeks) and section 1901 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from computation. (Emphasis added.)

The majority did not follow the reasoning suggested by the Commonwealth but rather relied on Commonwealth v. Schimelfenig, et al., 361 Pa.Super. 325, 522 A.2d 605 (1987), wherein the failure to file a criminal complaint within five days of arrest did not mandate dismissal of the case. Arrest and release of the appellee occurred on January 28, 1986. The fifth day for filing under Rule 130(d) fell on Sunday, February 2, 1986, which was a legal holiday, the complaint being filed on Monday, February 3, 1986.

I am in full agreement with the trial court’s finding that, unquestionably, there was an on-duty magistrate who could have been contacted by the arresting officer and the summons properly filed within the five-day period. The availability of magistrates at all times is, in fact, recognized by our Supreme Court. In an analogous situation, the case of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) requires an accused to be arraigned within six hours of arrest, regardless of the day of the week or the time of day. This requirement presupposes that a magistrate will always be available to conduct arraignments. Likewise, they would be available to receive complaints.

In addition, Pa.R.Crim.P. 23(a) provides that “[t]he president judge of each judicial district shall be responsible for insuring the availability at all times within his judicial district or at least one issuing authority.” And as the comment to Rule 23 states, inter alia, “[t]his rule is intended to impose the responsibility on the president judge to prevent the violation of the rights of defendants caused by the lack of availability of the district justice.”

The Commonwealth’s argument, supported by the majority, is that absent a showing of prejudice Rule 130(d) should not be interpreted as mandatory so as to require dismissal of a criminal complaint filed beyond five days. I disagree. Nowhere in the language of 130(d) can prejudice or lack of it be found to be a consideration in resolving this issue. It is quite clear that Rule 130(d) is not merely directory, but mandatory in its plain meaning that a complaint must be filed within five days of arrest and release. In support of its position, the majority holds that Rule 130(d) must be read in conjunction with Pa.R.Crim.P. 150 which provides:

Rule 150. Defects in Form, Content, or Procedure— Court Cases
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

I believe that Rule 150 has no application to Rule 130(d) in view of the clear language of Rule 150 that it applies only to defects in form or content and procedures, none of which have anything to do with timeliness. The mandate of Pa.R.Crim.P. 130(d) is jurisdictional and not procedural and, therefore, its effect cannot be waived nor may it be modified by judicial or other action. With the majority’s connotation, any failure to file a complaint in a timely fashion, even after a statute of limitations has run, would be considered correctable if prejudice could not be established. Procedure, as it is expressed in the above rule, can only mean those actions which occur after the timely filing of the complaint. Those matters dealt with in Rule 150 are the elements and matters of substance (content); the shape and structure of the complaint (form); and the series of steps followed in a definite order (procedure). Rule 130(d) deals with time. If the complaint is not presented in time, questions of form, content and procedure are nullities and no amount of amending or reconstruction will serve to rehabilitate the action. With the requirement that a magistrate be available at all times and the unequivocal mandate that the complaint be filed within five days, the necessity that the complaint be filed with due diligence, clearly is superior to a showing that the defendant is prejudiced by late filing. When the matter is considered in terms of prejudice, there can be no greater prejudice than to be brought to trial and to be subject to criminal sanctions when otherwise one would be free.

      . Pa.R.Crim.P. 130(d) provides:
      (d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.