author: TAMILIA, Judge: BROSKY, Judge,

text:
    563 A.2d 168
    Ted BABICH, Appellant, v. PITTSBURGH & NEW ENGLAND TRUCKING CO., a Corporation; Indiana Refrigerator Lines, a Corporation; William Marion Gray, an Individual, and Turner Gray, an Individual. Ted BABICH v. PITTSBURGH & NEW ENGLAND TRUCKING CO., a Corporation Indiana Refrigerator Lines, a Corporation; William Marion Gray; an Individual, and Turner Gray, an Individual. Appeal of INDIANA REFRIGERATOR LINES, a Corporation.
    Superior Court of Pennsylvania.
    Submitted Feb. 28, 1989.
    Filed Aug. 23, 1989.

      John W. Murtagh, Wexford, for Babich, appellant (at 821) and appellee (at 935).
    Robert B. Truel, Pittsburgh, for Indiana Refrigerator, appellant (at 935) and appellee (at 821).
    David H. Patterson, Pittsburgh, for Pittsburgh & New England Trucking, appellee (at 821 and 935).
    Before CIRILLO, President Judge, and BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

These are cross-appeals by plaintiff Ted Babich at No. 00821 Pittsburgh, 1988, and defendant Indiana Refrigerator Lines, a corporation, at No. 00935 Pittsburgh, 1988, of a judgment in the amount of $45,933 entered upon a jury verdict in favor of Babich and against Indiana Refrigerator and co-defendant/appellee Pittsburgh & New England Trucking Company (hereinafter “P & NE”).

Babich commenced this action on July 1, 1980 to recover damages sustained on March 23,1979 when a tractor-trailer lost its brakes and careened down a steep graded street, eventually slamming into an old framed house at the bottom of the hill. Babich owned the building and used it as his principle place of business. The tractor-trailer was operated by defendant William Marion Gray. The tractor was owned by defendant Turner Gray and the trailer was owned by Indiana Refrigerator. The rig had been trip leased at the time of the accident by P & NE. The case went to trial before a jury on March 12, 1987, and the resulting verdict exonerated William and Turner Gray from liability, but found in favor of Babich and against Indiana Refrigerator and P & NE in the amount of $45,933. Babich’s subsequent motion for delay damages in the amount of $32,065.13, pursuant to Pa.R.C.P. 238, was denied by the trial court, as was his motion for new trial limited to damages. The court also denied Indiana Refrigerator’s motion for Judgment notwithstanding the verdict. After entry of judgment the instant cross-appeals were timely filed.

Babich seeks a new trial as to damages alone, on the basis that the verdict was inadequate in relation to the loss he suffered. In support of this contention he claims the trial court erred in excluding testimony and an exhibit relating to the replacement cost of the building and in refusing to admit evidence concerning the consequential damages suffered by Babich in the form of lost revenues and rental costs incurred for substitute space. In connection with these claims Babich contends the court erred in refusing to give all parts of a requested point for charge dealing with the damages recoverable for property negligently damaged in Pennsylvania. Specifically, appellant argues it was error to exclude the following portion:

When, under the facts and circumstances of an individual case, value of a property “as measured in the market place is wanting or the application of market place values is unlikely to compensate the injured party for the loss suffered” the measure of damages “must be the reasonable cost of replacement by a similar structure consistent with current standards of design.” Anything less would not compensate the owner for the actual loss.

Lastly, appellant claims the trial court erred in refusing to award Rule 238 delay damages because no written offer of settlement was ever made.

The scope of appellate review of a request for new trial on damages was set forth in Stokan v. Turnbull, 480 Pa. 71, 75, 389 A.2d 90, 92 (1978):

The grant or refusal of a new trial because of an excessive or inadequate verdict is a matter for the sound discretion of the trial court and will be sustained by an appellate court in the absence of a clear abuse of discretion or an error of law which controlled the verdict or the outcome of the case.

See Baird v. Dun & Bradstreet, 446 Pa. 266, 285 A.2d 166 (1971); Krivijanski v. Union Railroad Company, 357 Pa. Super. 196, 515 A.2d 933 (1986). For the following reasons we find no abuse of discretion in the trial court’s refusal to grant a new trial as to damages nor error of law justifying reversal.

The purpose of damages for injury or destruction of property by tortious conduct of another is to compensate the injured owner for the actual loss suffered. Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988). “It is well-settled law in this Commonwealth that the measure of damages for injury to property is the cost of repairs where that injury is repairable; however, where the injury is characterized as permanent, the measure of damages becomes the decrease in the fair market value of the property.” Wade v. S.J. Groves & Sons Company, 283 Pa.Super. 464, 483, 424 A.2d 902, 911 (1981) (citations omitted); see e.g. Miller v. C.P. Centers, Inc., 334 Pa.Super. 623, 483 A.2d 912 (1984). Babich acknowledges this statement of the law in his brief.

Because Babich and his experts all admitted the building had been destroyed, making the nature of the damage sustained permanent, and admitted the building would need to be rebuilt or replaced, we find no merit to his claims that it was error to refuse to admit evidence as to the replacement cost of the building and evidence of consequential damages suffered by his business’ forced relocation. The proffered evidence was only relevant to replacement cost and additional compensation over and above the actual damage suffered, not the market value of the property prior to the incident. Such loss is not compensable when the damage is permanent. We find no error of law or abuse of discretion by the trial court in excluding the evidence. Babich himself testified to the value of his property, placing the value between $80,000 and $90,000. It was the function of the jury to weigh this evidence and we find no merit to a general claim that the verdict was inadequate.

Similarly, we find no error in the trial judge’s refusal to give the above stated portion of the requested jury charge. Repair and replacement costs are irrelevant when the damage is permanent, only the reduction in market value can be considered. After review of the charge given, we find it in compliance with Pennsylvania Suggested Standard Civil Jury Instructions, section 6.01J.

Next, we must address Babich’s claim that delay damages were improperly denied below. The Supreme Court of Pennsylvania suspended the mandatory provisions of Pa.R.C.P. 238 in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 66, 515 A.2d 1350, 1353 (1986), and provided an interim procedure until a new rule could be promulgated. In determining that delay damages were not properly assessible, the trial court applied the following rule enunciated in Craig:

In making a decision on a plaintiffs entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties' compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Id., 512 Pa. at 66, 515 A.2d at 1353 (footnote omitted); see e.g. Kuchak v. Lancaster General Hospital, 377 Pa.Super. 288, 547 A.2d 372 (1988). As the trial court indicates, the chief reasons for delay in this ease cannot be attributed to defendants. Indiana Refrigerator filed a Chapter 11 bankruptcy in federal court six months after Babich’s complaint was filed and Babich did not successfully obtain relief from the automatic stay until approximately two years and four months later despite cooperation from counsel for the bankruptcy and counsel for the insurance company. The other primary delay in the case was Babich’s failure to place the case at issue in a speedy fashion. (Slip Op., Weir, J., 5/5/88, p. 1.) Babich fails to point to any delay attributable to defendants and we find none upon review of the record.

Although it was subsequent to the trial court’s denial of delay damages that the Supreme Court rescinded Rule 238 on November 7,1988 and promulgated a new Rule 238 in its place, we find even under the new rule the trial court properly did not assess delay damages. Like the circumstances in DeLuca v. Smaller, 385 Pa.Super. 546, 561 A.2d 810 (1989),

There is nothing in the new rule, however, to suggest error in the determination made by the trial court in this case. Both Craig and the amended Rule 238 disallow recovery of delay damages where it is the plaintiff who has caused the delay. Thus, the new Rule 238 does not require that appellant’s request receive more favorable treatment than it received under Craig.

Id,., 385 Pa.Superior Ct. at —, 561 A.2d at 812.

Additionally, we disagree with Babich’s contention that an evidentiary hearing on the petition for delay damages was required. Both Craig and new Rule 238 leave such a hearing up to the trial court’s discretion by stating “a judge may hold a hearing to resolve factual disputes.” Craig, 512 Pa. at 65, 515 A.2d at 1353 (emphasis added); Pa.R.C.P. 238(c)(1). We also note appellant Babich’s petition for delay damages did not request a hearing nor does his brief allege he orally requested one.

Accordingly, with respect to Babich’s appeal at No. 00821 Pittsburgh, 1988, we affirm.

At No. 00935 Pittsburgh, 1988, Indiana Refrigerator claims the trial court erred in denying its motion for judgment notwithstanding the verdict. As we stated in Rocker v. Harvey Company, 370 Pa.Super. 32, 36, 535 A.2d 1136, 1138 (1988):

The standard of review of an appellate court when considering an order granting or denying judgment n.o.v. is the same as that used by the trial court: we must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences. Judgment n.o.v. is appropriate only in a clear case where the facts are such that no two reasonable minds could fail to agree that, as a matter of law, the party has failed to make out his case.

Indiana Refrigerator’s negligence was not solely dependent on the negligence of its agent, William Gray, who was exonerated by the jury. Instead, the question of whether a failure in the brakes of not only the tractor but also the trailer it owned was presented to the jury. We do not find it unreasonable for the jury to have concluded that the tractor’s brake failure may have caused the accident. Therefore, we affirm the trial court’s denial of Indiana Refrigerator’s motion for judgment n.o.v.

Additionally, due to our previous refusal to grant a new trial as to damages, we need not address Indiana Refrigerator’s alternative request to have a trial on liability.

Accordingly, with respect to Babich’s appeal at No. 00821 Pittsburgh, 1988, judgment affirmed, and with respect to Indiana Refrigerator’s cross-appeal at No. 00935 Pittsburgh, 1988, judgment affirmed.

BROSKY, J., concurs.

BROSKY, Judge,

concurring.

I join in majority’s disposition of both Babich’s claim for a new trial on damages and the contentions of cross-appellant, Indiana Refrigerator Lines.

I also agree that the trial court properly disallowed Babich's Petition for delay damages. Although Indiana had tendered no written offer of settlement, the trial court found that Babich had caused the delay of the trial by erroneously and belatedly seeking relief from the stay imposed after Indiana had declared bankruptcy. The trial court also concluded that Babich had further impeded the progress of the litigation towards trial when he delayed placing the case at issue. The trial court makes this analysis based upon its interpretation of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).

I note that the same result would obtain under new Pa.R.C.P. 238, promulgated on November 7, 1988. The new Rule provides that calculation of delay damages shall be for the period of time after which a defendant has made a written offer of settlement that exceeds the ultimate verdict by more than one hundred twenty-five percent or during which plaintiff caused the delay of the trial. Pa.R.C.P. 238(b)(1), (2). Here, Indiana failed to make a written offer of settlement, but the trial court found, quite properly, that the responsibility for delay damages had been mitigated by Babich’s conduct in impeding the progress of the case towards trial.

Moreover, the majority correctly concludes that an evidentiary hearing on Babich’s Petition for delay damages is not mandatory either under Craig or under new Pa.R.C.P. 238(c)(1). The new Rule leaves to the court’s discretion the holding of a hearing on the Petition.

      . Adopted November 20, 1978, effective 120 days after December 16, 1978. Amended December 16, 1983, effective July 1, 1984.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    563 A.2d 172
    COMMONWEALTH of Pennsylvania ex rel. Dolores Ann SLADEK, Appellee, v. Robin L. SLADEK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 6, 1989.
    Filed Aug. 31, 1989.

      Richard H. Pratt, Doylestown, for appellant.
    John D. Blumenthal, Doylestown, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, Robin Sladek, appeals from an order increasing his child support payments, claiming that the trial court erred in granting an increase where appellee, Dolores Sladek, failed to prove a material change in circumstances justifying modification. Because we agree with appellant that no material change in circumstances justifying an increase was established by appellee, we reverse.

The parties are the parents of three children, Jennifer, Melissa, and Jonathan, respectively aged 19, 15, and 13 at time of hearing. In 1981, appellant began paying support for all three children pursuant to a court order. At that time, the children then 12, 8, and 6, were all living with the appellee. A change in the amount of support occurred in August of 1986, when the oldest child began residing with appellant. The court reduced the order to $500/month, which represented support for the two youngest children only. This amount was increased to $600/month in 1988 when appellee petitioned the court for modification based solely upon a rise in the cost of living. Although no specific instances of increased child-related expenses were outlined by appellee, the trial court granted her petition. It is from the 1988 order that appellant appeals.

When modification of a child support order is sought, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified support order. Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83, 85 (1989); Shutter v. Reilly, 372 Pa.Super. 251, 255, 539 A.2d 424, 426 (1988). The lower court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed conditions. Lampa v. Lampa, 371 Pa.Super. 1, 9, 537 A.2d 350, 352 (1988). We will not disturb a child support order unless the trial court, in determining the amount of support, has abused its discretion. Steenland-Parker v. Parker, 375 Pa.Super. 457, 460, 544 A.2d 1010, 1012 (1988). Where the evidence is insufficient to sustain the order, an abuse of discretion will be found. Id., 375 Pa.Superior Ct. at 461, 544 A.2d at 1012.

Factors upon which the trial court relied in reaching its decision were:

[I]t is apparent that the plaintiffs [appellee’s] net weekly expenses have increased by $130.00 per week since August of 1986 and her salary has approximately doubled from her established earning capacity of 1986. At the same time, defendant’s [appellant’s] weekly expenses have increased significantly as has his salary. Additionally, it must be noted that the defendant is afforded the use of an automobile as part of the compensation of his employment. Although no value is assigned to that, clearly this is a perquisite of significance.
Of greater importance, however, than the cold numbers in this case, we must recognize both the advanced ages of the children as well as the ever increasing cost of living____ Melissa and Jonathan are now age 15 and 13 and are clearly more expensive to maintain than they were in August of 1986. Under these circumstances, and even where there may be no financial change regarding the parents, an order may be increased by virtue of the showing of advancing ages of the children. Commonwealth ex. rel. Balph v. Balph, 210 Pa.Super. 244, 232 A.2d 76 (1967) and Forry v. Forry, 359 Pa.Super. 602, 519 A.2d 516 (1986).

Trial Court Opinion, February 15, 1989, at 3 & 4. The trial court’s reliance upon Balph and Forry, supra, is inappropriate in that these cases are distinguishable from the case at bar. Unlike the instant situation, in Balph and Forry, and the cases which follow them, the court was presented with time lapses of four years of more between support orders, and was given specific instances of increases in child-related expenditures.

In Balph, supra, the original support order in the amount of $150.00/month for two infants was issued in 1961. Four years later, the trial court raised the amount to $450.00/month based solely upon the advancing age of the children. The expenses necessitating the increase included private school, membership at a swimming club, medical bills, toys, food, babysitting fees, and psychiatric care for one of the children. We held that such a large increase constituted an abuse of discretion where the only significant change was the increased age of the children which made them eligible for school attendance, and we reduced the amount to $250.00 per month. Id. 210 Pa.Super. at 249, 282 A.2d at 78. Although we upheld an increase in the amount of support based on the incidence of age-related expenses, we did so only after the petitioner had presented specific instances of these greater expenditures.

In Commonwealth ex. rel. Luongo v. Tillye, 229 Pa.Super. 458, 458, 323 A.2d 172, 174 (1974), our recognition that “the increased expenditures which are incurred by reason of the needs of growing children are important items to consider in support modification proceedings,” was predicated upon a situation in which ten years had passed since the original support order was entered, and the child had grown from a year old infant into an eleven year old boy who was attending Catholic school. In that case, we held that the trial court’s $20.00 per month increase in child support did not adequately measure the cost of living factor between 1963 and 1973, let alone consider the change in the father’s financial situation and the increased needs of an older boy. Id., 229 Pa.Superior Ct. at 458, 323 A.2d at 174. As in Balph, the mother in Tillye made specific references to increases in expenditures caused by the child’s advancing age which necessitated the increase in support, such as her purchase of the home in which she and her son were living, the child’s school tuition, the child’s dental and clothing bills, and her desire to allow his participation in such activities as Boy Scout Camp.

In Forry, supra, we reversed the trial court’s denial of an increase in child support, which was based upon the conclusion that the only proof of a needed increase was the mother’s general statement at the domestic relations hearing that her expenses for rearing her daughter had increased in the last thirteen years, and held that although mere passage of time does not in itself constitute a change of circumstances, the passage of thirteen years, during which the child aged from two to fifteen, was a significant factor and when combined with such factors as remarriage of both parents, birth of another child to the mother, increase in both parent’s incomes, attendance at a private school by the child, and cost of the child’s psychological counseling sessions, would constitute changed circumstances. Id. 359 Pa.Super. at 605, 519 A.2d at 517. Finally, in Palmatier v. MacCartney, 365 Pa.Super. 300, 304, 529 A.2d 518, 520 (1987), we affirmed the trial court’s $100.00 per month increase in child support for four children which was based upon the five year lapse of time between the original support order and the present modification; the combined effect of inflation, the educational expenses incurred by the children’s mother which were required for her continued employment; and the increased expenses necessitated by the reality of raising four teenage boys. We note that unlike the appellee in the instant case, when the mother in Palmatier was asked why an increase was needed, she replied that the boys, then age 16, 15, 14, and 11, consumed more food than they did five years ago; their clothes were more expensive then they were five years ago; and car insurance for the oldest boy was an expense which did not exist five years ago. Id., 365 Pa.Superior Ct. at 304, 529 A.2d at 520. In addition, unlike the instant case, the trial court in Palmatier had before it detailed income and expense information from which it could have found a material change in circumstances existed. Id., 365 Pa.Superior Ct. at 304, 529 A.2d at 520.

The facts of the instant case differ significantly from those present in the above cases. Herein, appellee’s petition for an increase in child support was premised only upon the increased cost of living. The record is devoid of any references to specific increases in expenditures caused by either the childrens’ advancing ages or the increased cost of living. A review of the record reveals only one additional expense since the modification of the support order in 1986, that is, a 1988 car loan, which arose from the trade-in of appellee’s car for a 1985 BMW. Unlike the children in the cases above cited, the two children in the instant case have not dramatically changed in age since the support order was last modified. One was already a teenager when the order was modified in 1986, and the other was nearing that age. Expenses, which appellee would be expected to incur due to the childrens’ school attendance, already existed in 1986. Moreover, any increases in the children's medical bills are absorbed by appellant, whose insurance covers the childrens’ medical needs. Nor is the mere passage of two years sufficient to constitute a change in circumstances. Forry, supra. For these reasons, we hold that appellee’s conclusory declaration that an increase in support was necessitated by the increase in the cost of living over a two year period, without any reference to specific instances in which the increase in the cost of living has affected her expenditures in relation to her two children, is insufficient to establish the existence of a change in circumstances.

Order reversed.

      . The amount of support payable under the original order is not clear from the record. However, in 1985 the appellant was paying $600.00 per month for the support of all three children.

      . When asked what the changed circumstances were which necessitated the increase in child support, appellee responded: “The change of circumstances are the cost of living. And the increase, I’m a single head of household, only income coming into the house. Cost of living, it’s costing me more.” (N.T., November 30, 1988, at 5). When asked if there were any other changes she felt entitled her to an increase, she asserted: "I think cost of living is fair enough. We’ve fallen below the county guidelines.” (N.T., November 30, 1988, at 7).

      . Appellee was represented at trial by Bucks County District Attorney’s Office.


author: DEL SOLE, Judge:

text:
    563 A.2d 175
    Earl B. LIVINGSTON and Rebecca J. Livingston, His Wife, Individually and on Behalf of all Others Similarly Situated, Appellants, v. VANGUARD FEDERAL SAVINGS BANK.
    Superior Court of Pennsylvania.
    Argued June 8, 1989.
    Filed Sept. 8, 1989.

      Michael P. Malakoff, Pittsburgh, for appellants.

      Neal Brendel, Pittsburgh, for appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Mr. and Mrs. Livingston, as representatives of a class, have taken this appeal from a trial court order sustaining the preliminary objections filed by Vanguard Federal Savings Bank. In so ruling the trial court dismissed Appellants’ complaint which alleged that Vanguard’s method of computing interest on prepayments made on mobile home loans was not permitted by Pennsylvania law under 69 Pa.S.A. § 623 G.5. The trial court accepted Vanguard’s position that the Pennsylvania statute, which prohibits the imposition of prepayment penalties on mobile home installment contracts, was preempted by federal law. We reverse.

The Livingstons initiated this action after learning the amount due to pay-off a loan on a mobile home which they had purchased approximately 4V2 years earlier. The sales agreement made between the Livingstons and Keystone Trailer, Inc. declared that Keystone was assigning the contract to Vanguard who was providing the funding to the Livingstons. The contract provided that the Livingstons were financing $26,300.00 at a rate of 14% for 15 years. It also stated that the finance charges earned by Vanguard were to be calculated using the accounting method known as the “Rule of 78s”. After making payments for 4V2 years, the Livingstons informed Vanguard that they would like to pay-off the balance of their loan. Vanguard notified them that the pay-off figure, calculated as described in the contract, was $27,002.58, approximately $700.00 more than the principal amount of the Livingstons’ loan.

Alleging that this method of calculation resulted in a prepayment penalty as prohibited by 69 Pa.S.A. § 623, the Livingstons as representatives of a class sought to have the court enter an award of damages in their favor and issue an injunction against Vanguard. Vanguard then filed preliminary objections contending that this statutory provision was preempted by federal law governing the operation of Vanguard, a federal savings bank. The trial court accepted Vanguard’s position that Congress evidenced an intent to preempt state law on this subject by means of its extensive regulation in this area. The court also ruled that this state law directly conflicted with 12 U.S.C. § 1464(a), a regulation issued by the Federal Home Loan Bank Board (the Board) under the authority granted it by the Home Owners’ Loan Act of 1933, (HOLA), 12 U.S.C. § 1461 et seq.

Pre-emption may be either expressed or implied by Congress. Toolan v. Trevose Federal Savings and Loan Ass’n, 501 Pa. 477, 462 A.2d 224 (1983), citing Jones v. Rath Packing Co, 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977), rehearing denied 431 U.S. 925, 97 S.Ct. 2201, 53 L.Ed.2d 240 (1977) “[W]hen Congress has unmistakably ... ordained, ... that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 419 A.2d 431 at 438, (1980) citing Jones v. Rath Packing Co, supra. Whether examining explicit language or the structure and purpose of a federal scheme of regulation, a court must proceed with caution. “[I]t must start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Lukus v. Westinghouse Electric Corp., supra, quoting Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This assumption was created to ensure that “the federal-state balance, ... will not be disturbed unintentionally by Congress or unnecessarily by the courts.” Lukus v. Westinghouse Electric Corp., supra, quoting, Jones v. Rath Packing Co., supra, 430 U.S. at 525, 97 S.Ct. at 1409.

In this case the trial court found that preemption could be inferred since Congress had given the Board sufficient authority to entirely dispute state law which would purport to regulate the operation of a federal association. In'support of its ruling the trial court cited a federal regulation which provides:

The regulations in this Part 545 are promulgated pursuant to the plenary and exclusive authority of the Board to regulate all aspects of the operations of Federal associations, as set forth in section 5(a) of the Home Owners’ Loan Act of 1933, 12 U.S.C. 1464, as amended. This exercise of the Board’s authority is preemptive of any state law purporting to address the subject of the operation of a Federal association.

12 C.F.R. 545.2

It may be inferred that Congress intended to supersede state law altogether in a particular field where the scheme of federal regulation is so pervasive that it can be reasonably inferred that Congress left no room for the State to supplement it. Fidelity Federal Savings and Loan Ass’n v. De La Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Such an inference may also be made where the federal interest in a field is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject or where the “object sought to be obtained by federal law and the character of obligations imposed by it may reveal the same purpose.” Id. Rice v. Santa Fe Elevator Corp., supra, 331 U.S. at 230, 67 S.Ct. at 1152.

In Fidelity Federal, supra, the Supreme Court was asked to consider whether a Board regulation regarding due-on-sale clauses pre-empted conflicting state law. The Court recounted that the Board, an independent federal regulatory agency, was authorized under the provisions of HOLA to promulgate regulations governing the powers and operation of every federal savings and loan association from its cradle to its corporate grave. 458 U.S. 141, at 144, 102 S.Ct. at 3018; People v. Coast Federal Savings & Loan Ass’n., 98 F.Supp. 311, 316 (S.D.Cal.1951). Although the court acknowledged that Congress did not express any limits on the Board’s authority to regulate the lending practices of federal savings and loans, Fidelity Federal, supra, 458 U.S. at 160-61, 102 S.Ct. at 3026, Justice O’Con-nor in a Concurring Opinion wrote: “I join in the Court’s opinion but write separately to emphasize that the authority of the Federal Home Loan Bank Board to pre-empt state laws is not limitless. Although Congress delegated broad power to the Board ... it is clear that HOLA does not permit the Board to pre-empt the application of all state and local laws to such institutions.” Id. 458 U.S. 171, 102 S.Ct. at 3032. Further other courts have refused to find that Congress has occupied the entire field of federal savings and loan associations. See Departmento de Asuntos del consumidor v. Oriental Federal Savings Bank, 648 F.Supp. 1194 (D.P.R.1986) (where court recognized local law setting maximum interest rates for retail installment contracts); Ford Motor Co. v. Insurance Comm’r of the Commonwealth of Pennsylvania, 874 F.2d 926, 940 (3d Cir.1989) (where court declined to rule that by the Board’s regulations, “Congress left no room for supplementary state regulation.”)

We too conclude that Congress did not intend to displace state law entirely in this area. Although the broad scope of the Board’s regulations can be readily appreciated, we conclude that absent specific provisions detailing the pre-payment interest charges which federal savings and loans may charge on mobile home installment contracts, the Commonwealth of Pennsylvania was free to limit those charges. However, it is Vanguard’s position that the Board has expressly addressed the area of pre-payment charges which may be accessed on a mobile home loan. The trial court accepted this claim and ruled that the Pennsylvania statute directly conflicted with the federal regulation, therefore federal preemption must be upheld. We recognize that a federal regulation has no less pre-emptive effect than a federal statute, Fidelity Federal, supra, 458 U.S. at 153, 102 S.Ct. at 3022, however, we must dismiss this preemption argument simply because the Pennsylvania statute is not in direct conflict with any federal regulation.

The Pennsylvania statute in question permits mobile home installment contracts to be prepaid without any penalty or other charge. 69 P.S. § 623 G. 5. Vanguard claims that this statute conflicts with 12 C.F.R. § 545.34(c) which provides:

Limitations for home loans secured by borrower-occupied property.
(c) Loan, payments and prepayments. Except for loans to natural persons secured by borrower-occupied property and on which periodic advances are being made, payments on the principal indebtedness of all loans on real estate shall be applied directly to reduction of such indebtedness, but prepayments made on an installment loan may be reapplied from time to time wholly or partly to offset payments which subsequently accrue under the loan contract. Subject to the disclosure provisions of § 545.-33(f)(2), an association may impose a penalty on prepayment of a loan as provided in the loan contract____

12 C.F.R. § 545.34(c) (emphasis added).

The trial court accepted Vanguard’s position that this regulation covers the subject of prepayment charges on the sale of a mobile home despite Appellants’ contention that this regulation deals solely with prepayment charges on “home” loans which do not include mobile homes. Vanguard supports it interpretation by reference to 12 C.F.R. § 555.17 which further details the provisions of § 545.34(c) and which uses the general term “loans” rather than “home loans” to describe § 545.34(e)’s application. Section 555.15 provides:

Section 545.34(c) makes clear that, with the exception of certain instances enumerated therein, the charging of a prepayment penalty is a matter of contract between a Federal association and a borrower, and that the borrower may wholly or partly prepay the loan without penalty unless the loan contract contains an express provision imposing a prepayment penalty. Thus, in view of the controlling Federal regulation, a Federal association may include a prepayment provision in the loan contract up to the maximum limitation of § 545.34(c) regardless of conflicting State law which sets a lower limit or imposes a different type of prepayment penalty, but it may not charge prepayment penalty exceeding the limit in § 545.-34(c) even if State law allows a higher charge.

12 C.F.R. § 555.15.

Although it is true that this interpretative section uses the general word “loan” in reference to the provisions of § 545.34(c), the actual language contained in § 545.34(c) must control its application. The heading to § 545.34 is titled “Limitations for home loans____” The term “home loan” is again contained in the provision of subsection (c) where it states: “Notwithstanding the above, for any home loan ...” The definitional section of the regulations define the term “Home” as: “Real estate comprising a single-family dwelling(s) or a dwelling unit(s) for four or fewer families in the aggregate.” 12 C.F.R. § 541.14. Reference to real estate is also found within the regulation itself: “payments on the principal indebtedness of all loans on real estate.” 12 C.F.R. § 545.34(c). Further, § 545.34(c) refers to certain disclosure provisions found in § 545.33(f)(2). This regulation requires disclosure material to be provided to an applicant including the amount of the charge or prepayment penalty which may be imposed or the manner in which it is to be determined. The disclosure is required for “all home loans secured by borrower-occupied property.” 12 C.F.R. 545.33(f) (emphasis added.)

Vanguard is unable to point to any case which applies § 545.34(c) to a mobile home sale. The language of this regulation speaks only to home loans, which are loans for real estate. A mobile home does not fit into this category. The term “loan” cannot be read apart from the word “home” in the context of § 545.34(c). The regulations promulgated by the Board do contain a specific section addressing mobile homes entitled “Manufactured home financing.” § 545.45. However, this section makes no reference to prepayment charges. Our interpretation of § 545.34(c) as applying only to “home loans” is also bolstered by a reading of certain provisions of HOLA, the act responsible for vesting the Board with the authority to administer its provisions through the issuance of regulations and rules. Fidelity Federal, supra, 458 U.S. at 144-45, 102 S.Ct. at 3018. This Act grants Associations the ability to “deal” with certain enumerated loans. 12 U.S.C. § 1464(c). Among the investments which are permitted are “Real property loans.” These are defined as: “Loans on the security of liens upon residential or nonresidential real property ...” 12 U.S.C. § 1464(c)(1)(B). Mobile homes loans are not covered in this section, instead they are addressed in a separate section which addresses investments in personalty. 12 U.S.C. § 1464(c)(2)(A) permits investments, limited by certain percentage of an association’s assets, for personalty which is defined as: “Investments in tangible personal property including, without limitation, vehicles, manufactured homes, machinery equipment, or furniture for rental or sale____” (emphasis added.)

Based upon a reading of the language of § 545.34(c), the related regulations and the provisions of HOLA, we conclude that the trial court erred in finding that, in direct contrast to the Pennsylvania statute, the Board expressly permitted a federal association such as Vanguard to provide a prepayment penalty provision in its loan contracts for the sale of mobile homes. Absent such an express provision, we conclude that the Pennsylvania statute prohibiting the charge of a prepayment penalty on a mobile home installment contract, is not preempted by federal law.

In support of their argument that the Pennsylvania statute has not been preempted, Appellants’ make one final claim which, when examined, does not alter the outcome of this case or our analysis. Appellants contend that the Board has expressly authorized the states to enact laws limiting prepayment charges which are designed to protect borrowers. See 12 C.F.R. § 590.3(c). The regulations found at § 590 are issued under section 501 of the Depository Institutions Deregulation and Monetary Control Act of 1980, (DIDMCA), Pub.L. 96-221, 94 Stat. 132, 161. Unlike the regulations under HOLA, which govern federally chartered savings and loan associations, the regulations under the DIDMCA are applicable to “federally-related residential mortgage loans”. 12 C.F.R. § 590.1(b). Further, a federally related loan for the purchase of a residential manufactured home is required under these regulations to contain certain consumer safeguards. 12 C.F.R. § 590.3(a)(iii). It is undisputed that the loan at issue did not contain each of these safeguards. See 12 C.F.R. § 590.4. Thus, the language in § 560.3(c) permitting states to limit prepayment charges is inapplicable to the instant case.

In conclusion we find the trial court erred in sustaining Vanguard’s preliminary objections. We reverse the trial court’s order and remand this case for further proceedings. Jurisdiction is relinquished.

      . The effect of this assignment will not be discussed in view of our determination that Vanguard remains subject to Pennsylvania law regarding prepayment penalties for mobile home installment contracts.

      . 69 P.S. § 623 G.5. provides in relevant part:
      Mobile home installment contracts contracted for on or after the effective date of this amendatory act may be prepaid without any penalty or other charge for such prepayment at any time before the end of the period of the loan.

      . The trial court did not consider the question of whether calculations of interest which are done by the “Rule of 78s" result in the payment of a prepayment penalty, and we likewise do not address this question for purposes of this appeal.

      . The term manufactured home is defined as
      “a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length, or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein____”
      42 U.S.C. § 5402(6).


author: POPOVICH, Judge: McEWEN, Judge,

text:
    563 A.2d 180
    David George McFADDEN, Appellant, v. Marjorie Marotte McFADDEN.
    Superior Court of Pennsylvania.
    Argued March 7, 1989.
    Decided Aug. 2, 1989.

      Lynn Y. MacBride, Chambersburg, for appellant.
    Sandra L. Meilton, Harrisburg, for appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

The appellant, David McFadden, appeals from the denial of his petition to terminate or reduce his spousal support obligations. We reverse and remand for proceedings in accordance with the provisions of this opinion.

On October 1, 1981, David McFadden and Marjorie McFadden were granted a divorce. At the same time, the parties entered into a Stipulation and Agreement which was approved by the court and incorporated into the divorce decree. The Stipulation and Agreement covered the issues of alimony and equitable distribution of property. In regard to alimony, the Agreement provides that “The plaintiff [David McFadden] is to pay the defendant [Marjorie McFadden] alimony in the amount of $400.00 per month so long as she may live or until changed by order of court, ...” Concerning the equitable distribution of their property, the Agreement provided that the. marital residence became property of the parties as tenants in common subject to several conditions: First, Marjorie McFadden was granted the right to possess and occupy the residence during her lifetime or until she decides to cease occupying the home permanently; second, she was obligated to maintain the property; and third, upon sale of the property, the parties are to divide the proceeds equally or David McFadden is to receive $22,5000 whichever is less. The Agreement further provided that “All other property of the plaintiff and defendant, whether marital property or not, shall become the absolute property of the party now having possession or control or ownership thereof, ...” The Agreement also provided for the payment of taxes and counsel fees.

For four and one-half years” David McFadden faithfully complied with the Stipulation and Agreement. However, on March 13, 1986, he filed a petition to terminate or reduce alimony due to his impending retirement on April 1, 1986. A Master was appointed to hear the petition. He found that the Agreement was modifiable and that the approximately 56% reduction in David McFadden’s income due to his “good faith” retirement constituted a substantial change in circumstances warranting modification. After the hearing, the Master recommended a reduction in alimony from $400 per month to $320 per month. Both parties filed exceptions to the Master’s Report. Upon review, the lower court found that the Agreement did not contain a specific modification clause and, consequently, held the Agreement was not modifiable. The court further opined that David McFadden’s retirement was a foreseeable and expected change and did not qualify as a substantial change in circumstances which would warrant modification. This appeal followed.

On appeal, David McFadden contends: 1) The lower court erred in ruling that the Stipulation and Agreement’s provision regarding alimony was not modifiable due to the absence of a modification clause; 2) The lower court erred in ruling that, even if the Agreement was modifiable, there has not been a substantial and continuing change of circumstances which would justify modification; and 3) His pension was awarded in toto to him as a part of the equitable distribution of marital property, and, consequently, it should not be included as income for the purpose of computing his alimony obligation.

When reviewing alimony orders, our review is limited to a determination of whether the lower court committed an error of law or an abuse of discretion. Lee v. Lee, 352 Pa.Super. 241, 245-46, 507 A.2d 862, 865 (1986); Mazed v. Mazzei, 331 Pa.Super. 432, 480 A.2d 1111, 1113 (1984).

In ruling that the Stipulation and Agreement regarding alimony and property distribution which was incorporated into the divorce order was not modifiable, the lower court relied upon Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985). Therein, a panel of the Superior Court ruled that an agreement between the parties to a divorce action which addressed equitable distribution of marital property as well as alimony and which was reduced to a consent order could not be modified. However, “[t]o the extent that Stanley suggests that an agreed court order for the payment of alimony cannot be modified in the event of a substantial change in circumstances, ..., it has been overruled sub silentio by the opinion of the court en banc in Hollman v. Hollman, [347 Pa.Super. 289, 306, 500 A.2d 837, 846 (1985)].” Lee, 507 A.2d at 865 n. 2. Thus, by relying upon Stanley, supra, and ruling the alimony award was not modifiable, the lower court committed an error of law.

In Lee, supra, the court was presented with facts similar to those at bar. By agreement, William and Virginia Lee divided their marital property and made provision for alimony. This agreement, in fact, was merely an acknowledgement of an agreed court order for permanent alimony. The Lee court, following the Hollman decision, ruled that a court order for alimony entered pursuant to an agreement of the parties is subject to modification upon proof of a continuing and substantial change in the economic circumstances of the obligor. Lee, 507 A.2d at 864; 23 Pa.S.A. § 501(e) and (f). Similarly, we find that this agreement which was specifically incorporated into the divorce decree (and did not reject merger) is modifiable as to alimony if the appellant proves that a continuous and substantial change in circumstances has occurred. See generally, Sonder v. Sonder, 378 Pa.Super. 474, 485-95, 549 A.2d 155, 161-166 (1988); Factor v. Factor, 367 Pa.Super. 128, 132-35, 532 A.2d 823, 825-826 (1987).

It follows then that we must determine whether the lower court correctly determined the appellant’s retirement did not amount to a substantial change in circumstances warranting modification. The lower court expressly held: “[Wjhere the parties agreed upon the amount of the support, the foreseeable and expected change in employment status of one party does not qualify as a substantial change in circumstances justifying modification of the support. Com. ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983).” Trial Court Op. at 7. However, we must disagree with the trial court’s reasoning that the appellant’s knowledge of his retirement almost five years in the future automatically precludes a modification of the alimony order.

Section 501(e) of the Divorce Code expressly provides that any alimony order may be “modified, suspended, terminated, reinstated or a new order made” upon “changed circumstances.” As noted in Teribery v. Teribery, 357 Pa.Super. 384, 393, 516 A.2d 33, 37-38 (1986), an alimony award need not reflect all contingencies — “Should either party die or become disabled, for example, a petition for modification can be filed to reflect changed circumstances.” Thus, under the present circumstances, the alimony award did not need to reflect the contingency of voluntary retirement which was approximately five years in the offing.

Pennsylvania case law clearly establishes that retirement can serve as the basis for the changed circumstances of a substantial and continuing nature necessary to modify an alimony award. In Lee, supra, we found that the lower court erred when it refused to consider the changed financial circumstances of the appellant brought about by forced, early retirement. 507 A.2d at 865. In Mazzei, supra, we alluded to the fact that voluntary retirement can also constitute changed circumstances of a substantial and continuing nature. 480 A.2d at 1117 n. 6. Further, in Com. ex rel. Burns v. Burns, 232 Pa.Super. 295, 331 A.2d 768 (1974), and Com. ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135 (1965), we held that a husband’s retirement must be considered, in light of the attendant circumstances, to determine the extent of a husband’s responsibility to support his estranged spouse. Accordingly, we find the lower court abused its discretion in refusing to consider the changed financial circumstances of the appellant brought about by voluntary retirement.

Having determined that the alimony award was modifiable and that the appellant’s voluntary retirement (and its effect on the appellant’s financial status) was a sufficient change to allow modification of the alimony award, we must now address the appellant’s final question: Whether his pension which was allegedly awarded to him in toto as a part of the equitable distribution of marital property should be considered as income for the purposes of determining his alimony obligation.

Under Pennsylvania law, it is clear that the appellant’s pension was marital property subject to equitable distribution. Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Instantly, the appellant alleges that his pension has already been subjected to equitable distribution of marital property pursuant to the consent order whereby he retained absolute ownership of the fund. However, the record demonstrates otherwise. The appellant specifically admitted on-the-record that his pension was not even considered when the marital property was distributed. Notes of Testimony, February 3, 1987, pp. 22-23. Since his pension was not subjected to equitable distribution as it should have been, the pension must be considered when fashioning the alimony award.

Moreover, it is equally clear that income from a pension is to be considered when fashioning an alimony award, even if the pension was previously subjected to equitable distribution. See 23 Pa.S.A. § 501(b)(3), (10), (13); Pacella v. Pacella, 342 Pa.Super. 178, 190, 492 A.2d 707, 711-712 (1985) (court did not err in considering earlier equitable distribution property in fashioning alimony); Braderman, 488 A.2d at 620 (pension subject to equitable distribution also may be used to calculate alimony award). See also 23 Pa.S.A. § 501(a)(1); Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983) (when determining whether spouse seeking alimony has sufficient resources to provide for his or her reasonable needs, spouses property acquired through equitable distribution must be considered). Therefor, even if the appellant was previously granted absolute entitlement to the pension income, that income would still be used to determine alimony.

In sum, we find that the stipulation and agreement incorporated into the divorce decree is modifiable, and the appellant’s voluntary retirement constitutes a change of circumstances of a continuing and substantial nature. We are convinced that the lower court abused its discretion when it found: “When an agreement is entered into, however, with full knowledge of an impending change in a party’s employment status, the change in employment status, when it occurs, is not a change in circumstances sufficient to justify modifying the order.” However, it is important to note that our holding does not imply the appellant is entitled to a reduction in his support obligation; rather, we expressly direct the lower court to hold an evidentiary hearing on whether a modification is warranted in light of the factors enumerated in 23 Pa.S.A. § 501. In other words, the change in the appellant’s economic situation due to retirement merely allows him an opportunity to demonstrate the need for a reduction. Finally, we hold that the appellant’s pension must be considered when reviewing the propriety of the present alimony award. In accordance with the provisions of this opinion, we reverse and remand for a hearing on the appellant’s petition to modify his alimony obligation.

Reversed and remanded for proceedings in accordance with the provisions of this opinion. Jurisdiction relinquished.

McEWEN, J., files a Concurring and Dissenting Statement.

McEWEN, Judge,

concurring and dissenting.

I am of one mind with my distinguished colleagues of the majority that the alimony/equitable distribution agreement executed by the parties in October of 1981 and incorporated into the final decree of divorce, is modifiable upon a showing of a material change in circumstances, and also agree that pension monies received by appellant must be considered by the court in fashioning an alimony award. I must respectfully disagree, however, with the conclusion of the majority that appellant’s voluntary retirement at age sixty-five, within five years of execution of the agreement, constitutes such a material change of circumstances as would warrant modification of the alimony provisions of the parties’ agreement.

Had the parties intended appellant’s voluntary retirement at the customary age of sixty-five to constitute a material change of circumstances sufficient to allow reduction of the agreed amount of lifetime alimony payable to appellee, that intent should have been expressed in the stipulation and agreement since the event was but five years ahead and thereby clearly contemplated by both parties at the time of the execution of the agreement which provided for appellee to receive $300 per month alimony until her death.

Moreover, appellant’s retirement at age sixty-five has caused a minimal change in his economic circumstances. Appellant testified that he receives $300 per month in pension benefits ($3,600 per year), as well as $728 per month in Social Security benefits ($8,736 per year), and that his current wife, a bank teller, contributes approximately $12,000 per year to the household. Additionally, while appellant testified that he and his present wife anticipated interest income of $4,000 in 1987, they reported interest income, on their 1985 jointly filed 1040 form, in the amount of $10,084. Appellant’s estimate as to his 1987 interest income is further questionable since he testified that while he has not liquidated any of his certificates of deposit since that time, his estimate of decreased interest income for 1987 was based solely upon lower available interest rates. Thus, the testimony of appellant indicated that his household income for 1987 was an amount somewhere between $28,-336 and $34,336.

Since I believe the trial court properly found that appellant had not established a material change of circumstances, I would affirm the order of the learned trial judge.

      . We note that even if the agreement had not been incorporated into a court order and thereby modifiable under the Divorce Code, the agreement would have been modifiable as a contract in an assumpsit action. See generally Hollman, supra. Instantly, the lower court, erroneously applying Equitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 488 A.2d 270 (1985) ("unless plainly meant otherwise a modifying clause operates only upon the phrase preceding it”), reasoned that the modification clause only applied to the durational aspect of the alimony award. Contrary to the findings of the lower court, we find that the clear language of the agreement specifically provided that the amount and duration of the alimony were subject to modification by order of court.

      . The trial court’s reliance on Scanlon, supra, is misplaced. In Scanlon, supra, the husband petitioned to reduce support contending that his financial situation and his wife’s employment status had changed. The lower court granted the petition. However, the Superior Court reversed reasoning that the change of circumstances did not warrant a reduction of support. We so decided for two reasons: First, there was no material or substantial change in Mr. Scanlon’s financial status; and second, Mr. Scanlon, at the time he signed the support agreement, knew of his wife's impending employment, and, in fact, Mrs. Scanlon began working full-time prior to the entry of the consent order.
      The factual distinctions between Scanlon, supra, and the case sub judice are obvious. Instantly, the appellant’s earnings have been reduced substantially, and the act which caused the changed circumstances, his “good faith" retirement, occurred five years after entry of the original alimony order.

      . The purpose of the Divorce Code is to ”[e]ffectuate economic justice between parties ... according to the actual need and ability to pay ..." 23 Pa.S.A. § 102(a)(6). As stated in Com. ex rel. Burns v. Burns, 232 Pa.Super. 295, 299, 331 A.2d 768, 771 (1974):
      If there is strong evidence indicating that a man planned his retirement so as to retire at the age of 61 then we are of the strong opinion that even if he and his wife were living together there could be no complaint on the part of the wife that her income would be reduced. Certainly this being so, an estranged wife would have no greater claim on such a husband.
      Similarly, the record before us reveals that the appellant did not retire in an effort to reduce the amount of support due his ex-wife. The Master specifically found that the appellant’s retirement was made in “good faith.” Thus, the appellee should not automatically be allowed to avoid review of the original alimony award simply because the orginal agreement did not expressly plan for retirement.

      . Prior to retirement, the appellant’s earned income from Chambers-burg Engineering Company was as follows: 1984 — $38,089.00, 1985— $36,040.00. Appellant pension income is $3,600.00 per year supplemented by $8,736.00 in social security benefits. Master’s Report, p. 5.


author: KELLY, Judge:

text:
    563 A.2d 502
    COMMONWEALTH of Pennsylvania v. Darvin BRITCHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed Aug. 10, 1989.

      Daniel W. Stern, New Bloomfield, for appellant.
    Gloria J. McPherson, Asst. Dist. Atty., Shermans Dale, for Com., appellee.

      Before BECK, KELLY and HESTER, JJ.
   KELLY, Judge:

A jury convicted appellant, Darvin Britcher, of homicide by vehicle while driving under the influence, homicide by vehicle, involuntary manslaughter, and driving under the influence in connection with a fatal single car accident which occurred at 2:53 on the morning of Thursday, February 19, 1987. Appellant was granted a new trial on the homicide by vehicle charge because of an erroneous jury instruction, and was sentenced on the remaining convictions. On appeal, he contends that: convictions for homicide by vehicle while under the influence and homicide by vehicle were inconsistent and violative of double jeopardy and due process protections; statements made by him at the hospital should have been suppressed; expert toxicology testimony was improperly admitted; and, a jury instruction on the effect of alcohol on a fatigued individual was improper and prejudicial. We find no merit in the contentions.

Facts and Procedural History

On appeal, we must view the record in the light most favorable to the Commonwealth as the prevailing party, all conflicts in the evidence must be resolved in favor of the Commonwealth, all reasonable inferences in favor of the Commonwealth must be allowed, and we must give due consideration to the fact that the jury was free to reject as not credible even uncontradicted evidence in favor of the defense. Viewed in this light, the record establishes the following.

At approximately 8:30 p.m. on Wednesday, February 18, 1987, appellant, then nineteen years old, went to a social gathering at the home of a friend located a short distance down a gravel road off Route 74 in Saville Township, Perry County, Pennsylvania. Several other underage youths were there, all were illegally drinking beer from cans and from cups filled from a beer keg purchased during the course of the evening. Appellant admits to having had about nine beers; however, he acknowledged that he had not counted but merely estimated his consumption based on how intoxicated he felt. He claimed that he could hold his liquor well, and that he did not generally become impaired until he had about eighteen beers. Expert toxicology evidence indicated that appellant underestimated his consumption of alcohol.

Appellant decided to leave the gathering and go home at approximately 2:50 a.m. on the morning of Thursday, February 19, 1987. Though all of the people at the party who testified at trial indicated that appellant did not appear intoxicated, the record does contain the following significant exchange during redirect examination of Terry Cam-bell, the host of the gathering:

Q. If you thought at the time Darvin was leaving your house he was incapable of driving, what would you have done?
A. I would have told him to stay. But he wanted to go home. You can’t stop a person if they want to leave.

(N.T. 8/25-26/87 at 176). (Emphasis added).

Appellant agreed to give two friends a ride home, Tony and Harry Kegg. Tony climbed into the back seat. Harry took the front seat. None of the three used their safety belts.

Appellant drove down the gravel road to Route 74 at a moderate rate of speed. When he reached Route 74, however, he quickly accelerated to approximately 80 miles per hour. Tony, in the back seat, though intoxicated, became excited and nervous. He told appellant to slow down and that he wanted to reach home alive. Appellant did not slow down, and so Tony climbed off the seat and crouched down behind the front seats. Appellant then told Tony that he had everything under control and that Tony should get back up in the seat. Tony did, briefly. Tony soon saw that appellant was not in control, and that they were going to crash. He jumped back down behind the front seats.

As appellant’s car approached a curve just less than a mile from where the gathering had been held, it slid across its lane, onto the shoulder, and off the road. It struck an embankment, some shrubs, a tree, and a telephone pole, flipping over in a roll, and finally coming to a rest again on its wheels. The car was demolished, all of the windows were shattered, and debris was scattered over a wide area. Appellant and both of the passengers were thrown from the car during the accident. Appellant suffered a broken leg. Tony was knocked unconscious and suffered serious injuries. Harry died.

When interviewed at the scene, appellant acknowledged that he had been the driver. When interviewed later at the hospital (after being given full and correct Miranda warnings) appellant acknowledged again that he had been the driver, indicated that he had drunk nine beers that evening and that he may have been driving too fast, and consented to a blood alcohol test. The blood sample was drawn approximately three and one-half hours after the accident; tests indicated that appellant then had a blood alcohol content (BAC) of .14 percent. Appellant had no alcohol between the time of the accident and the time the blood sample was drawn for the BAC test.

Pre-trial suppression motions were denied. Following a two day jury trial, appellant was convicted of homicide by vehicle while under the influence, homicide by vehicle, involuntary manslaughter, and driving under the influence. On post-verdict motions, the trial court vacated the homicide by vehicle conviction and ordered a new trial on that charge based upon an erroneous jury instruction as to the culpable mental state required for the offense. All other motions were denied.

Appellant was sentenced to a three to six year term of imprisonment on the homicide by vehicle while under the influence conviction, and a concurrent term of two and one-half to five years on the involuntary manslaughter conviction. The driving while under the influence conviction was deemed to have merged with the homicide by vehicle while under the influence conviction. This timely appeal followed.

On appeal, appellant contends simultaneous conviction of homicide by vehicle and homicide by vehicle while under the influence violates the Double Jeopardy and Due Process provisions of the Pennsylvania and United States Constitutions; statements made at the hospital should have been suppressed; expert toxicology testimony was improperly allowed; and, the trial court erred in its charge to the jury. We find no merit in the contentions, and shall discuss each seriatim.

I. DOUBLE JEOPARDY AND DUE PROCESS

Appellant contends that both the Double Jeopardy and Due Process provisions of the Pennsylvania and United States Constitutions are violated when the Commonwealth is permitted to try a defendant on two allegedly inconsistent charges for the same criminal acts. Appellant argues:

Where findings of guilt on two separate offenses impliedly require mutually exclusive factual determinations, the rights of the accused to due process of law and to freedom from double jeopardy are violated. Here, in order to be guilty of HBV/DUI, the jury had to conclude that the Defendant caused a death because of an alcohol related impairment in his driving; in order to convict the Defendant of the companion charge of HBV, the jury had to conclude that the cause of death was any violation of the Motor Vehicle Code except alcohol related impaired driving. There is no justice where the Commonwealth can ask the jury to “elect" between two alternative causes of death. Accordingly, the Defendant should be granted a new trial, and the Commonwealth should be required to choose between a prosecution based on HBV/DUI or one based on HBV.

(Appellant’s Brief at 6) (emphasis added). Appellant’s argument is severally flawed.

A. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See North Carolina v. Pierce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Appellant’s contention that he should not be tried for both homicide by vehicle and homicide by vehicle while under the influence implicates none of the above interests. Hence, his double jeopardy claim must fail in that respect.

To the extent appellant also challenges retrial on the homicide by vehicle charge based upon alleged double jeopardy implications of being sentenced for both homicide by vehicle and homicide by vehicle while under the influence, his claim must also fail. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1931), the Supreme Court explained the scope of double jeopardy protection against multiple punishments for separate offenses arising from the same transaction as follows:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there aré two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’

Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. (Emphasis added). See also United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Thus, for two crimes arising from the same transaction to constitute the same offense, a comparison of their statutory elements must reveal that proof of one offense will necessarily prove the other. Illinois v. Vitale, supra. Appellant concedes that homicide by vehicle and homicide by vehicle while under the influence each contain an element which the other does not; hence, no double jeopardy interest is violated by imposition of separate sentences for both offenses arising from a single accident.

B. Due Process

Appellant argues that it is “unfair” to make him defend against two mutually inconsistent theories of liability, i.e. Harry Kegg died as a direct result of appellant’s intoxication, or Harry Kegg died as a direct result of appellant's reckless speeding. Appellant would have this Court require the Commonwealth elect before trial which theory of liability it intended to pursue. We cannot agree.

Assuming for the moment that the elements of the offenses rendered the offenses “mutually inconsistent,” it certainly would not follow that “due process” would require the Commonwealth to elect to pursue one or the other theory before trial. If so, a defendant could escape conviction on one theory, by proving he was guilty under the other. Due process does not mandate such a result.

Arguably, conviction of mutually inconsistent offenses would raise due process concerns after trial. While an inconsistency with regard to a conviction and a mutually inconsistent acquittal may be explained in terms of an unreviewable exercise of “mercy” or “jury nullification” powers, mutually inconsistent convictions could not be justified on such grounds. See Commonwealth v. Frisbie, 506 Pa. 461, 467, 485 A.2d 1098, 1099 (1984) (when crimes are mutually inconsistent only one sentence may be sustained); cf. Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988) (en banc, discussing inconsistent verdicts).

Nonetheless, we are faced with no such situation here. While homicide by vehicle and homicide by vehicle while under the influence each require proof of direct causation of the same death by different causes, the causes need not be “mutually inconsistent.” Succinctly, an effect may have more than one direct cause. See Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961). Multiple causes may all give rise to criminal liability so long as one does not supervene the other and each may properly be considered direct and substantial. Id., 170 A.2d at 313. Such causes may properly be characterized as substantial concurrent causes.

Here, appellant was recklessly speeding and he was intoxicated. Reckless speeding forms the predicate for one conviction, intoxication forms the predicate for the other. While the theories of criminal liability may overlap with regard to the causal nexus between intoxication and the death of the victim, there is no “mutual exclusivity” upon which a due process claim may properly be raised. Hence, the due process aspect of appellant’s first claim is without merit.

II. SUPPRESSION OF HOSPITAL STATEMENT

Appellant contends that his statements at the hospital should have been suppressed because he was visibly intoxicated and in severe pain; and therefore, could not have entered a voluntary, knowing, and intelligent waiver of his right against self-incrimination. We cannot agree.

Nowhere in the record does it appear that appellant was formally arrested or subjected to conditions of detention “functionally equivalent to arrest” prior to or during the interview in the hospital emergency room which produced the statements appellant sought to suppress. Indeed, in what appears to be an exercise of compassion and forebearanee in light of the tragic death of appellant’s friend, the officer merely issued appellant a citation on February 19, 1987, and a summons on February 20, 1987. Appellant was not formally arrested on any charge relating to this incident until the day of his preliminary arraignment on March 4, 1987. Thus, it appears that appellant was not taken into “custody,” and therefore, no Miranda waiver was required. See Pennsylvania v. Bruder, 488 U.S. —, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988); Commonwealth v. Gonzalez, 519 Pa. 116,124-125, 546 A.2d 26, 30 (1988); Commonwealth v. Ellis, 379 Pa.Super. 337, 356, 549 A.2d 1323, 1328-34 (1988) (collecting cases).

Moreover, there is sufficient evidence to sustain the trial court’s conclusions that full and correct Miranda warnings were given, and that a voluntary, knowing, and intelligent waiver was made.

Recent United States Supreme Court cases have made it clear that a Miranda waiver is valid as “a matter of law” if: full and correct Miranda warnings are given; the suspect has sufficient capacity to understand the warnings; and the suspect’s decision to waive his rights was not the product of official/govemmental coercion. See Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); see also Berger, Compromise and Continuity: Miranda Waivers, Confession Admissibility, and the Retention of Interrogation Protections, 49 U.Pitt.L.Rev. 1007, 1007-64 (1988) (analyzing the above cases, reaching the same conclusion, and characterizing the result as “a reasonable effort to achieve a balance”); Boyle, Waiving Miranda Goodbye?, 21 Creighton L.Rev. 239, 239-63 (1987) (analyzing the above cases, reaching the same conclusion, and characterizing the result as “constitutionally sound”). While some commentators have criticized the narrow focus of the United States Supreme Court’s construction of Miranda’s requirement of a “voluntary, knowing, and intelligent” waiver, they nonetheless concede that the Supreme Court has in fact narrowed the focus in the manner suggested above. See e.g. Dix, Federal Constitutional Confession Law, 67 Tex.L. Rev. 231, 231-349 (1988); Shultz, “Officer, What’s the Charge? ”, 30 Ariz.L.Rev. 551, 551-70 (1988); Gehring, Colorado v. Connelly: The Demise of Free Will as an Independent Basis for Finding a Confession Involuntary, 33 Vill.L.Rev. 895, 895-923 (1988).

Here, appellant contends that his Miranda waiver could not be deemed to have been made “voluntarily, knowingly, and intelligently” because he was intoxicated and in severe pain. If his intoxication and the pain combined to render him incapable of understanding the Miranda warnings, his waiver would in fact be invalid. See e.g. Commonwealth v. Cephas, 361 Pa.Super. 160, 522 A.2d 63 (1987); Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984). Likewise, appellant must also have known what he was saying, and have intended to say it. Commonwealth v. Edwards, 521 Pa. 134, 148-149, 555 A.2d 818, 825 (1989).

However, there is no per se rule of suppression based upon a mere showing of cognitive impairment. See Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Cephas, supra, 522 A.2d at 66 (Olszewski, J. concurring). Rather, when evidence of impairment is present, it is for the suppression court to decide whether the Commonwealth has established by a preponderance of the evidence that the suspect nonetheless had sufficient cognitive awareness to understand the Miranda warnings and to choose to waive his rights. See Commonwealth v. Edwards, supra, 555 A.2d at 826; Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987); Commonwealth v. Devereaux, 304 Pa.Super. 327, 450 A.2d 704 (1982).

In Cephas and Anderl, the suppression court found that the prosecution failed to meet its burden. Here, on the other hand, the suppression court held that the burden was met. As the suppression court’s finding is fully supported by the investigating officer’s testimony, we find no error or abuse of discretion in the trial court’s decision not to exclude the statements. Cf. Commonwealth v. Edwards, supra, 555 A.2d at 826-827. Hence, appellant’s second contention is found to be without merit.

III. EXPERT TOXICOLOGY EVIDENCE

Appellant’s third contention is that the trial court abused its discretion in permitting the testimony of the Commonwealth’s expert, a forensic toxicologist, with respect to appellant’s blood alcohol content at the time of the accident. Specifically, appellant contends that the testimony of the Commonwealth’s expert, Dr. G. Thomas Passananti, should not be considered where: (1) the Commonwealth failed to lay a proper foundation for the expert’s opinion based on “retrograde extrapolation;” (2) the witness was permitted to testify regarding impairment at a blood alcohol content of less than .05%; and (3) the witness was permitted to contradict the judicially noticed fact that alcohol is absorbed into the bloodstream in the 30 to 90 minute period following its ingestion. We cannot agree.

It is axiomatic that the admissibility of expert testimony is a matter within the broad discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. See Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Ametrane, 205 Pa.Super. 567, 210 A.2d 902, aff'd 422 Pa. 83, 221 A.2d 296 (1965). Under Pennsylvania law, an expert may not base an opinion on conjecture or guesswork, however, an expert opinion may be given in response to a hypothetical question posed by counsel so long as the assumed set of facts upon which the opinion is to be based is eventually supported by competent evidence and the reasonable inferences derivable therefrom. See Commonwealth v. Anderson, 381 Pa.Super. 1, 12-13, 552 A.2d 1064, 1070 (1988) citing Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). Moreover, any deficit in the clarity of, or basis for, the assumptions upon which the hypothetical is based, may be cured by adequate cross-examination, or redirect examination. Commonwealth v. Gilliard, 300 Pa. Super. 469, 446 A.2d 951 (1982).

We have carefully reviewed the testimony of the Commonwealth’s witness, Dr. Passananti, and find that his testimony regarding hypothetical questions and estimations fell within the permissible realm of expert testimony. Further, Dr. Passananti’s answers were the type that would materially assist the jury in its search for truth on the issues. See Commonwealth v. Rodgers, 364 Pa.Super. 477, 528 A.2d 610 (1987); see also Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976).

The expert was permitted to give an expert opinion based upon a hypothetical scenario presented by the Commonwealth which was plainly supported by reasonable inferences derivable from the evidence presented during the trial. Contrary to appellant’s assertions, the scenario was supported by facts already presented, or expected and in fact later presented, regarding each of the variables the expert deemed relevant to this calculation of appellant’s BAC at the time of the accident. Moreover, the expert was cross-examined in minute detail regarding the basis for his retrograde extrapolation of appellant’s BAC at the time of the accident and in similar detail regarding the effects of any variance in the various relevant factors considered. We find that the foundation for the expert’s retrograde extrapolation was sufficient, and any arguable defects in the foundation, because of the assumptions upon which it was based, were cured during the course of cross-examination. We note that the jury was specifically instructed that in accessing the weight to accord the expert testimony, it should consider, along with other factors, the degree to which the expert’s hypothetical assumptions corresponded to their actual findings on the relevant facts.

In Commonwealth v. Gonzalez, supra, our Supreme Court held that retrograde extrapolation testimony was improperly admitted when there was no evidence as to when the suspect had his last drink, because the expert opinion assumed a fact not supported by the evidence, i.e. that appellant’s BAC peaked at or prior to the moment of impact. Our Supreme Court reasoned that the expert opinion should not have been admitted because it distorted the evidence presented, and permitted the jury to base its verdict on unsupported conjecture. 546 A.2d at 33-35. Here, on the other hand, the expert (giving appellant the benefit of all possible doubts) assumed for the purpose of the extrapolation that appellant drank his last beer at the moment of impact, and that since that alcohol would not have been absorbed into the blood stream, the BAC would have been .18 rather than .203, which the expert’s calculation would otherwise have indicated.

Moreover, with regard to appellant’s assertion that there was no evidence as to when appellant consumed the alcohol detected by the blood test three and one half-hours after the accident, appellant himself and several other people at the party indicated that appellant had been drinking casually from about 8:30 p.m. to sometime around 2:45 a.m. that night. Neither appellant, nor Tony Kegg, nor any other witness indicated that appellant drank in the car, or had downed several beers shortly before leaving. Thus, the jury could reasonably infer from the evidence presented that appellant had one, two or at most three beers during the critical 30 to 90 minute period before the accident.

Moreover, given the degree by which appellant’s extrapolated BAC exceeded the legal limit, any variance between the expert’s assumptions and the jury’s actual findings with respect to how many beers appellant had within the critical 30 to 90 minute period before the accident would be inconsequential. The jury was informed that the extrapolated BAC should be reduced from .203 by .02 for every beer consumed in the relevant time period. Hence, the jury was provided with a simple formula to reach its own estimate of the BAC, based upon its own findings rather than the expert’s assumptions as to how many beers were consumed in that period.

In this regard it is important to recall that appellant’s precise BAC at the time of the accident was not critical to any issue at trial. Rather, the expert testimony was offered to assist the jury in determining whether the evidence established beyond a reasonable doubt that appellant’s BAC was at least .10 at the time of the accident. Cf. Commonwealth v. Hanes, 361 Pa.Super. 357, 366-367, 522 A.2d 622, 626 (1987) (an accurate determination of the precise value of stolen logs was not required so long as the formula provided by the expert permitted jury to conclude beyond a reasonable doubt that the logs were worth at least a particular amount). Despite the imprecision involved, we find that the expert testimony was helpful, and not confusing or prejudicial under these circumstances. Hence, Gonzalez is materially distinguishable and therefore inapposite.

Appellant’s contention that the expert’s references to the effects of alcohol at BAC levels less than .05 constitutes reversible error is likewise without merit. Here the evidence plainly established that appellant’s BAC was above .10 at the time of the accident. Hence, the reference was superfluous, and harmless beyond a reasonable doubt in this case. Consequently, we decline to address appellant’s novel contention that 75 Pa.C.S.A. § 1547(d) creates a conclusive negative presumption that persons with BAC levels of less than .05 are not intoxicated, and which mandates exclusion of evidence of the effects of BAC levels below .05 on an individual’s driving skills. See generally Perrine, et al., Special Report 216: Zero Alcohol, Ch. 3 “Alcohol, Performance, and Crash Risk,” at 39-66 (Trans. Research Bd.1987) (discussing the significant effects of BAC’s at or below .04, collecting authorities).

Finally, appellant’s contention that the expert was improperly permitted to contradict a judicially noticed fact is also meritless. The fact judicially noticed, i.e. that alcohol is absorbed into the blood stream during a 30 to 90 minute period, is an expression of a convenient generality. The well-qualified expert in this case did not contradict that generalization. Rather, he merely elected to provide a more precise statement of the absorption phenomenon by explaining that absorption was unlike elimination in that absorption did not occur at a constant rate, and that the greater percentage of the alcohol consumed would be absorbed early in the period. He explained further that the 30 to 90 minute generalization reflected the time for total absorption. See Special Report 216: Zero Alcohol, supra, at 41-42 (discussing the absorption phenomenon in similar terms). We find no contradiction. More importantly, we find no basis in this record to question the well-qualified expert’s explanation of the subtleties of the absorption process.

Hence, each of appellant’s challenges to the expert’s testimony are found to be without merit.

IV. JURY INSTRUCTIONS

Appellant’s final contention on appeal is that the trial court erred in its charge to the jury by instructing the jury to consider the effects of alcohol on a fatigued individual where there was no scientific evidence introduced to support the conclusion that fatigue in any way influences alcohol’s impact on an individual, and that the trial court also erred in rejecting his request for binding instructions with respect to the testimony of Dr. Passananti for the same reasons argued above in favor of exclusion of his testimony. We cannot agree.

In Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986), an undivided en banc panel of this Court summarized the law regarding alleged errors in jury instructions as follows:

In reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole; error cannot be predicated on isolated excerpts, and it is the general effect of the charge that controls---- Moreover, there is no right to have any particular form of instruction given; it is enough that the charge clearly and accurately explains the relevant law____ Where the charge given properly covers the requested point, it is not error for the trial court to refuse to give additional instruction.

516 A.2d at 381 (citations omitted); see also Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987).

The trial court instructed the jury to determine the impact of alcohol upon the appellant, an admittedly tired individual, on the night in question. We find nothing wrong with this instruction. A driver’s fatigue, if any, is unquestionably a proper factor for a jury to consider in determining whether the driver was intoxicated to a point where the driver was incapable of driving safely. It does not require expert testimony to support a conclusion that the effects of alcohol on a tired driver may be greater than on a fully rested one. To the contrary, alcohol is generally known to have sedative effects which increase fatigue, and which consequently increases the risk of crashing by dulling reflexes and/or increasing the risk of falling asleep at the wheel. Thus, the combined effects of alcohol and fatigue may render a driver “incapable of driving safely” within the plain meaning of the statute. See Report 216: Zero Alcohol, supra, at 58; Landaurer & Howatt, Low and Moderate Alcohol Doses, Psychomotor Performance and Perceived Drowziness, 26 Ergonomics 247, 247-57 (1983); Ryder, Manlin & Kinsley, The Effects of Fatigue and Alcohol on Highway Safety (N.T.S.1981). Hence, we find no error in this instruction.

Finally, as we find that the court committed no error in admitting Dr. Passananti’s testimony, there was similarly no error in the court’s rejection of appellant’s request for binding instructions to reject that testimony on the same grounds. Therefore, we find appellant’s final contention wholly without merit.

Conclusion

Judgment of Sentence is affirmed.

      . The jury may reasonably have construed the highlighted portion of the above answer to have substantially, albeit inadvertently, undermined the testimony of appellant's friends that appellant appeared sober to them at the time he left.

      . Even without considering the fact that a significant part of any alcohol consumed within the critical period would have been absorbed into appellant’s blood stream at the time of the accident, and therefore would have raised appellant’s BAC, appellant would still have had to have consumed at least six beers in the critical 30 to 90 minute period before the accident for his BAC at the time of the accident to have been less than .10. It was clearly reasonable for the jury to infer from the testimony of the various witnesses that such copious drinking during the critical 30 to 90 minute period before the accident did not occur.