author: BROSKY, Judge:

text:
    498 A.2d 1361
    Virginia M. SCHENK, Appellant, v. OHIO CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Oct. 4, 1985.

      John V. Hasson, Ambler, for appellant.
    William B. Brooks, Norristown, for appellee.
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   BROSKY, Judge:

This case is before us on judgment entered in favor of the defendant, Ohio Casualty Insurance Company, pursuant to the latter’s motion for summary judgment. The sole issue for our determination is whether appellant’s minor child, who injured himself when he cut his leg on an automobile parked in a school parking lot, was a “victim” within the meaning of the Pennsylvania No-fault Motor Vehicle Insuranee Act, 40 P.S. § 1009.101, et seq. We find no merit to appellant’s argument, and we therefore affirm.

On June 8, 1981, Roderick Schenk, the eight year old son of appellant, Virginia M. Schenk, was sent by an Enfield Elementary School teacher to the front of the school to make a sketch as part of an art project. While walking to the front of the school, the child passed between some bushes and a 1979 Mercedes automobile (which was legally parked in the school parking lot) and scraped his left leg on the automobile’s vanity plate, severely lacerating his leg.

Appellant filed a claim with appellee, the insurer of appellant’s own automobile, requesting reimbursement of her son’s medical expenses in accordance with the provisions of the No-fault Act. Appellee denied the claim, and appellant filed a complaint in assumpsit. The parties stipulated to the material facts of the case, and both parties filed motions for summary judgment. The trial court denied appellant’s petition, and granted appellee’s petition.

Section 201 of the Act provides that a “victim” is entitled to receive “basic loss benefits” in accordance with the terms of the Act for injuries resulting from accidents occurring in Pennsylvania. “Victim” is defined by section 103 of the Act as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle____” “Maintenance or use of a motor vehicle” is defined by this same section to mean “maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it.” It is clear that appellant will be entitled to recover if we are able to find that the accident arose out of the maintenance or use of a motor vehicle. This we are unable to do, however.

Appellant argues that the accident arose out of the use of a motor vehicle in that the owner of the automobile used the car to get to her place of employment, the Enfield Elementary School, on the morning of the accident. The flaw in this argument is that the automobile was not being “used” at the time of the accident. When the Act specifies “injury arising out of the maintenance or use of a motor vehicle,” the necessary implication of the language is that the use of the car be contemporaneous with the occurrence of the injury.

In Fox v. State Automobile Mutual Insurance Co., 314 Pa.Super. 559, 461 A.2d 299 (1983), recovery was allowed for a woman who was injured when she tripped over debris which resulted from a motor vehicle crashing into the side of her house. Fox is readily distinguishable from the case before us. In Fox, the victim’s injury occurred immediately after the use of the vehicle, i.e., after the automobile was driven into the side of the house, and the injury could reasonably be said to be contemporaneous with the crash. In the case before us, the owner/driver of the automobile was not present at the time of the injury, but was in the school building at the time. Her use of the automobile had ceased well before the occurrence of the injury.

We find that, under the facts of this case as stipulated to by the parties, the injury did not arise out of the maintenance or use of a motor vehicle, and that appellant is therefore not entitled to recover No-fault benefits. Accordingly, we affirm the trial court’s grant of summary judgment in favor of appellee and against appellant.

Judgment affirmed.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    498 A.2d 1363
    John AAGESEN, Appellant, v. The TRAVELERS COMPANIES.
    Superior Court of Pennsylvania.
    Submitted June 19, 1985.
    Filed Oct. 4, 1985.

      Michael S. Bloom, Philadelphia, for appellant.
    Michael Cannon, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the order entered in the Court of Common Pleas of Philadelphia County, Civil Division, granting appellee-defendant’s motion for summary judgment.

The plaintiff-appellant was operating his uninsured motor vehicle when he was allegedly injured in an accident with an uninsured motorist. Appellant’s claim for no-fault benefits was assigned to the appellee pursuant to the Assigned Claims Plan. He subsequently filed suit against the appellee seeking recovery of uninsured motorist benefits. The trial court granted appellee’s motion for summary judgment holding that the appellant’s violation of the mandatory insurance provisions of the no-fault act precluded his claim for uninsured benefits.

Appellant presents one question on appeal: Where appellant, while driving his own automobile, was injured in a motor vehicle accident caused solely by the negligence of a third party and both appellant and the third party are uninsured, is appellant entitled to recover uninsured motorist benefits from the Assigned Claims Plan for his injuries?

This is the “KISS” issue which was raised in a group of consolidated cases under Johnson v. Travelers Insurance Co., 343 Pa.Super. 560, 495 A.2d 938 (1985). In his opinion, Judge Rowley concluded that an owner of a motor vehicle who fails to obtain insurance in accordance with the No-Fault Act, and then sustains injuries while operating that vehicle on Pennsylvania’s highways is not entitled to recover uninsured motorist benefits from an assigned claims plan insurer. (Emphasis — the opinion writer). Accordingly, we find that the appellant’s claim in the instant case is without merit.

Judgment affirmed.


author: BECK, Judge:

text:
    499 A.2d 302
    Thomas A. JENNISON, Appellant, v. Joseph JENNISON, Appellee.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed Aug. 9, 1985.
    Reargument Denied Oct. 15, 1985.

      William S. Scott, Pittsburgh, for appellant.
    James C. Larrimer, Pittsburgh, for appellee.
    Before BECK, POPOVICH and HANDLER , JJ.

       Honorable Earl R. Handler, Senior Judge, of the Court of Common Pleas of Indiana County, is sitting by designation.

   BECK, Judge:

This is an action in equity for specific performance of a stock purchase agreement. The Chancellor ruled that the contract could not be specifically enforced because the parties had not agreed on the price of the stock and the court could not supply the missing term. We affirm.

Plaintiff-appellant is the president and chief executive officer of South Pitt Tool Co., Inc. (“South Pitt”), a closely held corporation in Allegheny County. Defendant-appellee is the founder of the company who has essentially been retired since 1976. Appellant initially went to work for South Pitt in the spring of 1972, his original position being vice-president. At that time appellee transferred fifty shares of stock to appellant as an inducement to join the company. At the same time appellant was made a director of the corporation. Over a period of time additional stock was transferred to appellant, but appellee remained the majority shareholder.

On August 31, 1976, appellant and South Pitt entered into an employment agreement and appellant and appellee entered into a stock purchase agreement. The agreements were intended to be vehicles by which appellant would acquire both management responsibility and voting control of South Pitt. In paragraphs 1 and 2 of the stock purchase agreement (sometimes hereinafter referred to as “the 1976 agreement”), appellee agreed to sell and assign to appellant a portion of the stock totalling 100 shares for a stated consideration of $175 per share. This was to occur in two transactions, one in 1976 and the next in 1977. In paragraph 3, appellee agreed to sell 300 shares on or about March 1, 1982 “for a purchase price to be then negotiated and agreed upon by Buyer and Seller.” Under paragraph 4, the installment payment of the purchase price for the 300 shares was to be secured by a collateral agreement, the terms of which also were left open.

Appellant; made the payments contemplated by paragraphs 1 and 2 of the agreement and those transfers were completed. When the time came for transfer of the remaining 300 shares, appellee expressed a willingness to transfer the stock, reserving, however, voting rights for a substantial period of time. Negotiations to set the purchase price and other conditions of the sale broke down and the instant action followed.

Appellant’s first contention is that the Chancellor erred in holding that the Statute of Frauds provision of the Uniform Commercial Code for the sales of securities, 13 Pa.C.S. § 8319, applied to the transaction at issue. Section 8319(1) states that a contract for the sale of securities is not enforceable unless “there is some writing ... sufficient to indicate that a contract has been made for sale of a stated quantity of securities at a defined or stated price.” “Security” is defined in 13 Pa.C.S. § -8102 as follows:

(1) A “security” is an instrument which:
(i) is issued in bearer or registered form;
(ii) is of a type commonly dealt in upon securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment;
(iii) is either one of a class or series or by its terms is divisible into a class or series of instruments; and
(iv) evidences a share, participation or other interest in property or in an enterprise or evidences an obligation of the issuer.

Appellant argues that shares of stock in a closely held corporation which are endorsed with transfer restrictions are not “securities” for the purpose of 13 Pa.C.S. § 8319 because such shares are not easily marketable and are therefore not “of a type commonly dealt in upon securities exchanges or markets.”

This precise question is one of first impression in the courts of this Commonwealth. In Pirilla v. Bonucci, 320 Pa.Super. 496, 467 A.2d 821 (1983), this Court did apply section 8319 to an agreement for sale of stock in a closely-held corporation, but it appears that the parties and the court in that case focused on whether the requirements of the statute were met and did not raise or consider the question whether it was proper to impose the requirements of section 8319 in the first instance.

One federal court has addressed the issue in the context of a diversity action in which Pennsylvania law applied. In Katz v. Abrams, 549 F.Supp. 668 (E.D.Pa.1982), the district court recognized that there was no definitive ruling by the Pennsylvania Supreme Court on the issue, and predicted that Pennsylvania would hold that stock in a closely held corporation can be subject to the statute of frauds contained in section 8319. The district court relied on decisions in Wisconsin and New York holding that shares in a closely held corporation were “securities” as defined in section 8102, with the result that the Article 8 statute of frauds (section 8319) applied. See Pantel v. Becker, 89 Misc.2d 239, 391 N.Y.S.2d 325 (Sup.Ct.1977); Wamser v. Bamberger, 101 Wis.2d 637, 305 N.W.2d 158 (1981). The district court quoted with approval the following language from Pantel:

It might be argued that securities exchanges or markets seldom, if ever, deal in the stock of any corporation which has fewer than four shareholders and whose only substantial asset is a structure housing but two professional offices. . However, even the adoption of this strained construction of the statute would not exclude this [type of] stock from the statutory definition because such stock is certainly commonly recognized by many as a medium of investment.

Katz v. Abrams, 549 F.Supp. at 671, quoting Pantel, 89 Misc.2d at 240, 391 N.Y.S.2d at 326.

Three jurisdictions have held that shares in closely held corporations are not “securities” for Article 8 purposes, all for reasons similar to those argued by appellant. See Zamore v. Whitten, 395 A.2d 435 (Me.1978); Rhode Island Hospital v. Collins, 117 R.I. 535, 368 A.2d 1225 (1977); Blasingame v. American Materials Inc., 654 S.W.2d 659 (Tenn.1983). In Blasingame the court observed that the shares in question were subject to transfer restrictions.

We agree with the district court in Katz that the better view is that shares of stock in closely held corporations should be treated as “securities” under Article 8 of the Uniform Commercial Code. The holdings of Katz and Pantel constitute a more sensible interpretation of the statutory language. Shares of stock in a closely held corporation are, after all, shares of stock, which are clearly instruments “of a type” commonly dealt in on securities exchanges or markets. They also fall within the commonly recognized meaning of an “investment:” “An expenditure to acquire property or other assets in order to produce revenue; the asset so acquired. The placing of capital or laying out of money in a way intended to secure income or profit from its employment.” Black’s Law Dictionary 5th ed. (1979). The fact that a corporation may be closely held or the shares bear a transfer restriction may affect the ease and frequency with which the stock is traded or the desirability of the stock as an investment but it does not make it something other than a “security.”

We believe that the drafters of the UCC recognized this, because Article 8 contains a provision relating to enforceability of transfer restrictions. Section 8-204, enacted in Pennsylvania as 13 Pa.C.S. § 8204, provides (emphasis added):

Unless noted conspicuously on the security a restriction on transfer imposed by the issuer even though otherwise lawful is ineffective except against a person with actual knowledge of it.

The language of section 8204 clearly implies that shares bearing transfer restrictions are still “securities” as that term is defined in section 8201. The Comments to section 8204 include a cross-reference to the definition of “security” in section 8201 and a statement that section 8204 is intended to encompass the customary transfer restrictions imposed on stock in closely-held corporations. If the drafters of the UCC did not intend restricted shares of closely held corporations to be covered by Article 8, section 8204 either is surplusage or it is misplaced. Both interpretations are untenable.

We hold that the Chancellor correctly imposed the requirement of section 8319 that the agreement be in writing. We must therefore decide whether the writing at issue is sufficient under section 8319(1) to state an enforceable contract. The Chancellor found as a fact that the parties had failed to agree on the price of the 300 shares and consequently denied specific performance because the contract was too indefinite to enforce.

The factual findings of the Chancellor are entitled to the weight of a jury verdict and will not be upset by an appellate court if supported by adequate evidence. Rusiski v. Pribonic, 326 Pa.Super. 545, 474 A.2d 624 (1984).

The record supports the finding that the parties failed to reach agreement on the open terms contained in the 1976 stock purchase agreement, most importantly the price term. Appellant argues that we must read the 1976 agreement in tandem with a January 4, 1975 agreement between South Pitt and all its shareholders. This instrument was a general-purpose agreement of the type commonly known as a “buy-sell agreement;” it imposed restrictions on inter vivos transfers of shares such as majority consent, first refusal rights in the corporation, and the like, and it set forth a procedure for the purchase of the shares of a deceased shareholder.

Additionally, the agreement set the price per share for any transfers of stock at $175, subject to revision by a majority vote at an annual or special meeting of shareholders. Appellant argues that the 1975 agreement established a mechanism for determining the price of a share of South Pitt stock, with the result that the price of the 300 shares at issue here should be $175 per share because the shareholders had not changed the set price.

It is true that several interrelated writings may be used to satisfy the requirements of 13 Pa.C.S. § 8319(1). Conaway v. 20th Century Corp., 491 Pa. 189, 420 A.2d 405 (1980). However, the 1975 buy-sell agreement cannot be read into the 1976 stock purchase agreement to supply the missing price term. Contracts must be construed in a way which gives meaning and effect to all their terms. Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978); Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982); Friestad v. Travelers Indemnity Co., 260 Pa. Super. 178, 393 A.2d 1212 (1978). The inclusion in the 1976 agreement of paragraph 3, providing that the price for the 300 shares was to be agreed on by the parties, indicates that the parties intended the 1976 agreement to supersede the 1975 buy-sell agreement. Paragraph 3 would be meaningless and superfluous if the parties intended for the price to be determined according to the 1975 buy-sell agreement. If the parties had intended for the price to be set under the prior agreement they could easily have said so.

Appellant presented neither any other evidence from which the court could conclude that the parties had agreed on a price nor any evidence from which the court could supply the missing terms on a “reasonably certain basis,” see Bethlehem Steel Corp. v. Litton Industries, Inc., 507 Pa. 88, 100, 488 A.2d 581, 591 (1985) (Opinion of Flaherty, J., in Support of Affirmance) (affirming by equally divided court an order refusing to enforce an option agreement for construction and sale of ships with open terms including price). The contract provided that the parties were to agree on a price; their negotiations broke down without their reaching an agreement. The evidence fails to meet the requirement of 13 Pa.C.S. § 8319(1) that the writing indicate that “a contract has been made ... at a defined or stated price.” All we have is an “agreement to agree” which is incapable of enforcement. Onyx Oils & Resins Inc. v. Moss, 367 Pa. 416, 80 A.2d 815 (1951); see also Field v. Golden Triangle Publishing Inc., 451 Pa. 410, 305 A.2d 689 (1973) (specific performance will not be granted unless the terms of the agreement are complete and certain). The Chancellor was correct in refusing specific performance.

Order affirmed.

      . In the Pennsylvania Uniform Commercial Code the word "Division” is substituted for "Article.” We use “Article” in this opinion to avoid confusion, because the statutes of most other jurisdictions, as well as the Comments, use the term “Article."

      . Appellant cites in support of this proposition Kenney v. Porter, 557 S.W.2d 589 (Tex.Civ.App.1977). However, in Kenney the court did not ultimately decide whether the stock in question was a "security” under Article 8; rather, it held that this was a factual issue which would not be decided on the summary judgment motion before the court.

      . These are the transfer restrictions discussed above with relation to the Statute of Frauds issue. An endorsement on the face of the stock certificates refers to the 1975 agreement.

      . Appellant also argues that he is entitled to relief by virtue of the doctrine of promissory estoppel. The difficulty with this argument is, of course, that whatever "promises” appellant relied upon are in any event too indefinite to enforce.


author: MONTGOMERY, Judge:

text:
    499 A.2d 306
    Norvil C. ULRICH, Martin Lesko, Appellants, v. Ernest MACON, Alexander Whitlock, Appellees.
    Superior Court of Pennsylvania.
    Argued April 30, 1985.
    Filed Aug. 9, 1985.
    Reargument Denied Oct. 22, 1985.
    Spero T. Lappas, Harrisburg, for appellants.

      Nathan H. Waters, Harrisburg, for appellees.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   MONTGOMERY, Judge:

The consolidated appeals in this case arise from a defamation action. The case was tried before a jury, which rendered verdicts in favor of both Plaintiff-Appellants against both Defendant-Appellees. Upon consideration of the post-trial motions filed by the defense, the lower court, by Order dated June 26, 1984, granted judgment n.o.v. for Defendant Alexander Whitlock and a new trial to the Defendant, Ernest Macon. Thereafter, by Order dated July 18, 1984, the lower court directed the striking of the verdict as to Defendant Whitlock.

The record shows that all parties to this action are members of the Police Department of the City of Harrisburg. The genesis of the suit was a raid at the location of a suspected speakeasy. The raid was based upon an undercover investigation conducted by Defendants Whitlock and Macon. The raid did not produce an expected large quantity of illicit drugs and money purportedly derived from the sale of such drugs and liquor on the premises.

After the raid, Defendants Whitlock and Macon reported to higher authorities in the Police Department that fellow officers Norvil C. Ulrich and Martin Lesko, the Plaintiff-Appellees, had improperly taken money and drugs from the premises while participating in the raid. Evidence was also produced at the trial to show that Defendant Macon had advised a group of new police recruits that Plaintiff Ulrich was not to be trusted, and that he was a thief. Further, testimony was presented that Macon made public suggestions to Ulrich that the latter was going to be in the penitentiary.

With regard to the report that was made to higher police authorities, the Defendants pointed out that rules and regulations of the Police Department mandated that knowledge of violations of laws, ordinances and Department rules had to be reported to such supervisory officers. It was maintained that such rules and regulations rendered the Defendants’ reports to their superiors privileged, and thus provided a complete defense to any defamation claim.

The Plaintiffs presented evidence to support their position that the reports of their misconduct were not only untrue, but that the Defendants were aware that they were false when the reports and statements were made. Plaintiffs contended that the Defendants’ conduct had been motivated by malice.

At the conclusion of the Plaintiffs’ case, a defense motion for compulsory nonsuit was denied. Following the presentation of Defendants’ evidence, their motion for a directed verdict was also denied by the court. The jury rendered a verdict of $20,000, to be divided equally by the Plaintiffs. Following the lower court’s ruling on Defendants’ post-trial motions, the instant appeal was filed.

In its Opinion, the lower court explained the rationale for its actions. First, it noted that it had improperly failed to rule on the issue of privilege, but rather instructed the jury to determine whether the Defendants’ reports to their superior officers was privileged. The court further explained that in ruling on the post-trial motions, it determined that such reporting was privileged. It therefore granted the judgment n.o.v. as to the reporting, with respect to Defendant Whitlock. Because of the possibility that the jury based its verdict against Defendant Macon on the conclusion that the reports to the police supervisors were not privileged, the lower court granted a new trial, limited to the claim of Plaintiff Ulrich against Defendant Macon, regarding the statements to recruits and the other purported public comments made by Macon to Ulrich regarding future residence in a penitentiary.

We are not aided in our review of this case by a significant effort or thorough presentation by the Appellants in their brief. The entire written argument presented by counsel for Appellants consists of but one and a half pages. In whole, it merely asserts that the jury had ample evidence upon which it could have reached its verdict. Specifically, the Appellants argue that the lower court had a duty to examine the evidence in a light most favorable to the verdict winner, and that the court’s decision was "... internally inconsistent and at odds with the factual findings of the trial jury”.

We do not find that the Appellants have raised an argument justifying reversal. The lower court’s action was not based upon the conclusion that the jury lacked sufficient evidence upon which to base its verdict. Rather, the lower court’s order was based upon its decision that it had erred in leaving to the jury the question of whether the reports to superior officers by the Defendant Appellees was privileged. The lower court found that such reports were privileged and that the Appellants were therefore not entitled to recover damages from the Appellees in a defamation action as the result of such statements.

Because the lower court’s rulings on the question of privilege were not challenged by the Appellants on this appeal, we are precluded from ruling upon them. Thus, our rejection of the Appellants’ appeal may not be read as an affirmance of the lower court’s holding on the issues of privilege presented. In that regard, we note that we do not pass upon questions of whether the Defendants’ reports to their superiors were in fact privileged, and if so, whether they were absolutely privileged or only conditionally privileged, and if the latter, whether the element of possible malice was correctly handled in the disposition of this case by the lower court. We are constrained to avoid such issues because they have not been the subject of complaint by the Appellants.

The orders of the lower court granting judgment n.o.v. and a new trial are affirmed.

      . On the subject of the trial court’s duty to determine whether a privilege applies to a defendant's publication of defamatory information, see Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971).

      . Regarding all of these issues, see DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978); Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983), cert. denied, 466 U.S. 970, 104 S.Ct. 2341, 80 L.Ed.2d 816 (1984); Zdaniewicz v. Sands, 288 Pa.Super. 420, 432 A.2d 231 (1981); Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977), appeal dismissed, 487 Pa. 455, 409 A.2d 857 (1980).


author: CIRILLO, Judge: WIEAND, Judge,

text:
    499 A.2d 308
    COMMONWEALTH of Pennsylvania v. Gary Thomas STOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 11, 1985.
    Filed Aug. 16, 1985.
    Reargument Denied Oct. 16, 1985.

      Carl M. Janavitz, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

An Allegheny County jury found Gary Stock guilty of selling two obscene magazines in violation of 18 Pa.C.S. § 5903(a)(2), and the court sentenced Stock to IDA to 23 months in prison, suspending the prison sentence on the condition that Stock pay $10,000 for the use of the county. Stock appeals, asserting that the court abused its discretion by imposing a manifestly excessive sentence, and that the obscenity statute is unconstitutional. For the following reasons, we affirm.

We first address Stock’s constitutional challenges to the obscenity law.

The portion of the statute Stock was charged with violating states:

(a) Offenses defined. — No person, knowing the obscene character of the materials involved, shall:
(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner____

Stock first argues that the statute is unconstitutionally overbroad because its proscription on “showpng]” obscene materials invades spheres of privacy protected by the First, Ninth, and Fourteenth Amendments to the United States Constitution and Article 1, § 7 of the Pennsylvania Constitution.

Stock relies on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), wherein the United States Supreme Court held that a state cannot make mere private possession of obscene matter a crime, because such a regulation would intrude on rights of privacy protected by the First and Fourteenth Amendments. Stock contends that the Pennsylvania statute as drawn would prohibit a husband from “showing” obscene materials to his wife in the privacy of their home, thus violating the constitutional limitations set down in Stanley.

Stock was not prosecuted for privately “showing” obscene materials to his wife, but for publicly selling them from an adult bookstore. He does not assert that the provisions of the statute are unconstitutional as applied to commercial sales of obscene material. Thus, preliminarily we need to address whether Stock has standing to raise this issue.

A traditional principle of constitutional adjudication is that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may be applied unconstitutionally to others in situations not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, where First Amendment rights are involved, a litigant may attack the facial overbreadth of a statute in regulating free expression even where his own rights are not directly affected by the asserted overbreadth, based on the judicial assumption that the statute’s very existence might have a “chilling effect” on the exercise of First Amendment freedoms by persons not before the court. See id. Thus, we will entertain Stock’s contention that the Pennsylvania obscenity statute is unconstitutionally overbroad on its face. See also Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978); American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984).

In addressing Stock’s overbreadth challenge, we bear in mind that the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). To overcome this presumption, the person challenging the constitutionality of a statute shoulders the heavy burden of demonstrating that the statute clearly, palpably, and plainly violates the constitution. Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981); Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985) (petition for allocatur filed); Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984).

We must also premise our discussion on the observation that obscenity is not a constitutionally protected mode of expression. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This principle is important here because of the rule of constitutional jurisprudence that a statute properly regulating unprotected conduct will not be voided as overly broad unless the overbreadth is substantial judged in relation to the statute’s plainly legitimate sweep. Broadrick, supra; American Booksellers, supra.

Moreover, facial overbreadth will not be invoked as grounds for invalidating a statute when a limiting construction can be placed on the challenged statute. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); DeFrancesco, supra.

This said, we concede at the outset that Section 5903(a)(2) would appear to be violative of the right to privacy recognized in Stanley, if the statute were construed as making criminal the mere private showing of obscene materials between spouses in the confines of their home. Stanley clearly established that there is a zone of protected privacy in the home upon which the government cannot infringe without trampling the constitutional rights of the individual; thus, in Stanley itself the state could not prosecute the defendant merely for knowingly having an obscene film in his home. But cf. United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (protected right to possess obscene materials in privacy of one’s own home does not give rise to correlative right to sell or give it to others); United States v. Grito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (no zone of constitutionally protected privacy follows obscene materials when they are moved outside the privacy of the home).

However, reviewing the Pennsylvania statute in light of the principles we have enunciated, we are led to conclude that the word “show” as used in the statute should not be read so broadly as to take within its sweep mere private showings of obscene materials between consenting couples in their homes. Rather, we interpret the statute as prohibiting public “shows” of obscene materials, or the showing of such materials for commercial gain.

Our reading is supported by prior judicial constructions of the statute as well as rules of statutory construction originating from the Legislature itself.

In Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983), this Court addressed an overbreadth challenge to 5903(a)(2) similar to that presented here. In Doe, the appellant argued that the statute unconstitutionally prohibited the mere private possession of obscene material in contravention of Stanley. Writing for the Court, the Honorable Justin Johnson held that the additional elements required by the Pennsylvania statute, namely that the defendant “sell, distribute, exhibit, etc.” the obscene material, or offer to do so, or have it in possession with intent to do so, “clearly distinguish” our statute from the one condemned in Stanley. See 316 Pa.Super. at 11, 462 A.2d at 767-68.

The nature of this “clear distinction” was further elucidated in Long v. 130 Market Street Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982). In Long our distinguished then-President Judge Cercone, joined by his eminent colleagues Judges Wieand and Hoffman, conducted a comprehensive examination of the purposes of the obscenity statute in the context of a challenge to the statute based on the federal and state constitutional guarantees of freedom of speech. The following passage from the Court’s opinion in that case illuminates the issue we are deciding:

A study of the legislative history reveals that the Legislature had two purposes in mind when it enacted the anti-obscenity statute. In the legislature’s view, the growth of commercial pornography has exercised a pernicious effect on the sensibilities of the majority of our populace. By enacting the statute it hoped to combat these ill effects. ... Secondly, the criminal elements of society have recently gained considerable financial influence over the population of the Commonwealth. The statute does not forbid, indeed constitutionally it could not, the private possession of pornography, nor does it even prohibit the populace’s access to obscene material since the latter may be safely displayed in [the public institutions exempted in § 5903(f)]. What the statute does prohibit is the commercial exploitation of obscene materials by denying the right to sell them.

294 Pa.Super. at 403-04, 440 A.2d at 526-27 (emphasis ours). Thus, the evil sought to be controlled by the statute is not the mere possession or even the showing of obscene materials in private, but the commercial exploitation of such materials, or at the very least their exhibition in a public setting where the individual’s right to privacy is not a significant factor.

That this is the true intendment of the Section 5903(a)(2) prohibition on “showing” is further bolstered by a fair application of the rules of statutory construction. Thus,

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
(3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.

1 Pa.C.S. § 1922(l)-(3) (emphasis added). Moreover, under legislative mandate penal provisions of the statutory law must be strictly construed. Id. § 1928(b)(1). Also, “Words and phrases shall be construed according to rules of grammar and according to their common and approved usage,” id. § 1903(a), but “General words shall be construed to take their meanings arid be restricted by preceding particular words,” id. § 1903(b).

We turn to several “common and approved” usages of the verb “to show”: “1: to cause or permit to be seen: EXHIBIT ... 2: to set out for sale: OFFER ... 3: to present as a public spectacle: PERFORM 4: to display for the notice of others____” Webster’s New Collegiate Dictionary 1066 (1981). Reading the word “show” in the statute as restricted by the words preceding it — “sell, lend, distribute, exhibit, give away” — and further noting that among the obscene materials restricted by the statute are motion pictures, of which no word describes the act of exhibiting them to the public better than “to show” — we think it clear that the Legislature did not intend to proscribe a husband from privately “showing” obscene materials to his wife, or prevent any other such act that would implicate the fundamental liberties that citizens enjoy in the sacred privacy of their homes.

Our conclusion that the statute makes no attempt to impinge on privacy rights receives further support in the Legislature’s classification of obscenity offenses under Chapter 59 of the Crimes Code, entitled “Public Indecency.” We may properly consider this classification as an aid to construction of the statute. See 1 Pa.C.S. § 1924. In examining the statutory scheme we discover that every other offense described in Chapter 59 involves indecent acts committed in public, see 18 Pa.C.S. § 5901 (“Open lewdness”), or for pecuniary gain, see id. §§ 5902 (“Prostitution and related offenses”), 5904 (“Public exhibition of insane or deformed person”). See also Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983) (prostitution statute clearly restricted to performance of sexual acts for hire).

Thus, given the judicial presumption that 18 Pa.C.S. § 5903(a)(2) was intended to be constitutional, and the limiting construction that rationally can be placed on the wording of the statute, we hold that the statute does not violate the constitutional right to privacy, and is not substantially overbroad in relation to its plainly legitimate sweep of regulating the commercial sale or public purveyance of obscenity, activities which are not protected by the First Amendment, see Miller, supra; Orito, supra. Accordingly, Stock has failed to carry his burden of showing that the statute is unconstitutionally overbroad on its face.

Stock next argues that subsection (j) of the statute, which exempts certain public and educational institutions from the law, violates, the equal protection clause of the Fourteenth Amendment because the exemption is without rational basis in a legitimate state interest. We are constrained to reject this claim, as this Court has already decided that the challenged classification does not violate equal protection of the laws. American Booksellers, supra; Long, supra.

Next Stock maintains that the obscenity statute violates the First and Fourteenth Amendments because the element of scienter defined in the statute is so “vague” and “minimal” as to have a chilling effect on the rights of Pennsylvania citizens to sell, exhibit, or display constitutionally protected material. The challenged provision reads as follows: “ ‘Knowing.’ As used in subsection (a), knowing means having general knowledge of, or reason to know or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any material described therein which is reasonably susceptible of examination by the defendant.” 18 Pa.C.S. § 5903(b). In Doe, supra, we rebuffed the same type of attack that appellant is making on the scienter element of the obscenity law. Doe held that the law’s definition of “knowing” is not unconstitutionally vague, and that the law passes constitutional muster by requiring some awareness on the part of the defendant of the obscene character of the materials involved. In connection with these holdings in Doe Judge Johnson cited precisely the same United States Supreme Court decisions that Stock is now advancing in support of his argument. We believe that the issue thus raised has already been decided in Doe, and under principles of stare decisis we decline to discuss it any further.

Stock next argues that the obscenity statute unlawfully delegates legislative power to the several district attorneys of the Commonwealth by conferring on them the discretion whether to proceed against alleged violators by criminal prosecution or equitable injunction. See 18 Pa.C.S. § 5903(g), (h). Stock contends that this prosecutorial option offends Article 2, § 1 of the Pennsylvania Constitution as well as the Fourteenth Amendment by confiding a standard-less legislative discretion in district attorneys. We disagree. The statute defining the offense creates a clear, explicit standard in accordance with the definition of obscenity announced by the United States Supreme Court in Miller. The statute gives the district attorney no say in deciding what is or is not obscene; the only discretion provided is in the means of enforcement chosen to combat the evils identified in the legislation. This alleged “delegation” of discretion is in reality not a delegation at all, but merely a particular manifestation of the inherent discretionary powers of district attorneys in our system of justice. A district attorney by the nature of his office is invested with broad discretion over how, whether, and when to prosecute criminal offenses. See Commonwealth v. Malloy, 304 Pa. Super. 297, 450 A.2d 689 (1982) (Opinion by Cirillo, J.). This discretion is not lessened when the prosecutor is charged with deciding which of two legislatively authorized techniques of enforcement will more effectively accomplish the legislative program of stamping out commercial obscenity. Appellant’s constitutional attack on the statute on delegation grounds must fail.

Stock next argues that the statute is repugnant to Article 1, § 7 of the Pennsylvania Constitution because it allows for a conviction for the publication of obscene materials without a showing of malice. This argument blatantly ignores the settled pronouncements of this Court which have already decided this question. We have repeatedly held that the Pennsylvania Constitution affords no greater protection for the distribution and sale of obscene materials than do the First and Fourteenth Amendments to the United States Constitution. Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985); Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984); accord, Long, supra; Doe, supra; American Booksellers, supra.

Stock’s final constitutional claim is actually a dual attack on subsection (f) of Section 5903. This provision makes it illegal for any person to require as a condition of business dealings that any distributor or retailer purchase or take for resale any written or printed matter or article or instrument “of an obscene nature.”

The first prong of Stock’s attack on 5903(f) is based on the asserted vagueness of the phrase “obscene nature.” Stock points out that the Legislature has explicitly defined “obscene materials,” the term used in subsection (a)(2) of the statute, yet has not defined materials of an “obscene nature” as that term appears in subsection (f). Because of the disparity in wording, Stock apprehends that the Legislature sought to include a wider class of materials in (f) than in (a)(2), but since there are no standards for determining what falls within the supposed wider class, he argues that subsection (f) is fatally vague so as to exert an unconstitutional chilling effect on First Amendment rights.

We reject Stock’s reading of the statute, and determine that both subsections refer to the same class of materials. Although the difference in wording perhaps reflects imprecise drafting, we can readily ascertain the reason therefor. The obscenity statute as first passed by the Legislature in 1972 contained a blanket definition of “obscene” which applied to all subsections of Section 5903. See Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1. However, our Supreme Court in Commonwealth v. McDonald, 464 Pa. 435, 347 A.2d 290, cert, denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1975), determined that the definition of obscenity in the 1972 act did not meet the standards of Miller, supra, and hence struck down the statute. Thereafter the Legislature rewrote the statute and substituted the present definition of “obscene materials” incorporating the language of Miller. Act of Nov. 5, 1977, P.L. 221, No. 68, § 1; see 18 Pa.C.S. § 5903(b) (“Definitions”). However, through apparent oversight the Legislature failed to amend the wording of subsection (f) of the statute to take into account that the Act now defined the noun “obscene materials” rather than the adjective “obscene.” Nevertheless, we need not blind ourselves to the fact that the Legislature in amending the statute was clearly trying to come within the letter of the law as laid down in Miller. Thus, any interpretation of what the Legislature means by materials “of an obscene nature” must refer to the Miller standards quoted substantially verbatim in the statutory definition of “obscene materials.” This result is compelled not only by the rules of statutory construction, but by ordinary precepts of common sense. We therefore decline to throw out the obscenity statute on the flimsy semantic grounds offered here.

Appellant also contends that subsection (f) represents an unconstitutional interference with the right to contract. See U.S. Const, art. I, § 10. We reject this argument out of hand. We are unable to conceive how Stock has any standing to challenge the statute on the basis of the contract clause, when he neither alleges the existence of a contract which the statute impairs, nor asserts any interest in the type of business dealings which subsection (f) regulates. “[Wjhere the legal or equitable rights of a party are not in any way touched, and he is in no way injured, he cannot be heard to complain of the impairment of the obligation of his contract, as a mere abstract proposition.” Hooker v. Burr, 194 U.S. 415, 422, 24 S.Ct. 706, 709, 48 L.Ed. 1046 (1904).

Thus, we dismiss appellant’s constitutional attacks on the Pennsylvania obscenity statute as meritless.

Finally, appellant contends that the trial judge imposed a manifestly excessive and improper sentence on the unfounded assumption that appellant’s employer (the owner of the adult book store) would pay the $10,000 penalty assessed on appellant. This complaint stems from the following remarks of the trial judge at the sentencing proceeding:

I don’t intend to put this man in jail. He’s not an owner, he’s an employee. He certainly isn’t the kind of person who at this point would require me to believe that he should go to jail. However, I would, and I think you all know this, and at least you all suspect it, I do intend to make it as financially inconvenient for him as I possibly can, suspecting all the while that his employer will bear the costs of the financial inconvenience. And that is where the burden should lie. He’s still employed, and therefore, I have every reason to believe that as in numbers cases, the book, so to speak, bears the costs.

In Commonwealth v. Croll, supra, this Court was faced with a similar situation in which the trial court fined the defendant $10,000 on the assumption that the defendant’s employer would pay the fine. We vacated the sentence and remanded for resentencing, holding that the sentence was not imposed in accordance with the Sentencing Code, which states:

The court shall not sentence a defendant to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the fine; ... In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

42 Pa.C.S. § 9726(c), (d).

Thus, if indeed the trial judge sentenced Stock based on the unsupported supposition that his employer would subsidize payment of the fine, and at the same time failed to inquire into Stock’s ability to pay given his resources and the burden the fine would impose, then we would have to vacate the sentence as improperly entered. See Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1984) (sentence must be vacated if based in whole or in part on impermissible factor).

However, this case is distinguishable from Croll. When Stock’s counsel objected to the sentencing judge’s purported consideration of a dehors-the-record understanding that Stock’s employer would pay the fine, the judge treated the objection as a de facto petition for reconsideration of sentence; thereafter the judge explicitly inquired into Stock’s ability to pay the fine. Specifically, the court received evidence that Stock earned approximately $1,400 a month working at the adult book store; that his monthly rent payment was $195; that he supported a wife and three children, all of whom suffered from chronic ear problems, and that the family had no health insurance to pay the extraordinary medical bills; and that Stock had no operable automobile. The court then determined, based on approximated calculations of Stock’s yearly gross salary, income tax liability, and expenses, that “he should have sufficient funds to pay something less than $500 a month [i.e., $10,000 spread over the 23 months of the suspended sentence] to the citizens of Allegheny County for his participation in this obscenity.”

The fine imposed was admittedly onerous; however, sentencing is a matter within the sound discretion of the trial court, whose decision will not be reversed absent manifest abuse. Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). We find no such abuse of discretion, notwithstanding that payment of the fine probably will require Stock to make substantial sacrifices. See Commonwealth v. Wood, 300 Pa.Super. 463, 446 A.2d 948 (1982) (Opinion by Wieand, J.) (similar holding with regard to duty to pay restitution).

We note parenthetically that the suspended prison sentence imposed on Stock is of no force and effect. The Supreme Court recently reiterated that a defendant cannot be committed to prison to serve a previously suspended sentence, as suspension of sentence is an “exhaustion” of the sentencing power. Commonwealth v. Goldhammer, 507 Pa. 236, 248 n. 5, 489 A.2d 1307, 1313 n. 5 (1985); see also Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375 (1984) (Opinion by Wieand, J.) (indefinitely suspended sentence is not a sanctioned sentencing alternative); accord, Commonwealth v. Hamilton, 339 Pa.Super. 1, 488 A.2d 277 (1985).

AFFIRMED.

WIEAND, J., files a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting:

I join the excellent opinion authored by Judge Cirillo as it pertains to the constitutionality of 18 Pa.C.S. § 5903(a)(2). In my opinion, however, the fine imposed upon appellant was manifestly in excess of his ability to pay and was premised upon the belief that it would be paid by his employer, the owner of the adult book store. Such a sentence is improper. Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984). Therefore, I would remand for resentencing.


author: SPAETH, President Judge:

text:
    499 A.2d 317
    COMMONWEALTH of Pennsylvania v. Thomas S. CIERI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1985.
    Filed Sept. 18, 1985.

      Robert John, Hatboro, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Com., appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

This is an appeal from judgment of sentence for homicide by vehicle while driving under the influence of alcohol or a controlled substance, involuntary manslaughter, reckless endangerment, and driving under the influence. Appellant argues (1) that the trial court erred in refusing to suppress the results of a blood alcohol test performed by police on a sample of his blood; (2) that the trial court erred in refusing to permit a witness to testify; (3) that the verdict was against the weight of the evidence; and (4) that the mandatory sentencing provisions of 75 Pa.C.S. § 3735 are unconstitutional. We affirm.

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The standard by which we must review the trial court’s refusal to suppress the results of the test of appellant’s blood alcohol level is that we “will only consider the evidence of the prosecution and so much of the evidence for the defense as, read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Benedetto, 316 Pa.Super. 134, 136, 462 A.2d 830, 831 (1983) citing Commonwealth v. Leveille, 289 Pa.Super. 248, 433 A.2d 50 (1981). So viewed, the evidence was as follows.

Shortly after midnight on August 13, 1983, appellant, driving his car in Hatboro, Pennsylvania, with his brother Judson as a passenger, collided head-on with a car driven by Gary McMillan. Katherine Waldron, McMillan’s passenger, died as a result of injuries suffered in the collision. Sergeant Beadling of the Hatboro Police Department arrived at the scene three to five minutes after receiving a call, N.T. 1/23/84 at 8, and found appellant slumped over in the front seat. The sergeant testified that he “couldn’t question [appellant] about the nature of his injuries, [and therefore] decided that it was best to leave [appellant] where he was, ... rather than exaggerating any injuries that [he] might not know about.” Id. at 10. The sergeant “notice[d] an odor of alcohol on or about [appellant’s] person,” but appellant “was in a semi-conscious condition and did not respond to [the sergeant’s] speaking to him initially.” Id. at 14. The sergeant radioed the police dispatcher to call local hospitals to request that a blood sample be withdrawn from appellant when he arrived for treatment. Id. at 14-15, 29-30. The sergeant explained that he made this request because:

We did have serious injuries. And as part of an investigative procedure, and because I felt Mr. Cieri might have been drinking, I requested the defendant be done. He was in no condition to submit to a breathalyzer test. So the withdrawal of blood was the only method I had. Id. at 15.

Rescue personnel transported appellant to Abington Memorial Hospital for treatment. For the next two hours, the police continued to investigate the accident and interview witnesses. In the course of the investigation they discovered evidence that marijuana had been used recently in appellant’s car. Id. at 31-32.

Nurse Laird, the nurse on duty in the emergency room of Abington Memorial Hospital, testified that appellant arrived at the hospital at about 1:00 a.m. Id. at 39. When she interviewed appellant, she “did notice the smell of alcohol upon his breath when he was talking.” Id. at 42. She testified that the attending physician, Dr. Crim, withdrew enough blood from appellant to fill six or seven test tubes, which was the routine procedure to enable the staff to perform necessary tests, with an extra tube included in case additional tests were required. Dr. Crim withdrew the blood almost immediately upon appellant’s arrival. Id. at 43-44. At about 2:00 a.m., Nurse Laird spoke with the police dispatcher and learned from him that the police had requested a blood sample. About an hour later, Sergeant Beadling called and Nurse Laird told him that the blood had been withdrawn and that he could pick up the sample at his convenience. She then went to appellant, told him that the police had requested a blood sample, and asked that he sign a consent form enabling her to give the blood sample to the police. Id. at 45-47. She read the consent form to him, and appellant signed it. She testified that when appellant signed the form, he was in approximately the same condition as when he had arrived at the hospital and was “able to answer questions appropriately;” he had received no medication. Id. at 49.

At about 3:00 a.m., Sergeant Beadling came to the emergency room to pick up the blood sample. Appellant was in the operating room. Nurse Laird asked the sergeant to sign the consent form too, and after he did, she gave him the blood sample. Neither the sergeant nor any other police officer had spoken with appellant regarding his blood being tested for alcohol level. Id. at 15-16. The subsequent test of appellant’s blood conducted by police technicians revealed a blood alcohol level of .11 N.T. 1/25/84 at 67.

Appellant’s argument that the results of this test should have been suppressed is that since the withdrawal of his blood was undoubtedly a search, and was conducted without a warrant at a time when appellant was not under arrest, it can be justified only under one of the well-established exceptions to the warrant requirement, Brief for Appellant at 17-24; that the only possibly applicable exception is consent; and that although he did sign the consent form given him by Nurse Laird, his consent was invalid both because of the extent of his injuries and because, having spoken with no police officer, he had “no notice of the criminal investigative purpose of the blood test.” Id. at 18-19. In response, the Commonwealth argues that since the blood was withdrawn by hospital personnel for purposes of treatment, the withdrawal was a private search, and as such could not have violated appellant’s fourth amendment rights, Brief for Appellee at 6-8, and further, that in any event, there was implied consent to the search. Id. at 9-11.

It is clear that the fourth amendment “proscrib[es] only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’ ” United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, 94 (1985) citing Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (BLACKMUN, J., dissenting). See also Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973); Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980). If the Commonwealth is correct, therefore, that here the search was private, we need not consider appellant’s argument that a warrant should have been obtained.

To determine whether a search was “private,” the critical factor “is whether [the private individual] in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state____” Commonwealth v. Borecky, supra, 277 Pa.Superior Ct. at 249, 419 A.2d at 755-56, quoting Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). To determine this, one must look to the purpose of the search, the party who initiated it, and whether the government acquiesced in it or ratified it. See Common wealth v. Dembo, supra, 451 Pa. at 7-11, 301 A.2d at 693-95.

In the present case the search proceeded in two distinct stages: that which occurred when hospital personnel withdrew appellant’s blood, and that which occurred when they gave the blood to the police so that the police could test it for blood alcohol level. It is clear that hospital personnel withdrew appellant’s blood for the purpose of treating him for injuries sustained during the accident. The procedure was routine, and was performed before any hospital personnel learned that the police had requested a blood sample. N.T. 1/23/84 at 44. Had nothing further occurred, therefore, the withdrawal of appellant’s blood would have been a “private” search, not implicating appellant’s fourth amendment rights. See Commonwealth v. Tanchyn, 200 Pa.Super. 148, 188 A.2d 824 (1963). When, however, Nurse Laird handed appellant’s blood to Sergeant Beadling, appellant’s fourth amendment rights were put at issue, for Nurse Laird acted on the basis of a police request, the purpose of which was to obtain evidence to be used against appellant, and she knew she was so acting, as appears from her conduct of delivering the blood only after obtaining appellant’s signature on a form showing on its face that it was to be read to a suspect in the presence of a police officer. Accordingly, in delivering appellant’s blood to the police, Nurse Laird acted as an “instrument” or “agent” of the government. We must therefore decide whether appellant’s fourth amendment rights were violated by the ensuing test for blood alcohol level performed by the police.

In approaching this issue, we note that the Commonwealth seems to concede that appellant’s argument that he did not consent to the sample of his blood being delivered to the police has force, for it does not argue actual consent as a constitutional basis for the withdrawal of the blood. Instead, as we have indicated, it argues that the search may be justified under the “implied consent” provision of the Vehicle Code, 75 Pa.C.S. § 1547(a). See Brief for Appellee at 8-11. Section 1547 provides:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) Genera! rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which' the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

We have held that under this provision-more precisely, under the substantially identical predecessor of this provision — police may constitutionally conduct a chemical test of a suspect’s blood, without having arrested him and without transporting him from the scene in order to conduct the test, if they have probable cause to believe that the suspect has been driving under the influence of alcohol or a controlled substance. Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 (1974) (plurality). While the statute speaks in terms of “implied consent,” we concluded in Quarles that the constitutional basis for the test could not be to imply the suspect driver’s consent to the test as a condition of operating a car, for that would constitute an “unconstitutional condition.” Id., 229 Pa.Superior Ct. at 378-81, 324 A.2d at 460-62. Rather, we construed the term “reasonable grounds” to mean “probable cause,” and concluded that the constitutional basis for the test was the existence of probable cause to believe that the suspect had been driving under the influence of alcohol or a controlled substance. Id., 229 Pa.Superior Ct. at 388, 324 A.2d at 466. In Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978), we relied on Quarles to hold that where the police had such probable cause, they might constitutionally conduct a test even though the suspect was not conscious and could not therefore avail himself of his statutory right to refuse the test and have evidence of such refusal admitted at his trial. Id., 229 Pa.Superior Ct. at 239-41, 385 A.2d at 998-99.

It is important to note that there are two, alternative, constitutional bases for a blood test: actual consent, and implied consent. Not every case requires a decision on whether both bases have been satisfied. Thus, where a suspect has actually consented to the test, the test may be upheld on that basis alone, with no inquiry being made regarding implied consent. See Commonwealth v. Arizini, 277 Pa.Super. 27, 43-45, 419 A.2d 643, 651-52 (1980). Similarly, where the Commonwealth alleges the suspect’s actual consent, and does not argue implied consent as “a basis independent of the [actual consent,]” but the trial court suppresses on the finding that there was no actual consent, we will affirm, with no inquiry regarding implied consent. See Commonwealth v. Curtis, 253 Pa.Super. 163, 171 n. 6, 384 A.2d 1280, 1285 n. 6 (1978). Where there is no basis for upholding the blood test under the implied consent provision, there being neither a legal arrest nor probable cause, then we must analyze whether actual consent may provide a basis for the test. See Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767 (1983). But where, as here, the Commonwealth relies upon implied consent, we first determine whether that claim is justified, for if it is, then we need not consider whether there was actual consent. See Commonwealth v. Guiliano, 274 Pa.Super. 419, 423, 418 A.2d 476, 478 (1980) (where defendant argues that results of blood test should be suppressed because actual consent invalid, court holds, citing Commonwealth v. Quarles, supra, and Commonwealth v. Funk, supra, that it “need not decide these issues for it is clear that probable cause existed to extract the blood sample”).

We have concluded that the Commonwealth’s claim of implied consent is justified, for at the time the police received the sample of appellant’s blood from Nurse Laird, they had probable cause to believe that appellant had been driving under the influence of alcohol or a controlled substance. They knew that a serious accident had occurred, causing extensive injuries; Sergeant Beadling’s attempt to communicate with appellant was unsuccessful because of appellant’s “semiconscious” state; both the sergeant and Nurse Laird had smelled alcohol on appellant’s breath; and the continuing investigation at the scene after appellant was transported to the hospital had revealed evidence of recent marijuana use in appellant’s car. Compare Commonwealth v. Guiliano, supra 274 Pa.Super. at 424, 418 A.2d at 477 (blood test upheld on basis of probable cause where “[ajppellant’s pupils, eyes, and speech all suggested consumption of alcohol [and] ... a serious one-car accident had occurred____”); see also Commonwealth v. Funk, supra 254 Pa.Super. at 238, 385 A.2d at 998. We note, moreover, that appellant concedes that the police had probable cause. See Brief for Appellant at 23.

We believe that to the extent our earlier decisions seem to differ from our decision here, they are distinguishable. Here, the test by police was conducted after appellant had been transported to the hospital for purposes of treatment, and after the blood had been withdrawn by hospital personnel. In Commonwealth v. Quarles, supra, the police drove the defendant twenty-two miles from the scene to the police station in order to conduct the breathalyzer test. We held that in order to transport a suspect for the purpose of conducting a test, probable cause does not suffice; rather, the police must place the suspect under legal arrest. See id., 229 Pa.Superior Ct. at 389-90, 324 A.2d at 466-67. We reasoned that a higher standard than probable cause was necessary because of the greater intrusion involved in transporting a suspect from the accident scene. Id., 229 Pa.Superior Ct. at 387, 324 A.2d at 465. See also Commonwealth v. Kelly, 235 Pa.Super. 299, 301, 341 A.2d 141, 143 (1975) (distinction in Quarles rests upon “[o]ur oft-stated concerns for the integrity of the individual’s control over his person____”). In Commonwealth v. Funk, supra, we applied the probable cause standard to uphold a blood test conducted at the hospital, at police request, upon an unconscious suspect, but in doing so, we did not comment on the significance of the fact that prior to the test, the defendant had been transported to the hospital. In Commonwealth v. Hlavsa, 266 Pa.Super. 602, 405 A.2d 1270 (1979), we held, over dissent, that where blood was withdrawn from an unconscious suspect at the hospital, at police request, the trial court had properly suppressed the results of the test because there had been no legal arrest. But see id., 266 Pa.Superior Ct. at 607, 405 A.2d at 1272 (SPAETH, J., dissenting) (where defendant had been transported from accident scene to obtain medical treatment, not to have test administered; where “[n]o detention ... was involved, and the scope of the seizure was limited;” and where police had probable cause, blood test should be considered constitutional). Here, as was not the case in Quarles, medical personnel transported appellant in order to treat him; the police did not transport him in order to test him. Here also, as was not the case in Hlavsa, medical personnel withdrew appellant’s blood to facilitate his treatment, not because the police requested that they do so. See Commonwealth v. Gotto, 306 Pa.Super. 434, 441-42, 452 A.2d 803, 806-07 (1982) (where hospital personnel withdrew blood for treatment purposes, subsequent police decision to test blood sample provided by hospital, rather than administer breathalyzer test, was “harmless error” for the blood test “subjected [the defendant] to no further intrusion or search [footnote omitted]”). And see Commonwealth v. Tanchyn, supra. The test at issue here constituted less of an intrusion than that which might constitutionally have occurred at the accident scene, on the basis of probable cause, for the police neither invaded, nor seized and detained, appellant’s person in order to administer the test. We see no reason why the existence of probable cause, which would unquestionably suffice as a constitutional basis for a test administered at the scene, may not also suffice as a constitutional basis for a test administered at the hospital. See Commonwealth v. Funk, supra. Accordingly, we hold that the trial court did not err in denying appellant’s motion to suppress.

-,2-

Appellant next argues that the trial court erred in not allowing him to call Gary McMillan, the driver of the other car, as a witness. This argument is without merit.

In Commonwealth v. Bellacchio, 296 Pa.Super. 468, 442 A.2d 1147 (1982), we held that the trial court properly refused to allow the defendant to call as a witness a participant in the burglary for which the defendant was on trial. The trial court had been advised in chambers both by the potential witness and his attorney that the witness would invoke his privilege under the fifth amendment if he was called to testify. We held:

A witness should not be placed on the stand solely for the purpose of having him exercise his privilege against self-incrimination before the jury. “If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege...” United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert, denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973). See also: Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970), cert, denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Commonwealth v. Greene, 445 Pa. 228, 231-232, 285 A.2d 865, 867 (1971); Commonwealth v. Pritchard, 270 Pa.Super. 461, 468, 411 A.2d 810, 814 (1979); Commonwealth v. Hackett, 225 Pa.Super. 22, 24 n. 2, 307 A.2d 334, 335 n. 2 (1973).
Id., 296 Pa.Superior Ct. at 474-75, 442 A.2d at 1150.

See also Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971); Commonwealth v. Davis, 308 Pa.Super. 398, 454 A.2d 595 (1982). Before a trial court may excuse a witness, it must be satisfied that if called, the witness would indeed exercise the privilege. See Commonwealth v. Fava, 294 Pa.Super. 73, 439 A.2d 756 (1982) (Opinion in support of reversal) affd 503 Pa. 365, 469 A.2d 597 (1983).

Here, there can be no question that Gary McMillan would have exercised the privilege. At a hearing held in chambers after counsel for appellant informed the court of his intention to call McMillan, the following colloquy took place:

MR. KALKBRENNER: [Assistant District Attorney] Your Honor, I would object to that proposal. Mr. Josel is here. He is the attorney of record for Gary McMillen. He has informed all of us off the record previously that Mr. McMillen does, in fact, intend to take the Fifth Amendment if he is called as a witness for either party in this case.
MR. JOSEL: That is correct. I advised my client to remain silent, not to participate in this trial, if he was subpoenaed, to rely on the Fifth Amendment, not to testify.
THE COURT: Mr. Josel, are there charges presently pending against your—
MR. JOSEL: Frivolous, but they are pending.
N.T. 1/23/84 at 13.

As the only purpose in calling McMillan, after this exchange, would have been the impermissible one of allowing the jury to draw adverse inferences from McMillan’s assertion of the privilege, the trial court did not abuse its discretion in refusing to allow him to testify. See Commonwealth v. Bellacchio, supra.

-3-

Appellant next argues that the verdict was against the weight of the evidence. In his post-trial motion, filed February 6, 1984, appellant framed the issue as follows:

The verdict of guilty of homicide by vehicle, driving while under the influence of alcohol, driving while the amount of alcohol by weight in the blood is .10% or greater, homicide by vehicle while driving under the influence, involuntary manslaughter and recklessly endangering another person was against the weight of the evidence. Motion in Arrest of Judgment and For a New Trial, ¶ 2.

We will not consider this argument. In Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc), we held:

... effective sixty days from today, 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 insu f ficient, or why the verdict was against the weight of the evidence.

Id., 315 Pa.Superior Ct. at 259-60, 461 A.2d at 1270. Appellant’s post-trial motion does not state why the verdict was against the weight of the evidence. Accordingly, he has not preserved this issue for appellate review.

-4-

Appellant argues finally that the mandatory sentencing provisions of 75 Pa.C.S. § 3735, which were applied to him, are unconstitutional in that they violate separation of powers by vesting discretionary sentencing power in the district attorney rather than the sentencing judge; they violate due process; they deny appellant equal protection; and they constitute cruel and unusual punishment. This argument is without merit.

In Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293, 296 (1985), we considered a constitutional challenge to the validity of 75 Pa.C.S. § 3735 on identical grounds to those raised here. We there held that the mandatory sentencing provisions do not violate separation of powers, as the legislature may properly enact statutes that mandate a specific penalty for defined criminal conduct; that “due process of law is not violated when courts accede to legislative authority to frame a coherent statutory scheme for the administration of sentencing for certain criminal offenses;” that equal protection is not denied where there is no suspect class and “[t]he deterrence of the misuse of alcohol by drivers is a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal;” and that the mandatory minimum does not constitute cruel and unusual punishment as it does not “impose a penalty so out of proportion to the crimes as to shock a balanced sense of justice.” Id., 339 Pa.Superior Ct. at 38-44, 488 A.2d at 297-299. See also Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) (Supreme Court holds that imposition of mandatory minimum sentence for visible possession of firearm during commission of crime, 42 Pa.C.S. § 9712, does not violate due process).

Affirmed.

      . The consent form was read into the record by Nurse Laird. It provided:
      “I consent to the withdrawal of blood and/or collection of a urine sample by persons authorized to do so by Abington Memorial Hospital! ] ... [f]or the purpose of determining the presence of alcohol or a controlled substance in my system. The police officers [.sic ] named below has explained my legal rights to me, the nature of the test or tests and possible risks associated with the test have been explained to me. I understand if I refuse my consent the test will not be performed.”
      N.T. 1/25/84 at 16, 55.

      . See supra note 1.

      . We conclude that appellant has standing to contest the police test of his blood after it had been withdrawn. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court redefined the area protected by the fourth amendment against unreasonable searches and seizures. The fourth amendment protects that in which one has an objectively reasonable expectation of privacy. Id. at 361, 88 S.Ct. at 516 (HARLAN, J., concurring) The Court has qualified this rule by emphasizing that "a person has no legitimate expectation of privacy in information he voluntarily turns over to the third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (Where police used device that enabled them to detect all telephone numbers dialed from appellant’s telephone, held: no violation of his fourth amendment rights) (citations omitted). Here, appellant did not voluntarily give his blood to hospital personnel. Moreover, his continuing interest in the blood sample, after it had been withdrawn, was recognized as legitimate by the hospital. Nurse Laird testified that, following hospital policy, she would have refused to give the blood sample over to the police if appellant had not signed the consent form. We note that the statute gives a hospital the authority to turn over a blood sample, whether or not a patient consents. See N.T. 1/23/84 at 58; 75 Pa.C.S. § 1547(j). The validity of this provision is not before us, and we intimate no view on that issue.

      . Act of June 17, 1976, P.L. 162, No. 81, § 81; as amended December 15, 1982, P.L. 1268, No. 289. While Section 1547(a)(2) is new, Section 1547(a)(1) made little, if any, significant change in prior law. See 75 Pa.C.S. § 1547(a), Act of June 17, 1976, P.L. 162, No. 81, § 81 (superseded); 75 Pa.C.S. § 624.1, Act of April 20, 1959, P.L. 58, § 624.1, added July 28, 1961, P.L. 918, § 1 (repealed). In Commonwealth v. Quarles, supra, we construed the constitutional basis upon which consent to a chemical test might be implied under 75 Pa.C.S. § 624.1 (repealed). See text infra. Because we find that on the basis of the current version of this provision, Section 1547(a)(1), the test of appellant’s blood was constitutional, we need not consider whether the test might also have been constitutional under Section 1547(a)(2).

      . Because we find that the police had probable cause, appellant’s reliance on Commonwealth v. Walsh, supra, is misplaced. In that case this court noted that the Commonwealth (appellant there) conceded that "there was no probable cause for arrest or to believe that appellee was intoxicated!,]” and that it therefore "relie[d] on appellee’s consent to establish the propriety of the search.” Because we agreed with the Commonwealth that the record did not show "that there was probable cause for arrest or for a blood test searchf,]" we proceeded to analyze whether appellee’s actual consent was valid. Id. 314 Pa.Super. at 72-73, 460 A.2d at 770 (emphasis added).

      . Act of December 15, 1982, P.L. 1268, No. 289, § 11, 75 Pa.C.S. § 3735. Section 3735 provides:
      (a) Offense defined.- — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
      (b) Applicability of sentencing guidelines. — The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalty of this section.

      . The Commonwealth argues that appellant has waived appellate consideration of this claim for failure to include it in post-trial motions. Brief for Appellee at 17. While it is true that issues not preserved at each stage of review by specific allegations of error are waived and cannot be raised on appeal, see Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979), we require only that the issue be raised at the earliest possible time. Commonwealth v. Jenkins, 273 Pa.Super. 227, 417 A.2d 251 (1979). Here, that time was not when post-trial motions were filed, as the Commonwealth argues, for appellant had not then been sentenced under the provision he claims is unconstitutional. See Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293, 296 (1985) (challenge to constitutionality of mandatory sentencing provisions of 75 Pa.C.S. § 3735 properly preserved when raised in motion to modify sentence.) It is true that appellant did not raise this issue in the Motion to Modify Sentence that he filed pro se. He did, however, raise the issue in his "Concise Statement of Matters Complained of On Appeal,” which was his first opportunity to do so with the aid of counsel. As the issue was considered on the merits by the trial court, we consider it here. See Slip op. of tr. ct. at 7-11.


text:
    499 A.2d 326
    Fletcher CARRECTER, Appellant, v. COLSON EQUIPMENT CO. and the Marmon Group Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1984.
    Filed Sept. 18, 1985.
    Motion to Dismiss Appeal and Withdraw Opinion Denied by the Superior Court Oct. 25, 1985.

      John Mattioni, Philadelphia, for appellant.
    Pamela B. Gagne, Philadelphia, for appellees.
    Before: SPAETH , President Judge, and BECK and HOFFMAN, JJ.

       Spaeth, President Judge, recused himself from this case after argument and did not participate in the disposition of this case.

   BECK, Judge:

The instant appeal requires us once again to reaffirm the sharp distinction which the courts of this Commonwealth have drawn between negligence suits and products liability actions based on section 402A of the Restatement (Second) of Torts. We hold that the trial court may not invite the jury to consider the reasonableness of the defendant’s conduct by instructing on the “state of the art defense.”

Appellant Fletcher Carrecter Jr. appeals from a judgment in favor of appellee Colson entered on a jury verdict in a products liability action based upon an injury allegedly caused by a Colson Model 6055 drum truck. A drum truck is a type of hand truck specially adapted for use in moving large drums or barrels. The drum truck was manually operated by sliding forks on the bottom of the truck under a barrel, tilting the truck upward, sliding a hook-like clasp over the upper edge of the barrel, and then pulling the truck handles backward so that the barrel rested on the truck and could be rolled.

Carrecter was employed as a general laborer at Acme Hardesty Company (which is not a party to the instant litigation). Three to five days each month, Carrecter’s work assignment involved lifting, moving and “palletizing” 450-pound barrels using a drum truck of a type manufactured and sold by Colson between 1937 and 1957. While performing these tasks on February 14, 1977, Carrecter sustained back injuries which he attributed to his having pulled the Colson drum truck handles backwards in order to move a barrel.

In his products liability suit against Colson, Carrecter introduced evidence tending to show that the Colson drum truck, while being used to transport. weights within the stated capacity of its wheels, imposed forces on the user’s spine greater than the human spine can safely support. Carrecter therefore argued that the truck was defective either because it was designed in a manner which subjected the user’s spine to excessive force or because Colson did not warn of the maximum load capacity at which the truck could be maneuvered without placing undue stress on the user’s back. Carrecter also adduced evidence linking his back injury to his use of the Colson truck.

In its answers to written interrogatories, the jury found that the Colson drum truck was not defective due to its design or lack of accompanying warnings, and a verdict was entered in favor of Colson. Carrecter’s post-trial motions for judgment n.o.v. or a new trial were denied. Judgment for Colson was entered and this appeal followed.

Appellant argues that the trial judge erred in charging the jury that it could consider the engineering know-how available to Colson at the time the truck was manufactured in determining whether the truck was defective. The trial court first instructed the jury that if at the time the drum truck was manufactured and left the control of Colson it “lacked any element necessary to make it safe for the use or contained any condition that made it unsafe for the use that it was intended for, then the product may be considered by you as defective and [Colson] liable for the harm caused,” and that “[a] product which is designed in a manner which makes it unsafe for its intended use is defective, even though it perfectly conforms to its intended design.” N.T. 8.19-8.20. However, the trial judge added that in assessing the alleged defectiveness of the drum truck, the jury also “must consider the engineering knowledge and the know how that was generally available to the manufacturer, Colson, at the time [the drum truck] was manufactured.” N.T. 8.20 (emphasis added). The judge reiterated that the jury “must consider whether it was defectively designed at the time it was manufactured ... considering the engineering knowledge and know how which a manufacturer then should have. ” N.T. 8.21 (emphasis added).

We agree that it was error to instruct the jury to consider the level of engineering know-how available to Colson in determining whether the drum truck was defective. This case was submitted to the jury on a products liability theory. In a products liability action the plaintiff need not prove negligence on the part of the manufacturer. The plaintiff must establish only that the product was defective and that the defect caused, i.e. was a substantial factor in bringing about, the harm suffered by the plaintiff. Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982). “Defective” is defined in terms of safety for intended use; “the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Azzarello v. Black Brothers Co., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978). Therefore, the portion of the trial judge’s charge which defines “defect” in terms tracking the language of Azzarello is correct.

The difficulty with the latter portion of the charge inviting the jury to consider the “state of the art” is that it injects negligence principles into a products liability case. In a products liability action negligence is not an element of the plaintiff's case, nor is the defendant’s lack of negligence a defense. In Azzarello our Supreme Court was faced with the question whether it was proper to instruct the jury that it must find the defendant’s product “unreasonably dangerous.” The court held that the jury should not be instructed in such terms, concluding instead that the words “unreasonably dangerous” were no more than a label to be used where it is determined that the risk of loss should be placed on the supplier. 480 Pa. at 555, 391 A.2d at 1025. In so holding, a majority of the Supreme Court adopted the position which a plurality had taken in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). In Berkebile the plurality, per Jones, C.J., held:

the “reasonable man” standard has no place in a strict liability case ... To charge the jury or permit argument concerning the reasonableness of a consumer’s or seller’s actions and knowledge, even if merely to define “defective condition” undermines the policy considerations that have led us to hold in Salvador [v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974) ]. that the manufacturer is effectively the guaranter [sic ] of his product’s ' safety.

462 Pa. at 96-97, 337 A.2d at 900. The Berkebile plurality drew support for this holding from subsection (2)(a) of § 402A of the Restatement, which provides that the seller/manufacturer is liable for harm caused by a defective product even if he “has exercised all possible care in the preparation and sale of his product.”

The holdings of Berkebile and Azzarello were reaffirmed by this Court in Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984). We summarized the legal rule tersely, stating “in a strict liability case, principles of negligence have no place.” Id., 336 Pa.Superior Ct. at 61, 485 A.2d at 429. Moreover, in Dambacher we extended Azzarello, which was a design defect case, to cases involving inadequate warning claims. We held that the Azzarello instruction can and should be adapted to an inadequate warning case by charging the jury “that it is to consider whether the product was safe in the absence of warnings or in light of the warnings that were given.” Dambacher, 336 Pa.Super. at 57, 485 A.2d at 426.

Examining the court’s charge in light of the foregoing principles it is clear that the charge had the impermissible effect of setting up Colson’s non-negligence as a defense. By instructing the jury that it should take into consideration the engineering know-how “generally available” to Colson or alternatively the knowledge which Colson “should have” had when the drum truck was manufactured, the court caused the jury to focus on the reasonableness of the defendant’s conduct rather than on the safety of the product. What a defendant “should have known” is a classic negligence inquiry which our courts have held unequivocally does not belong in a products liability action. The jury found against the plaintiff Carrecter, and its verdict clearly could have been influenced by the improper charge, under which the jury could have found Colson not liable even if the drum truck was in fact not safe for its intended use. Therefore, a new trial is required.

We are aware that in Dambacher the majority expressly reserved judgment on whether any special problems were posed by the use of the “state of the art” defense in inadequate warning cases, because no “state of the art” issues were raised in Dambacher. See id., 336 Pa.Superior Ct. at n. 9, 485 A.2d at 428 n. 9. Having given this issue full consideration, we now conclude that in the Pennsylvania law of products liability there is no room for a negligence based defense under the guise of “state of the art.” As we have noted above, the term “state of the art” encompasses various concepts, but the common functional feature of all “state of the art” arguments is that they focus on the knowledge of the defendant and/or the reasonableness of the defendant’s conduct rather than on whether the product possessed the design features and/or warnings necessary to make it safe for its intended use. Therefore, we conclude that no magic inheres in the “state of the art” label and the “state of the art” jury charge should be treated like any other attempt to inject negligence into a products liability case. In Dambacher this Court extended Azzarello/Berkebile to inadequate warnings cases and defined “defect” in warnings cases in terms of safety for intended use, excluding negligence considerations. We believe this holding requires us to forbid any inquiry into the reasonableness of the defendant’s conduct in the adequate warnings area as well as the defective design area.

As further support for this conclusion, we note that even before Azzarello, this Court held in a products liability action grounded in part on inadequate warnings that “A seller must give such warnings and instructions as are required to inform the user of the possible risks and inherent limitations of the product____ This is so regardless of whether the seller knew or had reason to know of the risks and limitations.” Pegg v. General Motors Corp., 258 Pa. Super. 59, and n. 10, 391 A.2d 1074, 1083 and n. 10 (1978).

In his appeal, Carrecter has additionally raised several other bases for a new trial: (1) that the jury verdict contravened the weight of the evidence on the drum truck’s safety; (2) that the expert testimony of Carrecter’s witness, Dr. Simon, was improperly excluded; (3) that the trial judge exceeded the bounds of impartiality by interrogating Carrecter’s witnesses; (4) that some jury instructions misrepresented the facts adduced at trial; and (5) that the trial judge did not solicit a general verdict. Since our review of the defective product charge compels us to order a new trial, we deem it unnecessary at this time to consider the other claims raised by Carrecter.

Judgment reversed and case remanded for a new trial. Jurisdiction is relinquished.

      . At trial, Carrecter was the plaintiff, and Colson Equipment Division and the Marmon Group, Inc., were the defendants. For the purposes of this appeal, both defendants are appellees and will be collectively referred to as "Colson."

      . This maneuver required Carrecter to tilt the drum truck up onto a four or five inch high forklift pallet and release the drum so it rested on the pallet.

      . Evidence at trial indicated that the rated capacity of the Model 6055 drum truck in Colson’s sales literature was 800 pounds. Colson’s witnesses explained that this figure represented the capacity of the wheels, which were the weakest part of the truck, and that the loads borne by the user’s body did not enter into this calculation.

      . Carrecter further argues that it was error for the court not to instruct the jury that the fact that the Colson drum truck was essentially similar to all others produced in the industry at the time was not a defense. We are inclined to agree but it is unnecessary to reach this issue because we find that the instructions which were given were erroneous.

      . In context, the court’s instructions on "engineering know how” were more closely tied to the defective design issue than the warnings issue. However, the trial judge mentioned the inadequate warnings claim both before (at N.T. 8.20) and after (at N.T. 8.22) the state of the art charge, and did not suggest to the jury that it was not relevant to the warnings issue. Therefore, we will consider the propriety of the charge with respect to both the design and warning claims.

      . The term “state of the art” has been given a variety of meanings, including (1) industry custom, e.g. Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), cert, denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981); (2) government regulatory and licensing standards, e.g. Frazier v. Kysor Industrial Corp., 43 Colo.App. 287, 607 P.2d 1296 (1979), rev'd on other grounds, 642 P.2d 908 (Colo.1982); or (3) technological feasibility or capability, e.g. Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979); Neb.Rev.Stat. 25-21, 182 (1978). In the case sub judice, the instructions given by the trial judge relate primarily to the technological feasibility aspect of state of the art, and the instructions requested by Carrecter but not given (see supra note 4) pertained to industry custom. As we shall explain below we believe all “state of the art” arguments may be handled similarly for purposes of this appeal.

      . When a products liability claim is pleaded the trial judge makes a threshold determination whether as a matter of social policy the case is appropriate for treatment under the rubric of products liability. In making this determination the judge acts as a combination social philosopher and risk-utility economic analyst; for a more detailed explanation of the factors to be considered, see Azzarello; Dambacher; and Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981).

      . We prefer the terminology "inadequate warnings" to "failure to warn” because the latter language suggests a breach of a duty in a way which tends to connote negligence.

      . See supra note 6.

      . Carrecter further alleges on appeal that the trial court erred by not entering a judgment n.o.v. on the basis that the evidence of record unequivocally established that the Colson drum truck was defective. In reviewing the denial of a judgment n.o.v., this Court examines the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983). Judgment n.o.v. cannot be entered unless ‘“the facts are such that two reasonable persons could not fail to agree that the verdict was improper.’" Dambacher, 336 Pa.Super. at 33, 485 A.2d at 414 (citation omitted). "[A]ny doubts should be resolved in favor of the verdict." Tyus v. Resta, 328 Pa.Super. 11, 17, 476 A.2d 427, 430 (1984). Under this scope and standard of review and the facts of this case, we hold that the trial court did not err in refusing to enter a judgment n.o.v. The evidence on the safety of the drum truck was conflicting and a reasonable jury could evaluate the evidence in favor of either side.