text:
    528 A.2d 173
    James J. & Lois HUGHES v. GAF CORPORATION, et al. Appeal of GAF CORPORATION. James HUGHES and Lois Hughes, His Wife, Appellants, v. GAF CORPORATION, Pacor, Inc., Amatex Corporation v. KEENE INDUSTRIAL INSULATION, et al.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1987.
    Filed June 16, 1987.

      Martin Greitzer, Philadelphia, for GAF Corp., appellant (at 1452) and appellee (at 1521).
    Stuart Agins, Philadelphia, for Hughes, appellants at (1521) and appellees (at 1452).
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   CIRILLO, President Judge:

In 1976, appellee James Hughes brought suit against various asbestos manufacturers for personal injuries allegedly caused by exposure to asbestos, products. Lois Hughes, his wife, joined in the suit claiming loss of consortium. After a non-jury trial in 1984, a jury trial de novo was held before Judge Caesar of the Philadelphia Court of Common Pleas. The jury returned a verdict of $284,975 for James Hughes and $10,200 for Lois Hughes against defendants GAF, Eagle-Picher, Keene, Owens-Corning Fiberglass, and Pittsburgh Corning. Since all of the companies except GAF had settled prior to the trial, Judge Caesar molded the verdict against GAF to the amount of $56,995 in favor of James Hughes and $2,040 in favor of Lois Hughes. Delay damages of 10% per annum from October 15, 1979 to September 17, 1984 were added to the verdict. Both plaintiffs and defendant GAF Corporation filed appeals.

James Hughes worked as a pipe insulator and coverer at the Atlantic Refinery from 1947 to 1962, at Allied Chemical from 1962 to 1965, and at the Philadelphia Naval Ship Yard from 1965 to 1975. He was exposed to the asbestos products of a number of manufacturers, including the appellant GAF.

After James Hughes left his job with disability pay, he worked briefly as an armored truck agent. He found, however, that he was physically unable to continue in this position. At trial he asserted that the disability caused by his exposure to asbestos prevented him from doing any work which he would otherwise be qualified to do. Furthermore, Hughes claimed that he became depressed because of his inability to work and because of his fear of cancer. He attributed his increased consumption of alcohol to this depression. These psychological problems along with the sleep problems created by his physical illness caused his marital relationship to deteriorate.

On appeal, GAF raises the following issues: (1) whether failure of a juror to truthfully answer a question during voir dire resulted in a tainted jury requiring a new trial; (2) whether the trial judge erred in not permitting cross-examination of plaintiffs on their complaint nor allowing plaintiffs’ counsel’s correspondence to be used as an admission; (3) whether the trial judge erred in failing to grant a continuance regarding a duly subpoenaed witness who failed to appear, and in failing to permit the use of the deposition of an unavailable witness; (4) whether the trial judge erred in permitting plaintiff’s medical expert to testify beyond the scope of his report and in limiting examination of the medical experts; (5) whether the trial judge erred in striking plaintiffs testimony, failing to permit further questioning, permitting examination regarding fear of cancer, and allowing improper rebuttal evidence; (6) whether plaintiffs failed to prove damages and mitigation and the trial judge improperly instructed the jury on these issues; (7) whether the trial judge erred in failing to grant defendant’s motion for a directed verdict; (8) whether the trial judge erred in excluding additional defendants from the verdict sheet when there was sufficient evidence to include them, and in failing to find liability as a matter of law; and (9) whether the trial judge erred in awarding delay damages. The first eight of these questions contain sixteen allegations of error which GAF discusses in the argument portion of its brief.

Judge Aldisert has stated that, “When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebutable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy.” United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982) (quoting Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View From the Jaundiced Eye of One Appellate Judge, 11 Capital University Law Review 445, 458 (1982)).

Judge Caesar, at the end of his sixty-six page opinion in the instant case, noted that “the enormity of defendant’s post-trial submission in this case is unjustified and unduly burdensome of the time of this court and of the appellate bench which must give it consideration.” The nine questions in the instant case include seventeen allegations of error. We caution counsel against proceeding in this manner in the future. Nonetheless, we have given careful consideration to GAF’s lengthy list of allegations and find that, except for the issue of damages, we affirm the other eight questions on the basis of the trial court opinion.

The ninth question raised by GAF corporation, as well as the cross-appeal filed by the Hugheses, deals with how delay damages under Pa.R.C.P. 238 should be awarded. GAF claims that the defendant should be charged delay damages only for the delay which is in fact the fault of the defendant. In their cross-appeal, the Hugheses claim that the damages should be calculated on the full amount of the verdict rather than only that portion of the verdict that the losing defendant is responsible for. We will discuss these issues separately.

A.

Under Rule 238, in any action seeking relief for bodily injury, death, or property damage, the court is to award delay damages of ten percent per annum to the winning plaintiff. The award is to be calculated from the time that the initial complaint is filed until the case is settled. The only grounds for denying this award to the plaintiff is if the plaintiff has turned down a settlement offer that is within 25 percent of the verdict. See Pa.R.C.P. 238. This blanket award of delay damages was based on the assumption that if the defendant did not offer an adequate settlement, all of the time elapsed from the filing of the case until the verdict was the fault of the defendant. See Craig v. Magee Rehabilitation Center, 512 Pa. 60, 66, 515 A.2d 1350, 1353 (1986).

In 1981, the Supreme Court, in reviewing Rule 238, stated that the purpose of the rule was to further “litigation in a meaningful way” by providing a “sanction against the defendant for the long delay between the commencement of the action and the trial.” Laudenberger v. Port Authority, 496 Pa. 52, 58, 65, 436 A.2d 147, 151, 154 (1981). The Supreme Court further stated that Rule 238 fulfilled the court’s “obligation to the legislature and to the public to effectuate prompt, expeditious trial and settlement of cases.” Laudenberger, 496 Pa. at 61, 436 A.2d at 152.

Our Supreme Court has recently reaffirmed this rationale, but found that the award of delay damages to a winning plaintiff without a finding of fault denied due process to the losing defendant. Craig 512 Pa. at 65, 515 A.2d at 1353. The court, therefore, stated that it was suspending Rule 238 because

experience shows that the ends sought run too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided. In short, Rule 238 has become an uncontestable presumption that all fault lies with a defendant. There are too many reasons why such is not always the case; and what is not always so may not be irrebuttable when a penalty follows.

Craig, 512 Pa. at 65, 515 A.2d at 1353. The court therefore set up a new procedure for assessing delay damages “for all cases now pending in the courts of this Commonwealth, and for any cases instituted thereafter.” Id. The Supreme Court directed that:

claims for delay damages are to be presented by petition within five days of a jury verdict____ Within five days thereafter the respondent’s answer shall be due. If the plaintiff’s recovery resulted from a jury verdict, the judge may hold a hearing to resolve any factual disputes____ Thereafter a decision may be rendered, awarding or denying delay damages consistent with Pa.R.Civ.P. 238(a)(1).

Id.

The Supreme Court, in providing guidance to the fact finder on the delay damages issue, stated that:

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

Id.

In instituting this new procedure, the Supreme Court stated that it was to be given prospective effect only, except that “in those cases where the issue has been preserved, the court before whom the case resides on or after this date is to resolve the issue in a manner consistent with this opinion.” Id. (emphasis added).

In a footnote to our recent decision in Morgan v. Monessen, 513 Pa.Super. 86, 99 n. 5, 518 A.2d 1171, 1177 n. 5 (1986), we stated that to preserve the issue of awarding delay damages without fault, the attack must be based on “grounds that it offended due process by failing to provide a forum to assess fault for delay as held in Craig." We note that appellant GAF has preserved the issue of fault in awarding delay damages by claiming in both post-trial motions and its appellate brief that the delay damages awarded against it violate due process and equal protection of the laws. Therefore, according to Morgan the post-trial procedure adopted in Craig is applicable in the instant case.

After the Craig opinion was filed, the Hugheses motioned this Court to remand the case to the trial court for consideration of the effect of Craig. The motion was denied in a per curiam order, dated October 31, 1986. Since the issue has been preserved, and this case was before the Superior Court at the time of the Craig decision, the issue is properly before us now.

We find that, in this case, there were numerous delays during the course of the suit. The trial record was complicated by the ancillary action in bankruptcy. Thus, the trial court is in the best position to review this record for a determination of fault. We therefore remand this case to the trial court for an evidentiary hearing to determine the issue of fault so that the award of delay damages may be recalculated in accord with the guidelines set forth by the Supreme Court in Craig.

B.

The plaintiffs have cross-filed an appeal on the issue of whether the delay damages should be calculated on the total verdict rather than on the molded portion of the verdict only. Plaintiffs cite the rationale of Rule 238, interpreted in Laudenberger, supra, as the reason for calculating delay damages on the total verdict.

Although the intent of Rule 238 is to encourage early settlements, we find it “unrealistic to require each defendant to offer nearly the full amount of damages ultimately recovered in an action where the amount finally attributed to each defendant is only a percentage of the total.” Korn v. Consolidated Rail System, 355 Pa.Super. 170, 174, 512 A.2d 1266, 1268 (1986) (citing Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 458, 474 A.2d 1181, 1196 (1984)). Furthermore, this court finds that “it would be anomalous to award a plaintiff delay damaged on money already received from the settling defendants.” Korn, 355 Pa.Superior Ct. at 174, 512 A.2d at 1268 (citing Rocco v. Johns-Manville Corp., 754 F.2d 110, 118 (3d Cir.1985)); see also Baciotti v. Simmons, 346 Pa.Super. 23, 498 A.2d 1351 (1985) (delay damages must be apportioned in the same manner in which the jury apportioned liability). The trial court properly awarded delay damages based upon only the molded portion of the verdict.

In summation, we affirm in part and reverse and remand in part. As to GAF’s appeal, we affirm the trial court except that we remand for a computation of delay damages based upon the Craig decision. As for the Hugheses' cross-appeal concerning the delay damages based upon the molded verdict, we also affirm the trial court. Jurisdiction relinquished.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    528 A.2d 177
    Ruth JONES, Administratrix of the Estate of Michael Selden, Deceased, and all others similarly situated, Appellants, v. KEYSTONE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed June 16, 1987.

      Richard C. Angino, Harrisburg, for appellants.
    A. Richard Feldman, Philadelphia, for appellee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

This class action for post-mortem work loss benefits under Pennsylvania’s No-fault Motor Vehicle Insurance Act was commenced by Ruth Jones, the administratrix of the estate of Michael Selden, deceased, on behalf of her decedent’s estate and the estates of all insureds of Keystone Insurance Company who had died in motor vehicle accidents after passage of the No-fault Act. The trial court held that the claim for work loss benefits asserted by Jones on behalf of her decedent’s estate had been waived. Therefore, the court entered summary judgment against Jones and dismissed the class action complaint. Jones appealed.

Michael Selden sustained fatal injuries in an automobile accident on August 23, 1977. At the time of the accident, Selden was uninsured. To recover basic loss benefits under the No-fault Act, Ruth Jones, a cousin of Selden who had been appointed to administer his estate, filed a claim on behalf of the estate with the Pennsylvania Assigned Claims Plan. The claim was assigned to Keystone Insurance Company (Keystone), which promptly paid funeral and surviv- or’s benefits. In addition, on August 16, 1978, Keystone reimbursed the decedent’s estate for medical bills which had been incurred by Selden prior to his death. Thereafter, Jones instituted an action against Keystone in Philadelphia County to recover uninsured motorist benefits. This action was terminated on June 25,1982 after Keystone had agreed to settle the same for $15,000. Later, Jones caused a letter to be sent to Keystone requesting payment of post-mortem work loss benefits. Keystone denied this request by letter dated October 26, 1979. On February 9, 1981, a second claim by Jones for work loss benefits was also denied by the assigned claims carrier. More than four years later, on June 24, 1985, Jones commenced the present class action against Keystone to recover unpaid work loss benefits. The class defined in the complaint included the estates of all insureds of Keystone who had died in motor vehicle accidents after 1975, when the No-fault Act went into effect.

Keystone filed a motion for summary judgment in which it alleged, inter alia, that because Jones had failed to assert the claim for work loss benefits in the prior action for uninsured motorist benefits, the claim had been waived pursuant to Pa.R.C.P. 1020(d)(1) and (4), and that, in any event, the claim for work loss benefits was barred by the statute of limitations. After hearing oral argument, the trial court rejected Keystone’s contention that Jones’ claim for work loss benefits was barred by the statute of limitations. The court agreed, however, that Jones had waived that cause of action by failing to assert it in the prior action for uninsured motorist benefits. Consequently, the court granted Keystone’s motion for summary judgment and dismissed the class action complaint. Although we disagree with the court’s analysis, the summary judgment was proper and will be affirmed.

In Miller v. Federal Kemper Insurance Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986), this Court said:

For the entry of summary judgment, there must not only be an absence of genuine factual issues, but there must also be an entitlement to judgment as a matter of law. Lookenbill v. Garrett, 340 Pa.Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983). On appeal from an order entering summary judgment, an appellate court will reverse the trial court where there has been an error of law or a clear abuse of discretion. Peters Township School Authority v. United States Fidelity and Guaranty Co., 78 Pa.Cmwlth. 365, 370, 467 A.2d 904, 906 (1983).

Id., 352 Pa.Superior Ct. at 585-586, 508 A.2d at 1225.

Prior to 1983, the Pennsylvania Rules of Civil Procedure contained separate rules of pleading for assumpsit actions and for actions in trespass. Rule 1020, which governed actions in assumpsit, was adopted in 1946 and was amended in 1971 to read, in pertinent part, as follows:

(a) The plaintiff may state in the complaint two or more causes of action triable in the same county which arise from contract or are quasi-contractual. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
(d)(1) If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person, including causes of action in the alternative, they shall be joined in an action against any such person in separate counts. Each count shall specify whether the cause of action stated therein is in assumpsit or trespass, shall state that cause of action and any special damages relating thereto and shall demand the relief sought. All pleadings as to each cause of action shall be governed by the appropriate assumpsit or trespass pleading rules.
(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.

The pleading guidelines for trespass actions were contained in Pa.R.C.P. 1044 which, in relevant part, provided:

(a) The plaintiff may state in his complaint two or more causes of action in trespass, triable in the same county, which arise from the same transaction or occurrence or series of transactions or occurrences.

Under Rule 1020, a plaintiff was permitted to assert in one complaint two or more causes of action which arose from contract or which were quasi-contractual in nature. The pleading requirements of Rule 1044 were similar, albeit slightly more restrictive. Pursuant to Rule 1044, a plaintiff was allowed to join in one complaint two or more causes of action in trespass which arose out of the same transaction or occurrence or series of transactions or occurrences. Despite their differences, Rules 1020 and 1044 were the same in one important respect — neither compelled the joinder in one complaint of separate causes of action. For example, a plaintiff who held several causes of action in assumpsit because of breaches of different contracts had the option under Rule 1020 of asserting those claims in one action or commencing separate actions to litigate each claim. Similarly, a plaintiff who sustained damages as a result of the tortious conduct of another was free, under Rule 1044, to assert several causes of action in one action if the causes arose from the same transaction or occurrence or series of transactions or occurrences.

There was only one situation in which joinder of claims was required. Where the same transaction or occurrence or series of transactions or occurrences gave rise to causes of action sounding both in trespass and in assumpsit, it was mandatory under Pa.R.C.P. 1020(d)(1) that shall be asserted in one action. A cause of action not joined as required by Rule 1020(d)(1) was considered waived. See: Pa.R.C.P. 1020(d)(4).

In 1983, the Supreme Court of Pennsylvania abolished the procedural distinctions which had existed between assump-sit and trespass and created a single, unified action to be known as a “civil action.” See: Pa.R.C.P. 1001. In so doing, the Court rescinded Rule 1044 of the Rules of Civil Procedure and amended Rule 1020 to set forth pleading guidelines for the new form of action. As amended, the relevant provisions of Rule 1020 now provide:

(a) The plaintiff may state in the complaint more than one cause of action against the same defendant heretofore asserted in assumpsit or trespass. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.
(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.

The present version of Rule 1020 is markedly more demanding than its predecessor. Under the new rule, a plaintiff is required to join in one action all causes of action which arise from the same transaction or occurrence. See: Pa.R.C.P. 1020(d)(1). This rule obtains whether the plaintiffs claims are contractual in nature, in the nature of tort, or a combination of both. Failure to assert a cause of action as required by the rule will result in the waiver of that claim. See: Pa.R.C.P. 1020(d)(4).

In the instant case, Jones’ claim for uninsured motorist benefits and her claim for post-mortem work loss benefits were separate and distinct causes of action. See: Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 220 n. 13, 436 A.2d 621, 623 n. 13 (1981) (“Basic loss benefits and uninsured motorist benefits are separate and distinct____”). See also: 1 Am.Jur.2d Actions § 143. Accord: Sutterfield v. Fireman’s Fund American Insurance Co., 344 So.2d 1159 (La.App.1977). Jones filed suit to recover uninsured motorist benefits before the amendment of Rule 1020 in 1983. Despite the fact that her action pre-dated the amendment to the rules, the trial court applied the amended version of Rule 1020 in determining that Jones had waived her cause of action for work loss benefits by failing to assert that claim in her prior action for uninsured motorist benefits. This was error.

The amended version of Rule 1020, as we have observed, curtailed the substantive rights of parties by broadening the circumstances under which a cause of action could be waived. Because it affected substantive rights, it was not capable of retroactive application. See: Smith v. Fenner, 399 Pa. 633, 640, 161 A.2d 150, 154 (1960); Chiz & Dot’s, Inc. Liquor License Case, 211 Pa.Super. 320, 323, 236 A.2d 524, 236 A.2d 524, 525 (1967). Moreover, Pa.R. C.P. 152 provides unequivocally that whenever a rule of procedure is amended, “the new provisions shall be construed as effective only from the date when the amendment became effective.” As a result, this Court has consistently refused to apply amended procedural rules to actions commenced prior to the effective date of the amendment. See: Duquesne Light Co. v. U.S. Industrial Fabricators, Inc., 334 Pa.Super. 444, 447 n. 2, 483 A.2d 534, 536 n. 2 (1984). See also: Miller v. Hild, 303 Pa.Super. 332, 449 A.2d 714 (1982).

The trial court should have applied Rule 1020 as it existed on the date that the prior action for uninsured motorist benefits was filed. Under that version' of the rule, only causes of action in assumpsit and in trespass which grew out of the same transactions or occurrences were required to be joined in a single action. Because Jones’ claims for uninsured motorist benefits and for work loss benefits, although separate causes of action, were both in the nature of assumpsit, she was not required by the Rule to assert these causes of action in one and the same proceeding. Thus, when Jones failed in the prior action for uninsured motorist benefits to join her claim for post-mortem work loss benefits, the procedural rules did not require that her failure be deemed a waiver of the right to assert the latter claim in a subsequent proceeding.

The panel decision of this Court in Epstein v. State Farm Mutual Insurance Co., 312 Pa.Super. 542, 459 A.2d 354 (1983), does not compel a different conclusion. In Epstein, the plaintiff filed a claim with the defendant-insurance company to recover uninsured motorist benefits for injuries which he had received in a motor vehicle accident. The claim was submitted to arbitration, where it was determined that the plaintiff was not entitled to recover such benefits. This determination was subsequently appealed. In the meantime, on March 2, 1981, the plaintiff commenced an action in tort against the insurance company in which he sought general and punitive damages for the insurance company’s refusal to pay uninsured motorist benefits. The complaint was dismissed by the trial court on the ground that it raised the same claim as had already been asserted in the prior action. A panel of this Court affirmed. Applying the pre-1983 version of Pa.R.C.P. 1020, a majority of the panel reasoned as follows:

Both the cause of action in this case and the cause of action in the prior case arise from the same occurrence— appellee’s refusal to provide uninsured motorist benefits to compensate appellant for injuries suffered in the July accident. Because both causes of action arise from the same occurrence, appellant was required by the compulsory joinder provisions of the Rules of Civil Procedure to assert them both in a single action. Thus, Rule 1020 provides: “(d)(1) If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person, ... they shall be joined in an action against any such person in separate counts.” Pa.R.Civ.P. 1020(d)(1) (emphasis added). Appellant’s failure to abide by this rule— in other words, his failure in his first action to join as a separate count the cause of action he now argues before us — “shall be deemed a waiver of that cause of action as against all parties to the action.” Pa.R.Civ.P. 1020 (d)(4). The lower court’s order dismissing that action was therefore proper.

Id., 312 Pa.Superior Ct. at 543-544, 459 A.2d at 355 (footnotes omitted).

Epstein is factually distinguishable from the instant case. There, the plaintiff had attempted to assert, in different actions, a cause of action in assumpsit (for recovery of uninsured motorist benefits) and a cause of action in trespass (for the insurance company’s tortious denial of such benefits), both of which allegedly arose out of the same transaction or occurrence. This was in direct contravention of Rule 1020(d)(1). In the case sub judice, however, Jones did not assert causes of action in assumpsit and trespass. On the contrary, both the cause of action for uninsured motorist benefits which Jones had asserted in the prior action and the claim for post-mortem work loss benefits which she raised in the present class action sounded in assumpsit. Under these circumstances, the compulsory joinder provision of Pa.R.C.P. 1020(d)(1) and the waiver clause contained in Pa.R.C.P. 1020(d)(4) had no application.

For the reasons previously stated, therefore, we conclude that it was erroneous for the trial court to enter summary judgment against Jones on the ground that her claim for post-mortem work loss benefits had been waived under Pa.R.C.P. 1020(d)(4). This does not mean, however, that the entry of summary judgment against Jones was necessarily improper. In reviewing the ruling of the trial court, we will affirm if it was correct for any reason. E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 501, 327 A.2d 72, 76 (1974); Justin J. Powell, Inc. v. Wian, 456 Pa. 35, 40 n. 3, 318 A.2d 346, 349 n. 3 (1974); Green v. Juneja, 337 Pa.Super. 460, 464 n. 5, 487 A.2d 36, 39 n. 5 (1985); Emerick v. Carson, 325 Pa.Super. 308, 316 n. 2, 472 A.2d 1133, 1137 n. 2 (1984).

Keystone advanced an alternative basis for the entry of summary judgment in this case. It argued that Jones’ work loss claim was barred by the applicable statute of limitations contained in the No-fault Act. We agree with this contention.

Where no-fault basic loss benefits have been paid for loss arising otherwise than from death, an action for further benefits must be commenced not later than two years after the date of the last payment. 40 P.S. § 1009.106(c)(1). See: Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982); Roznowski v. Pennsylvania National Mutual Casualty Insurance Co., 343 Pa.Super. 7, 493 A.2d 775 (1985); Fidelibus v. State Automobile Insurance Association, 315 Pa.Super. 338, 461 A.2d 1309 (1983); Fusco v. Keystone Insurance Co., 312 Pa.Super. 471, 458 A.2d 1390 (1983). Here, Keystone paid for “loss arising otherwise than from death” when it paid the decedent’s medical benefits on August 16, 1978. Jones does not dispute that her action for work loss benefits had not been commenced within the statute of limitations provided in the No-fault Act. Thus, absent a tolling of the limitations period, Jones’ claim for work loss benefits is time-barred.

In Miller v. Federal Kemper Insurance Co., supra, we held that the statute of limitations on claims for post-mor-tem work loss benefits had been tolled by the prior class action of Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.), but only for the class members specifically included in that action. The Nye class was defined to embrace all previously employed insureds who had died in motor vehicle accidents after November 15, 1977.

Instantly, because Jones’ decedent sustained his fatal injuries on August 23, 1977, he was not included within the narrowly defined Nye class. Consequently, the tolling effect of Nye is of no benefit to Jones in her action to recover post-mortem work loss benefits on behalf of her decedent’s estate. This being the case, Jones’ claim was time-barred; it was not asserted until nearly seven years after Keystone had made its last payment of medical benefits. For this reason, the trial court did not err when it entered summary judgment on Jones’ individual claim for work loss benefits.

In addition to requesting the dismissal of Jones’ individual claim, the motion for summary judgment filed by Keystone also had urged that the class action complaint be dismissed. By granting Keystone’s motion, therefore, the trial court not only entered judgment against Jones, but also against all other members of the class proposed in her complaint. Jones contends that it was error for the trial court to dismiss the class action complaint and thereby enter summary judgment against all purported class members. Before we may consider this issue, we must determine whether Jones has standing to raise it.

Keystone argues that because Jones’ claim for work loss benefits is time-barred, she is not a member of the class defined in her complaint; therefore, she lacks a cognizable interest in seeing the class action continued. This argument is without merit. In Allesandro v. State Farm Mutual Automobile Insurance Co., 487 Pa. 274, 409 A.2d 347 (1979), our Supreme Court noted that a class plaintiff whose claim had been mooted was nevertheless entitled to bring an appeal on behalf of the class. Id., 487 Pa. at 282-283 n. 11, 409 A.2d at 351 n. 11. So, too, in the instant case, Jones may represent the interests of the class on appeal even though her individual claim is time-barred. We turn, then, to the merits of Jones’ contention.

The dismissal of the class action complaint by the trial court was based upon a recent decision by a panel of this Court in Brunda v. Home Insurance Co., 353 Pa.Super. 146, 509 A.2d 377 (1986) (allocatur granted). In Brunda, the plaintiff commenced a class action to recover post-mor-tem work loss benefits on behalf of her decedent’s estate. The defendant-insurance company had filed a motion for summary judgment and had argued that the plaintiffs individual claim was barred by the applicable statute" of limitations. In the meantime, however, the plaintiff had filed a motion for class certification. Thereafter, the motions of both parties were consolidated for hearing. After hearing, the trial court dismissed the plaintiff’s individual claim on the ground that it was time-barred. Nevertheless, the court granted certification of the class action on the condition that new class plaintiffs would be intervened within a specified amount of time. This, our Court held, was error. In so holding, the Court noted that after the

plaintiff’s dismissal as class representative, there no longer existed a named party to maintain the action. Id., 353 Pa.Superior Ct. at 156, 509 A.2d at 383. In the absence of a plaintiff who could serve as an adequate class representative, the Court concluded, the action could not proceed as a class action, and it was therefore erroneous for the trial court to certify the class on the condition that new class plaintiffs would be intervened. Id. Because this error had been rectified when the trial court later decertified the class action, however, the order of the trial court decertifying the action was affirmed.

The holding of Brunda does not support the unqualified dismissal of the instant class action. Brunda merely precludes a trial court from conditionally granting a motion for class certification where the individual claim of the only named class plaintiff has been dismissed on summary judgment. Where, as here, summary judgment has been entered against the class plaintiff before a motion for class certification has been filed, Pa.R.C.P. 1715(a) specifically prohibits the entry of summary judgment against the proposed class. See: Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 467-468, 462 A.2d 286, 289-290 (1983). Because the question of class certification has not yet been adjudicated — no request therefor having been made — it was error for the trial court to dismiss the class action complaint on a motion for summary judgment.

In light of the foregoing, we affirm the entry of summary judgment against Ruth Jones; however, we reverse that portion of the order which entered summary judgment against the class and dismissed the class action complaint. The class action complaint is reinstated, and the action remanded for further proceedings. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Keystone notes in its brief that the decedent’s correct name was Michael Seldow. The spelling which we use throughout this opinion is the one appearing in the caption of the case.

      . Although the action was originally filed in York County, it was later transferred to Dauphin County upon Keystone’s motion for change of venue.

      . The motion for summary judgment also asserted that the claim asserted by Jones in the class action was barred by the doctrine of res judicata. This argument was rejected by the trial court, and neither party has questioned the propriety of the court's ruling on appeal. Therefore, we do not consider this issue.
      Other motions filed by Jones were not decided by the trial court and are not now before us for appellate review.

      . Jones implies in her brief that Keystone should be equitably es-topped from asserting the waiver provision of Pa.R.C.P. 1020(d)(4) as a defense (1) because it failed to give her timely notice that it had rejected her claim for work loss benefits, and (2) because agents of Keystone had erroneously informed her that her claim was time-barred. We reject this argument for the reasons stated in Gabovitz v. State Automobile Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987).

      . Pa.R.C.P. 1715(a) provides: "Except by special order of the court, no judgment ... by summary judgment may be entered in favor of or against the class until the court has certified or refused to certify the action as a class action."


author: OLSZEWSKI, Judge:

text:
    528 A.2d 184
    COMMONWEALTH of Pennsylvania, Appellee, v. Richard MISTRETTA, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1987.
    Filed June 16, 1987.

      William J. Miele, Williamsport, for appellant.
    Brian C. Caffrey, Assistant District Attorney, Williams-port, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Appellant, Richard Mistretta, appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County after a jury found appellant guilty of indecent assault, pursuant to 18 Pa.C.S.A. Sec. 3126, and corruption of minors, pursuant to 18 Pa.C.S.A. Sec. 6301. On appeal, appellant raises the following issues: (1) whether the trial court erred in allowing the victim to assert a patient/licensed psychologist privilege, pursuant to 42 Pa.C. S.A. Sec. 5944, regarding statements made by the victim to a counselor employed by Williamsport Psychological Associates; (2) whether the trial court erred in permitting the Commonwealth to introduce appellant’s prior criminal record into evidence for the purpose of impeachment; and

(3) whether the trial court erred in sentencing appellant to two consecutive terms of imprisonment for the two separate convictions, which arose from the same criminal incident. For the reasons stated below, we affirm the trial court’s judgment of sentence.

Before addressing the merits of appellant’s contentions, a brief recital of the relevant facts is necessary. The Honorable Clinton W. Smith’s trial court opinion of May 13, 1986, succinctly described the facts surrounding the incident that resulted in appellant’s arrest and subsequent convictions:

The Commonwealth evidence showed that on a day in July, 1984, the victim (an eleven year old boy) returned to his home ... in Williamsport. The defendant (appellant, who was the victim’s twenty-four year old brother) was the only person in the house at that time, and he asked the victim to come upstairs so that the defendant could show the victim the hiking boots that the defendant bought for the victim’s brother. The defendant pushed the victim on the bed and fondled and sucked the victim’s penis. The victim’s and the defendant’s mother ... and another relative ... testified that the victim came over to the neighbor’s house, crying and saying that “Rick” would not leave him alone. The victim later told a number of people what the defendant had done to him.

Trial court opinion of May 13, 1986, at p. 2. Appellant was subsequently charged with involuntary deviate sexual intercourse (18 Pa.C.S.A. Sec. 3123), statutory rape (18 Pa.C.S.A. Sec. 3122), indecent assault (18 Pa.C.S.A. Sec. 3126), and corruption of minors (18 Pa.C.S.A. Sec. 6301).

On November 19-21, 1985, appellant had a jury trial before Judge Smith, and on November 21, 1985, the jury acquitted appellant of the involuntary deviate sexual intercourse and statutory rape charges, but found him guilty of the indecent assault and corruption of minors charges. Appellant timely filed post-verdict motions. In addition, appellant also filed amended, supplemental post-verdict motions after the ten-day period to file the motions had expired. See Pa.R.Crim.P. 1123(a). After the Honorable Clinton W. Smith denied appellant’s post-verdict motions, the Honorable Thomas C. Raup sentenced appellant to a term of imprisonment of one to two years on the indecent assault conviction, and a consecutive term of imprisonment of eighteen months to three years on the corruption of minors conviction. After denial of his motion to reconsider sentence, appellant filed this timely appeal.

Appellant first contends that the trial court erred by allowing the victim to assert the patient/licensed psychologist privilege regarding two conversations with a counselor employed at Williamsport Psychological Associates. Prior to his trial, appellant, without opposition from the Commonwealth, filed a motion for an in camera inspection of records pertaining to counseling the victim received as a result of the incident with appellant. The Honorable Thomas C. Raup granted appellant’s motion, and entered an order requiring Williamsport Psychological Associates to provide Judge Raup with the records of its director, a licensed psychologist, and a non-licensed psychologist employee pertaining to the victim. Following compliance with the order, Judge Raup reviewed the records, and provided appellant’s counsel with certain statements about the incident which the victim made during counseling sessions with the non-licensed psychologist.

At the time of trial, appellant’s counsel sought to introduce the victim’s statements through the testimony of the non-licensed psychologist to impeach the victim’s credibility through prior inconsistent statements. The trial court, however, allowed the minor victim, through his mother, to assert the patient/licensed psychologist privilege regarding the statements, and did not permit the introduction of testimony regarding the victim’s statements made during his counseling sessions. See N.T. 11/20/85 at pp. 15-18, 67. Appellant now maintains that the trial court erred in allowing the patient/licensed psychologist privilege to be asserted since the privilege was waived when the information in the psychologist’s file was made available to the trial court and appellant’s counsel. In addition, appellant also asserts that the trial court’s decision to allow the victim to assert the patient/licensed psychologist privilege violated appellant’s Sixth Amendment right to confront the evidence and witnesses against him since the testimony of the psychologist was both material and necessary to a proper determination of his case.

We, however, do not find it necessary to reach the merits of appellant’s contention. If the privilege had not been asserted, the psychologist would have testified about statements the victim made to her during his counseling sessions concerning what happened during the incident with appellant. In essence, she would have testified that the victim only told her that appellant had rubbed the victim’s groin area through his pants. See N.T. 11/20/85 at pp. 49-50. As appellant’s counsel conceded during the hearing to determine if the testimony was admissible, see N.T. 11/20/85 at p. 66, this testimony would have been exculpatory to appellant only on the involuntary deviate sexual intercourse and statutory rape charges. Appellant, however, was convicted only of indecent assault and corruption of minors, being found not guilty of the involuntary deviate sexual intercourse and statutory rape charges. Indeed, as appellant’s counsel further conceded, see N.T. 11/20/85 at p. 66, even if the jury chose to believe the psychologist’s testimony as opposed to the victim’s testimony, they could still have found appellant guilty of the indecent assault and corruption of minors charges. Thus, the exclusion of the psychologist’s testimony, even if error, was harmless under the circumstances of this case. See Commonwealth v. Wongus, 219 Pa.Super. 149, 151, 280 A.2d 666, 668 (1971). Appellant was not prejudiced by the exclusion of the psychologist’s testimony, since the testimony was relevant and exculpatory only on the charges for which appellant was acquitted. See Commonwealth v. Sweger, 351 Pa.Super. 188, 194, 505 A.2d 331, 334 (1986) (trial court’s ruling on exclusion or admission of evidence will be reversed on appeal only on a showing that actual prejudice occurred to defendant).

Appellant next contends that the trial court erred by allowing the Commonwealth to offer into evidence appellant’s prior criminal record for the purpose of impeachment. In essence, appellant maintains that admission of his prior convictions for theft unfairly prejudiced his case because of the strength of the Commonwealth’s case and his important need to testify about his version of the incident with the victim. We, however, find appellant’s contention to be meritless.

In Pennsylvania, “(t)he admissibility of evidence of prior convictions for the purpose of impeaching a defendant/witness is within the sound discretion of the trial judge and will not be reversed absent an abuse of discretion by the trial judge.” Commonwealth v. Bailey, 354 Pa.Super. 51, 53, 511 A.2d 180, 182 (1986). In exercising this discretion, the trial judge must determine “whether the probative value of the evidence of other convictions as it bears upon the credibility of an accused as a witness outweighs the prejudicial effect that such evidence has upon the jury.” Commonwealth v. Kearse, 326 Pa.Super. 1, 6, 473 A.2d 577, 580 (1984). The burden of proof is, of course, upon the Commonwealth to show that the need for the evidence of a defendant’s prior criminal convictions for impeachment overcomes the evidence’s inherent potential for prejudice. See Commonwealth v. Williams, 273 Pa.Super. 389, 392, 417 A.2d 704, 705 (1980).

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), our Supreme Court enunciated some basic factors to be considered by a trial judge in making a determination about the admissibility of a defendant’s prior criminal record for impeachment purposes. The Court stated:

In making the determination as to the admissibility of a prior conviction for impeachment purposes, the trial court should consider: 1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

Id., 482 Pa. at 39-40, 393 A.2d at 367 (footnote omitted). In Kearse, supra, this Court discussed the proper counterbalancing of the above factors. We noted: “When the court engages in a proper counterbalancing of the competing considerations in this determination, it is of ‘critical importance’ that the evidence be excluded when it appears that ‘it is more important to the search for truth in a particular case for a jury to hear the defendant’s story than to know of a prior conviction.’ ” Kearse, 326 Pa.Super. at 6, 473 A.2d at 580 (quoting Commonwealth v. Bighum, 452 Pa. 554, 567, 307 A.2d 255, 263 (1973)). See also Commonwealth v. Duffy, 355 Pa.Super. 145, 151, 512 A.2d 1253, 1256 (1986) (trial court is required to balance each of the factors favoring and disfavoring admission of the prior criminal record evidence in making its determination).

In the present case, our review of the record reveals that the trial court did consider the factors specified in Roots, supra, in ruling upon the admissibility of appellant’s prior conviction for theft by deception and a prior conviction for two counts of theft. The trial court weighed the arguments of counsel in terms of Roots factors and decided that appellant’s prior theft convictions would be admissible for impeachment purposes. See N.T. 11/20/85 at pp. 121-122. In addition, the trial court also gave a cautionary instruction to the jury on how appellant’s prior convictions should be viewed, stating “(T)his evidence may be considered by you for one purpose only, that is, to help you judge the credibility and the weight of the testimony given by the defendant (appellant) as a witness in this case.” N.T. 11/20/85 at p. 124. We shall discuss each of the Roots factors, seriatim.

First, theft is “crimen falsi and thus highly pertinent to veracity and credibility.” Commonwealth v. Henderson, 497 Pa. 23, 36, 438 A.2d 951, 957 (1981). Hence, evidence of prior convictions for theft is an appropriate basis for impeaching the credibility of a defendant/witness under the first factor to be considered in the Roots test. See Commonwealth v. Zabala, 310 Pa.Super. 301, 320, 456 A.2d 622, 632 (1983). Moreover, appellant’s trial occurred in November 1985 and both of his prior convictions for theft were secured earlier in 1985. Appellant’s prior theft convictions were therefore recent, and their relevance was not attenuated by age. See Henderson, 497 Pa. at 35, 438 A.2d at 957. See also Roots, 482 Pa. at 39 n. 4, 393 A.2d at 367 n. 4 (the age of the prior criminal conviction should be considered).

Second, the trial court ruled that only evidence of the two prior convictions for theft would be admissible for the purpose of impeaching the defendant/witness. Though relevant in determining his capability for truthfulness when testifying, appellant’s two prior convictions for theft do not indicate his propensity to commit the sex crimes for which he was charged. The nature and extent of appellant’s prior record that was offered into evidence, consequently, “was not such that it would have had a greater tendency to smear the character of appellant and suggest his propensity to commit the crime with which he had been charged than to provide a legitimate reason for discrediting him as an untruthful person.” Kearse, 326 Pa.Super. at 8, 473 A.2d at 580. We, therefore, find the second of the Roots factors to be satisfied.

Third, appellant’s age and circumstances do not weigh in appellant’s favor. Appellant was approximately twenty-five years of age at the time of his conviction for the prior crimes. Appellant was thus of an adult age and the relevance of the prior conviction as impeachment evidence was not attenuated by appellant’s age. See, Bailey, 354 Pa.Super. at 55, 511 A.2d at 183; Kearse, 326 Pa.Super. at 8, 473 A.2d at 581.

Fourth, even though appellant was the only defense witness who could testify about what happened during the incident with the victim, the prejudicial effect of admitting appellant’s criminal record did not completely outweigh the Commonwealth’s need for the impeachment evidence under the Roots test. In the instant situation, the Commonwealth’s case against appellant was premised in large part on the testimony of the victim, twelve years old at the time of trial, who testified that appellant sexually molested him by fondling and sucking on his penis. See N.T. 11/19/85 at pp. 10-17. The success of the Commonwealth’s case consequently depended in large measure on the testimony and credibility of the victim since the victim and appellant were the only people present during the incident leading to the criminal charges against appellant. The actual incident was not witnessed by any other people. The credibility of both the victim and appellant was, therefore, particularly important, especially when their trial testimony was totally contradictory. The victim testified that he was sexually molested by appellant, see N.T. 11/19/85 at pp. 10-17, whereas appellant testified that he never had sexual contact of any kind with the victim, see N.T. 11/19/85 at pp. 72-73. In essence, the credibility accorded by the jury to the testimony of each witness was crucial in their decision to believe either the Commonwealth’s or appellant’s version of the case.

We, therefore, find that the impeachment evidence was essential to the Commonwealth’s case and not unreasonably prejudicial to appellant who, as the only defense witness who could testify about what happened with the victim, had a strong interest in presenting his story to the jury. The Commonwealth, however, also had an important interest in presenting the impeachment evidence since the credibility of each side’s primary witness was a crucial factor in this case. See Commonwealth v. Brunner, 305 Pa.Super. 411, 451 A.2d 714 (1982).

Fifth, the Commonwealth did not have an alternative means of directly impeaching the credibility of appellant. The Commonwealth did not have any other witnesses who could impeach appellant’s credibility, and appellant did not make any statements or admissions about the incident with the victim that could be used for impeachment purposes. The Commonwealth, consequently, “lacked an adequate alternative means to present a straightforward challenge to the veracity of appellant as a witness.” Kearse, 326 Pa.Super. at 10, 473 A.2d at 582. The trial court, therefore, “could reasonably have concluded that the balance of the Commonwealth’s need for the evidence and its prejudice to appellant weighed more heavily in favor of the Commonwealth.” Commonwealth v. Gonce, 320 Pa.Super. 19, 35, 466 A.2d 1039, 1047 (1983). After balancing the factors of the Roots test, we find that the trial court properly permitted appellant’s prior theft convictions to be admitted for the purpose of impeachment.

Appellant’s final contention is that the trial court erred when it sentenced appellant to a term of imprisonment of one to two years on the indecent assault conviction, and a consecutive term of imprisonment of eighteen months to three years on the corruption of minors conviction. Appellant maintains that the two convictions should have merged for sentencing purposes since both criminal charges and subsequent convictions occurred as a result of the same incident. We, however, find appellant’s contention to be without merit.

In Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986), our Supreme Court recently addressed an issue similar to the issue presently before us in this appeal. In Sayko, the defendant pled guilty to charges of indecent assault, indecent exposure, and corrupting the morals of a minor, and the trial judge sentenced appellant separately on each charge. On appeal, the defendant asserted that the sentence imposed for the corruption of a minor conviction should have merged with the other offenses since the charges all arose during the .same criminal transaction. The Supreme Court, however, held “that none of the charges merge; that they are separate, distinct criminal acts; and that the defendant may be sentenced on each separately, concurrently or consecutively.” Sayko, 511 Pa. at 612, 515 A.2d at 895. In support of its holding, the Court stated:

The General Assembly may discern by statute different interests to be protected in the same person during a criminal transaction. There is a difference in fact and in consequence between an indecent touching and an indecent exposure; and a profound difference between both acts and the corruption of a minor. Each contain different elements designed to protect different interests. The corruption of a minor child can only be committed against a minor child, hence the interest to be protected and the age of the victim are elements different from those of indecent assault and indecent exposure, which offenses can be perpetrated against anyone, young or old. So too, are there different interests and different elements dividing an indecent touching and an indecent exposure.

Id., 511 at 613, 515 A.2d at 895-896 (footnotes omitted). The Court additionally stated:

In the instant case, ... there were two fundamentally different Commonwealth interests involved when the defendant committed the act comprising indecent exposure in the presence of his minor victim. Not only did the defendant violate the Commonwealth’s interest in proscribing exhibitionism and in shielding any victim from such conduct, he also violated the Commonwealth’s interest in protecting minors from corrupting influences, the consequences of which may follow them all their days. Alternatively, as regards the indecent assault charge, the defendant violated the victim’s right to be free from such offensive touching, while at the same time violating the Commonwealth’s interest in protecting minors from any further consequences of that touching.

Id., 515 Pa. at 616, 515 A.2d at 897. See also Commonwealth v. Williams, 344 Pa.Super. 108, 143, 496 A.2d 31, 50 (1985) (en banc) (“We hold that separate punishments may be imposed for a single, indivisible act where the act includes conduct proscribed by separate statutes each of which seeks to prevent a substantially different harm or evil.”).

In the present case, appellant was convicted of both indecent assault and corruption of minors, even though the charges arose from the same criminal incident. As noted in Sayko, however, both crimes protect separate interests of the Commonwealth, even when committed against the same person during a single criminal transaction. Appellant’s conduct during the incident violated both the Commonwealth’s interest in protecting minors from corrupting influences and the victim’s right to be free from offensive touching. The trial court, consequently, did not err in sentencing appellant to separate, consecutive terms of imprisonment for his indecent assault and corruption of minors convictions.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . 42 Pa.C.S.A. Sec. 5944, Confidential Communications to Licensed
      Psychologists, provides in pertinent part:
      No person who has been licensed under the act of March 23,1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.
      (Footnote omitted.)

      . Appellant additionally argues that: (1) the trial court erred by not permitting appellant’s counsel to review the victim's complete file from Williamsport Psychological Associates in accordance with Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985); and (2) that errors by the trial court during his trial precluded him from receiving a fair trial. We, however, will not consider these issues since we find that both issues have not been properly preserved for appellate review.
      Appellant’s first issue, concerning the applicability of the Ritchie decision to the records of the victim’s psychologist, was not raised in appellant’s original post-verdict motions, which were timely filed on November 25, 1985, four days after the jury returned a verdict of guilty against appellant on the charges of indecent assault and corruption of minors. See Pa.R.Crim.P. 1123(a) ("Within ten days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment.”). Rather, appellant first raised this issue in his amended, supplemental post-verdict motions, which were not filed until January 27, 1986, almost two months after the expiration of the ten-day filing period. In Commonwealth v. Rosko, 353 Pa.Super. 307, 509 A.2d 1289 (1986), this Court stated:
      The first issue raised by Appellant regarding the jury’s verdict has been waived because it was not included in the timely post-trial motions which were filed on November 10, 1983. The first time that Appellant complained about the propriety of the verdict slip was when he filed supplemental post-trial motions approximately one year after the verdict was entered. Appellant did not seek permission of the trial court to raise this additional issue nunc pro tunc. One must either file post-verdict motions within ten days under Pa.R.Crim.P. 1123(a) or seek permission to file post-verdict motions nunc pro tunc under the Post Conviction Hearing Act as required by Pa.R.Crim.P. 1123(f). As we recently reiterated in Commonwealth v. Jackson, 336 Pa.Super. 609, 623, 486 A.2d 431, 439 (1984), “(o)ur Court will review only those issues which have been properly preserved for review, i.e., errors which have been raised specifically in written post-trial motions pursuant to Pa.R.Crim.P. 1123(a)."

        Id., 353 Pa.Superior Ct. at 310, 509 A.2d 1290-1291 (emphasis added). Our review of the record of this case, however, reveals that appellant did not seek permission to file his supplemental post-verdict motions nunc pro tunc. We therefore find that appellant’s first issue has not been properly preserved for appellate review, even though the trial court did address the merits of appellant’s claim in denying his post-verdict motions. See Commonwealth v. Gregory, 309 Pa.Super. 529, 531, 455 A.2d 1210, 1211 (1983) (although the trial court acted upon the merits of appellant’s untimely post-verdict motions, the issues raised in the motions were not preserved for appellate review).

        Appellant’s second issue, regarding whether errors by the trial court precluded him from receiving a fair trial, was raised for the first time on appeal. In Commonwealth v. Thier, 354 Pa.Super. 7, 510 A.2d 1251 (1986), this Court stated, "An issue is not properly preserved for appellate review if it is not raised in written post-verdict motions as required by Pa.R.Crim.P. 1123(a).” Id., 354 Pa.Superior Ct. at 9, 510 A.2d at 1252. See also Commonwealth v. Gravely, 486 Pa. 194, 198, 404 A.2d 1296, 1297 (1979) (only those issues included in post-verdict motions will be considered preserved for appellate review). Appellant was made aware of this requirement by the trial court. See N.T. 11/21/85 at pp. 108-111. Appellant’s issue regarding whether he was precluded from receiving a fair trial because of errors of the trial court is therefore not preserved for our review since appellant failed to raise this issue in his post-verdict motions.

      . In an opinion dated March 7, 1986, the trial court denied appellant’s motion in arrest of judgment and motion for a new trial, except that the motion for a new trial was granted to the extent that appellant’s counsel was permitted to review the confidential records of the Department of Youth and Children pertaining to the victim to ascertain if the information could have been used in either cross-examining the victim or presenting other evidence. The trial court, however, subsequently denied appellant’s motion for a new trial after a hearing to determine if appellant’s case was prejudiced by his counsel’s inability to personally review the victim’s file prior to appellant’s trial. See trial court opinion of May 13, 1986 at pp. 1-6.

      . Judge Raup is the President Judge of the Court of Common Pleas of Lycoming County. Subsequent to appellant’s trial, Judge Smith re-cused himself from appellant's case for the purpose of sentencing, and appellant’s sentencing hearing was scheduled before Judge Raup.

      . The trial court did not conduct a pre-trial hearing in accordance with Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1983), to determine whether appellant's prior convictions for theft were admissible into evidence for the purpose of impeachment. "(When the admissibility of prior convictions is an issue, the trial court should conduct an in camera, Bighum hearing prior to the commencement of trial, in order that the defendant may weigh his or her decision to testify at trial." Commonwealth v. Duffy, 355 Pa.Super. 145, 150, 512 A.2d 1253, 1256 (1986).
      Failure to conduct such a hearing, however, does not conclusively establish that a defendant was unreasonably prejudiced by admission into evidence of prior criminal convictions for the purpose of impeachment. Rather, absence of a pre-trial Bighum hearing is a factor to be considered along with the Roots factors in analyzing whether the trial court properly admitted prior criminal convictions as impeachment evidence. See Duffy, 355 Pa.Super. at 150, 512 A.2d at 1256.
      In the instant case, two reasons support our finding that absence of a pre-trial Bighum hearing to consider the admissibility of his prior theft convictions has not prejudiced appellant. First, appellant’s counsel has not alleged surprise by the Commonwealth's offer into evidence of appellant’s prior theft convictions. Cf. Duffy, 355 Pa.Super. 150-159, 512 A.2d at 1256-1260. Indeed, appellant’s filing of a motion in limine prior to trial to preclude the Commonwealth from offering his prior convictions into evidence indicates appellant’s awareness that the Commonwealth intended to use the convictions for the purpose of impeachment. Second, the trial court during the trial did conduct a Bighum hearing in which it considered the admissibility of appellant’s prior convictions in light of the Roots factors. See N.T. 11/20/85 at pp. 121-122. In several cases, this Court has upheld a trial court’s ruling admitting the defendant’s prior criminal record for impeachment purposes even though the trial court conducted a Big-hum hearing during, rather than prior to, the trial. See e.g., Commonwealth v. Richardson, 347 Pa.Super. 564, 570, 500 A.2d 1200, 1204 (1985); Commonwealth v. Toomey, 321 Pa.Super. 281, 284-291, 468 A.2d 479, 481-484 (1983).

      . Appellant’s conviction for the two counts of theft occurred in February 1985, and his conviction for theft by deception occurred in April 1985.

      . Appellant was twenty-four years old at the time of the incident with the victim, but twenty-five years old at the time of his convictions for theft, which occurred subsequent to the incident but before appellant’s trial. Though occurring subsequent to the incident, appellant’s convictions for theft were relevant for impeaching appellant’s credibility at trial since the convictions occurred prior to appellant’s trial. See Commonwealth v. Richardson, 347 Pa.Super. 564, 571, 500 A.2d 1200, 1204 (1985) (“The convictions sought to be introduced here were not stale, having occurred within five years of trial.”) (emphasis added).


author: TAMILIA, Judge: DEL SOLE, Judge,

text:
    528 A.2d 191
    COMMONWEALTH of Pennsylvania, Appellee, v. Parrish MULLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1987.
    Filed June 18, 1987.
    Petition for Allowance of Appeal Denied Dec. 4,1987.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

      Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

On February 18, 1986, appellant pled guilty to two charges of possession with intent to deliver marijuana. Appellant was sentenced, on April 2,1986, by the Honorable Shad Connelly, on the first drug charge to pay costs, restitution, a fine of $100 and to serve a period of eighteen (18) months to thirty-six (36) months incarceration. On the second charge, appellant was sentenced to pay costs, a $500 fine, restitution and to serve three (3) years consecutive probation. A timely motion to modify sentence was filed by appellant and denied on April 10, 1986. Appellant now brings this timely appeal to that denial.

Appellant raises the following question on appeal: “[wjhether the lower court abused its discretion when it failed to give adequate weight to mitigating factors at sentencing and thereby imposed an excessive sentence while also failing to state adequate reasons for the sentence on the record?” Brief for Appellant at 3. Although this statement of the question involved on appeal appears to be couched as a single question, it in fact poses two issues for our review. First, whether the court abused its discretion by failing to give adequate weight to “mitigating factors” at sentencing, and second, whether the sentencing court failed to state adequate reasons for the sentence on the record requiring us to vacate the sentence and remand.

We find that this second issue is not properly before us and is waived due to appellant’s failure to raise this issue in his motion to modify sentence. Procedural sentencing issues, such as appellant’s insufficient-reasons-on-the-record claim, are waived if not properly preserved and presented below. Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985); Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984). However, since appellant’s first issue regarding the trial court’s weighing of mitigating factors was presented in appellant’s motion to modify, we will address it.

Appellant contends the court abused its discretion by failing to give adequate weight to mitigating factors at sentencing. Based on the recent Supreme Court of Pennsylvania case of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and our case of Commonwealth v. Thomas, 363 Pa.Super. 348, 526 A.2d 380 (1987) (applying Tuladziecki), we must analyze whether or not appellant has properly presented this issue for appeal.

As in Tuladziecki, notice of appeal under Pa.R.A.P. 902 operates as a “petition for allowance of appeal” which is required by 42 Pa.C.S. § 9781(b). The briefing stage must then deal with the appropriateness of the appeal. (Comments to Rule 902). There, the question of appropriateness is handled in the usual manner, first by alleging any question relating to the discretionary aspect of the appeal in the “statement of question involved” required by Pa.R.A.P. 2116(a) and (b). This was done in this case by appellant stating:

A. Whether the lower court abused its discretion when it failed to give adequate weight to mitigating factors at sentencing and thereby imposed an excessive sentence while also failing to state adequate reasons for the sentence on the record.

Thus at this point in the proceeding, appellant had properly alleged a substantial question, pursuant to § 9781(b), for the court’s consideration prior to argument. Next in the sequence, prior to argument on the merits, see Pa.R.A.P. 2119(f), there must be a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence before going to the merits.

While the appellant did not specify that the statement following the statement of question, titled “Argument”, was pursuant to Rule 2119(f), in fact, the statement precisely contained the reasons relied upon, by statute, case law and the sentencing guidelines for allowance of appeal of the discretionary aspects of the sentence. There, the appellant delineated the extent of discretion of the trial court, the degree to which the trial court is bound by the sentencing guidelines (Appellant’s brief, p. 6), as well as the responsibility of the trial judge to apprise himself of the character of the defendant and circumstance of the offense, and secondly, to formulate and explain the sentence in light of the guidelines specified in the sentencing code (Appellant’s brief, p. 7). In addition, the court must carefully consider the weight given to each of the grounds set forth in the applicable grounds of the sentencing code (Appellant’s brief, p. 8). If the court failed to follow the process detailed above, there was an abuse of discretion as to the discretionary aspects of sentence which required appellate review and resentencing. (Appellant’s brief, p. 8). We are in an entirely different posture here than was the case in Tulad-ziecki, supra, where the panel decided there was a substantial question after considering the merits in a “post hoc determination that a substantial question exists.”

Only after the above statement did the appellant, in his brief, turn to the merits. (Appellant’s brief, p. 8). We believe the appellant’s statement, as summarized above, uncontested by the Commonwealth, is sufficient within the Pennsylvania Rules of Appellate Procedure as delineated above, and in conformity with Tuladziecki, supra, to permit us to accept this appeal and to consider appellant’s question on the merits.

As already stated, appellant was sentenced to a period of incarceration of eighteen (18) to thirty-six (36) months on the first count. Under the sentencing guideline prepared, the minimum range of imprisonment was zero (0) to twelve (12) months, the aggravated range was twelve (12) to eighteen (18) months and the mitigated range was non-confinement. The statutory limit for this offense is five (5) years imprisonment (35 P.S. § 780-113(a)(30) and (f)). Thus appellant was sentenced within the aggravated range of the guidelines.

Although appellant sets forth a number of reasons in the argument section of his brief for finding an abuse of discretion — claiming the court focused primarily on the seriousness of the crime and using appellant as a deterrant to others — many of these do not pertain to the issue of whether the sentencing court gave adequate weight to mitigating factors at sentencing. As to mitigating factors, appellant stated:

Appellant takes the position that the sentencing court did not meaningfully consider the non-violent nature of the original offenses, the needs of the Defendant, his young age, the needs of society and his extensive drug habit and rehabilitaive [sic] potential. The sentencing court had a duty to consider these factors and any ability for rehabilitation, and whether a less severe sentence would have been appropriate.

Brief for Appellant at 14.

“When a sentence is within statutory limits, and the court has complied with the Sentencing Code, 42 Pa.C.S. §§ 9701-9781, we will not reverse the sentencing court’s decision absent a manifest abuse of discretion.” Commonwealth v. Gallagher, 353 Pa.Super. 426, 452, 510 A.2d 735, 749 (1986); Commonwealth v. Brown, 314 Pa.Super. 311, 460 A.2d 1155 (1983). Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). Discretion must be accorded sentencing judge’s decisions, because such judge is in the best situation to weigh various factors such as the nature of the crime, the defendant’s character and defendant’s display of remorse, defiance or indifference. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985). The statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code, it need only demonstrate that the court has considered the factors specified in the code. White, supra; Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983).

In the instant case, the sentence imposed was rigorous but well within the statutory limits and guidelines. After considering the appellant’s prior criminal record, which began ten or eleven years ago when appellant was a juvenile, appellant’s extensive drug problem and self-admitted addiction to marijuana, the nature of the serious crime of selling drugs and appellant’s character, the sentencing judge concluded that appellant should be incarcerated in order to protect both himself and society and further his rehabilitation which appellant has been unable to accomplish on his own (N.T. 4/2/86, pp. 5-9). While it is true that prior record scores are incorporated into the guideline ranges, those specifically chargeable offenses sometimes do not adequately bear out the defendant’s anti-social and disruptive activity. Here, the trial court paid considerable attention to those factors and weighed them more heavily against the defendant than any redeeming considerations present.

Finally, appellant’s argument that the court did not take into account mitigating factors in considering sentencing is without substance. Only in capital cases does the law require a set off of mitigating and aggravating circumstances in making a determination, i.e., between life in prison and death. See 42 Pa.C.S. § 9711. In any other case, the court is required to assess the rehabilitative needs of the defendant, and despite the existence of factors such as good family, church attendance, employment, etc., if continued criminal behavior is such that the prediction for law abiding behavior is slim or none, and the mitigating factors are irrelevant to the rehabilitative needs and the protection of society, they may not prevail. The legislature has gone even further in mandatory sentencing to eliminate any consideration of mitigating factors in certain classes of cases, when the public welfare requires it. Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986). In conformity with Tuladziecki, supra, the court did view the case from the perspective of the entire sentencing code, rather than limiting its consideration to the narrow perspective of the sentencing guidelines.

We conclude that the sentencing judge gave adequate weight to the existing mitigating factors and that the sentence imposed was not excessive and there was no abuse of discretion.

Judgment of sentence affirmed.

DEL SOLE, J., concurs.

DEL SOLE, Judge,

concurring:

I join the Majority Opinion in all respects. I write separately to address the issues raised relative to the application of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

Initially, one must realize that the Superior Court of Pennsylvania has jurisdiction to hear appeals involving the discretionary aspects of sentencing. 42 Pa.C.S.A. § 9781(b) provides discretionary jurisdiction in this court and the Supreme Court in Tuladziecki indicated the procedural steps necessary to invoke that discretionary review.

It is obvious that the method of raising the issue to this court for our exercise of discretion in reviewing the discretionary aspects of sentencing is procedural. As the majority stated in Tuladziecki:

“The Appellant properly preserved his challenge to this procedural violation, and for the reasons stated herein the Superior Court’s decision to overlook it must be vacated.”

Since the Supreme Court has clearly labeled the failure to properly follow the Appellate Rules in raising the issue of the discretionary aspects of sentencing as procedural, such a defect would be waivable.

In the instant case, the Appellee did not object to the procedural irregularity in the Appellant’s brief in raising the issue. Therefore, in my view that issue is waived.

However, since I am of the view that the Tuladziecki requirements are procedural I also agree with the Majority that this court, in exercising its discretion to determine whether it would review the sentence, can waive technical procedural defects.

      . Appellant sold approximately one ounce of marijuana to an undercover state narcotics agent for the sum of $110 on two separate occasions — June 18, 1985 and July 2, 1985.

      . Neither Tuladziecki nor the recent decision of this Court, Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987), prevent appellate review for lack of headings as to “substantial question" and "statement of reason" when, as here, the brief was in substantial conformity with the rules.


author:
McEWEN, Judge:
      DEL SOLE, Judge,

text:
    528 A.2d 195
    COMMONWEALTH of Pennsylvania, Appellant, v. John W. GILBERT, Vincent Gilbert, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1986.
    Filed June 23, 1987.

      Gaele M. Barthold, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Richard H. Knox, Philadelphia, for appellee (at 2177).
    Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellee (at 2178).
    Before McEWEN, DEL SOLE and KELLY, JJ.
   McEWEN, Judge:

The Commonwealth has undertaken these appeals from an order which suppressed the inculpatory statements of appellees John Gilbert and Vincent Gilbert. We have consolidated these appeals for consideration of the sole issue presented by both appeals, namely, whether the preliminary arraignment of the brothers was held within six hours after their arrest, pursuant to the rule established by the Pennsylvania Supreme Court in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). We conclude that the order of suppression must be reversed.

Our first task is, of course, to determine whether the factual findings of the suppression court are supported by the record, Commonwealth v. Monarch, 510 Pa. 138, 146, 507 A.2d 74, 78 (1986); Commonwealth v. Fischer, 348 Pa.Super. 418, 420, 502 A.2d 613, 614 (1985), for the law is clear that we are bound by such factual findings of the suppression court as are supported by the record. Commonwealth v. Chamberlain, 332 Pa.Super. 108, 111, 480 A.2d 1209, 1211 (1984); Commonwealth v. Chiesa, 329 Pa.Super. 401, 403, 478 A.2d 850, 851 (1984). We are not, however, bound by the conclusions of law reached by the hearing court and we may reverse the suppression court when those conclusions are in error. Commonwealth v. Brown, 328 Pa.Super. 207, 209, 476 A.2d 965, 966 (1984).

The opinion of the distinguished hearing judge reflects his careful analysis of the record and thoughtful study of the prevailing principles of law. Moreover, our conclusion relies upon the following findings of the hearing court:

Vincent Gilbert completed his statement to the police at 1:50 a.m., while the statement of John Gilbert was completed at 3:03 a.m.
Vincent Gilbert was arraigned at 4:12 a.m., two minutes after his brother John had been arraigned at 4:10 a.m.

We differ, however, with the conclusions of the hearing court that John Gilbert was placed under arrest at 10:05 p.m., and that Vincent Gilbert was placed under arrest at 10:10 p.m., since our review of the record leads us to conclude that each of the arrests occurred several minutes thereafter and, as a result, within the crucial six hour period prior to arraignment, the focus of the Supreme Court mandate in Davenport, supra.

It has long been the law in this Commonwealth that an arrest will be deemed to have occurred where a police officer acts with the intention to take a person into custody and subject that person to his or her will and control. Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), cert. denied Bosurgi v. Pennsylvania, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); Commonwealth v. Boden, 337 Pa.Super. 108, 109, 486 A.2d 504, 505 (1984), aff'd. 510 Pa. 287, 507 A.2d 813 (1986); Commonwealth v. Rodriquez, 330 Pa.Super. 295, 302, 479 A.2d 558, 562 (1984); Neitz v. Commonwealth, Department of Transportation, 96 Pa.Cmwlth, 1, 4, 506 A.2d 961, 963 (1986). “ ‘Whether an arrest has occurred depends upon the impression conveyed to the person detained, not upon the officer’s subjective intentions.’ ” Commonwealth v. Lagana, 356 Pa.Super. 132, 136, 514 A.2d 179, 181 (1986), quoting Commonwealth v. McManus, 353 Pa.Super. 355, 359, 509 A.2d 1314, 1316 (1986).

The testimony discloses that appellee Vincent Gilbert, aware that he had become the object of a search by individuals bent on retaliation by reason of an accusation of rape made against him, sought the safety of the protective custody of the police, and found such refuge between 10:00 p.m. and 10:05 p.m. when he came upon Officer Brenda Stowe and accepted the sanctuary of her patrol car. Officer Stowe and her passenger, Vincent Gilbert, then proceeded through the neighborhood to locate “the people that were going to beat him up”, and actually “stopped a few people who were chasing him”. It was at that time that Officer Stowe received a radio call to proceed to a disturbance a few blocks away, where she encountered “a disorganized crowd, a disturbance”. It was there that she observed John Gilbert being placed by police officers in a patrol wagon and away from the crowd, and where she watched the victim of the rape, in “ranting and raving” fashion, identify Vincent Gilbert, the passenger in her police car, as a rapist. Officer Stowe further testified that when her supervisor arrived at 10:17 p.m., she was still “investigating Mr. Gilbert, [the rape victim] and the whole particular situation”. It was when the supervisor thereafter related that the victim had filed a criminal complaint for rape, that the brothers were subjected to arrest and, at 10:20 p.m., transported to the police station for interrogation.

No one will dispute that the police officer assigned to patrol the streets of Philadelphia during the hot nights of summer must ever be intensely alert since the officer will in the next moment likely confront disturbance or disaster, each accompanied by grave personal danger. And, of course, once the patrol officers delivered appellees to the arraigning officers in the police station, to the street they had to promptly return, knowing their hope — that their presence will establish calm — to be a vain one.

The record reveals that the turbulence that here beset the patrol officers commenced between 10:00 and 10:05 p.m. on that July night and saw:

Vincent Gilbert thwart threats of harm by seeking the protective custody of a patrol car.
The police undertake to patrol the area to locate the angry crowd.
John Gilbert taken from the midst of the crowd and placed in a patrol wagon.
The victim of the rape, in “ranting and raving” fashion, accuse her attackers.
The command officer advise the patrol officers that the victim had filed a formal complaint of the rape.

Thus, we conclude that the arrest of appellees did not occur when they were separately rescued by the police and placed in police vehicles, nor even at the moment that the victim excitedly accused them, since the tumult reflected by the record would not permit the patrol officers to so quickly conclude that their passengers were felons and subject to arrest. Rather, the arrests took place when the supervising officer at 10:17 p.m. advised the patrol officers that the victim had filed a rape complaint, and thereby transformed the status of appellees from that of protected to that of prisoners.

It may not be doubted that these events would consume several minutes, and that the officers would need a few further minutes to “sort out” the turmoil of all of the events. And, of course, the clarity provided by the report of the police supervisor that the victim had filed a complaint of rape enabled the patrol officers to respond decisively and to transport them from the site as prisoners. Since, therefore, the arrest did not occur prior to 10:17, the arraignments of John Gilbert at 4:10 a.m. and of Vincent Gilbert at 4:12 a.m. were accomplished within the standard enunciated in Davenport, supra.

The performance of Officer Stowe throughout the entire occurrence was exemplary — she protected the quarry of an angry mob, she responded to the cries of the victim, and she arrested the alleged assailants when probable cause was established. The assertions of appellees, on the other hand, would have required the police to have provided for stopwatch-videotape-replay recordings of their performance, a refinement suitable for games and athletic contests, but hardly appropriate for the deadly serious pursuit and prosecution of the marauders of our society.

The conclusion follows that the arraignment officers completed their assignment before the six hour period from the arrest expired, and, therefore, the order which suppressed the statements of appellees must be reversed, and the case remanded for trial.

Order reversed. Case remanded for trial. Jurisdiction relinquished.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

I concur with the result reached by my colleagues but I believe that this case is controlled by our Supreme Court’s recent holding in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987). Duncan modifies the Davenport rule so that statements of an accused not obtained through illegality within six hours of an arrest, will not be suppressed solely because arraignment was not held within six hours of such arrest. Therefore, the statements of the Appellees herein which were made within five hours of their respective arrests (as determined by the trial court) should not be suppressed. Unlike the majority, I see no reason to challenge the trial court’s findings of fact since these findings are duly supported by the record.

      . The Pennsylvania Supreme Court recently modified Davenport when it decreed that statements of an accused made within six hours of an arrest will not be suppressed solely because the arraignment was not held within six hours of the time of the arrest. Commonwealth v. Duncan, 514 Pa. 395, 407, 525 A.2d 1177, 1183 (1987). The statements we here review were both made within five hours of the moment when appellees claim the arrest occurred, and thus, the order of suppression must be reversed by reason of the Duncan decision as well.
      The Davenport rule does permit an exception, specifically, the "exigent circumstances” exception which becomes applicable if there was an acceptable reason for the failure of the stationhouse officers to arraign the accused within six hours. Logic, common sense and a focus that balances the interests of the victim, as well as of the accused, provide a sound basis for the argument that the “exigent circumstances” exception is every bit as applicable to a study of the moment when the countdown commences — as here, when the precise time of the arrest is the crucial issue — as it is to an examination of the moment when the countdown ceases. This proposition, however, need be neither addressed nor resolved in view of the decision we here reach.