text:
    543 A.2d 148
    Theodore R. FLECK and Mary E. Fleck, Appellants, v. Frank E. TIMMONS and Susan E. Timmons, and McCleary Oil Co. Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed June 9, 1988.

      Eugene E. Dice, Harrisburg, for appellants.
    Sally Jo Winder, Shippensburg, for Timmons, appellees. Jeffrey B. Rettig, Harrisburg, for McCleary, appellee.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

This appeal concerns a civil action commenced by Theodore R. and Mary E. Fleck, appellants, against Frank E. and Susan E. Timmons, appellees, and McCleary Oil Company Inc. The record reveals that appellees own and operate a convenience store and gas station located on Cumberland Highway, Orrstown, Pennsylvania. Appellants reside in a house which is located directly across the highway from appellees’ convenience store and gas station. The sole source of water supply for appellant’s home is a well. This well is located in the front of appellants’ home, between their home and Cumberland Highway.

In their amended complaint, appellants alleged that on or about November 30, 1984 they noticed a “strong odor of gasoline in their drinking water.” R.R. at 40a. They further alleged that their “well water is contaminated to the point where it is not usable for drinking, washing, cooking, or any purpose other than flushing toilets. Additionally, the concentration of gasoline in the well water is such as to pose a threat of fire or explosion in the Fleck household.” Id. at 42a. It is undisputed that in September of 1983, appellees purchased property adjacent to their convenience store and gas station from the Guy T. Kilmore Estate. This property included an abandoned gasoline service station and three underground storage tanks (hereinafter “Kilgore tanks”). On November 27, 1984, at the request of the appellees, McCleary Oil pumped approximately 645 gallons of kerosene into the Kilgore tanks. It was established that prior to pumping of any kerosene into the Kilgore tanks, appellees, specifically Mr. Timmons, removed with the aid of a hand pump approximately 100 gallons of gasoline which had been left in the tanks by the previous owner.

Appellants’ lawsuit against both the appellees and McCleary Oil is based on the contention that when McCleary Oil pumped kerosene into the Kilgore tanks on November 27, 1984, this pumping resulted in the pollution of their well water. Appellants averred the following:

16. One or all of the three underground storage tanks [the Kilgore tanks] in which Mr. Timmons maintained gasoline and into which Mr. Timmons caused kerosene to be pumped as described herein, were leaking, and this leakage caused contamination of groundwater and the permanent destruction of the well water serving Plaintiffs house.
16. (a) The underground storage tanks [the Kilgore tanks] were excavated and removed on June 24, 1985. They were found to be badly corroded and had holes through the metal of which they were constructed. At the time they were excavated, the tanks contained petroleum products containing benzene, toluene, exylene, trimethyl benzene, methyl nephthalene, and other similar chemicals. These chemicals are hazardous and constitute hazardous waste.

R.R. at 40a and 41a. As to the appellees and as to McCleary Oil, appellants sought to support their claim for relief upon a variety of legal theories. They contended that appellees were negligent in filling the Kilgore tanks “given their age, condition, and period of time during which they had not been used.” R.R. at 42a. Appellants also alleged, inter alia, that the conduct of the appellees in filling the Kilgore tanks had violated state regulations governing the maintenance of underground storage tanks, as well as various provisions of the Pennsylvania Clean Streams Law and Pennsylvania’s Solid Waste Management Act. Appellants also set forth theories of liability sounding in absolute liability and nuisance. Appellants asserted causes of action against McCleary Oil which were substantially the same.

The jury trial commenced in the instant case on August 26, 1986. After the close of appellants’ case, the trial court granted McCleary Oil’s motion for a directed verdict. Following the completion of the trial, the jury returned a verdict in favor of the appellees, finding that the appellees had been negligent but that their negligent conduct was not a substantial factor in bringing about the pollution of appellants’ well water supply. Timely post-trial motions were filed and denied by the trial court on September 25, 1987. Appellants seek our review of the following issues:

1. Whether the trial court erred in refusing to charge the jury on the applicability of a rebuttable presumption of liability created by Section 611 of Pennsylvania’s Solid Waste Management Act?
2. Whether the trial court erred in entering a directed verdict in favor of McCleary Oil?
3. Whether the trial court erred when it limited the scope of the testimony of expert witness Mr. Jeffrey Molnar?

We find no error on the part of the trial court in the present case and, accordingly, we affirm.

Pennsylvania’s Solid Waste Management Act, “SWMA”, regulates the storage, transportation, treatment, and disposal of municipal waste, residual waste, and hazardous waste. Our concern in this case centers upon hazardous waste. Hazardous waste is defined in the SWMA as follows:

any garbage, refuse, sludge from an industrial or other waste water treatment plant, sludge from a water supply treatment plant, or air pollution control facility and other discarded material including solid, liquid, semi-solid or contained gaseous material resulting from municipal, commercial, industrial, institutional, mining, or agricultural operations, and from community activities ...

35 P.S. § 6018.103. The SWMA, and its accompanying detailed regulations, provide for a comprehensive regulation of the handling of hazardous wastes within the Commonwealth of Pennsylvania. This act requires that persons or municipalities who generate, transport, treat or dispose of hazardous wastes comply with the licensing and permit regulations of the Department of Environmental Resources of the Commonwealth of Pennsylvania (hereinafter "DER”). See 35 P.S. § 6018.403 and 6018.501; 25 Pa.Code 75.262-282. Provisions of the SWMA also require, inter alia, the maintenance of adequate records concerning the handling of hazardous wastes, the use of appropriate containers and labels, the development of contingency plans for effective action to abate hazards, and the immediate notification of the DER in the event of any spill or accidental discharge. See 35 P.S. § 6018.403.

Appellants in the instant case urge us to find that the trial court erred when it refused to charge the jury as to the following section of the SWMA:

Presumption of law for civil and administrative proceedings
It shall be presumed as a rebuttable presumption of law that a person or municipality which stores, treats, or disposes of hazardous waste shall be liable, without proof of fault, negligence, or causation, for all damages, contamination or pollution within 2,500 feet of the perimeter of the area where hazardous waste activities have been carried out. Such presumption may be overcome by clear and convincing evidence that the person or municipality so charged did not contribute to the damage, contamination, or pollution.

35 P.S. § 6018.611. This section of the SWMA (hereinafter “Section 611”) is part of Article VI of the SWMA. Article VI is entitled: “Enforcement and Remedies.” When Article VI is read in its entirety, it is clear that our legislature intended to provide the DER with “wide-ranging enforcement tools” so that the SWMA would, in reality, have the means to accomplish the invaluable ends for which it was enacted: the prevention of harm to public health and the preservation of our environment. Katcher, Hazardous Waste Management under Act 97, 86 Dick.L.Rev. 665, 684 (1982). Article VI begins by declaring that any violation of the SWMA or any “rule or regulation ... order ... term or condition of any permit ...” of the DER constitutes a public nuisance. 35 P.S. § 6018.601. The Article then sets forth the variety of ways in which the DER is authorized to enforce the provisions of the SWMA:

For example, civil and criminal penalties may be imposed ... in amounts up to $500,000 per day for certain criminal hazardous waste related violations. In addition, violators may be liable for the cost of abating pollution resulting from their violations. DER may issue administrative enforcement orders, including oral orders to persons engaged in hazardous waste treatment or disposal activities that jeopardize the public health, safety, or welfare, as well as seek injunctive relief and the forfeiture of contraband. To aid in enforcement efforts, DER is given the right to enter any solid waste facility to conduct inspections and official investigations, and to take samples. DER may also procure a search warrant, upon probable cause, to enter any other property for the purposes of official investigations.

Katcher, supra at 684. Throughout Article VI of the SWMA, the legislature consistently states that it is the “department”, the DER, which shall be responsible for pursuing the specific remedies and enforcement techniques set forth in Article VI. For example, in 35 P.S. § 6018.-602(a), the act specifically provides that “the department may issue orders to such persons and municipalities as it deems necessary to aid in the enforcement of the provisions of this act.” It is also “the department” which is authorized by the language of Article VI to pursue injunctive relief for violations of the SWMA and to assess civil penalties for such violations. 35 P.S. §§ 6018.604 and 605. It is the “department” which is to recover the costs of abating a public nuisance. 35 P.S. § 6018.613. Thus, the SWMA, by its express terms, restricts the right to seek relief for the violation of its provisions to the DER. See City of Philadelphia v. Stepan Chemical Company, 544 F.Supp. 1135 (E.D.Pa.1982) (The Pennsylvania Clean Streams Act restricts the right to collect civil penalties to the Department of Environmental Resources under 35 P.S. § 691.605 which provides that “... the department, after hearing, may assess a civil penalty upon a person or municipality for such violation.”) Even though the SWMA is a remedial statute, to be construed liberally, this principle does not justify an interpretation of the statute which is inconsistent with its express language. Id. at 1149.

Although the legislature provided the DER, and not private citizens of the Commonwealth, with the authority to obtain relief for violations of the provisions of the SWMA, the legislature did consider private citizens and accordingly, provided private citizens with limited access to actions brought to enforce the SWMA. In actions brought initially by the DER to obtain injunctive relief or to seek to impose a civil penalty for a violation of the SWMA, a private citizen with an interest which may be adversely affected was granted the right by our legislature to intervene. 35 P.S. § 6018.615. Thus, although private citizens were not afforded with the right to use the specific provisions of the SWMA to institute a cause of action to obtain injunctive relief or monetary damages in their own right, the legislature provided citizens with an opportunity to become actively involved in DER actions under the SWMA where their own interests are in some way implicated. Private citizens, of course, may also pursue common law actions, as did the appellants in the case at bar, when they believe they have been harmed by the handling of hazardous wastes in their environment. Indeed, the legislature, when enacting the SWMA, specifically expressed its intent that the provisions of the SWMA do not “in any way abridge or alter” causes of actions existing in equity or under the common law:

t is hereby declared to be the purposes of this act to provide additional and cumulative remedies to control the collection, storage, transportation, processing, treatment, and disposal of solid waste within the Commonwealth, and nothing contained in this act shall in any way abridge or alter rights of action or remedies now or hereafter existing is equity, or under the common law or statutory law, criminal or civil ...

35 P.S. § 6018.607.

When ascertaining the legislative intent underlying Section 611, we are bound to consider Article VI of the SWMA as a whole and avoid according Section 611 an interpretation which does not take into account related sections of Article VI. 1 Pa.C.S.A. § 1921(a); Causer v. Mandarino, 338 Pa.Super. 564, 488 A.2d 36 (1985). It is clear to us that the legislature did not intend to allow the legal presumption created in Section 611 of the SWMA to be used in any legal proceeding other than a proceeding instituted by the DER, wherein the DER charges a municipality or a person with a violation of the SWMA or its regulations. To hold otherwise would be to allow private citizens to recover for hazardous waste activities with no proof of fault, negligence, or causation. Such a result is contrary to the specific language of 35 P.S. § 6018.607 and flys in the face of Article VI of the SWMA which, as we have recognized, reposes “... in the legislative branch (DER, county health departments and municipalities) broad powers of and responsibilities for enforcement and has given the prosecutors a vast array of legal mechanisms with which to battle the tide of pollution and environmental catastrophe that has accompanied man’s ‘progress’ toward a highly mechanized, industrial and disposable society.” Commonwealth v. Parker White Metal Company, 512 Pa. 74, 97, 515 A.2d 1358, 1370 (1986). The legal presumption created by Section 611 of the SWMA is one such “battle mechanism” meant for the exclusive use of the executive branch in its continuing, and no doubt arduous, task of regulating the solid waste practices in this state. This legal presumption was never meant to be used in legal actions instituted by private citizens. We therefore find no error in the trial court’s refusal in the instant case to charge the jury concerning Section 611 of the SWMA.

We also find that the trial court did not err in entering a directed verdict in favor of McCleary Oil. It is well settled that when ruling on a motion for a directed verdict, the trial court must accept as true all facts and inferences tending to support the allegations of the party against whom the motion has been made. “In reviewing the grant or denial of a motion for a directed verdict, we must determine if ‘an abuse of discretion or error of law which controlled the outcome of the case occurred’____ If so, only then will we reverse.” Bucchianeri v. Equitable Gas Company, 341 Pa.Super. 319, 328, 491 A.2d 835, 840 (1985) (citations omitted). The trial court in the case at bar granted McCleary Oil’s motion for a directed verdict because “taking all of plaintiffs’ evidence as true, they failed to establish the requisite elements of duty and causation.” Op. of Trial Court at 7. We need not address the issue of duty because the evidence presented at trial by the appellants, even when viewed in the light most favorable to appellants, reveals no evidentiary support for a finding of legal causation.

It is undisputed that McCleary Oil pumped kerosene into the Kilgore tanks on November 27, 1984. Appellants’ expert witness Mr. Jeffrey Molnar, a hydrogeologist employed by the DER, was of the opinion that based upon the geological characteristics of the area surrounding appellants’ property, at least one of appellees’ seven underground storage tanks had leaked and caused weathered gasoline to pollute appellants’ well water. R.R. at 186a. Mr. Molnar acknowledged, however, that he could not determine which of the seven storage tanks owned and operated by appellees had resulted in the pollution of the well water. Id. Mr. Molnar further acknowledged that he did not know when this alleged leak had occurred, and that it could have occurred as early as 1981. R.R. at 187a. Mr. Molnar also testified concerning the contents of various soil and water tests which the DER had performed. Three chemical tests of appellants’ well water performed by the DER verified that the well water was polluted with weathered gasoline. R.R. at 183a. When the Kilgore tanks were removed, a sample of residue lining the bottom of the tanks was analyzed by the DER and found to be “similar to a kerosene.” R.R. at 184a. The only testimony linking weathered gasoline to the Kilgore tanks was Mr. Molnar’s testimony that when the Kilgore tanks were excavated, he was present and detected the odor of weathered gasoline. R.R. at 142a. Mr. Molnar testified to smelling the same odor of weathered gasoline in the well water supplying appellants’ home. R.R. at 167a. The second expert witness called by the appellants, chemist Mr. Richard Underwood, testified that the chemicals existing in the appellants’ well water and in the residue remaining in the Kilgore tanks upon excavation are considered hazardous substances. R.R. at 213a and 215a.

Based upon the evidence presented, the trial court correctly entered a directed verdict in favor of McCleary Oil. As the trial court correctly stated:

... what the Flecks experienced is weathered gasoline and the smell of gasoline ... How the gasoline got there, the jury is going to have to decide, but McClearys only delivered kerosene to the Kilgore tanks ... the Court after reviewing can find no evidence of causation from the testimony presented ... that McCleary Oil Company Inc., (sic) pumping of kerosene into the Kilgore tanks caused the gasoline to appear in the Fleck’s well

R.R. at 225a-227a. Simply stated, appellants in the instant case failed to produce any evidence, through the use of expert witnesses, to establish that the act of pumping kerosene in the Kilgore tanks could have caused the appellants’ well water to become polluted with weathered gasoline. Without any evidence to support a finding of legal causation, McCleary Oil could not be found liable for the damages sustained by appellants. Hence, the directed verdict in this case will not be disturbed on appeal.

Finally, we must determine whether the trial court erred in limiting the scope of the testimony of Mr. Molnar. “The question of whether a particular witness qualifies as an expert is a matter for the trial judge ... and his decision in this matter will be reversed only for a clear abuse of discretion.” Marlowe v. Lehigh Township, 64 Pa.Commn. 587, 441 A.2d 497, 499 (1982). Mr. Molnar’s educational background included “a bachelor’s degree- in geology ... and considerable post graduate training.” R.R. at 110a. When asked whether he had studied chemistry in college, Mr. Molnar stated that he had taken “basic chemistry” and that his geology courses involved some particular types of chemistry. R.R. at 116a. In his position as a hydrogeologist with the DER, Mr. Molnar testified that his duties consist of “protection of the ground water in a 14 county area of Pennsylvania surrounding Harrisburg. This includes everything from review of permits for disposal of sewage and industrial waste to the investigation of ground water contamination...” R.R. at 110a. Mr. Molnar testified that in his job with the DER, he was responsible for determining “the geological structure and how it influences the movement of ground water” and that the DER chemical laboratory “determines what particular substances are in the water. It’s then up to me to interpret them in terms of my knowledge of the chemistry of various products.” R.R. at 11 la-112a. The trial court permitted Mr. Molnar to testify concerning his opinion that, based on the geological characteristics of the land surrounding appellants’ home, the source of their well water pollution was at least one of appellees’ seven underground storage tanks. Mr. Molnar was also permitted to testify concerning the DER’s chemical test results. However, the trial court did not find that Mr. Molnar was qualified to testify as an expert concerning the chemical decomposition of kerosene or of gasoline which occurs when these chemical substances move through the ground. The trial court, in its Opinion, states the following:

Though Molnar had some background in chemistry incidental to his training as a hydrogeologist, plaintiff offered him to testify as to the specific chemical components of kerosene as it decomposes while travelling through the ground. The court found that this was a highly technical area of chemistry beyond the knowledge of Molnar’s training. As such, the court rules that Molnar could only testify, generally, that the components of kerosene change as they filter through the ground. A review of Molnar’s deposition testimony reveals the limited nature of his knowledge of chemistry. In his deposition, Molnar posited that the kerosene in defendants’ tanks may have pushed gasoline into the ground, but then he admitted that he was unsure whether kerosene was heavier or lighter than gasoline.

Op. of Trial Court at 4.

We find that the trial court did not abuse its discretion in limiting the scope of the testimony of Mr. Molnar. Appellants presented no foundation for showing that Mr. Molnar had the ability to testify as an expert concerning the specific issue of chemical changes which may occur in gasoline or kerosene due to contact with soil and ground water. While this subject certainly called for expert testimony, Mr. Molnar did not present any evidence of his ability to give it. As this Court aptly recognized in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 43, 485 A.2d 408, 418 (1984) "... it may appear that the scope of the witness’s experience and education may embrace the subject in a general way, but the subject may be so specialized that even so, the witness will not be qualified to testify.” In Dambacher, this Court held that the trial court had abused its discretion in permitting a proffered expert witness to express the opinion that the mixing of radial and nonradial tires had been the cause of an auto accident where the witness, while experienced in the subject of auto tires in a general way, did not have any specialized knowledge or experience concerning the subject of mixing radial and nonradial tires. See also First Methodist Episcopal Church v. Bangor Gas Company, 388 Pa. 115, 130 A.2d 517 (1957) (Oil burner repairman, who had no knowledge of gas or gas burning devices, and chemistry teacher, who had engaged in fuel analysis but was not a combustion engineer, were not qualified to give their opinion on the cause of an explosion in oil furnace.); Erschen v. Pennsylvania Independent Oil Company, 259 Pa.Super. 474, 393 A.2d 924 (1978) (In action for negligence in the installation of gasoline tanks, trial court properly ruled that trooper, who had no formal instruction or on-the-job training in the origin of gas explosions, could not testify as an expert notwithstanding the trooper’s qualifications as a fire marshal.) In the instant case, the trial court correctly determined that Mr. Molnar did not have the necessary knowledge or experience to provide the jury with testimony concerning complex chemical information. As a result, any attempt on the part of Mr. Molnar to so testify could not have aided the jury in their “search for truth.” Dambacher, supra, 336 Pa.Super. at 36, 485 A.2d at 415.

For all of the foregoing reasons, our decision is to affirm the trial court.

Order affirmed.

      . McCleary Oil Company, Inc., an appellee in the present appeal, will be referred to throughout this Opinion as "McCleary Oil.”

      . It appears from the record that in November of 1984, McCleary Oil pumped kerosene into only two of the three Kilgore storage tanks. Brief for Appellant at 19. For the purposes of this appeal, it is not necessary to distinguish between the three Kilgore tanks. It is also apparent that the November 1984 kerosene delivery was actually the second time appellees had ordered kerosene for the Kilgore tanks from McCleary Oil; McCleary Oil delivered 375 gallons of kerosene in June or July of 1984. This earlier delivery of kerosene was also pumped into the Kilgore tanks by McCleary Oil. Brief of Appellant at 19.

      . We note that appellant’s amended complaint contained the following paragraph:
      One or more of the underground storage tanks containing petroleum products and serving the Frank Timmon’s store, gas station facility, have leaked and caused contamination of groundwater. This leakage caused groundwater contamination and contamination of drinking water to Frank Timmon’s store, which occurred since at least 1979. No steps were taken by Timmons to correct or investigate this leaking tank situation.
      R.R. at 43a. In addition to the three Kilgore tanks, appellees have four underground storage tanks on the property where the convenience store and gas station are located. These tanks are used to store various fuel products for retail sale. Appellees denied that any of these particular storage tanks have ever leaked. R.R. at 64a. Our thorough review of the evidence produced at trial and the trial court’s charge to the jury reveals that appellants based their claim for relief in the instant case solely upon appellees’ use of the three Kilgore storage tanks.

      . It was established at trial that prior to excavating the three Kilgore tanks, the kerosene in the tanks was removed by McCleary Oil. N.T. August 26, 1986 at 304.

      . 35 P.S. § 691.1 et seq.

      . Act of 1980, July 7, P.L. 380, No. 97, §§ 101-1003; 35 P.S. § 6018.101 et seq.

      . We note that the provisions of Article VI of the SWMA apply not only to hazardous wastes, but also to municipal and residual wastes as these categories of wastes are defined in the SWMA. See 35 P.S. § 6018.103.

      . We recognize that the SWMA also provides that county and municipal officials may institute actions to enjoin violations of the SWMA and to recover the costs of abatement. 35 P.S. §§ 6018.604 and 613. In this Opinion, we are considering the role of private citizens in the enforcement of the provisions of the SWMA, as compared to that of the DER and county and municipal officials. In the interest of clarity, we will not specifically discuss county and municipal enforcement of the SWMA because the remedies accorded to counties and municipalities under the SWMA are duplicative of the remedies which the DER may pursue.

      . In addition to the DER, it appears that municipal and county officials may use the Section 611 presumption in proceedings they institute under the SWMA. See n. 8, infra.

      . In addition to concluding that the Section 611 presumption may not be used in a private lawsuit, the trial court also held that gasoline or kerosene stored for retail sale does not qualify as a "hazardous waste" as defined in § 6018.103 of the SWMA. Op. of Trial Court at 2. We express no opinion on the merits of this determination by the trial court because we have held, on alternative grounds, that Section 611 of the SWMA is not applicable in the present case.

      . The term "weathered gasoline” refers to gasoline which has come into contact with soil or water and as a result has undergone some change in its chemical composition.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    543 A.2d 548
    COMMONWEALTH of Pennsylvania v. Samuel JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 21, 1987.
    Filed May 26, 1988.
    Reargument Denied July 11, 1988.

      Paul S. Herzberg, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated appeal by appellant, Samuel Jones, from judgments of sentence for robbing taxicabs. After two trials by jury, appellant filed post-verdict motions which were denied by the court below. He was sentenced to consecutive terms of five (5) to ten (10) years incarceration on three of the robbery offenses in accordance with Section 9713 of the Mandatory Minimum Sentencing Act, 42 Pa.C. S.A. § 9713, (Act), which concerns robberies committed on or near public transportation facilities and a one (1) to two (2) year consecutive sentence for conspiracy. Appellant’s motion to modify sentence was denied by the court. This appeal followed.

Appellant seeks this court’s review of the following issues: whether the lower court erred by (1) demonstrating to the jury, during its charge, an example of conduct from which it could infer intent of the actor to place the victim in fear of immediate serious bodily injury; (2) denying appellant’s voir dire questions; (3) allowing. alleged hearsay testimony of a Commonwealth witness; (4) allowing the prosecutor to make prejudicial statements; and (5) finding Section 9713 of the Act not to be in violation of the Equal Protection Clause of the Fourteenth Amendment.

Preliminarily, we note that appellant has waived the first two issues. Appellant complains that the judge prejudiced the jury during his charge by using his fingers to simulate a gun and pointing them at his head as an example of conduct from which they could infer intent to place the victim in fear of immediate serious bodily injury. At the conclusion of the court’s charge to the jury defense counsel stated that he thought the jury would focus on the court’s example. He therefore requested that the court also emphasize the fact that the victim was not injured, but did not specifically object to the courts’ simulation. Counsel’s request was not a substitute for a specific objection. Cf. Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313, n. 4 (1978). Likewise, appellant's allegation that the court rejected his proposed voir dire questions is also waived. Perusal of the record failed to uncover a statement of the proposed questions; they are only contained in the argument portion of appellant’s brief. This court has long held that it cannot consider anything which is not part of the record in the case. See McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982). Information located only in a party’s brief is not a part of the record. See Pa.R.A.P. 1921.

Appellant’s third issue raises the question whether the court erred in allowing the hearsay testimony of the victim, Mr. Deans, a taxi-cab driver, to be admitted at trial. Specifically, appellant, who robbed Mr. Deans, contends that Mr. Deans could not identify him at trial as the person who robbed him so that any statements by Deans regarding what appellant said to him were hearsay statements because they were ostensibly made by a third person not present in court. Appellant’s argument is invalid because the testimony to which appellant objects consisted of Mr. Deans’ version of what the passenger (robber) related to him regarding the passenger’s destination. When a witness testifies that someone said something to him and the purpose is not to show that what was said was true but that the statement was made, the testimony is not hearsay but instead a “verbal act”. Cf. Commonwealth v. Lawson, 315 Pa.Super. 84, 461 A.2d 807 (1983). See also McCormick on Evidence § 246 at 548 (2d ed. 1972). In `this case, the statement of the robber was proof of the fact that Mr. Deans was given instructions by the occupant concerning destination and the trial court did not err in allowing the proffered testimony of Mr. Deans to be admitted into evidence.

Appellant next asserts that the prosecutor committed prosecutorial misconduct during closing argument to the jury by making prejudicial remarks. The statement to which appellant objects was the prosecutor’s reference to the location of the crime being within running distance of appellant’s house. Appellant has waived this issue for failure to object at the time the statement was made. See Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967). Appellant also challenges the prosecutor’s cross-examination of him with questions regarding the distance from the scene of the crime to appellant’s home. Defense counsel timely objected to those questions, thereby preserving their alleged prejudicial effect for our review. We find that the opinion of the court below thoroughly addresses and correctly disposes of appellant’s assertion by finding it to have no merit.

Appellant’s last issue is a challenge to the constitutionality of that section 9713 of the Mandatory Minimum Sentencing Act which imposes a minimum sentence for offenses committed on or near public transportation. Act of March 8, 1982, P.L. 169, No. 54, § 3, 42 Pa.C.S.A. § 9713. Appellant maintains as the basis for his claim that the Act is violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution in that it singles out those who commit crimes on or near public transportation for a mandatory minimum sentence and this distinction is not founded on a “compelling” state interest.

Lawfully-enacted legislation is presumed to be constitutional. An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. The burden rests upon the party seeking to upset legislative action on constitutional grounds. All doubt is to be resolved in favor of sustaining the legislation. See Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). In consonance with this standard, we disagree with appellant and sustain the constitutionality of Section 9713 of the Mandatory Minimum Sentencing Act on Equal Protection grounds.

When addressing an equal protection challenge, we must initially ascertain the appropriate degree of scrutiny to which the challenged act should be subjected.

Equal protection analysis recognizes three types of governmental classification, each of which calls for a different standard of scrutiny. The appropriate standard of review is determined by examining the nature of the classification and the rights thereby affected ... where the classification relates to who may exercise a fundamental right or is based on a suspect trait such as race or national origin, strict scrutiny is required. When strict scrutiny is employed, a classification will be invalid unless it is found to be necessary to the achievement of a compelling state interest.
The second type of case involves a classification which, although not suspect is either sensitive or important but not fundamental. Such a classification must serve an important governmental interest and be substantially related to the achievement of that objective.
The third type of situation involves classifications which are neither suspect nor sensitive or rights which are neither fundamental nor important. Such classifications will be valid as long as they are rationally related to a legitimate governmental interest.

Commonwealth v. Bell, 512 Pa. 334, 344-345, 516 A.2d 1172, 1178 (1986) (citations omitted). In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) the court rejected the argument that an equal protection challenge to the Act implicated a fundamental liberty interest that required the highest level of scrutiny and determined that the proper mode of analysis to be applied by courts when sections of the Act are challenged is to determine whether the classification created by that section of the Act bears a rational relationship to a legitimate legislative objective.

Appellant submits that the Fourteenth Amendment guarantees that all persons similarly situated shall be treated alike and where there are distinctions drawn between classifications of people they must be justified by a governmental interest. To support this proposition appellant urges us to apply the “compelling” state interest standard of review to Section 9713 of the Act in order to find that a classification of offenders who commit crimes on or near public transportation is unreasonable. This we decline to do. As stated infra, the only types of classifications which must be sustained by the showing of a compelling state interest are suspect classifications such as race or national origin or those which involve fundamental liberties. Commonwealth v. Wright, supra. Instantly, the classification of offenders who commit crimes on or near public transportation is neither suspect nor sensitive. The classification in this case does not rest on the basis of race, national origin, gender or economic lines.

It is axiomatic that the legislature has broad discretion to exercise police power to preserve public safety and that it is the province of the legislature to determine the punishment imposable for criminal conduct. See Commonwealth v. Bell, supra.

The Fourteenth Amendment forbids arbitrary discrimination by States against persons or classes but it permits the Commonwealth, as part of its police power, to create and define a criminal offense through classifications of persons so long as these classifications are reasonable and the legislation bears equally on all in the same class ... Thus a classification will be held valid if there is any conceivable basis upon which it may relate to a legitimate government interest.

Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984) (citations omitted).

Section 9713 of the Act was designed to promote and protect users and providers of public transportation services. It also was enacted to protect operators of all types of public transportation from criminal acts and to encourage people to become operators of public vehicles. Furthermore, the legislature intended to protect municipal interests in public transportation systems for such systems are often funded by tax revenue or licensed by the state or municipalities. Since public transportation is utilized by the public at large, these people must feel safe and protected while riding or waiting for public vehicles. In order to further these goals, the legislature imposed a more severe punishment upon those who committed crimes on or near public transportation as it is within its province to do. At the time the Act was passed by our Senate it was that legislative body’s general intent to eradicate violent crime by eliminating inconsistency and leniency in sentencing. See Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill.Rev. 21 (1983-84); Commonwealth v. Bell, supra. Therefore, the state’s singling out these offenders who engage in crime on or near public transportation for an enhanced sentence is rationally related to a legitimate state interest.

Appellant next submits that the classification of offenders created by Section 9713 of the Act discriminates between urban and rural areas. This argument is frivolous for appellant fails to explain or support it. The fact that rural areas may provide limited access to public transportation does not invalidate a statute that has multiple purposes and whose imposition of a mandatory minimum sentence is rationally related to accomplishing those purposes.

Lastly, appellant maintains that each robbery he committed was of an unoccupied cab so that the crime was committed against the driver and not passengers. Thus, appellant argues, his crimes were akin to robbing the driver of a privately owned vehicle rather than a conveyance used as public transportation. Appellant’s argument assumes that Section 9713 only enhances sentences for crimes against passengers on public vehicles and disregards other purposes of the statute. The protection of drivers of public vehicles is also germane to the statute. A driver alone in a public vehicle is especially vulnerable to criminal acts for he or she is known to be carrying money. This is not necessarily the case with the driver of a private car. The operator of a public vehicle, providing a public service, deserves the protection afforded by Section 9713 of the Act. Hence the state has a rational reason to protect passengers, operators and physical property utilized in providing public transportation. Id.

By singling out a person who commits crime on or near public transportation for mandatory sentencing, our legislature has merely addressed itself to a problem requiring remedial action. The deterrence of crime involving the public and public property is a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal. Accordingly, we hold that under the Equal Protection Clause of the Fourteenth Amendment, Section 9713 of the Mandatory Minimum Sentencing Act is not arbitrary but rather rests upon a substantial need to protect those citizens who avail themselves of public transportation and the operators who provide the service.

For the aforestated reasons appellant’s judgment of sentence is affirmed.

      . After his case was assigned to this panel, an order issued requiring appellant to file a supplemental brief augmenting his challenge to the constitutionality of 42 Pa.C.S.A. § 9713. As part of his supplemental brief appellant also included the argument that his sentence was excessive and imposed cruel and unusual punishment. Appellant raised that issue in his motion to modify sentence but failed to include it either in the statement of the questions involved or the argument portion of his original brief. Thus, the issue is waived. See Pa.R.A.P. Rule 2116(a), 42 Pa.C.S.A. (no point will be considered which is not set forth in the statement of questions involved or suggested thereby). This court's order regarding appellant’s supplemental brief was specific as to the issue to be argued. Therefore, we decline to address an argument which appellant waived and is now trying to resurrect through its inclusion in his supplemental brief.

      . 42 Pa.C.S.A. § 9713 provides:
      (a) Mandatory sentence—Any person who is convicted in any court of this Commonwealth of ... robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), ... shall be sentenced to a minimum sentence of at least five years of total confinement if the crime occurs in or near public transportation as this title or other statute to the contrary.
      (b) Site of commission of crime—For the purposes of subsection (a), a crime shall be deemed to have occurred in or near public transportation if it is committed in whole or in part in a vehicle, station, terminal, waiting area or other facility used by a person, firm, corporation, municipality, municipal authority in rendering passenger transportation services to the public or a segment of the public or it if is committed in whole or in part on steps, passageways or other areas leading to or from or in the immediate vicinity of such a public transportation vehicle, station, terminal, waiting area or other facility.

      . U.S.Const. art. XIV, § 1.

      . Appellant has not alleged other constitutional grounds in support of his contention that 42 Pa.C.S.A. § 9713 is unconstitutional. Parenthetically, we note that were he to do so, those claims would fail as our court has laid to rest an attack on the constitutionality of section 9713 of the Act on due process grounds. See Commonwealth v. Sargent, 349 Pa.Super. 289, 503 A.2d 3 (1986).


author: POPOVICH, Judge: MONTEMURO, Judge, WIEAND, Judge,

text:
    543 A.2d 553
    COMMONWEALTH of Pennsylvania, Appellant, v. Ronald F. SLOVIKOSKY.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1987.
    Filed May 26, 1988.
    Reargument Denied July 13, 1988.

      Theresa Homady, Assistant District Attorney, Ebensburg, for appellant.

      Before WIEAND, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Cambria County granting a motion to suppress and “sustaining the appeal from summary conviction” by the Commonwealth. We quash.

Before addressing the merits of the Commonwealth’s appeal, we must decide whether the order appealed is final. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, (1985), the Supreme Court, in the course of discussing the sine qua non for an appeal from an order granting a motion to suppress, reinforced what was intended by Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). In doing so, it wrote:

The Superior Court when directed to hear an appeal is required to do so, under the circumstances we direct.
As the final appellate court we determine both the propriety of hearing an appeal and direct the method it shall be heard. That we directed [in Bosurgi ], in the clearest fashion, that the Superior Court is required to hear a Commonwealth appeal from a suppression hearing, ... cannot be doubted.
[In Bosurgi, t]he right of appeal was granted the Commonwealth to satisfy a question of elemental fairness; providing the Commonwealth with what might be their only appeal. To lament that the [Superior] court was not told under what circumstances the suppression order substantially handicaps or terminates a prosecution is simply fatuous and evasive____ They were simply told [by the Supreme Court] to hear and determine the validity of a suppression order when the Commonwealth pleads a substantial handicap or termination. That certification is not contestable. It, in and of itself, precipitates and authorizes the appeal. The formal purpose of the Superior Court is to maintain and effectuate the decisional law of this Court as faithfully as possible. In some instances, this being one, we direct the grounds for appeal.
Therefore, the Commonwealth’s appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay.
Given the prerequisite of the certification [having been met instantly,] we hold that the Commonwealth has an absolute right of appeal to the Superior Court to test the validity of a pre-trial suppression order.

506 Pa. at 543-46 & n. 5, 486 A.2d at 385, 386 & n. 5 (Emphasis added).

As stated quite clearly in Dugger, the Superior Court, as an intermediate appellate court, acts at the “direction” of the Pennsylvania Supreme Court when it comes to hearing an appeal and under what circumstances such a review is to be conducted.

Further, as is applicable to the case at bar, the Dugger Court pointed out that the Commonwealth’s good faith certification that a suppression order terminates or substantially handicaps its prosecution is a condition precedent which “precipitates and authorizes the appeal.” In other words, as we interpret Dugger, because certification is the predicate for an appeal, i.e., authorizes it, the absence of such a certification by the Commonwealth “as to the impact of the suppression order upon its case” subjects the appeal to being quashed. See Dissenting Opinion by Justice Hutchinson in Commonwealth v. Duncan, 514 Pa. 395, 410, 525 A.2d 1177, 1184 (1987); cf. Commonwealth v. Conway, 368 Pa.Super. 488, 490, 534 A.2d 541, 542 (1987) (“... our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution.” (Citation omitted; emphasis added)); Commonwealth v. Hoffman, 367 Pa.Super. 79, 532 A.2d 463 (1987) (Statement that the suppression order substantially handicapped the prosecution properly invoked the jurisdiction of Superior Court to entertain the appeal from an otherwise interlocutory order).

As an intermediate appellate court acting under the auspices of the Pennsylvania Supreme Court, in regard to maintaining and effectuating the decisional law of this jurisdiction, we find that the Commonwealth’s failure to satisfy the “prerequisite” for invocation of appellate jurisdiction to review a suppression order enunciated in Bosurgi and clarified by Dugger requires that we quash the Commonwealth’s appeal. Stated otherwise, the Commonwealth has failed to comply with the dictates of Dugger by not “certifying” (either at the hearing granting the motion to suppress or in its brief filed with this Court) that “the suppression order terminate[d] or substantially handicapped] its prosecution.” Accordingly, we have no “jurisdiction” to hear the Commonwealth’s appeal and must quash to implement the Supreme Court’s objective in requiring such a certification, i.e., a means to prevent frivolous appeals or appeals intended solely for delay. Dugger, supra; Commonwealth v. Hunsberger, 358 Pa.Super. 207, 209-11, 516 A.2d 1257, 1258 (1986).

As for that portion of the order sustaining the appeal from summary conviction, we note, initially, that it is interlocutory. The reason is, in this jurisdiction, a Common Pleas Court must find a defendant either “guilty” or “not guilty” vis-a-vis “dismissing” or “sustaining” his/her appeal from a summary conviction so as to render it final for appeal purposes. See Commonwealth v. Morgenthaler, 320 Pa.Super. 120, 466 A.2d 1091 (1983).

Moreover, even if, arguendo, we were to read the lower court’s “sustaining” of the defendant’s appeal as equivalent to a “not guilty” verdict, the prosecution would be prohibited from appealing the same. See Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987).

Therefore, for the reasons herein stated, the Commonwealth’s appeal of that portion of the court’s order granting the defendant’s motion to suppress is quashed for non-compliance with Dugger. As for that portion of the same order “sustaining” the defendant’s appeal of his summary conviction and the Commonwealth perfecting an appeal therefrom, we likewise quash. See Morgenthaler, supra.

Appeal quashed. Jurisdiction is relinquished.

MONTEMURO, J., files a concurring opinion.

WIEAND, J., files a dissenting opinion.

MONTEMURO, Judge,

concurring:

I concur in Judge Popovich’s conclusion that this appeal should be quashed because of the Commonwealth’s failure to certify that the suppression order “terminates or substantially handicaps the litigation.” See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (Commonwealth appeal of suppression order is proper as an appeal from a final order only when Commonwealth complies with the certification procedure). However, I do not believe that it is necessary to analyze the portion of the trial court’s order purporting to sustain the defendant’s summary appeal. Because it is clear that only a suppression hearing was being conducted and the truth-determining process had not yet begun, I would simply find that the language purporting to sustain the appeal is superfluous and treat the order as granting appellee’s suppression motion. Accordingly, I would not treat this order as comprised of two distinct parts, but rather exclusively as a suppression order, and would quash the Commonwealth’s appeal for failing to comply with the dictates of Dugger, supra.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment, this appeal is jurisdictionally proper and should be considered on its merits. Moreover, because the trial court erred in sustaining Slovikosky’s appeal from a summary conviction, I would reverse and remand for further proceedings.

Ronald F. Slovikosky, while driving a Mack truck, was stopped by Trooper R.K. McDowell of the Pennsylvania State Police, and his truck was weighed. It was found to be overweight by 3500 lbs. After Slovikosky had been found guilty of violating 75 Pa.C.S. § 4941(a) before a district justice, he appealed to the court of common pleas. There, he filed a pre-trial motion to suppress evidence of the weight of his vehicle on grounds that he had been subjected to an illegal search and seizure. After hearing, the trial court entered an order as follows:

AND NOW, on this 23rd day of March, 1987, after consideration of the briefs and arguments of counsel, it is hereby ORDERED that the Motion to Suppress filed on behalf of the defendant is GRANTED and the Appeal from Summary Conviction is SUSTAINED.

This order, in my judgment, has effectively terminated any further prosecution. It has not only suppressed the evidence of Slovikosky's alleged violation, but it has also put the Commonwealth out of court by sustaining the appeal and dismissing the prosecution. Because this is a final order, I would hold that the Commonwealth’s appeal is jurisdictionally proper and review the merits of the trial court’s order which sustained the defendant’s appeal and dismissed the prosecution.

This order was entered before jeopardy had attached. It dismissed the prosecution prior to trial for legal reasons not directly concerned with guilt or innocence. Therefore, it was not the same as an acquittal or a finding of “not guilty.” An appeal by the Commonwealth from such an order is not barred by principles of double jeopardy. See: Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980); Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986); Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983).

The trial court suppressed evidence that appellee’s truck was overweight because it determined that the police had not been “engaged in a systematic program of checking vehicles” and, therefore, had subjected Slovikosky to an unreasonable search and seizure.

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held that if police are given unrestrained discretion as to whom to stop, the stopping of a vehicle for a license check is a violation of the driver’s Fourth Amendment right to be free of unreasonable searches and seizures and, therefore, is constitutionally impermissible. The Court implied, however, that methods for spot checks which did not involve unconstrained exercise of discretion would be permissible. The Supreme Court of Pennsylvania reached a similar conclusion and sounded a similar caveat in Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). Its decision, it said, “should not be read as applicable to systematic stops or roadblocks for detection of Motor Vehicle Code violations.” Id., 453 Pa. at 110 n. 3, 307 A.2d at 877 n. 3.

Article I, Section 8 of the Pennsylvania Constitution also contains language which is intended to protect citizens against unreasonable searches and seizures. Reasonableness under this constitutional guarantee is to be determined in cases of this nature by a “balancing of interests approach.” Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987). See also: Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987).

In conducting a balancing of interests approach in the instant case, we must remember that we are dealing with heavy trucks which are subject to greater governmental regulation than automobiles because of their burden and heightened danger to the highway system. We must, then, balance the rights of the operators of commercial trucks against the expressed governmental interest in maintaining a safe system of highways. Commonwealth v. Berry, 305 Pa.Super. 8, 14, 451 A.2d 4, 7 (1982).

Consistently with these decisions, the legislature in Pennsylvania has authorized police officers, when “engaged in a systematic program of checking vehicles or drivers,” to stop vehicles to obtain information necessary to enforce provisions of the Vehicle Code. 75 Pa.C.S. § 6308(b). A systematic program for weighing trucks, I would hold, is minimally intrusive and does not constitute an unreasonable search and seizure.

It remains to be determined whether the state police in this case were engaged in a systematic program for checking weights of trucks or whether the program permitted an unrestrained exercise of discretion by the police regarding those trucks to be weighed. In the instant case, the pattern was to stop two trucks and cause them to be weighed. In the meantime, other trucks were permitted to proceed. When the first two trucks had been weighed and had continued on their ways, the police stopped two additional trucks. While these vehicles were being weighed, traffic again flowed uninterrupted.

The trial court found that this system permitted the police to exercise an unrestrained discretion and, therefore, that the weighing of selected trucks was an unreasonable search and seizure. In doing so, the trial court relied upon this Court’s decision in Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), which held constitutionally impermissible all police roadblocks which stopped vehicles travelling on a public highway for the purpose of determining whether the drivers were under the influence of alcohol. This holding, however, was reversed by the Supreme Court, which held that “a drunk-driver roadblock conducted substantially in compliance with [enumerated] guidelines would reduce the intrusiveness to a degree which, when balanced against the public interest in apprehending such drivers, would not violate Article I, Section 8 of the Pennsylvania Constitution.” Commonwealth v. Tarbert, supra 517 Pa. at 293, 535 A.2d at 1043.

In Wysocki v. PennDOT, 91 Pa.Commw. 42, 496 A.2d 897 (1985), affirmed on different grounds, 517 Pa. 175, 535 A.2d 77 (1987), the police had stopped all cars going in both directions on a highway to check for intoxication until all troopers had become occupied; and, thereafter, those cars not stopped were allowed to pass undisturbed. The Commonwealth Court held that such a system was regular, methodical, and left nothing to the discretion of the police. Therefore, the Court concluded, the program was constitutionally permissible.

“It cannot be doubted that the police powers of this Commonwealth are particularly broad in matters pertaining to highway safety.” Commonwealth v. Tarbert, supra 517 Pa. at 297, 535 A.2d at 1045. When the interest of the Commonwealth in maintaining safe highways is balanced against the interests of commercial truckers in the unimpeded use of those highways, I would hold, as did the Commonwealth Court, that a system which weighs all approaching trucks until the officers are occupied, while unstopped trucks are allowed to proceed, is minimally intrusive and not a violation of constitutional safeguards against unreasonable searches and seizures.

I would reverse and remand for further proceedings.

       Our authority to adopt such standards is grounded on this Court’s general supervisory and administrative authority, 42 Pa.C.S. § 1706, and specifically our authority to adopt procedural rules. 42 Pa.C.S. § 1722. Thus, the Commonwealth’s right to appellate review of a suppression order is based on the definition of such an order as "a final order by general rule." 42 Pa.C.S. § 5105(a).

      . Cf. Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987), allocatur denied 517 Pa. 592, 535 A.2d 81 (1988).

      . Because the record discloses that no de novo trial had commenced, so as to trigger the truth-determining process—only a suppression hearing was being conducted, the court below acted prematurely in sustaining the defendant’s appeal from summary conviction. Compare Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987).
      At the completion of the suppression hearing both parties were given the opportunity to submit briefs. Thereafter, the court entered the order which is the subject of the instant appeal.
      We observe that the proper course that should have been followed by the court below, in regard to sustaining the defendant’s appeal from summary conviction, was to have entered its suppression order and allowed the prosecution to take an appeal in conformance with Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), and not have "sustained” the defendant’s appeal from summary conviction until after the prosecution had been afforded the chance to present its case against the defendant, if one could have been made, in the context of a trial, a fact which did not occur at bar. See discussion supra.
      We note, for edification purposes, if such had occurred, the Commonwealth would be precluded from perfecting an appeal from a “not guilty” verdict. See Jung, supra.


author:
BROSKY, Judge: DEL SOLE, Judge,
      JOHNSON, Judge, CAVANAUGH, Judge,

text:
    543 A.2d 558
    Nelle Vastine McCABE, Appellee, v. J. Grant McCABE, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed May 31, 1988.

      Bancroft D. Haviland, Philadelphia, for appellant.
    Hope C. Lefeber, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   BROSKY, Judge:

This is a consolidated appeal. Appellant has appealed from final orders providing for alimony, alimony pendente lite, distribution of property and the awarding of counsel fees and expenses.

Appellant has challenged the trial court’s valuation of marital property and distribution of marital property, the awarding of alimony, alimony pendente lite and counsel fees and expenses, and has also challenged the procedure utilized by the Montgomery County Court of Common Pleas. Because we find that the trial court erred in the valuation of marital property, we will affirm the orders in part, vacate in part, and remand the case to the trial court for further proceedings.

The parties to this action were married in 1948 and separated in July of 1980. Appellant has pursued a career in law, and for many years has been associated with the firm of Rawle & Henderson, located in Philadelphia. Appellant is currently a partner in that firm. Appellee has never been employed for compensation, but took an active role in raising and caring for the parties’ five children. The record indicates that appellant’s gross income from his law practice approximates $150,000 per year and has approximated this figure for many years. At the time of the filing of briefs appellant was 62 years of age while appellee was age 60.

An action in divorce was filed by appellee on January 26, 1981. After several hearings and the passing of much time, the orders in question were issued by the Court of Common Pleas of Montgomery County. Marital property was valued at more than $590,000 by the trial court. The equitable distribution order called for distribution as follows:

To appellee:

Personalty $ 8,231.00

Stock (including net increase) 60,207.55

Pension Plan (appellant’s) 60,638.63

Home 140,000.00

Loan 4,500.00

Boat 12,000.00

Cash 15,500.00

$301,077.18

To appellant:

Partnership interest $286,276.00

Stamp Collection 5.430.00

Life Insurance 1.951.00

$293,657.00

Appellant was also ordered tó pay appellee $2,500.00 a month alimony for an indefinite period of time and the sum of $33,047.43 for counsel fees and expenses.

Appellant argues that the court erred in valuing appellant’s partnership interest in excess of $286,000.00 and, therefore, abused its discretion in distributing the marital property as it did. After careful consideration of this contention, we are inclined to agree.

There can be no doubt that the passage of the Divorce Code in 1980 has given rise to a number of interesting and difficult issues in property distribution. Business interests are properly included in the marital estate, and there is no reason to exclude a professional practice from the classification of marital property as well. In the present case, the partnership interest appellant has in the firm of Rawle & Henderson was acquired during the marriage, and is, therefore, marital property and properly a subject of equitable distribution. Appellant does not dispute this, but contends that the figure assigned as a representative value is not founded in economic reality.

Judicial experience leads us to state that the difficulty in valuing marital property becomes more acute when the subject of the valuation becomes less tangible. Undoubtedly, the partnership interest in this case is much more difficult to value than the parties’ stock. Although both could be classified as business interests, the stocks are considerably easier to valúate, as they are readily transferable for consideration on the appropriate market. Furthermore, and perhaps more importantly, they do not require active participation by the owner. Similarly, a small business owner, while perhaps actively involved in the business’s operation, is capable of selling his business and realizing its value. However, the case of valuating the interest of a professional corporation or a sole proprietorship, is full of difficulties and the subject of much debate.

Any business enterprise operates on a principle of utilizing or employing assets to derive income from its operation. When an individual owns stock in a corporation, he owns a proportionate share of the assets, and the right to receive the income derived from the utilization of the assets. This principle applies as well in a small business or in a professional practice. HoweVer, in the professional practice, the professional plays a far more important role in the derivation of profits or income and can, in fact, be considered the major “asset” of that concern. Moreover, in professional practices, the value of the expertise or knowledge often far outweighs the value of the more tangible capital assets employed in the practice. In this respect, the profits drawn from the professional practice can be traced, in a sense, to the employment of both tangible and non-tangible assets. However, the non-tangible asset, the expertise and training, is part and parcel of one of the parties to the action: hence, making distribution of such an asset impossible and awarding commensurate compensation to the other spouse problematic at trial. The court cannot sever part of the surgeon’s training and expertise and award it to a spouse, although such training and experience undoubtedly has “value” to one who possesses it and even though one spouse may have contributed greatly to its acquisition. Nor have our courts held that such intangible assets are even marital “property” subject to equitable distribution.

In Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), our Supreme Court affirmed a panel decision of this Court holding that increased earning capacity is not a divisible asset subject to equitable distribution. The court indicated that it is not proper to award one spouse a share of the other spouse’s future earnings, even if the increased capacity for earning was acquired during the marriage.

Perhaps in awareness of this Court’s decision in Hodge, the trial court stressed that evaluation of appellant’s partnership interest was in no way based upon appellant’s expectation of future income. Rather appellee’s expert evaluated the partnership as “a going concern.” His evaluation included, but was not necessarily limited to, such items as equipment, cash, accounts receivable and work-in-progress (services rendered but not yet billed). Appellant’s partnership interest was derived by dividing the value of the partnership by his percentage of “ownership” in the firm. This resulted in a figure of approximately $286,000. If appellant enjoyed all the benefits of true ownership, i.e. the ability to sell, liquidate or otherwise realize the value assigned to his interest, we might be inclined to affirm the equitable distribution order in question. However, it has been clearly established in this case that appellant cannot realize the value assigned for his partnership interest by appellees’ expert. Consequently, we cannot affirm that order.

Like many business enterprises, the firm of Rawle & Henderson has an agreement which defines the rights of each partner. Under the Rawle & Henderson partnership agreement, a partner whose partnership status ends is compensated upon leaving pursuant to terms in the agreement. However, the agreement limits compensation to the partner’s share of the capital account and, if 90 days notice is given, the partner’s share of undistributed profits to date. The partnership agreement does not allow a partner to receive his “share” of the “accounts receivable” or “work-in-progress” accounts, but rather, only his share of the capital account. Nor does a partner possess the right to sell his “partnership interest” to another individual or the right to retire from active participation in the practice while continuing to receive a share of profits. Conveniently, the trial court has treated or characterized all payments to appellant from Rawle & Henderson as income. No distinction has been drawn between appellant's monthly draw and the year end distribution of profits. Consequently, under the terms of the partnership agreement, appellant can look forward to leaving the partnership with only his capital account over and above what has been treated as his normal compensation for his association with, and labor for, Rawle & Henderson. At the time of separation appellant’s capital account was at $18,900.

Appellee and the trial court have referred to the partnership agreement as defining the value of the partner’s interest in the partnership. However, more correctly stated, the partnership agreement contains terms from which the value of a partner’s interest can be ascertained. The agreement does not purport to set a value on appellant’s interest in the firm. Moreover, these terms establish substantive rights of the partner, and if a true value of the interest is to be ascertained, the rights and limitations of the partner, as set forth in the agreement, cannot be disregarded. What appears clear from the terms of the agreement is an intention that the life of Rawle & Henderson, as a firm, be placed in preference to the interest of any particular partner of the firm. If a partner’s status as a partner ends, either voluntarily or involuntarily, he does not receive his commensurate share of all the partnership’s assets or a share of its total value. He receives only his capital account, and, if he gives the requisite notice, his share of the undistributed profits, a sum which he would have received anyway had he stayed on with the firm. A partner in the firm of Rawle & Henderson is far different from an individual who owns his own business and has an opportunity to sell it. If appellant owned a machine shop, for instance, with a current market value of $286,000, the equitable distribution order would approach a state of equity, for appellant could then sell his business, if he so chose, and walk away from the divorce proceedings in comparable stead with appellee. Or, if he so chose, he could defer the realization of the business’s value until a later sale date, perhaps retirement. But, the important point is that the value assigned for equitable distribution purposes would be realizable or ascertainable to the spouse to which it is assigned, in this case appellant. In the present case, if appellant chose to terminate his partnership status and retire at the termination of the equitable distribution proceedings, appellant, who was approximately age 62 at the time, would have come away from those proceedings with approximately $26,000 worth of cash and personalty compared to the $301,000 worth of property awarded appellee. This hardly appears equitable to this court. Appellant’s status as a partner is more similar to a high paid executive in a corporation who holds, under a stock option plan, $18,900 worth of the corporation’s stock. He may have some managerial imput and he may have a limited ownership interest in a portion of the business’ assets, but under the partnership agreement his ownership interest does not reach to the extent depicted by the trial court. It is possible, and indeed likely, that partners in other law firms possess greater ownership rights than does appellant. Such individuals may be entitled, upon leaving their firm, to a commensurate portion of the accounts receivable and unbilled time, or, in other words, a commensurate share of the firm valued as a “going concern.” However, appellant does not possess such rights and equity will not be served by pretending, for equitable distribution purposes, that he does.

It is readily apparent that both appellant and appellee have benefitted economically from appellant’s association with Rawle & Henderson over the years. Appellee should not now be heard to complain that her ex-husband will not receive a share of the total of Rawle & Henderson’s assets. Nor will she be successful in getting this Court to overlook such substantial restrictions in the partnership agreement so that she can benefit to the detriment of appellant. In short, the equitable distribution order awarded appellee virtually all the property acquired during the course of the marriage, including the parties’ home, boat, stock, cash and all of appellant’s pension to date of separation. The order awarded appellant his stamp collection and a life insurance policy, together worth approximately $7,000, and the $18,-900 in appellant’s capital account, while apparently recognizing that appellant would continue to earn a substantial amount of money for at least a few years to come. This is precisely what the Supreme Court has prohibited in Hodge v. Hodge, supra.

Appellant also challenges the award of alimony, alimony pendente lite and counsel fees to appellee. Alimony pendente lite was awarded at a rate of $2,000 per month. Alimony was awarded at a rate of $2,500 per month and counsel fees were awarded at an amount of $33,047.43. Upon consideration of the record and arguments presented in behalf of both parties, we affirm the award of alimony, alimony pendente lite and counsel fees.

The thrust of appellant’s arguments regarding the awarding of alimony pendente lite and counsel fees is that the award was inappropriate in light of the fact that appellee has several hundred thousand dollars worth of non-marital property and has been realizing an annual income from her holdings of approximately $30,000 per year during the proceedings. Appellant correctly indicates that the purpose of allowing alimony pendente lite and counsel fees is “to promote the fair and impartial administration of justice by enabling the dependent spouse to maintain or defend the principal action in divorce without being placed at a financial disadvantage.” Sutliff v. Sutliff, 326 Pa.Super. 496, 500, 474 A.2d 599, 600 (1984). However, we disagree with appellant’s assertion that appellee’s investment income and personal holdings prevents her from being placed at a financial disadvantage. Much of appellee’s personal property is non-income producing. Further, the trial court has found that appellee’s reasonable expenses, based upon her accustomed lifestyle, approximate $65,000 a year. Additionally, due to the extensive litigation in this case, appellee’s legal fees have approached $100,000. Obviously, these financial demands have strained her investment income of approximately $30,000 a year. When appellee’s expenses are considered and her gross income of $30,000 is compared to appellant’s gross income of over $100,000, it would appear that appellee is indeed in a disadvantageous position. Consequently, we cannot say the trial court abused its discretion in awarding alimony pendente lite or counsel fees.

Appellant also argues that the trial court did not determine appellee’s reasonable needs for alimony purposes, but rather, accepted her history of extravagant expenditures as equivalent to her reasonable needs. As a general rule, awards of alimony will not be disturbed on appeal absent an abuse of discretion on the part of the trial court. Teribery v. Teribery, 357 Pa.Super. 384, 516 A.2d 33 (1986). The trial court found appellee’s expenses to approximate $65,000 to $70,000 per year and appellant’s expenses to approximate $57,000 per year. The trial court ordered alimony of $2,500 a month. This amount added to her investment income brings appellee’s yearly gross income to approximately $60,000. Although appellee’s expenses of $65,000 per year may seem excessive to many individuals, the figure is not out of line with the lifestyle which the parties had attained, and to which they had become accustomed during their marriage. Furthermore, when tax considerations are taken into account, the award will not cost appellant, out-of-pocket, nearly the sum of $30,000. In light of the disparate incomes of the parties, we cannot conclude that the trial court abused its discretion in ordering alimony.

The order of equitable distribution is vacated and the case is remanded for a redetermination of equitable distribution in accordance with this Opinion. The orders awarding alimony, alimony pendente lite and counsel fees are affirmed in this regard.

CIRILLO, President Judge, and POPOVICH, J., joined.

DEL SOLE, J., filed a concurring and dissenting opinion joined by KELLY, J.

JOHNSON, J., filed a concurring and dissenting opinion joined by CAVANAUGH, MONTEMURO and TAMILIA, JJ.

CAVANAUGH, J., filed a concurring and dissenting opinion joined by MONTEMURO, TAMILIA and JOHNSON, JJ.

DEL SOLE, Judge,

concurring and dissenting:

I join the majority in the determination that the trial court overvalued for equitable distribution purposes the appellant’s partnership interest. I would point out that since the appellant could in no way unilaterally secure any amount from the partnership upon his removal therefrom beyond that set forth in the partnership agreement his interest should be limited to that amount. However, I part company with my colleagues in the majority when they affirm the decision of the trial court with respect to alimony and counsel fees. The learned trial judge in this case entered a comprehensive opinion and order of court which interrelated the equitable distribution, the alimony and the counsel fee questions. To upset the equitable distribution finding and not permit the trial court to once again look at the alimony and counsel fee question in my view is incorrect. See Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986).

KELLY, J., joins.

JOHNSON, Judge,

concurring and dissenting:

My review of the entire record in this case and the briefs of the respective parties leads me to conclude that the orders from which these consolidated appeals have been taken should be affirmed in all respects.

I join the majority in finding that the award relating to alimony, alimony pendente lite, counsel fees and costs is entirely sound and well within the discretion vested in the trial judge. I depart from my colleagues on the issue of the valuation of the partnership interest in the law firm.

We are bound by an abuse of discretion standard of review in determining the propriety of property distribution. We will not usurp the trial court’s duty as factfinder nor will we adopt guidelines or presumptions in addition to those set forth by the legislature. King v. King, 332 Pa.Super. 526, 529-30, 481 A.2d 913, 914-15 (1984).

The trial court found that the partnership agreement, upon which appellant relies, did not reflect appellant’s true interest in the firm of Rawle & Henderson. I agree with this conclusion. Appellant did not take exception to the trial court’s finding that the provisions of the agreement for determining the value of a partner’s interest had not significantly changed since 1963. Nor is there any dispute that the only valuations directly calculable from the terms of the agreement are the value of a partner’s interest (1) at death, (2) at withdrawal on 90-days’ notice, and (3) at withdrawal on less than 90-days’ notice.

The trial court correctly determined that none of these three situations were relevant to the matters before it, where appellant remains with the firm as an ongoing concern, enjoying the benefits of a part owner far in excess of what he would enjoy if he were to retire.

I find nothing in the Divorce Code to authorize or even to permit this court to speculate about what a party might do in the future, in determining the value of a marital asset for purposes of equitable distribution. In this case, the court had the benefit of the testimony of a certified public accountant specializing in the evaluation of professional practices. He was found to be competent to testify as an expert regarding economic issues such as evaluation of a professional practice.

Appellant took no exception to the expert’s qualifications, but rather argues on appeal that the expert’s testimony should have been rejected as “superficial” and incomplete. My review of the record, and particularly the testimony of the wife’s expert, Stanton L. Meltzer, and that of appellant, J. Grant McCabe, III, persuades me that there is sufficient competent evidence in the record to support a finding of $286,276 as being a reasonable valuation of appellant’s interest in the partnership as of the date of separation.

The distinguished trial judge, the Honorable Paul W. Tressler, is to be commended for recognizing that the Rawle & Henderson partnership agreement did not take into consideration the factors necessary for an accurate valuation of the partner’s interest and consequently had to be disregarded. The wife’s valuation properly included partnership accounts receivable, accounts payable, work in progress, inventory and capital accounts. The expert made what the trial court found to be reasonable adjustments in those areas where appellant and his law firm had not provided sufficient data to permit a precise calculation as of the date of separation. I can find no fault with this procedure.

While it may be true, as my colleagues state, that the valuation of an intangible, partnership interest may be full of difficulties and the subject of much debate, we still must return to the narrow question of whether an abuse of discretion arises where inadequate testimony from one party is rejected and the trial court fashions an award from the remaining evidence as submitted by an expert.

The majority asserts that it has been clearly established in this case that appellant cannot realize the value assigned for his partnership interest by the wife’s expert. I must respectfully disagree. Appellant has neither retired nor withdrawn from the firm, on the record before us. I find nothing in the record to dispute the value as a going concern placed upon the partnership by the wife’s expert. A trial judge is not expected to look ten years down the road to guess about what a party’s interest might be in the future, based on varying assumptions.

The trial judge’s role is to take the evidence presented in the record and decide each case on the established facts contained therein. I believe our role, as a reviewing court, is to ascertain whether this obligation of the trial judge has been met. I find no fault with the extremely meticulous and exhaustive disposition of Judge Tressler. I therefore would affirm both orders.

CAVANAUGH, MONTEMURO and TAMILIA, JJ., join.

CAVANAUGH, Judge,

concurring and dissenting:

I join the concurring and dissenting opinion by Judge Johnson in all respects and would add the following.

In my opinion, it is clear that the court below did not abuse its discretion in valuing Mr. McCabe’s interest in the partnership of Rawle and Henderson at $286,276.00. The majority opinion considers only the partnership agreement in placing a valuation for equitable distribution of marital property and concludes that the appellant’s interest in his law firm is approximately $19,000.00. In my opinion, this valuation is totally unrealistic and does not represent a correct valuation of his interest. A partnership agreement is only one factor to consider and even then, as in this case, the partnership agreement is unlikely to deal with valuation of a partner’s interest vis a vis equitable distribution upon dissolution of the marital relationship. Generally, a partnership agreement will deal with valuation upon the voluntary withdrawal, death of a partner or dissolution of the firm. Stern v. Stern, 66 N.J. 340, 331 A.2d 257, 261 (1975) lists other factors which must be considered:

Generally speaking the monetary worth of this type of professional partnership will consist of the total value of the partners’ capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible personalty over and above book value, together with good will, should there in fact be any; the total so arrived at to be diminished by the amount of accounts payable as well as any other liabilities not reflected on the partnership books.

See Pennsylvania’s Equitable Distribution, Progress or Confusion?, 60 Temple Law Quarterly 293 (1987) While the Divorce Code provides for the equitable distribution of marital property, it gives no guidance on determining the manner of valuing such property. The method of valuation depends on the nature of the property interest involved, and the court must look at the realities of the situation and avoid an unrealistic valuation. The Divorce Code, 23 Pa.S. § 102 states that it is the policy of the Commonwealth to “[e]ffectuate economic justice between parties who are divorced ... and insure a fair and just determination and settlement of their property rights.”

The court below correctly points out at slip opinion page 2 that the partnership agreement is not determinative in placing a value on Mr. McCabe’s partnership interest:

The [partnership] agreement provides for only three situations; a) withdrawal with 90 days notice, b) withdrawal without 90 days notice and c) death. None of these situations are relevant to the instant action. Our concern is with the equitable distribution of marital property and for the purposes of such distribution the marital assets must be viewed in their present form. The defendant is remaining with the firm as an ongoing concern. As such, he will enjoy the benefits of a part owner far in excess of what he would enjoy if he retired, died or withdrew from the partnership.

I find no abuse of discretion by the court below and accordingly would affirm the orders in their entirety.

MONTEMURO, TAMILIA and JOHNSON, JJ., join.

      . Indeed, in Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545, 552 (1986), in comparing a sole proprietorship to a partnership we stated: A sole proprietorship can be distinguished from a partnership ... to which an ascertainable value can be ascribed for the purpose of buying into or withdrawing from the relationship; but it is the association, or some share of it, that is valued and not the individual partner upon which the value is placed.
      That share is a measurable and marketable commodity and is generally defined by contract. (Emphasis in original, citation omitted).
      However, under the terms of the Rawle & Henderson agreement, the partnership interest or “share”, although perhaps measurable, is not truly that marketable.

      . Indeed, many of the cases cited by appellee in support of her position do not consider situations, such as here, where the partner in the firm is limited to his capital account upon ending his association with the firm. In re Marriage of Morris, (Mo.Ct.App.), 588 S.W.2d 39 (1979); Grayer v. Grayer, 147 N.J.Super. 513, 371 A.2d 753 (1977), and Stem v. Stem, 66 N.J. 340, 331 A.2d 257 (1975), all involved law partnerships where the partner spouse was entitled to more than his capital account upon disassociation with the firm. This is not a trivial point. By limiting the value received upon leaving the firm to the capital account, Rawle & Henderson has eliminated most of the benefits usually attendant to an ownership interest. Perhaps the most beneficial interest associated with appellant’s partnership status is an opportunity to earn a substantial income. But such future earnings are not marital property. The key distinction between the cases cited above and the present case is that the partner in the above cited cases would be able to receive from the firm, upon leaving, a sum approximating the sum assigned to the partnership interest by the court. In this respect, although realization of the value of the partnership interest was deferred until the partner-spouse ended his association with the firm, it was indeed realized at some point in time. Here, appellant will receive only his capital account upon leaving Rawle & Henderson. Appellant will not receive from Rawle & Henderson a sum anywhere near the $286,000 which the trial court has assigned to his partnership interest when he leaves the firm.

      . Appellee appears to concede the fact that appellant will not, nor cannot, receive the sum of $286,000 upon leaving the firm. She states in her brief:
      It is precisely this point—i.e., the fact that the partnership agreement in this case did not provide for the partner to receive a sum which truly reflects his share of the assets, which mandates that the partnership agreement be disregarded.

      . We note that the trial court specifically indicated that the valuation of appellant’s partnership interest was in no way based upon expectations of future income. Opinion, 11/26/1985 at p. 16. However, later in its opinion, the trial court states:
      The defendant is remaining with the firm as an ongoing concern. As such, he will enjoy the benefits of a part owner far in excess of what he would enjoy if he retired, died or withdrew from the partnership. It is this ongoing economic enjoyment that the Court is trying to capture for equitable distribution purposes. Id. at 52.
      This statement sounds as if the valuation is, indeed, based upon expectation of future earnings. Furthermore, appellee’s expert stated, "I think the term going concern as applied to a business entity does represent expectation of future profits, ..." Additionally, if it is given that appellant can leave the firm with only the value of his capital account, we fail to see how the valuation can have any validity unless future earnings are taken into account.

      . We find appellant’s challenge to the procedure used by the Montgomery County Court of Common Pleas waived for failure to assert it below. P.R.A.P. 302.

      . In re Marriage of Morris, Missouri Ct. of Appeals, 588 S.W.2d 39, 44 (1979) the court stated:
      However, it would seem the factors mentioned in Annotation Divorce—Value of Interest in Partnership, 74 A.L.R.3d 621, 623 (1976) would be appropriate to consider in corporation stock valuation along with any other relevant factors. The annotation states assets such as capital investments, capital accounts, other fixed shares of partnership worth, accrued equity, accounts receivable, as adjusted, the value of work in progress, appreciation of tangible personalty, goodwill, cash on hand and partnership life insurance should be considered in determining the value of a partner’s interest.