text:
    528 A.2d 986
    Jessie L. FARAGO and Sandor L. Farago, Appellants, v. SACRED HEART GENERAL HOSPITAL
    Superior Court of Pennsylvania.
    Argued May 7, 1987.
    Filed July 23, 1987.

      Peter C. Gardner, Philadelphia, for appellants.
    Allan H. Starr, Philadelphia, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

This is an appeal from the Judgment entered by the trial court denying appellant’s post-verdict motions.

Appellants present four (4) issues for our review: (1) whether the trial court erred in ruling that the hospital was liable only for acts of gross negligence;. (2) whether the trial court erred in permitting appellee to present evidence regarding the criminal investigation of the alleged rapist and the lack of any prosecution; (3) whether the trial court erred in excluding from evidence the medical records of the alleged rapist together with the incident report prepared following the sexual assault upon Mrs. Farago; and (4) whether the trial court erred in instructing the jury on the issue of “willful negligence” and charging the jury that this, plus evidence of gross negligence, must be found to impose liability upon the hospital.

Upon consideration of the trial court opinion and briefs of counsel, we affirm the decision of the trial court.

The trial court, in its opinion, gave a thorough analysis and discussion of the issues on appeal. Thus, while we will rely upon that court’s resolution of appellants’ last three issues, we feel that, because of the scarcity of appellate cases on the matter, the issue of appellee’s immunity warrants further attention.

Mrs. Farago was voluntarily admitted to the Psychiatric Unit of Sacred Heart General Hospital on October 14, 1982. Mrs. Farago was suffering from chronic schizophrenia at the time of her admission. After evaluation, it was determined that Mrs. Farago did not require any special form of observation. Routine orders, including hourly checks, were prescribed.

Sometime later, Mrs. Farago entered the Quiet Room, the doors to which always remained unlocked. A male patient was also present in the Quiet Room at that time, and a sexual encounter took place between Mrs. Farago and the male patient. A member of appellee’s staff discovered the two patients in the bathroom of the Quiet Room. An incident report was filed; however, no mention was made of sexual intercourse having occurred, as Mrs. Farago never indicated that she had been assaulted by the male patient. It was three days later that Mrs. Farago claimed that she had had sexual intercourse with another patient, and it was not until November 1, 1982 (approximately 18 days after the alleged incident) that Mrs. Farago told her husband about the matter. Mrs. Farago claims that she was raped; however, this has never been established.

Appellants argue that the trial court, in deciding that appellee was entitled to immunity absent willful misconduct or gross negligence, misconstrued and misapplied the Mental Health Procedures Act, 50 P.S. § 7101, et seq. The statutory language in question is as follows:

§ 7114. Immunity from civil and criminal liability
(a) In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.
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Appellants contend that, because those specified in the statute as having immunity are individuals, appellee hospital was not meant to be included. With this contention, we disagree.

According to 1 Pa.C.S.A. § 1921(b), “when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” But, because this is a case of first impression before our Court, we feel that we must closely scrutinize the statute in question to arrive at its proper interpretation.

The Mental Health Procedures Act (MHPA) fails to provide us with a separate definitional section for that Act alone. Thus, we need not encounter the problem of specific statutory provisions controlling general ones. See 1 Pa.C.S.A. § 1933. In the absence of a contrary, controlling specific provision, we must construe the Act so that both provisions are allowed to operate. See Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975). Therefore, we may look to the general rules of statutory construction for guidance in this matter.

The statutory Construction Act of 1972 provides that the word “person” as used in any statute enacted on. or after September 1, 1937, shall include a corporation, partnership, and association, as well as a natural person, unless the context clearly indicates otherwise. 1 Pa.C.S.A. § 1991. The complaint filed in this case clearly states that “Defendant SACRED HEART GENERAL HOSPITAL is a Pennsylvania corporation ...” thereby placing appellee within the scope of 50 P.S. § 7114 which specifies “... or any other authorized person ...”.

Additionally, since the MHPA does not clearly set forth how its terms are to be interpreted, we turn to 1 Pa.C.S.A. § 1921(c) which states:

When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

See also, Lehigh Valley Co-op Farmers v. Com. Bureau of Employment Sec. Dept. of Labor and Industry, 498 Pa. 521, 447 A.2d 948 (1982) (in ascertaining legislative intent for purposes of construing a statute, the practical results of a particular interpretation may be considered); Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982) (General Assembly does not intend a result that is absurd or unreasonable); Busy Beaver Bldg. Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981) (language of a statute must be read in a sense which harmonizes with the subject matter and its general purpose and object).

As pointed out by the trial court, the Mental Health Procedures Act includes all treatment, full or part time, in a “facility”, which means “... any mental health establishment, hospital, clinic, institution ...” 50 P.S. § 7103. That treatment must be administered by individuals who are granted the immunity mentioned in 50 P.S. § 7114. It would be inconsistent, and indeed self-defeating, for the statute to allow immunity on the one hand, but to deny it on the other. The hospital does not act independently of its employees, and therefore, should not be subjected to a different standard of care and liability than those employees.

Additionally, as a collateral matter to this issue of immunity, appellants argue that the lack of restraint upon Mrs. Farago was not a treatment decision which could be accorded immunity. We disagree.

Section 7107 of the MHPA defines “individualized treatment plan” as:

... a plan of treatment formulated for a particular person in a program appropriate to his specific needs. To the extent possible, the plan shall be made with the cooperation, understanding and consent of the person in treatment and shall impose the least restrictive alternative consistent with affording the person adequate treatment for his condition.

Thus, it would appear that “treatment” is meant to encompass more than the initial decision to treat and examine, as appellants would have us believe. Accordingly, the decision to treat Mrs. Farago in an open ward with few restraints was a treatment decision falling within Section 7114 of the MHPA thereby entitling appellee to immunity from ordinary negligence.

Therefore, for the reasons given above, we find that the trial court was not in error in deciding that, absent willful misconduct or gross negligence, appellee was entitled to the immunity afforded by 50 P.S. § 7114.

Judgment affirmed.

      . This question of a hospital’s immunity was placed before our Court in Simmons v. St. Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984). However, the Court found the issue to have been raised prematurely, and therefore, left the question unresolved.


source: Caselaw Access Project

author: PER CURIAM: CIRILLO, President Judge,

license: Public Domain

text:
    528 A.2d 988
    Jack Conrad McGAHA and Shawn Welsh, Appellants, v. Louis MATTER, Whiton, Inc., d/b/a Home Plate Bar and Sara J. Kelly, t/d/b/a Kelly’s Beer Distributor, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed July 23, 1987.

      John T. Bender, Pittsburgh, for appellants.
    Mark I. Bernstein, Philadelphia, for Whiton, appellee.
    Robert W. Murdoch, Pittsburgh, for Kelly, appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO and TAMILIA, JJ.
   PER CURIAM:

Can a licensed beer distributor who unlawfully sells beer to a minor be held liable to third persons for injuries caused by the minor’s subsequent intoxication? The trial court held that no such cause of action existed and sustained preliminary objections in the nature of a demurrer to a complaint which had failed to include an averment that the minor had been visibly intoxicated at the time of the sale. We reverse and remand for further proceedings.

The averments of the complaint are that, on November 12,1983, Louis Matter, who was then eighteen years of age, purchased a case of beer from Kelly’s Beer Distributor (Kelly). Matter consumed this beer and became intoxicated. While intoxicated, he purchased additional six packs of beer from Whiton, Inc. After having consumed this beer, Matter negligently permitted the vehicle which he was driving to collide with a tree. As a result of the impact, Shawn Welsh and Jack McGaha, who had been riding as guest passengers in Matter’s vehicle, were seriously injured. Welsh and McGaha filed a civil action against Matter, Whiton, Inc., d/b/a Home Plate Bar, and Sara J. Kelly, t/d/b/a Kelly’s Beer Distributor, to recover damages for the injuries which they had sustained. Kelly filed preliminary objections in the nature of a demurrer to the complaint. The trial court, following argument, sustained Kelly’s preliminary objections and dismissed the causes of action which had been alleged against Kelly. McGaha and Welsh appealed.

Our standard of review was defined in Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503, 267 A.2d 867, 868 (1970), where the Supreme Court said:

In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. US. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959).

See: Jamison v. City of Philadelphia, 355 Pa.Super. 376, 379, 513 A.2d 479, 480 (1986); Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 16, 495 A.2d 963, 967 (1985).

The trial court’s decision in this case was based upon Section 4-497 of the Liquor Code of April 12, 1951, P.L. 90, art. IV, 47 P.S. § 4-497. This section provides as follows:

No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated.

Because the averments of the complaint suggested that the minor had not been intoxicated at the time when he had purchased the case of beer from Kelly, the trial court held that plaintiff-appellants had failed to state a cause of action sufficient to support a recovery. This was consistent with a prior decision of this Court in Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979).

More recently, however, the Supreme Court has recognized the validity of a cause of action by a third person against a licensee who has sold alcoholic beverages to a minor whose subsequent intoxication was the legal cause of injury to the third person. See: Matthews v. Konieczny, 515 Pa. -, 527 A.2d 508 (1987). The existence of such a cause of action, the Supreme Court held, is not limited by section 4-497 of the Liquor Code to instances in which the minor was “visibly intoxicated” at the time of the sale. Id.

In light of the Supreme Court’s decision in Matthews, there can be no doubt that the averments of the complaint filed by appellants in the instant case were sufficient to state valid causes of action against Kelly. Therefore, the order sustaining the preliminary objections and dismissing the complaint against Kelly must be reversed.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

CIRILLO, President Judge, files a concurring statement.

CIRILLO, President Judge,

concurring:

The recent Supreme Court decision in Matthews v. Konieczny, 515 Pa. -, 527 A.2d 508 (1987), compels me to agree with the majority that a liquor licensee who sells alcohol to a minor can now be held liable for injuries to a third person resulting from the minor’s intoxication. However, I continue to believe, as I stated in my opinion in Mancuso v. Bradshaw, 338 Pa.Super. 328, 487 A.2d 990 (1985), rev’d, 515 Pa. -, 527 A.2d 508 (1987), that the Legislature specifically intended to shield liquor licensees from such liability unless the person sold to was visibly intoxicated. See 47 P.S. § 4-497. I further believe that judicial recognition of a cause of action against persons in appellees’ position, in the face of what I perceive to be a contrary legislative mandate, is unwise. See Matthews (Zappala, J., dissenting). Nevertheless, our high court having spoken on this issue, we are bound to follow, and any different direction on this subject must come from the Legislature.


author: TAMILIA, Judge:

text:
    528 A.2d 990
    COMMONWEALTH of Pennsylvania v. Andrew R. CHAPMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1987.
    Filed July 22, 1987.
    Petition for Allowance of Appeal Denied Dec. 21, 1987.

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

After a jury trial, appellant was found guilty of robbery as a second degree felony, 18 Pa.C.S. § 3701(a)(l)(iv), criminal conspiracy, 18 Pa.C.S. § 903, and theft by unlawful taking, 18 Pa.C.S. § 3921, for his participation in a robbery committed by himself and a co-defendant, of a gasoline convenience store in Erie County, Pennsylvania on January 21, 1986. Appellant did not file post-verdict motions and was sentenced on June 27, 1986 to two and one-half (21k) years to five (5) years imprisonment for the robbery conviction plus restitution, costs and a $500 fine and a consecutive sentence of five (5) years probation, restitution and a $500 fine for the conspiracy conviction. The conviction for theft by unlawful taking merged as a lesser included offense of robbery for sentencing purposes. Appellant filed a timely motion for reconsideration of sentence, which was denied on June 30, 1986, whereupon, appellant filed a timely notice of appeal to our Court.

Appellant’s sole claim on appeal is that the sentencing court erred in applying the deadly weapon enhancement of the sentencing guidelines, 204 Pa.Code § 303.4(a), when sentencing. That section provides as follows:

(a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guidelines sentence range which would otherwise have been applicable.

As appellant notes, 18 Pa.C.S. § 2301 defines the term “deadly weapon” as follows:

‘Deadly weapon.’ Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. (Emphasis added.)

Appellant claims the straight razor used by co-defendant, Fred Williams, during the robbery never threatened the victim with “immediate” serious bodily injury (Appellant’s brief at 7) and, therefore, cannot be considered a deadly weapon for sentencing purposes. Additionally, appellant contends the jury’s verdict, finding appellant guilty of robbery as a second degree felony, 18 Pa.C.S. § 3701(a)(l)(iv), indicates that the appellant did not threaten the victim with “serious bodily injury,” as a first degree conviction would require, 18 Pa.C.S. § 3701(a)(1)(i), but only “bodily injury,” as a second degree conviction requires.

We find appellant’s contentions meritless for the following reasons. Appellant’s reading into the definition of “deadly weapon” and the deadly weapon enhancement section of the guidelines, a requirement that the threat of serious bodily injury be “immediate,” is erroneous and unsupported. The definition clearly states the device or instrumentality must be “calculated or likely to produce death or serious bodily injury;” there is no requirement in the definition that the victim actually be in immediate danger of serious bodily injury. As to appellant’s claim that by finding appellant guilty of robbery as a felony of the second degree no threat of serious bodily injury was present, but only a threat of bodily injury, we find this argument equally meritless. It is not the harm produced which is of consequence in applying the deadly weapon enhancement provision, but rather, is the potential for harm that is likely to occur from use of the weapon or instrumentality. Under the preponderance of the evidence standard, which we said in Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294 (1986) applied in a deadly weapon enhancement situation, we find the sentencing court properly applied the deadly weapon enhancement provision. There can be no doubt that a straightedge razor placed at the face of a person, as was done by codefendant in this case, can cause serious bodily injury (N.H. 6/27/86, p. 16).

Judgment of sentence affirmed.

ROWLEY, J., concurs in the result by TAMILIA, J.

      . § 3701 Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he;
      (i) inflicts serious bodily injury upon another;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or____ (Emphasis added).


author: POPOVICH, Judge:

text:
    528 A.2d 992
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas H. KEARNS.
    Superior Court of Pennsylvania.
    Submitted April 6, 1987.
    Filed July 21, 1987.

      Sean K. Code, Assistant District Attorney, Pittsburgh, for Com.
    Raymond J. Seals, Pittsburgh, for appellee.
    Before KELLY, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellee, Thomas Kearns, after he entered a plea of guilty to two (2) counts of driving under the influence of alcohol or a controlled substance (75 Pa.C.S.A. § 3731(a)(1) and (4)). The prosecution filed a motion to modify appellant’s sentence of not less than forty-eight (48) hours to six (6) months in prison with alternate housing approved at Arc House. This motion was denied, and this appeal followed. We must remand the matter for reasons herein stated.

The prosecution contends on appeal that appellee should have been sentenced to a mandatory minimum sentence of thirty (30) days in prison because appellee had been convicted previously of driving under the influence. We agree.

The pertinent sections of the statute, 75 Pa.C.S.A. § 3731, reads as follows:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as “The Controlled Substance, Drug, Device and Cosmetic Act,” to a degree which renders the person incapable of safe driving;
(3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
* * * * * *
(3) The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalties of this section.
* * * # * *
(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(1) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years,
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction. (Citation omitted) (Emphasis added).

Of course, we recognize that penal statutes are to be strictly construed in favor of the defendant. 1 Pa.C.S.A. § 1928(b)(1); Commonwealth v. Allsup, 481 Pa. 313, 392 A.2d 1309 (1978). Additionally, we are mindful of the maxim that statutes in pari materia shall be construed together, if possible, as one statute. 1 Pa.C.S.A. § 1932(b); Pennsylvania Social Service v. Pennsylvania, 481 Pa. 81, 392 A.2d 256 (1978). More specifically, statutes or parts of statutes are in pari materia when they relate to the same person or things or to the same class of persons or things. 1 Pa.C.S.A. § 1932(a). At this point, we must examine the statutory scheme of the penalties for driving under the influence.

A first offender under 75 Pa.C.S.A. § 3731 receives a minimum term of imprisonment of not less than forty-eight (48) hours. This penalty escalates for a second offender, who is defined as a person who “has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.” Id. Thus, it is clear that an enhanced penalty becomes relevant if two factors are present: (1) a defendant must have a prior conviction; and, (2) the prior conviction must have occurred within the previous seven years.

With respect to the first criteria, we note that Section 303.7 of the sentencing guidelines, 204 Pa.Code § 303.7, defines a prior conviction in the following manner:

a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the prior offense.

Implicit in the prior conviction concept is the notion that a defendant must have been found guilty and must have been sentenced.

Concomitantly, if a verdict of guilty has been rendered at the first trial but a sentence has not been imposed, a prior conviction has not yet evolved under the sentencing guidelines. Under our statutory sentencing scheme, a prior conviction is born into legal existence on the date of sentence.

The second factor which must be examined is whether the prior conviction has occurred “within the previous seven years.” 75 Pa.C.S.A. § 3731.

Although subsection (e)(l)(ii) of Section 3731 provides no modifying language regarding whether the seven year period must be measured against the date of the second offense, the date of the arrest, or some other date, another section of this same statute does shed some insight into the subject.

Section (d) provides:

(d) Certain dispositions prohibited. — The attorney for the Commonwealth shall not submit a charge brought under this section for Accelerated Rehabilitative Disposition if:
(1) the defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under this section within seven years of the date of the current offense;
(2) the defendant committed any other act in connection with the present offense which, in the judgment of the attorney for the Commonwealth, constitutes a violation of any of the specific offenses enumerated within section 1542 (relating to revocation of habitual offender’s license); or
(3) an accident occurred in connection with the events surrounding the current offense and any person, other than the defendant, was killed or seriously injured as a result of the accident. (Emphasis added).

Thus, under section (d), a defendant is not to-be admitted for Accelerated Rehabilitative Disposition (ARD) if a defendant has been found guilty of or accepted ARD “within seven years of the date of the current offense.” Id. (Emphasis added). This scheme is consistent with other recidivist statutes which have been enacted for the following general purpose:

Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.

Commonwealth v. Mourar, 349 Pa.Super. 583, 589, 504 A.2d 197, 203 (1986), appeal granted, 511 Pa. 619, 515 A.2d 898 (1986) (“conviction for the (enhancing) offense [must] predate commission of the principal offense to escape the imputation of a sophistic intent.”) (Citation omitted) (Emphasis added)

Generally speaking, Pennsylvania follows the majority rule which is that “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Id., 349 Pa.Superior Ct. at 588, 504 A.2d at 202.

Another statute, 42 Pa.C.S.A. § 9714, also guides us in our analysis since we may examine other recidivist statutes in pari materia. Section 9714(b) uses as a reference point the following formula for calculating enhanced penalties:

an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:
(1) The offender was previously convicted in this Commonwealth or any other state or the District of Columbia or in any Federal court of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii), arson as defined in 18 Pa.C.S. § 3301(a), kidnapping or aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, an equivalent crime under the laws of the Commonwealth in effect prior to the effective date of Title 18 (relating to crimes and offenses) or an equivalent crime in another jurisdiction. The previous conviction need not be for the same crime as the instant offense for this section to be applicable.
(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention shall not be considered in computing the relevant seven-year period. Convictions for other offenses arising from the same criminal episode as the instant offense shall not be considered previous convictions for the purpose of this section. A previous conviction shall include any conviction, whether or not litigation is pending concerning that conviction. (Emphasis added).

We can glean from these recidivist statutes a common thread which runs through the enhancement penalty sections; that is, a seven year period applies to prior convictions which are measured to the date of the current offense.

The appellee, Thomas Kearns, contends that we should measure the seven year period from the date of the first offense to the date of the second offense or from the date of the first conviction to the date of the second conviction. The trial court agreed with oné of these theories and said that the offense to offense formula was “the only fair way to compute between crimes.” Trial Court’s Opinion at 3. We, however, must disagree.

Rather, a computation which measures the prior conviction to the date of the current offense is also not subject to manipulation by the court calendar because the second variable is the date of the current offense.

In the instant case, it is undisputed that the conviction date for the first offense was August 6,1979, and that the second offense occurred on April 23,1986. Because the second offense occurred within seven years of the prior conviction, the minimum term of imprisonment required under the statute is not less than thirty (30) days in prison.

Hence, the judgment of sentence must be reversed and the matter remanded for resentencing under 75 Pa.C.S.A. § 3731 in a manner consistent with this opinion.

      . Under 75 Pa.C.S.A. § 3731(e)(4), the prosecution has a right to an appeal:
      (4) The Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

      . We note that this result is consistent with our rules of criminal procedure which provide that "[p]ost-verdict motions must be decided before sentencing, because the appeal lies from the final order of the trial court, which ordinarily includes sentence.” Pa.Crim.P. 1123 (Commentary).

      . Our conclusion that a defendant must be sentenced in order to trigger the recidivist section is also consistent with section (d) which applies to certain provisions of the ARD program. Our Supreme Court has said that "[a]dmission to an ARD program is not a matter of right, but a privilege." Commonwealth v. Lutz, 508 Pa. 297, 307, 495 A.2d 928, 933 (1985).


text:
    528 A.2d 995
    COMMONWEALTH of Pennsylvania, v. Frank R. ZOKAITES, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 6, 1987.
    Filed July 21, 1987.

      Elaine V. Preston, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before KELLY, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County finding the appellant, Frank R. Zokaites, guilty of the summary offense of passing a school bus stopped with its red lights flashing. We reverse.

On January 19, 1984, the appellant was issued citations for disorderly conduct (18 Pa.C.S. § 5503(a)(2) & (3)) and overtaking a school bus when its red signals were flashing (75 Pa.C.S. § 3345(a)).

After a preliminary hearing in which the district magistrate found that the prosecution had established the appellant’s guilt as to both charges, an appeal to the Court of Common Pleas was perfected by the appellant pursuant to Pa.R.Crim.P. 63(b)(3). At the trial de novo, the officer issuing the citations on the complaint of a Ms. Priscilla Schneider testified as to the events surrounding the charges. Ms. Schneider also testified.

The appellant took the stand and refuted the facts concerning his circumvention of a school bus while its lights were flashing to indicate that children were boarding.

No verdict was entered in open court by the trial judge at the completion of the May 29, 1986 trial. Rather, a "form” order of court was issued on may 30, 1986 adjudging the appellant guilty of violating 75 Pa.C.S. § 3345(a). The fine and costs imposed were deferred to those issued by the district magistrate. Thus, no amount was fixed on the face of the order. Also, the order proceeded to advise the appellant of his Pa.R.Crim.P. 1123 rights, his right to the assistance of counsel, that the sentence imposed was being “suspended” pending the filing of post-trial motions and that the accused had 30 days from the date of the order to file an appeal if no motions were submitted on his behalf.

Hand-written post-trial motions seeking an arrest of judgment were filed on June 9, 1986. Oral argument followed and resulted in the denial of said motions by order dated September 24, 1986.

A notice of appeal from the September 24th order was initially filed with Commonwealth Court before being transferred to this Court for disposition.

Before addressing the merits of the issues raised, and as a condition precedent to scrutinizing the claims sought to be reviewed, we deem it necessary to examine whether certain procedural due process requirements were adhered to by the trial court.

To start with, the manner in which the trial court issued its verdict, i.e., by “mail order”, renders suspect the appeal-ability of the order in question.

For instance, the record does not reveal what was the judgment of the Court of Common Pleas. We must sift through the records to ascertain by inference that the fine imposed by the district magistrate is to be substituted for the penalty imposed. This practice has been condemned as not being such a judgment that the law contemplates in cases of this genre. See Commonwealth v. Miller, 173 Pa.Super. 168, 96 A.2d 153 (1953).

Accordingly, the case, not having a formerly entered “verdict” and/or “judgment” as contemplated by our case law and Rules of Criminal Procedure (e.g., 1405 and 1123), must be remanded for further proceedings, id., the substance of which is more fully articulated in the plurality opinion of this Court in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987).

We reverse the “mail” order of the court below and remand for proceedings consistent with the dictates of Ragoli. Jurisdiction is not retained.

      . By separate order of even date, the appellant was found not guilty of disorderly conduct.

      . We note that the order adjudging the appellant guilty is identical in form and content, save for the name of the accused and offense for which he was found guilty, as that disapproved by this Court in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987).


text:
    528 A.2d 997
    COMMONWEALTH of Pennsylvania v. Jimmy GOODSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1987.
    Filed July 29, 1987.

      Karen Zeitz, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant appeals from judgment of sentence imposed following his conviction for involuntary deviate sexual intercourse, simple assault, indecent exposure, indecent assault and terroristic threats. The facts, as established at trial, indicate appellant grabbed the victim in an alley (the victim being a stranger to him), wrapped his arm around the victim’s neck, put a blunt object to her back and subjected her to anal rape on two occasions over an extended period of time, while dragging her from place to place at 1:30 a.m.

Appellant’s first argument is that sentence should be vacated and the case remanded for resentencing because the sentence is unreasonable and the trial court grossly deviated from the sentencing guidelines, Judge Avellino sentenced appellant to not less than ten (10) nor more than twenty (20) years in prison, the statutory maximum for involuntary deviate sexual intercourse. Appellant argues the guidelines call for 78-97 months in the aggravated range for a 9-3 (appellant’s offense gravity and prior record score) and that the sentence imposed was a gross deviation from the guidelines. Appellant alleges the trial judge erred in failing to consider mitigating factors and in considering the gravity of the crime and prior record of appellant— things already factored into the guidelines. The Commonwealth points out, at note 1 of their brief, that the defendant has not provided a separate statement of reasons for allowance of appeal of the discretionary aspects of sentence. Failure to produce a separate statement of reasons for allowance of appeal of the discretionary aspect of sentencing, required by Pa.R.A.P. 2119(f), precludes a review of the sentence by this Court. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As to that issue, we quash.

Secondly, appellant argues reversible error was committed at trial when the prosecutor asked the appellant, on cross-examination, if he had not called the victim from prison and threatened her. The Commonwealth notes that the court did sustain the defense counsel’s objection to this question and that the defense counsel sought no further relief. Appellant contends this failure to seek further relief constituted ineffectiveness of counsel. Also, appellant urges that he was denied effective counsel in that his trial counsel failed to object to the Commonwealth’s medical exhibits introduced at trial and failed to raise this issue in post-verdict motions. While these issues were not preserved by trial counsel in post-verdict motions, since appellate counsel is new counsel, alleging ineffectiveness of trial counsel on these issues for the first time on appeal, we may properly consider them here. Commonwealth v. Slyman, 334 Pa.Super. 415, 434 n. 18, 483 A.2d 519, 529 n. 18 (1984) citing Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978) and Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). See Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986).

As to failure to seek additional relief for improper questioning on cross-examination by the Commonwealth concerning the alleged threatening telephone call by the appellant to the victim, the court, after objection, ruled the questioning was improper and excluded it from his consideration on the merits. Because this was a bench trial, we are confident the trial judge avoided being influenced by this line of questioning. We, therefore, find no prejudice to the appellant in this regard. See Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985).

Finally, the failure to object to admission of Commonwealth’s medical exhibits also appears to be nonprejudicial. Stipulation to admission of medical testimony in and of itself is not error. The records were provided to defense counsel the same day they were received by the Commonwealth and there can be no allegation that they were improperly withheld. The record indicates trial counsel used the medical records to the appellant’s advantage by attempting to show, as indicated by the physical examination, that there was no trauma, edema, lacerations and no bleeding to the rectal area (T.T. 2/28/86, pp. 136-137). We perceive no error or prejudice in failing to object to the admission of the medical record and, in fact, believe trial counsel had good and substantial reasons not to object to their admission. Pursuant to Commonwealth v. Pierce, 515 Pa. -, 527 A.2d 973 (1987), we find no basis to sustain the allegation of ineffectiveness of counsel since no prejudice has resulted.

We, therefore, quash the issue regarding the excessiveness of sentence and affirm the judgment of sentence as to all others.

      . This case cries out for expeditious resolution of the sentencing issue and would save the inevitable further hearing and appeal under the Post Conviction Hearing Act if we were able to do so. Here, the sentencing judge permitted an exhaustive (45 pages) colloquy with the appellant reviewing all of the evidence, the appellant’s past record, mitigating circumstances and potential for future violent behavior. The appellant had previously served five years in a penal institution as a juvenile for a gang homicide and was awaiting sentence, after pleading no contest, to an additional sex related crime.


text:
    528 A.2d 1346
    COMMONWEALTH of Pennsylvania v. Morgan A. KELLY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed July 7, 1987.
    Petition for Allowance of Appeal Denied Nov. 25, 1987.

      Thomas W. Corbett, Jr., Pittsburgh, for appellant.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury convicted appellant of driving under the influence of alcohol, homicide by vehicle, homicide by vehicle while driving under the influence and involuntary manslaughter. Appellant was subsequently sentenced to a mandatory three (3) to six (6) year term of imprisonment on the homicide by vehicle while driving under the influence charge.

The testimony presented at trial established that appellant, on March 25, 1984, while driving under the influence of alcohol, lost control of his vehicle, crossed the center line of the road and struck the victim’s car head-on, killing her and injuring her husband. Immediately following the accident, appellant was transported to Mercy Hospital where a blood alcohol test was performed. The test revealed a blood alcohol content of .24 per cent. On March 26, 1984, pursuant to a search warrant, the police conducted a search of the records of Mercy Hospital and, as a result of the search, the police obtained a report of an analysis performed upon a sample of appellant’s blood. This evidence was introduced at trial by the Commonwealth.

Appellant now argues the court erred in failing to suppress the medical records as there was a lack of probable cause for issuance of the search warrant and the warrant failed to describe the place to be searched with adequate particularity.

The “implied consent” law, 75 Pa.C.S.A. § 1547, provides, in pertinent part:

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

In the instant action, the validity of the search warrant is irrelevant as the police officers were entitled to the results of the blood tests pursuant to the “implied consent” law. In fact, the police officers in this case had authority to administer tests to appellant under both (a)(1) and (a)(2) of 75 Pa.C.S.A. § 1547. The officers certainly had “reasonable grounds” to believe appellant may have been operating his vehicle while under the influence of alcohol. Officer Zader testified that when he arrived on the scene of the accident he was told by an eyewitness that appellant’s car had crossed the center line of the road before the collision (S.H., 2/19/85, p. 7). Officer Zader further testified appellant was “combative” and “mouthy” at the scene of the accident, and during the officer’s attempt to help the paramedics, he got in appellant’s car, sat beside him and detected a very strong odor of alcohol (S.H. 1/19/85, p. 24). Also, Officer Zader was informed, at the scene of the accident, that the passenger in the other car had died (S.H., 2/19/85, p. 8). Thus on this basis alone, the police had the authority to conduct testing to determine the presence of alcohol in appellant’s body.

We are in agreement with the Commonwealth’s argument that:

Under these circumstances the distinction implicitly drawn between the constitutional validity of the “taking” of appellant’s blood at police request and the action of the police later obtaining the results of the blood alcohol test, is a false one. If the initial “taking” was lawful, police were entitled to the disclosure of the blood alcohol test results without a further showing or additional legal process.

(Appellee’s brief at 26).

Appellant next asserts the introduction of the results of the blood alcohol analysis was in error as the tests were conducted by a laboratory not certified as required by 75 Pa.C.S.A. § 1547(c). This section requires that the chemical testing be performed by a clinical laboratory licensed and approved by the Department of Health. The testing of appellant’s blood was performed on March 25, 1984 at Mercy Hospital of Pittsburgh, however, the Mercy Hospital was not certified until November 30,1984. Appellant’s trial was held on March 18, 1985. We find the delay in certification was not violative of appellant’s rights.

So long as approval of the type of equipment by the Department of Health occurs before trial, although this may be after the time of testing, the evidence will be admissible under the implied consent law because the quality of the results is not vitiated by subsequent approval of the type of equipment.

Commonwealth v. Benson, 280 Pa.Super. 20, 31, 421 A.2d 383, 389 (1980).

Appellant next argues the court erred in refusing to grant his motion to quash counts I and II of the criminal information, charging him respectively with violations of 75 Pa.C.S.A. § 3735 and § 3732. Appellant contends that a prior conviction for driving under the influence of alcohol is an element of the offense of homicide by vehicle while driving under the influence, and thus the information is defective because it does not allege appellant had been previously convicted of driving under the influence. We do not agree with appellant’s contention. Homicide by Vehicle While Driving Under the Influence, 75 Pa.C.S.A. § 3735, provides, in pertinent part:

(a) Offense defined. — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years, (emphasis added)

We are in full agreement with the conclusion reached by the court below that it is erroneous to interpret the statute to mean “has been convicted”.

If the legislature had intended a prior conviction of § 3731 to be an element of that offense, the statute would be couched in those terms (cf: § 6105 of Pennsylvania Crimes Code “No person who has been convicted of a crime of violence shall own a firearm ...”).
Section 3735 does not require an antecedent conviction of Driving While Under The Influence, Section 3731. Both counts may be tried concurrently. All that is necessary is that the Court properly instruct the jury on this matter. In this instance, the jury was instructed that they must first find the Defendant guilty of Driving Under the Influence before addressing the issue of Homicide by Vehicle While Driving Under the Influence. (T.T. 496).

(Slip Op., Scarlata, J., 11/26/86, p. 6).

Appellant also alleges the court erred in the admission of testimony from the deceased victim’s husband concerning their activities during the day of the accident and also testimony of a paramedic who responded to the scene of the accident. Appellant filed timely post-verdict motions on March 29, 1985, however, the aforementioned issue was not presented therein. Appellant later submitted supplemental post-verdict motions, specifically raising the two issues presently before us. It appears from the record, however, the court below never expressly granted appellant the right to do so. Additionally, these motions carry no stamp of the Clerk of Courts office indicating they were properly filed.

We now find these issues have been improperly preserved for appellate review as they were neither included in the timely post-trial motions nor raised pursuant to court approval nunc pro tunc. As we stated in Commonwealth v. Jackson, 336 Pa.Super. 609, 623, 486 A.2d 431, 439 (1984), “Our 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).” In Commonwealth v. Talley 456 Pa. 574, 318 A.2d 922 (1974), the Supreme Court, in deciding the trial court did not abuse its discretion in refusing to permit the defendant to file additional reasons for a new trial, stated:

The rule provides that a defendant may request leave to file additional reasons for a new trial. This does not imply that a defendant can file these as a matter of right, but it is a matter of discretion with the trial court. In the facts of this case, we fail to see an abuse of that discretion.

Id., 456 Pa. at 579, 318 A.2d at 924. Rule of Criminal Procedure 1123(a), which is derivative of the rule cited in Talley (19 P.S. 1123), states:

Rule 1123. Post-Verdict Motions
(a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pretrial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument, $ hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard. If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.

While the earlier version of Rule 1123 permitted additional time to file motions, if allowed by the court within the initial seven-day period, only those motions filed during the seven-day period or within such further time as the Court permitted could be argued at post-trial motions or on appeal. The current Pennsylvania Rule of Criminal Procedure 1123(a) is a recodification of the original Rule 1123 and, in addition to increasing the time for filing motions to ten (10) days (to provide uniformity with the Rules of Civil Procedure), the rule added the provision: “If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.” While a custom appears to have developed whereby counsel, in filing original and timely post-trial motions, reserves the right to file additional motions, nothing in the rules permits unilateral extension of time, and in no event may supplemental motions be filed and heard nunc pro tunc unless filed in a reasonable time and with approval of the court. The Supreme Court found in Talley, supra, that neither of the proposed supplemental motions were such as to require a transcript, one having been raised in the original motion, the other capable of being raised without the necessity of a transcript. Thus the lower court did not abuse its discretion in disallowing them. In this case, a review of the docketing statement and the motions themselves establishes clearly that they could have been raised with the initial motions. The supplemental motions were submitted on the day of argument, without review or approval of the court, five (5) weeks after the transcript was filed, when appellant’s original post-verdict motions called for them to be filed ten (10) days after receipt of transcript. In addition, they were not clocked in by the Clerk’s office and do not appear to be formally of record.

We hold that the supplemental post-verdict motions did not preserve the issues for review (whether filed or merely submitted) despite the fact that the court below addressed them on the merits. Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983). Accordingly, the aforementioned issues have been waived.

Appellant’s next argument concerns the admission of the testimony of Dr. Charles Winek, Chief Toxicologist and Director of Laboratories for Allegheny County, who testified as an expert concerning appellant’s blood alcohol content and its relation to appellant’s ability to function. Appellant contends the Commonwealth was required, pursuant to Pa.R.Crim.P. § 305(B)(1)(e), to have Dr. Winek prepare a written report relating to his interpretations of appellant’s blood alcohol content and deliver a copy of the report to defense counsel prior to trial. Appellant does not dispute the fact he was notified prior to trial that Dr. Winek would be called to testify as an expert, but rather, appellant complains he never received a written expert report prepared by Dr. Winek. Appellant does not claim the Commonwealth erred by not turning over a written report in its possession, but that the Commonwealth should have had Dr. Winek prepare a report the defense could look at. Pennsylvania Rule of Criminal Procedure § 305(B)(1) requires the Commonwealth to disclose to defense counsel, “results or reports of scientific tests, expert opinion, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth.” This rule only requires the Commonwealth to disclose written reports “in their possession.” In the instant action, the Commonwealth could not have acted in contravention of Rule 305 as it had nothing to turn over. It did however, quite properly, orally advise defense counsel pre-trial of Dr. Winek’s anticipated trial testimony.

Appellant’s last argument concerns alleged prosecutorial misconduct. Appellant claims the court erred in refusing to grant a mistrial after the prosecutor, in his closing remarks to the jury, commented on appellant’s failure to testify. Defense counsel, in his opening remarks, stated:

I’ll tell you right now, another unfortunate circumstance is that Mr. Kelly cannot testify because he doesn’t know what happened____ He, as the hospital records will show you, had amnesia to the incident, so although he is a witness, he is a witness who has no recollection, so he cannot testify.

(T.T., 3/19/85, p. 9).

During the Commonwealth’s closing argument the prosecutor, referring to defense counsel’s earlier remarks, stated:

Defense counsel mentioned in his opening the defendant was suffering from amnesia. He mentioned that in his closing. Do the facts tell you that? Look at the facts about any questions you have. Don’t assume anything. Go to the facts. Go to the testimony. Go up on that stand. What testimony did you hear about amnesia?
You heard a Dr. McGuire, I believe, testify the night of the accident the way he was behaving, the strong odor of alcohol, his belligerent, combative behavior, the slurred speech, that he had amnesia as to what happened. You heard no testimony that he has amnesia today.

(T.T. 3/21/85, p. 51).

We do not find that the prosecutor’s remarks violated appellant’s constitutional right against self-incrimination. Rather, his remarks were proper comment in rebuttal to appellant’s arguments. As we stated in Commonwealth v. Fulton, 318 Pa.Super. 470, 481-82, 465 A.2d 650, 657 (1983),

A prosecuting attorney may properly respond to opposing counsel’s argument which questions the credibility of a witness. The Commonwealth may properly refer to the fact that the incriminating evidence was uncontradicted. Such will not necessarily be deemed to a reference to a defendant’s failure to testify. Commonwealth v. Kjers-gaard, 276 Pa.Superior Ct. 368, 375, 419 A.2d 502, 506 (1980). Commonwealth v. Ashmore, 266 Pa.Superior Ct. 181, 189, 403 A.2d 603, 606 (1979); and Commonwealth v. Kloch, 230 Pa.Superior Ct. 563, 589, 327 A.2d 375, 390 (1974).

Additionally, we note that the lower court, in its charge to the jury, addressed the appellant’s right not to testify.

In this case the defendant exercised his constitutional right not to testify. It is entirely up to the defendant in any criminal trial whether or not to testify. He has an absolute right founded upon the constitution to remain silent. You must not draw any adverse inference or any inference of guilt from the fact that the defendant did not testify.

(T.T., 3/18/85, p. 490).

Accordingly, for the aforementioned reasons, judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(1) and (a)(4)

      . 75 Pa.C.S. § 3732

      . 75 Pa.C.S. § 3735

      . 18 Pa.C.S. § 2504

      . Former Rule 1123 of Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, provides, in part, as follows:
      (a) A motion for a new trial shall be filed within seven days after verdict, or within such additional time allowed by the court during the seven day period.
      (b) A motion for a new trial shall be in writing, and the grounds shall be specified. All allegations of fact not of record shall be supported by affidavit. Leave to state additional specific grounds after the transcript is lodged must be sought within the period allowed pursuant to section (a) of this Rule or within such further time as the court may allow. Only the grounds so raised may be argued before the court.

      . We note that Commonwealth v. Rosko, 353 Pa.Super. 307, 509 A.2d 1289 (1986) is inapposite as there, a rule applicable to the Post Conviction Hearing Act (Pa.R.Crim.P. 1123(f)) was applied, whereas in an original case, the proper rule is Pa.R.Crim.P. 1123(a).


author: WIEAND, Judge:

text:
    528 A.2d 1351
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellant, v. James R. MOOSE, Robert L. Beard and James A. Rohrbaugh, Appellees.
    Superior Court of Pennsylvania.
    Argued April 1, 1987.
    Filed July 13, 1987.

      Gregory S. Rubin, Paoli, for appellant.
    Thomas M. Campbell, Harrisburg, for appellees.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

James R. Moose, Robert L. Beard, and James R. Rohr-baugh became employees of Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch) in late 1983 and early 1984. At the time of commencing employment, each employee executed a written employment agreement which contained, inter alia, a restrictive covenant by which the employee agreed that for a period of one year after termination of his employment he would not solicit any of Merrill Lynch’s customers whom he had serviced or whose name he had learned during his employment by Merrill Lynch. These agreements also provided that all records of Merrill Lynch, including the names and addresses of its customers, were to remain the employer’s property and could not be copied or duplicated without its permission. Moose, Beard, and Rohr-baugh were trained by Merrill Lynch as commodities brokers, and they worked in the Merrill Lynch Commodities Department for central Pennsylvania until May 30, 1986, when they resigned and joined E.F. Hutton, a competitor.

In June, 1986, Merrill Lynch filed a complaint in equity against its former employees and requested, inter alia, a temporary restraining order prohibiting them from competing with it in central Pennsylvania. The trial court, on June 9, 1986, entered an ex parte order restraining Merrill Lynch’s former employees from soliciting or accepting any customers of the Merrill Lynch Commodities Department who had been serviced by the former employees or whose name had become known to them while in the employ of Merrill Lynch. On June 11, 1986, the court amended its prior order, again acting ex parte, to permit the former employees to “accept” business from Merrill Lynch’s customers but enjoining them from “soliciting” business from such persons. The former employees responded to the complaint against them by filing a petition to compel Merrill Lynch to arbitrate the dispute in accordance with the bylaws of the New York Stock Exchange, to which Merrill Lynch had subscribed, and to stay further court proceedings until the arbitration proceedings were completed. This petition was consolidated with Merrill Lynch’s motion for preliminary injunction, and both were heard by the trial court on June 19, 1986. At the conclusion thereof, the trial court entered an order directing arbitration and continuing the preliminary injunction, as modified, until the arbitration proceedings had been concluded. Merrill Lynch appealed.

Merrill Lynch contends that the trial court erred when it ordered Merrill Lynch to submit to arbitration before the New York Stock Exchange (NYSE). It argues that (1) no express agreement to arbitrate existed in the employment contract between Merrill Lynch and its former employees, and (2) the dispute did not arise out of Merrill Lynch’s business and therefore was not subject to the arbitration provisions of the New York Stock Exchange. We will examine these contentions carefully, for they present issues of first impression in the appellate courts of Pennsylvania.

“It is well settled ... that voluntary arbitration is a matter of contract, and absent an agreement between the parties to arbitrate their disputes, they cannot be compelled to arbitrate.” Gaslin, Inc. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 139, 482 A.2d 1117, 1121 (1984), citing Hoffman v. Gekoski, 250 Pa.Super. 49, 53, 378 A.2d 447, 448 (1977). In the instant case, the agreement to arbitrate appears in Merrill Lynch’s agreement with the New York Stock Exchange; there is no arbitration clause in the employment contract between Merrill Lynch and its former employees.

Upon becoming a member of the New York Stock Exchange, Merrill Lynch agreed to abide by the Constitution of the New York Stock Exchange and all rules promulgated in accordance therewith. Article IX, § 8 of this Constitution provides that

[n]o person admitted to membership shall be entitled to any privileges thereof until he shall have signed the Constitution of the Exchange, thereby pledging himself to abide by the Constitution. By such signature, he pledges himself to abide by the same as the same has been or shall be from time to time amended, and by all the rules adopted pursuant to the Constitution.

Article VIII, § 1, of the Constitution provides, in pertinent part, as follows:

[A]ny controversy between a non-member and a member ... arising out of the business of such member ... shall at the instance of any such party, be submitted for arbitration, in accordance with the provisions of the constitution and Rules of the Board of Directors.

See also: NYSE Rule 600. This provision has been held to constitute an express agreement to arbitrate, upon which non-member parties may rely to compel arbitration of disputes such as that involved in the instant case. See: Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F.2d 1286, 1288-1289 (8th Cir.1984); McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 A.D.2d 165, 171-72, 498 N.Y.S.2d 146, 151 (1986).

In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ho-vey, supra, where Merrill Lynch had also filed suit against former employees alleging that they, like appellees in the instant case, had wrongfully converted trade secrets and business records and had wrongfully solicited Merrill Lynch’s customers, the employees attempted to compel arbitration. The employees’ petition was denied by the district court, but, on appeal, the Court of Appeals for the Eighth Circuit reversed. The Court of Appeals observed that several employees were not members of the Stock Exchange but said:

On the other hand, Kadry and Erickson are not members of the NYSE, nor do their employment contracts contain an arbitration agreement. Kadry and Erickson rely primarily on Article VIII of the NYSE Constitution to support their claim for arbitration. Article VIII allows nonmembers to compel arbitration of any controversy “arising out of the business” of a member. Merrill Lynch contends that the employees’ reliance on Article VIII is misplaced. Merrill Lynch urges that Article VIII’s reference to “business” reflects that the provision’s intention is to allow customers, not employees, to compel arbitration. We find, however, that the provision is not so limited. The article of the Constitution reflects the self-regulation of the securities industry, as well as the effort to provide an integrated method of resolving disputes involving the affairs of the NYSE. We find that Article VIII constitutes an agreement to arbitrate, upon which Kadry and Erickson may rely.

Id. at 1288-1289 (footnote omitted).

Merrill Lynch argues, however, that even if non-members can enforce this provision requiring arbitration, the present dispute did not arise out of its business. On the contrary, appellant argues, the present dispute arose because its former employees were attempting to destroy its business. This argument was considered and rejected by the New York Supreme Court in McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., supra. There, the plaintiff, a securities brokerage firm, had brought suit against four former employees and a competing company which the former employees had formed after leaving the firm’s employ. The complaint alleged that the defendants had converted plaintiff’s trade secrets and customer lists and had wrongfully solicited plaintiff’s customers. Defendants moved for an order to compel arbitration, and the motion was denied by the trial court. On appeal, the New York Supreme Court, Appellate Division, reversed, holding that arbitration was appropriate with regard to plaintiff’s claims against all defendants even though two of the defendants were not members of the New York Stock Exchange. The Court said:

With respect to Keenan and Nolan, Inc., neither of which is an NYSE member, the defendants argue that NYSE rule 600 is applicable. Rule 600 provides:
“(a) Any dispute, claim or controversy between a customer or non-member and a member, allied member, member organization and/or associated person arising in connection with the business of such member, allied member, member organization and/or associated person in connection with his activities as an associated person shall be arbitrated under the Constitution and Rules of the New York Stock Exchange, Inc. as provided by any duly executed and enforceable written agreement or upon the demand of the customer or non-member”.
The plaintiff claimed that Keenan stole trade secrets containing information regarding its customers, recruited other of its employees to participate in a conspiracy against the plaintiff, violated a fiduciary duty owed to the plaintiff arising from her employment relationship, conspired with the other individual defendants to engage in acts detrimental to the plaintiff, and committed acts constituting unfair competition. With respect to Nolan, Inc., the plaintiff asserted that this defendant was the vehicle used by the individual defendants to set up their competing business while still in the plaintiffs employ. According to the plaintiff, in the course of establishing Nolan, Inc.’s business and while still employed by the plaintiff, the defendants utilized confidential records and information, began soliciting accounts, and converted customer lists.
Thus, contrary to the plaintiff’s assertions that such claims only arose out of the conduct of Nolan, Inc. and the five individual defendants, we find that the controversy does in fact arise from the plaintiff’s business____

Id. at 171-72, 498 N.Y.S.2d at 151. See also: Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, supra.

In the instant case, it was in the course of Merrill Lynch’s business that appellees had been hired and given information which they allegedly converted to their own use. Moreover, all acts forming the basis of Merrill Lynch’s complaint related directly to Merrill Lynch’s business. We conclude, therefore, that the controversy between Merrill Lynch and its former employees arose out of Merrill Lynch’s business.

The reasoning adopted by the Court of Appeals for the Eighth Circuit and also by the Supreme Court of New York is persuasive, and we adopt it as our own. The order of the trial court directing arbitration was appropriate and will be affirmed.

As a general rule, “trial courts are afforded a broad discretion in the granting or refusal of a preliminary injunction after hearing and will be reversed only if such discretion is clearly abused or if the court committed a palpable legal error.” Commonwealth v. Schall, 6 Pa.Cmwlth. 578, 581, 297 A.2d 190, 191 (1972). See: Unionville-Chadds Ford School District v. Rotteveel, 87 Pa.Cmwlth. 334, 336-337, 487 A.2d 109, 111 (1985); American College of Obstetricians & Gynecologists v. Thornburgh, 613 F.Supp. 656, 664 (E.D.Pa.1985). Upon appeal, a reviewing court must uphold the trial court’s grant or refusal of preliminary relief if it can be sustained upon “any apparently reasonable ground.” See: Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 157, 432 A.2d 1375, 1381 (1981); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 371, 301 A.2d 816, 818 (1973); Pennsylvania Interscholastic Athletic Association v. Greater Johnstown School District, 76 Pa.Cmwlth. 65, 71, 463 A.2d 1198, 1201 (1983).

Merrill Lynch’s objection to the preliminary injunction issued by the trial court in this case is that it was not broad enough and did not restrain the former employees from accepting business which came to them, without further solicitation, from customers of Merrill Lynch. Our review of the record, however, suggests no abuse of discretion by the trial court in fashioning the preliminary injunction. In the first place, the restrictive covenant in the employment contract, which each appellee signed, did not purport to prevent a signer from “accepting” business from customers of Merrill Lynch. Similarly, it did not provide that a former employee would not engage in the commodities business. It provided only that a former employee would “not solicit, for a period of one year ... any of the clients of Merrill Lynch____” In addition, the trial court determined that the persons who would be most affected by a more encompassing order would be the innocent customers of Merrill Lynch who would be denied the privilege of entrusting their commodities business to the broker of their choice. Under these circumstances, the trial court did not abuse its discretion by limiting its restraining order to the “solicitation” of appellant’s customers. Because the relief granted by the trial court had a reasonable basis, its order will be affirmed.

Order affirmed.

      . Moose joined Merrill Lynch on November 8, 1983, Beard on May 22, 1984, and Rohrbaugh on May 19, 1984.

      . Merrill Lynch filed a separate appeal from the court’s temporary restraining order of June 11, 1986. This appeal, however, was rendered moot by the later hearing and preliminary injunction.


author: BECK, Judge: CAVANAUGH, Judge,

text:
    528 A.2d 1355
    Angelo ORTIZ and Illuminada Ortiz, Appellants, v. RA-EL DEVELOPMENT CORP. and Arnko Builders, Inc., Appellees. Angelo ORTIZ and Illuminada Ortiz v. RA-EL DEVELOPMENT CORP. and Arnko Builders, Inc. Appeal of ARNKO BUILDERS, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1986.
    Filed July 17, 1987.
    Petition for Allowance of Appeal Denied Dec. 21, 1987.

      Armin Feldman, Philadelphia, for appellants in No. 1205 and for appellees in No. 1385.
    Elizabeth A. Berryman, Philadelphia, for appellant in No. 1385 and for appellee in No. 1205.
    Lawrence L. Robinson, Philadelphia, for RA-EL, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   BECK, Judge:

Appellant Angelo Ortiz was a laborer in the employ of A-V Brick Corporation (“A-V”). He was injured on the job when a fourteen-foot high scaffold on which he was working collapsed. He was on the scaffold erecting masonry walls for a warehouse owned by appellee Ra-El Development Corporation (“Ra-El”). Ra-El contracted for the work with Arnko Builders, Inc. (“Arnko”) as the general contractor. Arnko in return subcontracted with Ortiz’s employer A-V.

Ortiz brought suit against Ra-El and Arnko, claiming that A-V was negligent in failing to assemble the scaffolding in accordance with standards promulgated by the Occupational Safety and Health Administration (OSHA); that his working on an improperly-assembled scaffold posed a “special danger” or “peculiar risk”; and that this risk was foreseeable by Ra-El and Arnko. He contends that Ra-El and Arnko should be held liable under the “peculiar risk” or “special danger” exception to the general rule that the employer of an independent contractor is not liable for the contractor’s negligence.

The trial court found that no special danger or peculiar risk existed and granted Ra-El’s motion for summary judgment. This appeal primarily reviews the dispute between Ra-El and Ortiz. An order granting summary judgment in favor of one of several defendants is appeal-able as a final order. Ortiz’s appeal is therefore properly before us. Lane v. Schacht, 260 Pa.Super. 68, 393 A.2d 1015 (1978).

Summary judgment will be granted only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. On appeal from a grant of summary judgment, we review the record in the light most favorable to the losing party. Ibid. We find the trial court was correct in granting summary judgment in favor of Ra-El and we therefore affirm.

Under the facts of this case Ra-El is the employer of the independent contractor, A-V. As a general rule, “[t]he employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.” Restatement (Second) of Torts § 409 (1965); Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963). However, an exception to the general rule has developed where the work to be performed by the independent contractor involves special danger or peculiar risk.

The rationale underlying liability is that an employer of the independent contractor ought to anticipate a heightened level of risk where the work is specially dangerous or peculiarly risky. It is reasonable for the employer to take precautions or cause the independent contractor to take precautions to minimize the possibility of injury to others. After all, it is the employer who primarily benefits from the contractor’s work and the employer who selects the independent contractor. Furthermore, the employer is in a position to make the selection of the independent contractor based on competency. The employer also may demand indemnity from the contractor. Finally, the employer, anticipating the risk, can purchase insurance to cover it. Aceves v. Regal Pale Brewing Co., 24 Cal.3d 502, 509, 156 Cal.Rptr. 41, 44, 595 P.2d 619, 622 (1979).

Pennsylvania has specifically adopted the exception to the employer’s non-liability as found in sections 416 and 427 of the Restatement (Second) of Torts. Philadelphia Electric Co. v. James Julian, Inc., 425 Pa. 217, 228 A.2d 669 (1967). These sections provide:

§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
§ 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

The question then becomes, what constitutes a “special danger” or “peculiar risk”? Until now, no Pennsylvania appellate court has enunciated a precise definition of these terms. We hold that a special danger or peculiar risk exists where:

1) the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.

The instant case causes us to examine the second prong of the test. The second prong requires that “the risk is different from the usual and ordinary risk associated with the general type of work done; i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.” This prong focuses on the nature of the work to be performed and involves a two-step analysis. First, we examine the risk that would be posed by the general type of work to be performed under typical circumstances. In the instant case the general type of work to be performed is working on a scaffold, which typically is at least a few feet off the ground. We conclude that this is not specially dangerous. Next, we determine whether the circumstances under which the general work is done, i.e., the specific project or task, introduces a different kind or level of risk. Here again we conclude that the specific project or task, working on a scaffold fourteen feet off the ground, did not pose a risk much greater than that posed by the general work of being on a scaffold a few feet off the ground, and is therefore not specially dangerous. Hence, Ortiz has failed to establish that his injury was the result of a risk “different from the usual and ordinary risk associated with the general type of work done.”

This prong can be clarified by illustration. For example, in Heath v. Huth Engineering, Inc., 279 Pa.Super. 90, 420 A.2d 758 (1980), an employer was held liable for the death of an independent contractor’s worker, who was digging a sewer trench and was killed when a negligently shored wall of the trench collapsed on him. The “general type of work done” was digging; the “specific project or task” was excavating a sewer trench. The employer would be liable under our test because it was not the general type of work done, the digging, that caused Heath’s injury, but the specially dangerous circumstances under which the digging was done, i.e., in a sewer trench. See also Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984). It is the employer who chooses the specific project or task to be done; it is the employer who should be liable for injuries caused by the heightened risk of the circumstances of the task he sets.

In Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616 (1984), an employee was engaged in digging beneath an electric substation in an effort to repair a broken water pipe. He struck an electrical conduit carrying a current of 13,200 volts and was burned. There the court noted the special danger posed by the circumstances under which the digging was taking place: “The contractors’ agents were fully aware that they were excavating beneath an electrical substation, yet neither took any steps to ascertain whether there were power lines in the area to be excavated.” Id. at 622-23. The employer of the independent contractor was held liable for Colloi’s injuries. Here again the general task of digging was not specially dangerous but the circumstances surrounding the specific task made it specially dangerous.

In the instant case, the general task of working on a scaffold is not specially dangerous and we conclude there are not circumstances surrounding the specific task which made the work specially dangerous.

Appellant would like us to eliminate the second prong from the test, i.e., the risk is different from the usual and ordinary risk associated with the general type of work done. We decline to do so. To characterize all construction work or all scaffold work as involving a special danger or peculiar risk would render the terms “special danger” or “peculiar risk” meaningless:

In order for the liability concepts involving contractors to retain any meaning, especially in industries such as construction where almost every job task involves the potential for injury unless ordinary care is exercised, peculiar risk situations should be viewed narrowly, as any other exception to a general rule is usually viewed.

Marshall v. Southeastern Pa. Transp. Auth., 587 F.Supp. 258, 264 (E.D.Pa.1984); see also Restatement (Second) of Torts § 413 comment b. All construction work involves a risk of some harm; only where the work is done under unusually dangerous circumstances does it involve a “special danger” or “peculiar risk.”

Ortiz also contends that the distinction between ordinary risk and peculiar risk should be for the factfinder. However, “[t]he determination is a mixed question of law and fact, and may, in clear cases, be made by the trial judge as a matter of law.” McDonough v. United States Steel Corp., 228 Pa.Super. 268 n. 6, 324 A.2d 542, 546 n. 6 (1974). In the instant case, routine construction work on a fourteen-foot high scaffold clearly involves no special danger or peculiar risk. The trial court correctly decided that this exception to the general rule of nonliability of the employer of an independent contractor is not applicable in the instant case. We therefore affirm the trial court’s grant of summary judgment in favor of Ra-El.

Order affirmed.

CAVANAUGH, J., files concurring statement.

CAVANAUGH, Judge,

concurring:

I concur in the result reached by the majority. I respectfully disagree with what appears to be an artificial distinction among a variety of activities which may or may not be classified as constituting a special danger or peculiar risk. Nonetheless, I would not reach this issue for the reasons set forth in my concurring opinion in Colloi v. Philadelphia Electric Company, 332 Pa.Super. 284, 481 A.2d 616 (1984). I remain convinced that §§ 416 and 427 of Restatement (Second) of Torts were intended to provide a basis of recovery by third parties, not employees of independent contractors or subcontractors.

      . Arnko had previously moved for summary judgment on the ground that it was immune from tort action as a statutory employer under the Workmen’s Compensation Act. Pa.Stat.Ann. tit. 77, §§ 21, 52 (Purdon 1982). The court denied summary judgment. Arnko’s appeal as cross-appellant in the instant action is proper. With respect to summary judgment in favor of Ra-El, Arnko is an aggrieved party, and the order is appealable as a final order. Lane v. Schacht, 260 Pa.Super. 68, 393 A.2d 1015 (1978). As Arnko presents no independent contentions and simply joins in Ortiz’s appeal and brief, we refer to Ortiz alone in our consideration of the grant of summary judgment in favor of Ra-El.

      . We note the two phrases, "special danger” and "peculiar risk," are used interchangeably by the courts. Prosser, The Law of Torts § 71, n. 44 (5th ed. 1984); see also Restatement (Second) of Torts § 427 comment a (1965).

      . We note that some other jurisdictions, such as Colorado and California, have broadened the definition of special danger and peculiar risk so that the exceptions to non-liability almost swallow the general non-liability rule. Prosser § 71 n. 9.

      . Since we determine that Ortiz has not shown that the work encompasses special danger or peculiar risk, we need not address Ortiz’s contention that employees of independent contractors are among the third parties to whom duties under sections 416 and 427 flow. We note, however, that Colloi v. Philadelphia Elec. Co., 332 Pa.Super. 284, 481 A.2d 616 (1984) supports Ortiz’s contention. See also, Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 323 A.2d 300 (1974).