author: CAVANAUGH, Judge:

text:
    547 A.2d 411
    Rosemarie A. FRENCH and Melvin H. French, v. UNITED PARCEL SERVICE, and A & D Glass Service, Pittsburgh Plate Glass Company and Rixson. Appeal of UNITED PARCEL SERVICE.
    Superior Court of Pennsylvania.
    Argued April 28, 1988.
    Filed Sept. 9, 1988.

      Mark Malkames, Allentown, for appellant.
    George A. Heitczman, Bethlehem, for French, appellees. David G. Welty, Allentown, for A & D Glass, appellee.
    Frank G. Procyk, Bethlehem, for Pitsburgh Plate Glass Co., appellee.
    Marla J. Melman, Allentown, for Rixson, appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   CAVANAUGH, Judge:

This is an appeal by United Parcel Service from summary judgment orders. In this case, the plaintiffs below, Rosemarie A. French and Melvin H. French, commenced an action in trespass against United Parcel Service (UPS) for injuries suffered when Mrs. French fell while entering the UPS premises in Allentown, Pennsylvania. The complaint alleged inter alia that the “entrance to defendant’s premises was available to customers through a door embodying an automatic closure device.” The plaintiffs also claimed that the “automatic closure device [was] in such a state of tension, as to cause the door to close rapidly and unexpectedly behind a person attempting to walk through the doorway.” Mrs. French claimed to have been hit in the back by the door and she fell forward, suffering injuries.

The original defendant, UPS, filed' a joinder complaint against A & D Glass Service, PPG Industries, Inc. (which was incorrectly referred to as Pittsburgh Plate Glass Company) and Rixson. The original defendant, and all of the additional defendants filed motions for summary judgments. Depositions were taken. On December 17, 1987 the court below through Backenstoe, P.J., entered an order denying the motion of United Parcel Service for summary judgment, and granting the motions of additional defendants, A & D Glass Service, PPG Industries, Inc., and Rixson for summary judgment. UPS has filed an appeal to this court.

We must quash the appeal to the extent that it is from that part of the order denying the motion of UPS for summary judgment. Although the appellees, who were the plaintiffs below, did not file a formal motion to quash, we may quash on appeal sua sponte, where an appeal is taken from an interlocutory order. Napet, Inc. v. John Benkart & Sons Co., 288 Pa.Super. 187, 431 A.2d 351 (1981); Campanna v. Travelers Insurance Company, 355 Pa.Super. 219, 513 A.2d 397 (1986). See also 42 Pa.C.S. § 742. An appeal to this court must be quashed if it is from an interlocutory order unless a right to appeal is expressly granted by statute or rule of court. See Pa.R.A.P. 311, 1311; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985).

Generally, an order is not final unless it puts the litigant out of court. We have variously defined a final order as one which ends the litigation or alternatively disposes of the entire case. Piltzer v. Independence Federal Savings & Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985). The salutary reason for this is to preclude piecemeal appeals to this court and the consequent protraction of litigation. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987); Beers v. Raub, 363 Pa.Super. 521, 526 A.2d 801 (1987); Danko Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987).

UPS has taken an appeal from the refusal of the court to enter summary judgment in its favor. An order denying a motion for summary judgment is interlocutory and not appealable. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984); Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9 (1981). Accordingly, the appeal by UPS from that part of the order denying its motion for summary judgment is quashed.

The plaintiffs below, Rosemarie A. French and Melvin H. French, have not appealed from the grant of summary judgment in favor of A & D Glass Service, PPG Industries, Inc. and Rixson. While the appellant, UPS, admits that the order appealed from was interlocutory as to the plaintiffs, it argues that it is nevertheless appealable since it granted summary judgment in favor of the additional defendants. This contention is meritorious.

Pa.R.C.P. 2255(a) provides that “the procedure, including pleadings, between the party joining an additional defendant and the additional defendant shall be the same as though the party joining the additional defendant were a plaintiff and the additional defendant were a defendant.” In effect, the grant of the additional defendants’ motions for summary judgment places the defendant out of court on its claims against the additional defendants. As noted above, generally an order is interlocutory unless it effectively puts the litigants out of court, terminates the litigation or disposes of the entire case. Rigidply Rafters v. Aetna Casualty & Surety Company, 311 Pa.Super. 549, 457 A.2d 1318 (1983). In applying this rule, “we must look beyond the technical effect of the adjudication to its practical ramifications.” Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-5 (1981); Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986); Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987). The portion of the order which granted summary judgment in favor of the additional defendants terminated the litigation against them by UPS and constituted a final appealable order. See Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 518 A.2d 1213 (1986). As noted in Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) an order granting summary judgment as to some defendants in a multiple defendant suit is a final appealable order as to those defendants released from litigation. See also Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985).

Having decided that the order is appealable, as far as granting summary judgment in favor of all additional defendants, we must consider the appeal on its merits. Summary judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Scheetz v. Borough of Lansdale, 64 Pa.Cmwlth.Ct. 24, 438 A.2d 1048 (1982). Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988). Summary judgment may be entered only in cases that are clear and free from doubt. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980); Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In the matter before us, there are substantial factual issues to be decided. The moving parties in this case, the additional defendants, have the burden of proving that no material issue of facts exists. Billman v. Pennsylvania Assigned Claims Plan, 349 Pa. Super. 448, 503 A.2d 932 (1986).

We must examine the record in the light most favorable to the non moving party and accept as true all well pleaded facts in the non moving party's pleadings and give the non mover the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987); Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987). The court below acknowledged that there was conflict in the testimony between Mrs. French, the plaintiff, and her son’s girlfriend who accompanied her on her trip to the UPS office, as to what happened on the day of the accident. The court found that there were material issues of fact in dispute concerning the operation of the door on UPS’s property, but that none existed as to the additional defendants who were the manufacturer, seller and installer of the door and its mechanical components. We find that the additional defendants have not carried their burden of establishing that there were no material issues of fact. If the door was manufactured, installed or maintained in a dangerous condition, we cannot say that only UPS is at fault. The door, or its closing mechanism, may have been defective in design or manufacture. We do not determine that such is the case, but we cannot say on the state of the record before us that if there is legal responsibility for Mrs. French’s injuries, it is solely that of UPS. In summary judgment proceedings, it is not the court’s function to determine facts, but only to determine if a material issue of fact exists. Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984).

Several UPS employees testified on deposition that the door in question appeared at all times to operate properly. The plaintiff herself does not know why the door closed in the manner it did, in a rapid and unexpected manner. Since summary judgment may be entered only in a case that is clear and free from doubt, we believe the court below erred in entering summary judgment in favor of the additional defendants and against the original defendant.

Appeal of United Parcel Service from that part of the order denying its motion for summary judgment quashed and the entry of summary judgments in favor of the additional defendants, A & D. Glass Service, PPG Industries, Inc. and Rixson is reversed.

      . UPS filed a motion for summary judgment stating inter alia:

      3. The Defendant, United Parcel Service, joined as an Additional Defendant A & D. Glass Service, alleging, inter alia, that to the extent the Plaintiffs have alleged that the door was installed in a dangerous manner, that the Additional Defendant, A & D Glass Service, is liable for any damage caused thereby.
      4. The Defendant, United Parcel Service, joined as an Additional Defendant Pittsburgh Plate Glass Company, alleging, inter alia, that to the extent that Plaintiffs have alleged that the door existed in a "dangerous” condition, that any damage caused thereby is the responsibility of the Additional Defendant, Pittsburgh Plate Glass Company.
      5. The Defendant, United Parcel Service, joined as an Additional Defendant Rixson, alleging, inter alia, that to the extent that Plaintiffs have alleged that the door closure device was improper or defective, that the Additional Defendant, Rixson, is responsible for any damage caused thereby.
      UPS requested summary judgment “against all other parties" as did A & D Glass Service, PP & G Industries, Inc. and Rixson.

      . The order appealed from stated:
      “NOW, this 17th day of December, 1987, upon consideration of the motions for summary judgment and briefs submitted by the parties, and following oral argument upon the matter,
      IT IS HEREBY ORDERED that the motion for summary judgment of defendant United Parcel (hereinafter sometimes "UPS”) is denied.
      IT IS FURTHER ORDERED that the motions for summary judgment of the additional defendants A & D Glass Service, Rixson and PPG Industries, Inc. (incorrectly named as the Pittsburgh Plate Glass Company) are granted."

      . The appellant, UPS, in its brief on appeal, page 2: “concedes that the lower court’s refusal to grant UPS a summary judgment vis-a-vis the plaintiff is interlocutory ...” However, the appellant argues that “the lower court’s granting of a summary judgment in favor of only the additional defendants is not interlocutory and is appealable.”

      . The appellees stated at page 3 of their brief:
      Plaintiffs did not oppose the Motions for Summary Judgment made by the Additional Defendants____ Plaintiffs therefore have no right to complain, nor do they complain, about the granting of the Motion for Summary Judgment as to the three Additional Defendants.

      . In its third party complaint, UPS alleges inter alia:

      13. The Plaintiffs have alleged that said door was installed and/or adjusted so that it existed in and constituted an unreasonably dangerous condition.
      14. The Defendant avers that if the Plaintiff, Rosemarie A. French, sustained injury as alleged in her Complaint, then her injury was caused because of the negligence of the Additional Defendant, A & D Glass Service, because of its improper installation and/or adjustment and/or maintenance of said door.
      20. The Plaintiffs have alleged that the injury to Plaintiff, Rosemarie A. French, was a result of the door’s “dangerous condition".
      21. The Defendant avers that if it is proven that the door was designed and/or existed in a "dangerous condition” that said defect or inadequate design was a result of negligent manufacture of the door by Additional Defendant, Pittsburgh Plate Glass Company.
      26. On May 20, 1981, when the Plaintiff, Rosemarie A. French, was allegedly injured by the door as alleged in her Complaint, the door was operated with a closer manufactured by the Additional Defendant, Rixson.
      27. The Plaintiffs have alleged that an improper closer caused the injury to the Plaintiff, Rosemarie A. French, and that the closer was responsible for rapidly closing the door upon the Plaintiff Rosemarie A. French.
      28. The Defendant believes and therefore avers that the Additional Defendant, Rixson, is solely responsible for the Plaintiffs injuries; therefore it further avers that said Additional Defendant, Rixson, is alone liable for the Plaintiffs [sic] cause of action declared upon by them.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    547 A.2d 415
    William SPARKES, Gary Francione, Cynthia Loeffel, Sidney Kine, John Doe, and Richard Roe v. Spencer WRIGHT, III, Alfred Bachman, J. Gordon McIlvaine, and Those Acting with them, Being the Officers of the Pennsylvania Society for the Prevention of Cruelty to Animals. Appeal of Spencer WRIGHT, III and Erik Hendricks.
    Superior Court of Pennsylvania.
    Argued June 7, 1988.
    Filed Sept. 9, 1988.

      Stephen W. Miller, Philadelphia, for appellants.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from an order of the Court of Common Pleas of Philadelphia County, granting appellees a permanent injunction. Appellants are the incumbent management of the Society for the Prevention of Cruelty to Animals (the Society), a Pennsylvania nonprofit corporation. Appellees are part of a dissident faction of Society members.

This action commenced when appellees filed a complaint in equity and motion seeking to enjoin the holding of a special meeting of the Society. The meeting, which was to be held on December 4, 1987, had been called by the Board of the Society for the purpose of amending the Society’s bylaws to permit voting by proxy. Notice of the special meeting was sent by mail to the members. A letter from the Society’s president accompanied eighty percent (80%) of the notices, and urged the members to attend the special meeting or, if they could not attend, to sign and return an enclosed ballot as a vote in favor of the proposed bylaw amendment. Seven hundred forty-one (741) ballots were signed and returned, of which seven hundred twenty-seven (727) were in favor of the amendment.

A hearing on appellees’ motion for injunction was held on December 4, 1987, four hours before the scheduled special meeting. Judge Diaz of the Philadelphia Court of Common Pleas ordered that the voting by ballot be stayed pending a hearing on the preliminary injunction.

The special meeting was then held on December 4, 1987 as scheduled. A quorum was present and the members present voted by division on the proposed amendment to the bylaws; in accordance with Judge Diaz’ order, no ballots were counted. The results of the vote were thirty-four (34) members in favor of the proposed amendment, and eighteen (18) opposed.

Subsequent to the holding of the special meeting, on December 9 and 10, 1987, Judge DiBona of the Philadelphia common pleas court held a hearing on the appellees’ motion for injunction. Appellees claimed that the ballots which were mailed to the Society members were in fact “proxies” and could not be counted. Also before Judge DiBona at this hearing was appellees’ motion to hold the Society’s officers in contempt of Judge Diaz’ order of December 4, 1987, on the basis that his order had enjoined the special meeting from taking place.

On the latter motion, Judge DiBona informed the parties that Judge Diaz had not intended to preclude the holding of the special meeting, but only to stay the counting of the ballots submitted by mail. Appellees then filed a motion for clarification of Judge Diaz’ order. On January 14,1988, Judge Diaz denied appellees’ order for clarification, and stated that the December 4, 1987 order clearly enjoined voting by ballot only and no other activity.

On December 30, 1987, Judge DiBona permanently enjoined appellants from counting or otherwise considering the ballots mailed in conjunction with the December 4, 1987 meeting, declared a nullity the outcome of the vote on the proposed by-laws amendment, and declared that any further actions taken by the Board of Directors of the Society regarding the amendment of the by-laws should be in accordance with the requirements of the Pennsylvania Corporation Not-for-Profit Code. 15 Pa.C.S.A. § 7101 et seq. Judge DiBona cited section 7759(a) of the Code in support of his decision, holding that this statutory provision required that voting be in person. He concluded that appellants could amend the by-laws of the Society to permit proxy voting only by a properly noticed and convened special meeting of the members, and by obtaining a majority of the votes of the members present. Appellants filed a timely appeal of the December 30, 1987 order of Judge DiBona.

On appeal from an order granting permanent injunctive relief, the standard of review is whether the trial court, in entering the final decree, abused its discretion or committed an error of law. Neshaminy Constructors v. Philadelphia, Pennsylvania Bldg, and Construction Trades Council, 303 Pa.Super. 420, 449 A.2d 1389 (1982). The test is not whether there are any reasonable grounds for the action of the court below, as is the case in the review of preliminary injunctive relief, but is rather an abuse of discretion standard. Id., 303 Pa.Superior Ct. at 423, 449 A.2d at 1390.

We find no abuse of discretion or error of law in the trial court’s disposition of this case. We therefore affirm the lower court’s order.

Appellants have contended on appeal that mail balloting of the type utilized in connection with the special corporate meeting of December 4, 1987, is expressly permitted under the provisions of 15 Pa.C.S.A. § 7758(b). We do not agree that section 7758(b) is the dispositive statutory provision. At issue in this case is whether the members of a not-for-profit corporation may cast their votes by mail ballot for or against a proposed amendment to the corporate bylaws to permit proxy voting. Thus stated, the issue is governed squarely by the provisions of section 7504 of the Corporation Not-for-Profit Code, 15 Pa.C.S.A. § 7504. That statute provides in relevant part:

§ 7504. Adoption and contents of bylaws

(a) General rule. — The members shall have the power to adopt, amend and repeal the bylaws of a nonprofit corporation, but except as provided in subsection (b) of this section the authority to adopt, amend and repeal bylaws may be expressly vested by the bylaws in the board of directors or other body, subject to the power of the members to change such action. Unless the bylaws otherwise provide, the powers hereby conferred shall be exercised by a majority vote of the members in office of the board of directors or other body, or by the vote of members entitled to cast at least a majority of the votes which all members present are entitled to cast thereon, as the case may be, at any regular or special meeting duly convened after notice to the members, directors or members of such other body of that purpose.
(b) Exception. — Except as provided in section 7320(a) of this title (relating to organization meeting), the board of directors or other body shall not have the authority to adopt a bylaw on any subject which is committed exclusively to the members by any of the following provisions of this article:
(13) Section 7759(a) (relating to voting and other action by proxy).

15 Pa.C.S.A. § 7504 (emphasis added).

As the express words of the statute make clear, section 7504 unequivocally provides that the adoption or amendment of a bylaw on the subject of proxy voting must be accomplished by a vote of members entitled to cast at least a majority of the votes which all members present at a duly noticed regular or special meeting are entitled to cast. Thus, there appears to be a clear legislative intent to require in person voting on any issue relating to bylaws amendment.

Appellants assert that section 7709 of the Corporation Not-for-Profit Code, 15 Pa.C.S.A. § 7709 indicates a legislative intent to provide a similar equivalent presence by mail balloting. However, we note no provision in that statute for presence in person at a corporate meeting to be accomplished by mail ballot of the type utilized in this case. Section 7709 specifically provides:

§ 7709. Use of conference telephone and similar equipment
One or more persons may participate in a meeting of the board, or of another body, or of the members by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this section shall constitute presence in person at such meeting.

15 Pa.C.S.A. § 7709.

Clearly, the provisions of § 7709 contemplate a means of communication in which all persons involved in the meeting can “hear each other” in order to constitute presence in person. Undoubtedly, ballots submitted by mail do not provide this type of communication.

We do not accept appellant’s argument that section 7758(b) of the Corporation Not-for-Profit Code is controlling. Section 7758, supra note 1, provides generally for the voting procedures to be utilized by a nonprofit corporation. As appellants have pointed out, section 7758 is entitled “Voting Rights of Members.” The subparagraphs within section 7758 provide for voting procedures, 15 Pa.C.S.A. § 7758(b), cumulative voting, id. § 7758(c), sale of votes, id. § 7758(d), and voting lists, id. § 7758(e). Section 7758 also provides the general rule that “[u]nless otherwise provided in a bylaw adopted by the members every member of a nonprofit corporation shall be entitled to one vote.” § 7758(a). The language upon which appellants rely— “[t]he manner of voting may be by ballot, mail, or any reasonable means provided in a bylaw adopted by the members” — is located within subparagraph (b) of section 7758.

Section 7504, on the other hand, is a more specific statute, outlining the procedures to be followed in the particular case of the adoption or amendment of a corporate bylaw. In construing a statute, the Superior Court must do so in a way which will give effect to all its provisions. 1 Pa.C.S.A. § 1921(a); Cervato v. Holy Redeemer Hospital, 342 Pa.Super. 551, 493 A.2d 728 (1985). In addition,

[w]henever a general provision in a statute shall be in a conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision____

1 Pa.C.S.A. § 1933.

It would appear to be the intent of the legislature, in the situation involving a bylaws amendment, to require that voting be accomplished in person and not by mail because of the importance to the corporate entity of a change in its bylaws or governing provisions. Thus, while mail balloting is authorized by statute in general, 15 Pa.C.S.A. § 7758(b), in the specific case of bylaws amendment or adoption, it is not permitted. 15 Pa.C.S.A. § 7504.

Appellants’ last argument is that the results of the voting at the December 4, 1987 special meeting are valid because the meeting was specifically not enjoined from taking place, it was properly noticed and convened, and it was properly conducted. Thus, appellants argue, the lower court had no grounds upon which to declare the special meeting a nullity. We disagree.

As we have indicated above, the voting results of the December 4, 1987 meeting are not valid because a vote on an amendment of the bylaws to provide for proxy voting must occur in person at a meeting of the members. See id. Balloting by mail is not sufficient. It follows, therefore, that the special meeting of December 4, 1987 was not, in fact, properly noticed and convened. Because of the distribution of mail ballots to the members, the impression was given that personal attendance at the December 4, 1987 meeting was not necessary in order to cast a vote on the bylaws amendment. Therefore, it is likely that many members did not attend who otherwise would háve to vote on the proxy voting issue. We agree with the lower court that because of the misleading nature of the notice and the confusion generated by the distribution of the invalid mail ballots that the meeting of December 4, 1987 was properly declared a nullity. As the trial judge concluded, if the appellants wish to amend the bylaws to allow for proxy voting, they can do so only by properly convening a special meeting of the members and obtaining a majority of the votes of the members present in accordance with section 7504, supra.

Order AFFIRMED.

      . Section 7759 provides in relevant part:
      (a) General rule. — Voting by members of a nonprofit corporation shall be only in person unless a bylaw adopted by the members provides for voting by proxy. The presence of a vote or other action at a meeting of members, or the expression of consent or dissent to corporate action in writing, by a proxy of a member pursuant to such a bylaw shall constitute the presence of, or vote or action by, or written consent or dissent of such member for the purposes of this article.
      15 Pa.C.S.A. § 7759(a).

      . § 7758. Voting rights of members

      (b) Procedures. — If a bylaw adopted by the members provides a fair and reasonable procedure for the nomination of candidates for any office, only candidates who have been duly nominated in accordance therewith shall be eligible for election. The manner of voting may be by ballot, mail, or any reasonable means provided in a bylaw adopted by the members. Unless otherwise provided in such a bylaw, in elections for directors, voting shall be by ballot, and the candidates receiving the highest number of votes from each class or group or classes, if any, entitled to elect directors separately up to the number of directors to be elected by such class or group of classes shall be elected.
      15 Pa.C.S.A. § 7758(b) (emphasis added).

      . Our conclusion here disposes of appellant’s second argument that physical presence at the meeting was not required of those members who voted by mail on the proposed bylaws amendment.


author: CIRILLO, President Judge: OLSZEWSKI, Judge,

text:
    547 A.2d 419
    COMMONWEALTH of Pennsylvania v. Inocencio MUNIZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 18, 1988.
    Filed Sept. 8, 1988.

      Richard F. Maffett, Jr., Harrisburg, for appellant.
    Merle L. Ebert, Jr., Carlisle, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Cumberland County following Inocencio Muniz’s conviction for driving under the influence of alcohol. We reverse.

While on routine patrol in the early morning hours of November 30,1986, Officer David Spotts of the Upper Allen Township Police Department observed a vehicle positioned on the northbound berm of U.S. Route 15. The vehicle was parked with its engine running, and the driver had activated its emergency flashers. Believing it to be a disabled vehicle, Officer Spotts stopped to offer assistance.

Officer Spott’s investigation revealed two individuals in the front seat of the vehicle, the driver being later identified as Inocencio Muniz. When the patrolman asked if he could be of assistance, Muniz replied that he had merely stopped to urinate. At that point Officer Spotts detected a strong odor of alcohol emanating from Muniz’s breath. He also observed that Muniz’s eyes were glazed and bloodshot, his face appeared flushed, and he exhibited a rather poor command of his coordination skills. Officer Spotts then directed Muniz and his passenger to remain along the roadside until he was in a condition to operate his vehicle safely. Muniz readily acknowledged this request, and assured the officer that he would remain along the berm until he could drive safely.

As Officer Spotts was returning to his cruiser, he heard Muniz’s vehicle start to pull away from the berm of the road and continue along Route 15. The patrolman quickly got back into his cruiser and pursued the errant motorist approximately one-half mile down the road where he activated his warning lights and pulled Muniz over. The officer then requested Muniz’s license and registration cards. Muniz fumbled through his wallet, dropping several cards, and eventually gave the police officer his Social Security card and his U.S. Department of Agriculture farm labor card. After a second request, Muniz produced the proper identification. Officer Spotts then asked Muniz to step out of his automobile to perform several field sobriety tests.

Muniz was administered three commonly utilized field sobriety tests: the horizontal gaze nystagmus test, the “walk and turn” test, and finally, the “one leg stand” test. Muniz failed each of these tests. During the field sobriety tests, Muniz readily admitted that he had been drinking, that he was drunk, and that he could not perform the various tasks required because he was too inebriated. Muniz was then arrested and transported to the West Shore facility of the Cumberland County Central Booking Center for processing. During the course of the processing at the Booking Center, Lisa Deyo, a caseworker at the center explained the Implied Consent Law, 75 Pa.C.S. § 1547. Muniz nevertheless refused to submit to an Intoxilyzer 5000 breath test. As standard operating procedure at the Booking Center, Muniz was videotaped during his processing and later issued his Miranda warnings.

On May 20, 1987, Muniz was tried at a bench trial before the Honorable George Hoffer in the Court of Common Pleas of Cumberland County and convicted of driving while under the influence of alcohol, 75 Pa.C.S. § 3731(a)(1). Post-trial motions were filed and denied by the court. Having been previously convicted of driving under the influence in 1985, Muniz was then sentenced to pay the costs of prosecution, a $310.00 fine, and to undergo mandatory imprisonment in the Cumberland County prison for a period of not less than forty-five days nor more than twenty-three months. This appeal followed.

Muniz advances the following three issues for our review: (1) whether the trial court erred by refusing to suppress videotaped statements made by him prior to being advised of his constitutional rights; (2) whether trial counsel was ineffective for failing to object to or challenge his defective jury trial waiver colloquy; and (3) whether trial counsel was ineffective for failing to properly object to the admission of evidence concerning the horizontal gaze nystagmus field sobriety tests.

Muniz first claims that the trial court erred in failing to suppress the statements appearing on the videotaped portion of his processing at the Booking Center. He maintains that the videotape reflects that, prior to being advised of his constitutional rights, he was asked a series of questions including his address, height, weight, color of eyes, date of birth, age, and the date of his sixth birthday. He also avers that, prior to his Miranda warnings, he was informed of the Implied Consent Law, and after making several inquiries about its content, acknowledged that he understood it. He thereafter informed the Booking Center authorities that he had recently finished serving a license suspension and did not want it suspended again. All of these communications to the police, he alleges, were testimonial in nature, and thus protected by his constitutional right against self-incrimination.

The fifth amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution protect each Pennsylvania citizen from being compelled to be a witness against oneself in any criminal case. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court proclaimed that this constitutional guarantee “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature____” 384 U.S. at 761, 86 S.Ct. at 1830. Likewise, “Pennsylvania appellate courts have held that Article I, Section 9 of the Pennsylvania Constitution offers a protection against self-incrimination identical to that provided by the Fifth Amendment.” Commonwealth v. Conway, 368 Pa.Super. 488, 498, 534 A.2d 541, 546 (1987).

To ensure that a suspect’s constitutionally guaranteed right against self-incrimination is not abridged by the actions of overzealous law enforcement officials, the Supreme Court has directed that, prior to custodial interrogation, a suspect must be informed that “he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). However, Miranda warnings need be given only when one is actually subjected to custodial interrogation. Id. at 444, 86 S.Ct. at 1612. “In Pennsylvania, ‘custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest ... Rather, the test of custodial interrogation is whether the individual believed his freedom of action is being restricted.’ ” Commonwealth v. Bruder, 365 Pa.Super. 106, 111, 528 A.2d 1385, 1387 (1987) (citations omitted). In the instant case, the record undeniably reflects that Muniz was in custody for purposes of Miranda when Officer Spotts arrested him after failing the three field sobriety tests. Accordingly, any testimonial or communicative statements elicited from Muniz following his arrest and before he received his Miranda warnings should have been suppressed for trial purposes unless he effectuated a voluntary, knowing, and intelligent waiver of his rights.

Notwithstanding the above-referenced rule, not all aspects of a roadside custodial stop, and subsequent administration of field sobriety test, will be considered as testimonial or communicative and thus subject to suppression where Miranda warnings were not administered. In Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980), we held that:

Requiring a driver to perform physical tests or to take a breath analysis test does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial, and therefore, no Miranda warnings are required.

280 Pa.Super. at 29, 421 A.2d at 387. Consequently, when Officer Spotts asked Muniz to submit to a field sobriety test, and later perform these tests before the videotape camera, no Miranda warnings were required. Commonwealth v. Romesburg, 353 Pa.Super. 215, 509 A.2d 413 (1986). It is only when the physical nature of the tests begins to yield testimonial and communicative statements that the protections afforded by Miranda are invoked. Here, it is evident that the physical nature of Muniz’s tests began to take on the attributes of testimonial statements when, prior to the issuance of his Miranda warnings, he was asked a variety of personal questions, to which he readily responded. During this time, he also made several inquiries concerning the import of the Implied Consent Law, and commented upon his state of inebriation and the probable legal implications of his actions. These verbalizations clearly fall within the protections afforded by the fifth amendment. Commonwealth v. Waggoner, 373 Pa.Super. 23, 540 A.2d 280 (1988).

In Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987), we were confronted with a factual scenario wherein the appellant, Thomas Bruder, was stopped by a patrolman after the officer witnessed him pass through a red light. Upon observing the classic indicia of intoxication, the officer asked the suspect to walk a straight line and recite the alphabet. Miranda warnings had not been issued before the officer’s request. The results of these tests were admitted into evidence at Bruder’s trial. On appeal, Bruder argued that the recitation of the alphabet was communicative in nature, and that the results of this test should have been suppressed. We agreed and stated that:

Although requiring Bruder to walk in a straight line was a physical test which need not have been preceded by Miranda warnings, we cannot readily reach the same conclusion regarding Bruder’s recitation of the alphabet. Whereas the constitutional protection against self-incrimination which Miranda was designed to protect does not encompass physical evidence, it does refer to testimonial evidence____ We view the recitation of the alphabet as essentially communicative in nature. Therefore, because the recitation was elicited before Bruder received his Miranda warnings, it should have been excluded as evidence.

365 Pa.Super. at 113-114, 528 A.2d at 1388. Similarly, in Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987), we further expounded upon the “Bruder analysis” and determined that the trial court properly suppressed the audio portion of a videotape that contained the appellant, James Conway, performing field sobriety tests. Following his arrest for driving under the influence of alcohol, Conway invoked his Miranda rights during a videotaped conversation with the authorities. Thereafter, he was filmed performing three sobriety tests. During these tests Conway conversed with the officer, often requesting further clarification of his instructions. As part of these tests, Conway was also compelled to balance himself on one leg and count from 1,001 to 1,030. He was also questioned as to the amount and type of alcohol that he consumed. Prior to trial, Conway moved to suppress various portions of the videotape, arguing that it violated his privilege against self-incrimination. The trial court granted the suppression motion and the Commonwealth appealed, claiming that the suppressed evidence was neither testimonial nor compelled, and therefore not protected by the privilege against self-incrimination. Finding to the contrary, Judge Montemuro opined:

[Mr. Conway] was required to give more than physical evidence when he demonstrated his physical coordination on the sobriety tests. The test procedure was structured so that [Mr. Conway] was compelled to reveal his thought processes by asking for clarification of some of the officer’s instructions, and his statements in response thereto manifest his confusion. Because confusion is arguably a sign of intoxication, [Mr. Conway] was forced to incriminate himself by “communicating” his confusion while performing the tests____ That [Mr. Conway’s] statements are communicative cannot be questioned in light of our conclusion [in Commonwealth v. Bruder ] that Mr. Bruder’s recitation of the alphabet was communicative. Mr. Bruder was told by the police exactly what to say while the content of [Mr. Conway’s] statements was more within his volitional control. By seeking clarification of the police officer’s instructions, [Mr. Conway] expressed his thought processes far more than did Mr. Bruder in his recitation. There is a greater communicative or testimonial aspect in [Mr. Conway’s] statements than in Mr. Bruder’s recitation.

368 Pa.Super. at 498-500, 534 A.2d at 546-47.

As in Conway, we conclude that Mr. Muniz was subjected to questioning that elicited information revealing his thought processes rather than statistical information that is commonly committed to rote memorization. Our in-chambers review of Muniz’s videotape discloses the commencement of proceedings at the Booking Center at 3:54 a.m. At 3:57 a.m., Jerry Hosterman, a processing officer, asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of Muniz’s sixth birthday. When Muniz proved unable to calculate the date of his sixth birthday, Officer Hosterman administered the same three tests that Muniz performed for Officer Spotts alongside Route 15. During the entire course of these tests, Muniz attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform. At approximately 4:18 a.m., Lisa Deyo, another worker at the center, read the Implied Consent Law to Muniz. After questioning Deyo in detail about its legal implications, Muniz declined to submit to the Intoxilyzer 5000 breath test. Afterwards, at 4:29 a.m., Muniz was issued his Miranda warnings for the first time since his arrest.

Although questions surrounding a persons height, weight and age are ostensibly requested for record-keeping purposes only, such a purpose cannot be inferred from the Booking Center’s question requiring Muniz to calculate the date of his sixth birthday. Moreover, the questions posited by Muniz during his on-camera physical sobriety tests are precisely the sort of testimonial evidence that we expressly protected in Conway. It is also critical to note that none of Muniz’s utterances were spontaneous, voluntary verbalizations. Rather, they were clearly compelled by the questions and instructions presented to him during his detention at the Booking Center. Since the above-referenced responses and communications were elicited before Muniz received his Miranda warnings, they should have been excluded as evidence.

“In order to reverse on the basis of introduction of inadmissible evidence, we must find an abuse of discretion as well as a showing of actual prejudice resulting from the tainted evidence.” Bruder, 365 Pa.Super. at 114, 528 A.2d at 1388 (citations omitted). Here, Muniz’s videotaped responses were clearly prejudicial, and certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle. The absence of such evidence may very well have led to a different verdict. Accordingly, we conclude that Judge Hoffer abused his discretion in refusing to suppress the evidence, and consequently the case must be reversed and remanded for a new trial. Because of our disposition of Muniz’s first allegation of error, we need not address his remaining two claims.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

OLSZEWSKI, J., dissents with an opinion.

OLSZEWSKI, Judge,

dissenting:

While I agree wholeheartedly with Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987) and Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987), that Miranda warnings must be given prior to custodial interrogation, I must respectfully dissent. As this Court stated in Bruder: “In order to reverse on the basis of introduction of inadmissible evidence, we must find an abuse of discretion as well as a showing of actual prejudice resulting from the tainted evidence.” Bruder, 365 Pa.Super. at 114, 528 A.2d at 1388. Instantly, I would find that the only inadmissible evidence was the police officer’s request that appellant calculate the date of his sixth birthday and appellant’s response thereto. Thus, I would find that appellant was not prejudiced by the introduction of inadmissible evidence since this was a non-jury trial and the trial judge was presented with enough evidence to convict appellant even without the tainted evidence.

Accordingly, I would affirm the judgment of sentence.


author: TAMILIA, Judge:

text:
    547 A.2d 424
    Charles SEGER, Appellant, v. Susan R. SEGER.
    Superior Court of Pennsylvania.
    Submitted July 11, 1988.
    Filed Sept. 8, 1988.

      David J. Flowers, Indiana, for appellant.
    Wayne A. Kablack, Indiana, for appellee.
    Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellant and appellee were married on September 3, 1977. Prior to the marriage, appellee had been living with appellant for two years when she informed appellant she was pregnant with his child. The child, Jessica Seger, was born on January 16, 1978, with appellant being listed as the natural father on the birth records. When Jessica was approximately four years old, appellee told appellant that Jessica was not his daughter but this contention was not confirmed at that time. Appellant raised and supported Jessica until appellee moved to Florida in November, 1986, taking Jessica with her. Appellant filed a complaint for custody with a hearing on said complaint being held on February 27, 1987, at which time the court heard testimony regarding appellant’s status to the child. Temporary custody was awarded to appellant with the court ordering the parties and Jessica to undergo blood tests to determine conclusively whether or not appellant was the child’s father. Upon receiving the results of the tests which determined appellant was not Jessica’s biological father, the court entered an Order on June 29, 1987 granting custody to appellee with “liberal visitation rights to be agreed upon by the parties” to appellant even though the court found he had no legal right to visit the child. The court granted the visitation because it found appellant and the child had “great affection” for each other. The custody and visitation Order proved to be very unworkable, obviously due to the lack of specificity as to how the parties should schedule visitation. The result was that appellant had no visits with Jessica from the time of the Order until January 1988 when appellant filed his petition for contempt against appellee for failure to comply with the visitation Order. Appellee apparently thwarted all efforts of appellant to visit with the child and her attitude toward complying with the custody and visitation Order is curtly stated in her brief where, referring to the grant of liberal visitation rights to be agreed upon by the parties, she states, “What the Court meant by this was that Charles Seger would have the right to visit with the child when the mother decided it was appropriate. The Court did not order any specific visitation rights for Charles Seger.” Appellee’s brief at p. 5.

A hearing on the contempt petition was held on March 7, 1988 with appellant, his counsel and appellee’s counsel appearing. Following an in-chambers discussion with both attorneys, and without taking any testimony, the Court vacated its June 29, 1987 Order which awarded liberal visitation to appellant and entered a new Order finding appellant “has no legal standing to visit with the child in view of the fact that he is not the biological father of said child.” Appellant appeals from this Order.

Before we address appellant’s issues, we will discuss appellee’s contention that no issues have been properly preserved for our review. Appellee claims appellant was required to file exceptions to the court’s Order or raise the issues he raises on appeal to the trial court first, otherwise, he waives those issues. Appellee’s argument is wrong; the concept of waiver is inappropriate in a child custody/visitation case. In re Custody of Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980). The purpose of a custody hearing is to determine the best interests of the child. We cannot allow the procedural aspects of custody matters to take precedence over the welfare of the child, therefore, a custody Order is a final, appealable Order, reviewable by this Court without any intervening procedures, such as exceptions, being necessary. Id. The scope of review of an appellate court in a custody case is of the broadest type. It is limited only to the extent that an appellate court may not nullify the fact finding function of the hearing judge. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). Thus, appellant’s appeal to this Court is entirely proper.

The first issue raised by appellant is whether the trial court had the authority to modify the June 29, 1987 custody/visitation Order without a petition for modification and testimony supporting “changed circumstances.” In a recent decision by this Court, we stated the appropriate way for a custody/visitation Order to be modified is through a petition for modification. Steele v. Steele, 376 Pa.Super. 174, 545 A.2d 376 (1988). A trial court cannot permanently modify a visitation Order without the petition to modify being submitted by one of the parties. Id. Thus, on that basis alone, the trial court Order of March 8, 1988 must be vacated and the June 29, 1987 Order reinstated until a new Order is entered consistent with our determination of appellant’s second issue.

Appellant next alleges trial court error in denying him partial custody and/or visitation rights, notwithstanding the fact he is not the child’s biological father. The reasoning of the court was as follows:

The Court prevailed on the attorneys for both sides to permit the visitation even though Charles Seger had no legal right to visit with the child because of the past relationship of the child with him (the child believing even to this date that Charles Seger was her biological father).
The Court hereby vacates its Order of June 29 awarding Charles Seger liberal visitation rights due to the fact that he has no legal standing to visit with the child Jessica, it having been shown by the blood test that he is not the biological father of the said child. The Court’s Order of June 29 was an effort by the Court to preserve the relationship which has no legal standing. Therefore, said Order is hereby vacated and jurisdiction of this case is relinquished in view of the fact that the child and the biological mother of said child presently reside in Florida.

(Slip Op., Earley, P.J., 3/8/88, p. 2-3.)

This is the reverse of the usual case where a mother is attempting to establish paternity to obtain child support. In those situations we have not allowed the putative father to show through blood tests that he is not the natural father if paternity has otherwise been conclusively established in accordance with the law. The rationale used in such cases is applicable to this case. In Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987), the father married the mother subsequent to the child’s birth although the father was named on the birth certificate and the child took his name. The parents had another child born during the marriage and all four lived as a family. Only upon separation five years after marriage did the father question paternity. He was successful in obtaining an Order relieving him of support (unappealed from), but in petitioning to have his name removed from the child’s birth certificate, we found the father could not present evidence from the blood tests since, according to statute, 48 P.S. § 167, he was the father of the child.

The appellant and appellee were married at the time of Jessica’s birth; therefore, the presumption is she is appellant’s daughter. Under the facts of this case, appellant could not introduce the blood tests to disprove paternity and neither should appellee be able to do so since the law presumes appellant is the child’s father. It has been stated in numerous cases that a father is estopped from denying paternity by long delay in raising the issue at all (assuming he was aware of non-paternity) and by his acceptance and support of the child during that time. See Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 367, 369 A.2d 416 (1979); Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962). If a father’s conduct works an estoppel on his assertion of non-paternity in a support matter, there is no principle in law which would prevent the same application to a case, such as here, where the mother informs the father he is responsible for the pregnancy, marries him, assigns paternity to him on the birth certificate, permits him to support the child and assume the parental duties for years, and only upon separation repudiates his paternity. Under these circumstances, permitting a blood test was improper and denying visitation rights is impermissible. Also see Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984).

We also believe the trial court erred in this decision since a biological relationship between the child and the adult seeking custody and/or visitation is not the only basis on which we have granted such petitions. In fact, we have approved visitation between children and adults who have had a less substantial relationship than appellant and Jessica have. In Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987), the biological mother and an unrelated third party were involved in a custody dispute where the mother and her three children had lived with the third party, Dr. Marie Theresa Burke, for over two years. Although the procedural and factual history is extensive, suffice it to say we allowed Dr. Burke visitation with the childen despite the fact she is a non-parent, totally unrelated to the children. In light of her interest in and support of the children and the fact that “bonding” had occurred between them, we found a reasonable grant of visitation was appropriate. The ultimate basis of our decision was, as it always must be, the best interests of the children. Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414 (1987). Therefore, circumstances sometimes require a non-parent to have custody and/or visitation with a child because to abruptly cut off and destroy the relationship would be detrimental to the child’s welfare.

We would find this to be true in this case even if we had not found that paternity was unassailable. Appellant has raised Jessica as his own daughter for the entire ten years of her life. For at least the first four years, he had no knowledge of the fact she was not his daughter. This situation is distinguishable from, but has many similarities to, the typical parent-stepparent case where the stepparent, knowing the child is not his biologically, becomes a focal point of the child’s life at some stage, usually after the child is an infant, and after a break-up of the marriage seeks custody/visitation rights. Because we recognize a stepparent may have established a loving relationship with a child, we have refused to destroy that relationship by denying custody and/or visitation even though the marriage between the natural parent and stepparent may have ended. It is not a requirement of such marital break-ups that the relationship between the child and stepparent immediately ceases with total disregard for the wishes of the stepparent and the welfare of the child.

The first comprehensive Opinion dealing with this issue was rendered by this Court in Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977), which remains the authority on stepparent rights concerning child custody/visitation.

It is our belief that a stepfather may not be denied the right to visit his stepchildren merely because of his lack of a blood relationship to them. Clearly, a stepfather and his young stepchildren who live in a family environment may develop deep and lasting mutual bonds of affection. Courts must acknowledge the fact that a stepfather (or stepmother) may be the only parent that the child has truly known and loved during its minority. A stepparent may be as devoted and concerned about the welfare of a stepchild as a natural parent would be. Rejection of visitation privileges cannot be grounded in the mere status as a stepparent.
Pennsylvania courts recognize that a person may “put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. This status, [known as ‘in loco parentis’] embodies two ideas; first, the assumption of a parental status, and second, the discharge of parental duties.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968).
A stepfather who lives with his spouse and her natural children may assume the status ‘in loco parentis’. We may expect that a bond will develop between stepparent and stepchild; we, therefore, should protect that relationship by conferring rights of visitation.

Id., 250 Pa.Superior Ct. at 172, 378 A.2d at 881-882.

We must decide the rights of the parties in relation to the best interest and welfare of the child. Appellant, although he may not be the natural father, has assumed the role of father, first by belief, then, after knowledge he was not the father, by intent and interaction with Jessica. He raised her as a daughter and she believes he is her father. Certainly, it is in her best interest that their relationship not be abruptly cut off by the fact they have no biological relationship to each other. Therefore, we find partial custody and visitation to be appropriate.

We reverse and remand to the trial court for entry of an Order consistent with this Memorandum.

Jurisdiction relinquished.

MONTGOMERY, J., concurs in the result.

      . In Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), the Supreme Court eliminated the requirement that a petition for modification of an existing court Order must allege a substantial change of circumstance. The requirement established by the Supreme Court is that the petition must simply allege it is in the best interest of the child to warrant review. The requirement that a petition for modification be filed in order for the court to review the case for permanent modification of a custody Order, and to enter a final Order, remains intact.

      . § 167. Children; legitimacy; determination of paternity
      (b) For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
      (2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.


author: POPOVICH, Judge:

text:
    547 A.2d 428
    Marlene M. BATEMAN, Administratrix of the Estate of William J. Bateman, Jr., Appellant, v. MOTORISTS MUTUAL INSURANCE CO., Appellee.
    Superior Court of Pennsylvania.
    Submitted May 5, 1988.
    Filed Sept. 6, 1988.

      David M. McQuiston, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County affirming an arbitration award entered in favor of Motorists Mutual Insurance Company and against the appellant/Marlene M. Bateman, Administratrix of the Estate of William J. Bateman, Jr. We affirm in a case of first impression.

All relevant facts have been stipulated to by the parties and reveal that William J. Bateman, Jr., died as a result of injuries received in a two-car collision on Washington Pike in South Fayette Township on November 19, 1983.

An administratrix was named for the decedent’s estate. She initiated suit against the driver of the other vehicle involved in the accident (Ronald Lenhart) on negligence grounds, the owners of a tavern (Ronald and John Demsher, t/d/b/a “The Wheel”) premised upon the Dram Shop Act and the manufacturer of the vehicle (Ford Motor Company) on theories of strict liability and product liability. Thereafter, the administratrix reached a settlement with all three parties and discontinued the wrongful death and survival actions. Settlement consisted of payment of $30,000 by Ford Motor Company, $15,000 from Lenhart and $33,334 was received from the Demshers.

Consistent with the policy of insurance it had with the decedent, Motorists approved all settlements without prejudice to its rights and defenses under the policy limiting its “underinsured” motorist liability to $50,000.

Because the damages incurred were in excess of the total of all settlements ($78,334) and underinsurance coverage ($50,000), the administratrix filed a claim with the insurer to recoup the $50,000 of underinsurance coverage. Motorists refused. In accordance with the insurance policy, the matter was submitted to a three-member board of arbitrators who ruled, two to one, to deny the decedent’s estate payment of the monies claimed due. It concluded that the insurance policy, as written, required that the amounts secured by the administratrix through settlement negotiations were to be used as a set-off against the dollar figure provided for under the insurer’s limits of its liability coverage and not the dollar amount claimed due for damages by the estate. In other words, because the settlement figure ($78,334) exceeded the liability limitation to which the insurer was exposed ($50,000), this dispensed with the insurer having to pay the insured’s estate anything.

The estate’s contention that the settlement figure was to be set-off against the total amount of damages sought to be recovered vis-a-vis the insurer’s limits of liability, or, at the very most, only tortfeasor/Lenhart’s payment to the estate of $15,000 should be utilized as a set-off against the insurer’s limits of liability since the Demshers and Ford Motor Company did not qualify as operators of underinsured motor vehicles, proved to be unpersuasive. On appeal to Common Pleas Court, the award of the arbitrators was affirmed and judgment was directed to be entered by order of court in favor of Motorists. This appeal followed.

The first issue raised for our consideration is framed by the administratrix at page 8 of her brief and reads:

The arbitrators and the court below erred as a matter of law in applying the offset clause contained in Motorists’ policy against the limits of its liability for underinsured motorists coverage as opposed to the total amount of damages suffered by the Administratrix.

The “offset” clause appears in Part C of the policy of insurance and purports to limit the insurer’s liability for uninsured, and by extension reproduced at 31a of the record, underinsured motorist benefits. It reads in pertinent part:

The limit of liability shown in the Declaration for “each person” for Uninsuredf/Underinsured] Motorists Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for “each person”, the limit of liability shown in the Declaration for “each accident” for Uninsured[/Underinsured] Motorist Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident. This is the most we will pay regardless of the number of:
1. Covered persons;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.
Any amounts otherwise payable for damages under this coverage shall be reduced by all sums:
1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A; and
2. Paid because of the bodily injury under any of the following or similar law:
a. Worker’s Compensation Law; or
b. Disability Benefits Law.
Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A.

(Emphasis added)

It was the conclusion of two of the arbitrators (Gushard and McLean) below, affirmed by the Court of Common Pleas, that the “offset” clause verbiage (“any amounts otherwise payable for damages under this coverage shall be reduced____”) applied to the limit of liability of the policy of insurance. They so concluded on the strength of Votedian v. General Accident Fire and Life Assurance Corp., 330 Pa.Super. 13, 478 A.2d 1324 (1984), and, more particularly, Sparler v. Fireman’s Insurance Co. of Newark, New Jersey, 360 Pa.Super. 597, 521 A.2d 433 (1987) (en banc) (Concurring Opinion by Popovich, J.). We find it only necessary to review our holding in Sparler, for the same is controlling on this aspect of the case.

In Sparler, the insured was involved in a vehicular accident in which he obtained $25,000 in settlement from a third-part tortfeasor. Because Sparler’s injuries were over $40,000, and his own underinsured motorist coverage policy of insurance stood at $15,000, he instituted suit against his own insurer (Fireman’s) to recover the underinsured motorist benefits contained in the Fireman’s policy. As is relevant herein, Sparler’s insurance provisions provided in Part 6B:

We will pay damages which a Covered Person is legally entitled to recover from the owner or operator of an (underinsured) motor vehicle because of bodily injury.
(a) Sustained by a Covered Person; and
(b) Caused by an accident.

Part 6D of the same policy read:

Any amounts payable under Part 6 shall be reduced by all sums
(a) paid because of bodily injury by or on behalf of someone who may be liable.

The trial court disallowed the insured recovery of the $15,000 underinsurance benefits on the basis of a general release, which supposedly excluded the insurer from further liability. On appeal, this Court found the general release did not encompass the insurer. Nonetheless, we upheld the trial court’s denial of underinsurance benefits on the basis that the underinsurance provisions of the policy of insurance precluded the insured recovery.

In particular, we wrote that:

... Sparler in fact was paid the sum of twenty-five thousand ($25,000.00) dollars by or on behalf of the third party tortfeasor. According to the provision contained in Subdivision D of the policy, the twenty-five thousand ($25,000.00) dollars received by Sparler by or on behalf of the third party tortfeasor must be set off against any amount payable by virtue of the “Uninsured (and Under-insured) Motorist” coverage provided in Part 6 of the policy. When the twenty-five thousand ($25,000.00) dollar recovery is set off against the fifteen thousand ($15,-000.00) dollars which Fireman’s agreed to pay to Sparler pursuant to Section 6, it becomes evident that Fireman’s has no further liability for underinsured motorist coverage.
We conclude, therefore, that Sparler’s claim for under-insured motorist coverage has been precluded ... (b) ecause Sparler’s third party recovery was in excess of and had to be set off against the underinsured motorist coverage provided by Fireman’s policy, the judgment entered in favor of Fireman’s was proper and must be affirmed.

360 Pa.Super. at 608, 521 A.2d at 438-39.

Premised upon language at bar in Part C of the policy of insurance, which is similar to that appearing in Part 6D of the policy under scrutiny in Sparler, we conclude that the arbitrators were correct in offsetting the settlement figure received by the insured ($73,334) against the limits of the insurer’s liability ($50,000). Therefore, since the former exceeds the latter, the administratrix was not entitled to recover anything from the insurer under the decedent’s policy of insurance.

Additionally, giving the language (“Any amounts otherwise payable for damages under this coverage”) its ordinary and common sense meaning (see Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981)), we have no reluctance in holding that the parties’ intention to the contract of insurance was that “damages” to be paid thereunder were those within the “coverage” of the policy of insurance. And, because the same were specifically limited on the Declaration Sheet of the policy not to exceed $50,000, the perimeters were set out clearly so that the total damages claimed incurred by an insured would not be the measuring rod against which exposure to liability by the insurer would be gauged. Any other reading of the clause in question would be re-writing the contract, a step which we need not take in the face of an otherwise clear and unambiguous agreement. See Standard Venetian Blind Co., supra.

In the second issue proffered by the administratrix, at page 13 of her brief, she alleges:

The arbitrators and lower court erred as a matter of law in applying the settlement amounts received by the Administratrix on behalf of Defendant Demsher for Dram Shop Act liability and Defendant Ford Motor Company for products liability to offset Motorists’ liability for underinsured motorist coverage.

In particular, it is the appellant’s contention that the language in Part C (“Limit of Liability”), allowing the amount otherwise payable for damages by an insurer subject to reduction by all sums paid “by or on behalf of persons or organizations who may be legally responsible” for the bodily injury sustained, should not be read to include non-motorist defendants, i.e., cases involving Dram Shop Act liability or products liability of third party tortfeasors.

There is a paucity of cases dealing specifically with the issue at hand. Nonetheless, we find direction from the case of Walls v. City of Pittsburgh, 292 Pa.Super. 18, 438 A.2d 698 (1981).

In Walls, the appellee/insured was injured as a result of the actions of an uninsured motorist. She filed a claim with her insurer to recover under her uninsured motorist insurance, while at the same time instituting suit against the City of Pittsburgh for the negligent maintenance of the roadway.

Ms. Walls received an arbitration award in her favor of $10,000, and she signed an agreement in which she promised to hold in trust, for the benefit of the insurer,

... any settlement ... recovered) against any organization legally responsible for causing the injury or death on account of which said payment is made(.)

292 Pa.Super. at 22, 436 A.2d at 700 (Emphasis in original).

Walls subsequently settled with the City of Pittsburgh for $50,000, and the insurer sought to intervene. The insurer claimed that since the City was “a person or organization legally responsible for causing the injury on account of which” the insurer had paid Walls, it was due the monies paid to her. The lower court disagreed. Before a panel of this Court, although remanding to allow the insurer to allege (as a condition precedent to recovery) that the sum the insured obtained from the insurer and from other persons legally responsible for the injury exceeded the insured's loss, we did make some statements relevant to the case instantly; to-wit:

The lower court’s conclusion that the words “any person or organization legally responsible for causing injury” include only the uninsured motorist is incorrect; accordingly, we expressly disapprove its holding.

292 Pa.Super at 23, 436 A.2d at 701 (Footnote omitted).

The contractual provision appearing in Part C, allowing the insurer recoupment of the monies paid to its insured, is the equivalent of the precept of “subrogation” which pervades the insurance field. In fact, in the “Conditions” section of the policy of insurance, reproduced at 15a-16a of the appellant’s brief, provisions for subrogation, indemnification and non-duplication of benefits are recited.

Consistent with the insurer’s right to credit payments as outlined above, we find that Walls and the unequivocal language outlined in Part C, regarding the reduction of amounts due from the insurer because “of persons or organizations who may be legally responsible” to the insured, are correct and we have no reservations in echoing the sentiments of the court below.

Specifically, we read the language under examination here to embrace the Demshers and Ford Motor Company, and any payments made by either to the insured, for each is now held to be a “person or organization,” respectively, who has admitted responsibility, at least in part, for the accident leading to Bateman’s death.

Thus, the insurer is allowed to offset the amount received by the administratix, upon behalf of the insured/decedent, from the Demshers and Ford Motor Company against the limits of liability.

Finding no fault with the actions of the court below, we will do the same and affirm the arbitrators’ award. Order is affirmed.

      . The Lenhart payment was the full amount of his automobile insurance policy limit, the Demshers’ payment was two-thirds of their policy limit, with the remaining one-third being paid to a passenger in the decedent’s vehicle. Ford Motor Company, being self-insured, did not exhaust any policy limits.

      . Provisions relating to “uninsured” motorist coverage are contained in Part C of the policy. (RR. 24a-24b) It was only when the policy was amended by endorsement did it then provide for “underinsured” motorist coverage by stating that "when the term uninsured motor vehicle is used in Part C, it shall also include underinsured motor vehicle____” (RR. 31a)

      . The parties have stipulated that the damages sustained by the decedent surpass the $128,334 mark, i.e., an amount in excess of the sums received in settlement plus the underinsured motorist liability limits of the policy which the administratrix has attempted to recover.


text:
    547 A.2d 751
    Mark A. ROSEMAN, Executor of the Estate of Hyman A. Roseman, Deceased, Appellant, v. HOSPITAL OF the UNIVERSITY OF PENNSYLVANIA, Dr. Richard A. Davis, and Abbott Laboratories. Mark A. ROSEMAN, Executor of the Estate of Hyman A. Roseman, Deceased, on Behalf of the Deceased and Further on Behalf of the Deceased’s Survivors, v. Dr. Richard A. DAVIS, Hospital of the University of Pennsylvania, Abbott Company and Abbott Laboratories. Appeal of ABBOTT LABORATORIES, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1988.
    Filed July 18, 1988.
    Reargument Denied Sept. 14, 1988.

      Lewis Kates, Philadelphia, for Roseman.
    Joseph H. Foster, Philadelphia, for Hosp. of University of Pennsylvania.
    Charles B. Burr, II, Philadelphia, for Dr. Richard Davis.
    Joseph G. Manta, Philadelphia, for Abbott Laboratories.
    Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
   CAVANAUGH, Judge:

In the consolidated appeals before this court the issue at Appeal No. 02077, Philadelphia, 1987, is whether the court below properly entered judgment of non pros in favor of the Hospital of The University of Pennsylvania (HUP) and Dr. Richard A. Davis, defendants below and against Mark A. Roseman, Executor of the Estate of Hyman A. Roseman, Deceased, the plaintiff below and appellee herein. With respect to the appeal at No. 02287 Philadelphia, 1987, we must initially determine whether the appeal should be quashed as from an interlocutory order.

Because of the complexity of the case, it is necessary to set forth the factual and procedural background. Hyman A. Roseman was injured in May, 1976, and was confined to the Hospital of the University of Pennsylvania. At the hospital he was under the care of Richard A. Davis, M.D., a neurosurgeon, who operated on Mr. Roseman. Allegedly, a contaminated saline solution, which was used in the operation, had been manufactured by defendant, Abbott Laboratories. As a result of the operation and use of the solution, Mr. Roseman suffered an infection in his brain. His condition deteriorated and he remained in a coma until he died on May 5, 1978.

In May, 1978, plaintiff, Hyman A. Roseman, filed a summons in a medical malpractice action against the Hospital of the University of Pennsylvania, Dr. Richard A. Davis, and Abbott Laboratories.

In June, 1978, The Hospital of the University of Pennsylvania issued a rule on the plaintiff to file a complaint, and a complaint was not filed until September 24, 1979. A number of witnesses were subsequently deposed.

On June 3, 1987 the court below by Lehrer, J. entered a judgment of non pros in favor of HUP and the other two defendants in the case, Dr. Richard A. Davis, and Abbott Laboratories. Shortly thereafter, the court below vacated the judgments of non pros and subsequently entered non pros as to HUP and Dr. Davis and refused to enter a non pros as to Abbott Laboratories. The decision to enter a judgment of non pros is within the sound discretion of the trial court and its decision may be set aside only if there is a manifest abuse of discretion. First Valley Bank v. Steinmann, 253 Pa.Super. 8, 384 A.2d 949 (1978); Nath v. St. Clair Memorial Hospital, 251 Pa.Super. 361, 380 A.2d 820 (1977). See also Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988).

In determining whether the court below abused its discretion in entering a judgment of non pros, three factors must be considered: (1) whether the plaintiff has shown a want of due diligence in failing to proceed with reasonable promptness; (2) whether there was any compelling reason for the delay; and (3) whether the delay caused some prejudice to the defendant. James Brothers Dumber Co. v. Union Banking and Trust Co. of DuBois, Pennsylvania, 432 Pa. 129, 247 A.2d 587 (1968); American Bank and Trust Company v. Ritter, Todd & Haayen, 274 Pa.Super. 285, 418 A.2d 408 (1980); Moore v. George Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983).

The action in the instant case was commenced in May, 1978. On September 11,1981 the court below granted the plaintiff an extension of time until December 31,1981 to file a certificate of readiness. The certificate was not filed until November 10, 1986 when the plaintiff attempted to file it, nunc pro tunc. On January 12, 1987 the court denied the plaintiffs petition to file the certificate of readiness nunc pro tunc.

On June 1, 1978, the defendant, HUP, served interrogatories upon the then counsel for the plaintiff seeking, inter alia, expert witness information. On June 20, 1979, HUP served supplemental expert interrogatories on the plaintiff. On October 12, 1979 HUP filed a Motion for Sanctions to Compel Answers to Interrogatories as the plaintiff had not answered them. On October 29, 1979 the administrator of the arbitration panel for Health Care entered an order compelling the plaintiff to answer the interrogatories and supplemental interrogatories of HUP. On October 31, 1979 the plaintiff served their answers to HUP’s interrogatories and supplemental interrogatories and in the plaintiff’s answers to the supplemental interrogatories the plaintiff stated that “once all discovery is concluded by all parties to this action and all facts are then known of record, plaintiff will then submit supplemental answers to defendant.” Counsel for HUP did not agree to this open ended extension and granted an extension of 60 days to gather the information needed to answer the interrogatories.

The plaintiff did not supply expert witness reports responsive to HUP’s interrogatories and supplemental interrogatories until January 21, 1987, eight and a half years after HUP requested expert witness information. While plaintiff’s present counsel did not become involved in the case until March, 1985, HUP furnished copies of the hospital records to prior counsel before 1980. In fact, the “Answer of Plaintiff to Defendant Hospital of the University of Pennsylvania’s Motion for Entry of Judgment of Non Pros” stated, inter alia,

m. This action was then commenced on May 12, 1978.
n. The pleadings and activities of plaintiff in this action have been constant, intense and fully in accord with the rules.
o. On March 12, 1985, new counsel for plaintiff entered his appearance.
p. New counsel then reviewed the extensive medical records covering plaintiffs decedent’s two year hospitalization and determined that the copies that had been made by and on behalf of the plaintiff were overlapping, incomplete and, to certain substantial extent, unintelligible.
q. Plaintiffs new counsel then made arrangements with Defendant HUP and its then counsel to have the original hospital records brought to Defendant HUP’s counsel’s offices.
r. These original records were then examined over a period of several months.
s. Plaintiff’s counsel then engaged experts and when their reports came in moved to file a Certificate of Readiness Non [sic] Pro Tunc and petitioned for this case to be assigned to an individual judge. (Emphasis added.) Plaintiff’s previous counsel was involved in reviewing the

hospital records before 1980, but the plaintiff did not produce the expert report of Dr. Shane dated September 13, 1985 and the expert report of Dr. Cundy dated October 20, 1986 until January 21, 1987 nor did he attempt to place the case on the trial list until November 10, 1986.

The law does not state with precision how long a delay by the plaintiff in proceeding with litigation amounts to the absence of due diligence. Manson v. First National Bank, 366 Pa. 211, 77 A.2d 399 (1951). A statute of limitations contains a built-in hour-glass, but not so the concept of the absence of due diligence. However, a delay in prosecution of a case equal to or longer than the applicable statute of limitations, has usually been found sufficient to warrant a judgment of non pros if the other requirements that there was no compelling reason for the delay, and the delay has prejudiced the other party, are present. Carter v. Amick, 246 Pa.Super. 530, 371 A.2d 961 (1977). We conclude that the plaintiff below did not act with due diligence.

The second requirement for entry of non pros, absence of a compelling reason for delay, is met. Although present counsel has only been involved in the case since 1985, prior counsel had some 7 years to proceed to trial and answer the interrogatories of HUP pertaining to expert witnesses and complete the taking of depositions. Moreover, present counsel’s protestations of contemporary diligence serves to point up prior counsel’s lack of diligence. A litigant is bound by his counsel’s stewardship and a failure of due diligence is not cured by belated substitution of counsel. The plaintiff had the records from HUP for many years and if he wanted additional information or if the records were not clear, he should not have let the years slip by without taking some action to correct the situation. The plaintiff admits that “HUP first requested Roseman to identify his expert witnesses and produce expert reports on June 6, 1978.” Appellant, Roseman’s, brief, page 8. The record does not support the plaintiff’s position that counsel for HUP agreed that the plaintiff should identify his expert witnesses and produce expert reports when discovery was completed. On the contrary, counsel for HUP objected to this procedure which the plaintiff wanted to follow.

Finally, we come to the element of prejudice. We agree with the court below that the delay has caused prejudice to HUP. As noted in Supplee v. Commonwealth of Pennsyl vania, Department of Transportation, 105 Pa.Cmwlth.Ct. 488, 493-4, 524 A.2d 1002, 1005 (1987):

A lengthy delay, such as the ten-year delay being addressed in this case, is presumptively prejudicial to all parties even without a specific showing of prejudice on the record. Shrum v. Pennsylvania Electric Company, 440 Pa. 383, 269 A.2d 502 (1970).

In the instant case, actual prejudice was shown to HUP. Under the complaint, alternative theories of recovery were set forth alleging that HUP was negligent pursuant to the Restatement of Torts (Second) § 328 D and was strictly liable pursuant to the provisions of Restatement of Torts (Second) § 402 A. It would be essential for HUP to know what the plaintiffs experts would testify to in order to prepare a defense. Without this information, the hospital would not know whether the plaintiff would be proceeding at trial on a theory of negligence or absolute liability. In our opinion, HUP has demonstrated that it has suffered prejudice which includes any substantial dimunition of the ability to present factual information at trial which has been caused by the plaintiffs delay. American Bank & Trust Company v. Ritter, Todd & Haayen, supra. Since all three factors to be considered in granting a judgment of non pros militate towards the appropriateness of the judgment of non pros, the court below did not manifestly abuse its discretion in granting/the motion and the entry of the judgment of non pros was most appropriate.

Judge Avellino denied a motion for sanctions filed by Dr. Davis concerning failure to answer expert interrogatories. The general rule is that it is improper for a trial judge to overrule an interlocutory order by another judge in the same case, in the absence of new evidence. Jaden Electric v. Wyoming Valley West School District, 342 Pa.Super. 587, 493 A.2d 746 (1985). However, Judge Avellino’s order related only to Dr. Davis and Judge Lehrer’s grant of judgment of non pros in favor of HUP did not overrule Judge Avellino’s order in any way. Judge Avellino’s order dealt only with the narrow issue of sanctions while the order of Judge Lehrer dealt with the broader question of entry of non pros for failure to proceed in a timely manner.

In our opinion, the matter was not prosecuted with due diligence as to HUP and there was no justification for the delay. Although the case started in arbitration and then had to be transferred to the Court of Common Pleas, and a number of expert witnesses had to be deposed, this does not justify delay of over 11 years in proceeding to trial, especially where the dockets reflect no activity for a period in excess of 2 years at one point in the proceedings. To hold otherwise would condone as duly diligent the management of litigation which, measured by any reasonable standard of efficiency, is tantamount to a de facto abandonment meriting dismissal. Accordingly, the judgment of non pros as to the Hospital of the University of Pennsylvania will be sustained. While the court below properly entered judgment of non pros as to HUP, it erred in entering such judgment as to Dr. Richard A. Davis.

A trial court may not sua sponte enter a judgment of non pros under Pa.R.C.P. 1037(c). Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983). See also Hoffman v. Hoffman, 350 Pa.Super. 280, 504 A.2d 356 (1986). Rule 1037(c) reads:

In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission. (Emphasis added).

In this case only the Hospital of the University of Pennsylvania moved for the entry of a judgment of non pros. The appellee, Dr. Richard Davis, argues that his counsel wrote to the Clerk of the Motions Court stating that it joined in the motion of HUP for entry of judgment of non pros. However, the record does not indicate that the clerk received such a letter nor does the joinder in the motion appear on the docket entries. This coattail approach does not constitute a motion for judgment of non pros. Accordingly, the court erred in entering a non suit as to Dr. Richard A. Davis.

Because this issue regarding the timeliness of the appellant’s response as to Dr. Davis had already been decided by a Common Pleas Court Judge of Philadelphia County, the second judge who reviewed that same record was bound by the resolution of that issue because no new evidence had been presented. Jaden Electric v. Wyoming Valley West School District, supra. As noted above, this order did not apply to HUP’s motion for non pros.

A motion to quash the appeal of Abbott Laboratories has been filed by Mark A. Roseman and we grant this motion. Generally, we recognize that an appeal will lie only from final orders, unless permitted by statute. Jay Dee Contractors v. National Mine Service Co., Inc., 335 Pa.Super. 39, 483 A.2d 943 (1984). In examining questions of finality, we must consider the practical ramifications of the order rather than the technical effects of the ruling. Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981); Newman v. Thom, 359 Pa.Super. 274, 518 A.2d 1231 (1986). Under these guidelines, there is no doubt that the appeal by Abbott is interlocutory and nonappealable because it denied Abbott Laboratories’ motion to non pros the case against it. Hence, the lawsuit is pending against Abbott.

According to Abbott, the appeal is interlocutory but appealable as of right because it is from an interlocutory order vacating, opening or striking a judgment. Pa.R.A.P. 311(a)(1). However, in this case, the order vacating the judgment was entered on June 29, 1987. If Abbott was appealing from that order, the appeal would have been quashed on the grounds that it was untimely filed. The record establishes that Abbott’s notice of appeal was filed on August 19, 1987. See Pa.R.A.P. 903. The appeal of Abbott Laboratories must be quashed.

The order appealed from at No. 02077 Philadelphia, 1987, is affirmed as to the Hospital of the University of Pennsylvania and reversed as to Dr. Richard A. Davis. The appeal at No. 02287, Philadelphia, 1987, is quashed.

      . The docket entries show no activity by the plaintiff of any nature from August 14, 1984 to November 10, 1986, a period of almost 28 months. This is hardly consistent with the plaintiffs allegations that his activities and pleadings have been constant and intense.

      . In Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987) there was a five year delay in pursuing a medical malpractice claim. We stated at 362 Pa.Super. 437, 524 A.2d 956:
      The delay here continued for a period of time far longer than the two-year statute of limitations governing appellant’s claims of negligence. Consequently, the court’s finding that appellant failed to act diligently is confirmed.

      . The plaintiffs brief on appeal at pages 7 and 8 lists the depositions which were taken. Most were taken in the years 1981, 1982 and 1983. Only one deposition was listed as being taken in 1984. Since the last deposition was taken about 2 years before the plaintiff even attempted to file his certificate of readiness nunc pro tunc, the taking of depositions is not a valid reason for delay in proceeding with the case.

      . In addition, we note that on February 11, 1987, Judge Bernard J. Avellino denied Dr. Davis’ motion for sanctions in the following order:
      AND NOW, to wit, this 11th day of February, 1987, Defendant's Doctor Richard A. Davis Motion for Sanctions for failure to answer Expert Interrogatories is denied as moot, it appearing in Plaintiffs answer thereto that Plaintiff filed Answers to Interrogatories.