author: WICKERSHAM, Judge:

text:
    507 A.2d 410
    Carmen DeFAZIO and Florence DeFazio, H/W, Appellants, v. Alexander LABE, M.D. and Zaslow, Portner, Cohen, Labe & Joshi, M.D.’s, a Professional Corporation and/or Partnership and Gad Guttmann, M.D., and Kalish, Kauffman, Guttmann & Puglisi, M.D.’s, a Professional Association, and/or Corporation and/or Partnership, Trading as and also known as Orthopedic Surgical Associates. Carmen DeFAZIO and Florence DeFazio v. Alexander LABE, M.D. and Zaslow, Portner, Cohen, Labe & Joshi, M.D.’s, a Professional Corporation and/or Partnership and Gad Guttmann, M.D., and Kalish, Kauffman, Guttmann & Puglisi, M.D.’s, a Professional Association, and/or Corporation and/or Partnership, Trading as and also known as Orthopedic Surgical Association. Appeal of Gad GUTTMANN, M.D. and Kallish, Kauffman, Guttmann and Puglisi, M.D.’s.
    Superior Court of Pennsylvania.
    Argued June 6, 1985.
    Filed March 24, 1986.

      Anthony P. Baratta, Philadelphia, for appellants in No. 1653 and appellees in No. 1879.
    Paul M. Chalfin, Philadelphia, for Guttmann, appellants in No. 1879 and appellees in No. 1653.
    Before WICKERSHAM, TAMILIA and HOFFMAN , JJ.

       Hoffman, J. did not participate in the decision or consideration of this case.

   WICKERSHAM, Judge:

These are consolidated cross-appeals from two separate orders entered by the Honorable Charles Wright of the Court of Common Pleas of Philadelphia County.

The instant cross appeals originate from a complex medical malpractice action brought by plaintiffs/appellees, Carmen DeFazio and Florence DeFazio, his wife, against Alexander Labe, M.D. (hereinafter Dr. Labe), and his associates, and Gad Guttmann, M.D. (hereinafter Dr. Guttmann), and his associates. Guttmann and his associates are appellants herein. In the trial court below, appellees claimed the combined negligent management and treatment of the above doctors made it necessary to amputate appellee, Carmen DeFazio’s left index finger and part of his left palm. Appellees’ theory of liability was centered on Dr. Guttmann’s alleged negligence in failing to remove a tube which he had placed in Mr. DeFazio’s finger to irrigate it and rid it of infection. Appellees’ expert witness, Dr. Mark Nissenbaum, testified that Dr. Guttmann deviated from the standard of orthopedic surgeons practicing in the community by leaving the irrigation tube in appellee’s finger for an extended period of time when there was not any sign of improvement. Dr. Martin Beller, an orthopedic surgeon, testified as a defense expert and disputed appellees’ contention, stating that Dr. Guttmann did in fact conform to the medical standards of the community. The jury returned a verdict in the amount of $300,000 against Drs. Labe and Guttmann. The respective negligence of each was assessed at eighty per cent (80%) and twenty per cent (20%).

Appellants, Dr. Guttmann and his associates filed motions for new trial and/or judgment n.o.v. Appellees, the verdict winners, also filed a motion for judgment n.o.v. The lower court dismissed appellants’ motions, finding they violated Philadelphia County Rule 240. The lower court further dismissed appellees’ motion for judgment n.o.v. on the ground that the filing of such a motion by the verdict winner was not warranted by any authority. Their post-verdict motions being denied, the parties now file these timely appeals.

Appellants raise four issues, and appellees, a sole issue, for our review. We will address appellants’ issues first. Appellants initially allege error by the lower court in 'dismissing their post-trial motions as proscribed by Philadelphia Rule 240(C)(4). Rule 240(C)(4) states, in pertinent part, that:

Counsel filing exceptions or post-trial motions shall insure that the notes of testimony, if required, are ordered from the court reporter and shall notify the Post-Trial Motion Clerk in writing when the notes have been ordered. In cases in which there is no dispute about the notes to be transcribed, counsel filing the exceptions or motions shall order the notes from the court reporter within five (5) days after the filing of the exceptions or motions and immediately so notify the Post-Trial Motion Clerk in writ-ing____ Failure to order the notes of testimony or to notify the Post-Trial Motion Clerk that they have been ordered where it is certified that they are necessary shall result in the imposition of sanctions including the dismissal of the exceptions or motions.

It is without dispute that a local court has the right to promulgate local rules of procedure. Ricci v. Ricci, 318 Pa.Super. 445, 447, 465 A.2d 38, 39 (1983). We also recognize:

that procedural rules, either at the state or local level, are absolutely essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. Every court has a limited power to make such rules as the interest of justice or the business of the court may require. 42 Pa.C.S. § 323.

Equipment Finance, Inc. v. Toth, 328 Pa.Super. 351, 355, 476 A.2d 1366, 1369 (1984). Additionally, it is well-settled that “[t]he application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and we will interfere only where the court commits an abuse of discretion.” Gutman v. Rissinger, 334 Pa.Super. 259, 264-65, 482 A.2d 1324, 1327 (1984) (quoting Equipment Finance, Inc. v. Toth, supra, 328 Pa.Super. at 355, 476 A.2d at 1369).

The Philadelphia County rule mandates that all exceptions or post-verdict motions shall be accompanied by an order to the court reporter for notes of testimony, if required, and notification to the post-trial motion clerk that such notes of testimony have been ordered. This rule also provides sanctions, including dismissal, in the event that the rule is not followed. In the instant appeal, appellant complied with both requirements of Rule 240(C)(4).

The trial court, acting sua sponte, interpreted the rule to require dismissal of post-trial motions where counsel failed to forward to the court reporter a monetary deposit required for transcription of the notes of testimony. It dismissed the post-triál motions without hearing argument thereon or otherwise considering the merits thereof. We conclude that such an interpretation of the rule was an abuse of discretion. If automatic dismissal of post-trial motions was to be the penalty for failure to forward the required deposit, the bar and the public were entitled to notice in the form of a specific mandate in the language of the rule. Cf Gutman v. Rissinger, supra (Montgomery County Local Rule of Civil Procedure No. 252 requiring “the cost of the trial transcript and payment thereof must be made within thirty (30) days by counsel”); Pa.R.J.A. No. 5000.6 (Local rule may provide that advance payments be made to start transcription).

We do not find, nor do appellants contend, that Philadelphia County Rule 240 is unfirm. Rather, appellants aver that the lower court improperly interpreted the rule as applied to the facts of this appeal. We conclude that the trial court’s sua sponte summary dismissal of appellants’ post-trial motions was improper. The local rule did not require a deposit, and most certainly did not give notice that dismissal would follow from the failure to forward a deposit to transcribe testimony. Accord Davidson v. John W. Harper, Inc., 342 Pa.Super. 560, 493 A.2d 732 (1985) (dismissal based upon Delaware County rule which failed to give notice was improper). We therefore reverse and remand for determination of appellants’ post-trial motions.

We next address ourselves to appellees’ post-trial motion for judgment non obstante veredicto. We believe, as Judge J. Sydney Hoffman stated in his opinion for this court in Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973), that a “judgment n.o.v. is the directing of a verdict in favor of the losing party, despite a verdict to the contrary.” Id., 226 Pa.Superior Ct. at 386, 313 A.2d at 753 (emphasis added). We must therefore agree with the lower court that appellees, as verdict winners, lack standing to move for a judgment n.o.v. We affirm the lower court’s dismissal of appellees’ post-verdict motion.

We find the lower court abused its discretion in dismissing appellants’ post-trial motions. Thus, we reverse the order of the lower court, reinstate appellants’ motions, and remand the case to the lower court for proceedings not inconsistent with this opinion. We also affirm the lower court’s dismissal of appellees’ post-verdict motion. Jurisdiction is relinquished.

      . The orders in question are as follows:
      AND NOW, this 7th day of June, 1984, the Jury having returned a verdict in the total amount of $300,000.00 and having assessed the negligence of the Defendants, Gad Guttmann, M.D., and Kallish, Kauffman, Guttmann & Puglisi, M.D. at 20% (or $60,000.00), it is hereby ORDERED that judgment is entered on the verdict in the amount of $60,000.00 plus delay damages in the amount of $23,-375.88 against the Defendants, Gad Guttmann, M.D., and Kallish, Kaufmann, Guttmann & Puglisi, M.D., for a total amount of $83,-375.88.
      BY THE COURT:
      JUDGE WRIGHT
      AND NOW, to wit, this 15th day of May, 1984, upon consideration of Plaintiffs’ Motion for Judgment, N.O.V., it is hereby ORDERED AND DECREED that said Motion is denied.
      BY THE COURT:
      JUDGE WRIGHT

      . Dr. Labe and his associates settled with appellees and executed a joint tortfeasors release several months before trial.

      . Questions presented for review, properly preserved below, are as follows:
      1. Where appellant files timely post trial motions, orders the transcript, but does not make the deposit required by the official court reporter, is the trial court warranted in dismissing the post trial motions in reliance on Philadelphia Local Rule 240 for failure of the appellant to forward the required deposit?
      2. Was the trial court warranted in refusing to allow appellants to call as a witness [appellees'] expert, Dr. William Burch, whose report was provided to all counsel over one year prior to trial, but who was not listed as a witness for appellant at trial?
      3. Did the trial court err in its instructions to the jury with respect to the testimony of Dr. Beller concerning whether Dr. Guttmann had requested anaerobic cultures?
      4. Did the trial court err in allowing the jury to consider as damages loss of future earnings and earning capacity?
      Brief for Appellants at 2.

      . Should a defendant doctor in a medical malpractice case be dismissed from the action, as a matter of law, where no evidence as to a deviation from the community’s expected standard of professional care has been offered against him by any testimony of any witness?
      Brief for Appellees at 2.

      . AND NOW, to wit, this 26th day of April, 1984, upon consideration of Defendants’ Motion for New Trial and/or Judgment N.O.V., it appearing that the defendants Guttmann, Kalish, Kauffman, and Puglisi having failed to deposit any money for payment of stenographic costs of Notes of Testimony and generally proceeding in a dilatory fashion in violation of Local Rule 240, it is hereby ORDERED and DECREED that said Motion is dismissed.
      BY THE COURT:
      JUDGE WRIGHT

      . We note that the record reflects that appellants ultimately made payment of the $800.00 required for transcription of the notes of testimony, and thereafter filed a petition for reconsideration of the court's dismissal of the post-verdict motions. The petition was denied by order dated July 10, 1984.

      . Since we find that the lower court has abused its discretion, further discussion of appellants’ remaining issues is not required.

      . In 10 Standard Pennsylvania Practice 2d, § 61.5 we find:
      Both a motion for a new trial and motion for judgment notwithstanding the verdict are based upon a disaffirmance of the verdict, but each seeks a different form of relief because of a different claimed error or irregularity committed during trial. A motion for a new trial contemplates the need, in the interest of substantial justice, for a retrial of an issue of fact, while a motion for judgment notwithstanding the verdict proceeds on the theory that there should have been a judgment as a matter of law in favor of the moving party either in a case where a verdict has been rendered against him or where the jury has disagreed and there has been no verdict. (footnotes omitted) (emphasis added).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    507 A.2d 414
    Carl GRAF, Sr., Administrator of the Estate of Carl Graf, Jr., a/k/a Carl Graf, Deceased and Carl Graf, Sr., in his own right, Appellant, v. STATE FARM INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed April 1, 1986.

      Richard C. Angino, Harrisburg, for appellant.
    Joseph M. Hankins, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order granting appellee’s motion for summary judgment and dismissing appellant’s complaint with prejudice. Appellant contends that (1) the filing of four class actions against appellee, each seeking no-fault work loss benefits, tolled the running of the statute of limitations on appellant’s work loss claim and (2) even without the benefit of such tolling, appellant’s claim is not time-barred under § 106(c) of the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act), 40 P.S. §§ 1009.101-1009.701, (West Supp.1984-1985), repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984. For the following reasons, we affirm in part and reverse in part the lower court’s order and remand for further proceedings consistent with this opinion.

On July 3, 1979, appellant’s son (the decedent) was killed in an automobile accident. Appellee paid appellant $1,500 as reimbursement for (no-fault) funeral expenses on November 14, 1979. On November 17, 1982, appellant commenced this action against appellee. Appellant, suing as administrator of his son’s estate and in his own right, sought recovery of work loss and survivor’s benefits under the No-fault Act. After the pleadings were filed, appellee moved for summary judgment. On June 15, 1984, the lower court granted summary judgment in favor of appellee on both appellant’s work loss and survivor’s benefits claims. This appeal followed.

Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P. 1035(b). “The burden rests upon the moving party to demonstrate clearly that there is no genuine issue of material fact.” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Superior Ct. 225, 231, 464 A.2d 1313, 1316 (1983), allocatur denied. “In determining whether there is a dispute of material fact, the court must take that view of the evidence most favorable to the non-moving party, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence.... ” Christo v. Brittany, Inc., 312 Pa.Superior Ct. 255, 263, 458 A.2d 946, 950 (1983), allocatur denied. In our review of the lower court’s order granting summary judgment, we are limited to reviewing the submitted pleadings and affidavits. Curry v. Estate of Thompson, 332 Pa.Superior Ct. 364, 371 n. 2, 481 A.2d 655, 661 n. 2 (1984). With these principles in mind, we turn to appellant’s contentions.

Appellant first contends that the filing of class actions against appellee in 1979, 1980, and 1981, each seeking no-fault work loss benefits for certain designated classes, tolled the running of the statute of limitations on his work loss claim. Both parties have extensively and thoughtfully briefed this issue. Appellant, however, is putting the cart before the horse: we need not consider the class action tolling issue if appellant’s claim is timely filed under the applicable No-fault Act limitations section. Here, both parties argue that the first sentence of § 106(c)(1) of the No-fault Act, 40 P.S. § 1009.106(c)(1), governs the instant case. We agree.

Section 106(c)(1) provides, in pertinent part:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

Section 106(c)(1) “covers ... no-fault benefits designed to compensate the insured himself.” Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 174, 455 A.2d 101, 105 (1982). “Post-mortem” work loss benefits, which appellant seeks here, are such benefits. Id., 500 Pa. at 170-71, 455 A.2d at 103-04. Furthermore, the only no-fault benefits that have been paid by appellee are funeral expenses. See Appellee’s Answer and New Matter to Appellant’s Complaint in Assumpsit ¶ 25; Appellant’s Answer to New Matter ¶ 25 (admitting the former); Affidavit of Thomas Maher (Exhibit D to Appellee’s Motion for Summary Judgment). Our Supreme Court has held that funeral expenses are no-fault benefits “arising ... from death.” See Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 503 Pa. 547, 469 A.2d 1388 (1983) (funeral expenses, ambulance expenses, and survivor’s loss benefits paid; court analyzes post-mortem work loss benefits claim under first sentence of § 106(c)(1)); Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983) (funeral expenses paid; same); cf. Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., supra at 174, 455 A.2d at 105 (“funeral expenses ... are designed to compensate the insured’s survivors for the loss they suffer by his death”). Accordingly, we will analyze the question of the time limitation on appellant’s claim on behalf of his decedent’s estate for post-mortem work loss benefits, see Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983) (estates of deceased victims entitled to work loss benefits), aff'g 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982), under the above-cited provision.

Under the first sentence of § 106(c)(1),

where no-fault benefits arising otherwise than from death have not been paid, an action for recovery of work loss benefits, for the benefit of a victim who was not self-employed, must be commenced within two years of each occurrence of work loss, and not later than two years after the victim’s accrued economic detriment from work loss reaches the statutory maximum amount recoverable, $15,000, 40 P.S. § 1009.202(b)(2), and, in any case, not later than four years after the accident.

Guiton v. Pennsylvania National Mutual Casualty Insurance Co., supra, 503 Pa. at 550-51, 469 A.2d at 1389 (emphasis added), citing Kamperis v. Nationwide Insurance Co., supra. Therefore, because the instant suit was filed within four years of the accident that killed the decedent, it would be time-barred only if he would have suffered accrued work loss equal to $15,000 more than two years before the filing of this suit on November 17, 1982.

At the time of his death, the decedent was unemployed. The work loss of a victim who is unemployed is calculated under the No-fault Act as follows:

The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period.

40 P.S. § 1009.205(c). Appellee, in both its Second Supplemental Memorandum in Support of its Motion for Summary Judgment and in its brief to this Court, uses the above and other provisions of the No-fault Act in arguing that appellant’s “claim began running on October 6, 1980 [when the decedent would have suffered accrued work loss of $15,-000].” (Brief for Appellee at 9); see also Appellee’s Second Supplemental Memorandum in Support of its Motion for Summary Judgment. We find that appellee, in calculating the decedent’s work loss, has failed to carry its burden of demonstrating that there is no genuine issue of material fact in the instant case.

With regard to determining the decedent’s probable weekly income, appellee utilizes the following definition of “probable annual income” found in the No-fault Act:

[T]he average annual gross income of a production or non-supervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in injury occurs, for a victim who has not previously earned income from work.

40 P.S. § 1009.205(d)(C) (emphasis added). Even assuming that appellee’s calculations under this subsection are correct, appellee has not proven its applicability to this case. Its assertion that the decedent had “no history of previous employment,” (Brief for Appellee at 3), is not of record. Therefore, it is possible that the decedent’s “probable annual income” should be calculated pursuant to 40 P.S. § 1009.205(d)(B).

We also find that there is no evidence in the record of when the decedent “would reasonably have been expected to realize income during the accrual period.” The “accrual period” is “the number of years the deceased victim would have worked had he survived the accident, [and] can be readily established by reference to actuarial tables and other relevant statistical compilations.” Freeze v. Donegal Mutual Insurance Co., 301 Pa.Superior Ct. 344, 355, 447 A.2d 999, 1005 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983). Here, appellee, in its calculations, simply assumed that, had the decedent survived the accident, he would have received a paycheck the very next week. There is, however, absolutely no factual basis in the record to support such a conclusion. See Kamperis v. Nationwide Insurance Co., supra, 503 Pa. at 541, 469 A.2d at 1384-85 (insufficient facts to determine when the decedent would have received his next paycheck; court unable to conclude whether action is timely filed); Bortner v. CNA Insurance Co., 332 Pa.Superior Ct. 406, 409-10, 481 A.2d 679, 681 (same); cf. States v. Insurance Co. of North America, 327 Pa.Superior Ct. 28, 33, 474 A.2d 1156, 1158-59 (1984) (record indicates that decedent earned approximately $125 per week while alive).

Accordingly, because there are genuine issues of material fact pertaining to appellant’s post-mortem work loss benefits claim, we reverse the lower court’s order insofar as it grants summary judgment in favor of appellee and dismisses appellant’s complaint on that claim and remand this case for further proceedings consistent with this opinion.

Order reversed in part and affirmed in part; case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . "[Appellant’s] appeal is limited to the propriety of the Trial Court’s granting of [appellee’s] Motion for Summary Judgment with regard to [appellant’s] claim for no-fault work loss benefits.” (Brief for Appellant at 5). Accordingly, we affirm the lower court’s order insofar as it grants summary judgment in favor of appellee and dismisses appellant’s complaint on appellant’s survivor’s benefits claim.

      . Funeral expenses are characterized as “allowable expense” under the No-fault Act. 40 P.S. § 1009.103. "No-fault benefits” include "allowable expense.” See id. (definitions of "no-fault benefits," “basic loss benefits,” “net loss,” and “loss”); see also id. § 1009.202; Allstate Insurance Co. v. Heffner, 491 Pa. 447, 453, 421 A.2d 629, 632 (1980).

      . This fact is not of record, but appellant does not dispute it. See Brief for Appellant at 35. Appellee also asserts that the decedent was eighteen years old at the time of his accident, see Brief for Appellee at 3, but that fact is also not of record. The decedent’s age may be relevant in determining when he would have suffered work loss had he survived the accident.

      . We question appellee’s calculations here. First, we note that, while the subsection defines probable annual income “for the year in which the accident resulting in injury occurs,” appellee, using figures from the Pennsylvania Bulletin, utilizes income figures from both 1979 (the year of decedent’s accident) and 1980 (when "the average annual gross income of a production or non-supervisory worker in the private non-farm economy” was higher than the previous year’s figure). See, e.g., Marryshow v. Nationwide Mutual Insurance Co., 306 Pa.Superior Ct. 233, 237, 452 A.2d 530, 532 (1982) (court, in charging the jury in accordance with § 205(d)(C) for its determination of the plaintiff’s work loss, used the income figures for the "applicable year”). Furthermore, appellee subtracts from the income figures a twenty percent tax deduction "in accordance with the No-fault Act,” (Brief for Appellee at 9), evidently 40 P.S. § 1009.206(b). While that subtraction is generous to appellant because it would lower the decedent’s probable weekly income and thus lengthen the time it would have taken him to suffer accrued work loss equal to $15,000, § 206, by its very title, applies to the calculation of “net loss,” see 40 P.S. § 1009.103 (definitions), not "work loss.” Under Guiton, supra, and Kamperis, supra, in determining when the statute of limitations runs, we look to a victim’s "work loss,” not “net loss.” See Miller v. Prudential Property and Casualty Ins. Co., 344 Pa.Superior Ct. 28, 495 A.2d 973 (1985) (§ 205, "work loss,” controls for purposes of determining whether an action for work loss benefits is time-barred). In any event, these matters can be more fully explored upon remand.

      . "Probable annual income” is defined in § 205(d)(B) as
      the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occurs, for a victim seasonably employed or not employed at the time of the accident.

      (Emphasis added).

      . Because appellant’s claim may be timely filed within the dictates of § 106(c)(1), we decline to consider the class action tolling issue here.


text:
    507 A.2d 418
    In the Matter of Abraham BROWN, An Alleged Incompetent. Appeal of Julia Beall PASSYN, Esquire.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed April 1, 1986.
    Julia Beall Passyn, Philadelphia, appellant, in propria persona.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Julia Beall Passyn appeals from the order of court by which Abraham Brown was adjudged an incompetent and a guardian of his estate was appointed.

On January 25, 1983, appellant entered into a written agreement with Mr. Brown to assist him in handling his finances. During the term of the contract, appellant wrote out checks for Mr. Brown and invested over $12,000.00 of Mr. Brown’s funds in certain mortgages. Sometime later Mr. Brown apparently grew dissatisfied with appellant’s management of his financial affairs and requested that appellant turn over his assets. Appellant did not honor that request.

Subsequently, Mr. Brown, in an unusual circumstance, personally petitioned the court to adjudge him incompetent and to appoint a guardian of his estate. Appellant was not a party to the incompetency hearing but was subpoenaed to attend the September 21,1984 hearing because she still held the assets of Mr. Brown. At that hearing, Mr. Brown was adjudged an incompetent and James P. McGarrity was appointed guardian of his estate by the Honorable Judith J. Jamison of the Orphan’s Court Division of the Court of Common Pleas of Philadelphia County. Appellant files this timely appeal in which she raises four allegations of error relating to the incompetency proceeding for our consideration.

At the threshold of our inquiry however, we must pause to determine whether appellant has the requisite standing to challenge Mr. Brown’s adjudication as an incompetent. Initially we note that appellant as a nonrelative does not receive the benefit of standing conferred to those who would have been entitled to share in Mr. Brown’s estate had he died intestate at the time of the incompetency hearing. Pursuant to 20 Pa.C.S. § 5511(a), only those persons who are sui juris and would be entitled to share in the alleged incompetent’s estate are required to be notified of impending incompetency proceedings. It follows that the class of individuals entitled to challenge the adjudication should be limited to these same intestate heirs and the alleged incompetent himself.

While we are aware of no appellate authority directly on point, we are persuaded of the logic of this position by the lower court’s opinion in Reidenbach’s Estate, 30 Pa.Fiduc. 347, 15 D. & C.3d 350 (O.C.Allegheny 1980). In Reidenbach’s Estate, the court held that an incompetent’s nephew, who was not an intestate heir, was neither entitled to notice of any proceeding before the court involving the incompetent, nor able to file objections, since the incompetent’s sole heir under the intestacy law was the incompetent’s spouse. Id. at 350, 15 D. & C.3d at 353.

In the instant case, appellant’s relationship with Mr. Brown is far more tenuous than that of the blood relative in Reidenbach’s Estate. It is clear that she, as a nonrelative, could not ever possess an interest as an intestate heir and was not entitled to be notified of Mr. Brown’s incompetency adjudication, nor able to file objections below. Mr. Brown’s sole heir under the intestacy law was his adopted daughter, Maxine Brown. It was therefore Maxine Brown and not appellant who possessed the protectable interest below. See id. It is similarly now only Miss Brown or Mr. Brown himself who has standing to challenge the adjudication. Appellant’s position as former attorney-in-fact for Mr. Brown does not confer standing to object to this adjudication on appeal where appellant had no standing to object to the proceeding below under the Probate Code. We therefore conclude that appellant has no special statutory right to appeal.

Thus her right to appeal, if any, is confined to that provided to parties under the general rule:

“Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order ... may appeal therefrom.” Pa.R.A.P. 501 (emphasis added). Accordingly, an appeal by one who was not a party to a proceeding in the trial court must be quashed. Mechanics National Bank v. Buchman, 253 Pa. 245, 97 A. 1056 (1916); In re Devereux’s Estate, 353 Pa. 560, 46 A.2d 168 (1946) (no standing to appeal because appellant never properly became a party to the proceeding in trial court). The Appellate Rules do not define the term “party.” However, the note following the definitional rule, Pa.R.A.P. 102, states that that rule is based on 42 Pa.C.S. § 102, which defines “party” as “a person who commences or against whom relief is sought, in a matter....”

Newberg by Newberg v. Board of Public Education, 330 Pa.Super. 65, 68-69, 478 A.2d 1352, 1354 (1984).

In this case, while appellant would style herself as a party to the case at the request of Mr. Brown’s attorney, see Statement of the Case, Brief for Appellant at 3, this is not a fact reflected in the record. Appellant’s participation in the proceeding below was limited to giving testimony at the incompetency hearing. This role as a witness did not make her a party to the action or otherwise establish a right to review. See Appeal of Greco, 434 Pa. 431, 254 A.2d 6 (1969) (appearing as a witness is not the participation necessary to establish a right to review). Thus, appellant’s appeal is one without standing and should be quashed. See Newberg by Newberg v. Board of Public Education, supra.

Additionally, we note that even if appellant could successfully hurdle the standing barrier, waiver would defeat the instant appeal. See In re Estate of Volkhardt, 484 Pa. 52, 398 A.2d 656 (1979). Further examination of the record discloses that no exceptions to the decree nisi were filed; hence, it became final after the period allowed for the filing of exceptions. See Phila.O.C.Div.Rule 77.1(a). No exceptions being filed below, none of the issues now raised by appellant in the instant appeal have been preserved for our review. In re Estate of Volkhardt, supra.

The appeal is quashed.

      . Appellant states the issues to be as follows:
      MAJOR QUESTION
      Did the Lower Court err in adjudicating Mr. Abraham Brown an incompetent and appointing a guardian because there was not sufficient evidence presented, — when in fact the evidence was that Mr. Brown had been handling his own affairs quite well? RELATED QUESTION
      Did the Court err in not considering Mr. Brown's own testimony, testimony as to his handling of his affairs?
      MINOR QUESTIONS
      Was the Court so biased in favor of the Petitioner that the Court could not reach a decision other than that requested by the Petitioner?

        Did the Petitioner’s relationship with the daughter Maxine Brown so taint his relationship with Mr. Brown that he should not have been the Petitioner/Attorney and Proposed Guardian?
      Brief for Appellant at 2.


text:
    507 A.2d 420
    Joan McGINLEY & Anna McGinley, Maureen Milliken & Sharon Milliken a Minor By Her Parent & Natural Guardian Maureen Milliken & Maureen Milliken In Her Own Right, Appellants, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed April 1, 1986.

      Allen L. Feingold, Philadelphia, for appellants.
    Thomas E. Butler, Jr., Philadelphia, for appellee.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.
   WICKERSHAM, Judge:

In October of 1984, a petition was filed by Joan McGinley and others in the court of common pleas of Philadelphia for the appointment of an arbitrator. Petitioners alleged that they were involved in a motor vehicle accident on June 5, 1979 and sustained injuries. Further, that they were insured at the time by Allstate Insurance Company (hereinafter Allstate) under a named policy and that they desired arbitration of their claims pursuant to the uninsured motorist coverage of said policy. The petitioner named her choice of arbitrator. Allstate filed Preliminary Objections and a memorandum of law seeking dismissal. At the direction of the Honorable Thomas A. White, Allstate submitted a copy of their policy and various exhibits which included a letter from counsel for Allstate to counsel for petitioners dated September 20, 1982 indicating that Allstate had selected John J. Walsh, Esquire as their “choice of arbitrator.” The petition had alleged that some of petitioners resided in Philadelphia County and some in New Jersey. Allstate, of course, has an office and does business in Philadelphia County.

By Order of March 4, 1985 Judge White denied the petition and by Order of March 15, 1985 he denied a petition for reconsideration. This appeal timely followed with the following issue before us:

I. Did the lower Court err at law when it denied plaintiffs Petition to Appoint a Neutral Arbitrator following a showing of a valid contract of insurance between the parties with an agreement to arbitrate, and where plaintiffs made a prima facie showing that factual questions exist affecting the application or construction of the uninsured motorist clause, such issues being within the exclusive jurisdiction of the arbitrators?

Brief for Appellant at 2.

We reverse.

The arbitration clause of the policy in question provided as follows:

ARBITRATION
If we and a covered person do not agree:
1. Whether that person is legally entitled to recover damages under this Part or
2. As to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will:
1. Pay the expenses it incurs; and
2. Bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the covered person lives. Local rules of laws as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to:
1. Whether the covered person is legally entitled to recover damages; and
2. The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrators’ decision. If this demand is not made, the amount of damages agreed to by the arbitrators will be binding.

Allstate Insurance Policy at 10-11, R.R. at 59-60.

This matter is controlled by statute.

§ 7304. Court Proceeding to compel or stay arbitration (a) Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.
* * * * * *
(e) No examination of merits. — An application for a court order to proceed with arbitration shall not be refused, nor shall an application to stay arbitration be granted, by the court on the ground that the controversy lacks merit or bona fides or on the ground that no fault or basis for the controversy sought to be arbitrated has been shown.

In Cunningham v. Prudential, 340 Pa.Super. 130, 489 A.2d 875 (1985), we said:

This provision is clear. Uninsured motorist claims, if agreement cannot be reached by the parties, must be submitted to statutory arbitration. Recovery against Prudential cannot be had under its policy unless there has been (1) agreement or (2) arbitration. These are conditions precedent to each appellant’s right to be compensated according to the uninsured motorist feature in Prudential’s policy. Without prior compliance with one or the other, Prudential cannot be made to pay an uninsured motorist claim. In the instant case, the averments of the complaint disclose that there has been neither agreement nor arbitration with respect to appellants’ claims.
“It is the policy of the law to favor the settlement of disputes by arbitration and to promote the swift and orderly disposition of claims.” ... Therefore, “court proceedings should not be read into the agreement to arbitrate----The arbitration clause ... indicates that the parties contemplated one method, and one method only, for the resolution of disputes under [the uninsured motorist coverage]. That method was arbitration and all such disputes [must] be so decided.” National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 185, 236 A.2d 758, 760-761 (1968). Arbitration, it seems clear, is a condition precedent to recovery of uninsured motorist benefits under the policy of automobile insurance issued by Prudential____
If a party to an arbitration agreement refuses to submit a dispute to arbitration, a court will order the parties to proceed to arbitration. 42 Pa.C.S. § 7304(a). . . . When the parties have agreed to resolve all disputes by arbitration, arbitration is the procedure which must be followed.

Id., 340 Pa.Superior Ct. at 134-135, 489 A.2d at 878 (citations omitted).

We reverse the order of the court below which dismissed the petition. We remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The Act of 1980, October 5, P.L. 693, No. 142, § 501(a), 42 Pa.C.S. § 7301 et seq.


author: MONTEMURO, Judge:

text:
    507 A.2d 423
    COMMONWEALTH of Pennsylvania, Appellant, v. Walter MATTIS, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 17, 1985.
    Filed April 2, 1986.

      Suzan E. Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Patricia M. Dugan, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal by the Commonwealth from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County by which appellee was sentenced to twenty-two months to five years imprisonment followed by five years probation for aggravated assault (with credit for approximately eleven months time served), and a consecutive term of five years probation, for possession of an instrument of crime. The Commonwealth’s sole argument on appeal is that the sentencing court unreasonably deviated from the recommended minimum ranges set forth in the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq. We agree and, accordingly, vacate the judgment of sentence and remand for resentencing.

“Although the Commonwealth, in seeking to appeal from the discretionary aspects of the sentence imposed in this case, properly initiated the appeal by the filing of a notice as required by Pa.R.A.P. 902, before proceeding to the merits of the issue raised herein, we must first determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines.” Commonwealth v. Days, 349 Pa.Super. 188, 192, 502 A.2d 1339, 1341 (1986); see also, Commonwealth v. Fluellen, 345 Pa.Super. 167, 170, 497 A.2d 1357, 1358 (1985); Commonwealth v. Dixon, 344 Pa.Super. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). As the discussion which follows shall indicate, “it appears that there is a substantial question that the sentence imposed is not appropriate. . . .” 42 Pa.C.S. § 9781(b). We therefore permit the Commonwealth to appeal.

As required by the Sentencing Guidelines, the record before us contains the standard Sentencing Guideline Form. Commonwealth v. Days, supra. Under the offense of aggravated assault (marked “Ag. Ass.”), the sentencing court listed the offense gravity score as “7” and the prior record score as “6”. In addition, in the section provided for the “deadly weapons enhancement”, the court checked the box “yes”. Although the form provides boxes for the minimum range, the aggravated range and the mitigated range of sentences set forth in the guidelines, the sentencing court simply indicated the following under the “minimum range” heading:

43-64
+ 12-24

Finally, in section VIII of the form, entitled “Departure Report — List reasons why sentence departs from the guidelines,” the court noted that the instant sentence was appel-lee’s “1st incarceration — Court believes this sentence [and] not guidelines is appropriate under the circumstances.” See also N.T., May 23, 1984, at 51.

Thus, the record before us indicates that the sentencing court considered at least the minimum range under 204 Pa.Code § 303.9(b), which, under the circumstances of this case, calls for 43 to 64 months imprisonment. The court also applied the deadly weapons enhancement section of the Sentencing Guidelines. This section provides that “an additional twelve (12) to twenty-four (24) months confinement ‘shall be added ’ to the sentence prescribed in the guidelines. 204 Pa.Code §§ 303.2(5) and 303.4 (deadly weapons enhancement).” Commonwealth v. Drumgoole, supra, 341 Pa.Superior Ct. at 474, 491 A.2d at 1355 (original emphasis). Thus, under the guidelines, as enhanced by section 303.4, the starting point in calculating the sentence in this case, under the minimum range, was 55 months to 88 months. Although the sentencing court recognized this “starting point”, see N.T., May 23, 1984, at 50, it chose to impose a sentence of 22 months to 5 years imprisonment followed by 5 years probation. This sentence is clearly outside the range recommended by the guidelines.

When this court is called upon to review a sentence which is outside the guidelines, we must determine whether the sentence is “unreasonable.” 42 Pa.C.S. § 9781(c)(3). See Commonwealth v. Vanderhorst, 347 Pa.Super. 648, 650, 501 A.2d 262, 263 (1985). In making this determination, we must examine the record with regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the Commission.

42 Pa.C.S. § 9781(d).

We have considered these factors, and, on the basis of the record before us, conclude that the sentence imposed was unreasonable. —1—

Regarding the nature and circumstances of the offense, as we stated at the outset, appellee was found guilty of aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of crime. The incident occurred in the evening of July 2, 1983, in Wissinoming Park in Philadelphia. Apparently, there was some bad blood between appellee and the victim, Raymond E. Mueller, although the record is not entirely clear as to what the source of their disagreements was. Earlier in the evening, there was a confrontation between appellee and Mueller, at which time appellee put a knife to Mueller’s throat. This altercation ended without further incident. N.T., December 15, 1983, at 13.

Mueller then went to a neighborhood taproom and purchased a quart of beer. After delaying a short while, he proceeded to enter and walk across the park as he made his way home. Mueller’s and appellee’s paths crossed again and another altercation ensued. Appellee again approached Mueller with a knife in hand; however, this time he struck Mueller in the chest. Mueller fell or stumbled, but was able to break away. Appellee pursued Mueller, “grabbed him and threw him to the floor, then was on top of him with the knife at his throat.” Id. at 59. Appellee then stabbed Mueller a second time. Id. at 19. When onlookers attempted to assist Mueller, or at least tried to break up the melee, appellee held them at bay. Appellee testified in his own defense, and although he gave a different version of the events in which Mueller figured as the initial aggressor in the altercation, he never denied stabbing Mueller. See id. at 87-100. Mueller was hospitalized at Frankford Hospital for stab wounds and a collapsed lung.

The sentencing court itself noted the seriousness of the crime when it remarked: '

... this could just as easily [have been] a homicide as an aggravated assault, had the knife been maybe an inch or two either way [ ] ... Something like this, this was not a stabbing in the arm or in the foot or something of that nature.

N.T., May 23, 1984, at 29. On the other hand, the court, in its opinion written pursuant to Pa.R.A.P. 1925, seemed to downplay the seriousness of the crime by stating that “Mueller initially became the aggressor,” and that he and appellee “had both been drinking alcoholic beverages on the day of the incident.” Slip op. at 2. The court also noted that “Mueller admitted to a previous conviction for Aggravated Assault and Robbery” and that “it is not clear if [Mueller’s] entire hospitalization resulted from the injury-resulting from the stabbing or from a prior injury.” Id.

Whether or not Mueller had been previously convicted of serious crimes or had prior injuries, there was no testimony which contradicted the trial court’s finding that Mueller had been twice stabbed by appellee.. In addition, appellee’s self-serving testimony regarding Mueller’s initial “aggression” notwithstanding, it was also uncontradicted that once appellee grabbed the knife, Mueller “backed up” to avoid appellee’s advance, was stabbed once by appellee, and then was chased, caught and again stabbed by appellee. N.T., December 15, 1983, at 16-19, 58-59. Indeed, even appellee testified that at the time he was actually stabbed, Mueller was unarmed, id. at 92, and that he was not hit by Mueller. Id. at 96, 98-99.

The trial court, as evidenced by its opinion, obviously chose to believe appellee’s testimony over the eyewitness’ and Mueller’s, at least with regard to who the initial aggressor was. It was clearly the court’s prerogative to do so. Commonwealth v. Days, supra, 349 Pa.Super. at 195-196, 502 A.2d at 1342. Be that as it may, it is also clear that there was ample evidence to support the appellee’s conviction on all the charges.

—2—

As to the history and characteristics of the defendant, we are at a disadvantage because the pre-sentence investigation has not been made a part of the record before us. This is clearly not the preferred practice. Id., 349 Pa.Superior Ct. at 194-195 n. 5, 502 A.2d at 1342 n. 5. However, we do have the benefit of a rather lengthy sentencing proceeding at which appellee’s “history and characteristics” were discussed.

Appellee had been arrested fourteen times and convicted of a crime eight times prior to his arrest and conviction in the instant matter. These prior offenses included forgery, burglary, simple assault and drug dealing. N.T., May 23, 1984, at 40. For each of these corrections, a probationary or suspended sentence was imposed; each probation was violated at least once, so that his record was eight probationary sentences and ten violations of probation. Id.

At the time of the sentencing hearing, appellee contended that if he was not incarcerated, he had the prospect of attaining support and assistance from his father and his girlfriend. Also speaking in appellee’s behalf was Sister Mary Elizabeth Henssans of the Archdiocese of Philadelphia’s Catholic Social Services, Criminal Justice Administration. Sister Henssans testified that she had been counseling appellee, and that he was progressing in his treatment. She also testified that his family was and had been supportive of appellee and concerned for him, although “there have always been relationship difficulties between [appellee] and his father.” Id. at 27. In any event, there was no indication that appellee’s ignominious career had been caused by an unfortunate family or other personal background. As the following exchange between Mr. Kolansky, the assistant district attorney, and the sentencing court indicates, the judge was aware of appellee’s background:

MR. KOLANSKY: Judge, there’s nothing in this man’s history, the good Sister not withstanding that should indicate to this Court that this man should not be sent away for the period called for by the guidelines. The defendant in this case committed a vicious act, regardless of—
THE COURT: You have just hit upon the one thing that’s been disturbing me in this case. Mr. Mattis comes to us with a prior offense score of six and having spent no substantial amount of time, certainly not sentenced—
MR. KOLANSKY: He’s had every opportunity in the world, Judge.
THE COURT: Which is what bothers me.

Id. at 41.

—3—

Finally, as to the application of the guidelines, the court apparently did not find the mitigated or aggravated minimum range appropriate, but rather considered the minimum range as a proper starting point under the circumstance. After adding the weapon enhancement section, the court began with a possible range of 55 to 88 months. However, the court settled on a sentence which has a minimum term of incarceration of 22 months, or a reduction of sixty percent from the suggested guidelines sentence.

The only explanation for this departure found on the guidelines form was the fact that appellee had never been incarcerated before. As the court explained at sentencing:

I want you to understand, Mr. Mattis, the reason I am imposing the sentence that I am, is because of the guidelines and because of your past criminal record. I want you to understand that I have not imposed the sentence that has been suggested by the guidelines, which would be a minimum of fifty-five months in prison, because of the fact that this is your first time that you have been in now, and I feel that after you serve your twenty-two months, if the Parole Board sees fit to parole you at that point, you will then have an opportunity to go forward. As I have indicated to the district attorney, had you had prior substantial incarceration sentences, and then came back for more, I would not have hesitated to impose the suggestive [sic] sentence by the guidelines. I feel, under the circumstances, that since you have not had prison before, and I think after twenty-two months, any person who has an I.Q. of above four, and I think you do, should understand that it’s not a nice place to go back to. I have imposed an extremely long probationary period. If you parolled [sic] some time after the twenty-two months, you’ll have, between then and five years on parole, and you’ll have then ten years of probation to me, okay, and I want you to understand that if you violate that probation, I can send you away for ten years, okay?
THE DEFENDANT: Yes.

Id. at 50-51

Thus, the sentencing court’s reason for departing from the guidelines boiled down to his belief that appellee, who was never before incarcerated, would now “realize that maybe [prison is] not such a nice place to visit and [he] wouldn’t want to live there after all ... and he now has something to compare his experience with.” Id. at 42. Under the circumstances of this case, we do not find this explanation a persuasive one for such a substantial departure from the recommended sentence. “The Sentencing Code provides that ‘the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b).’ ” Commonwealth v. Dixon, supra, 344 Pa.Super. at 310, 496 A.2d at 810. Our review of the record before us leads us to conclude that the sentencing court focused on the rehabilitative needs of appellee to the near exclusion of the other factors listed in section 9721(b). In so doing, the court unreasonably deviated from the guidelines and depreciated the seriousness of the offense, an offense which, as the sentencing court itself noted, was only “inches away” from homicide. Given the nature and circumstances of this offense, the characteristics of this appellee and the recommended range under the guidelines, we find the fact that appellee had never before been incarcerated an inadequate justification for such a lenient sentence. “In sum, only in exceptional cases and for sufficient reasons may a court deviate from the guidelines.” Commonwealth v. Hutchinson, 343 Pa.Super. 596, 599, 495 A.2d 956, 958 (1985). Finding neither in the instant case, we are compelled to reverse.

In light of the foregoing, we must vacate and remand for resentencing. Jurisdiction is relinquished.

      . 18 Pa.C.S. § 2702.

      . Id. § 907(a). Appellant was also found guilty of simple assault and of recklessly endangering another person. Id. §§ 2701, 2705. These convictions were merged for sentencing purposes. N.T., May 23, 1984 at 49-50.

      . The crimes involved herein occurred on July 2, 1983. The Sentencing Guidelines apply to offenses committed on or after July 22, 1982 and, as such, were applicable in the instant case. Commonwealth v. Dixon, 344 Pa.Super. 293, 496 A.2d 802 (1985).

      . The lower court stated that this appeal is improper because 42 Pa.C.S. § 9781 "permits the Commonwealth to appeal only by allowance from the Superior Court," and such prior notice was never received. Slip op. at 2. However, this court has stated "the Commonwealth ... may initiate ... an appeal by merely filing a notice required by Pa.R.A.P. 902.” Commonwealth v. Drumgoole, 341 Pa.Super. 468, 473, 491 A.2d 1352, 1354 (1985). As stated above, we have reviewed the appeal "initiated” by the Commonwealth and, finding a substantial question as to the sentence's appropriateness, we have decided to permit the appeal. See Commonwealth v. Dixon, supra.

        . See 204 Pa.Code § 303.1(b).

      . Appellee had eight prior convictions for various offenses. N.T., May 23, 1984, at 32.

      . 204 Pa.Code § 303.4.

      . Our review of the record leads us to conclude that appellee was convicted of violating 18 Pa.C.S. § 2702(a)(1). Hence the use of this sentence enhancement was proper. See 204 Pa.Code § 303.4(b).

      . This sentence, although somewhat unusual, is within the statutory maximum. See 18 Pa.C.S. §§ 106(b)(3), 2702.

      . There was testimony from an eyewitness to the effect that appellee claimed that Mueller owed him money. N.T., December 15, 1983, at 57. There was also testimony that the victim had been asking other people about appellee and "had questioned [appellee’s] authority.” Id. at 14.

      . An eyewitness, James M. Eisinger, testified that after appellee had Mueller on the ground, ‘‘[a] friend of mine, James McGovern and me ran over towards them and Jim McGovern picked up a pipe or stick, something pretty large and went over towards them, and then Walt said, ‘Stay away or I’m going to cut his throat,’ and so, we backed off." N.T., December 15, 1983, at 59.

      . The court also mentioned that Mueller took dilantin, a phenobarbital, for seizures. See N.T., December 15, 1983, at 39.

      . Appellee had testified that Mueller initially came toward him carrying a bottle of beer in a threatening manner. See N.T., December 15, 1983, at 92.

      . The Commonwealth has included a copy of the report in its Reproduced Record. However, we believe an appellate court should confine its review to the certified record. As such our review will only extend to the record before us. Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494 (1980); Commonwealth v. Jackson, 329 Pa.Super. 293, 478 A.2d 474 (1984).

      . Our review of the sentencing proceeding and the rest of the record unearths no instance at which the sentencing court stated it based the sentence it imposed upon the pre-sentencing report.

      . Appellee’s mother died during his incarceration while awaiting sentence.

      . The court also mentioned Sister Henssans’ testimony and letters of recommendation. The latter are not a part of the record.


author: CERCONE, Judge:

text:
    507 A.2d 428
    Willie B. TURNER and Willa Turner, husband and wife v. COMMONWEALTH of Pennsylvania and Pennsylvania Department of Transportation and Gannett Fleming Corddry and Carpenter, Inc., and Mount Joy Township and Mount Joy Township Authority. Appeal of MOUNT JOY TOWNSHIP and Mount Joy Township Authority.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1986.
    Filed April 3, 1986.

      John B. Willcox, Philadelphia, for appellants.
    Dale G. Larrimore, Philadelphia, for appellees.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

Plaintiffs brought a cause of action in trespass arising out of an accident which occurred on April 14, 1982, in Mount Joy Township, Lancaster County, Pennsylvania. They named as defendants the Commonwealth of Pennsylvania, Pennsylvania Department of Transportation, a corporation located in Camp Hill, Pennsylvania, and Mount Joy Township and Mount Joy Township Sewer Authority. Plaintiffs brought their action in Philadelphia County. On May 21, 1984, the defendant Commonwealth of Pennsylvania filed preliminary objections to the Complaint which included an objection to venue in Philadelphia County. The trial court denied the preliminary objections on June 18, 1984.

On July 13, 1984, the appellant, Mount Joy Township and Mount Joy Sewer Authority, filed preliminary objections which raised once again a problem to venue in Philadelphia County. Both sets of preliminary objections were opposed and responded to by the plaintiff-appellees. Then, on March 21, 1985, the Commonwealth of Pennsylvania filed a petition for change of venue to which appellees objected, and which was denied by the trial court on May 31, 1985. And on April 18, 1985, Mount Joy and Mount Joy Township filed a motion for Change of Venue or Motion for Reconsideration by their preliminary objections. This was denied by order on May 31, 1985. On June 7, 1985, appellees filed an election to deem the order final, which rendered an appeal therefrom an interlocutory one as of right pursuant to Pa.R.A.P. 311(b)(1).

Now, on appeal, appellants contend that in refusing to transfer venue from Philadelphia to Lancaster County, the trial court disregarded Pa.R.C.P. 2103(b) governing venue in an action against a political subdivision:

Except when the Commonwealth is the plaintiff, or when otherwise provided by an Act of ... Assembly, an action against a political subdivision may be brought only in the county in which the political subdivision is located.

And, in the case of multiple defendants, one of which is a political subdivision, all such defendants may be sued in the county of the subdivision, according to Pa.R.C.P. 1006(c). However, this rule states an exception for actions in which the Commonwealth is a party defendant, as in this case. Rule 1006(c) provides:

An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b).

In the instant case, the lower court initially found that venue as to the Commonwealth of Pennsylvania was proper in Philadelphia County, the choice of the plaintiffs, despite the Commonwealth’s request that it be transferred to Lancaster County. Therefore, when venue as to the political subdivision became an issue, which determination gave rise to this appeal, the exception of Rule 1006(c) was triggered. Because venue in Philadelphia County was proper for the Commonwealth, it must necessarily be so for Mount Joy Township and its sewer authority. The trial court was correct in refusing to transfer venue.

Appellants assert that the trial court’s holding was incorrect as contradicting Morrison v. Spears, 298 Pa.Superior Ct. 521, 445 A.2d 110 (1982). In that case, this court, following both of the above-quoted rules, affirmed a trial court’s transfer of venue from Philadelphia to Montgomery County, the location of the political subdivision defendant, the Borough of Lansdale, even though the Commonwealth was also a party defendant. However, in that case, no prior determination of proper venue as to the Commonwealth had been made. As the trial court held, this fact distinguishes Morrison v. Spears, from the instant situation.

Appellants also argue that the trial court erred under the doctrine of forum non conveniens. Pa.R.C.P. 1006(d). A court looks to the interests of the litigants in deciding whether to transfer venue under this doctrine including

relative ease of access to the sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possible need for a view of the premises ...; and all other practical problems that make trial of a case expeditious and inexpensive. Daugherty v. Inland Tugs Company, 240 Pa.Superior Ct. 527, 530, 359 A.2d 465, 466 (1976) in Fox v. Pennsylvania Power and Light Co., 315 Pa.Superior Ct. 79, 81-2, 461 A.2d 805, 806 (1983).

Applying these considerations to the instant case, unlike the situation in Fox, supra, no single county emerges as the convenient forum. While the accident did occur in Lancaster County, and appellants’ fact witnesses are present there, various other counties also have ties to the instant litigation. For example, the injured plaintiff resides in Bucks County, other fact witnesses are residents of at least five other counties and two states, and the treating physicians practice in Philadelphia and two surrounding counties. In light of these circumstances, we cannot hold that the trial court abused its discretion in refusing to transfer the case from the plaintiffs’ choice of forum, which is entitled to weighty consideration and should not be disturbed lightly. Walker v. The Ohio River Company, 416 Pa. 149, 152, 205 A.2d 43, 45 (1964).

For the above reasons, the order of the trial court is affirmed.

      . In our discretion we have chosen to review this case, although jurisdiction also resides in the Commonwealth Court. Schultz v. City of Philadelphia, 314 Pa.Superior Ct. 194, 460 A.2d 833 (1983).

      . We are not persuaded by appellees’ contention that appellants lost the opportunity to challenge venue in this case when they failed to join in the Commonwealth’s initial opposition thereto. They have cited us to no authority, nor are we able to find any supporting their position.


author: WATKINS, Senior Judge:

text:
    507 A.2d 430
    Rudolf MUSCARELLA, Appellant, v. MILTON SHOE MANUFACTURING COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed April 11, 1986.

      Charles J. McKelvey, Williamsport, for appellant.
    Gary Glaser, New York City, for appellee.
    Before WIEAND, WATKINS and GEISZ , JJ.

       Honorable John A. Geisz, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   WATKINS, Senior Judge:

This is an appeal from an Order entered June 15, 1984, in the Court of Common Pleas of Northumberland County granting defendant-appellee’s preliminary objections and dismissing plaintiff-appellant’s amended complaint.

On September 17, 1981, appellant, Muscarella, filed his complaint in Assumpsit alleging that he was wrongfully discharged by appellee. On October 1, 1981, appellee, Milton Shoe, filed Preliminary Objections in the nature of a Motion for a More Specific Complaint, Motion to Strike and a Demurrer. The court below sustained appellee’s preliminary objections requesting a More Specific Complaint but dismissed the Motion to Strike and the Demurrer.

On May 26, 1983, appellant filed his Amended Complaint and on June 29, 1983, appellee filed Preliminary Objections in the nature of a demurrer. On June 15, 1984, the Honorable Samuel C. Ranck entered an Order granting the Preliminary Objections and dismissing appellant’s Amended Complaint. Notice of Appeal to this Court followed on July 13, 1984.

In August, 1971, appellant lived and worked in New York City. He was hired by appellee’s president, Saul Putter-man, to work as a lasting superintendent at appellee’s shoe factory in Milton PA. Appellant worked in this capacity at the Milton plant from September 1, 1971, to March 13, 1980 when he was discharged.

Appellant presents the following questions for our consideration:

Does an employee have a cause of action in Assumpsit against an employer who breaches conditions in an oral contract of employment. Specifically, did the oral contract of employment create enforceable contract rights that:

(1) appellant would be discharged only for just cause? and
(2) that appellant would receive a pension as part of his wage package.

In his first issue appellant contends that he was employed by appellee under an oral contract of employment. Further, appellant contends that he was covered by a company policy, albeit, implied and unwritten, to discharge only for “just cause” and argues that this provided a durational element to his employment and creates enforceable contract rights as to his discharge.

In Banas v. Matthews International Corporation, 348 Pa.Superior Ct. 464, 502 A.2d 637 (1985), this Court had an opportunity to examine the employment-at-will rule. The Banas Court recognized that:

In Pennsylvania the settled rule is that “,[a]bsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. United States Steel Corp, 456 Pa. 171, 175, 319 A.2d 174, 176 (1974) Banas, supra, 348 Pa.Superior Ct. 479, 502 A.2d 644.

Appellant attempts to avoid the applicability of the employment-at-will doctrine by arguing that “the parties entered into a contract dealing with the duration of the employment relationship”. Appellant invokes Cummings v. Kelling Nut Co., 368 Pa. 448, 84 A.2d 323 (1951) and asserts that the durational element necessary to defeat employment terminable at will discussed in Cummings, supra, was satisfied in the instant case. Appellant contends that the contract provided that the employment relationship would continue so long as services were satisfactory or unless and until plaintiff gave just cause for discharge.

In Cummings, supra, the Supreme Court reiterated the employment-at-will rule and emphasized that a specific “length of time” is an essential element of any contract of employment, without which no cause of action will lie.

The Cummings, supra, Court went on to state:

If the employee obtains no promise of employment for a definite or reasonable length of time, he gambles on his retention and the probability that the employment will be continued if his services are satisfactory. On the other hand, he is free at any time to quit the job.

In the absence of an agreement for a fixed period of time, a hiring is at will and no cause of action in assumpsit will lie for its termination. Richardson v. Charles Cole Memorial Hospital, 320 Pa.Superior Ct. 106, 466 A.2d 1084 (1983).

Although appellant avers in his Amended Complaint that he was employed under an oral contract of employment from September 1, 1971, to March 13, 1980, nowhere does the appellant contend that the alleged oral contract of employment was for a specific or definite period of time. Rather appellant asserts that the durational element necessary to defeat employment terminable at will discussed in Cummings, supra, was satisfied by arguing that the contract provided that the employment relationship would continue so long as services were satisfactory or unless and until appellant gave just cause for discharge.

Nowhere in the Amended Complaint is it averred that appellant’s purported oral contract of employment contained any provision that appellant’s employment would continue so long as services were satisfactory. Nor is it averred that appellant’s purported individual contract of employment provided that his employment would continue unless and until appellant gave just cause for discharge or that such provision was expressly negotiated or agreed to by the parties. Rather appellant only alleges the existence of a general company policy to this effect. As the trial court pointed out: “it is well established that failure to adhere to a company personnel policy does not create a cause of action for breach of an employment contract.” See Richardson v. Charles Cole Memorial, supra. Accordingly, we conclude, as did the court below, that the appellant has failed to state a cause of action by his allegations of wrongful discharge.

The remaining questions raised in this appeal were adequately answered by the court below. No further discussion is necessary.

Order affirmed.


text:
    507 A.2d 822
    Augustus J. PAPANDREA, Sr. and Geraldine I. Papandrea, His Wife, Appellants v. Barry J. HARTMAN.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed Feb. 26, 1986.
    Reargument Denied April 30, 1986.

      John J. Krafsig, Harrisburg, for appellants.
    Richard B. Swartz, Harrisburg, for appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Dauphin County, entered on a jury’s verdict in favor of defendant-appellee, Barry J. Hartman, and against plaintiffs, Augustus J. Papandrea, Sr. and Geraldine I. Papandrea, appellants, in a trespass action growing out of an automobile collision. We reverse.

Viewing the evidence in a light most favorable to the nonmoving party, defendant-appellee, the following appears of record: At approximately 3:30 P.M. on the 28th of May, 1982, appellee was driving his automobile on North Progress Avenue in Susquehanna Township, Dauphin County. It was not dark, and Hartman was moving at a reasonable rate of speed since the roadway was wet.

Hartman was approaching an intersection and could see, some 600 feet ahead, that another vehicle had stopped and its driver (appellant herein) was waiting for the traffic signal to change in his favor. The other vehicle was stationary in the left turning lane. Hartman slowed to enter the turning lane and began to apply his brakes. Hartman was traveling at less than 5 miles per hour, when his brakes allegedly failed, causing his vehicle to- strike that of appellants. Appellant, Augustus Papandrea, was rendered totally disabled from the collision.

The case proceeded to trial and a jury found for Hartman. Post-verdict motions were denied and judgment was entered for appellee and against plaintiffs-appellants. This appeal timely followed.

On appeal, appellants present five issues for our review. We address the first of appellants’ issues, which centers on the following relevant portion of the instruction to the jury by the court below:

[THE COURT]: Now, I want to point out to you some of the law that is specifically involved in a situation of this type. Now, remember that I did tell you that recovery is based on negligence.
The Defendant has pointed out in his request to the Court that this Defendant cannot be negligent because he asserts that the Defendant had brake failure and because of the brake failure the Defendant was not involved in any act of negligence. There is some law to this effect that when one finds himself in a position of danger that is not the result of his negligence, he is not responsible if he makes a mistake in judgment in getting out. An honest exercise in judgment is all that is required of him even if he could have done better had he had time to deliberate.
There is also some law to the effect that where there is mechanical failure such as a brake failure, and the party neither knew of it nor had reason to know that his mechanical failure would take effect and if in this particular case if you find that the action of the Defendant from the time of the brake failure until the moment of impact were not negligent, then of course the Plaintiff — excuse me, the Defendant, would be entitled to the invocation of this doctrine which we refer to as sudden emergencies.
On the other hand, there is a lot of law which is favorable to the Plaintiff and this has been referred to by the Plaintiff as the assured clear distance ahead rule. That rule reads as follows:
Any person having a vehicle on the highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface and width of the highway and of any other restrictions or conditions when and where existing; and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
Now, of course, you have got a lot of things to consider in that connection because we have had the Defendant who claims that he was going at something like five miles an hour; on the other hand, you have the Plaintiff pointing out that his car was damaged in the rear to the extent of two hundred and some dollars. You have a dispute as to that by the Defendant because the Defendant asserts that he observed the car and there was no damage that he was able to observe. This all goes into the question of credibility.
In connection with this conflict between the sudden emergency rule and the assured clear distance rule, there is some other law which is to the effect that the sudden emergency doctrine, where it is used in connection with the defense, you must consider the assured clear distance rule and in a case of this nature where the Defendant alleges that in the operation of the vehicle he developed an unforeseen defect in mechanisms it has been said that these alleged defects are of the type of unforeseen occurrences contemplated by the rule and that a person cannot invoke the sudden emergency doctrine if he is not driving his car at an assured clear distance and takes that chance of having an accident. Of course, again, I merely point out those rules to you.
Perhaps, I can read this. This is what one of the cases has said: ‘A defendant cannot invoke the sudden emergency doctrine as a defense to the assured clear distance ahead rule, where he alleges in the operation of his vehicle the developing of unforeseen defective mechanisms, as these alleged defects are not those types of unforeseen occurrences contemplated by the sudden emergency doctrine.’ So much for that.
There were no witnesses to the accident and you will have to determine whether or not, under these rules, the rules which I have given you in connection with negligence, the sudden emergency rule and the assured clear distance rule, whether or not this Defendant was negligent.
Now, if you determine from the evidence that there was no negligence on the part of the Defendant which was the proximate cause of the injuries to the Defendant — to the Plaintiff — the Plaintiff cannot recover. That is the end of the case and, of course, that was argued to you by the defense attorney.
On the other hand, if you conclude from the evidence that the Defendant was negligent and that his negligence was the proximate cause of these injuries to this Plaintiff, then your verdict would be for the Plaintiff and you would then come to consider the question of damages.
Now, we are not suggesting to you by what we have just said that the Defendant was negligent. That is not our function. You are the ones that have to make that determination. Once you make that determination then you come to this question of damages.

R.R. at 98a-101a.

Appellants’ allegation of error is that the trial judge improperly charged the jury on both the “Sudden Emergency Doctrine” and the “Assured Clear Distance Ahead Rule.”

Initially, it is well settled that:

where the accuracy of a charge is at issue, an appellate court must look to the charge in its entirety against the background of the evidence to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984); Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980). We must review the charge in this light.

Elder v. Orluck, 334 Pa.Super. 329, 342, 483 A.2d 474, 481 (1984) (allocatur granted). In reviewing the charge we must first determine whether a sudden emergency was proven by appellee, and, then, if the facts giving rise to the emergency leave no room for doubt, the issue becomes a matter of law for the judge. Polumbo v. DeStefano, 329 Pa.Super. 360, 366, 478 A.2d 828, 831 (1984).

This analytical framework must be built for “the presence of a sudden emergency negates the applicability of the ‘assured clear distance’ rule[.]” Id., 329 Pa.Superior Ct. at 365, 478 A.2d at 831; Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498, 454 A.2d 645 (1983) (where a sudden emergency arises the “assured clear distance ahead” rule is inapplicable). The distinction is relevant as:

[t]he case law in this Commonwealth indicates that the sudden emergency doctrine and the assured clear distance rule are mutually exclusive points of law and that in a given factual situation it is error to charge on both doctrines. Sullivan v. Wolson, 262 Pa.Super. 397, 396 A.2d 1230 (1979); Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978). This is based on the rationale that the assured clear distance rule applies to essentially static or static objects, including vehicles moving in the same direction, while the sudden emergency doctrine applies only to moving instrumentalities thrust into a driver’s path of travel. Brown v. Schriver, supra. However, there is case law for the proposition that it is proper for the court to charge on both points of law if the facts do not conclusively establish the existence of a sudden emergency situation. Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981).

Elder v. Orluck, supra, 334 Pa.Superior Ct. at 343-44, 483 A.2d at 481-82.

Therefore, at the apex of our decision is whether a “sudden emergency” actually exists under the facts of this case. The well-reasoned Chiodo opinion instructs us that “[t]he ‘sudden emergency’ doctrine was not designed for the purpose of aiding the operator of a vehicle developing unforeseen defective mechanisms. These defects were not those types of unforeseen occurrences contemplated by the ‘sudden emergency’ doctrine.” Id., 308 Pa.Superior Ct. at 502, 454 A.2d at 647 (emphasis added). In Chiodo this court found that the brake failure of a tractor-trailer did not give rise to a “sudden emergency” defense.

We note additional, if not conflicting, precedent in this state’s courts. Our supreme court in Gilligan v. Shaw, 441 Pa. 305, 272 A.2d 462 (1971), and our court en banc in Hartman v. Gieraltowski, 198 Pa.Super. 316, 181 A.2d 688 (1962), appear to recognize vehicular brake failure as justification for the application of the “sudden emergency” doctrine. We must, therefore, accept appellee’s defense of brake failure, if proven, as a sudden emergency.

Accepting, arguendo, that appellee was entitled to have the jury charged on the “sudden emergency” doctrine, the trial court’s additional charge on the “assured clear distance” rule was not improper. “[Wjhere the evidence leaves some doubt as to whether an emergency situation existed, there is a question of fact for the jury, and the jury should be instructed on both the assured clear distance ahead and sudden emergency doctrines. The dual instructions assures that the jury has the applicable law for whatever factual scenario they find occurred.” Ernst v. Ace Motor Sales, Inc., 550 F.Supp. 1220, 1226 (E.D.Pa. 1982), affirmed without opinion, 720 F.2d 661 (3d Cir.1983) (emphasis in original); Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981). Appellants, therefore, cannot be granted relief based on this allegation of error.

Appellants’ second contention of error is that the trial court erroneously permitted the jury to consider the defense of brake failure where no competent proof of such an alleged failure was produced at trial. With this we must agree.

“The ‘sudden emergency’ doctrine is available as a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately.” Chiodo, supra, 308 Pa.Superior Ct. at 500, 454 A.2d at 646. “A party who pleads the existence of an emergency bears the burden of proof on this allegation.” Stacy v. Thrower Trucking Inc., 253 Pa.Super. 150, 157, 384 A.2d 1274, 1277 (1978). Instantly, appellee alleges brake failure as the proximate cause of the rear-end collision which resulted in the ultimate injuries to appellant husband.

Appellee, at trial, offered no evidence other than his own testimony to satisfy his burden of showing that brake failure had actually occurred, a necessary requisite in the application of the sudden emergency doctrine to this case. Accordingly, appellee should not have received a sudden emergency charge at all.

As our supreme court noted in Pascale v. Simmons, 406 Pa. 476, 178 A.2d 549 (1962):

It is an easy thing for any driver involved in an accident to say that his brakes failed, but one can derive from such a remark many interpretations which do not exonerate the driver. The brakes, for instance, may have failed because the driver did not apply them properly, or at all. The brakes may have failed because they were defective and the driver knew they were defective. They may have failed because the driver was traveling at such speed that they could not catch hold in time to stop the car within the short distance still left him before reaching the object in his path.
Then, of course, it is not impossible that [the driver] was telling an untruth when he said his brakes failed. His utterance may have been a glib attempt to extricate himself from the difficult situation in which he found himself.

Id., 406 Pa. at 480, 178 A.2d at 551. In addition, we agree with the panel in Flavin v. Aldrich, 213 Pa.Super. 420, 425, 250 A.2d 185, 187 (1968) (en banc), that “testimony as to an automobile’s braking system ‘certainly dealt with a subject that was not common knowledge.’ ” It is noted that under cross-examination appellee acknowledged that he was not a mechanic. R.R. at 75a.

The jury was informed, through appellee’s testimony, that immediately prior to and following the accident, the brakes of his automobile performed without flaw. Appellee thereafter drove some 150 miles back to his home in New Jersey. He took the vehicle to the Chevrolet dealer from whom he purchased the car. This dealer found no evidence of brake failure. Another dealer inspected the vehicle and found there was no defect in the brake system and that the system was operating as designed. In addition, a third individual, a Chevrolet District Manager,, inspected the braking system and informed appellee that no defects were present in the system.

When appellee said his brakes failed, it was his burden to show that they did fail and that they failed through no fault of his own. Pascale v. Simmons, supra. For example, in Floravit v. Kronenwetter, 255 Pa.Super. 581, 389 A.2d 130 (1978) (en banc) the defendant was traveling at a distance of one car length behind the plaintiff’s vehicle, when at a speed of less than 5 m.p.h., the defendant lost braking power, and his truck collided with plaintiff’s stationary automobile, causing injuries to plaintiff. At the trial, the defendant called a mechanic who testified that an examination of the truck revealed a ruptured brake hose. The witness further testified that such a rupture would cause sudden failure of the braking system. The defendant also called the responding police officer who testified that he had engaged the brake pedal at the accident scene, finding no pressure on the pedal, which indicated brake failure. The court properly concluded, based on the above testimony, that the defendant was not negligent in failing to anticipate brake failure.

Similarly, in Flavin v. Aldrich, supra, the defendant therein alleged brake failure as the cause of a rear-end collision. The defendant produced the opinion evidence of a witness who had tested the brakes and who unequivocally stated that the brakes were defective because of a loss of brake fluid prior to the accident. The defendant also testified on her own behalf that her brakes failed, resulting in the accident. This was sufficient evidence on appeal to support a finding of defective brakes.

We are called upon in this case to determine whether a person who alleges temporary brake failure in a rear-end collision with another vehicle, may be exculpated by the defense of the “sudden emergency” doctrine based on only such person’s sole, non-expert, testimony. Although appellee may certainly testify as to his recollection of the facts surrounding the accident, we do not find that same personal opinion to satisfy the requisite burden in this case. We are not convinced by examination of the entire record that appellee has produced any competent evidence to substantiate actual brake failure other than his own BALD assertion thereof. A charge on sudden emergency, under the totality of circumstances, was error, and a new trial is thereby mandated.

“The jury may not be permitted to reach its verdict on the basis of speculation or conjecture; there must be evidence upon which its conclusion may be logically based[.]” Cuthbert v. City of Philadelphia, 417 Pa. 610, 615, 209 A.2d 261, 264 (1965). This does not mean that the jury may not draw inferences based upon all the evidence, for that is, of course, the very heart of the jury’s function. It means only that evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach an appropriate conclusion.

We believe that justice requires us to grant appellants a new trial. We, therefore, reverse the judgment of the court below and remand for new trial. Jurisdiction is relinquished.

      . Appellant raises the following issues:
      1. Did the lower court judge by improperly charging the jury on both the Sudden Emergency Rule and the Assured Clear Distance Emergency Rule, which are mutually exclusive doctrines, to totally confuse the jury as to demonstrably cause a miscarriage of justice; and to further cause a gross and palpable error in the verdict of the jury, by failing to correct the charge upon timely request and objection, but then to compound said error by attempting to overrule a Superior Court decision which holding he instructed the jury and which clearly demonstrated his error in charging on the Sudden Emergency Doctrine in the first place?
      2. Did the lower court judge erroneously permit the jury to consider the defense of brake failure, and demonstrably causing the shocking verdict of no recovery of a totally disabled Plaintiff-Appellant, when there was absolutely no competent proof of brake failure from any competent source?
      3. Did the failure of the lower court to properly sustain timely objection in the presence of the jury, to erroneous highly prejudicial and harmful remarks of counsel for the Appellee; both in his closing remarks to the jury on facts not in evidence, and which went to very issue of liability, but to further allow said counsel to demean the expert testimony of an expert actuarial witness on facts not in evidence, and against facts in evidence to form the hypothetical question?
      4. Did the failure of the court to properly charge on applicable Points for Charge, which errors were properly and timely preserved, including a totally inadequate charge of consortium, nor a proper charge as to the fact there was no requirement of mathematical exactness to establish pain and suffering and the requirements thereof, further cause the shocking verdict of the jury?
      5. In view of the uncontradicted evidence that Appellant, Augustus J. Papandrea, Sr., was totally disabled and there was not one scintilla of evidence of any negligence by him, was the verdict of the jury, in view of the totality of major trial errors committed, a miscarriage of justice and shocks judicial conscience to require the grant of a new trial?

        Brief for Appellants at 3-4. We note that these issues were properly preserved for our review.

      . First recognized in 1854, see Railroad Company v. Aspell, 23 Pa. 147 (1854), the “sudden emergency doctrine" is a defense available to a driver of a motor vehicle who suddenly and unexpectedly finds himself confronted with a perilous situation which he did not create, that permits no opportunity to assess the danger and appropriately respond. Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 409 A.2d 37 (1979). "A sudden and clear emergency may be a dust cloud, a moving object, a sudden blocking of the road, the sudden swerving of other vehicles or ... blinding lights.” Unangst v. Whitehouse, 235 Pa.Super. 458, 464, 344 A.2d 695, 699 (1975).

      . The "assured clear distance ahead rule” requires that a driver operate his vehicle in such a fashion that he is always able to stop within the distance he can clearly see. 75 Pa.C.S. § 3361. "[T]he ‘assured clear distance ahead' rule applied to those situations where the defendant’s vehicle was approaching a stationary object, whereas the 'sudden emergency’ doctrine applied to objects that were unforesee-ably thrust into the driver’s path.” Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498, 501-02, 454 A.2d 645, 647 (1983). Where a "sudden and clear emergency arises inside the range of the previously assured clear distance, the rule has been held inapplicable." Unangst v. Whitehouse, supra, 235 Pa.Superior Ct. at 464, 344 A.2d at 698 (emphasis in original).

      . Having granted appellants a new trial, we need not address the other issues. However, based upon an independent review of the record, and with benefit of oral argument, we find appellants’ remaining issues to be without merit.