author: TAMILIA, Judge:

text:
    594 A.2d 316
    STATE FARM INSURANCE COMPANIES, Bethel Park Service Center 88 Fort Couch Road Pittsburgh PA 15241 v. Betty Ann SWANTNER 59 Second Street Extension Donora, PA 15033, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1991.
    Filed July 3, 1991.

      J. Lawrence Hajduk, Uniontown, for appellant.
    Stephen P. McCloskey, Washington, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.
   TAMILIA, Judge:

This is an appeal from an Order compelling appellant, Betty Ann Swantner (Swantner) to submit to an independent medical examination as requested by appellee, State Farm Insurance Companies (State Farm). The Order was entered following the trial court’s finding of good cause shown in State Farm’s Petition to Compel Independent Medical Examination pursuant to the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1796(a), Mental or physical examination of person.

Appellant was injured in a motor vehicle accident on December 7, 1988. Shortly thereafter, she began a course of medical treatment including hydrotherapy, ultrasound and massage for a cervical/lumbosacral sprain allegedly sustained in the accident. The treatments, by Dr. Doyle Tarwater, were administered three times per week and continued through late June, 1989. Bills totalling approximately $4,000 were submitted to appellee, State Farm, who was responsible for paying insurance benefits as a result of the accident. The bills were paid until May 5, 1989.

Dr. Tarwater’s reports provided to State Farm indicated that as early as the end of December, 1988, and early January, 1989, appellant was feeling pretty well, and by April, 1989, appellant was fine except for a cold. Dr. Tarwater also reported on February 14, 1989, that he did not know at that time whether the injury would be permanent.

On March 24, 1989, State Farm requested appellant to submit to an independent medical exam because it had substantial doubt as to the necessity of the treatments being given. In addition, State Farm submitted Dr. Tarwater’s reports to a peer review evaluation. The May 25, 1989 report from the peer review evaluation indicated that although it had been six months since the injury, the nature and extent of the treatments being given had not changed. In addition, the soft-tissue type injuries sustained would typically have shown complete relief after one or two months of treatment. Also, the frequency of the treatments ordinarily would have been reduced in accord with the patient’s indications that she was feeling better.

On June 14, 1989, the peer review report was brought to the attention of appellant’s counsel, and again an independent medical exam was requested. The letter also notified appellant that based on the peer review results, it was making its final payment to Dr. Tarwater for treatment rendered through May 5, 1989. A third request for a medical exam was made on July 13, 1989, and in an August 30, 1989 letter, counsel for State Farm asked Dr. Tarwater to supplement his previously forwarded documentation to address some specific concerns. Also, on August 30, 1989, State Farm again requested that an independent medical exam be given. When no response was forthcoming, State Farm, on October 5, 1989, prepared a petition to compel independent medical examination, pursuant to 75 Pa.C.S. § 1796. On October 20,1989, the petition was presented to the trial court, along with an answer and new matter to the petition. The same day, the trial court entered an Order granting the petition and compelling the medical examination. This appeal from the October 20, 1989 Order followed. This Court, en banc, accepted the appeal for resolution of appellant’s arguments in light of the following consideration: Is there a conflict regarding the standards to be applied by the trial court in reviewing a motion to compel physical examination as set forth in State Farm Mutual Automobile Insurance Company v. Zachary, 370 Pa.Super. 386, 536 A.2d 800 (1987), and State Farm Insurance Companies v. Hunt, 390 Pa.Super. 620, 569 A.2d 365 (1990), and if so, how should it be resolved?

Appellant appeals from the Order compelling her submission to an independent physical examination on the basis that State Farm failed to meet the three-pronged good cause test for the examination as set forth in Zachary, supra. Swantner asserts the allegations of State Farm’s petition lack specificity, that the physical examination is sought in bad faith, that State Farm failed to utilize the less intrusive means of taking depositions of her and her attending physician, that State Farm improperly employed a peer review procedure in assessing her claim for payment for medical treatment and that the trial court erred in disposing of the petition on its allegations, alone, without utilizing the procedure set forth in Pa.R.C.P. 209, Duty of Petitioner to Proceed After Answer Filed. After a review of the applicable case law, we affirm the Order in question.

The standards for determining whether there is good cause, under 75 Pa.C.S. § 1796, for a court to order an independent medical examination has been set forth in the Zachary and Hunt cases as follows:

In Zachary, this Court stated:

“it is mandatory that the averments contained within a petition to compel a medical examination must rise to a level of specificity so as to ensure that a claimant will not be forced to submit to unnecessary examinations sought in bad faith. Accordingly, such petitions must illustrate a need, rather than a mere desire, for an independent medical examination.”

Further, quoting Nationwide Mutual Insurance Co. v. Fandray, 12 D. & C.3d 65, 70, 128 P.L.J. 63 (1979), the Court adopted the following three point test:

[T]o establish ‘good cause shown’, an insurer’s petition, at the minimum, must contain facts showing [1] that the proofs supplied in support of the claim are inadequate, [2] that the proposed physical examination will substantially assist the insurer in evaluating the claim and [3] that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.

Zachary, supra, 370 Pa.Superior Ct. at 390, 536 A.2d at 801. This holding was followed by our Court in State Farm Mutual Auto Insurance Company v. Allen, 375 Pa.Super. 319, 544 A.2d 491 (1988). In a Concurring and Dissenting Opinion by Judge Wieand, however, he stated he was “specifically in disagreement with the majority’s approval of the unnecessarily stringent three-element test for determining ‘good cause’ ” adopted in Zachary. Id., 375 Pa.Superior Ct. at 326, 544 A.2d at 494. In his dissent, Judge Wieand proposed a two part component test for establishing the requirement of good cause. It is this two part test which Judge Wieand later set forth in his majority Opinion in Hunt creating the conflict which caused this case to be submitted to the Court en banc.

In Hunt, our Court said:

“Before ordering a party to submit to an examination, however, a trial court should require a showing that a bona fide controversy exists regarding the nature of the claimant’s injuries. It must also be shown that the requested mental or physical examination will substantially aid the insurer in evaluating the claim.”

Id., 390 Pa.Superior Ct. at 367, 569 A.2d at 367.

To return to the beginning in our evaluation, the Vehicle Code provides as follows:

Mental or physical examination of person
(a) General rule.—Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the. examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.

75 Pa.C.S. § 1796.

The central issue in this case is the requirement that the Order be “for good cause shown.” As noted above, “for good cause shown” has been subject to judicial interpretation in conflicting manners requiring resolution by the Court en banc, which may be done de novo.

At the outset, it must be stated section 1796 does not provide a guideline and it must be liberally construed to effect the legislative objects and to promote justice. See 1 Pa.C.S. § 1928, Rule of strict and liberal construction. Guidelines sometimes aid in interpretation and expedite resolution of difficult legal and factual issues, but where they tend to deny the remedy or confuse the application of the statutory provision, they defeat their purpose. This is the point which produced the conflict between the panels of this Court in Zachary and Hunt. Zachary would apply stringent and restrictive standards of proof to permit grant of a petition for medical examination while Hunt would require no restrictions beyond existence of a conflict and necessity of the examination to aid the insurer to establish the claim.

Reviewing both tests, we believe Hunt comes closer to providing the elements necessary to fulfill the legislative intent within the rule of liberal construction, but we question the necessity of any test consisting of enumerated prerequisites. The central element of section 1796 at issue here, “[t]he order may only be made upon motion for good cause shown,” requires only that it be made upon motion and for good cause shown. Here, the trial court did not detail any enumeration of factors considered in granting the order for medical examination. If we are bound by our self-imposed restrictions, pursuant to Zachary or Hunt, in light of our numerous holdings in cases where this Court has imposed tests or guides, this case was subject to remand to have the court explain how its decision was arrived at in light of the judicially created standards. If we adhere to Zachary or Hunt but do not require the trial court to do so, we are faced with a self-imposed appellate rule which requires more of this Court in review than of the trial court in the first instance and places the various trial courts in a position where they have little guidance as to the manner in which we ultimately resolve this issue. If, however, we determine such standards to be unnecessary, a remand is not required. However, by stating simply that he determined the Order for medical examination to be justified for good cause shown, we are required to review the record, consisting of motions, affidavits, briefs and other materials reviewed by the trial court, to determine if the trial court abused his discretion.

Abuse of discretion in respect to the term good cause shown (for requested medical examination) is not so difficult a concept that detailed and restrictive provisions must be engrafted upon the statute to protect the litigants from judicial error. We sometimes become enamored with tests, steps and guidelines to the point where they interfere with the judicial function. Looking to the definition of “good cause shown,” Black’s Law Dictionary, 5th Edition, defines it as “substantial reason, one that affords a legal excuse, phrase “good cause” depends upon circumstances of individual case, and finding of its existence lies largely in discretion of officer or court to which decision is committed. Wilson v. Morris, Mo., 369 S.W.2d 402, 407 [1963].” (Emphasis added.) Mere desire on part of attorney to know what his adversaries believe, or mere desire to change a condition, is not itself good cause. Words and Phrases, “Good Cause,” pp. 28-29.

It may be helpful to evaluate section 1796 and its purpose as it compares with rules of deposition and discovery, specifically Pa.R.C.P. 4010, Physical and Mental Examination of Persons, which provides:

1) When the mental or physical condition (including blood group) of a party ... is in controversy, the court ... may order the party to submit to a physical or mental examination by a physician____ The order may be made only on motion for good cause shown____

Rule 4010, which predated section 1796 of the Vehicle Code, differs only in that it applies to a pending action as opposed to a claim for medical income loss or catastrophic loss benefits, and the rule requires that a controversy exists, whereas section 1796 merely provides the mental or physical condition is material to a claim. The provision of “good cause shown” is identical'in both. The terms “in controversy” and “material to any claim” cannot be read interchangeably. “In controversy” is read

“more broadly, to include any action in which the condition will be a material issue, although no personal injuries are claimed____
If the phrase “in controversy” is ambiguous, and capable of the two meanings which the federal cases have suggested, the history of physical examination in Pennsylvania makes it clear that the broader meaning is intended.

Goodrich-Amram 2d § 4010(a):4, p. 266.

“Material to the claim,” as contained in section 1796, limits the examination to those instances where the information is essential to confirm the need to pay or continue payment of the claim. Under Rule 4010, a controversy exists by virtue of a pending action in which the physical or mental condition of a party is at issue. As stated in Goodrich-Amram, this could arise in the course of an estate action, libel suit or paternity action. Under section 1796 of the Vehicle Code, the physical or mental condition material to a claim is specifically associated with the injury giving rise to the claim. In both the rule and the statutory section, the term “for good cause shown” relates to the need to know in conjunction with the relative facts of the case. This provision is generally understood to protect the parties against undue invasion of their rights to privacy. See Pa.R.C.P. 4010, Explanatory note (2) 1978); Goodrich Am-ram, Deposition and Discovery § 4010(a):4 Nt. 91.

In comparing the two similar but not identical provisions, we conclude section 1796 does not require a “controversy” as does Rule 4010, and “material to a claim” entails a more focused inquiry as to entitlement to payment. “For good cause shown,” therefore, does not relate to the existence of a controversy but to the continued necessity for treatment and requirement of payment. Thus the motion may arise out of a lack of knowledge rather than a controversy, and it is up to the trial court to determine whether, on the basis of information supplied, a medical examination is warranted to ascertain the needed information. This returns us to our earlier discussion. The motion will not be granted solely because there is a controversy or a desire to know. The appellant’s contention that the court erred in failing, first, to schedule arguments on disputed allegations or in the alternative to proceed under Rule 209 to take depositions is, therefore, without merit. Appellant alleges the court entered the Order granting the motion for examination without depositions being taken or scheduling oral arguments immediately following the filing of the answer to the motion. The justification for entering the Order without pursuing the procedure established by Rule 209 is that the record was clear from the pleadings and affidavits that depositions or arguments were unnecessary to a resolution of the motion, even if a controversy existed. From the pleadings and affidavits, the court was able to ascertain that the present physical condition was material to the claim. It was also evident that all reasonable non-intrusive means had been pursued to establish the justification or lack of it for continued payment. On the basis of the prior contacts and inquiries and by means of peer review, appellee was able to establish good cause for a medical examination and the matter was beyond the point where depositions or oral argument would aid in the resolution of that issue. When the burden of providing proof of good cause has been met, it is unnecessary to take depositions or proceed with oral argument. In this respect, Hunt is correct. Appellant’s argument that peer review was improperly employed by the insurer is an argument without legal support. Peer review is a proven method of establishing appropriateness of the nature and extent of treatment and violates no private or legal right of appellee. The enactment of a mandatory peer review system in the MVFRL, 75 Pa.C.S. § 1797(b), Customary charges for treatment, shortly after this appeal was taken, testifies to its validity and efficacy.

Finally, we must determine whether the court erred in failing to follow either or both of the procedures detailed in Zachary and Hunt to establish “good cause shown” for ordering the medical examination. We believe, as stated earlier, the evidentiary requirements those cases espouse are not essential to such a finding. If the record supports the conclusion by the trial court that the medical condition is material to the claim and the proof presented establishes good cause to evaluate that condition, nothing more is required by the statute. To return the matter to the trial court to state in his findings what we know to be supported by the record is a useless act. To require this Court to be bound by standards when we do not require the trial court to document its adherence to them is, as stated before, anomalous. Amount of the claim is not an issue and the medical proofs to support the claim, if inadequate, will necessarily be inherent in the insurer’s showing of good cause and be considered by the court in conjunction with the totality of the record. Likewise, proof that a controversy exists, while likely to be inherent in any request for a medical examination, is not an essential element of proof as would be required by Hunt. In contradistinction to Rule 4010, which requires the existence of a condition in controversy, which is construed broadly for procedural purposes, under section 1796 no controversy is required as the only consideration is whether the medical condition is material to the claim. If the controversy in a pending action (Rule 4010) relates to the very existence of a medical condition, this entails a fundamental issue as to the validity of the cause of action, and absent proof the case may not proceed. Good cause to obtain an examination under those circumstances is more liberally available. Here, the good cause shown requirement is related solely to the medical condition as it is material to the claim regardless of a controversy that would be the focus of a cause of action. Such a claim may be made independent of any cause of action and is a separate, non-ancillary proceeding that may be invited by the MVFRL pursuant to section 1796. As stated in Commonwealth v. Caputo, 365 Pa.Super. 431, 529 A.2d 1134 (1987), mere allegations by an insurer, including the insured’s substantial medical expenses, unsupported by the developed record, were insufficient cause to order a medical examination as allowed by this section. Conversely, mere denial of a motion for medical examination, in the face of competent proof of its necessity, will not invoke further procedures to enhance the proof because of the existence of a “controversy.”

If controversy becomes a key to grant or denial of a motion, the insurer may create a controversy simply by alleging lack of progress or extensive bills which it refuses to accept. Nor may the insured ignore reasonable limitations on treatment by continuing in treatment without validation or justification. Thus the entire focus must be on the condition which is material to the claim, and the trial court had discretion to ascertain whether good cause has been shown to permit the examination to evaluate that condition. The good cause requirement will prevent harassment, untoward intrusion and unwarranted examination when the proof presented does not meet the standard universally applied when good cause is implicated. Further classification of the standards required by Zachary and Hunt does not facilitate the required finding but restricts analysis and review when the trial court's discretion should be broad. In affirming the decision of the trial court, we find no abuse of discretion in failing to specifically apply the tests of Zachary and Hunt and in doing so reject the requirements they superimpose on section 1796.

Order affirmed.

BECK, J., concurs in the result.

      . An Order granting or denying a petition to compel an independent medical examination pursuant to section 1796(a) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1796(a), is a final, appeal-able one. State Farm Insurance Cos. v. Hunt, 390 Pa.Super. 620, 569 A.2d 365 (1990); State Farm Mutual Automobile Ins. Co. v. Zachary, 370 Pa.Super. 386, 536 A.2d 800 (1987); Keystone Insurance Co. v. Caputo, 365 Pa.Super. 431, 529 A.2d 1134 (1987).

      . Although State Farm in its petition and on appeal asserts no response was received to its request for the physical examination, appellant, in her answer to the petition and on appeal, avers her counsel telephoned State Farm adjuster Barbara Rubenstein and indicated no independent medical examination would be authorized.

      . In Meyers v. Travelers Ins. Co., 353 Pa. 523, 46 A.2d 224, 163 ALR 919 (1946), the Supreme Court adopted Wigmore’s view that “the duty to bear witness to the truth ... includes ... the duty to exhibit the physical body, so far as the ascertainment of the truth requires it.” This is a very broad standard.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    594 A.2d 322
    In re FRANCIS EDWARD McGILLICK FOUNDATION. Appeal of ROMAN CATHOLIC DIOCESE OF PITTSBURGH, Pennsylvania Robert Barozzini, Trustee All Other Trustees. In re FRANCIS EDWARD McGILLICK FOUNDATION. Appeal of Patrick CORBETT, Francis Corbett, Louis Anania and Robert Barozzini, the Trustees of the Francis Edward McGillick Foundation, Roman Catholic Diocese of Pittsburgh.
    Superior Court of Pennsylvania.
    Argued June 4, 1991.
    Filed July 5, 1991.

      Ralph H. German, Pittsburgh, for appellant (at 1561) and for participating party (at 1695).
    Vincent J. Grogan, Pittsburgh, for Robert Barozzini, appellant (at 1695) and for participating party (at 1561).
    Russell J. Ober, Jr., Pittsburgh, for all other trustees, appellants (at 1695) and for participating parties (at 1561).
    Before OLSZEWSKI, HUDOCK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

These are cross appeals from an order dismissing the exceptions filed by the Roman Catholic Diocese of Pittsburgh (Diocese) as well as the exceptions filed by the respondent Trustees. Diocese petitioned the Orphans’ Court of Allegheny County for the removal of Patrick Corbett, Francis Corbett, Louis Anania and Robert Barozzini (hereinafter collectively "Trustees”) as trustees administering the Francis Edward McGillick Foundation (Foundation). Diocese’s petition further requested that Trustees be surcharged to allow the Foundation to recover excessive fees which Trustees were alleged to have received. Following a six-week hearing, the Orphans’ Court, Judge Nathan Schwartz presiding, entered a decree removing P. Corbett, F. Corbett, L. Anania and R. Barozzini as trustees, ordering the filing of an accounting within 90 days, and denying the request for the surcharge. Timely exceptions were filed and denied by the court sitting en banc. This timely appeal followed.

On appeal, Diocese contends that the trial court erroneously denied the request for a surcharge because the Foundation’s net worth had increased under the stewardship of Trustees; further, that the evidence presented established the receipt of excessive fees and compensation by Trustees, justifying imposition of a surcharge in this case. Diocese’s final argument is that the trial court erred in allowing Trustees to retain an advance for legal fees to defend this action when Trustees are being removed for cause.

In their cross-appeal, Trustees challenge the sufficiency of the evidence relied upon to justify their removal. Trustees also claim that Diocese lacks standing to maintain this action and cannot bring this petition in its own name because Diocese is an unincorporated association. Further, Trustees contend that the equitable doctrine of unclean hands should be applied to prevent relief in this action, and that laches applies, requiring dismissal of this petition or, at minimum, a limitation of the inquiry to the period provided for in an analogous statute of limitations. Finally, Trustees claim that they are entitled to a total reimbursement of the legal fees and costs in this proceeding as the request for a surcharge was denied, and that they are entitled to compensation for the services rendered to the Foundation during the pendency of this action.

After a close examination of the contentions of the parties, we find merit to one argument set forth by each appellant. Diocese is correct that Trustees are not entitled to retain the funds advanced by the Foundation for legal fees and costs. Trustees are correct that they may be entitled to reasonable compensation for their services to the Foundation during the pendency of these proceedings. Therefore, we affirm in part and vacate in part, and remand for the trial court to determine the amount of compensation, if any, due Trustees.

The facts of this case may be summarized as follows: The Foundation was created by Francis E. McGillick and funded by his Last Will and Testament of May 26, 1936. (Reproduced Record [R.R.] at 1224-34a.) The will creates three funds. A priesthood fund was created by a gift of $25,000.00 to the Foundation which was to invest the money and render the income therefrom each year to Diocese to be used to educate poor men and boys for the priesthood. (R.R. at 1231a.) A sisterhood fund was created by a similar gift of $25,000.00 with the income to be used in the same manner to educate women to become nuns. (R.R. at 1231a.) The remainder of the property given the Foundation was to be used for the scholarship fund; one-half of the income from this property was to be rendered to Diocese to be distributed to worthy Catholics of both sexes between the ages of 16 and 40 for educational purposes. (R.R. at 1232-33a.) The Bishop and Advisory Board of Diocese were to select the recipients. (Id.) Payments under the scholarship fund were to cease when the Trustees determined that there were adequate funds to establish a vocational school in the Diocese of Pittsburgh. (R.R. at 1233a.) The Bishop and his Advisory Board were to aid in the establishment of the school. (Id.)

The property given to the Foundation consisted of all the shares in the F.E. McGillick Co.; this company in turn owned various subsidiaries which controlled commercial and residential real estate throughout the Southwestern Pennsylvania area. (R.R. at 1224a, 1236a.) The total value of the assets was $873,373.00 as of June 30, 1969. (1969 Petition for distribution.)

During the period in question, 1980-1986, Trustees controlled the Foundation. Each Trustee received an annual salary of $9,600.00. (R.R. at 357a.) Additionally, Barozzini received compensation as the attorney and real estate manager for the Foundation as well as for the McGillick Co. and its subsidiaries. (R.R. at 1284a.) Anania received additional compensation as the accountant for the Foundation, McGillick Co. and its subsidiaries. (Id.)

P. Corbett and F. Corbett did not take an active role as trustees, they attended meetings and made occasional phone calls, but were not involved in any decision making. (R.R. at 351-419a, 802-843a.) Additionally, F. Corbett rented property from the Foundation’s subsidiary at a rate which he determined. (R.R. at 842-43a.) Anania, despite being a trustee since January, 1982, never read the documents creating the trust until the present litigation began. (R.R. at 570a.) Although the trust documents require the filing of an annual accounting with the Orphans’ Court, Anania never prepared such an accounting in his tenure as accountant for the Foundation, nor has any such accounting ever been filed. (R.R. at 424a.) In substance, the Corbetts and Anania abdicated their responsibilities as trustees in favor of Barozzini, “who has had complete control in running the Foundation.” (Trial court opinion at 16, 17, 19.)

Barozzini certainly made good use of this complete control. Legal fees in the amount of $114,977.00 were charged to the Foundation from 1980-1986; however, no time records for the legal work were kept until 1984. (Trial court opinion at 20.) The real estate management fees collected by Barozzini were outlined by the trial court as follows:

[I]n 1980, he was compensated “at the rate of 5% commission on the rents collected, plus 10% supervision charge on the service type work that I supervised and arranged for at the various locations” (T. at 664). In 1982, the commission on the rental collection was raised from five percent (5%) to six percent (6%) but the supervision charge remained the same (T. at 665). In 1984 and 1985, in lieu of other compensation, he received a flat salary of Two Thousand Seven Hundred Dollars $2,700 per month (T. at 665). In 1986, the compensation scheme was changed to provide for a straight commission of the rentals of seven percent (7%), with no supervision charges (T. at 665).
A ten percent (10%) supervision fee was charged by Mr. Barozzini on expenditures which included: rental charges on his own leased cars (T. at 671); telephone bills (T. at 672); gas, oil, parking, maintenance and insurance for the two cars used by Mr. Barozzini exclusively and leased by the Foundation (T. at 675); monthly trash collection bills (T. at 675); and the Pittsburgh Press bills (T. at 676).
From 1980 to 1985, Mr. Barozzini collected real estate commissions, supervision fees and automobile expenses totaling $221,883 (T. at 453-55).
Jfe * * ají sfe *
From 1980 to 1983, Mr. Barozzini leased two cars for the purpose of inspecting property belonging to the Foundation____ Expenditures made in connection with the [vehicles] were charged to [the subsidiaries]. From December of 1981 through May of 1983, Mr. Barozzini paid thirty percent (30%) of the lease for the Buick and seventy percent (70%) was charged to [a subsidiary].

(Trial court opinion at 21-22.) Barozzini and his two children used the cars to check on properties owned by the McGillick Co. two or three times a week. (Id.) Barozzini did not maintain mileage logs for either vehicle. (Id.)

Barozzini also maintained an “Agency Account” where he commingled personal funds with those of the Foundation. (Id. at 23-24.) Anania, accountant for the Foundation, never audited or reconciled this account; the Corbetts were unaware of the operation of the account and never reviewed any records of it. (Id.)

Barozzini received a 10% supervision fee on expenditures paid to construction companies owned by James Stevenson for work on properties controlled by the McGillick Co. and hence, the Foundation. (Id. at 24.) At the same time, Barozzini performed legal work for Stevenson’s companies. (Id. at 25.) No competitive bids were obtained for the work on the properties performed by Stevenson’s companies. (Id.) In summary, Barozzini “provided himself with every fee, commission, charge and expense possible, while at the same time depleting Trust assets.” (Id. at 26.)

Diocese admits that between 1970 and 1986, it received $753,221.70 in distributions from the scholarship fund. (Diocese’s brief at 10.) Diocese was unable to identify one recipient of a scholarship from these funds. (Trial court opinion, at 29.) These fund were deposited to the Diocesan general accounts. (Diocese’s reply brief at 14.) The trial court found that all distributions from the scholarship fund had been, appropriated by Diocese for its own purposes without regard for the settlor’s intent. (Trial court opinion at 29.)

Before addressing the contentions of the parties, we note our standard of review. The factual findings of the Orphans’ Court are entitled to the same weight given a jury verdict. In Re Adoption of J.J., 511 Pa. 590, 594, 515 A.2d 883, 886 (1986). Where the auditing judge’s findings have been confirmed by the court en banc, they are conclusive unless unsupported by the record. In Re Estate of Lux, 480 Pa. 256, 262, 389 A.2d 1053, 1056 (1978). Absent an abuse of discretion or error of law, the trial court’s decision will not be disturbed. In Re Adoption of J.J., supra. The trial judge determines witness credibility and the weight to be accorded the evidence. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 501, 556 A.2d 819, 824 (1989). With these standards in mind, we now examine the appeals sub judice.

Trustees raise four issues as to the propriety of the Orphans’ Court hearing this petition: standing, capacity, unclean hands and laches; we dispose of these claims seriatim. Trustees assert that Diocese does not have standing to file this petition as Diocese is not a beneficiary of the scholarship fund. We agree that Diocese is not a beneficiary of this particular portion of the settlor’s largess, however, we do not agree that this precludes Diocese from having standing to pursue this action.

Trustees contend that standing is precluded unless a party can “plead and prove an immediate, direct and substantial injury.” (Trustees brief at 52, citing, 1000 Grand- view Assn., Inc. v. Mt. Washington Assoc., 290 Pa.Super. 365, 367, 434 A.2d 796, 797 (1981).) While true, this does not mean an economic injury must be present. “[I]t is clear that some interests will suffice to confer standing even though they are neither pecuniary nor readily translatable into pecuniary terms.” Wm. Penn Park, Inc. v. City of Pittsburgh, 464 Pa. 168, 193, 346 A.2d 269, 281 (1975).

The very terms of the trust document establishing the scholarship fund indicate the intimate connection Diocese was to have with this fund. Diocese is to select the recipients of the scholarships; it must approve the educational institution chosen by each recipient; and it is to be involved in the establishment of the vocational school. We hold today that these obligations imposed by the settlor give Diocese standing to allege malfeasance by Trustees who are to administer the Foundation. These obligations give rise to a “substantial interest,” an “interest other than the abstract interest of all citizens in having others comply with the law.” Id., 464 Pa. at 195, 346 A.2d at 282. See also, RESTATEMENT (SECOND) TRUSTS, § 391 (suit may be maintained by a person who has a special interest in the enforcement of the charitable trust). The intimate involvement of Diocese with the disbursement of the scholarships is such a special interest.

Trustees also contest Diocese’s capacity to sue, claiming that, as an unincorporated association, this action must be brought in the name of a member as trustee ad litem. (Trustees’ brief at 55, citing Pa.R.Civ.P. 2151, 2152.) Trustees cite the Roman Catholic Code of Canon Law, Canon 369, for the proposition that Diocese is an association of the people of God engaging in activities under a common name. Thus, Trustees contend, that Diocese is an unincorporated association under Rule 2151. Then-Bishop of the Pittsburgh Diocese, Anthony J. Bevilacqua, a canon as well as common law lawyer, testified that the Diocese of Pittsburgh is a public juridic person under canon law; in effect, Diocese and the Bishop are one in the same. (N.T., 12/7/88, at 42, 51.) Thus, Diocese argues that bringing suit in the name of the Diocese is the equivalent of complying with Rule 2151.

We agree with Trustees that this case should have been brought in the name of the Bishop as trustee ad litem,. See, Alesczyk v. Glen Alden Corp., 53 Luz.L.Reg. 104, 29 Pa.D. & C.2d 138 (1962). Canon law declaring the Bishop and the Diocese as one in the same does not apply in our civil law system. Nonetheless, this deficiency in the pleadings does not compel us to remand this case with direction to dismiss. A party may amend his pleadings to correct the name of a party. Pa.R.Civ.P. 1033, 42 Pa.C.S.A. Such amendments are allowed even after an appeal has been taken from a judgment and award. Sullivan v. Allegheny Ford Truck Sales, 283 Pa.Super. 351, 357, 423 A.2d 1292, 1295 (1980). Absent prejudice to the opposing party, such amendments to the pleadings are to be liberally allowed; the goal of the judicial system is to secure a determination on the merits, not enforce technical rules of pleading. Gallo v. Yamaha Motor Corp., USA, 335 Pa.Super. 311, 313, 484 A.2d 148, 150 (1984).

Trustees have not, and apparently cannot, argue that an amendment changing the named party to the Bishop as trustee ad litem for the Diocese prejudices them. No new party is added to the action; no new theory of liability is presented; no new discovery or evidence is necessary. Trustees have known since the inception of this dispute which entity has sought equitable relief; the failure to correctly name the party is a technical defect which can be cured by amendment. See, Commonwealth, Liquor Control Board v. Rapistan, Inc., 14 Pa.Cmwlth. 501, 503, 323 A.2d 410, 412 (1974), rev’d on other grounds, 472 Pa. 36, 371 A.2d 178 (1976). Accordingly, Diocese is directed upon remand to amend its pleadings to bring this action in the name of the now Bishop as trustee ad litem for Diocese.

Trustees attempted to procedurally bar this petition by raising the doctrine of unclean hands. Specifically, Trustees claim that as Diocese has misappropriated the disbursements made under the scholarship fund, it is preeluded from pursuing this action. Again, we disagree. It is true that one who seeks equitable relief must appear before the court with clean hands. Mazer v. Sargent Electric Co., 407 Pa. 169, 173, 180 A.2d 63, 65 (1962). One guilty of wrongdoing should be denied access to the court. In Re Estate of Pedrick, 505 Pa. 530, 543, 482 A.2d 215, 222 (1984). The doctrine is applicable when the wrongdoing directly relates to the matter in controversy and affects the relationship between the parties. Jackson v. Pelusi, 379 Pa.Super. 361, 371, 550 A.2d 199, 204 (1988).

The record supports the trial court’s finding that Diocese has not complied with the obligations of the trust in handling the disbursements made under the scholarship fund. This does not however, mandate application of the equitable maxim. Unclean hands will not be invoked where its application will produce inequitable results, especially where the rights of innocent parties are involved. Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 558, 244 A.2d 10, 14 (1968). The chancellor may refuse to apply the doctrine if, on the merits, an inequitable result will be reached. Shapiro v. Shapiro, 415 Pa. 503, 507, 204 A.2d 266, 268 (1964).

In light of the record, we see no abuse of discretion in the trial court’s failure to dismiss this petition due to Diocese’s unclean hands. While it is true that Diocese has not acted in accord with the terms of the trust, the record is replete with evidence that Trustees abused their position in their administration of the Foundation. Dismissal of this petition would clearly lead to an inequitable result adversely affecting the rights of potential scholarship recipients; this we will not do.

Both parties also complain about the period of time examined by the trial court. Trustees argue that the doctrine of laches dictates that the petition be dismissed or the examination be limited to the period 1983-1986. The Diocese argues that laches is inapplicable and that, as they have documented alleged abuses of trust as far back as 1970, the trial court should have examined the period 1970-1986. We disagree with both contentions.

We agree with Trustees that the laches doctrine applies to actions regarding the enforcement and interpretation of trust agreements. See, DiLucia v. Clemens, 373 Pa.Super. 466, 472, 541 A.2d 765, 768, alloc. denied, 520 Pa. 605, 553 A.2d 968 (1988). A party asserting laches must show a delay arising from the other party’s failure to exercise due diligence, and resultant prejudice. Kehoe v. Gilroy, 320 Pa.Super. 206, 212, 467 A.2d 1, 4 (1983). The trial court ruled that it would examine the period 1980-1986, as a fire occurred in 1980 which might impair the Trustees’ ability to defend this action. (Trial court opinion at 8.) It is true that Diocese was aware of the existence of the Foundation as early as 1956 and was monitoring Trustees’ activities as early as 1968. (N.T., Vol. IV, at 1340.) Thus, there is no difficulty in finding that Diocese did not exercise due diligence. Nonetheless, by limiting the period of inquiry, the trial court prevented prejudice to Trustees. To the extent the fire hindered the defense, events occurring before the fire did not substantially impact the trial court’s decision.

Trustees claim that witnesses to the events in question have died, preventing an adequate defense. No specific claims as to what evidence those witnesses would have presented,. or that any witness to an event subsequent to 1980 has died, has been presented. Absent such a concrete showing, this claim is meritless. Miller v. Hawkins, 416 Pa. 180, 192, 205 A.2d 429, 435 (1964). By restricting the examination to the post-1980 period, the trial court prevented any prejudice to Trustees. Thus, laches does not require dismissal of Diocese’s petition.

Trustees’ final laches argument is that the trial court should have only considered the period 1983-1986. Trustees rely on Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975), for the proposition that relevant statutes of limitations may be used to provide guidance as to the reasonableness of delay. Next, Trustees assert that the contractual limitations statute [42 Pa.C.S.A. § 5525] is most analogous to a written trust agreement, and so should limit the inquiry to the period 1983-1986. We do not agree.

Initially, the Kay Court was careful to note that statutes of limitations are not controlling in equity. Id., 460 Pa. at 684, 334 A.2d at 587. Further, the trial court opinion is clear that the ongoing course of conduct from 1980-1986 led to its decision to order the Trustees’ removal. Trustees have not argued, and indeed we see no basis for arguing, that, had the trial court only examined the period 1983-1986, the same course of conduct would not have led to the same result. Thus, if it was error to examine the period 1980-1982, it was harmless error at best.

Diocese claims that the trial court should have examined all evidence relating to the period 1970-1986. As noted above, the Diocese was aware of Trustees’ activities as early as 1956. Thus, we see no error in the trial court’s limiting its inquiry to the period 1980-1986 as Diocese did not exercise due diligence. Diocese claims that Trustees have not shown prejudice because they have not demonstrated any evidence lost in the 1980 fire. We disagree. It is precisely because the passage of time has made it impossible to ascertain what may or may not have been destroyed that the trial court limited its inquiry. We find no error here.

Diocese’s major complaint is the trial court’s failure to surcharge Trustees for excessive fees and commissions. Initially, we note that the trial court never made an express finding that either of the Corbetts or Anania charged excessive fees to the Foundation. The Corbetts and Anania were removed for their failure to actively participate in the management of the Foundation.

Diocese argues that a finding of abdication automatically implies that any fees received by the Corbetts were excessive. Further, Diocese cites extensive excerpts from the record which indicate that Anania’s accounting fees were excessive. Omitted from this list is the countervailing expert testimony that Anania’s fees were not excessive. We see no error in the trial court’s refusal to surcharge the Corbetts or Anania. The record shows no fees beyond the annual salary was received by the Corbetts. The trial court was free to accept the testimony that Anania’s accounting fees were not excessive.

The purpose of a surcharge is reimbursement for losses, not punishment of the fiduciary guilty of nonfeasance. Freedman Estate, 1 Pa.Fiduc.Rep.2d 60, 68 (Al-leg.Co.1980) aff'd., 307 Pa.Super. 413, 453 A.2d 651 (1982). Here, no losses were attributed to the Corbetts or Anania; it was not error for the trial court to deny Diocese’s request for the surcharge.

Diocese’s request for a surcharge against Barozzini is likewise faulty. Barozzini was removed for self-dealing, among other defalcations. (Trial court opinion at 26.) In essence, the Corbetts and Anania allowed Barozzini to run the Foundation and he took full advantage of that abdication. The Diocese relies heavily on the trial court’s finding that Barozzini “provided himself with every, fee, commission, charge and expense possible, while at the same time depleting Trust assets.” (Id.) Noticeably absent from this language is any finding that any fee or commission charged by Barozzini was excessive or that any loss to the Foundation was attributable to his conduct.

More importantly, Diocese argues as if it were entitled to a surcharge as of right. A surcharge is one of a variety of remedies which the Orphans’ Court may impose for mismanagement of a trust fund. Freedman Estate, supra. Other possibilities include removal or injunction. The Orphans’ Court is endowed with all chancery powers. LaRocca Trust, 411 Pa. 633, 637, 192 A.2d 409, 411 (1963). This includes the power to select which remedy it considers most appropriate to effect an equitable result. We agree that a trustee may be compelled to refund excess compensation. See, In Re Beaver Trust Co.’s Appeal, 146 Pa.Super. 545, 22 A.2d 111 (1942). Nonetheless, absent an abuse of discretion, we will not second guess the trial court’s choice of which remedy is appropriate in a given factual situation. We see no abuse of discretion in the decision to refuse to impose a surcharge in addition to removal.

Diocese’s final argument has merit. Trustees were advanced $30,839.41 for legal fees and costs associated with the defense of this action. Such fees were allowed with the express provision that if Trustees lost this case, they would be liable for this amount. (R.R. at 1762-65a.) Trustees argue that, as no surcharge was imposed, they have won a portion of the case and are entitled to the advance. We disagree.

Trustees, like Diocese, have confused one of the available remedies with a cause of action. Mere avoidance of one of a plethora of penalties which the Orphans’ Court could impose does not amount to a victory for Trustees. The trial court order clearly removes for cause all the defendants as trustees of the Foundation. We find this difficult to classify as prevailing on the merits of the case. A trustee who successfully defends an action for removal is entitled to costs out of the trust estate. Coulter Estate, 379 Pa. 209, 219,108 A.2d 681, 686 (1954). A trustee who is removed for cause is personally liable for such costs. P.L.E., Trusts, § 419. Here the Trustees were removed for cause; by the terms of the express provision, they are liable for the amount of the advance.

Trustees argue that there was insufficient evidence to justify their removal. Again we disagree. It is true that removal of a trustee is a drastic remedy which should be employed only when clearly necessary. In Re White, 321 Pa.Super. 102, 104, 467 A.2d 1148, 1150 (1983), rev’d. on other grounds, 506 Pa. 218, 484 A.2d 763 (1984). An order removing a trustee will only be reversed however, if there has been an abuse of discretion. Crawford’s Estate, 340 Pa. 187, 190, 16 A.2d 521, 523 (1940).

Trustees cite us to the Decedents, Estates and Fiduciaries Code as delineating the grounds for removing a trustee. See, In Re White, supra, citing 20 Pa.C.S.A. § 7121. A trustee may be removed if “the interests of the estate [or trust] are likely to be jeopardized by his continuance in office.” 20 Pa.C.S.A. § 3182(5). The record supports the finding that the continuation of this group of fiduciaries jeopardizes the Foundation. That finding having been affirmed by the Orphan’s Court en banc, it is conclusive as it is supported by the record. In Re Estate of Lux, supra.

Anania and the Corbetts were removed for abdicating their office and allowing Barozzini a free hand to run the Foundation as his personal satrapy. As fiduciaries, trustees are expected, at a minimum, to participate in the administration of the trust. RESTATEMENT (SECOND) TRUSTS, § 184. By their conduct, Anania and the Corbetts allowed the Foundation to be mismanaged. Clearly, their continuation in office jeopardizes the Foundation.

Barozzini commingled personal and Foundation funds in the agency account. Barozzini also engaged in self-dealing. The record supports these findings, therefore they are conclusive. His continuation as a trustee is not in the best interest of the Foundation. We see no abuse of discretion in the trial court’s removal of Trustees.

Trustees argue that the trust agreement contains an exculpatory provision relieving them of liability for their acts while in office. Generally, such provisions are given effect. Estate of McCredy, 323 Pa.Super. 268, 296, 470 A.2d 585, 600 (1983). Nonetheless, we will not honor such a clause if by doing so we will violate public policy. In Re Estate of Janney, 498 Pa. 398, 401, 446 A.2d 1265, 1266 (1982) (citations omitted). Self-dealing, commingling of funds, and abdication of responsibilities by fiduciaries runs counter to the core concept of the duty of a fiduciary. “A person having duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking.” BLACK’S LAW DICTIONARY, 5th Ed., p. 563. We see no abuse of discretion in the trial court’s failure to give effect to the exculpatory provision as it would violate public policy to allow Trustees to escape the consequences of their nonfeasance and malfeasance.

Trustees’ final argument is meritorious. As a group, Trustees continued to manage the affairs of the Foundation during the pendency of this action. “The ultimate rule is compensation for services rendered.” In Re Henry’s Estate, 341 Pa. 439, 449, 19 A.2d 66, 71 (1941). The trial court must determine the amount of reasonable compensation, if any, due Trustees for services rendered during this period. We will not, however, allow Trustees to set their rate of compensation for their services. Trustees are ordered to submit detailed summaries of their services rendered during the pendency of these proceedings and the trial court shall determine if any compensation is due Trustees for same.

In summary, we find that Diocese has standing to pursue this action but must amend its pleadings to bring this petition in the name of the Bishop as trustee ad litem. We further find no error in the trial court’s choice of the period to be examined or in its refusal to dismiss this petition under the doctrine of unclean hands. The findings as to the nonfeasance and malfeasance of Trustees, having been confirmed by the Orphans’ Court en banc and being supported by the record, are conclusive and will not be disturbed by this Court. Nor will we invade the trial court’s discretion in its choice of which remedy to apply by awarding a surcharge in addition to the removal of Trustees. We remand this case for this trial court to specifically determine what fees, if any, Trustees are entitled to and to order Trustees to repay all amounts advanced for legal fees and expenses related to the defense of this action.

Order of the trial court affirmed in part and vacated in part. Case remanded for proceedings in accord with the above decision. Jurisdiction relinquished.

      . There is also evidence that F. Corbett engaged in self-dealing by renting premises from a Foundation subsidiary. Further, the record is clear that no annual accounting as required by the trust document was ever filed. At argument, counsel for Trustees argued that, as they had filed annual tax returns with the IRS and statements with the Pennsylvania Attorney General, they should be excused from failing to file the annual accountings. We find this argument puzzling. We see no basis for holding that compliance with statutorily imposed duties excuses non-compliance with the express provisions of the trust document.

      . The same reasoning leads us to refuse Trustees’ request that the Foundation pay all legal fees and costs associated with these proceedings.

      . Trustees argue that the trust document establishing the Foundation allows for the appointment of one trustee to act for all. Such provisions are effective. See, RESTATEMENT (SECOND) TRUSTS, § 171. We are concerned, however, with what did happen, not what might have happened or could have been done. No evidence that any such appointment was made has been presented. Absent any such appointment, Anania and the Corbetts are chargeable, not only with their own actions, but also with those acts of their co-trustees which their failure to exercise reasonable care allowed to occur. RESTATEMENT (SECOND) TRUSTS, § 224(2)(d). Accordingly, we disregard this argument.

      . At argument, counsel for Barozzini argued that commingling did not occur as follows: Foundations funds were deposited to the agency account, Barozzini did not deposit his own funds to that account, rather he merely failed to withdraw his fees as they came due, thus as Barozzini did not deposit personal funds he did not commingle. We disagree. The trial court found that Barozzini paid personal expenses from the account, in effect, he treated those funds as his own, commingling his fees with the funds of the Foundation.

      . We note that any services related to the defense of these proceedings are not compensable as our decision above makes clear that Trustees are not entitled to costs or fees because they are being removed for cause.


author: POPOVICH, Judge:

text:
    594 A.2d 333
    J.C. SNAVELY & SONS, INC., Appellant, v. WEB M & E, INC. and the Cincinnati Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed July 8, 1991.
    Petition for Allowance of Appeal Denied Dec. 9, 1991.
    Dale E. Lapp, Lancaster, for appellant.
    Kirk L. Wolgemuth, Lancaster, for appellees.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves an appeal from the September 11,1990, order of the Court of Common Pleas of Lancaster entering judgment, on a case stated basis, in favor of the Plaintiff/Appellant (J.C. Snavely & Son, Inc.) and against the Defendants/Appellees (Web M & E, Inc. and The Cincinnati Insurance Company) in the amount of $22,853.04 plus interest at the legal rate amounting to $2,037.13 for a total award of $24,890.17. We affirm.

The facts, which are not disputed, consist of the following: On May 31, 1988, Web M & E, Inc., as principal, and The Cincinnati Insurance Company, as surety, entered into a “Labor and Material Payment Bond” agreement in favor of North Star, Ltd., as obligee/owner, for the use and benefit of claimants providing labor and materials at a work site known as Oak Manor.

When the Plaintiff was not paid for materials supplied to Gerald S. Wall t/a GSW General Contracting Company, a subcontractor performing work for Web at the Oak Manor project, a complaint was filed seeking the monies claimed due and owing for supplies provided, plus finance charges and attorney’s fees accrued under a “Business Credit Application” signed by GSW obligating it to pay for such costs if payment were not made timely for goods provided.

The Plaintiff alleged in its complaint, as well as documents filed thereafter, that pursuant to the terms of the Bond it was a “claimant” entitled to recoupment of the monies due it for the value of the materials provided to GSW for the Oak Manor project. Additionally, the Plaintiff argued that, consistent with its “Business Credit Application”, finance charges and attorney’s fees were subject to recovery via the Bond.

By order dated December 6, 1989, the court denied initially the request for finance charges and attorney’s fees claimed due by the Plaintiff. Thereafter, following the presentment of preliminary objections, briefs by each side supportive of their respective positions, an amended complaint and objections filed thereto, the parties submitted the dispute for resolution on a case stated basis, with specific reservation of the right to appeal from the judgment.

The court found in favor of the Plaintiff, awarded it the money sought under the Bond agreement for the materials supplied, as well as issuing it interest at the legal rate on the amount found due and owing the Plaintiff. However, the request of the Plaintiff for attorney’s fees was denied. This appeal followed and raises the single issue of whether the Plaintiff is entitled to payment of the finance charges and attorney’s fees, to which GSW contractually obligated itself to pay under the* terms of the “Business Credit Application”, as a part of the “sums as may be justly due” it as a “claimant” under the Bond agreement.

We begin our analysis with a review of the Bond to ascertain the true intent and meaning of the instrument and the parties who are bound thereby. See Monongahela Street Railway Co. v. Phila. Co., 350 Pa. 603, 39 A.2d 909 (1944). The relevant portion of the document reads:

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if the Principal [Web M & E, Inc.] shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions:
(1) A claimant is defined as one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract.
(2) The above-named Principal and Surety [The Cincinnati Insurance Company] hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner [North Star, Ltd.] shall not be liable for the payment of any costs or expenses of any such suit. [Emphasis added]

Our examination of the law in Pennsylvania has failed to uncover any case in which the phrase: “sums ... justly due” has been interpreted within the context of a surety bond.

Nonetheless, we are not foreclosed from seeking guidance from our federal counterpart on the issue posed. See Commonwealth v. National Union Fire Insurance Co., 434 Pa. 235, 252 A.2d 593 (1969); Salvino Steel & Iron Works, Inc. v. Fletcher & Sons, Inc., 398 Pa.Super. 86, 580 A.2d 853 (1990); Lezzer Cash and Carry, Inc. v. Aetna Insurance Co., 371 Pa.Super. 137, 537 A.2d 857 (1988). In so doing, we find Knecht, Inc. v. United Pacific Insurance Co., 860 F.2d 74 (3rd Cir,1988), to be instructive.

In Knecht, a surety appealed a summary judgment in favor of a sub-subcontractor/Knecht, Inc., which had filed a claim with the surety on a bond for a subcontractor’s failure to pay Knecht, Inc. for services performed and materials provided at a worksite. Knecht, Inc. asked for and received money owed with interest plus attorney’s fees on its motion for summary judgment.

The district court predicated its award of attorney’s fees on the language in the bond allowing a claimant to recover “sums ... justly due”. On review, the Third Circuit Court of Appeals affirmed the summary judgment but reversed the order for attorney’s fees. Its rationale for doing so was stated thusly:

The bond provides that every claimant who has not been paid for work or labor done or performed or material furnished may sue on the bond for such sum or sums “as may be justly due.” Thus, the bond does not specifically allow recovery of attorney’s fees. Further, inasmuch as [the surety’s] obligation cannot be extended beyond the language of the bond, we need only resolve whether the attorney’s fees may be regarded as a sum “justly due.”
The district judge noted that unless the fees were paid, Knecht would not be made whole. This undoubtedly is correct but the judge’s holding proved too much, as it is always true that when a plaintiff must make expenditures for attorney’s fees to recover a debt it will not be made whole unless its fees are also recovered. Further, whenever a person is indebted to another the sum owed may be regarded as justly due. For example, a patron’s obligation on an open account for merchandise purchased from a merchant may be said to be for a debt “justly due.” Thus, we see no significance with respect to attorney’s fees in the fact that Knecht may sue for a sum “justly due.” In fact, we can hardly conceive of how a bond could be written to authorize a claimant to sue for anything less than a sum justly due. We also observe that in some contracts express provision is made for recovery of attorney’s fees in the event of an action for a breach. Yet in [the surety’s] bond no reference was made to attorney’s fees. In the circumstances, we conclude that attorney’s fees are not recoverable in this action.
While we are directed to no Supreme Court of Pennsylvania case controlling our result, precedent supports our conclusion. In Can-Tex Industries v. Safeco Ins. Co., 460 F.Supp. 1022 (W.D.Pa.1978), an action decided under Pennsylvania law, the court held that a surety on a payment bond on a construction contract conditioned on the payment by the principal of all money due any claimant for labor or materials on the project, was not liable for attorney’s fees when the principal defaulted as the fees were not due for labor or materials. While Can-Te[x] was in part based on statutory interpretation, it supports our result. Recently the Supreme Court of Ohio in Dean v. Seco Electric Co., 35 Ohio St.3d 203, 519 N.E.2d 837 (1988), considered a case in which a contractor had delivered a labor and material bond with language authorizing an action against the surety identical to that in the bond in this action. In Dean the principal had underpaid employees in violation of the prevailing wage statute. The court held that under the bond, statutory penalties for underpayment and attorney’s fees incurred by the employees in bringing the action could not be regarded as sums justly due. Thus, the surety was not liable for them. Dean is a compelling precedent.
Further, our result is consistent with F.D. Rich Co. v. United States, 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), in which the Supreme Court determined that under federal law a Miller Act bond posted by a contractor to protect persons supplying labor and material did not authorize an award of attorney’s fees when the contractor failed to make payment even though the plaintiff was entitled to recover such sum as was “justly due.” 40 U.S.C. § 270b(a). The court noted that a contrary result in the context of everyday commercial litigation would have obviated the American rule that each litigant must bear the cost of its own legal representation. 417 U.S. at 130-31, 94 S.Ct. at 2165-66. While Rich is not binding on us as we decide this case under Pennsylvania law, it nevertheless is extremely instructive. Certainly the reasoning in Rich is directly contrary to that of the district judge....

860 F.2d at 80-81 (Citation omitted). In like fashion, this Court in Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 454 A.2d 39 (1982), held that service/finance charges were not covered in the surety bond sought to be enforced by Reliance (supplier) for amounts due for labor and materials supplied to Renda (general contractor) for a construction project.

Despite language in the service contract between the supplier and general contractor for a 1 1/2% per month fee on all past due accounts, the Reliance Court observed that:

When a bond is executed, it is the language of the bond that is determinative of the surety’s obligation and not the agreement between the [general] contractor and his materialman.

308 Pa.Super. at 108, 454 A.2d at 45. Thus, because the surety did not obligate itself to pay such a service fee in the surety agreement, it would not be bound by the contract between the supplier and general contractor. The surety guaranteed to pay for the costs of “labor and materials used or reasonably required for use in the performance of the contract.” It did not burden itself, therefore, with the payment for all claims that might be made against the general contractor but only for costs of labor and materials, neither of which could be interpreted to include a “finance charge”. Accord Lite-Air Products, Inc. v. Fidelity & Deposit Co. of Maryland, 437 F.Supp. 801, 804 (E.D.Pa. 1977).

Instantly, just as in Knecht and Reliance, the surety agreement made no specific mention of the surety obligating itself to pay for attorney’s fees and/or finance charges arising out of any claims filed. Therefore, we are bound by the terms of the bond in ascertaining the liability of the surety, and we need not look to some subsidiary agreement between a general contractor and supplier for such does not impact upon the obligations of a surety under a bond agreement. Salvino, supra; Reliance, supra.

Moreover, as the Pennsylvania Supreme Court wrote in Fidelity-Philadelphia Trust Co. v. Philadelphia Transportation Co., 404 Pa. 541, 548, 173 A.2d 109, 113 (1961):

The settled law of this Commonwealth is that attorneys’ fees are recoverable from an adverse party to a cause only when provided for by statute, or when clearly agreed to by the parties.

Accord Com. of Pa., Dept. of Trans. v. Manor Mines, Inc., 523 Pa. 112, 565 A.2d 428, 433 (1989).

At bar, there is neither a statute authorizing the payment of attorney’s fees to the Appellant (supplier), nor was there any evidence presented clearly establishing the existence of any agreement to do so by the parties. Id.

Accordingly, viewing the language of the bond in question under the applicable law, we hold that there is no clear indication necessitating that we find that the Appellant should be entitled to secure finance charges and/or attorney’s fees under the labor and material bond agreement executed by the general contractor (Web M & E, Inc.) and the surety (The Cincinnati Insurance Company).

Order affirmed.

      . The September 11, 1990, order was reduced to judgment on October 5, 1990.

      . We are aware that there are federal cases which hold to the contrary. See United States v. National Union Fire Insurance Co. of Pittsburg, 876 F.2d 92 (11th Cir.1989) (attorney’s fees are recoverable under a surety bond issued in compliance with the federal Miller Act); United States v. H.R. Morgan, Inc., 554 F.2d 164 (5th Cir.1977) (semble); D & L Construction Co. v. Triangle Elec. Supply Co., 332 F.2d 1009 (8th Cir.1964) (semble); Travelers Indemnity Co. v. United States, 362 F.2d 896 (9th Cir.1966) (semble); United States v. E.J.T. Constr. Co., 517 F.Supp. 1178 (E.D.Pa.1981) (semble); but see United States v. Western States Mechanical Contractors, 834 F.2d 1533 (10th Cir.1987) (subcontractor may not recover attorney’s fees in federal Miller Act bond claim without first establishing one of the federally recognized exceptions to the traditional American Rule that each party is responsible for its own fees; exception being party sued acted in bad faith or the parties provided for the same in a contract). We are not bound to follow such precedence given that the issue has been held to be to the contrary in this jurisdiction. See Reliance, supra.
      We would note that the Appellant’s reliance on Commonwealth v. Continental Casualty Co. 429 Pa. 366, 240 A.2d 493 (1968), is misplaced inasmuch as there the Court merely held that a surety bond claimant is entitled to interest on his claim, notwithstanding absence in the bond of any language providing for the recoupment of interest. No mention was made of the entitlement of finance charges and/or attorney’s fees. Thus, we do not look to Continental Casualty Co. as requiring a different result than we have reached here.


author:
OLSZEWSKI, Judge:
      HOFFMAN, Judge,

text:
    594 A.2d 337
    Ronald L. CARNS and Jacqueline Carns, his Wife, Appellants, v. Nathaniel YINGLING, M.D., J.P. Davidson, D.O., Clearfield Hospital, B.V. Condon, P.T. and C. Kephart, R.P.T., Appellees.
    Superior Court of Pennsylvania.
    Argued June 4, 1991.
    Filed July 9, 1991.

      Vincent A. Tucceri, Pittsburgh, for appellants.
    Robert E. Kelly, Harrisburg, for Yingling, appellee.
    Harry F. Kunselman, Pittsburgh, for Davidson, appellee.

      Terence A. Plizga, Pittsburgh, for Clearfield Hosp., Con-don and Kephart, appellees.
    Before OLSZEWSKI, HUDOCK, and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in favor of all defendants as the cause of action in the case sub judice is barred by the applicable statute of limitations. At the close of pleadings in this case, defendants moved for summary judgment. The trial court granted that motion. This timely appeal followed.

On appeal, Ronald and Jacqueline Cams, plaintiffs herein, argue that the trial court applied the wrong test in determining whether the discovery rule tolled the statute of limitations in this action. Alternatively, the Carnses argue that regardless of the test applied, material questions of fact as to the applicability of the discovery rule exist, precluding summary judgment. Finding no merit to these claims, we affirm.

The facts of this case were aptly summarized by the trial court as follows:

[0]n or about May 21, 1986, the Plaintiff [Ronald Cams] began to experience extreme pain in his pelvic area. As a result, he scheduled an appointment with Dr. Davidson, who subsequently treated the Plaintiff for approximately five to six weeks.
Following Plaintiffs last visit to Dr. Davidson, the Plaintiff immediately went to the office of Dr. Yingling. Upon arrival, the Plaintiff asked to see Dr. Yingling because he felt that Dr. Davidson had made no progress with his condition.
Finally, on or about August of 1986, the Plaintiff was rushed to the Clearfield Hospital wherein he came under the care of Dr. Dotsey who diagnosed that the Plaintiff had an abscessed fistula which required surgery.

(Trial court opinion at 2.) Further, the parties do not dispute that two physical therapists, B.V. Condon and C. Kephart, treated Mr. Cams while he was under the care of Drs. Davidson and Yingling. It is also undisputed that Mr. Cams has required an extended course of surgical intervention to ultimately remedy his condition.

On November 4, 1988, the Carnses filed a complaint against Drs. Davidson and Yingling, as well as the therapists Condon and Kephart, alleging that Mr. Carns’s condition was caused by, or the severity of that condition was exacerbated by, their failure to properly diagnose Mr. Carns’s condition. The defendants moved for summary judgment, claiming that the Carnses’ cause of action arose when Mr. Carns’s condition was properly diagnosed in August of 1986 and, therefore, was barred by the applicable two-year statute of limitations.

Initially, we note our standard of review in cases involving appeals of summary judgment. Summary judgment is only proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b), 42 Pa.C.S.A. The movant must demonstrate that no genuine factual issues exist and that he is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-06, 412 A.2d 466, 468-69 (1979). An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 297, 467 A.2d 330, 333 (1983). All doubts must be resolved against the movant, as summary judgment is only proper in the clearest case. Thompson Coal, supra, 488 Pa. at 202-06, 412 A.2d at 468-69. Nonetheless, the grant of summary judgment will only be reversed for an error of law or a clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 322, 528 A.2d 177, 179 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988) (citation omitted). With these standards in mind, we examine the Carnses’ contentions.

All parties agree that a cause of action based on medical malpractice is governed by a two-year statute of limitations. See, 42 Pa.C.S.A. § 5524(2) (Purdon’s Supp.1990). The parties also agree that the allegedly tortious conduct by all defendants occurred by August 1986, at the latest. The Carnses contend that the two-year statute was tolled until March 1988, when Mr. Cams was first informed by a doctor that his condition, or the extent thereof, could be attributed to a failure to diagnose by the defendants. We cannot agree.

The Carnses’ first contention is that the trial court erred in applying the two-part discovery rule test announced in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). That test provides that the discovery rule tolls the running of the statute of limitations until “the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Id., 324 Pa.Superior Ct. at 136-37, 471 A.2d at 500 (footnote omitted). The Carnses argue that the Cathcart formulation is restricted to “creeping disease cases” and that the applicable test for medical malpractice case is that announced in Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). The Anthony case employed a three-prong test to determine the extent to which the discovery rule tolls the applicable limitations period. “[TJhree independent phases of knowledge must be known or knowable to plaintiff before the limitation period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.” Id., 284 Pa.Superior Ct. at 96, 425 A.2d at 436 (citation omitted).

We hold that the two-prong test announced in Cathcart was properly applied in this case. In a similar failure-to-diagnose case, this Court has held that the two-part test announced in Cathcart is to be applied. MacCain v. Mont gomery Hospital, 396 Pa.Super. 415, 420-22, 578 A.2d 970, 973 (1990) (citing, Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (en banc), alloc. denied, 524 Pa. 621, 571 A.2d 383 (1989)). Thus, the Carnses’ claim that the trial court erred by applying the Cathcart test fails.

Not only do we find MacCain controlling as to the propriety of the test employed by the trial court, we further hold that it controls as to the effect of the discovery rule in this case. MacCain was based upon an alleged failure to diagnose a cancer. This Court held that the limitations period began when Mrs. MacCain’s cancer was finally diagnosed; at that point she knew that either earlier test results had been misinterpreted or that she had been misinformed. Id. Once she knew she was injured, the fact she did not know the precise medical cause of that injury nor that the injury resulted from negligent conduct did not further toll the statute. Id., citing, Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986) alloc. denied, 515 Pa. 600, 528 A.2d 957 (1987); and Bickford v. Joson, 368 Pa.Super. 211, 533 A.2d 1029 (1987) alloc. denied, 518 Pa. 647, 544 A.2d 959 (1988).

As in MacCain, Mr. Cams was aware when he was diagnosed in August 1986 that he had been misinformed, as he knew the defendants had never indicated he was suffering from an abscessed fistula. Thus, he knew he had been injured. The limitation period began to run at that point. The fact that Mr. Cams did not pinpoint the precise medical cause until March 1988 does not prevent the triggering of the statute.

We agree with Mr. Caras that the discovery rule applies to this case. The negligence of defendants, if any, occurred prior to August 1986. The two-year period did not begin until Mr. Cams was aware of his injury and that it had been caused by another’s conduct. Nonetheless, MacCain dictates that the discovery rule toll the statute only until the proper diagnosis was made. At that point, the limitations period began to run.

The Carnses’ final argument is that Pennsylvania precedent indicates that discovery rule cases present factual determinations for jury determination precluding summary judgment. We do not agree. It is true that in most cases the question of what a plaintiff reasonably should have discovered should be left to the jury. Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988), alloc. denied, 524 Pa. 607, 569 A.2d 1367, and sub nom Petition of DeMoura, 524 Pa. 620, 571 A.2d 383 (1989). Nonetheless, where the undisputed facts “lead unerringly to the conclusion that the length of time it took a plaintiff to discovery the injury or its cause was unreasonable as a matter of law,” summary judgment is proper. MacCain, supra, 396 Pa.Super. at 423, 578 A.2d at 974 (citation omitted).

Here it is undisputed that Mr. Cams knew in August 1986 that he was diagnosed as suffering from an abscessed fistula, and that the defendants had failed to previously diagnose that condition. We find no clear abuse of discretion in the trial court finding, as a matter of law, that further delay in discovering the injury or its cause was unreasonable. Thus, the grant of summary judgment will not be reversed. Jones v. Keystone Insurance Co., supra.

Order affirmed.

Dissenting statement by HOFFMAN, J.

HOFFMAN, Judge,

dissenting.

I dissent. In my view, there is a disputed issue of material fact in this case. Specifically, the question of when plaintiff reasonably should have known that his condition had been exacerbated by defendants’ alleged negligent failure to diagnose is one that I believe is properly left for the jury. Accordingly, I would remand the case for trial.

      . These four defendants will be collectively referred to as "the defendants" because they all adopt the same position on this appeal, namely, that the Carnses' action is barred by the' statute of limitations.

      . We note that the second and third prongs of the test employed in Anthony appear to be implicit in the Cathcart formulation. Knowledge of (1) the operative cause of the injury and (2) the causal relationship between the injury and the operative conduct is the functional equivalent of knowledge that an injury has been caused by another’s conduct. Thus, the argument over which test to employ appears to be much ado about nothing.

      . We do not hold that all failure-to-diagnose cases are presented in a posture appropriate for summary judgment. It may be that the facts of a case indicate that the jury should determine whether a plaintiff reasonably discovered his injury. Nonetheless, where the record clearly indicates that a reasonable person had sufficient knowledge to meet the Cathcart formulation, summary judgment may be entered.


author: WIEAND, Judge:

text:
    594 A.2d 341
    COMMONWEALTH of Pennsylvania v. Harry G. DOLENO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed July 10, 1991.

      Robert H. Lang, Pittsburgh, for appellant.

      James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Harry G. Doleno filed an appeal and requested a de novo hearing after he had been found guilty by a District Justice of operating a vehicle in violation of restricted weight limits established pursuant to 75 Pa.C.S. § 4902(a). When the case was called for hearing on March 19, 1990, however, Doleno failed to appear. Pursuant to Pa.R.Crim.P. 1117(a), therefore, the trial was conducted in Doleno’s absence. At the conclusion thereof, Doleno was found guilty and sentenced to pay a fine of $12,460.00, plus costs of prosecution.

On March 22, 1990, Doleno filed a motion for new trial in which he contended that his failure to appear for trial had been caused by an inadvertent error of his lawyer, who had improperly recorded the trial date. A hearing on this post-trial motion was held on June 29, 1990, but the requested relief was denied. This appeal followed.

Prior to addressing the merits of appellant’s claim, it is necessary to determine whether we have jurisdiction to hear this appeal. “In appeals from criminal convictions, the notice of appeal must be filed within thirty days of sentence.” Commonwealth v. Eliason, 353 Pa.Super. 321, 323, 509 A.2d 1296, 1297 (1986). See also: Commonwealth v. Martin, 346 Pa.Super. 129, 135, 499 A.2d 344, 347 (1985); Pa.R.A.P. 903(a). An appeal which is not filed within thirty days of the judgment of sentence would normally be quashed. See, e.g.: Commonwealth v. Green, 320 Pa.Super. 85, 466 A.2d 1074 (1983); Commonwealth v. Molyneaux, 277 Pa.Super. 264, 419 A.2d 763 (1980). In the instant case, however, appellant was convicted and sentenced on the same day. Therefore, he was unable to file post-trial motions prior to the imposition of sentence. Under similar circumstances, the Superior Court has refused to quash an appeal, reasoning as follows:

We conclude that the appeal was nevertheless proper. The trial court should not have imposed sentence prior to the filing and disposition of defendant’s post-trial motions. The practice followed in this case has been condemned because it is in violation of established procedural law. Commonwealth v. Shinn, 368 Pa.Super. 436, 439 n. 1, 534 A.2d 515, 516 n. 1 (1987); Commonwealth v. Hurst, supra, [367 Pa.Super. 214, 532 A.2d 865 (1987)]; Commonwealth v. Eliason, 353 Pa.Super. 321, 323, 509 A.2d 1296, 1297 (1986). The proper procedure is to allow the defendant a period of ten days within which to file a motion for post-trial relief and to delay sentencing until the motion, if filed, has been decided. Commonwealth v. Shinn, supra; Commonwealth v. Pringle, 304 Pa.Super. 67, 75 n. 1, 450 A.2d 103, 107 n. 1 (1982). Because the trial court did not follow this procedure, we will not quash the defendant’s appeal but will entertain it and dispose of it on the merits.

Commonwealth v. Schauffler, 397 Pa.Super. 310, 314, 580 A.2d 314, 316 (1990). In this case, moreover, appellant was not informed of his appellate rights at the time of sentencing. See: Commonwealth v. Hurst, 367 Pa.Super. 214, 218, 532 A.2d 865, 867 (1987); Commonwealth v. Eliason, supra 353 Pa.Super. at 323, 509 A.2d at 1297-1298; Commonwealth v. Martin, supra 346 Pa.Super. at 135-136, 499 A.2d at 347-348. Under all of these circumstances, therefore, we hold that the appeal in this case, which was filed within thirty (30) days after denial of appellant’s post-trial motions, was proper.

The right of a criminal defendant to be present at his trial is set forth in Pa.R.Crim.P. 1117(a) as follows:

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not pre elude proceeding with the trial including the return of the verdict.

(emphasis added). Pursuant to this rule, a defendant has an absolute right to be present at trial, unless he is absent without cause. See: Commonwealth v. Tolbert, 246 Pa.Super. 23, 26, 369 A.2d 791, 792 (1977). In a de novo hearing following an appeal from a summary conviction, where the defendant, without excuse, fails to appear for trial, Rule 1117(a) permits the trial court to hear testimony, determine the facts and render a verdict in the defendant’s absence. See: Commonwealth v. Vianello, 337 Pa.Super. 148, 486 A.2d 525 (1984); Commonwealth v. Krut, 311 Pa.Super. 64, 457 A.2d 114 (1983); Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982). “[I]f the defendant has good cause for not being present at every stage of the trial he must establish this to the satisfaction of the trial court.” Commonwealth v. Andrews, 245 Pa.Super. 547, 551, 369 A.2d 762, 764 (1977).

In the instant case, appellant, without giving prior excuse or notice, failed to appear on the date scheduled for his de novo trial. Under these circumstances, the trial court cannot be said to have committed error by conducting the trial in appellant’s absence. However, the fact that he was tried in absentia did not preclude appellant from attempting to demonstrate post-trial that a valid reason existed for his failure to appear. If appellant was able successfully to demonstrate good cause for his absence from trial, the grant of a new trial would have been an appropriate remedy. See and compare: Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981) and Commonwealth v. Graves, 238 Pa.Super. 452, 356 A.2d 813 (1976). See also: Commonwealth v. Paul, 292 Pa.Super. 401, 437 A.2d 445 (1981).

At the post-trial hearing, appellant’s counsel offered the following explanation for his client's failure to appear for trial:

MR. LANG: Good morning, Your Honor, my name is Robert Lang and I represent the defendant.
The problem here doesn’t have to do with the court or prosecution, it arises solely from my office, I’m afraid.
When I obtained a hearing date in this matter, I inadvertently and incorrectly marked it down on a different date. Accordingly, when this trial came up, neither myself or the defendant appeared. I was out of town the entire week before this date and accordingly I also didn’t see it in the Pittsburgh Legal Journal.
THE COURT: It’s unfortunate for you, counselor, that you forgot. I would have imagined that someone in your firm would have been able to handle that case for you at the time.
MR. LANG: There was no one else present, Your Honor, at that time. It’s my responsibility for taking the Legal Journal, too, and since I was out of town, we also didn’t pick it up in the Legal Journal.

The trial court nevertheless refused to grant post-trial relief, stating that it felt constrained to uphold the original finding of guilt. No other explanation for the court’s ruling was offered.

After careful study, we conclude that appellant established successfully that his absence from trial was not “without cause.” His failure to appear at trial resulted from an error by counsel which prevented appellant from appearing on the scheduled date of hearing. This absence was not a voluntary act, but one that was unintentionally caused by counsel’s error. Under such circumstances, it would be manifestly unfair to deprive appellant of the opportunity to appear and present a defense to the charge against him.

We find support for our holding in the decision of the Superior Court in Commonwealth v. McLaurin, supra. There the defendant had failed to appear for a suppression hearing and was eventually convicted of the crimes charged. Post-trial, he alleged that he had been denied his right to be present at the suppression hearing and that his counsel had been ineffective for permitting the hearing to be held in his absence. The Superior Court agreed and held that “counsel’s failure to make [the defendant] aware of the suppression hearing and the need for his attendance requires a remand to the court below for a suppression hearing with the [defendant] and his counsel present.” Id,., 292 Pa.Superior Ct. at 401, 437 A.2d at 445. The McLaurin Court discussed the application of Rule 1117(a) to its holding in the following manner:

The right of the defendant to be present from the time of arraignment, which encompasses the pre-trial phase of the case, is protected by Pa.R.Crim.P. 1117(a). See Commonwealth v. Hoss, supra [445 Pa. 98, 283 A.2d 58 (1971)]. The right is absolute unless the defendant is absent without cause, see United States v. Pastor, 557 F.2d 930 (2d Cir.1977); instantly, there was cause since court-appointed counsel neglected to inform his client to be in court the date set for the hearing.

Id., 292 Pa.Superior Ct. at 400-401, 437 A.2d at 445.

Similarly, in Commonwealth v. Graves, supra, the Superior Court granted a new trial to a defendant who had been absent from trial during the selection of two jurors after having been informed by counsel that he could leave court for the day. The Court held that, under such circumstances, the defendant had not been “absent without cause” pursuant to Rule 1117(a) and that his counsel had been ineffective for selecting two jurors in his absence. Id. 238 Pa.Super. at 455, 356 A.2d at 814. See also: Commonwealth v. Tolbert, supra 246 Pa.Super. at 25-26, 369 A.2d at 792.

Additional support for this conclusion can be found in the body of law in civil cases which generally permits the opening of a default judgment or judgment of non pros which has resulted because of an error or neglect by counsel. See, e.g.: Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 584, 442 A.2d 689, 691 (1982) (“Any person entrusting a matter to an attorney in this Commonwealth should be able to believe that the matter will be competently and diligently handled.”); Esslinger v. Sun Refining & Marketing Co., 379 Pa.Super. 69, 74, 549 A.2d 600, 603 (1988) (“[A] litigant placing his/her case in the hands of a reputable counsel should not be turned out of court if the delay complained of was almost entirely on account of the neglect or oversight of counsel.”); Bildstein v. McGlinn, 320 Pa.Super. 416, 423, 467 A.2d 601, 605 (1983) (“[T]he power to open a default judgment will usually be exercised where a default has been the result of a mistake or oversight by counsel.”).

Because appellant’s absence on the day of trial was a result of erroneous advice by his lawyer, it cannot be said that he was absent without cause. We hold, therefore, that the trial court abused its discretion when it refused to grant a new trial at which appellant could defend the charge against him. Because appellant did not voluntarily relinquish his right to be present at his trial pursuant to Pa. R.Crim.P. 1117(a), a new trial will be granted at which appellant may offer a defense.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . All rules of criminal procedure are applicable to de novo trial of a summary appeal unless specifically declared to be inapplicable. Commonwealth v. Koch, 288 Pa.Super. 290, 294, 431 A.2d 1052, 1054 (1981). Pa.R.Crim.P. 1117(a) has not been made specifically inapplicable to summary appeals and, indeed, has been applied thereto. See, e.g.: Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982).

      . In cases involving misdemeanor or felony criminal offenses, however, Rule 1117(a) has been interpreted as allowing the waiver of a defendant’s right to be present at trial only when the defendant has "voluntarily absented] himself from the trial which has begun in his presence." Commonwealth v. Andrews, 245 Pa.Super. 547, 550, 369 A.2d 762, 764 (1977). See also: Commonwealth v. Felton, 224 Pa.Super. 398, 307 A.2d 51 (1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974). Thus, a defendant who failed to appear for trial on misdemeanor or felony charges, it was held, could not be tried in absentia under Rule 1117(a).