author: McEWEN, Judge:

text:
    669 A.2d 959
    Ronald ROSCI and Kimberly Rosci, H/W v. ACROMED, INC. Ronald ROSCI and Kimberly Rosci, H/W v. THOMAS JEFFERSON UNIVERSITY HOSPITAL, and Sanford H. Davne, M.D., Donald L. Myers, M.D., and Edwin Ferrin, M.D.
    Superior Court of Pennsylvania.
    Argued June 6, 1995.
    Filed Dec. 19, 1995.

      Joseph L. Messa, Jr. and Mark W. Tanner, Philadelphia, and Thomas W. Sheridan, Downington, for appellants.
    Louis A. Bove, Philadelphia, for Acromed, Inc., appellee.
    Mark Herrmann, Pro Hac Vice, Cleveland, Ohio, for Acromed, Inc., appellee.
    Michael D. Fishbein, Philadelphia, for Legal Committee in MDL 1014, Amicus Curiae.
    Before McEWEN, TAMILIA, and KELLY, JJ.
   McEWEN, Judge:

Appellant, Ronald Rosci, injured his back in 1986 and was diagnosed by Donald L. Myers, M.D., a neurosurgeon, and Sanford Davne, M.D., an orthopedic surgeon, as suffering from two herniated discs of his lumbar spine. Appellant underwent L3-4 and L4-5 diskectomies with an L/3/4/5 fusion on November 11, 1986, during the course of which Dr. Davne removed the two discs between the lumbar vertebrae and implanted VSP nested bone plates and cancellous bone screws, manufactured by appellee AcroMed Corporation and sold under the trade name “VSP bone plates” and “VSP bone screws”, as temporary aids to healing so that the three vertebrae abutting the disc spaces would fuse. Dr. Davne testified in his deposition that he was aware that the VSP bone plates and screws had been approved by the FDA for use only as fixation devices in the long bones and that his use was an “off-label” use. See: Reeves v. AcroMed Corp., 44 F.3d 300, 305 (5th Cir.1995). Dr. Davne also testified that he was aware of the warnings, contained in the package with the bone plates and screws, which provided:

WARNINGS, PRECAUTIONS, AND ADVERSE EFFECTS CONCERNING TEMPORARY METALLIC INTERNAL FIXATION DEVICES WARNINGS
1. CORRECT SELECTION OF THE IMPLANT IS EXTREMELY IMPORTANT. The potential for satisfactory fixation is increased by the selection of the proper size, shape, and design of the implant. While proper selection can help minimize risks, the size and shape of human bones present limitations on the size, shape and strength of implants. Metallic internal fixation devices cannot withstand activity levels equal to those placed on normal healthy bone. No implant can be expected to withstand indefinitely the unsupported stress of full weight bearing.
2. IMPLANTS CAN BREAK WHEN SUBJECTED TO THE INCREASED LOADING ASSOCIATED WITH DELAYED UNION OR NONUNION. Internal fixation appliances are load sharing devices which are used to obtain an alignment until normal healing occurs. If healing is delayed, or does not occur, the implant may eventually break due to metal fatigue. The degree of success of union loads produced by weight bearing and activity levels will, among other conditions, dictate the longevity of the implant. Notches, scratches, or bending of the implant during the course of surgery may also contribute to early failure. Patients should be fully informed of the risks of implant failure.
3. MIXING METALS CAN CAUSE CORROSION. There are many levels of corrosion damage and several of these occur on metals surgically implanted in humans. General or uniform corrosion is present on all implanted metals and alloys. The rate of corrosive attack on metal implant devices is usually very low due to the presence of passive surface films. Dissimilar metals in contact, such as titanium and stainless steel accelerates the corrosion process of stainless steel and more rapid attack occurs. The presence of corrosion often accelerates fatigue fracture of implants. The amount of metal compounds released into the body system will also increase. Internal fixation devices, such as rods, hooks, wires, etc. which come into contact with other metal objects must be made from like or compatible metals.
4. PATIENT SELECTION. In selecting patients for internal fixation devices, the following factors can be of extreme importance to the eventual success of the procedure.
A. The patient’s weight. An overweight or obese patient can produce loads on the device which can lead to failure of the appliance and the operation.
B. The patient’s occupation or activity. If the patient is involved in an occupation or activity which includes substantial walking, running, lifting or muscle strain, the resultant forces can cause failure of the device.
C. A condition of senility, mental illness, alcoholism, or drug abuse. These conditions, among others, may cause the patient to ignore certain necessary limitations and precautions in the use of the appliance, leading to implant failure or other complications.
D. Certain degenerative diseases. In some cases, the progression of degenerative disease may be so advanced at the time of implantation that it may substantially decrease the expected usefulness of the appliance. For such cases, orthopaedic devices can only be considered a delaying technique or temporary relief.
E. Foreign body sensitivity. Where material sensitivity is suspected, appropriate tests should be made prior to material selection or implantation.
PRECAUTIONS
1. SURGICAL IMPLANTS MUST NEVER BE REUSED. An explanted metal implant should never be reimplanted. Even though the device appears undamaged, it may have small defects and internal stress patterns which may lead to early breakage.
2. CORRECT HANDLING OF THE IMPLANT IS EXTREMELY IMPORTANT. Contouring of metal implants should only be done with proper bending equipment. The operating surgeon should avoid any notching, scratching, or reverse bending of the devices when contouring. Alterations will produce defects in surface finish and internal stresses which may become the local point for eventual breakage of the implant. Bending of screws will significantly decrease fatigue life and may cause failure.
3. REMOVAL OF THE IMPLANT AFTER HEALING. Metallic implants can loosen, fracture, corrode, migrate, possibly increase the risk of infection, cause pain or stress shield bone even after healing, particularly in young, active patients.- The surgeon should carefully weigh the risks versus benefits when deciding whether to remove the implant. Implant removal should be followed by adequate postoperative management to avoid refracture. If the patient is older and has a low activity level, the surgeon may choose not. to remove the implant thus eliminating the risks involved with a second surgery.
4. ADEQUATELY INSTRUCT THE PATIENT. Postoperative care and the patient’s ability and willingness to follow instructions are among the most important aspects of successful bone healing. The patient must be made aware of the limitations of the implant and that physical activity and full weight bearing have been implicated in premature failure of metallic internal fixation devices by loosening, bending, or fracture. The patient should understand that a metallic implant is not as strong as normal healthy bone and will fracture if excessive demands are placed on it in the absence of complete bone healing. An active debilitated, or demented patient who cannot properly use weight supporting devices may be particularly at risk during postoperative rehabilitation.
POSSIBLE ADVERSE EFFECTS
1. Nonunion, delayed union
2. Bending or fracture of implant. Loosening of the implant.
3. Metal sensitivity, or allergic reaction to a foreign body.
4. Infection.
5. Decrease in bone density due to stress shielding.
6. Pain, discomfort, or abnormal sensations due to presence of the device.
7. Nerve damage due to surgical trauma.
8. Bursitis.
9. Dural leak.
10. Paralysis.
11. Death.

A diagnostic x-ray taken of Mr. Rosci approximately four months after the surgery revealed that two of the bone screws had broken in place, that one of the bone plates had shifted and bent, and that the vertebrae had not fused. Appellant, permanently disabled as a result of the failure of the bone to fuse, filed a medical malpractice action against Dr. Davne, Dr. Myers, and Thomas Jefferson Hospital and, more than one year thereafter, instituted the instant action against AcroMed seeking damages based upon strict liability, negligence, and breach of implied and express warranties. All of the claims against AcroMed, other than those based on breach of warranty, were dismissed by the trial court on motion of appellee based upon the expiration of the applicable statute of limitations, 42 Pa.C.S. § 5524, and the malpractice action has been resolved. AcroMed then filed a motion seeking summary judgment in its favor on the remaining claims, contending that the claims based on implied and express warranties were preempted by the Medical Device Amendments of 1976 (the “MDAs”), 21 U.S.C. §§ 360c et seq., to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq. AcroMed argued in the alternative that the warranty claims were also barred by virtue of the learned intermediary doctrine.

The learned Judge Sandra Mazer Moss granted the motion of AcroMed for summary judgment, finding that, although the breach of warranty claims of appellants had not been preempted, the warranty claims were barred as a result of the learned intermediary doctrine. For the reasons that follow, we affirm in part and reverse in part the order which granted summary judgment in favor of AcroMed.

Rule 1035 of the Rules of Civil Procedure provides, in relevant part:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein ---- The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Pa.R.Civ.P. 1035.

Our standard of review in an appeal from an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all of the documentary evidence of record to determine whether there exists a genuine issue of material fact that would preclude the entry of summary judgment and, if not, whether the moving party is entitled to judgment in its favor as a matter of law. See: Marks v. Tasman, 527 Pa. 132, 134-135, 589 A.2d 205, 206 (1991).

Appellee AcroMed argues that the trial court properly granted its motion for summary judgment because the claims of appellee based upon breach of warranty, while barred by the learned intermediary doctrine, were also preempted by the MDAs as the claims were based upon literature and warnings which were subject to regulation by the FDA pursuant to 21 C.F.R. §§ 801.1, 801.4, 801.5, 801.6, 801.109, 801.15, and 801.16.

THE MDAs

The Medical Device Amendments of 1976 (“the MDAs”), 23 U.S.C. §§ 360c-360k (Supp.1995), to the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301 et seq., were enacted:

“To assure the reasonable safety and effectiveness of medical devices intended for human use.” H.Conf.Rep. No. 1090, 94th Cong. 2d Sess. reprinted in 1976 U.S.Code Cong. & Admin.News 1070,1103. The MDA gives the FDA broad powers to classify and regulate medical devices. Under the MDA, the FDA must assign a medical device to one of three statutorily delineated categories. Class I devices are those devices which pose little or no threat to public health. They are subject to only general requirements concerned with their manufacture. Tongue depressors are one example of a Class I medical device. See: 21 U.S.C. § 360c(a)(l)(A); 21 C.F.R. § 860.3(c)(1). Class II devices include items such as tampons and oxygen masks. Use of Class II devices involves some risk of injury and, as a result, the FDA establishes performance standards, postmarket surveillance programs and guidelines for their use. See: 21 U.S.C. § 360c(a)(l)(B); 21 CFR § 860.3(c)(2). Class III devices are those devices which are implanted in the body or which pose a potentially unreasonable risk of injury. See: 23 U.S.C. § 360c(a)(l)(C); 21 CFR § 860.3(c)(3). They include Zyderm, as well as pacemakers, heart valves and replacement joints. Because of their inherent dangerousness, Class III devices are subject to the most stringent FDA regulation. All Class III devices are required to obtain premarket approval prior to being released for sale and use. 21 U.S.C. § 360e; 21 CFR § 814.1(c).

Kennedy v. Collagen Corp., 67 F.3d 1453, 1455 (9th Cir.1995) (emphasis supplied). Accord: Feldt v. Mentor Corp., 61 F.3d 431, 433 (5th Cir.1995); Lohr v. Medtronic, Inc., 56 F.3d 1335, 1339-40 (11th Cir.1995); Michael v. Shiley, Inc., 46 F.3d 1316, 1319 (3rd Cir.), cert. denied, — U.S.-, 116 S.Ct. 67, 133 L.Ed.2d 29 (1995); Talbott v. C.R. Bard, Inc., 865 F.Supp. 37, 42-43 (D.Mass.1994), aff'd., 63 F.3d 25 (1st Cir.1995); Green v. Dolsky, 433 Pa.Super. 556, 561-563, 641 A.2d 600, 603, allo. granted, 539 Pa. 678, 652 A.2d 1324 (1994).

The VSP bone plates and screws manufactured by AcroMed have been designated as Class II medical devices. 21 C.F.R. § 888.3030(b). Although as a general rule Class II and Class III devices must obtain Premarket Approval (PMA) before they may be marketed to the public, 21 U.S.C. § 360e(a), the MDAs grandfathered into the market all devices introduced before May 28, 1976, the effective date of the Act, see: 21 U.S.C. § 360e(b)(l)(A); 21 C.F.R. § 814.1(c)(1), and permit the sale of a device without PMA where the device is the “substantial equivalent” of a device already on the market, including a device which was grandfathered into the market by virtue of having been first sold prior to May 28, 1976. 21 U.S.C. § 360e(b)(l)(B); 21 C.F.R. § 807.87.

The Pre-Market Notification [PMN] process requires applicants to submit descriptions of their devices and other information necessary for the agency to determine whether the devices are substantially equivalent. As with the PreMarket Approval process, Pre-Market Notification applicants must also submit their proposed labeling. Id. If the FDA determines that a device is substantially equivalent to a device that was on the market prior to the enactment of the MDAs in 1976, the applicant is free to market the device.

Reeves v. AcroMed Corp., 44 F.3d 300, 303 (5th Cir.), cert. denied, — U.S.-, 115 S.Ct. 2251, 132 L.Ed.2d 258 (1995) (emphasis supplied). See also: Lohr v. Medtronic, Inc., supra, 56 F.3d at 1340; 21 U.S.C. § 360(k), 360c(f)(l).

The VSP bone plates and screws at issue in the instant case were designated as Class II medical devices, as a result of proceeding through the PMN process, as the substantial equivalents of earlier marketed devices.

The FDA has issued only one regulation specifically applicable to bone plates and screws, and its purpose is to classify long bone screws and plates as Class II medical devices:

§ 888.3030 Single/muitiple component metallic bone fixation appliances and accessories.
(a) Identification. Single/multiple component metallic bone fixation appliances and accessories are devices intended to be implanted consisting of one or more metallic components and their metallic fasteners. The devices contain a plate, a nail/plate combination, or a blade/plate combination that are made of alloys, such as cobalt-chromium-molybdenum, stainless steel, and titanium, that are intended to be held in position with fasteners, such as screws and nails, or bolts, nuts, and washers. These devices are used for fixation of fractures of the proximal or distal end of long bones, such as intracapsular, intertrochanteric, intercervical, supracondylar, or condylar fractures of the femur; for fusion of a joint; or for surgical procedures that involve cutting a bone. The devices may be implanted or attached through the skin so that a pulling force (traction) may be applied to the skeletal system.
(b) Classification. Class II.

21 C.F.R. § 888.3030. Other than this identification and classification regulation, the parties have not directed this Court to, nor have we found, any other FDA regulations specifically applicable to long bone screws and plates. However, the FDA, pursuant to the MDAs, regulates all aspects of the labeling and packaging of medical devices such as the bone plates and screws manufactured by AcroMed. See, e.g., 21 C.F.R. §§ 801.1, 801.4, 801.5, 801.6, 801.15, 801.16, 801.109; Green v. Dolsky, supra at 561-563, 641 A.2d at 603. Thus mindful, we proceed to consideration of whether the MDAs preempt appellants’ cause of action based upon inadequate labeling and warning.

PREEMPTION

Appellee contends that all causes of action based upon the adequacy or inadequacy of the warnings and labeling provided by AcroMed are preempted by the express provisions of the MDAs.

Under the supremacy clause of the United States Constitution, federal law is “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, Cl. 2. As a result, all conflicts between federal and state laws must be resolved in favor of federal law. Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir.1992). In determining whether a conflict between state and federal law exists, a court looks to congressional intent. FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990), appeal after remand, 932 F.2d 959 (1991).
Generally, preemption may be express or implied, and it is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. 498 U.S. at 56-57, 111 S.Ct. at 407, 112 L.Ed.2d at 363. “Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.” Cipollone v. Liggett Group, Inc., [505] U.S. [504], 517, 112 S.Ct. 2608, 2618, 120 L.Ed.2d. 407, 423 (1992) (holding that the Federal Cigarette Labeling and Advertising Act of 1965 and its amendment preempted some but not all of a lung cancer victim’s state law tort claims). When Congress is silent on the matter, state law will be preempted by federal law “when (a) compliance with both state and federal law is impossible or, (b) when state law stands as an impediment to a federal purpose.” Hunsaker v. Surgidev Corp., 818 F.Supp. 744, 747 (M.D.Pa.1992).

Green v. Dolsky, supra at 561, 641 A.2d at 602-03.

The express preemption provision of the MDAs, 21 U.S.C. § 360k(a), provides:

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

21 U.S.C. § 360k(a) (emphasis supplied).

The FDA has interpreted this statutory preemption as applicable to state common law tort claims as well as state legislation. The regulations promulgated by the FDA pursuant to Section 360k provide:

[N]o State or political subdivision of a State may establish or continue in effect any requirement with respect to a medical device intended for human use having the force and effect of law (whether established by statute, ordinance, regulation, or court decision) which is different from, or in addition to, any requirement applicable to such device under any provision of the act....

21 C.F.R. 808.1(b) (emphasis supplied).

However, those same regulations further explain that:

State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific Food and Drug Administration requirements.

21 C.F.R. 808.1(d) (emphasis supplied).

This Court in Burgstahler v. AcroMed, Inc., - Pa.Super. -, 670 A.2d 658 (1995), held that a state tort action involving injury caused by a Class II medical device will not be preempted by Section 360k of the MDAs, unless there is a specific FDA requirement or regulation applicable to the device at issue so that the state court ruling sought by the plaintiff would result in the imposition of a requirement different from or in addition to a FDA requirement. See also: Michael v. Shiley, Inc., supra, 46 F.3d at 1323; National Bank of Commerce v. Kimberly-Clark Corp., 38 F.3d 988, 997 (8th Cir.1994); Moore v. Kimberly-Clark Corp., 867 F.2d 243, 246 (5th Cir.1989); Ginochio v. Surgikos, Inc., 864 F.Supp. 948, 953 (N.D.Cal.1994); Parenteau v. Johnson & Johnson Orthopedics, Inc., 856 F.Supp. 61, 64-65 (D.N.H.1994); Brown v. Medtronic, Inc., 852 F.Supp. 717, 721 (S.D.Ind.1994); Mulligan v. Pfizer, Inc., 850 F.Supp. 633, 635-37 (S.D.Ohio 1994); Elbert v. Howmedica Inc., 841 F.Supp. 327, 331 (D.Haw.1993); Lamontagne v. E.I. Du Pont de Nemours & Co., 834 F.Supp. 576, 582-86 (D.Conn.1993), aff'd., 41 F.3d 846 (2d Cir.1994); Larsen v. Pacesetter Sys. Inc., 74 Haw. 1, 15-17, 837 P.2d 1273, 1282 (1992). Thus, if a verdict in favor of appellants on the claims based upon breach of warranty would result in the imposition of a requirement in addition to those imposed by the labeling requirements of the MDAs, the action is preempted.

IMPLIED WARRANTIES

Appellants contend that the implied warranties of merchantability and fitness for a particular purpose which arise from general principles of state contract law, 13 Pa.C.S. §§ 2314, 2315; Michael v. Shiley Inc., supra, 46 F.3d at 1324, are not barred either by Section 360k of the MDAs or by application of the learned intermediary doctrine. We have already determined in the opinion issued in Burgstahler v. AcroMed, Inc., supra, that the implied warranties of merchantability and fitness for a particular purpose are preempted by the MDAs. See also: Michael v. Shiley, Inc., supra, 46 F.3d at 1324-25; Reeves v. AcroMed Corp, supra, 44 F.3d at 305; Green v. Dolsky, supra at 567-70, 641 A.2d at 606-07.

EXPRESS WARRANTIES

The Uniform Commercial Code, which is applicable to the sale of the VSP bone plates and screws manufactured and sold by appellee, provides that express warranties may be created as follows:

(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

13 Pa.C.S. § 2313 (emphasis supplied).

“Express warranties arise from the representations of the parties which are made the basis of the bargain and do not result from the independent operation of state law. See: 13 Pa.C.S. § 2313.... The parties to a contract, not the state, define the substantive obligations of the contract and hence any express warranties. While the state provides for the enforcement of the parties’ bargain, it does not define each party’s duties.” Michael v. Shiley, Inc., supra, 46 F.3d at 1325 (footnote omitted).

AcroMed provided the following express warranty on its order sheet:

Limited Warranty
AcroMed Corporation warrants all of its catalog products to the original purchaser against defects in workmanship and materials for 90 days from date of purchase from AcroMed Corporation. Purchaser may return alleged defective products for full credit or refund in the amount of the purchase price or the repair or replacement of the product at AcroMed’s option, plus shipping. AcroMed warranties are limited exclusively to these express warranties and any other warranties of any kind or description whatsoever and by whomsoever, including warranties of merchantability or fitness, express or implied, are hereby disclaimed unless otherwise stated in writing by AcroMed.

The package insert provided, inter alia, the following express representations of fact, giving rise to an express warranty that the bone plates and screws will conform to the following descriptions:

Bone Screws
The VSP Bone Screws are fabricated from ASIMF1314 implant grade stainless steel, and are composed of two parts: a long cancellous section with an integral fixed lower nut, and a machine threaded section topped with an hexagonal drive head.
The screws and plates are adjoined utilizing a double nut locking system. The screw features an integral fixed lower nut that is machined directly from the same piece of metal stock.
Bone Plates
The VSP Bone Plates are fabricated from ASIMF1314 implant grade stainless steel. The plates have nested slots and variable lengths to provide surgical latitude. The plates have between one and five slots. (44 mm. to 196mm length) with their length increasing by half slot increments. Longer slots are available as special order items.
The slots, with their precisely machined tapered nests offer the possibility of accurate yet variable screw placement. It is important that the plates be bent in a plate bender to mirror or to create the desired anatomic curves.
Use the shortest plate possible for each procedure. Minimal plate length will reduce the possibility of plate interference with other bony structures.
Washers
To optimize proper plate/screw/bone alignment there are washers available in 3mm and 5mm heights. A tapered, or wedge-shaped washer is available to fill nonsymmetrie gaps. All washers have a chambered inner hole for proper fit over the integral nut. All are manufactured from implant grade stainless steel.

The distinguished Judge Leonard I. Garth of the United States Court of Appeals for the Third Circuit Court, in refusing to find that the MDAs preempted a state tort claim based upon breach of an express warranty made in connection with the sale of a pacemaker, relied upon the reasoning, which we find controlling, of the United States Supreme Court in Cipollone v. Liggett Group Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992):

A manufacturer’s liability for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the “requirements” imposed by an express warranty claim are not “imposed under State law,” but rather imposed by the warrantor.... In short, a common law remedy for a contractual commitment voluntarily undertaken should not be regarded as a “requirement ... imposed under State law ”....

Michael v. Shiley, Inc., supra, 46 F.3d at 1326, quoting, Cipollone v. Liggett Group Inc., supra, 505 U.S. at 524-25, 112 5. Ct. at 2622, 120 L.Ed.2d at 428-429. In reaching the conclusion that claims based upon the breach of an express warranty were not preempted, Judge Garth noted:

Congress has not only remained silent as to whether it intended to prevent states from enforcing the contractual representations of medical device manufacturers, it gave indications in 21 U.S.C. § 360h that at least some common law remedies would remain in conjunction with FDA regulation.

Michael v. Shiley, Inc., supra, 46 F.3d at 1326. See also: Mitchell v. Collagen Corp., 67 F.3d 1268, 1282 (7th Cir.1995).

We agree with the reasoning of the Shiley Court because the judicial enforcement of an express warranty, even where the warranty terms have previously been submitted for approval by the FDA pursuant to the provisions of the MDAs, cannot result in an order or opinion imposing a requirement under state law that is “different from, or in addition to ... any requirement applicable under this chapter to the device.” 21 U.S.C. • § 360k. Rather, the purpose of such litigation would be to seek enforcement of the express terms already approved by the FDA. Thus, the express warranty claim of appellants is not preempted by the MDAs. See: American Airlines Inc. v. Wolens, — U.S.-, -, 115 S.Ct. 817, 824, 130 L.Ed.2d 715, 725-726 (1995); Mitchell v. Collagen Corp., supra, 67 F.3d at 1285.

LEARNED INTERMEDIARY DOCTRINE

The trial court granted summary judgment in favor of appellee on the express warranty claim based upon her conclusion that the learned intermediary doctrine precluded suit on an express warranty made in connection with the sale of a prescription device.

The foundation of the [learned intermediary] doctrine was propounded in Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), where the Supreme Court dealt with the issue of the duty of drug manufacturers to warn of potentially dangerous side effects of their products and to whom the warning must be given. In reference to prescription drugs, the Court said, “[s]ince the drug was available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.” Id. at 285, 282 A.2d at 220.
This Court discussed the rationale of the rule from Incollingo in Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 307 A.2d 449 (1973):
It is for the prescribing physician to use his own independent medical judgment, taking into account the data supplied to him from the drug manufacturer, other medical literature, and any other source available to him, and weighing that knowledge against the personal medical history of his patient, whether to prescribe a given drug.
Id. at 431, 307 A.2d at 457. Thus, the information supplied by the drug manufacturer is only one source a physician must consult and he is expected to make an independent medical judgment in determining whether a given drug is appropriate for a particular patient.

Brecher v. Cutler, 396 Pa.Super. 211,218-20, 578 A.2d 481, 485 (1990). See also: Taurino v. Ellen, 397 Pa.Super. 50, 52-54, 579 A.2d 925, 927 (1990), allo. denied, 527 Pa. 603, 589 A.2d 693 (1991); Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 596-98, 523 A.2d 374, 378 (1987).

Under the learned intermediary doctrine, as it is applied in Pennsylvania, a manufacturer will be held liable only where it fails to exercise reasonable care to inform the one for whose use the product is supplied of the facts which make the product likely to be dangerous. Brecher, supra at 218-20, 578 A.2d at 485; Makripodis v. Merrell-Dow, supra at 594-96, 523 A.2d at 377. The intended. !‘user” in a case involving a prescription drug or device is, of course, the prescribing physician.

The learned intermediary doctrine, however, while applicable to implied warranties, has never been applied to bar an action by an injured consumer based upon breach of an express warranty since such a claim is unrelated to the issue of the warnings given to the prescribing physician and instead is based solely upon the express affirmation of fact made by the manufacturer.

Nor are we inclined by either jurisprudential sense or valid policy to extend the applicability of the doctrine to actions based upon breach of an express warranty. Appellee itself drafted the documents upon which the express warranty claim is predicated and should not be heard to defend its failure to conform to those representations solely because the literature in which they are contained was directed to the prescribing physician rather than to the patient who was at all times the intended recipient of the product.

We, therefore, affirm that part of the oider which granted summary judgment in favor of appellee AeroMed on the claims of appellants based upon breach of implied warranties, and reverse that portion of the order which granted summary judgment in favor of appellee on the express warranty claims of appellants.

      . Paragraph 17 of the complaint alleged:
      17. The injuries and damages set forth by plaintiff in the aforesaid paragraphs were directly and proximately caused by Acromed, as well as their agents, whose conduct or lack thereof consisted of the following:

        (a) Failure to properly manufacture and inspect the Acromed VSP Medical Hardware;
      (b) Failure to discover the defects in the Acromed VSP Medical Hardware;
      (c) Failure to properly warn of the defective condition of the Acromed VSP Medical Hardware;
      (d) Failure to use reasonable care in the design of the Acromed VSP Medical Hardware;
      (e) Failure to use reasonable care in instructing and/or warning persons in plaintiff's position and persons in the positions of plaintiff’s surgeons regarding the use of the Acromed VSP Medical Hardware;
      (f) Carelessly representing to users of the Acromed VSP Medical Hardware that they were safe for their intended use;
      (g) Failure to use reasonable care in the maintenance and inspection of the Acromed VSP Medical Hardware;
      (h) Increasing the risk of harm to plaintiffs;
      (i) Failure to warn plaintiff of the unreasonably dangerous and ultrahazardous condition;
      (j) Permitting the condition to exist which created an unreasonably dangerous and hazardous condition to the plaintiff;
      (k) Failure to correct the conditions which existed when the Acromed VSP Medical Hardware was originally designed, manufactured and delivered;

        (l) Committing such other acts or omissions constituting negligence and carelessness as may be revealed during the course of the discovery proceedings in this case.

      . Paragraph 23 of the complaint alleged:
      23. The aforesaid negligence of defendant, Acromed, as well as their agents, consists of the following:
      (a) Failure to use reasonable care in the manufacture of the Acromed VSP Medical Hardware;
      (b) Failure to use reasonable care in the design of the Acromed VSP Medical Hardware;
      (c) Failure to use reasonable care in instructing and/or warning persons in plaintiff's position or in the position of plaintiff’s physicians- regarding the use of said Acromed VSP Medical Hardware;
      (d) Carelessly representing to users of said Acromed VSP Medical Hardware, that it was safe for its intended use;
      (e) Failure to use reasonable care in the maintenance and inspection of said Acromed VSP Medical Hardware;
      (f) Failure to provide Thomas Jefferson University Hospital, Donald Myers, M.D., Sanford Davne, M.D., Edwin L. Ferrin, M.D., and/or any other entity who received this Medical Hardware in the stream of commerce, with the appropriate Medical Hardware when it knew or should have known of its intended use;
      (g) Failure to provide adequate instructions for the aforementioned Medical Hardware;
      (h) Increasing the risk of harm to plaintiff;
      (i) Failure to warn plaintiff of the dangerous and ultrahazardous condition which resulted in his injuries;

        (j) Permitting the condition to exist which created an unreasonably dangerous condition to the plaintiff;
      (k) Failure to correct the conditions that existed when the Medical Hardware was originally designed, manufactured and delivered;
      (Z) Committing such other acts or omissions constituting negligence and carelessness as may be revealed during the discovery proceedings in this case.

      . Paragraph 26 of the complaint alleged:
      26. Defendant, Acromed, impliedly and expressly warranted that the aforesaid Medical Flardware was safe for use by persons in plaintiff's position, and/or in the position of plaintiff’s physicians, and fit for the purpose for which they were intended.

      . William R. Christianson, the Vice President of Regulatory Affairs and Quality Assurance for AcroMed Corporation described in his affidavit of February 16, 1994, the PMN process in which AcroMed participated prior to marketing the VSP plates and screws:
      AcroMed’s nested bone plates and cancellous bone screws were submitted to the FDA pursuant to the FDA’s 510(k) pre-market notification procedure. In 1985, AcroMed submitted a 510(k) application for its nested bone plates. In 1986, AcroMed submitted a similar notification for its cancellous bone screws. These notifications included the information required by the FDA to make substantial equivalence determinations, including examples of pre-1976 devices, design specifications, and proposed labeling. AcroMed's nested bone plates and cancellous bone screws were cleared for marketing by the FDA under the 510(k) provisions in February 1986. A modified version of AcroMed's cancellous bone screws was subsequently cleared for marketing by the FDA in January 1988.

      . Our conclusion that all claims based upon implied warranties have been preempted by the MDAs renders moot the question of whether the learned intermediary doctrine precludes an action based upon breach of implied warranties. See: Burgstahler v. AcroMed, - Pa.Super. -,-n. 5, 670 A.2d. 658, 666 n. 5 (1995).

      . The warranty in Michael v. Shiley, Inc., supra, 46 F.3d at 1321, provided:
      Shiley warrants that reasonable care has been used in the manufacture of this device. This warranty is exclusive and in lieu of all other warranties, whether express, implied, written or oral.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    669 A.2d 969
    Robert Edgar BROWN, Appellant (at 840) v. Susan Jane BROWN, Appellant (at 722).
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed Dec. 22, 1995.

      H. John Drayer, Clarion, for Susan Jane Brown.
    David P. Brandt, Franklin, for Robert Edgar Brown.
    Before TAMILIA, FORD ELLIOTT and CERCOME, JJ.
   CERCONE, Judge:

This is an appeal and cross-appeal from an order of court directing equitable distribution of Robert E. Brown’s pension. We vacate and remand for proceedings consistent with this memorandum.

The facts of this case have previously been set forth by a panel of this court:

Appellant (“wife”) [Susan Brown] and husband [appellee/eross-appellant] were married on June 14, 1969, and separated on July 6, 1989. Each is currently 47 years old. On January 25, 1973, husband began his employment with the Pennsylvania State Police (“PSP”) as a trooper. As of the date of separation, husband was a member of the State Employees’ Retirement System (“SERS”) and had contributed $24,600.29 to his pension. Further, husband’s 1989 salary was $37,383.00. [footnote 1: During the marriage, wife worked either full or part-time as a nurse. On the date of separation, wife was employed as a full-time nurse at Oil City Hospital earning $27,000.00 per year. Wife’s pension plan from her employment with Oil City Hospital had a present value of $4,158.00.] From the time husband entered the PSP to the time of separation, husband had served [sixteen] 16 years as a trooper. At the time of separation, husband’s pension was vested. Under the terms of a collective bargaining agreement between the Commonwealth and the PSP, a state trooper, unlike other members of the SERS, has a guaranteed right to retire at 50% of his or her highest salary after 20 years of service and 75% of his or her salary after 25 years of service. Moreover, a PSP trooper may retire at a younger age than other SERS members.
On August 10, 1989, husband filed a complaint in divorce. On August 28, 1990, wife filed an answer,- and on October 2, 1990, she filed a motion for the appointment of a Master. Thereafter, the lower court entered an order appointing a Master to resolve claims of divorce and equitable distribution of property. On July 25, 1991, the Master held a hearing, and on January 4, 1993, the Master’s Report was filed. The Master determined that a 50/50 distribution of the marital property was the most equitable. Exceptions to the Master’s Report were filed with regard to the Master’s assessment of husband’s pension plan subject to equitable distribution. On June 24, 1993, the lower court heard arguments on the aforementioned issue. On November 18, 1993, the parties filed a stipulation whereby both agreed that the deferred distribution method would apply to the court’s equitable distribution analysis of husband’s pension plan. Further, both requested that the lower court bifurcate the resolution of equitable distribution of marital property from the decree in divorce. The court below entered a divorce decree and order dated December 29, 1993, adopting the recommendations of the Master. On March 17, 1994, the lower court below entered an order denying wife’s request that certain pension benefits of husband be included as marital property.

Brown v. Brown, 442 Pa.Super. 638, 659 A.2d 1 (1995) (slip opinion at 1-3) (citations to record omitted).

Wife appealed from that order. A panel of this court ruled that the lower court’s failure to provide a formula for calculating wife’s equitable share of husband’s pension plan prevented it from ascertaining whether the order constituted an abuse of discretion. Accordingly, the Superior Court remanded with directions that the trial court state its formula for calculating wife’s equitable distribution of husband’s pension and enter a qualified domestic relations order.

After conducting a hearing, the lower court entered a second equitable distribution order. See Opinion and Order dated March 9, 1995. The trial court found that wife was entitled to share in husband’s pension as calculated on July 6, 1989, the date of separation, at the stipulated rate of fifty (50%) percent. Wife appealed from that order, again arguing that the trial court improperly valued husband’s pension for purposes of equitable distribution. Husband filed a cross-appeal.

A trial court has broad discretion in fashioning equitable distribution awards and we will overturn an award only for an abuse of that discretion. Gordon v. Gordon, 436 Pa.Super. 126, 133, 647 A.2d 530, 533 (1994), appeal granted, 540 Pa. 583, 655 A.2d 515 (1995). We may find an abuse of discretion if the trial court failed to follow proper legal procedures or misapplied the law. Paulone v. Paulone, 437 Pa.Super. 130, 133, 649 A.2d 691, 692 (1994). Further, we consider the circumstances of the case and the conclusions of the trial court in light of the Commonwealth policy of effectuating economic justice between the parties. Schneeman v. Schneeman, 420 Pa.Super. 65, 75, 615 A.2d 1369, 1374 (1992).

[4-6] Retirement pension benefits, vested and non-vested, are marital property subject to equitable distribution. Gordon, 436 Pa.Super. at 135, 647 A.2d at 534. As a general rule, only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property. Id. at 135-36, 647 A.2d at 534 (quoting Braderman v. Braderman, 339 Pa.Super. 185, 196, 488 A.2d 613, 618 (1985)). Nevertheless, when a plan has vested and its value increases aside from contributions of the parties made beyond the date of separation, the increase is marital property. Holland v. Holland, 403 Pa.Super. 116, 118, 588 A.2d 58, 59-60 (1991), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991) (quoting Morschhauser v. Morschhauser, 357 Pa.Super. 339, 344-45, 516 A.2d 10, 12-13 (1986)).

The contested retirement fund is a defined benefit plan. In a defined benefit plan,

the benefit is determined by a particular formula usually based upon years of service and salary history. The benefit is funded by employer contributions, and actuarily determined on a participant class basis. Unlike defined contribution plans, which focus on contributions for each individual employee, defined benefit plans do not maintain individual accounts and are therefore more difficult to value.

Gordon, 436 Pa.Super. at 136, 647 A.2d at 534 (citations omitted). In formulating equitable distribution schemes, Pennsylvania courts apply either the immediate offset method, which divides the benefits at the time of the equitable distribution proceeding by assigning a present value to the marital portion of the pension, or the deferred distribution method, which requires the court to reserve jurisdiction over the benefits until they mature or enter pay status. Paulone, 437 Pa.Super. at 138, 649 A.2d at 695 (citing Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985)). As stated, the parties agreed by stipulation to proceed by deferred distribution after concluding that husband lacked sufficient assets to purchase wife’s share of the pension. See Zollars v. Zollars, 397 Pa.Super. 204, 579 A.2d 1328 (1990), alloc. denied,, 527 Pa. 603, 589 A.2d 693 (1991) (use of deferred distribution not error when record did not show that ex-spouse could buy out non-employee spouse’s share).

When utilizing the deferred distribution method, the court applies a “coverture fraction” to the benefits when they enter pay status. Braderman, 339 Pa.Super. at 198, 488 A.2d at 619.

The “coverture” fraction represents that portion of the value of the benefits attributable to the marriage. The numerator of the fraction reflects the total period of time the employee spouse participated in the plan during the marriage, and the denominator is the total period the employee participated in the benefits program.

Id. at 197-98, 488 A.2d at 619. The “sole purpose [of the coverture fraction] is to determine what part of the value of the plan is attributable to the years of marriage and hence marital property subject to equitable distribution.” Paulone, 437 Pa.Super. at 136, 649 A.2d at 694-95.

In this case, both the parties and the trial court rely on the Supreme Court’s recent pronouncement in Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993). In Berrington, the parties were married in 1955, separated in 1984 and divorced in 1987. Husband was employed by Westinghouse Electric Corporation throughout the marriage and participated in a defined benefit plan. Pursuant to that plan, monthly pension benefits were determined by multiplying the employee’s years of service; at retirement, as modified by a stated percentage, by the average of the highest five months’ salaries for each year of the ten years immediately preceding retirement. Id. at 396, 633 A.2d at 590-91. The Court observed that using the date of retirement as the base on which to calculate wife’s marital share improperly deprived husband of contributions made after separation. Further, using the date of separation as the base unfairly penalized wife because, in a deferred distribution, her share is substantially delayed. Specifically, a deferred distribution of pension benefits requires the non-employee spouse to wait until some indefinite time in the future to receive the marital share. To compensate for this postponement of benefit, that spouse is permitted to enjoy increases in value occasioned by the continued employment of the worker. Holland, 403 Pa.Super. at 118, 588 A.2d at 60.

The Berrington Court approved husband’s plan which provided wife with sixty (60%) percent (her share of the marital property) times the coverture fraction (the number of months husband participated in the plan during the marriage over the total number of months husband participated in the pension plan assuming he retired at age sixty-five (65)) times the monthly accrued benefit payable based on husband’s annual salary at the date of separation, paid until he reached age sixty-five (65). The formula started with the assumption that there were no other increases in benefits payable under the plan from sources other than husband’s non-marital contribution. Id. at 400-01, 633 A.2d at 593-94. Husband’s formulation not only avoided awarding wife a share of non-marital property, but also allowed wife to receive a marital share that was increased in value proportionate to the increase in value enjoyed by husband based on factors which have nothing to do with his increased contributions or efforts. Id. at 402, 633 A.2d at 594. The Court held as follows:

[I]n a deferred distribution of a defined benefit pension, the spouse not participating may not be awarded any portion of the participant-spouse’s retirement benefits which are based on post-separation salary increases, incentive awards or years of service. Any retirement benefits awarded to the non-participant spouse must be based only on the participant-spouse’s salary at the date of separation. However, should there be increases in retirement benefits payable to the employee spouse between the date of marital separation and the date the non-participant spouse begins receiving benefits which are not attributable to the efforts or contributions of the participant-spouse, any such increased benefits may be shared by the non-participant spouse based upon his or her proportionate share of the marital estate.

Id. at 402-03, 633 A.2d at 594.

Appellant wife maintains that her formula is consistent with the Court’s holding in Benington. Wife uses husband’s salary at the date of separation as a base and then applies a coverture fraction. The numerator of that fraction reflects the number of years husband was married and participated in the pension plan and the denominator is either twenty (20) or twenty-five (25) depending on husband’s years of service at the date of his retirement. Wife sets forth her formula as follows:

37,380 1989 Salary [date of separation]

x 50% Guaranteed Right After 20 Years Service

18,690 Benefit to determine Wife’s share

x 16 Years married in the pension

20 Total years in Pension

14,952 Marital Portion

12

1,246 Monthly Benefit

— 140.87 Less Social Security Set-off

1,105.13

x 50% Wife’s Percentage

552.56 Wife’s Monthly Benefit

OR if Husband works for Twenty-five (25) years:

37,380 1989 Salary [date of separation]

x 75% Guaranteed Right After 25 Years Service

28,035 Benefit to determine Wife’s share

x 16 Years married in the pension

25 Total years in Pension

17,942 Marital Portion

: 12

1,495.20 Monthly Benefit

- 140.87 Less Social Security Set-off

1,354.33

x 50% Wife’s Percentage

677.16 Wife’s Monthly Benefit

Brief of Appellant at 16-17.

The trial court, also relying on Berrington, rejected wife’s formula. According to the lower court, husband’s increased pension benefit is a benefit based on post-separation years of service and, as such, constitutes non-marital property. We cannot agree that the increase in this case is the type contemplated by the Court in Berrington.

Berrington dictates that the amount to be awarded the non-employee spouse in a deferred distribution of a pension should be based on the employee’s salary at the date of separation, but augmented by growth in the pension fund based on factors other than the employee’s efforts or the employer’s or employee’s contributions to the fund after the date of separation. Id., 534 Pa. at 395, 403, 633 A.2d at 590, 594. See Schneeman v. Schneeman, 420 Pa.Super. at 79, 615 A.2d at 1376 (increases in the value of the amount contributed during the marriage resulting from interest or returns on investments are marital property; contributions by the employee or employer made after the date of separation are not marital property). This court has been forced to ascertain what types of increases may or may not qualify as marital property. For example, post-separation incentives and bonuses, although based on years of service, are not marital property. Gordon v. Gordon, supra, 436 Pa.Super. at 143-45, 647 A.2d at 538-39. See also LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), alloc. denied, 514 Pa. 648, 524 A.2d 494 (1987) (participant spouse accepted a post-separation early retirement incentive; because the right to receive the bonus did not accrue prior to the parties’ separation, the bonus could not be considered part of the marital estate). Unlike basic pension benefits, which are planned and contemplated throughout service, incentive plans are not anticipated and not occasioned by continued employment. Gordon, 436 Pa.Super. at 145, 647 A.2d at 539.

The pension enhancement in this case, as opposed to the retirement plan in Gordon, was part of the benefits package in place throughout the marriage. It was not an unanticipated incentive or a bonus offered post-separation. Rather, the enhancement amounted to deferred compensation. As such, we conclude that it is marital property subject to equitable distribution.

As in Berrington, we find that wife has proposed a method of calculating her marital share of the pension which allows her to benefit from increases accruing from the date of separation until the date of payout without utilizing contributions made by husband after the date of separation. Husband’s pension benefit is augmented based on total years of service, i.e., he is entitled to retire at fifty percent (50%) of his highest salary after 20 years of service and at seventy-five (75%) percent after 25 years of service. Application of the coverture fraction ensures that wife will receive only that portion of the increase attributable to the marriage. Further, because the coverture fraction is applied to husband’s salary at date of separation, rather than to the “highest salary,” wife is denied the benefit of post-separation salary increases. Based on the foregoing, we conclude that the trial court’s order amounted to an abuse of discretion. As such, we vacate and remand for a re-calculation of the equitable distribution award consistent with this memorandum.

Order vacated. Remanded for a re-calculation of the equitable distribution award consistent with this memorandum. Jurisdiction is relinquished.

      . The parties stipulated that prior to the allocation of any pension benefit, "there shall be deducted therefrom the sum of $140.87 representing the Social Security payment to which the Plaintiff would have been entitled had he been entitled to receive Social Security....” Trial court order filed March 17, 1994. Appellant acknowledges that the trial court improperly failed to apply that offset. See Schneeman v. Schneeman, 420 Pa.Super. 65, 615 A.2d 1369 (1992) (husband, a state trooper, contributed to the State Employees Retirement System rather than to Social Security; because that part of a pension which is in lieu of Social Security is exempt from marital property, the trial court was required to offset husband’s pension by the amount he would have contributed to the Social Security system).

      . The numerator of the coverture fraction in this case reflects the number of years husband participated in the plan during the marriage (16.633) and the denominator reflects the total number of years husband participated in the plan (20 or 25).

      . We also note that the plan contemplates withdrawal of a lump sum not to exceed the participant’s total accumulated deduction, which at the time of separation amounted to $24,600.29. In its order dated March 9, 1995, the trial court ruled that should husband make that election, wife would be entitled to fifty (50%) percent of the accumulated deductions. Wife stresses that in prior orders, the trial court included an award of accrued interest on those pre-separation contributions. In the order from which wife currently appeals, however, the trial court failed to include an award of interest. Accordingly, we further direct the trial court to remedy this error on remand.


text:
    669 A.2d 975
    CHIROPRACTIC NUTRITIONAL ASSOCIATES, INCORPORATED, a Corporation, Appellant, v. EMPIRE BLUE CROSS AND BLUE SHIELD, a Corporation, and Allegheny Power System, Incorporated, a Corporation.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Dec. 29, 1995.

      Edgar D. Harr, Greensburg, for appellant.
    Sherry L. Halfhill, Pittsburgh, for appellees.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated direct appeal from the trial court’s orders which granted the preliminary objections of defendants/appellees and dismissed multiple complaints initiated by plaintiff/appellant. We reverse and remand for further proceedings.

Appellee Allegheny Power System, Incorporated (“Allegheny Power”) entered into a contractual agreement with appellee Empire Blue Cross and Blue Shield (“Empire”) to provide health care coverage for Allegheny Power’s employees and their dependents. Appellant, Chiropractic Nutritional Associates, Incorporated (“Chiropractic”), provided chiropractic services to certain individuals covered under the group medical insurance policy issued by Empire. Chiropractic billed the insurance carrier directly pursuant to assignments Allegheny Power’s insured employees executed in appellant’s favor. Although the insurance carrier, Empire, initially paid appellant for the chiropractic services rendered, at some point a dispute developed over the medical necessity of continuing treatments for the insureds or their dependents. Appellant Chiropractic subsequently filed suit against both appellees contesting Empire’s denial of benefits to Allegheny Power’s employees and seeking the fees owed for services it had rendered to the employees.

The complaints appellant Chiropractic lodged in the Court of Common Pleas alleged, inter alia, that the insurance company and the employer, Empire and Allegheny Power, had entered into a contract to provide medical benefits to Allegheny Power’s employees and their dependents, including chiropractic care. Appellant also alleged that appellee Allegheny Power had prepared and distributed a handbook to its employees explaining the covered medical and chiropractic therapy available under the terms of the group insurance contract.

The Allegheny Power handbook explicitly states that employees may assign their right to collect benefits. Appellees responded with preliminary objections averring that appellant lacked the capacity to file suit in any of the matters before the Court of Common Pleas. Appellees averred that, contrary to the terms of the Allegheny Power employee handbook, the Master Agreement between Empire and Allegheny Power actually forbids assignment of benefits. Thus, appellees concede that Allegheny Power gave its employees covered under the group insurance agreement incorrect information in the handbook describing the medical coverage provided by Empire.

The tidal court scheduled a hearing on the preliminary objections for November 29,1994. Ultimately, the lower court determined that Chiropractic lacks the capacity to bring suit because the court found the non-assignment clause in the master agreement to be enforceable against all third parties, including medical providers. On December 6, 1994, the trial judge therefore sustained the preliminary objections and dismissed all of appellant’s complaints. Appellant Chiropractic filed timely notices of appeal. On January 10, 1995, the Superior Court consolidated the appeals so that they could be briefed and argued as a single matter.

The instant appeal presents two issues for our consideration:

1. Where patients assign their cause of action for unpaid treatment bills (detriments) to the health care provider, does a non-assignement [sic] of benefits clause in the group contract [between the patients’ employer and the insurance company] preclude a remedy to the plaintiff [health care provider]?
2. Does a health care provider, which has obtained an assignment of cause of action from its patients, have the capacity to sue?

Before addressing these claims, it is important to note the specific procedural posture of this case. The complaints underlying this appeal were filed by a third party assignee, the health care provider, who purports to “stand in the shoes” of the assignor-employees in bringing suit to challenge the denial of medical benefits.

Several other preliminary matters must be considered prior to discussing the merits of appellant’s claims. First, we must determine whether to apply state or federal law in our analysis; The issues before us concern the proper interpretation of the provisions of an employer sponsored group health insurance plan. For the reasons explained infra, appellant is-correct in asserting that the trial court erred by applying state law rather than the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Appellees have not contested this point.

Congress enacted ERISA to protect the interests of employees and their beneficiaries in employee benefit plans. Ingersoll-Rand v. McClendon, 498 U.S. 133, 137, 111 S.Ct. 478, 482, 112 L.Ed.2d 474, 482 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983)). ERISA explicitly provides for concurrent federal and state jurisdiction over benefit claims. 29 U.S.C. § 1132(e)(1). Thus, the Act permits the plaintiff to choose the forum and initiate suit either in state court or federal district court. Id. ERISA also contains a preemption clause intended to ensure that employee benefit plans and plan sponsors are subject to a uniform body of law, no matter which forum considers the case. Ingersoll-Rand, 498 U.S. at 142, 111 S.Ct. at 484, 112 L.Ed.2d at 485-86. Whenever a state court exercises jurisdiction over a matter pertaining to employee benefits, that court must first resolve whether to apply state law or ERISA. Id.

As a general proposition, ERISA supercedes “any and all State laws insofar as they may ... relate to any employee benefit plan.... ” 29 U.S.C. § 1144(a). See Arber v. Equitable Beneficial Life Insurance Co., 848 F.Supp. 1204, 1210 (E.D.Pa.1994) (ERISA comprehensively regulates employee welfare benefit plans that, through purchase of insurance or otherwise, provide medical, surgical or hospital care, or benefits in event of sickness, accident, disability or death). A determination of preemption is ultimately a question of Congressional intent. Ingersoll-Rand v. McClendon, 498 U.S. at 137-38, 111 S.Ct. at 482, 112 L.Ed.2d at 483. ERISA’s preemption clause is conspicuous for its breadth and was designed to establish regulation of employee benefits as an exclusively federal concern. Id. at 138, 111 S.Ct. at 482, 112 L.Ed.2d at 483. Federal preemption applies whenever an action “relates to” an employee benefit plan. Id. at 139, 111 S.Ct. at 483, 112 L.Ed.2d at 484. See also Travitz v. Northeast Dept. ILGWU Health and Welfare Fund, 13 F.3d 704, 709 (3d Cir.1994), cert. denied, — U.S.-, 114 S.Ct. 2165, 128 L.Ed.2d 888 (1994) (broadly worded preemption clause in ERISA establishes, as an area of exclusive federal concern, the subject of every state law that relates to an employee benefit plan governed by ERISA); Glaziers and Glassworkers Union Local 252 Annuity Fund v. Newbridge Securities, Inc., 877 F.Supp. 948, 954-55 (E.D.Pa.1995) (state law is preempted by ERISA whenever the claim relates in some way to an employee benefit plan); Harding v. Duquesne Light Co., 882 F.Supp. 422, 427 (W.D.Pa.1995) (any state law that has connection with or reference to ERISA employee benefit plan will be preempted by ERISA).

The United States Supreme Court has explicitly held that a claim against an insurance carrier for ceasing to pay benefits under a group health policy is preempted by ERISA. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 48, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39, 48 (1987). See Misic v. Building Service Employees Health and Welfare Trust, 789 F.2d 1374, 1377 (9th Cir.1986) (state law cause of action based on a theory of assignment of group health insurance benefits is preempted by ERISA); Psychiatric Institute of Washington, D.C. v. Connecticut General Life Insurance Co., 780 F.Supp. 24 (D.D.C.1992) (ERISA preempted health care service provider’s breach of contract claim that group health, insurer was obligated to pay assignee health care provider who “stands in the shoes” of the assignor plan participants). The crux of appellant’s allegations against Empire is that the insurance company improperly declined to continue paying for the assignors’ chiropractic treatments pursuant to the terms of a group health insurance policy. We therefore conclude that the instant matter is governed by ERISA and its case law progeny.

Preemption under ERISA does not act as a defense to a state law claim, which is the usual effect of federal preemption. Amos v. Blue Cross-Blue Shield of Alabama, 868 F.2d 430, 432 (11th Cir.1989), cert. denied, 493 U.S. 855, 110 S.Ct. 158, 107 L.Ed.2d 116 (1989). Instead, ERISA preemption converts the state claim into a federal question. Id. (citing Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). When federal law preempts state law, federal statutory law as well as federal common law are substituted for the preempted state law. Misic v. Building Service Employees Health and Welfare Trust, 789 F.2d at 1377 (citing Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165 (1942) and DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158-63 & nn. 12-13, 103 S.Ct. 2281, 2287-90 & nn. 12-13, 76 L.Ed.2d 476, 485-86 nn. 12-13 (1983)). The federal courts are empowered to create a federal common law under ERISA in order to effectuate Congress’ intent to provide a comprehensive federal regulatory scheme. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80, 92 (1989).

When state courts entertain federal causes of action, the parties’ rights and the defenses which may be raised are defined by federal lav/. Murtagh v. County of Berks, 585 Pa. 50, 57-58, 634 A.2d 179, 183 (1993), cert. denied, — U.S. --, 114 S.Ct. 1397, 128 L.Ed.2d 71 (1994) (citing Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 2442, 110 L.Ed.2d 332, 358 (1990)). The reason for this rule is to ensure that the outcome of federal questions will be the same, whether they are decided in a state or federal forum. Id. We note that the decisions of the federal district courts and courts of appeal, including those of the Third Circuit Court of Appeals, are not binding on Pennsylvania courts, even when a federal question is involved. Breckline v. Metropolitan Life Insurance Co., 406 Pa. 573, 578, 178 A.2d 748, 751 (1962); Cianfrani v. Johns-Manville Corp., 334 Pa.Super. 1, 6, 482 A.2d 1049, 1051 (1984); Commonwealth ex rel Goodfellow v. Rundle, 203 Pa.Super. 419, 434, 201 A.2d 615, 623, transferred on other grounds to 415 Pa. 528, 204 A.2d 446 (1964); Southeastern Pennsylvania Transportation Authority v. Pennsylvania Public Utility Commission, 140 Pa.Commw. 270, 282 n. 9, 592 A.2d 797, 803 n. 9 (1991), appeal denied, 531 Pa. 642, 611 A.2d 714 (1992). Although the decisions of the federal courts lower than the United States Supreme Court are not binding on Pennsylvania courts, they do have a persuasive authority with regard to federal questions. Commonwealth v. Giffin, 407 Pa.Super. 15, 26, 595 A.2d 101, 107 (1991); Hangelias v. Dawson, 158 Pa.Super. 370, 374, 45 A.2d 392, 394 (1946). When possible, it is appropriate for the Superior Court of Pennsylvania to follow the Third Circuit’s ruling on federal questions to which the United States Supreme Court has not yet provided the ultimate answer. Nobers v. Crucible, Inc., 431 Pa.Super. 398, 406, 636 A.2d 1146, 1150, appeal denied, 537 Pa. 665, 644 A.2d 1201 (1994), cert. denied, — U.S. —, 116 S.Ct. 301, 133 L.Ed.2d 206 (1995).

Unfortunately, neither the United States Supreme Court nor the Third Circuit Court of Appeals has published an opinion determining whether a health care provider possesses standing under ERISA pursuant to an assignment of the right to bring suit challenging the denial of group health benefits. It is clear that health care providers do not have independent standing to sue under ERISA because they are “non-enumerated” parties. 29 U.S.C. § 1132(a). See generally Hermann Hospital v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1287-1289 (5th Cir.1988) (broadly discussing persons and entities possessing the capacity to bring suit pursuant to ERISA). Under the federal common law of ERISA, an assignee with a valid assignment has the right to enforce the claims of his assignor. Misic v. Building Service Employees Health and Welfare Trust, 789 F.2d at 1378; Psychiatric Institute of Washington D.C. v. Connecticut General Life Insurance Co., 780 F.Supp. at 30 n. 9 (citing cases, including United States Fidelity & Guar. Co. v. United States, 231 U.S. 237, 243, 34 S.Ct. 88, 90, 58 L.Ed. 200 (1913)). However, the federal courts also recognize that the rights of an assignee can rise no higher than those of the assignor. Gardner v. Surnamer, 608 F.Supp. 1385, 1391 (E.D.Pa.1985).

The Ninth Circuit’s decision in Misic is the seminal case which recognizes that health care providers do have the capacity to sue under ERISA if they are assignees of group health insurance plan beneficiaries and are enforcing the assigned rights.

Health and welfare benefit trust funds are designed to finance health care. Assignment of trust monies to health care providers results in precisely the benefit the trust is designed to provide and [ERISA] is designed to protect. Such assignments also protect beneficiaries by making it unnecessary for health care providers to evaluate the solvency of patients before commencing medical treatment, and by eliminating the necessity for beneficiaries to pay potentially large medical bills and await compensation from the plan. Moreover, assignments permit a trust fund to obtain improved benefits for beneficiaries by bargaining with health care providers for better coverage and lower rates.
For these reasons we conclude ERISA does not forbid assignment by a beneficiary of his right to reimbursement under a health care plan to the health care provider.

Misic, 789 F.2d at 1377 (footnote omitted). Broadly speaking, the federal courts which have considered this question after the publication of Misic in 1986 have followed the reasoning of the Ninth Circuit and held that group health insurance benefits are assignable under ERISA. See, e.g., Hermann Hospital v. MEBA Medical & Benefits Plan, supra and at 959 F.2d 569 (5th Cir.1992) (ERISA benefits are assignable to health care providers); Miami Children’s Hospital, Inc. v. Malakoff, 765 F.Supp. 718, 720 (S.D.Fla.1991) (although ERISA prohibits assignment of pension benefits, it does not limit assignment of health care benefits); Albert Einstein Medical Center v. National Benefit Fund for Hospital and Health Care Employees, 740 F.Supp. 343, 350-51 (E.D.Pa.1989) (ERISA does not preclude beneficiary from assigning right of reimbursement to health care provider). As a general proposition, the federal courts have held that ERISA grants a health care provider assignee the capacity to initiate suit to vindicate rights acquired from assignor group health plan beneficiaries. Charter Fairmount Institute v. Alta Health Strategies, 835 F.Supp. 233, 235-36 (E.D.Pa.1993). We therefore conclude that nothing in ERISA prevents a health care provider from bringing suit to enforce a valid assignment of health insurance benefits.

However, ERISA’s silence on the assignability of health plan benefits is not the equivalent of a mandate granting an absolute right to assign such benefits. Davidowitz v. Delta Dental Plan of California, Inc., 946 F.2d 1476, 1480-81 (9th Cir.1991). ERISA neither suggests the existence of an affirmative policy favoring assignment, nor invalidates anti-assignment clauses. Washington Hospital Center Corp. v. Group Hospitalization and Medical Services, Inc., 758 F.Supp. 750, 752-53 n. 2 (D.D.C.1991). Accord Garland v. Metropolitan Life Insurance Co., 727 F.Supp. 592, 596-98 (D.Kan.1989), aff'd, 935 F.2d 1114 (10th Cir.1991), cert. denied, 502 U.S. 1020, 112 S.Ct. 670, 116 L.Ed.2d 761 (1991). In the absence of published authority by the Third Circuit Court of Appeals, we have carefully considered the decisions of other jurisdictions. We are persuaded by the reasoning of the Tenth Circuit that ERISA’s silence as to the issue of assignability of group health benefits leaves the matter open for agreement between the contracting parties.

It would be contrary to Congress’ laissez-faire attitude of declining to establish any statutory rule either requiring or prohibiting the assignability of benefits to allow states to intervene with their own policies mandating or forbidding assignability. As Congress has chosen not to interfere with the parties’ own freedom of contract on this matter, so must we insist that the states not interfere with the parties’ freedom of choice.

St. Francis Regional Medical Center v. Blue Cross and Blue Shield of Kansas, Inc., 49 F.3d 1460, 1464 (10th Cir.1995). We note that this holding is consistent with recent decisions by the Eighth and Ninth Circuits. See Arkansas Blue Cross and Blue Shield v. St. Mary’s Hospital, Inc., 947 F.2d 1341, 1349-50 (8th Cir.1991), cert. denied, 504 U.S. 957, 112 S.Ct. 2305, 119 L.Ed.2d 227 (1992) (state statute prohibiting non-assignment clauses pre-empted by ERISA); Davidowitz v. Delta Dental Plan of California, Inc., 946 F.2d at 1480-81 (Congress’ silence on the matter of assignability of health insurance benefits indicates an intention to allow the free marketplace to work out competitive, cost effective “medical expense reducing structures” such as non-assignment clauses). We therefore conclude that ERISA leaves the matter of assignability of insurance benefits to the contracting parties.

In this case, the lower court found that appellant lacked the capacity to bring suit because the existence of an anti-assignment clause in the Blue Cross/Blue Shield Master Agreement prevented the insureds from validly assigning their benefits to appellant. However, a person does not lack standing to claim benefits under ERISA simply because it may turn out that he or she is not entitled to prevail and ultimately collect the benefits. Bruch v. Firestone Tire and Rubber Co., 828 F.2d 134, 152 (3d Cir.1987), aff'd in part, rev’d in part on other grounds, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Moreover, denying standing to health care providers as assignees of beneficiaries may undermine ERISA’s goal of improving benefit coverage for employees. Lutheran Medical Center v. Contractors Health Plan, 25 F.3d 616, 619 (8th Cir.1994). The courts must take cognizance of the fact that medical providers often decline to render expensive treatment unless it is guaranteed by an insurer. Gamer v. Capital Blue Cross, 859 F.Supp. 145, 150 n. 6 (M.D.Pa.1994), aff'd, 52 F.3d 314 (3d Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).

Many providers seek assignments of benefits to avoid billing the beneficiary directly and upsetting his finances and to reduce the risk of non-payment. If their status as assignees does not entitle them to federal standing against the plan, providers would either have to rely on the beneficiary to maintain an ERISA suit, or they would have to sue the beneficiary. Either alternative, indirect and uncertain as they are, would discourage providers from becoming assignees and possibly from helping beneficiaries who were unable to pay them “up-front.” The providers are better situated and financed to pursue an action for benefits owed for their services.

Hermann Hospital v. MEBA Medical & Benefits Plan, 845 F.2d at 1289-90 n. 13. Because appellant obtained assignments from the legitimate insurance plan beneficiaries, we find that it possessed at least a colorable claim under ERISA and therefore had the capacity to initiate the litigation underlying this appeal. However, this does not resolve the question of whether the specific non-assignment clause contained in the Master Contract between appellees Empire and Allegheny Power precludes appellant from achieving any remedy.

Appellees argue that the following language from the Group Contract bars appellant from recovery:

The right of a Member to receive payment is not assignable. Group Contract, Article III, Section K.l. We agree with appellees that the terms of the Group Contract may prevent the subscriber members from conferring a valid assignment upon appellant which would entitle it to directly collect uncontested benefits owed under the insurance plan. But see Hermann Hospital v. MEBA Medical and Benefits Plan, 959 F.2d at 575 (wherein the Fifth Circuit Court of Appeals found a general anti-assignment clause of the type at issue here to be ineffective at barring assignment of rights to a medical provider and holding that such a clause only applied to unrelated, non-medical provider, third-party assignees). However, we find nothing in the instant provision which prevents a subscribing member from assigning his or her right to bring an action to enforce the contract in the event that benefits are denied.

Lutheran Medical Center v. Contractors Health Plan, supra, confronted the Eighth Circuit with a problem remarkably similar to that presented by the instant case. Section 22 of the Declaration of Trust for the group health plan at issue in Lutheran Medical Center contained the following anti-assignment clause:

No employee shall at any time, either during the life of said Trust, or upon the termination thereof, or upon his withdrawal or severance therefrom, in any manner, have any right to assign his rights or benefits under such Plan or this Trust, or to receive a cash consideration in lieu of such benefits.

Id., 25 F.3d at 619. Pursuant to this language, the Health Plan contended that a medical provider assignee had no cognizable right under ERISA to challenge the denial of benefits to plan subscribers. The court of appeals first noted that the plan had not been administered in strict conformity with the anti-assignment provision as evidenced by the fact that benefits were paid directly to assignees for an appreciable period of time prior to the ultimate denial of benefits. Id However, the court held that the anti-assignment clause could be enforced against a medical provider to the extent that the language of the group contract forbade direct payment to an assignee of “rights” or “benefits” due under the group health insurance plan. Nevertheless, the court also determined that the right to assign a cause of action was separate and distinct from the right to assign benefits. See also Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir.1990) (citing the Restatement (Second) of Contracts § 316 cmt c (1981) as authority for the conclusion that a contract consists of a bundle of rights which are separately assignable depending upon the nature of the specific right at issue). As the court explained in Lutheran Medical Center:

[The] anti-assignment clause does not prevent [the plaintiffs] from suing the Plan. Section 22 clearly prohibits assignment of “rights or benefits” under the Plan, but does not prohibit assignment of causes of action arising after the denial of benefits.

Id., 25 F.3d at 619. The Eighth Circuit reasoned that invalidating the beneficiaries’ assignments permitting a medical care provider to challenge the denial of benefits would ultimately achieve nothing because the causes of action would merely revert back to the employee-insureds. After delay and expense to the employees, all of the claims premised upon the denial of benefits could again be presented for decision by the trial court. See id. at 619-20.

In this case, as in Lutheran Medical Center, Empire initial-. ly paid employee benefits directly to the assignee medical provider but later attempted to use an anti-assignment clause to prevent the assignee from bringing suit to challenge the denial of insurance coverage. The language contained in the Group Contract at issue instantly says nothing about the employees’ right to assign a cause of action for the purpose of contesting the plan administrator’s decision to deny coverage for medical services which have already been rendered by a provider. At most, the contractual provision merely raises a question as to who would be entitled to collect any verdict which might become payable if appellant ultimately succeeds in its claims. We aré persuaded by the reasoning of the Eighth Circuit in Lutheran Medical Center and therefore conclude that the. Group Contract before this court does not prohibit the assignment of a cause of action arising from the denial of benefits.

We are cognizant of appellees’ argument that the holding in Lutheran Medical Center should not apply instantly because appellant obtained the assignments before coverage was denied. However, we can see no logical basis for appellees’ contention that a cause of action for breach of contract must be ripe before a legally valid assignment can be executed. We note that appellees have provided no statutory authority or case precedent decided under either Pennsylvania law or the federal common law of ERISA for their conclusion in this regard.

It is certainly true that, under Pennsylvania state law, an unliquidated personal injury tort claim is not a property right and is not assignable. DeMasi v. DeMasi, 366 Pa.Super. 19, 46, 530 A.2d 871, 884 (1987), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993). See Murray on Contracts § 138 B at 806 (3d ed.1990) (strong public policy generally prohibits assignability of unliquidated personal injury claims to preclude champerty and “to prevent the unscrupulous from purchasing causes of action dealing in pain and suffering”). However the instant case does not involve an unliquidated tort claim. Here, the insured employees assigned their right to bring suit for breach of contract in the event that their insurer ever declined to make payment for medical services rendered.

The Court of Common Pleas dismissed appellant’s complaints on the basis of the preliminary objections filed by Empire and Allegheny Power. The Pennsylvania Supreme Court has explained that preliminary objections which result in the dismissal of a cause of action should be sustained only in cases that are “clear and free from doubt” that the plaintiff will be unable to prove legally sufficient facts to establish any right to relief. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). All doubts in this determination should be resolved by overruling the preliminary objections. National Check v. First Fidelity Bank, 442 Pa.Super. 211, 214, 658 A.2d 1375, 1377 (1995). In light of the foregoing analysis, we find that dismissal at the preliminary objection stage is premature because it is not clear and free from doubt that appellant will be unable to prove facts legally sufficient to establish its right to relief under the applicable federal law.

The orders entered by the lower court on December 6, 1994 granting appellees’ preliminary objections are vacated and the complaints are reinstated. The case is remanded for further proceedings consistent with this memorandum. Superior Court jurisdiction is relinquished.

      . Appellant initiated eight suits before a District Magistrate. Judgments were entered in favor of appellant as follows:
      (1) on May 2, 1994, $360.50 for treatment of Judith Schlenke, a dependent of Carl Schlenke;
      (2) on April 26, 1994, $792.00 for treatment of Aaron Dancho, a dependent of Nina Dancho;
      (3) on April 26, 1994, $845.00 for treatment of Adam Dancho, a dependent of Nina Dancho;
      (4) on May 2, 1994, $713.00 for treatment of Charles Shields;
      (5) on May 2, 1994, $823.00 for treatment of Cherie Moose;
      (6) on May 2, 1994, $667.00 for treatment of Paul Crabill;
      (7) on May 2, 1994, $346.50 for treatment of Nancy Crabill, a dependent of Paul Crabill; and
      (8) on May 2, 1994, $1,757.00 for treatment of Daniel Crabill, a dependent of Paul Crabill.
      Empire timely filed a notice of appeal in the Court of Common Pleas of Westmoreland County for each of the eight judgments. Appellanl promptly filed complaints with the Court of Common Pleas of Westmoreland County.

      . See Plaintiff's Exhibit "A" to all Complaints filed in this matter, APS Core Medical Plan at 6, Covered Expenses ¶ 14, Schedule Dl-1/93 (covered expenses include chiropractor's and osteopath's charges for necessary treatment); and APS Core Medical Plan at 14, Assignment of Benefits Clause, Schedule Dl-1/93 ("Benefits will automatically be assigned to hospitals. An employee may assign his/her benefits to other providers of services.”)

      . See Defendants’ Exhibit “B” to all Preliminary Objections filed in this matter, Group Contract. The Payment of Benefits Clause set forth on page 13 of the Group Contract, Article III, Section K.1, states the following: "The right of a Member to receive payment is not assignable." The Group Contract defines “Member” as "the Subscriber, and if Family Coverage is in force, the Subscriber’s Dependents, but not any person eligible for Medicare except as specifically stated in this Contract or in Exhibit I.” Id. at 5.

      . Appellees contend that the inaccurate representations in the employee handbook are warranted and completely excused by the following "warning” language in the handbook:
      Each benefit summary and the payment of benefits described herein are subject to the provisions of the underlying plan document and contract with the insuring company. Benefits are subject to change by the Company. Although every effort has been made for accuracy, the possibility of error always exists. The employee should not take any action in reliance on availability or the amounts of benefits shown without verification of such benefits by the Personnel Department.

        See Plaintiff's Exhibit “A” to all Complaints filed in this matter, Your Employee Benefits, Section A "Introduction” at 2.

      . The language of the assignments from the insured employees to appellant Chiropractic provides as follows:

        ASSIGNMENT OF CAUSE OF ACTION

      In the event any insurance company obligated by contractual agreement to make payment to me or to Chiropractic Nutritional Associates, Inc., for the charges made for service, refuses to make such payment upon demand, I hereby assign transfer and convey to Chiropractic Nutritional Associates, Inc. the cause of action that exists on my favor against any such company or person and I authorize Chiropractic Nutritional Associates, Inc. to prosecute said action either in my name or their name to resolve said claim and collect legal expenses as they see fit.
      I understand that I am financially responsible for all charges whether or not paid by any third party. I agree that all charges are payable and collectable in this country. I hereby authorize Chiropractic Nutritional Associates, Inc. to make inquires, [sic] endorse drafts, and to release any information to my insurance company, employer, attorney, or benefit plan about my case.

        I furthermore irrevocably authorize and direct any of these agents to pay what is due for professional services directly to Chiropractic Nutritional Associates, Inc. I give permission to the doctor to administer treatment and perform such general procedures as he deems necessary in the diagnosis and treatment of my condition.

        See Plaintiffs Exhibit "B” to all Complaints filed in this matter.

      . The present version of section 1132(e)(1) confers concurrent jurisdiction on federal and state courts in actions brought under 29 U.S.C. § 1132(a)(1)(B) to recover benefits, enforce rights, or clarify future benefits under the terms of a plan. We are cognizant of the decision of this court in Nobers v. Crucible, Inc., 431 Pa.Super. 398, 636 A.2d 1146 appeal denied, 537 Pa. 665, 644 A.2d 1201 (1994), cert. denied, -U.S. -, 116 S.Ct. 301, 133 L.Ed.2d 206 (1995) that the courts of Pennsylvania lack subject matter jurisdiction to consider an ERISA claim. However, Nobers involved matters beyond the strict scope of section 1132(a)(1)(B). It is therefore not dispositive as to state court jurisdiction in the instant case which is confined solely to determining appellant’s standing to enforce rights pursuant to a group health plan. We note additionally that Nobers had its inception in an action brought in federal district court in the early 1980's premised upon events which occurred in the 1970's. The language of section 1132 has been modified many times in the interim, most recently in 1993 and again in 1994.

      . The cases decided under ERISA do not explicitly apply this rule of contract law. However, the developing common law of ERISA does apply it sub silentio. See, e.g., St. Francis Regional Medical Center v. Blue Cross and Blue Shield of Kansas, Inc., 49 F.3d 1460 (10th Cir. 1995); Hermann Hospital v. MEBA Medical and Benefits Plan, 959 F.2d 569 (5th Cir. 1992); Davidowitz v. Delta Dental Plan of California, Inc., 946 F.2d 1476 (9th Cir.1991) (discussing the Restatement (Second) of Contracts § 322 (1981)).

      . See also id. (discussing cases decided within the Third Circuit which have held that health care providers lack standing to initiate suit on their own behalf in the absence of an assignment from a party enumerated under ERISA).

      . As previously explained, a “member” is a subscriber or a subscriber’s dependents.

      . We do not find the master contract to be ambiguous upon this point. The spécific provision at issue here simply fails to mention the assignment of a cause of action to contest the denial of benefits. However, to the' extent that the contract language could be deemed unclear, any ambiguity would have to be resolved in favor of the employee subscribers and their assignee. See Curcio v. John Hancock Mutual Life Insurance Company, 33 F.3d 226, 231 (3d Cir.1994) (if the language of an insurance policy is susceptible to more than one reasonable interpretation, it will be found ambiguous and must be construed in favor of the insured).

      . Appellees have cited Farnsworth on Contracts § 11.5 (1982) for the proposition that one cannot assign a “future right" if that right does not exist at the time of the assignment. This is not an accurate representation of the views of Farnsworth or of other authorities on contract law. There is no question that one can make an effective assignment of an executory right and even a right subject to an express condition under an existing contract. Murray on Contracts § 139 A at 810. The impediments to the assignment of so-called “future rights” do not apply to a person’s assignment of a right under an existing contract on the grounds that it has not ripened into a right to demand performance solely because it is conditioned upon some event that has not yet occurred. Farnsworth on Contracts § 11.5 at 87 (1990). A present transfer of rights that are not yet due or may never become due is effective if it appears that there is an existing contract out of which the claim may arise in the future. Williston on Contracts § 413 at 55 (3d Ed.1960). See also Loyola University Medical Center v. Med Care HMO, 180 Ill.App.3d 471, 477, 129 Ill.Dec. 360, 364, 535 N.E.2d 1125, 1129 (1989) (discussing right of assignee medical provider to pursue contract claim against insurer when assignment was made prior to breach).

      . As appellees note in their brief, the trial court’s ruling was premised only upon a consideration of appellant's capacity to bring suit in light of the anti-assignment clause. On remand, the trial court may consider the additional arguments which appellees raised in their preliminary objections.