author: WIEAND, Judge:

text:
    635 A.2d 653
    CHEW-BITTEL ASSOCIATES, INC., Appellant, v. CRUSADER SAVINGS BANK and W. Kirk Wycoff, and Debra Jean Wycoff, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Decided Dec. 28, 1993.

      Steven H. Sailer, Newtown, for appellant.
    David F. Gould, Philadelphia, for appellees.
    Before WIEAND, CIRILLO and HESTER, JJ.
   WIEAND, Judge:

Chew-Bittle Associates, Inc. brought an action against Crusader Savings Bank, contending that the bank, after payment, had improperly reclaimed the proceeds of a check on which the plaintiff had been named as payee. The trial court sustained preliminary objections in the nature of a demurrer to the complaint, holding that payment of the check could properly be revoked because of an inaccurate endorsement. After careful review and for the reasons which follow, we reverse.

When considering a trial court’s order granting preliminary objections in the nature of demurrer, we accept as true all well pleaded facts contained in the complaint as well as any reasonable inferences that can be drawn therefrom. See: AM/PM Franchise Assoc. v. Atlantic Richfield Co., 373 Pa.Super. 572, 542 A.2d 90 (1983), modified on other grounds, 526 Pa. 110, 584 A.2d 915 (1990); Guy v. Liederbach, 279 Pa.Super. 543, 421 A.2d 333 (1980), modified on other grounds, 501 Pa. 47, 459 A.2d 744 (1982). Preliminary objections may be sustained only where it is clear that the law will not permit a recovery on the facts pleaded. See: Cianfrani v. Commonwealth, State Emp. Retirement Bd., 505 Pa. 294, 479 A.2d 468 (1984); Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).

In October, 1991, W. Kirk Wycoff and Debra Jean Wycoff, husband and wife, hired Chew-Bittle Associates, Inc. (ChewBittle) to perform alterations to their real estate. The construction contract, including several oral modifications, obligated the Wycoffs to pay Chew-Bittle $37,238.64. After Chew-Bittle had completed the construction, a balance of $14,582.64 remained unpaid. In January, 1992, the Wycoffs tendered a check for $9,000.00, made payable to “Chew Bit-tie,” in full satisfaction of the unpaid balance. Chew-Bittle promptly endorsed the check as “Chew-Bittle Associates” and, on January 14, 1992, deposited it into its account at the Richboro, Pennsylvania, Branch of Corestates Bank. The check was presented to the drawee bank, Crusader Savings Bank, which accepted the check and paid it.

Several weeks later, when the Wycoffs received the can-celled check, they observed that Chew-Bittle had crossed out a notation that the check was in full satisfaction of the balance due and had noted its reservation of rights under the original contract. Wycoff was a member of the board of Crusader Bank, and he demanded that the bank return the check. On March 2, 1992, Crusader Bank returned the check to ChewBittle with a notation “Endorsement not as Drawn” and reclaimed the funds it had previously paid to Corestates Bank. Chew-Bittle thereafter filed suit against the Wycoffs under the construction contract and against Crusader Bank for improperly reclaiming the proceeds of the check. The trial court sustained Crusader Bank’s preliminary objections in the nature, of a demurrer to the complaint, and Chew-Bittle appealed.

It is correct, as appellee argues, that the payee of a check has no standing to sue the drawee for improper dishon- or of a check. 13 Pa.C.S.A. § 4402 (main volume) (amended and recodified July 9, 1992, effective in one year). See: C & K Petroleum Products, Inc. v. Equibank, 839 F.2d 188 (3rd Cir.1988). The return of a check for lack of a proper endorsement, however, is not a dishonor. 13 Pa.C.S.A. § 3507(c) (main volume) (repealed July 9, 1992, effective in one year). As other provisions of the Uniform Commercial Code make clear, Chew-Bittle, as holder and payee of the check which the bank had honored and paid, could maintain this action when the bank subsequently revoked its acceptance of the check and reclaimed the proceeds of the check.

The trial court, in dismissing the action, held that the drawee bank, in an “abundance of caution,” could properly return the check because it had been made payable to “Chew Bittle” and the endorsement had been by “Chew-Bittle Associates.” In so doing, the trial court overlooked the fact that Crusader Bank had honored the check and paid it and had. reclaimed the funds more than two months later. Therefore, the trial court neglected to consider the potential liability of the drawee bank under 13 Pa.C.S. § 4302 (main volume) (amended and recodified July 9, 1992, effective in one year). This section of the Uniform Commercial Code, as it existed in January, 1992, provided as follows:

§ 4302. Responsibility of payor bank for late return of item
In the absence of a valid defense such as breach of a presentment warranty (section 4207(a)), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of:
(1) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or
(2) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents.

Under this section, a payor bank may become liable to the payee of a check for the face amount of the check, plus any actual damages suffered, if the bank fails to return or pay the check before its midnight deadline. See, e.g.: Chrysler Credit Corp. v. First Nat. Bank and Trust Co. of Washington, 746 F.2d 200 (3rd Cir.1984); Go-Tane Service Stations, Inc. v. Sharp, 78 Ill.App.3d 785, 33 Ill.Dec. 916, 397 N.E.2d 249 (1979); Blake v. Woodford Bank & Trust Co., 555 S.W.2d 589 (Ky.App.1977); Farmers Cooperative Livestock Market, Inc. v. Second Nat. Bank of London, 427 S.W.2d 247 (Ky.App. 1968). This is confirmed by the provisions of 13 Pa.C.S. § 4301 (main volume) (amended and recodified July 9, 1992, effective in one year), where it is provided that a bank may revoke settlement of a check only if it has not finally paid the item and its midnight deadline has not yet passed.

A holder of a check, not having heard from the bank within a reasonable time, must be permitted to assume that the check has been paid. Allowing a bank to retain a check for an indefinite period without incurring liability would hamper normal commercial practices, for a payee would never be certain that the funds represented by the check were available for use. See: Chrysler Credit Corp. v. First Nat. Bank and Trust Co. of Washington, supra at 203; Blake v. Woodford Bank & Trust Co., supra at 591. As one court has observed, “failure [of a bank] to meet the midnight deadline authorizes the person presenting the check to assume that it has been honored and will be paid. Banking practices require the prompt settlement of such items because of the chain of credit dependent thereon.” Farmers Cooperative Livestock Market, Inc. v. Second Nat. Bank of London, supra at 250. Here, appellant has averred that more than six weeks elapsed between the time it presented the check to appellee bank and the time the bank revoked its payment. If this is a correct statement of fact, appellant will be entitled to recover the face value of the check, plus any actual damages suffered.

Appellee’s contention that it was merely responding to the stop payment order of its customer contradicts the pleaded facts and the reason given by the trial court for its action, both of which suggest that the check was returned because of a questionable endorsement, not an order to stop payment. Moreover and in any event, if appellee bank acted after its midnight deadline, it would have lacked the power to recover the funds previously paid even if it were acting in response to its customer’s belated stop payment order, for the check had already been paid. See: 13 Pa.C.S.A. § 4303 (main volume) (amended and recodified July 9, 1992, effective in one year). See also: Yukon Nat. Bank v. Modern Builders Supply, 686 P.2d 307, 308 (Okl.App.1984); First Nat. Bank of Arizona v. Continental Bank, 138 Ariz. 194, 198, 673 P.2d 938, 942 (App.1983); Go-Tane Service Stations v. Sharp, supra, 33 Ill.Dec. at 917, 397 N.E.2d at 250; Citizens and Southern Nat. Bank v. Youngblood, 135 Ga.App. 638, 219 S.E.2d 172, 173 (1975).

An untimely return of a check may be excused where a faulty endorsement breaches the presentment warranty of good title, 13 Pa.C.S. § 4302. However, the warranty is breached only if an endorsement has been forged or is missing, unauthorized or ineffective. Miller v. Federal Depos it Ins. Corp., 134 Ariz. 342, 342, 656 P.2d 631, 633 (App.1983). In this case, a faulty endorsement does not appear from the face of the complaint; and, indeed, the appellee bank has not argued that the endorsement was forged or unauthorized or that Chew-Bittle Associates was not the intended payee. The endorsement, moreover, was not ineffective. The Uniform Commercial Code specifically permits the holder of a check to endorse it by using an incorrect or misspelled name appearing on a check or by using the holder’s correct name. See: 13 Pa.C.S. § 3203 (main volume) (amended and recodified at 13 Pa.C.S. § 3204(d) on July 9, 1992, effective in one year). Chew-Bittle, according to the averments of the complaint, elected to follow the latter course. Thus, the drawee bank cannot properly rely on the form of the endorsement appearing on the cheek to excuse its delayed attempt to revoke payment. If the drawee truly believed the endorsement on the check to be inadequate, it had a right, under 13 Pa.C.S. § 3203, to require a “signature in both names” before paying or giving value for the instrument. It could not reclaim the proceeds of the check almost two months after paying the same.

It may be correct that the payee could not properly reserve its rights under the contract with the drawer of the check by striking out language tendering the check in full settlement of a dispute arising under the contract. See: Hagerty Oil Co. v. Chester Co. Security Fund, Inc., 248 Pa.Super. 456, 375 A.2d 186 (1977). However, this, if proven, would be a defense to Chew-Bittle’s claim against the Wycoffs. It does not relieve the drawee of the check from its duty to pay the payee/holder of a properly presented check.

Because appellant has stated a viable cause of action against the drawee bank, it was error for the trial court to sustain preliminary objections in the nature of a demurrer to the complaint.

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

      . The Code was amended and recodified July 1, 1992, effective in one year.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    635 A.2d 1042
    COMMONWEALTH of Pennsylvania v. Stanley OLIVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 16, 1993.
    Filed Nov. 4, 1993.
    Reargument Denied Jan. 14, 1994.

      Norris E. Gelman, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This case comes before us as an appeal nunc pro tunc from the judgment of sentence entered in the Philadelphia County Court of Common Pleas. Appellant Stanley Oliver was convicted of second-degree murder, robbery and criminal conspiracy. 18 Pa.C.S.A. §§ 2502, 3701, 903. Oliver’s trial counsel timely appealed the judgment of sentence (for life imprisonment plus five to ten years), but that appeal was dismissed without prejudice for failure to file a brief. After a PCRA petition and hearing, Oliver was granted leave to file this direct appeal nunc pro tunc. We now consider his appeal on the merits.

Oliver raises six issues on appeal: (1) the evidence properly admitted against him was insufficient to support his conviction; (2) use of his co-defendants’ confessions violated his right to confront the witnesses against him; (3) his severance motion should have been granted, and his trial counsel’s failure to specifically object constituted ineffective assistance of counsel; (4) trial counsel was ineffective for failing to object to the judge’s use of the word “a” instead of “the” in a jury charge; (5) trial counsel was ineffective for failing to object to a charge which referred to Oliver’s silence after arrest; and (6) the jury held his silence against him.

The first three issues are inter-related, and to appreciate Oliver’s argument requires a careful examination of the evidence presented in this case. We view all the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (1989). Oliver was tried jointly with three co-defendants: David Walker, Ronald Lynch, and Joseph Hess. The latter two defendants gave confessions to police upon arrest; Oliver and Walker maintained their silence and innocence. The Commonwealth relied on two primary sources in building its case against Oliver: the eyewitness testimony of David Smith, and the confessions of Lynch and Hess. Because Oliver’s argument hinges on the admissibility of the confessions, it is crucial that we examine Smith’s testimony separately from the narrative of the crime contained in the confessions. We have conducted a thorough review of the record, and our characterization of Smith’s testimony differs somewhat from the Commonwealth’s, and from the summary contained in Hess’s appeal. Cf. Commonwealth v. Hess, 378 Pa.Super. 221, 224, 548 A.2d 582, 584 (1988).

David Smith first testified at Oliver’s preliminary hearing. N.T. 3/7/85 pp. 52-81. Around 1:00 p.m. on January 21, 1985, Smith took the elevator up to his girlfriend’s tenth-floor apartment in the projects at 1515 Hemberger Way, Philadelphia. This apartment is located in the center of the high-rise, near the elevator shaft; there is a stairwell about ten feet to the right and another stairwell ten feet to the left. Around 3:30 Smith heard some scuffling sounds outside and a single gunshot. Smith waited for a few seconds, and then poked his head outside the door. He saw a man running down the right stairwell and three men running up the left stairwell. Smith went back into the apartment, collected his things, and set out to leave. On his way out of the building he noticed a trail of blood, which led him to the seventh floor. There he found David Green, known as the “Incense Man,” lying in a pool of blood. Smith told a girl at the scene to call the police; and when the officers arrived, Smith gave a statement in which he identified one of the men running up the stairwell as appellant Oliver.

About a year later, Smith testified at the joint trial of Oliver and his three co-defendants. N.T. 2/2/86, pp. 4-86. Here Smith described seeing the three men coming down the stairwell opposite the Incense Man; when the three saw Smith watching them, they turned and ran back up the steps. Smith identified two of the three as co-defendants Oliver and Walker. Id. at p. 7. Smith also testified that later, when a crowd had gathered around the Incense Man’s body, he heard Oliver ask an unidentified person, “What you going to do?” The unknown person replied, “I’m going home.” Id. at p. 13.

Smith was extensively cross-examined by defense counsel at trial, who used Smith’s testimony at the preliminary hearing to impeach Smith’s current characterization that Oliver and two other co-defendants were “chasing” the Incense Man, albeit down a separate stairwell. N.T. 2/2/86, p. 23. Normally, we would not hesitate to conclude that the jury must have chosen to believe Smith’s trial testimony, and that the jury could have reasonably found Oliver guilty of participating in a conspiracy to rob the Incense Man based upon this testimony. But this otherwise clear inference has been heavily clouded by the allegedly improper use of Oliver’s co-defendants’ confessions.

Neither of Oliver’s confessing co-defendants took the stand at trial, and their statements were read into evidence during the testimony of the arresting officers who took them. N.T. 1/31/86, pp. 88-99; 2/2/86, pp. 137-144. These statements described the entire conspiracy from start to finish in great detail: how the four defendants agreed to rob the Incense Man and carefully planned who would hold the gun, who would hold the Incense Man, and who would take his money; how they stalked the Incense Man from floor to floor, but when they moved in for the robbery and met unexpected resistance, one of them fired the gun; how, when they realized they’d killed the Incense Man, they coerced each others’ silence with threats.

The confession testimony is certainly persuasive, but its admission raises profound questions under both the hearsay rule and the Confrontation Clause of the Sixth Amendment to the United States Constitution. We will first consider Oliver’s constitutional claim, which guarantees him the right to face his accuser. The Sixth Amendment embodies a.fundamental tenet of our criminal justice system — that an accused must be afforded the opportunity to cross-examine the witnesses against him. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Because Hess and Lynch never took the stand, Oliver had no opportunity to test the truth of their confessions with rigorous cross-examination. Accordingly, it would violate Oliver’s constitutional rights for a jury to use these confessions in determining his guilt.

Perhaps the optimal solution to this problem would have been to sever Oliver’s trial from his co-defendants’ trials; that way, the confessions could have been properly admitted against their authors, but not against Oliver. But the potential prejudice to a defendant from the use of non-testifying co-conspirators’ statements must be balanced against the demands of judicial economy and desire for verdict consistency. See Commonwealth v. Wharton, 530 Pa. 127, 142 and n. 5, 607 A.2d 710, 718 and n. 5 (1992) (citing Richardson v. March, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987)). We must therefore consider the extent to which Oliver may-have been prejudiced by the use of Hess’s and Lynch’s confessions at his trial.

Until the late 1960s, courts routinely allowed the admission of non-testifying co-defendants’ statements, and held that all prejudice could be cured by a simple limiting instruction that the jury only consider each confession against its author, and not the other co-defendants who were implicated by name. The U.S. Supreme Court declared this practice unconstitutional in Bruton v. United States. The response has been to employ another fiction: redaction of co-defendants’ statements so as to eliminate all references to an accused by name. This practice of substituting pronouns or “other person” for specific names has been approved by our courts. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). Redacting testimony is not a magic curative elixir, but still requires a court to balance the potential prejudice to the defendant against the probative value of the evidence, the possibility of minimizing prejudice, and the benefits to the criminal justice system of conducting joint trials. Redacted testimony may still violate the Bruton rule if it is “powerfully incriminating” and lends “ ‘substantial, perhaps critical weight’ to the prosecution’s case.” Commonwealth v. Rawls, 276 Pa.Super. 89, 97, 419 A.2d 109, 113 (1980).

Our Supreme Court has recently underscored the importance of avoiding any return to pre-Bruton prejudice through unrealistic faith in the curative powers of redaction. In Commonwealth v. Wharton, the Pennsylvania Supreme Court rejected as “too facile” the rationalization that a jury couldn’t positively know who “the other person” is in a redacted confession. Wharton, supra, 530 Pa. at 142, 607 A.2d at 718. There, as here, a jury could easily fill in the blanks in the redacted testimony and thus could not help but use the testimony in assessing defendant’s guilt. But while acknowledging a possible violation of the Bruton rule, the Wharton Court held that any such violation was harmless in light of the other overwhelming evidence of the defendant Wharton’s guilt. Id., 607 A.2d at 718-19.

If we put aside Hess’s and Lynch’s confessions, and consider all other properly admitted evidence against Oliver, we note that it is far from overwhelming. David Smith’s testimony contained contradictions, and, depending upon which version the jury believed, could provide only a threadbare evidentiary basis upon which to implicate Oliver in the conspiracy. Following our Supreme Court’s most recent and authoritative application of the Bruton rule in Wharton, we would hesitate to affirm Oliver’s conviction solely upon this evidence. With this in mind, we now turn to the question of whether Hess’s and Lynch’s confessions could be properly admitted under the co-conspirator exception to the hearsay rule.

The confessions in Bruton, which the jury was instructed not to use, would have been inadmissible as hearsay. The Bruton Court reserved the question of whether the Confrontation Clause might be satisfied when the confessions fall within a traditional hearsay exception. Bruton, supra, 391 U.S. at 128, n. 3, 88 S.Ct. at 1624, n. 3. The U.S. Supreme Court later held that testimony which falls into the co-conspirator exception to the hearsay rule, and has “strong indicia of reliability,” may be introduced without the benefit of cross-examination. Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970); accord Commonwealth v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981). We must therefore consider the application of the co-conspirator exception to Hess’s and Lynch’s confessions and their degree of reliability.

The admissibility of the confessions against their authors, despite their apparent hearsay nature, was never an issue at trial and is not before this Court. We note at the outset that Lynch’s confession is self-exculpatory and, therefore, considerably suspect. Hess’s statement is just the opposite: in his confession to the police, Hess admits his participation in the robbery, and even acknowledges being the one who shot the Incense Man. N.T. 1/31/86, pp. 90-97. The entire statement is thus strongly contrary to Hess’s own penal interests, and may be considered reliable. See Commonwealth v. Hackett, 534 Pa. 210, 220, 627 A.2d 719, 724 (1993) (co-conspirators’ statements found highly reliable when “made in each others’ presence, in front of a third party who was not part of the conspiracy, and contrary to their own penal interests”).

Most of Hess’s confession is a narrative, given to a police officer well after the crime, and thus does not necessarily fall within the conspiracy exception to the hearsay rule. See Commonwealth v. Lambert, 529 Pa. 320, 334, 603 A.2d 568, 575 (1992) (conspiracy exception requires that statements be spoken by the co-conspirators during the conspiracy, and in furtherance of the common design). Our review of Hess’s statement does reveal some testimony in which Hess relates what the other conspirators said during the course of the conspiracy, and which therefore may properly be considered against Oliver (although in the redacted version of Hess’s testimony, Oliver was not named). Hess specifically recounts one of his fellow conspirators saying, “Let’s go rob the Incense Man.” N.T. 1/31/86, p. 90. When the group moved in for the robbery, one of them said to the Incense Man, “Where the money at?” Id. After the gun was fired, Hess asked one of his compatriots, “Did I shoot the man?” to which his cohort responded, “Yeah, you in the big time, you killed him.” Id. at p. 97.

We are now in a position to evaluate the evidence which was properly admitted against Oliver. Applying the conspiracy exception to Hess’s statement, the jury might have concluded that Hess and some other people decided to rob the Incense Man, and ended up shooting and killing him. From David Smith’s testimony, the jury might suspect that the three people coming up or down the stairs opposite the Incense Man were the people in Hess’s narrative, and by Smith’s identification, Oliver was one of these three. Had Smith also identified Hess as one of these three, we think no jury would hesitate to connect the two sources and find that Oliver was definitely proven to be a member of the conspiracy. Smith only managed to identify Oliver and Walker, though, and a jury which honestly followed the court’s limiting instruction would have less of a basis for concluding that Oliver, Walker, and the third unidentified person were the same people referred to in Hess’s testimony. The presence of these three on a different stairwell, but in the same area as the Incense Man, shortly after the shot was heard, is but circumstantial evidence of their involvement — little more than mere presence, in fact.

As we noted earlier, if we could reasonably infer from the record that the jury chose to believe David Smith’s trial testimony (which described Oliver, Walker, and the third person as chasing the Incense Man), then we would hold that Oliver’s verdict is sufficiently supported by properly admitted evidence. But we think that Smith’s earlier testimony at the preliminary hearing (which described the three co-defendants as coming up one stairwell while the Incense Man went down another) would not be enough to sustain the verdict. We can infer from the record that the jury must have relied on the unconfrontable confession testimony of Oliver’s co-defendants, at least some of which was improperly admitted. See Rawls, supra (the confessions were powerfully incriminating as to Oliver, and lent critical weight to the prosecution’s case). Thus, while the properly admitted evidence could be enough to sustain a guilty verdict, we simply do not know what the jury would have done had it been presented only with Smith’s rebutted eyewitness testimony and considered only that much of the co-defendants’ confessions which properly fell into the hearsay exception. In this case the independent evidence of guilt is so tenuous that we cannot consider the introduction of the entire confessions to be harmless error, redaction and limiting instructions notwithstanding. Accord Wharton, supra. Our obligation to view all evidence in the light most favorable to the Commonwealth cannot be extended so far as to allow us to put aside the bulk of the evidence because of its prejudicial effect, then search the record for some bit of inconclusive and impeached testimony, and use it to construct a hypothetical scenario in which the jury might have reached the same verdict. Rather, we must hold that Oliver was unfairly prejudiced by a violation of the Bruton rule, and deserves a new trial.

Because of our disposition of Oliver’s first three claims of error, we need not address the remaining three.

Judgment of sentence vacated, and case remanded for a new trial. Jurisdiction relinquished.

JOHNSON, J., concurs in the result.

      . N.T. 3/7/85, p. 54. Smith was quite clear on this date that the three men were headed up the stairwell: "Q. How about any of the three men, were any or all of them in the hallway or had any or all of them gone through those double doors to the stairwell? A. They came through the double doors on the way up.” Id., p. 69.

      . Green eked out a living by selling incense and body oils door to door in the projects, thus making him a prime robbery candidate. As David Smith later testified, “Who else they going to rob in the projects? Who else got some money but the Incense Man?” N.T. 2/2/86, p. 47.

      . N.T. 2/2/86, p. 7. We take care to keep the victim and the perpetrators on their respective stairwells. Even when taken in the light most favorable to the Commonwealth, the evidence nowhere suggests that the three co-defendants pursued the Incense Man down a single set of stairs. Cf. Hess, supra, 378 Pa.Super. at 224, 548 A.2d at 584.

      . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). As Justice Brennan frankly put it: “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction....” Id. at 129, 88 S.Ct. at 128 (ellipses in original, citations omitted).

      . Lynch's statement is quoted at length in Commonwealth v. Hess, supra, 378 Pa.Super. at 224, 548 A.2d at 584. Lynch describes the planning and commission of the robbery, but insists that he refused to participate. In any event, the only parts of Lynch’s confession which fall into the conspiracy exception add nothing to Hess’s recounting of what was said by the conspirators: "They said they were going to rob the Incense Man. They asked me if I was down with them. I told them I'm not about that stuff.” N.T. 2/2/86, p. 141; “He told me that I better not say anything.... He [ ] told me that if I tell on him he was going to get me the same way.” Id. at p. 142.


author: FORD ELLIOTT, Judge:

text:
    635 A.2d 1047
    Hazel STOVER, An Individual v. ASSOCIATION OF THORACIC AND CARDIOVASCULAR SURGEONS, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1993.
    Filed Nov. 8, 1993.
    Reargument Denied Jan. 20, 1994.

      John W. Jordan, IV, Pittsburgh, for appellants.
    Robert L. Potter, Pittsburgh, for appellee.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

Appellants bring the instant appeal following the trial court’s denial of their post-trial motions for judgment n.o.v. and for a new trial. Additionally, the court added delay damages to the jury’s verdict. Judgment in the amount of $1,347,609.53 was thereafter entered on June 23, 1992.

Appellee brought suit against appellants for failure to obtain her informed consent prior to an operation. This was the only legal theory pursued at trial and negligence was not at issue.

Appellee contracted rheumatic fever as a child. This illness can, and in appellee’s case actually did, result in damage to the valves of the heart. Appellee’s condition had deteriorated to the point that she sought medical attention from appellants, an association of surgeons. A physician with appellants, Dr. William B. Ford, informed appellee that she would need a heart valve replacement.

Dr. Ford only briefly reviewed the details of the necessary surgery with appellee. He testified that he discussed replacement valves with appellee, mentioning tissue valves and a mechanical valve known as the Beall valve. He indicated that the tissue valve was relatively new and that the Beall valve had been used for many years. It was the Beall valve which was implanted in appellee. Appellee stated that she was apprised by Dr. Ford only that mechanical valves outlasted natural tissue valves. She denied that she was ever told of the risks attendant to the implantation of mechanical valves, and in particular the Beall valve, including the danger of the development of dangerous thromboemboli and strokes, as well as the consequent need to submit to a lifelong regimen of anticoagulents.

Dr. Ford did not perform appellee’s surgery. Another physician associated with appellants, Dr. Emir Zikria, actually conducted the implantation procedure. Dr. Zikria testified that he did not recall his meeting with appellee. Dr. Zikria did testify at some length as to the clotting risks involved with the mechanical valve implantation and with the need to take blood thinning agents thereafter. Dr. Zikria asserted that these risks would have been explained to the patient in the ordinary course of pre-surgical consultations, but that it was his customary practice to reiterate the risks immediately prior to surgery. He did not specifically recall reviewing these risks with appellee. Dr. Zikria also reviewed the consent form which appellee signed. His testimony notes that the form mentions neither the threat of thromboemboli, nor the need for anti-coagulents.

Following appellee’s operation, she suffered multiple episodes of debilitating thromboemboli. These occurrences were found to be caused by the valve implanted in appellee. Appellee was left with severe, permanent brain damage. Subsequently, a natural tissue heart valve was implanted.

Appellee brought suit against appellants solely on the basis of lack of informed consent. Negligence was not pleaded. The jury returned a verdict for appellee to which the court added delay damages. Post-trial motions were denied and appellants appealed. On appeal, appellants’ request for relief is limited to a new trial.

Appellants raise the following issues on appeal:

I. In an action based solely on the doctrine of informed consent, is it error for the trial court to permit evidence of distinctions between different types of replacement heart valves and of the knowledge thereof in the medical community?
II. Is evidence regarding what replacement heart valves are or are not in ‘general use’ relevant to an action based on the doctrine of informed consent?
III. Should the trial court have answered in the negative the jury’s question asking whether doctors are legally bound to explain all the aspects of informed consent to the patient even if the patient waives that they do so?

We will address these matters seriatim.

Preliminarily, we note our standard of review as pertains to the review of a denial of a motion for a new trial:

We may not reverse an order denying a motion for a new trial unless the trial court clearly and palpably abused its discretion or committed an error of law that controlled the outcome of the case. See Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985); Gray v. H.C. Duke and Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989).

Sundlun v. Shoemaker, 421 Pa.Super. 353, 358, 617 A.2d 1330, 1333 (1992).

Furthermore, as two of appellants’ issues involve the admission of evidence, we observe:

The admission of evidence is within the sound discretion of the court and the court’s decision will not be reversed in the absence of a clear abuse of discretion. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985); McCrery v. Scioli, 336 Pa.Super. 455, 485 A.2d 1170 (1984).

Hatbob v. Brown, 394 Pa.Super. 234, 575 A.2d 607, 613 (1990).

The most difficult question presented by appellants in this appeal is that which they pose initially. Appellants couch the issue in terms of whether the trial court properly admitted evidence regarding the distinctions between various replacement heart valves because such evidence is irrelevant and prejudicial. However, the real issue which appellants pursue in the argument portion of their brief is that such evidence is inadmissible because the selection of a particular heart valve and its subsequent complications do not involve an issue of informed consent under Pennsylvania law. Appellants rely on a recent case from this court, Wu v. Spence, 413 Pa.Super. 352, 605 A.2d 395 (1992), allocatur granted, 533 Pa. 613, 618 A.2d 402 (1992), to be addressed infra in support of this proposition. Moreover, the trial court characterized the central issue on appeal as follows:

The major legal issue in this case is whether the doctrine of informed consent reaches the selection of the valve to be installed in the patient. Defendant contends that its physicians were required only to obtain the patient’s informed consent to undergo open-heart surgery. The selection of the valve to be installed in the patient is a matter for the physician rather than the patient under Pennsylvania informed consent law.

Trial court opinion at 11.

Essentially appellants argue that informed consent does not (or should not) require a doctor to discuss with the patient all the different prostheses that are available for implantation as well as the advantages and disadvantages of each. Appellants believe that the choice of prosthesis, by medical common sense, must be left with the physician. Generally, we agree with this proposition where other available prostheses are not medically recognized alternative treatments. However, where other potential implants are recognized as medically sound alternatives, the attending physician must inform the patient as to the risks and benefits of those alternatives. To understand this conceptualization, a brief review of the law of informed consent in the Commonwealth is necessary.

Underlying the doctrine of informed consent in Pennsylvania is the intentional tort of battery:

[Wjhere a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is ‘a prerequisite to a surgical operation by his physician’ and an operation without the patient’s consent is a technical assault, Moscicki v. Shor, 107 Pa.Super. 192, 195, 163 A. 341, 342 (1932); Dicenzo v. Berg, 340 Pa. [305] at 307, 16 A.2d [15] at 16 [ (1940) ].

Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331 at 333-34 (1992), quoting Smith v. Yohe, 412 Pa. 94, 106, 194 A.2d 167, 174 (1963). As first annunciated in Pennsylvania, the consent required as a defense to an unauthorized operation encompassed little more than agreeing to the general nature of the surgical procedure.

In 1966, our supreme court expanded the scope of the consent which is required in the case of Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966):

[S]ince the agreement between the physician and his patient is contractual in nature, for there to be a valid consent it must be clear that both parties understand the nature of the undertaking and what the possible as well as expected results might be---- [I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.

Gray v. Grunnagle at 166, 223 A.2d at 674 (quoting R.E. Powell, Consent to Operation, 21 Md.L.Rev. 189 (1961)).

In Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971), this court went on to discuss the benchmarks by which informed consent should be judged:

whether the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiffs would deem significant in making a decision to undergo the recommended treatment. This gives maximum effect to the patient’s right to be the arbiter of the medical treatment he will undergo without either requiring the physician to be a mindreader into the patient’s most subjective thoughts or requiring that he disclose every risk lest he be liable for battery. The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment. This standard creates no unreasonable burden for the physician.

Concluding this brief review, we defer to Festa, supra, which reviewed the social policy underlying the doctrine of informed consent:

The underlying premise of this doctrine is that a physician is precluded from administering to or operating upon a mentally competent adult patient in non-emergency situations without his consent. ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body.’ Schloendorff v. Society of N.Y. Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Judge Cardozo). See also Dooley, 2 Modern Tort Law: Liability and Litigation, § 34:49 et seq. (19); Louisell and Williams, 2 Medical Malpractice: Physicians and Related Professions, §§ 22:01 et seq. (1985). In order for the consent to be valid, the physician is duty bound to apprise the patient ‘of such important matters as the nature of the therapy, the seriousness of the situation, the disease and the organs involved and the potential results of the treatment.’ Salis v. United States, 522 F.Supp. 989, 997 (M.D.Pa.1981) (summarizing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).
Imposition of this duty of full disclosure upon the physician is predicated upon the sentiment ‘that unlike the physician, the patient is untrained in medical science, and therefore depends completely on the trust and skill of his physician for the information on which he makes his decision.’ Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1020 (1977) (citations omitted).

Festa, 354 Pa.Super. at 350, 511 A.2d at 1373.

In the instant case, appellants failed to obtain adequate informed consent on two bases: not only because they failed to describe the advantages and disadvantages of various replacement valves, but also, and perhaps more fundamentally, they failed to reveal the recognized risks of the valve which was actually utilized. It would be difficult to dispute that the heart valve was the sine qua non of this heart surgery.

While it is obvious that appellants should have disclosed the risks of the valve actually used, it is less obvious when and where a physician must disclose the risks of alternative prostheses. Under our view of the doctrine of informed consent, a physician would need to discuss alternate prostheses and their relative merits only when the other prostheses represent medically recognized alternatives. In such happenstance, the patient is entitled to weigh the risks of the alternativé treatments. When, however, there are no other medically recognized alternate prostheses, or, for that matter, any other medically recognized alternate treatments, the doctor need only discuss with the patient any risks relative to the sole, viable prosthesis.

Appellants make much of the issue that it would be onerous to require a physician to inform a patient of the advantages and disadvantages of every available heart valve and then expect the patient to decide. We find that this argument rings hollow. The law of informed consent in this jurisdiction has always recognized the delicate balance which must be maintained between competing interests: the competent patient’s right to medical self-determination and the need to alleviate the requirement that the physician disclose every risk to the patient for fear of liability. Gouse v. Cassel, supra; Informed Consent — A Fairy Tale?/Law’s Vision, J. Katz, 39 U.Pitt.L.R. 2 (Winter 1977).

This court has always deferred on the issue of medical judgment by requiring that only those facts, risks, and complications which would be material to a reasonably prudent patient need be disclosed:

We do not believe that requiring physicians and surgeons to communicate material facts, risks, complications and alternatives to their patients creates an unduly burdensome requirement. A physician or surgeon need not disclose all known information; however, the physician or surgeon is required to advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Thus, the patient is assured that he will be provided with ‘all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally.’ Cooper v. Roberts, 220 Pa.Super. 260, 266, 286 A.2d 647, 650 (1971) (emphasis added) (footnote omitted) (citing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966) and Dunham v. Wright, 423 F.2d 940 (3d Cir.1970)).

Gouse v. Cassel, 532 Pa. at 203, 615 A.2d at 334.

Appellants determined that the mechanical Beall valve was the optimum medical solution for appellee’s problem. It was required that appellee be warned of potentially dangerous thromboemboli which could be produced and that she would need to take anti-coagulents. Further, appellants were required to inform appellee of other medically recognized alternatives (of other heart valves currently in use) and to inform appellee of the risks inherent in their use. The jury found that this information was not given and that appellee should have been so informed. Under our doctrine of informed consent, then, appellants properly were found to have committed a technical battery and damages properly were assessed.

Appellants’ argument also attempts to divorce the risks, and subsequent harm, generated by the implanted valve from the potential risks of the implantation surgery itself. Were we only concerned with the patient’s consent to the operation, we might agree that a physician need only explain in clear language what will be done to the patient. However, under the mandate of Gray v. Grunnagle, supra, the concept of informed consent requires more. As defined therein, the physician must also disclose material risks, complications, and alternatives to the treatment involved. Clearly, this requirement goes beyond merely a consent to the actual surgical touching. Instantly the treatment involved was heart valve replacement surgery. Clearly, one of the risks of this treatment was that the valve utilized would cause appellee’s body to produce clots. The informed consent of appellee required she have this minimum of information.

In support of their argument on divorcement, appellants rely on a series of cases from this court which resolve the issue of informed consent within the context of drug therapy. However, we find these cases distinguishable on their facts.

In Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 808 (1980), husband and wife had brought suit on an informed consent basis. The doctor had prescribed a drug treatment for the wife’s arthritis. The doctor failed to inform her that a known risk of one of the drugs prescribed was blindness. The wife became partially blind as a result.

Essentially, the Malloy court held that the doctrine of informed consent only applies in a surgical context. The court distinguished the situation which confronted it on the basis that it involved only therapeutic drug treatment. The court refused to extend the doctrine of informed consent to cases not within the realm of surgery. The court gave much weight to the underlying battery analysis of informed consent. Since there is no touching involved outside of the surgery milieu, there was no technical battery.

Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985), solidified the position of this court on this matter. The case before the court again concerned drug therapy rather than surgery and the court employed Malloy to rule:

We are of the opinion that the doctrine of informed consent should continue to be limited in its applicability to only those cases involving surgical or operative medical procedures. In Gray, supra, our supreme court expressly grounded its adoption of the informed consent doctrine upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery. To now expand the doctrine’s current applicability to cases involving the administration of therapeutic drugs would be to radically depart from, and indeed obliterate, the foundation upon which the Gray decision stands. Not only are we unpersuaded that such expansion is necessary, we consider ourselves bound by our supreme court’s pronouncements in Gray.

Boyer at 72, 497 A.2d at 649. Clearly, what was dispositive for the Malloy and Boyer courts was the concern that informed consent be limited to the surgical theater.

Most recently, in the case of Wu v. Spence, supra, this court again declined to extend the doctrine of informed consent on facts where a technical battery had not occurred. In Wu, the patient was admitted to the hospital for treatment of a gynecological infection and was treated intravenously with the drug flagyl. The patient thereafter sued on the basis of lack of informed consent in that the physician and hospital did not inform her of the risk of peripheral neuropathy as a result of this treatment. Like the cases before it, Wu firmly grounded its decision on the rationale that the therapeutic drug treatment under review did not involve surgery. Wu noted the reluctance of our courts to so extend the doctrine of informed consent.

Appellants correctly indicate that Wu also contained concepts derived from Karibjanian v. Thomas Jefferson University Hospital, 717 F.Supp. 1081 (E.D.Pa.1989), which argue that the patient was not entitled to recover because she was not claiming injury based on the method of administration of the drug but rather on the effects of the drug itself. Karibjanian made this same distinction. It is from this conceptualization that appellants are ablé to argue that they should not suffer liability where appellee’s injury was occasioned by the thing implanted rather than by the act of implantation itself. While we will concede that Wu contained language to this effect, we note that Wu must be limited to its factual setting of drug therapy. Wu, in fact, specifically refused to expand the notion of informed consent in this regard because the milieu was one of drug therapy rather than surgery:

The basis of an action for a lack of informed consent is that when a physician touches a patient a technical battery occurs, unless that touching is done with the patient’s consent. Id. An emergency situation is, of course, an exception, The case law has consistently refused to extend informed consent to the administration of therapeutic drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985); Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980). See also Keech v. Mead Johnson and Company, 398 Pa.Super. 329, 580 A.2d 1374 (1990). This Court has consistently limited informed consent to a battery theory. We will not expand informed consent here.
In Boyer, the Court held that the doctrine of informed consent should be limited to those cases involving surgical or operative procedures. Boyer, [345 Pa.Super.] at 71-73, 497 A.2d at 649. The Court based this determination on the fact that the Pennsylvania Supreme Court, in Gray v. Grunnagle, grounded the doctrine of informed consent ‘upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.’ Id. The Court in Boyer felt that to expand the doctrine to the administration of therapeutic drugs would totally obliterate the standard set forth in Gray, and, therefore, felt bound by the decision of our Supreme Court in Gray. See Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989). We must agree with the Court in Boyer. Expanding informed consent to include therapeutic drug treatment would completely obliterate the standard set forth by the Supreme Court in Gray. We further believe that the adoption of a negligence standard would also completely obliterate the standard set forth in Gray. We feel duty bound to follow the law as established by our Supreme Court.

Wu, 413 Pa.Super. at 355, 605 A.2d at 397.

We find Wu’s analysis of Gray to be consonant with our discussion today. Contrary to appellants’ advocacy, we find the facts of Wu to be distinguishable from the instant case and wholly consistent with the Malloy and Boyer line of cases. We also note the case of Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493 (1992), allocatur denied, 535 Pa. 619, 629 A.2d 1380 (1993), where no informed consent was obtained prior to radiation treatments. The court found no liability because the treatments did not involve surgery. Likewise, the drug injected in Wu was administered outside of surgery. However, the device implanted instantly was done during surgery.

Furthermore, it appears that where surgical or operative procedures are involved, there must be informed consent as to injected drugs. In Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978), a patient underwent surgery for the extraction of twenty-three teeth. During the operation, she was intravenously administered general anesthesia. Later, further anesthetics were given by inhalation. The patient died as a result of the anesthetics. This court reversed the trial court’s refusal to charge the jury on the issue of the patient’s informed consent. It is worthwhile to note that it was not the method of administration of the drug that killed the patient, but rather the action of the drug itself. It is also noteworthy to mention that Sauro is easily reconciled with Malloy and Boyer because it involved surgery.

Instantly, appellants have attempted to liken the fact situation sub judice to those informed consent cases involving drug treatment. However, the cases upon which appellants wish to depend do not involve surgery, while the instant case does. We are unwilling to concede that in a surgical context, the physician need not inform the patient of the dangers and alternatives of either drugs or implants. The doctrine of informed consent encompasses the entire surgical treatment and all of its recognized and material risks. Latent risks which are a direct result of the surgical treatment are not excluded. While the method of insertion into the body may, indeed, be the subject of informed consent, so also may the potential latent harm of any substance injected, inserted, or otherwise introduced into the patient’s body and left there during surgery.

In sum, as to appellants’ first issue, we rule that the fact situation sub judice is not analogous to Malloy, Boyer, Wu, or Dible. These cases all involved non-surgical settings. Because the instant device was surgically implanted, appellants were obliged to disclose attendant risks and alternatives. The situation is more akin to Sauro than to the other drug cases.

Appellants’ second issue concerns the trial court’s decision to admit evidence that the heart valve implanted in appellee was no longer in general use at the time of appellee’s operation. Appellants contend that such evidence is irrelevant in an action based upon lack of informed consent, in that it speaks more to the issue of negligence, and is highly prejudicial. Simply put, we believe that this evidence was relevant and material. We observe, as did the trial court:

In an informed consent case, the plaintiff may present evidence of any information concerning alternative methods of treatment that the physician did not discuss with the patient and it is for the jury to determine whether this information would have been important to the patient.

Trial court opinion at 16. The fact that other, more widely used valves with different risk factors were available as alternatives may have been deemed material by the jury to a patient’s informed decision. The fact that such evidence might also be relevant in the pursuit of an action for negligence does not negate its relevance in this arena.

Moreover, we fail to see the prejudice to appellants where the trial court repeatedly cautioned and eventually instructed the jury that they were to ignore any evidence that the medical care provided was not up to standards:

You may find that some of the evidence which the parties introduced to help you decide these issues would also have a bearing on the issue of whether or not the defendant provided good medical care. If this occurs, please remember that I permitted this evidence only because I believe it might help you decide the lack of informed consent claim.
You are not to use any of the evidence offered in this case to evaluate the quality of the medical care that plaintiff received, because the quality of medical care that she received has nothing to do with this case.
Even if plaintiff received the best medical care that could possibly be provided, defendants would be liable to plaintiff for any harm she suffered from the treatment if defendants failed to obtain her informed consent. On the other hand, in this case defendants would not be liable to the plaintiff if they obtained her informed consent even if they failed to provide good medical care.

Notes of testimony, 1/6/92 at 12-13 (from the court’s opening comments to the jury). The court recalled these warnings in its final instructions:

Let me explain why certain evidence was presented in this case. This is the evidence as to whether or not as of January 1982 the Beall valve was regarded by the cardiac surgical community throughout the country to be no longer in general use.
Plaintiffs introduced this evidence only as part of her claim that the employees of the defendant medical association failed to furnish the material information that was necessary for plaintiff to make an intelligent choice as to her course of treatment.
Again I remind you that there is no claim in this case that Drs. Ford and Zikria provided medical care that was careless or incompetent because they elected to use the Beall valve.

Notes of testimony, 1/13/92 at 686-87.

Finally, we turn to appellants’ last argument. During the course of the jury’s deliberations the following question was submitted by the jury panel to the court:

Are the doctors legally bound to explain all the aspects of informed consent to the patient even if the patient waives that they do so?

Trial court opinion at 23. Appellants maintain that the court should have answered this question in the negative. We disagree.

The trial court viewed this question as actually potentially posing one of two possible inquiries:

One of the questions it may be is, May [sic] a patient exercise her rights under the informed consent doctrine by leaving the decision of which method of treatment to follow to her physician after the physician has complied with the informed consent law and has informed the patient of all facts, risks, advantages and disadvantages of which a reasonable patient in the plaintiffs position would desire to be informed?
Or your question may be, May [sic] a patient waive altogether her rights under the informed consent doctrine and thereby excuse the physician from any obligation to make the disclosures required under the informed consent doctrine?

Trial court opinion at 24-25; notes of testimony, 1/14/92 (volume 2) at 739. The trial court answered the first question in the affirmative and resolved the second by ruling that there was insufficient evidence in the record to allow the jury to find that appellee had waived her right to full disclosure of risks and alternatives. We agree with this resolution.

The first question merely describes the doctrine of informed consent in operation. Once the physician has disclosed the risks and alternatives attendant to a surgical procedure, the patient is perfectly free to relinquish her right to make a choice. That course of action in itself constitutes her choice.

As for the second question, we agree with the trial court that the record contained insufficient evidence to make a determination that appellee waived her right either in part or in full to disclosure of risks and alternatives. The sole piece of evidence which appellants claim establishes appellee’s waiver is an answer given by witness Doris Ketzel, a friend of appellee who had accompanied her to appellants’ offices on the day Dr. Ford described the surgery to her. This exchange went as follows:

[APPELLANTS’ COUNSEL:] Do you remember Hazel telling Dr. Ford that she wanted whatever Dr. Ford thought best?
[DORIS KETZEL:] Yes.

Notes of testimony, 1/7/92 at 253. This exceedingly brief item of testimony simply does not communicate the concept that appellee “had heard enough and preferred to leave further details solely to her physicians” (appellants’ brief at 18). A desire to leave the ultimate decision up to her doctor is not the same as a desire not to hear the options. It would be perfectly understandable for a patient to want to know the risks and alternatives of surgery and still leave the decision to her doctor. There is nothing in the record indicating that appellee stated anything resembling “I don’t want to hear anything about the operation,” or “Stop! You’ve told me enough. I’ll leave it up to you.” We find no merit to this last of appellants’ arguments.

Accordingly, the judgment of the trial court is hereby affirmed. Jurisdiction relinquished.

      . Natural tissue valves have the benefit of behaving much like those we are born with. Unfortunately, these valves wear out in seven to fifteen years and must be replaced. Thus, they are not recommended for younger patients who might thereby be subjected to the need for multiple open-heart surgeries. Mechanical valves, on the other hand, last for the life of the patient and usually need not be replaced. Unfortunately, mechanical valves have their own drawbacks. Mechanical valves can cause the development of thromboemboli (blood clots), which may hold various dire consequences for the patient. The various mechanical valves available (ball and cage, tilting disk, non-tilting disk) also apparently each carry with them a different incidence of thromboemboli occurrence. The risk of blood clots requires that recipients of mechanical valves take anti-coagulent drugs for the rest of their lives.

      . This argument was presented in a Motion in Limine prior to trial in an attempt to exclude the disputed evidence.

      . Although this contention might better form the basis for a judgment not withstanding the verdict, the Wu case was admittedly unavailable to appellants at time of trial and the filing of post-verdict motions in this case. Therefore, we can only assume this to be reason why such a challenge was not raised in appellants’ motion for judgment n.o.v. and is now presented in the context of a request for a new trial. Because we are affirming the trial court, we need not address further the remedy requested by appellants.

      . The other standard commonly employed is the so-called “professional” standard. Under the professional standard, a physician is bound to disclose only those risks and alternatives which the reasonable medical practitioner in the community would have made in a similar situation.

      . As a point of interest, we note Judge Hoffman’s comments in dissent. Judge Hoffman argued for the adoption of a negligence analysis for informed consent. In so arguing, Judge Hoffman illustrated the inherent weakness of the batteiy approach quite starkly:

        The theory that failure to obtain informed consent to treatment constitutes a form of negligence eliminates the artificial requirement that the physician engage in a 'touching' and thus a battery in order to be held liable. Under the negligence standard, a patient may recover for injury which results when a physician prescribes a drug without first obtaining the patient’s informed consent. Under the battery theory, however, the patient's ability to recover would depend upon the manner in which the drug was administered. Thus, a patient who received a drug by injection without being informed of the drug’s potential side effects could recover, while one who took the same drug orally without knowingly consenting could not recover. By following the trend toward negligence theory, we would eliminate such absurd distinctions from our law of informed consent.

        Malloy at 447, 421 A.2d at 806.

      . We would be less than candid if we did not admit to a degree of artificiality in creating a distinction which limits the touching required for actionable informed consent to be the surgical cut. The court in Wu was also troubled by the need to draw such a distinction. However, it appears that until such time as our supreme court expands the technical assault definition, such artificiality must hold sway. Appellants have cautioned us that this is a hard case that has the potential to make bad law. However, it is our considered opinion that our resolution of this case is entirely consistent with long-standing legal precedent.

      . We also note Friter v. Iolab Corporation, 414 Pa.Super. 622, 607 A.2d 1111 (1992). Friter involved the surgical implantation of an experimental intraocular lens. However, the issue of informed consent presented was different and the present issue never arose. No analogy to the drug cases was made therein.


author: CAVANAUGH, Judge.

text:
    635 A.2d 1056
    REPUBLIC INSURANCE COMPANY, Appellant v. The PAUL DAVIS SYSTEMS OF PITTSBURGH SOUTH, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed Nov. 30, 1993.
    Reargument Denied Feb. 4, 1994.

      Frank R. Fleming, III, Pittsburgh, for appellant.
    Scott T. Redman,, Pittsburgh, for appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   OPINION BY

CAVANAUGH, Judge.

Republic Insurance Company appeals from the grant of summary judgment against it and in favor of Paul Davis Systems of Pittsburgh South, Inc. Summary judgment was entered by the trial court when it concluded that a release executed by Republic’s subrogors, Rhett and Regina McPeake in other litigation was of such a general nature as to bar any further cause of action by the McPeakes or their subrogee, Republic, against another party.

The parties’ respective interests arose as a result of the fact that Republic insured the McPeake residence. Because of a storm on May 23, 1988, the McPeake’s property suffered storm damage. Paul Davis was hired to repair the damage and the roof was removed. There was another storm on June 8, 1988 and more damage was sustained by the McPeakes. Republic voluntarily paid a sum of money to the McPeakes under its homeowner’s insurance responsibilities. Later, the McPeakes claimed additional unreimbursed losses and sued Republic for more money. Republic settled the claim for an additional payment of $5,000. and took in exchange the release presently under scrutiny.

Republic then asserted its subrogation interest against Paul Davis in the present action claiming, inter alia, that Davis’ negligence was the cause of some or all of the losses incurred by the McPeakes and, in turn, reimbursed to them by Republic. Paul Davis interposed the release executed by the McPeakes in favor of Republic as a defense asserting that it was a general release and as such inured to the benefit .of Davis. This was the basis of the summary judgment granted by the trial court against Republic.

Several basic principles of law are not in dispute: 1) the rights of a subrogee (Republic) rise no higher than the rights of its subrogors (McPeakes) and the subrogee is subject to all the defenses which could have been raised against the subrogor and, 2) the release executed in this case is clear, unambiguous and general in its terms.

In Pennsylvania, the effect of a release is determined by its language which must be interpreted according to its ordinary meaning. Brosius v. Lewisburg Craft Fair, 383 Pa.Super. 454, 557 A.2d 27 (1989), appeal denied, 524 Pa. 624, 574 A.2d 66 (1990); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). Since the present release unambiguously releases “all persons” from “all actions”, it would initially appear that the trial court was obviously correct in concluding that the release was an effective bar to Republic’s action. However, appellant relies on two cases in this court for its argument that the releases do not exclude Republic’s claim: Sparler v. Fireman’s Insurance Co., 360 Pa.Super. 597, 521 A.2d 433 (1987), appeal denied, 518 Pa. 613, 540 A.2d 535 (1988) and Farrell v. Lechmanik, Inc., 417 Pa.Super. 172, 611 A.2d 1322 (1992). In these cases this court carved out an exception to the all encompassing effect given to general releases. In Sparler; a general release given to an alleged tortfeasor was held to be ineffective against an insured’s claim against his own insurance company for underinsured motorist benefits. The majority of our court (en banc) drew a distinction between tort liability (the other driver) and contract liability (the underinsurance carrier) and concluded that a release of the former did not release the latter. Farrell, on the other hand, was an indemnity case which implicated the enforcement of a release. The court, relying on Sparler, held that a release given in a wrongful discharge action did not operate to be effective as a release and indemnity agreement in a personal injury tort action. The conclusion we might draw from these cases is that: despite the general terms of a release, it is not effective to bar a suit for a different cause of action (contract-tort) when it was given for a separate cause of action (tort-wrongful discharge). We thus hold (following the teaching of Sparler/Farrell), that although the terms of a general release may be broadly interpreted even to include unnamed parties, it may only serve to release those persons who might reasonably be considered to be within the ambit of responsibility under the asserted and released cause of action. The release given here was for a discrete contract claim (homeowner’s insurance) whereas the court enforced it as to a tort claim.

Recognizing, as we must, the authority of Sparler and Farrell, we conclude that the trial court erred in finding the release to. be a bar to Republic’s claim against Paul Davis.

Summary judgment vacated. Remanded for further proceedings.

Jurisdiction relinquished.

      . See e.g. Zdrok v. Deutsch, 684 F.Supp. 129 (E.D.Pa.1988); Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961); Mayer v. Knopf, 396 Pa. 312, 152 A.2d 482 (1959).


author: CIRILLO, Judge.

text:
    635 A.2d 1058
    CLAIRTON CORPORATION, Appellant, v. GEO-CON, INC.
    Superior Court of Pennsylvania.
    Argued Oet. 19, 1993.
    Filed Dec. 20, 1993.

      John M. Studeny, Pittsburgh, for appellant.
    Alfred W. Babb, Warrendale, for appellee.
    Before CIRILLO, FORD ELLIOTT and CERCONE, JJ.
   CIRILLO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County denying appellant Clair-ton Corporation’s (Lessor) motion for post-trial relief. We affirm.

Lessor and appellee Geo-Con, Inc. (Tenant) were parties to a commercial lease for a business premises located in Monroe-ville, Pennsylvania. The lease was for a term of two years. At the expiration of the two-year term, which was September 15, 1990, Tenant, with the consent of Lessor, remained on the premises for approximately seven months. During that time, Tenant continued to pay the same monthly installment rate as provided for in the two-year lease. The lease, which had been signed by the parties on August 10,1988, provides in pertinent part:

TO HAVE AND TO HOLD THE said premises for a full term of two years, commencing on September 15, 1988.
The Tenant shall pay as rental hereunder the sum of One Hundred Seventy Three Thousand Eight Hundred Seventy-Seven and 36/xx Dollars in 24 equal monthly installments, without demand, of Seven Thousand Two Hundred Forty Four and 89/xx, beginning on the commencement of the term and on the first day of each calendar month thereafter.
* * * * * *

The lease did not include a “hold-over” provision and, at the end of the two-year term, the parties had made no definite new arrangements. Tenant eventually vacated the premises in April, 1991.

Lessor filed a complaint seeking to recover rent for the remainder of the one year hold-over term from early April, 1991 through September 14, 1991. Tenant claimed that it did not hold over; it was engaged in negotiations for a new lease for additional rental space with Lessor and, thus, became a month-to-month tenant. A non-jury trial ensued, whereupon a verdict was entered in favor of Lessor in the amount of $1,466.5o. Lessor, believing the verdict to be inadequate, filed post-trial motions which were argued and denied. This timely appeal followed. Lessor raises the following issue for our review:

Where a tenant for a term of years holds over after the expiration of the original term with the consent of the lessor, and where no definite new arrangement has been made between the lessor and the tenant, is the hold-over tenancy for a term of one year?

In support of its claim, Lessor cites principles established at common law. Specifically, when a lease for a term of years expires, and the lessee remains in possession, the landlord may, at his option, treat the lessee as a hold-over tenant; such law implies that the possession of the hold-over is subject to the same terms, conditions, and covenants as the old lease. Pittsburgh v. Charles Zubik & Sons, Inc., 404 Pa. 219, 171 A.2d 776 (1961); see also Reading Terminal Merchants Assoc. v. Rappaport Assoc., 310 Pa.Super. 165, 456 A.2d 552 (1983); Mack v. Fennell, 195 Pa.Super. 501, 171 A.2d 844 (1961). Lessor relies primarily on Routman v. Bohm, 194 Pa.Super. 413, 168 A.2d 612 (1961), where it was specifically held that the tenants, who had held over after an expiration of a three-year lease and continued to pay the same monthly rent, became tenants from year to year. The court in Routman set forth the following rule of law:

[WJhere following the expiration of a tenancy for a term of one or more years, the tenant with the consent of the landlord holds over, prima facie, in the absence of evidence showing a contrary intent, the normal inference from the conduct of the parties is that they thus exhibited an intent to convert the tenancy into one from year to year.

Id. at 414-15, 168 A.2d at 613-14 (emphasis added).

In further support of its position, Lessor relies upon Harvey v. Gunzberg, 148 Pa. 294, 23 A. 1005 (1892), one of the cases cited by this court in Routman. In Harvey, the Pennsylvania Supreme Court proclaimed that where a tenant holds over after the expiration of his term, and no different arrangement has been made between the landlord and tenant, a tenancy for another year is created. Id. at 295-96, 23 A. at 1005; see also English v. Murtland, 214 Pa. 325, 63 A. 882 (1906).

In its evaluation of the foregoing precedent, the trial court in this case found “evidence showing a contrary intent,” Routman, supra regarding the term of Tenant’s “hold-over.” There is no question that Tenant continued to pay, and the Lessor continued to accept, the monthly rental rate set forth in the expired lease. The record also reflects that, from approximately August, 1990 (one month before the termination of the two-year lease), through April, 1991 (when Tenant vacated the premises), the Lessor and Tenant were involved in negotiations for a new lease. The negotiations mostly centered around the fact that Tenant desired an increased amount of rental space. At no time during their negotiations was there discussion of, whether Tenant was occupying the space on a hold-over basis for a year or on a hold-over basis from month to month. Thus, in light of the fact that there was an attempt to have a new lease drafted, the trial court refused to hold that Tenants had agreed to another yearly lease, finding, inter alia, that the parties’ intent was contrary to the creation of a hold-over tenancy. We agree.

In addition to citing Routman and distinguishing it from the instant case, the trial court pointed to no other law in support of its conclusion. Indeed, our research on this specific issue reveals a scarcity of authority. We are convinced, however, that a hold-over for a term of one year was not created under the instant set of circumstances.

“[I]t is established law that mere continuance in possession and payment of rent does not of itself constitute a renewal of the lease with all its provisions.” Young Men’s Christian Association v. Harbeson, 407 Pa. 489, 492, 180 A.2d 916, 918 (1962) (citing English v. Murtland, supra) (emphasis added). In Harbeson, the lessee sought specific performance of an option to purchase certain property, as specified in a lease agreement between the lessee and lessor. The Pennsylvania Supreme Court specifically held that the lease agreement, including the option clause, was not renewed for a second five-year term when the lessee continued in possession of the property after the end of the first term. Rather, the Court looked to the specific facts of the case and came to the conclusion that there was a mutually agreed upon modification of the original lease agreement, the modification being the elimination of the option to purchase. Significantly, the Court took into account the fact that the lessor informed the lessee that he would no longer sell at the option price and that such price was to be renegotiated. Thus, when the lessee continued possession at the termination of the lease, his acceptance of the modification was implied.

We decline to follow Lessor’s strict interpretation of the rule set forth in Routman and Harvey and, in light of the facts at hand, will instead adopt a more flexible approach. Like the court in Harbeson, we are of the opinion that Tenant’s possession of the premises after the termination of the lease, in and of itself, does not automatically bind them to a renewal of their original lease agreement. When we consider the surrounding circumstances, specifically the failed renegotiation of the lease, we refuse to hold Tenant liable for another entire year’s rent. See Severance v. Heyl & Patterson, Inc., 308 Pa. 101, 108, 162 A. 171, 173 (1932) (“[t]he fact that money was paid as rent does not establish any particular term or holding and if the beginning of the tenancy or its length is in question, these facts must be shown by other evidence”); Peterson v. Schultz, 162 Pa.Super. 469, 58 A.2d 360 (1948) (fact that tenant has paid rent after expiration of term and the landlord has accepted it is not an affirmance of the lease for a new year but merely evidence of affirmance which may be rebutted by proof that such was not the intention of the parties). Lessor’s acceptance of Tenant’s rent, combined with Lessor’s involvement in negotiations for a new lease to include more rental space for Tenant, clearly implies that Lessor knew that the terms and conditions of the old lease would not have been acceptable to Tenant. It can be deduced, therefore, that under these circumstances, the creation of a month to month lease was more appropriate.

In further support of our conclusion, we are persuaded by the following language set forth in Southern Ry. Co. v. Peple, 228 F. 858 (4th Cir.Va.1915):

Continuance in possession by a tenant, with the payment of rent, will usually be regarded as renewal of the lease; the acceptance of the rent by the lessor being considered a waiver of any right to notice of intention to renew. But this rule does not apply where the possession is retained and the rent paid pending negotiations with respect to the renewal of the lease.

Id. at 856 (citations omitted) (emphasis added); see also 45 A.L.R.2d 841, § 6. Peple involved a proceeding in which a lessor alleged that a right to renew a lease had not been exercised. The court held that the lessor had waived the notice requirement in the lease asking for ninety days’ notice for exercise of the option to renew. In reaching this conclusion, the court looked to the following factors: the lessor knew that expense and labor had been incurred and plans had been laid out for the future in reliance on renewal of the lease; the lessor had allowed the lessee to remain in possession and pay rent and taxes after the end of the initial term, pending negotiations for a possible new lease; the lessor had delayed for approximately five weeks after receiving a sixty day notice from the lessee; and the lessor had responded to such notice that lessor would renew the lease on receiving a more formal letter from the lessee.

We find it significant that, in finding for the lessee, the court in Peple looked to the fact that the lessor had allowed the lessee to remain in possession of the property after the lease had ended, that negotiations for a new lease were pending, and that the lessor had delayed in responding to the notice received from the lessee. The court focused on the conduct of the lessor in determining that the lessor had accepted the lessee’s notice to renew. Although the instant case does not involve an option to renew, Peple lends analogous support for our decision to uphold the implication of a month to month lease. In reaching this decision, we, too, look to Lessor’s conduct involving negotiations for a new lease, along with the delay incurred in doing so. When these factors are considered, it is clear that the parties’ intent was not to enter into the same lease as was originally executed.

Our refusal to focus solely on the fact that Tenant has remained in possession of the property after the expiration of the lease is not in conflict with the rules set forth in Routman and Plarvey; rather, it is consistent with them. In fact, the reasoning employed here can be considered an example of Routman’s “contrary intent” exception to the general rule regarding holdovers. Thus, because the parties’ conduct evidenced an intent to enter into a new agreement, even though a new lease never actually came to fruition, such conduct was sufficient to invoke an exception to the common law rule making Tenant liable for another year’s rent. In the interest of fairness, we will not disturb the trial court’s conclusion, and hold that Tenant’s occupation of the premises after the original lease had expired became a month to month tenancy.

Order affirmed.

      . At trial, the Lessor had claimed the following items of damage: (1) unpaid rent for the remainder of the one-year holdover term ending September 14, 1991, being a total of $39,846.90; plus, (2) late charges as required by the lease in the amount of $4,081.44; plus, (3) a partial underpayment of rent during one month of the original term of the lease in the amount of $967.50; minus, (4) a credit for a security deposit in the amount of $950.00.
      The trial judge awarded damages as follows: (1) instead of unpaid rent for the remainder of the one-year hold-over term, only per diem rental from March 31, 1991 through April 6, 1991 (the date Tenant vacated the property), which totaled $1,449.00; plus, (2) nothing for late charges; plus, (3) the partial underpayment of rent during one month of the original term of the lease in the amount of $967.50; minus, (4) a credit for a security deposit in the amount of $950.00. Accordingly, the total damage award amounted to $1,466.50.

      . At the time that the lease was in effect Tenant occupied 7,000 square feet of Lessor’s rental space; Tenant wanted the new lease to provide an additional 3,000 square feet of space. The record reflects that Lessor was slow in responding to Tenant’s requests for this new agreement.

      . On cross-examination, Joseph Jonnet, President of the Lessor corporation, testified as follows:
      Q. So is it correct to say that you and Steve [Mr. Jonnet's nephew] decided that you would just simply treat it as a one-year election on your part, the landlord’s part, and didn’t feel an obligation to tell them anything; is that right?
      A. Well, I felt they knew it.
      Q. And how—
      A. It's the law.

      . Landlord’s consent to extension or renewal of lease as shown by acceptance of rent from tenant holding over:
      § 6. Circumstances rendering rule inapplicable; receipt of rent during negotiations for new lease.
      Where a tenant remains in possession of realty after the expiration of his term, and during a period in which he and the landlord are negotiating for a new lease, and the landlord accepts rent for this period, it is uniformly held that such acceptance is not a manifestation of the landlord's consent to an extension or renewal of the lease.
      45 A.L.R.2d 841, § 6.