author: HESTER, Judge:

text:
    463 A.2d 1056
    Marina G. TETTIS v. Peter E. BOYUM, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1983.
    Filed July 15, 1983.

      Gordon J. Daghir, St. Marys, for appellant.
    Patrick J. Kronenwetter, Emporium, for appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   HESTER, Judge:

Presently before us is a custody dispute which raises questions relating to jurisdiction and statutory interpretation. The father is appellant herein, the lower court having granted custody of the couple’s two minor children to appellee, the natural mother.

As in all custody cases, a recital of this particular family’s background is necessary in order to evaluate the issues raised herein. The parties were married while both were members of the military forces. Two children were born to them, a daughter named Jimmie Tettis on January 28, 1977, and a son, Peter J. Boyum, on January 15, 1979. Their assignments stationed them in San Angelo, Texas, in September of 1979. Shortly thereafter, appellee removed herself from the family abode and established a separate residence in that city. By Order of Court, the parties were divorced on May 14, 1980. Appellant received uncontested primary custody of the children, who had resided with him continually since their mother’s departure. Appellee visited them on a daily basis until March, 1981, when she returned to her hometown, St. Mary’s, in Elk County, Pennsylvania.

Appellant delivered the children to appellee for two extended visits, once in 1981 for four months and in April, 1982. Prior to the planned return of the children, appellee filed a petition in the Court of Common Pleas of Elk County, Pennsylvania, seeking custody pursuant to the Uniform Child Custody Jurisdiction Act (hereinafter “U.C.C.J.A.”), 42 Pa.C.S.A. § 5341 et seq. A hearing was held on July 9, 1982, at which time both parties were present and testified. Custody was thereafter awarded to appellee on August 5, 1982. It is from that Order which appellant perfects this appeal.

Appellant raises two issues on this appeal:

1) whether jurisdiction existed in the Court of Common Pleas of Elk County, Pennsylvania, in light of a prior custody order from the State of Texas, and
2) if so, whether the facts of this case show such changed circumstances as to warrant transfer of custody from appellant to appellee.

We will address each of these issues seriatim; however, before we do so, a brief review of the purposes of the U.C.C.J.A. is in order.

The legislature, in drafting this law, sought to alleviate certain problems which have inevitably resulted from the ever-increasing number of divorces. Primarily, this Act was intended to deter abductions, unilateral removal, and improper retention of children by one of the parents in order to thwart a custody award or to gain an upper hand in the custody fight. The legislature also attempted to promote cooperation and facilitate the enforcement of foreign custody decrees by avoiding jurisdictional conflicts with courts of other states and relitigation of foreign custody awards. Finally/ this Act sought to assure that custody disputes would be heard in the state with which the child and his family have the closest connection. 42 Pa.C.S.A. § 5342(a)(l)-(8). Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980), aff'd. 492 Pa. 183, 423 A.2d 333 (1980).

I

Generally, a court in this Commonwealth has jurisdiction to make a child custody determination by initial or modification decree if:

“(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person of whom custody is awarded and have found it to be satisfactory for the welfare of the child.”

42 Pa.C.S.A. § 5344. These bases for jurisdiction can be roughly characterized as (1) “home state” jurisdiction, (2) jurisdiction founded upon “significant contacts” among the parties to the custody action and the locale in which the action has been brought, and (3) “parens patriae” jurisdiction for those situations where a child is abandoned, abused, or dependent. Warman v. Warman, 294 Pa.Super. 285, 293, 439 A.2d 1203, 1207 (1982).

Appellant initially argues- that the lower court lacked home state jurisdiction as provided in § 5344(a)(l)(i). It is abundantly clear that such is the case, since the children had resided in Texas from 1979 until their visit to their mother in April, 1982. They had only been with their mother for two months when she initiated these proceedings to determine custody. Consequently, the six month residency period prescribed by § 5344(a)(1)(h) had not been fulfilled either. However, the lower court readily agreed with appellant’s assessment of this jurisdictional basis, and specifically rejected it as not controlling.

Instead, the hearing judge ruled that it was in the best interests of the children that jurisdiction be vested in this Commonwealth pursuant to § 5344(a)(2), by virtue of the significant contacts among the children, the mother, and the Commonwealth of Pennsylvania. Although he did not elaborate upon those connections, a review of the record reveals that appellee and the children are currently residing with appellee’s parents, two brothers, and grandmother in her parents’ home. Appellee has lived there since her departure from Texas in 1981, and she currently is employed part-time at a nearby hospital. The daughter, Jimmie resided in St. Mary’s for over two years at various times in her life; Peter was born in St. Mary’s and lived there for eight months after his birth. Finally, both children enjoyed a four-month visit with appellee in Pennsylvania in 1981.

Conversely, the hearing judge observed that appellant had been transferred from his former military base in Texas for a temporary duty assignment in California, and that he deposited the children with appellee in April, 1982, while en route to his new assignment. Moreover, at the time of the hearing, appellant was uncertain as to where he would be stationed at the conclusion of his tour of duty in California. Because of the contacts that existed among appellee, the children, and Pennsylvania, and in light of the diminishing connections among appellant, the children, and Texas, the lower court ruled that an assumption of jurisdiction by this Commonwealth over the instant custody dispute was in the best interests of the children.

However, the lower court failed to consider whether Texas retained jurisdiction over this matter. Before the courts of this Commonwealth can assume jurisdiction, it must appear that “no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2), or (3)....” 42 Pa.C.S.A. § 5344(a)(4)(i). See Commonwealth ex rel. Earl R.D. v. Linda H.S., 297 Pa.Super. 78, 443 A.2d 307 (1982). In yet another section of the U.C.C.J.A., the Pennsylvania courts are directed to:

“recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this subchapter or which was made under factual circumstances meeting the jurisdictional standards of this subchapter, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of this subchapter.”

42 Pa.C.S.A. § 5344. While the U.C.C.J.A. is not a reciprocal law, the courts of this Commonwealth are not free to disregard all custody decrees emanating from those states which have not adopted this Act. Instead, the case law and statutes of the foreign state must be examined to determine whether that state should assume or continue jurisdiction of the custody dispute. Commonwealth ex rel. Earl R.D. v. Linda H.S., supra. 42 Pa.C.S.A. § 5355.

Texas, while not a party to the U.C.C.J.A., did promulgate legislation in 1979 defining the original jurisdiction which a court of Texas must satisfy before ruling upon any suit affecting a parent-child relationship. That statute provides:

“(a) A court has original jurisdiction of a suit affecting the parent-child relationship, whether or not the child is physically present in the state, only if one of the following conditions is met:
(1) this state:
(A) is the principal residence of the child at the time the proceeding is commenced; or
(B) was the principal residence of the child at any time during the six-month period before the proceeding was commenced, and a parent or person acting as a parent resides in this state at the time the proceeding is commenced; or
(2) it is in the best interest of the child that a court of this state assume jurisdiction because:
(A) the child and the child’s parents or the child and at least one contestant have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(B) the child is physically present in this state and there is a serious immediate question concerning the welfare of the child; or
(C) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with this section, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine issues concerning the child.
(b) The physical presence in this state of the child or of the child and one of the contestants is alone insufficient to confer jurisdiction to the court to make a determination under this subtitle.”

V.T.C.A., Family Code § 11.045.

Even a cursory reading of the above section reveals the resemblance between it and 42 Pa.C.S.A. § 5344. Moreover, in a notation following § 11.045, the legislature observed that this section is similar to § 3 of the model U.C.C.J.A., which of course served as the basis for Pennsylvania’s version of the U.C.C.J.A. See also Albers v. Ames, 616 S.W.2d 653, 655 (Tex.Civ.App.—San Antonio 1980), rehearing denied February 5, 1981. The Texas Court of Civil Appeals, Dallas, observed:

“Both the Restatement (Second) and the Uniform Act are consistent with this well-settled Texas law to the extent of recognizing that in the case of nonresidents, the court should consider the circumstances of the child and of the parties in order to determine whether the custody issue should be decided in some other forum.”

Perry v. Ponder, 604 S.W.2d 306, 317 (Tex.Civ.App.—Dallas 1980). Our scrutiny of the statutes and case law of Texas leads us to conclude that Texas employs prerequisites substantially similar to those applied by this Commonwealth to custody matters. We must now determine if Texas retains jurisdiction pursuant to those guidelines.

In seeking to stem the forfeiture of jurisdiction from Texas to Pennsylvania, appellant strenuously argues that Texas is the appropriate forum. To support his case, appellant contends that Texas is the home state of both himself and the children. Appellant expressed every intention of retaining Texas domicile in spite of his movement to California and from there to his next assignment. To enhance this claim, appellant submits copies of his vehicle registration, receipt for his motor vehicle, a Leave and Earnings Statement, and several other documents, all of which reflect San Angelo, Texas, as appellant’s permanent address. At the hearing, appellant testified about his firm resolve to retire in Texas at the end of his military career.

Texas clearly was the home state of the children at the institution of these proceedings. In light of appellant’s unique position of being a member of the military forces and subject to frequent moves, we are certainly willing to credit his testimony concerning his intent to establish a permanent domicile in Texas. However, while home state jurisdiction is favored as the preferable basis of jurisdiction, Warman v. Warman, supra, “the Act clearly implies that there will be factual situations that will impel a court to accept jurisdiction even when ‘home’ jurisdiction exists elsewhere.” Hattoum v. Hattoum, 295 Pa.Super. 169, 175, 441 A.2d 403, 406 (1982) (Emphasis in original). Herein, the lower court found the “substantial contacts” basis to be more compelling.

In response to that finding, appellant counters that the necessary evidence concerning the care, protection, training, and personal relationships of the children for the two and one-half years preceding their wrongful retention in Pennsylvania is located in Texas. He notes that any evidence which appellee desired to proffer concerning the children’s future care could easily be introduced in a Texas court of law. In light of the above-cited reasons, appellant argues that he and the children had more significant connections with Texas than appellee and the children had with Pennsylvania. •

At the time this action was commenced in June, 1982, the children unquestionably had significant present connections to the State of Texas. Both children resided in Texas for over two and one-half years of their young lives. There they attended day-care centers and developed relationships with those whom they encountered on a daily basis. We must concede that substantial evidence existed in Texas as to their “present or future care, protection, training, and personal relationships.” Thus, as seen from our analysis and from that of that lower court, under both the Pennsylvania and Texas statutes governing child custody disputes, jurisdiction could arguably be claimed.

This is not the first instance where this Court has been caught between two states with colorable reason to exercise jurisdiction. In Hattoum v. Hattoum, supra, the mother, who retained physical custody of her children, resided in Argentina. For five years, she returned the children to their father in Pennsylvania for their annual four-month visit. In the fifth year, after the children arrived for their visit, the father instituted custody proceedings. Although substantial contacts with the children’s home jurisdiction of Argentina obviously existed, significant contacts also existed with this state as well as ample evidence of the children’s care, training, and personal relationships in this locale. We held that the lower court did'not err in not deferring its valid jurisdiction over the custody proceedings to another valid jurisdiction. Admittedly, there was an earlier consent order entered into by both parties in Westmoreland County transferring custody of the children to the father. This fact was not insignificant in our decision to affirm the jurisdiction of the lower court, for we viewed that agreement as a submission of the parties to that court as the preferred forum for the resolution of custody matters.

While the facts of the instant case do not exactly parallel those of the Hattoum case, they do present justifiable circumstances which warrant a like result. Although at the time of the filing of the action, Texas had continuous long-term connections to the children, that contact had come to an end. Regardless of appellant’s intentions to retain Texas as his permanent domicile, the fact remained that, at the conclusion of the children’s visit to appellee in July, 1982, they would have been sent to California to join appellant, who had already departed from Texas. Thus, the forum where the parties entered into the consensual divorce and custody decree would no longer be presently substantially connected with either the children or with appellant. In light of these facts, we affirm the decision of the trial judge that the best interests of the children mandated an assumption of jurisdiction herein.

Appellant argues that even if Pennsylvania satisfied the jurisdictional requirements, jurisdiction should have been declined according, to 42 Pa.C.S.A. § 5349(b). That statute provides:

“(b) Restriction on modification of foreign decree—Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction unless the petitioner can show that conditions in the custodial household are physically or emotionally harmful to the child, the burden of proof being on the petitioner requesting the court to take jurisdiction.”

Although the express purpose of the U.C.C.J.A. is to prevent the improper retention of a child after a visit or other temporary relinquishment of physical custody, appellee did not intend to benefit her position in the custody proceeding. Rather, she merely sought to modify the Texas decree in this Commonwealth as opposed to either Texas, where none of those involved now reside, or California, a neutral situs with no present connections to the children. This conduct does not reflect a flagrant disregard of the purpose of the Act, nor does it serve as a basis to decline jurisdiction as prescribed by § 5349(b).

With respect to the issue of jurisdiction, appellant’s final argument is that the record is devoid of any evidence that conditions in his household were physically or emotionally harmful to the children. The Supreme Court ruled in Commonwealth ex rel. Zaubi v. Zaubi, supra, that such a showing must be made before Pennsylvania courts could accept jurisdiction to modify a prior foreign custody decree. In that case, the father abducted his children from Denmark in violation of a valid Danish custody decree and sought to relitigate the same facts in a Pennsylvania court. The Supreme Court relied upon 11 P.S. § 2309(b) of the U.C.C.J.A., now 42 Pa.C.S.A. § 5349(b).

This case, as the trial judge aptly noted, is distinguishable from the case at bar. Herein, appellee retained the children after a visit, whereas in the Zaubi case, the contestant abducted the children and foiled all attempts of their mother to ascertain their whereabouts. Situations such as the instant one are controlled by § 5349(b) which prescribes that the court shall not exercise its jurisdiction to modify a custody decree of another state unless “required in the interest of the child.”

Again, this language parallels the model U.C.C.J.A. In defining this clause, the drafters commented that:

“[i]n the case of illegal removal or retention refusal of jurisdiction is mandatory unless the harm done to the child by a denial of jurisdiction outweighs the parental misconduct.”

Uniform Laws Annotated, supra at 143. As we stated above, the parental misconduct of appellee in retaining the children was slight in view of the extenuating circumstances, i.e., upon their departure, they would not have returned to their former home but they would have travelled instead to a new environment and home in California. If anything, their retention served to lessen the disruption they would have experienced if they had been shuttled between California and Pennsylvania in the course of this custody matter. Moreover, the lower court relied upon evidence that the children experienced behavioral problems when apart from appellee while in Pennsylvania. We believe that the hearing judge properly found that the interests of the children required an assumption of jurisdiction.

II

Having concluded that jurisdiction was properly vested in the lower court, we now turn to appellant’s complaint in the alternative. The second issue which appellant raises' is whether the trial court erred in transferring custody of the children to appellee.

In any custody proceeding where there is a valid prior custody order, such as in the case at bar, the burden rests upon the party seeking modification of that order to prove a substantial change in circumstances that would justify a court’s reconsideration of the custody disposition. Daniel K.D. v. Jan. M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982); Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Super. 332, 264 A.2d 420 (1970). When a substantial change in circumstances has been established, both parties shoulder the burden of demonstrating with which parent the children’s best interests will be served. Daniel K.D. v. Jan M.H., supra 301 Pa.Super. at 42, 446 A.2d 1325. In Re Custody of Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980). Needless to say, it is well-established in this Commonwealth that the primary consideration in every custody proceeding is the best interests and welfare of the child. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982).

The lower- court was correct in concluding that appellee’s return to St. Mary’s, Pennsylvania, constituted a material change in circumstances which warranted reconsideration of the preliminary custody decision. However, we are constrained, to reverse and remand this case for an additional hearing.

As we have cautioned the lower courts time and again, in order to assess the best interests and general welfare of the child or children, it is the duty of the trial judge to make the fullest possible inquiry in custody actions. Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978); Commonwealth ex rel. Ashfield v. Cortes, 210 Pa.Super. 515, 234 A.2d 47 (1967). All pertinent facts and circumstances surrounding the contesting parties must be fully explored and developed. Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). The hearing judge should consider the character and fitness of the respective parties, the type of home they can offer, their ability to adequately care for the child, and their ability to financially provide for the child. Gerald G. v. Theresa G., 284 Pa.Super. 498, 502, 426 A.2d 157, 159 (1981), quoting Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 252, 421 A.2d 706, 708 (1980).

The type of objective evidence concerning the above cited factors cannot be acquired exclusively from the parties themselves. In the hearing conducted below, only the parties and appellee’s mother testified. There was no testimony proffered from disinterested witnesses bearing upon the present capabilities of the parties to provide the child with a stable environment. In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978).

It would be helpful if evaluations were made of the homes each parent could furnish the children. Also, since the trial judge noted that the children adversely reacted to separation from their mother, expert testimony from a child psychologist would assist the trial judge in weighing the actual extent of the traumatic impact upon the children if custody were returned to the father. See Commonwealth ex rel. Newcomer v. King, supra; Commonwealth ex rel. Michael R. and Kristen Leigh R. v. Robert R.R., 314 Pa.Super. 335, 460 A.2d 1167 (1983). Appellant should avail himself of the procedural device found in 42 Pa.C.S.A. § 5359, which encourages out-of-state contestants to adduce testimony of out-of-state witnesses by deposition or otherwise. He should also submit any other evidence, such as social studies pertinent to this custodial matter, which would enlighten the court and enable it to thoroughly evaluate his capabilities as the primary custodial parent in his present assignment.

After the evidence has been presented, the trial court must then provide this court with a comprehensive opinion encompassing a thorough analysis of the record and specific reasons for its ultimate decision. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981); Ray v. Ray, 293 Pa.Super. 216, 438 A.2d 614 (1981). In the instant case, in addition to an inadequate record, we find the lower court opinion to be lacking as well. The majority of the trial judge’s opinion addressed the jurisdictional question; only one paragraph was directed to a summary of his reasons for the decision to transfer custody to appellee. This cursory analysis is simply an inadequate basis for appellate review.

We recognize that the hearing held in this case was hastily advanced so as to accommodate the presence of appellant in this Commonwealth, but we cannot “permit a child’s future to be disposed of in a summary fashion.” Gunter v. Gunter, 240 Pa.Super. 382, 402, 361 A.2d 307, 317 (1976). Therefore, we are compelled to conclude that the trial judge lacked sufficient evidence to render a valid custody award. The order of the lower court is reversed and remanded for a more comprehensive hearing on the record. Jurisdiction is relinquished.

POPOVICH, J., concurs in the result.

      . It is manifestly apparent that the third basis for jurisdiction is inapplicable to the case at bar.

      . This situation was not unforeseen by the drafters of the U.C.C.J.A. In the Commissioners’ Note following the provision defining jurisdiction, they observed:
      "While jurisdiction may exist in two state in these instances, it will not be exercised in both states.”
      9 Uniform Laws Annotated, p. 124, West Publishing Co., 1979. (emphasis in original).


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    463 A.2d 1065
    Gerald F. CLAIR, M.D., Appellant, v. CENTRE COMMUNITY HOSPITAL, a non-profit corporation; Medical Staff Executive Committee, Richard J. McGuire, M.D., Chief of the Medical Staff and Chairman of the Medical Staff Executive Committee, Individually and as a Representative of the Medical Staff of the Centre Community Hospital, an unincorporated association.
    Superior Court of Pennsylvania.
    Argued April 21, 1982.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Denied Nov. 14, 1983.

      John R. Miller, Jr., Bellefonte, for appellant.
    Robert L. Martin, Bellefonte, for appellees.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

This appeal is from the dismissal of exceptions following the denial of an injunction. The sought-for injunction would have prevented appellee from enforcing the suspension of appellant’s physician-staff privileges at appellee-hospital. On appeal, appellant claims that the suspension violated the substantive due process aspects of the Fourteenth Amendment. After careful review, we conclude that appellant does not prevail in these arguments. Accordingly, we affirm.

FACTS

Out of a lengthy and complex factual history, only a few elements need concern us here. At the direct insistence of the Commissioner and Deputy Commissioner of Health of this Commonwealth, appellee-hospital adopted certain bylaws. They required, in their application, that appellant accept as a patient every third indigent obstetrical or gynecological patient at the hospital. (At the time there were two other such specialists at the hospital.) The Commissioners were concerned that the hospital conform with the State’s community service regulations, which were, in turn, established to ensure conformity with Federal Hill-Burton regulations. Their intervention was prompted, in part, by their awareness of appellant’s non-conformity. In response, appellant refused to comply with the regulations, explaining that he felt unable to take on an unlimited number of patients and still properly care for them.

Appellant’s staff privileges were then suspended, pending an indication of his willingness, in writing, to comply with the bylaw. Appellant sought, and was denied, an order enjoining appellee from enforcing that suspension. He appeals from that denial.

STATE ACTION

A. Symbiotic Relationship

Appellant’s case is based on an alleged violation of his right to due process of law as guaranteed by the Fourteenth Amendment to the Federal Constitution. The Bill of Rights protects the individual only from governmental action. However, actions ostensibly taken by a private, nongovernmental party, can, under certain circumstances, be attributed to the state and thus be subject to constitutional limitations.

Two theories justifying a finding of state action are advanced by appellant. First, he contends that the state and the hospital are in a symbiotic relationship. He sees as evidence of this relationship the receipt by the hospital of Federal Hill-Burton funds for hospital construction, receipt of medicaid and medicare funds, tax benefits and its monopoly position in the community.

It is somewhat doubtful that appellant would prevail in this argument. See Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3rd Cir., 1978). However, we need not decide that issue because we find that there was state action under the second theory.

B. Close Nexus

The Third Circuit has instructed us that the second theory advanced by appellant is independently adequate to constitute state action.

Thus, it is possible that a symbiotic relationship between a state and private enterprise could give rise to state action, or in the absence of such a relationship, state action still might be found if “the state is closely involved in the very activity challenged.”

Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589 at 595 (3rd Cir., 1979) quoting Braden v. University of Pittsburgh, 552 F.2d 948 at 958 (3rd Cir., 1977).

The enquiry before us then is two-fold: what type of state activity can constitute close state involvement sufficient for a finding of state action; and, did such activity occur here?

In determining what can constitute close state involvement, it will be helpful to determine what involvement is insufficient. Regulation of the private institution in general does not sufficiently involve the state in the challenged activity. By virtue of a broad regulatory scheme, the challenged activity does not become a state activity.

The contention that New York’s regulation of educational standards in private schools, colleges and universities, e.g., Education Law §§ 207, 215, 305(2), makes their acts in curtailing protest and disciplining students the acts of the State is equally unpersuasive. It overlooks the essential point—that the state must be involved not simply with some activity of the institution alleged to have inflicted- injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of the complaint.

Powe v. Miles, 407 F.2d 73 at 81 (2nd Cir., 1968).

This rule has been applied to situations very similar to the one before us—the hiring or firing of hospital staff members. Mulvihill v. Butterfield, Memorial Hospital, 329 F.Supp. 1020 at 1023 (S.D.N.Y., 1971). See also Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2nd Cir., 1977).

There can be little doubt that the State of New York plays a substantial role in supervising the operations of private hospitals within its borders. However, this fact does not get us very far. The state, as part of its general regulatory scheme, does not in any way associate itself with or influence the internal decisions of a hospital’s board of trustees to hire or fire staff members. The mere fact that New York regulates the facilities and standards of care of private hospitals or offers them financial support does not make the acts of these hospitals in discharging physicians the acts of the state.

Under the relevant test, then, the state involvement must be greater than general regulation of the institution. We must determine whether, “... to some significant extent the State in any of its manifestations has been found to have become involved in it.” Burton v. Wilmington Parking Authority, 365 U.S. 715 at 722, 81 S.Ct. 856 at 860, 6 L.Ed.2d 45 (1961) (emphasis supplied).

A more specific definition is found in the landmark case for this type of state action, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.

Jackson, supra, at 352, 95 S.Ct. at 453.

Jackson found that state commission approval of a practice did not create a sufficiently close nexus and indicated that the state would have to more directly mandate the challenged activity.

Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into “state action.”

Jackson, supra, at 358, 95 S.Ct. at 456-7.

Four years later, Justice Rehnquist repeated that “... a State’s mere acquiescence in a private action [does not] convert that action into that of the State.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149 at 165, 98 S.Ct. 1729 at 1737, 56 L.Ed.2d 185 (1978). He went on to quote, with emphasis, the necessity for the ordering element of the above quote from Jackson. Flagg, supra, 436 U.S. at 165, 98 S.Ct. at 1737-8. See also Adickes v. Kress & Co., 398 U.S. 144 at 171, 90 S.Ct. 1598 at 1615, 26 L.Ed.2d 142 (1970); Jeffries v. Georgia Residential Finance Auth., 678 F.2d 919 at 923 (11th Cir., 1982).

This rule has also been applied to the discharge of personnel. Graseck v. Mauceri, 582 F.2d 203 at 208-9 (2 Cir., 1978). Of course, even if the state has demanded the discharge, “the question would remain whether the discharge was in response to their requests.” Id.

This nexus and causation was present in a case in which state officials participated “with management in the decisional process” that resulted in an employee’s discharge. Fitzgerald, supra, 607 F.2d at 600.

We are satisfied that the nexus requirement for state action is also present here. The direct involvement of the Commissioner and Deputy Commissioner of Health amounted at least to participation in the decisional process. It would appear to have also taken on a quality of compulsion or ordering. Nor is there any doubt that the termination of appellant’s staff privileges was causally related to their intervention. Having found that there was state action in this case, we must next determine whether the termination of appellant’s staff privileges involved an interest protectible under the Fourteenth Amendment.

PROTECTED INTEREST

Even though we have decided that state action was present in the challenged action, it does not necessarily follow that the protections afforded by the Due Process clause apply here. In addition to state action, that state action must have deprived appellant of an interest protected by that Amendment. The Fourteenth Amendment does protect “life, liberty and property.” “But the range of interests protected ... is not infinite.” Board of Regents v. Roth, 408 U.S. 564 at 571, 92 S.Ct. 2701 at 2705, 33 L.Ed.2d 548 (1972).

The gravity of the damage inflicted upon appellant is not the controlling factor. The United States Supreme Court has “rejected] ... the notion that any grievous loss visited upon a person by the State is sufficient to invoke the ... Due Process Clause.” Meachum v. Fano, 427 U.S. 215 at 224, 96 S.Ct. 2532 at 2538, 49 L.Ed.2d 451 (1976). “[T]he question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property language of the Fourteenth Amendment.’ ” Morrissey v. Brewer, 408 U.S. 471 at 481, 92 S.Ct. 2593 at 2600, 33 L.Ed.2d 484 (1972). See Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981).

This determination must be made in a case such as the one before us.

Nevertheless, as a threshold requirement the plaintiff in a public employee dismissal case must show that he has either a legitimate entitlement with respect to his job, which would be protected as property under the fifth or fourteenth amendments, or that his dismissal deprives him of a liberty interest protected by those constitutional provisions.

Mazaleski v. Treusdell, 562 F.2d 701 at 709 (D.C.Cir.1977). Since we conclude below that appellant had protected liberty interest which was affected, we do not decide whether or not a property interest was also present.

Under certain circumstances the discharge of an employee can affect a liberty interest and bring the Fourteenth Amendment into play. The United States Supreme Court has stated that an individual’s liberty is impinged upon when the state has “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Roth, supra, 408 U.S. at 574, 92 S.Ct. at 2707. This holding gave force to that Court’s declaration nearly 50 years before that liberty “... denotes not merely freedom from bodily restraint but also the right of the individual ... to engage in any other common occupations of life...” Meyer v. Nebraska, 262 U.S. 390 at 399, 43 S.Ct. 625 at 626, 67 L.Ed. 1042 (1923). See Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589 at 602 (3rd Cir., 1979).

The “stigma or other disability” must rise to a certain level before attaining constitutional significance. “... not every negative affect upon one’s attractiveness to future employers violates due process...” Lipp v. Board of Education of City of Chicago, 470 F.2d 802 at 805 (7th Cir., 1972). Roth, supra, 408 U.S. at 575, n. 13, 92 S.Ct. at 2708, n. 13. The negative affect must significantly diminish his chances of obtaining employment. Truax v. Raich, 239 U.S. 33 at 41, 36 S.Ct. 7 at 11, 60 L.Ed. 131 (1915). See Weathers v. W. Yuma County Schl. Dist R-J-1, 530 F.2d 1335 at 1339 (10th Cir., 1976).

In deciding whether or not the impediment to future employment is substantial, we are dealing with “real-world” considerations, rather than solely with abstract legal theory.

We agree with appellant that a practical test should be employed in determining the existence of a liberty interest when foreclosure of employment opportunities is alleged.

Id.

We do not hesitate in holding that, under the circumstances of this case, appellant had imposed upon him a most grave handicap to his relocation at another hospital. First, virtually every hospital in this country has been the recipient of Federal Hill-Burton funds and is subject to the same regulations which indirectly resulted in his termination. Second, the state agency which precipitated his • dismissal has authority over every hospital in this Commonwealth. The difficulties that confronted appellant will most surely follow him elsewhere. While it cannot be said with certainty that appellant could never obtain a staff position elsewhere; there is no doubt that most hospitals would be most wary of accepting appellant on their staff with the Damoclean sword of bureaucratic disapproval poised perilously, ready to fall once again.

Another factor .reinforces our determination that appellant has suffered the loss of a protected liberty interest. This is the absence of other hospitals nearby where appellant can practice his profession. The record shows that the closest hospital with adequate facilities at which appellant could practice is approximately 30 miles away. Thus, appellant has no alternative hospital at which he could tend to his present patients. This was considered relevant in Christhilf v. Annapolis Emergency Hospital, 496 F.2d 174 at 178 (4th Cir., 1974).

The United States Supreme Court has narrowed the scope of Roth through subsequent cases. One of these, Bishop v. Wood, 426 U.S. 341 at 349, 96 S.Ct. 2074 at 2079, 48 L.Ed.2d 684 (1976), required that the reasons for discharge be publicly disclosed. While such a requirement may be applicable to certain categories of workers, we do not believe that it is wisely used here.

Appellant does not allege that this information has been publicly disclqsed. However, the continued non-dissemination of the reasons for appellant’s termination would require the combined collusion and prevarication of appellant, appellee hospital and the Pennsylvania Department of Health. That is simply not to be reasonably expected.

An inevitable question in any application appellant may make to join the staff of another hospital is whether he has ever had his privileges revoked. Also inevitable is that such hospitals will check with the hospitals at which appellant has practiced and most likely also with the Department of Health in the states in which he was licensed.

The career experiences of a professional in our society accompany him throughout his working life. He cannot slough off, without a trace, periods of his professional activity. Like the ghostly Jacob Marley of Dickens’ Christmas Carol, he carries with him a metaphorical chain representing his past actions. He must be able to satisfactorily account for his prior professional situations. In this context, dissemination of information about his termination from the staff of appellee hospital is certain to occur.

Accordingly, in the case before us, the dissemination requirement of Bishop will most assuredly be met. The Fifth Circuit in a case antedating Bishop held that it was only necessary that there be “a reasonably anticipated likelihood that [his employer] ... would reveal plaintiff’s record to potential employers.” Sims v. Fox, 505 F.2d 857 at 863 (5th Cir., 1974). See also Weathers, supra, at 1339. We find here a much higher level than “a reasonably anticipated likelihood” of dissemination—there is a virtual certainty of it. It would work an injustice if appellant’s claim were to fail merely because the inevitable had not yet occurred.

It is a jurisprudential mistake to seize upon isolated words in a case and apply them indiscriminately to other cases without reference to the underlying rationale. The language of any opinion flows from the facts of that case. Different factual contexts may require different rules, and this is the situation before us here. An inflexible application of the dissemination rule announced in Bishop —a case involving the discharge of a policeman terminable at will— would be misplaced here. This is, as we have noted above, because the information would have to be disseminated before appellant could obtain a new position.

The vitality of Roth was also seemingly dealt another blow in Codd v. Velger, 429 U.S. 624 at 629, 97 S.Ct. 882 at 884, 51 L.Ed.2d 92 (1977). Codd states that the employer must create and disseminate “a false and defamatory impression about the employee in connection with his termination...” This echoes the definition of an employee’s liberty interest as the right to be free from being “wrongfully stigmatized by untrue and unsupported administrative charges.” Arnett v. Kennedy, 416 U.S. 134 at 164, 194 S.Ct. 1633 at 1649, 40 L.Ed.2d 15 (1974).

The Supreme Court has not consistently held to this view. Only eight months before Codd was handed down, the Supreme Court held in Bishop that the falsity of the information was irrelevant to the violation, vel non, of a liberty interest. Bishop v. Wood, supra, 426 U.S. at 350 in text and at n. 13 at 350, 96 S.Ct. at 2079-80 in text and at n. 13 at 2080. However, the last vacillation of the United States Supreme Court is the law of the land. Therefore, we must conclude that Codd stands and a stigma must be false in order to violate an individual’s liberty interest.

If the falsity of the stigma were the only basis for the violation of an employee’s liberty interest, appellant would fail on this ground alone. But appellant does not contend that he was terminated for untrue reasons. He argues, rather, that he was terminated for unconstitutional reasons. We do not find that appellant falls at this point. There is another means by which appellant’s liberty interest was violated.

This other ground for a liberty interest violation is found in the source case¡ Roth. As quoted above, Roth spoke of “a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” (Emphasis supplied.) The open-ended language of Roth enables us to make a realistic determination here. ■ While the barrier imposed upon appellant is not a false stigma, it is most assuredly a “disability.” As such, appellant’s liberty interest has, without doubt, been affected. The falsity requirement has been applied only to a stigma—not to a disability. Therefore, falsity need not be an essential element of appellant’s disability argument.

A contrary result would allow the government to impose arbitrary, capricious and unreasonable regulations upon employees; discharge those who didn’t comply; and be free of judicial review of those actions. Such a result would be inconsistent with our most basic concept of a society ordered in liberty.

We have so far established that state action was present here and that appellant had a protected liberty interest affected by that state action. It now remains for us to determine whether the negative affect upon appellant’s liberty interest was constitutionally permissible.

SUBSTANTIVE DUE PROCESS

Not all governmental actions restricting protected liberty interests are impermissible. The Due Process clause only requires that those actions be implemented in conformity with Due Process of Law. One aspect of this is procedural due process—consisting primarily of notice and an opportunity to be heard at a hearing. Appellant has not argued that he was deprived of procedural due process. His claim is that the actions taken against him contravene substantive due process—the other aspect of due process.

This section affords not only a procedural guarantee against the deprivation of “liberty,” but likewise protects substantive aspects of liberty against unconstitutional restrictions by the State.

Kelley v. Johnson, 425 U.S. 238 at 244, 96 S.Ct. 1440 at 1444, 47 L.Ed.2d 708 (1976).

It is not an easy task to have an action held invalid in substantive due process terms. Nor should it be. State actions are “endowed with a presumption of legislative validity, and the burden is on respondent to show that there is no rational connection between the Board’s action and its conceded interest in ...” Harrah Independent Schl. Dist. v. Martin, 440 U.S. 194 at 199, 99 S.Ct. 1062 at 1064, 59 L.Ed.2d 248 (1979).

This standard also applies to regulations in the area before us.

Although the state has the power to regulate the practice of medicine for the benefit of the public health and welfare, this power is not unrestricted. The regulations imposed must be reasonably related to the public health and welfare and must not amount to an arbitrary or unreasonable interference with the right to practice one’s profession ...

State Board of Medical Examiners v. Rogers, 387 So.2d 937 at 939 (S.C.Fla., 1980).

Thus, we have two questions before us. First, did the regulation' implemented against appellant have a rational relationship to a permissible governmental interest? Second, did it constitute an arbitrary or unreasonable interference with appellant’s right to practice medicine? We answer the first of these questions in the affirmative and the second in the negative.

The governmental interest served by the hospital by-law was the provision of medical care to indigent individuals. This is both a clearly permissible governmental goal and the action has a rational relationship to its accomplishment.

The interference with appellant’s right to practice his profession is a more difficult matter. We do not minimize the serious nature of the interference with appellant’s right to practice his profession that resulted from the termination of his staff privileges. Nor do we think it inconsequential that he was required, as a condition of remaining a staff member, to treat every third indigent obstetrical or gynecological patient who comes to the hospital. On the contrary, this is a substantial demand to make upon him. Even in the face of these factors, we are unable to say that the requirement is arbitrary or unreasonable.

The constitution does not grant to this country’s citizens a right to medical care. But the government does have the power to advance the welfare of its citizens. In taking actions to ensure that all of its people have access to medical care, the government may, indeed, be operating under a moral, if not a legal imperative. At any rate, it is a permissible objective.

When the government provides funds for the construction of hospitals, it certainly has the ability to exact in return a promise that the hospital will provide medical care without regard to the ability of patients to pay. That medical care obviously cannot be provided without the services of physicians.

The requirement that appellant accept indigent patients is onerous yet reasonable. It is both severe and not arbitrary. In short, it does not work a violation of substantive due process.

PATIENTS’ RIGHTS

Appellant makes a separate argument that his termination interferes with the rights of his patients to be treated by a physician of their choice. In support of this argument, he quotes from the dissenting opinion of Justice Roberts in Adler v. Montefiore Hospital Ass’n of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973). This Court has the greatest respect for the current Chief Justice, but that cannot transmute his dissent into the law of this Commonwealth.

Appellant does not cite any case law recognizing such patients’ right which is binding on this Court. Nor need we decide in our disposition of this case whether such a right exists. We hold only that, even if such a right exists, the interests of the state would override it here.

Having found no unconstitutional action, the order of the court below is accordingly affirmed.

WICKERSHAM and WIEAND, JJ., concur in the result.

      . It is to be noted that appellant also indicated a willingness to continue with his past practice of taking up to 12 new patients a month, without regard to their economic status, first-come, first-served.

      . See generally, Note, Judicial Review of Private Hospital Activities, 75 Mich.L.Rev. 445 (1976); and Note, State Action: Theories for Applying Constitutional Restrictions to Private Activity, 74 Col.L.Rev. 656 (1974).

      . See also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Extensive regulation is insufficient for state action if such regulation is not related to the challenged action.

      . Appellant here was not technically fired as he was not technically an employee of the hospital. However, the termination of his staff status is a sufficiently analogous position for those cases to apply. Namely, as an obstetrician-gynecologist, appellant is unable to practice his profession without the use of hospital facilities.

      . We do not believe that our holding here is necessarily inconsistent with Bishop or with its source case Roth. However, even if it were, we would choose to accord the individual greater protection under the Due Process clause than is mandated by Federal court interpretation. This is, of course, our prerogative.

      . It should be noted that these same physicians who are compelled to take on indigent patients also benefit from the use of the hospital in which their non-indigent patients are treated. The burden placed upon appellant is thus accompanied by a benefit.

      . It can be said that the requirement is onerous and severe with respect to its impact upon appellant. It is also, however, at the same time, reasonable and not arbitrary in its relationship to advancing the state’s interest in providing medical care for the indigent.


author:
McEWEN, Judge: BROSKY, Judge,
      BECK, Judge,

text:
    463 A.2d 1073
    COMMONWEALTH of Pennsylvania v. William LUTHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed July 15, 1983.

      Victor Dell’Alba, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, submitted a brief on behalf of Com., appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

William Luther was tried by a jury and convicted of rape. He has taken this appeal from the judgment of sentence. Appellant contends solely that trial counsel was ineffective for failing to fully advise him prior to his trial of the importance of character witnesses and for failing to call character witnesses on his behalf at the trial. We reverse and remand for a new trial.

The complainant was the principal prosecution witness. She was a 25 year old woman living separate and apart from her husband with her eight year old son and her sister in a small apartment. The sister of the complainant was not present in the apartment during the occurrence. The son of the complainant was in a bedroom adjacent to the bedroom of the mother. The complainant indicated that she had known appellant, an 18 year old high school student who was also gainfully employed, for one or two years, and admitted him to her apartment at approximately 6:20 a.m. on November 16, 1979, after being awakened by knocking on the apartment door. When she observed that appellant appeared to have been drinking, she told him that he could “sleep it off on the couch” in the living room. Then, after stopping in the bathroom, she went to her bedroom which was separated from the living room only by a curtain. After a few minutes, appellant asked her for a knife so that he could cut his shoelaces and she responded that one could be found in the kitchen. The complainant testified that she heard nothing for a time, until appellant appeared in her bedroom, clad only in his undershorts with a knife in hand, and proceeded to get on top of her while holding the knife to her throat. She testified that at this point in the encounter her son was beginning to awaken and inquired who was with his mother and that appellant commanded her to “keep him quiet”. She stated that she told appellant that “Billy won’t be qúiet” and gave her son permission to watch cartoons, telling him “to get dressed, get breakfast, get some cereal”; it was necessary for the boy to pass through the bedroom of his mother to do so. She testified that it was after her son was in the living room that appellant, while holding the knife at her throat, removed her panties and raped her and that the incident lasted approximately one hour, during which he penetrated her twice and threatened both herself and her son. She stated that when the sexual encounter had concluded, she directed her son to bring the clothes of appellant from the living room to the bedroom and that while appellant was dressing, he kept the knife next to him. She testified that when appellant completed dressing, he went into the kitchen but did not replace the knife but instead wrapped a paper towel around his hand and “must have slipped the knife up his sleeve.” The complainant then testified that she ordered him to leave and said “don’t ever come back here again, because if you do I am going to kill you”; that appellant said nothing as he left the apartment; and that she soon thereafter left the apartment with her son, delivered him to the school playground and went to the police station to report the incident.

The eight year old son of the victim testified that he saw appellant, with whom he also was acquainted, in bed on top of his mother and that he heard her “crying” on the two occasions that he passed through her bedroom that morning. He further testified that he brought the clothes of appellant to him from the living'room at the request of his mother and, that he and his mother left the apartment immediately after appellant had departed.

The testimony of appellant concerning the incident was essentially that the intercourse was not forcible but was consensual and that the complainant exhibited a drastic change of attitude following the sexual intercourse. He testified that after finishing his shift at his place of employment at midnight, he and two friends went to a bar until 2:00 a.m., when the group proceeded to the house of one of them where he had several beers before departing between 3:30 and 4:00 a.m. He then went to the home of his mother and when he determined that nobody was awake, drove to the residence of the complainant. He testified that he did so because the complainant had, when they met at a shopping mall on the previous Sunday, invited him to visit her any night the following week except Wednesday. The appellant testified that the complainant admitted him to her home and told him to sit down and make himself comfortable while she was out of the room; that when she returned to the room, she helped him undress before they proceeded to her bedroom and into her bed. He testified that he took his underwear off after they were in bed and that, after assisting her in undressing, they engaged in consensual sexual intercourse. Appellant testified that when her son awoke and inquired as to who was in the room, she identified him; that the complainant at times during the course of the encounter told her son to be quiet and to go back to sleep but indicated that complainant eventually gave her son permission to leave his bed and to watch television in the living room. As the boy did so, he passed through the bedroom where his mother and the appellant were in bed. When asked on cross-examination about the testimony of the son that his mother was crying during the sexual encounter, appellant testified that the complainant was not crying and, on redirect, stated that she was making sounds normally associated with sexual intercourse. Appellant testified that later, while the complainant was out of the bed and getting dressed and appellant was still in the bed, the complainant directed the boy to bring the clothes of appellant from the living room to the bedroom. After he arose and had dressed, the complainant told him “to get the f_ out” and when he expressed confusion, she repeated her initial declaration. He testified that he then left but denied that he had ever requested a knife or that he had taken a butcher knife from the kitchen and also denied that he had a towel wrapped around his hand. He further testified that the complainant and her son left the apartment immediately after he did and that he observed them getting into their vehicle as he was driving away in his car.

The physician who examined the complainant at a local hospital shortly after the incident testified that although his examination revealed the vaginal area was hypertrophic or reddened, he did not find any indication of non-consensual or forced intercourse and specifically stated that he found no bruises, cuts or scratches on any part of her body including her neck. A laboratory report established the presence of sperm in the vagina of complainant.

The two arresting officers testified that after they took appellant into custody at his high school, he made a separate statement to each of them in which he admitted having had sexual intercourse with the complainant but in which he denied having raped her. The two statements were substantially the same and indicated that complainant had enticed appellant to engage in sexual relations but that after the son of complainant had brought the clothes of appellant into the bedroom, the complainant severely rebuked appellant and, as he departed, warned him not to return.

Trial counsel for appellant presented only the testimony of the appellant and of his mother, who testified that it was the practice of her son to visit her at unusual hours. No character witnesses were called on behalf of appellant.

As we have earlier noted, appellant asserts in this appeal from the judgment of sentence that his trial counsel was ineffective by reason of a failure to call character witnesses on his behalf during the trial and by reason of a failure to fully advise him prior to the trial of the importance of obtaining character witnesses. It may be seen from the preceding extended summary of the testimony presented at the trial that the credibility of the parties was a quite basic and fundamental issue. Our review of the record makes clear that as a result of the careful direction of the distinguished Judge Emanuel A. Cassamatis the trial of this serious case involving so sensitive an issue was not subjected to the stress of emotional turmoil but was conducted in an exemplary and fair fashion. Nevertheless, our review of the testimony presented at the trial and at the post-trial hearing compels us to agree with the assertion of appellant that his counsel was ineffective. As a result, we reverse the judgment of sentence and remand for a new trial.

It is well settled that “[wjhen confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interest.” Commonwealth v. Pittman, 295 Pa.Super. 234, 237, 441 A.2d 436, 437 (1982) (citations omitted). See also Commonwealth v. McKnight, 307 Pa.Super. 213, 453 A.2d 1 (1982); Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982).

It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has “proper relation to the subject matter” of the charge at issue. Commonwealth v. Castellana, 277 Pa. 117, 122, 121 A. 50, 51 (1923) (quoting Cathcart v. Commonwealth, 37 Pa. 108, 111 (1860)). See Commonwealth v. Stefanowicz, 118 Pa.Super. 79, 81, 179 A. 770, 771 (1935). Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged. See McCormick on Evidence, § 191, p. 454 (2d ed. 1972). Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1972). The rationale for the admission of character testimony is that an accused may not be able to produce any other evidence to exculpate himself from the charge he faces except his own oath and evidence of good character. Commonwealth v. Castellana, supra.

It is clearly established that evidence of good character is to be regarded as evidence of substantive fact just as any other evidence tending to establish innocence and may be considered by the jury in connection with all of the evidence presented in the case on the general issue of guilt or innocence. See Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Stoner, 265 Pa. 139, 108 A. 624 (1919). “Evidence of good character is substantive and positive evidence, not a mere make weight to be considered in a doubtful case, and, ... is an independent factor which may of itself engender reasonable doubt or produce a conclusion of innocence.” Commonwealth v. Gaines, 167 Pa.Super. 485, 492, 75 A.2d 617, 620 (1950) (quoting Commonwealth v. Padden, 160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947)). See Commonwealth v. Cleary, 135 Pa. 64, 19 A. 1017 (1890); Commonwealth v. Goodman, 182 Pa.Super. 205, 126 A.2d 763 (1956); Commonwealth v. Kohl, 164 Pa.Super. 630, 67 A.2d 451 (1956). Evidence of good character offered by a defendant in a criminal prosecution must be limited to his general reputation for the particular trait or traits of character involved in the commission of the crime charged. Commonwealth v. Thomas, 282 Pa. 20, 22, 127 A. 427, 428 (1925); Commonwealth v. Garanchoskie, 251 Pa. 247, 252, 96 A. 513, 514 (1916); Commonwealth v. Colandro, 231 Pa. 343, 355, 80 A. 571, 575 (1911); Commonwealth v. Hurt, 163 Pa.Super. 232, 235-36, 60 A.2d 828, 830 (1948); Commonwealth v. Stefanowicz, supra 118 Pa.Super. at 81, 179 A. at 771; Commonwealth v. Cohen, 103 Pa.Super. 496, 502, 157 A. 216, 218 (1931); Commonwealth v. Tkech, 97 Pa.Super. 489, 490 (1929). The cross-examination of such witnesses by the Commonwealth must be limited to the same traits. Commonwealth v. Hurt, supra; Commonwealth v. Wiswesser, 124 Pa.Super. 251, 262, 188 A. 604, 610 (1936). Such evidence must relate to a period at or about the time the offense was committed, Commonwealth v. White, 271 Pa. 584, 587, 115 A. 870, 871 (1922), and must be “established by testimony of witnesses as to the community opinion of the individual in question, not through specific acts or mere rumor”. Commonwealth v. Boone, 467 Pa. 168, 180, 354 A.2d 898, 904 (1975) (emphasis in original).

In a rape case, evidence of the character of the defendant would be limited to presentation of testimony concerning his general reputation in the community with regard to such traits as non-violence or peaceableness, quietness, good moral character, chastity, and disposition to observe good order. See Commonwealth v. Stefanowicz, supra 118 Pa.Super. at 82, 179 A. at 771. See also State v. Sprague, 64 N.J.Law, 419, 45 A. 788 (1900); State v. Lee, 22 Minn. 407, 21 Am.Rep. 769 (1876); Lincecum v. State, 29 Tex.App. 328, 15 S.W. 818 (1890) (proof of quiet and peaceful character of defendant admissible in defense to indictment for rape.)

This court has made clear that “[i]n a case ... where intent and credibility are decisive factors leading to either acquittal or conviction, the accused’s reputation is of paramount importance. Indeed, evidence of good character may, in spite of all evidence to the contrary, raise a reasonable doubt in the minds of the jury.” Commonwealth v. Shapiro, 223 Pa.Super. 15, 19-20, 297 A.2d 161, 163 (1972). Accord, Commonwealth v. Stoner, supra; Commonwealth v. Holland, supra. See State v. Gambutti, 36 N.J.Super. 219, 232, 115 A.2d 136, 143 (1955). (The court stated, in prosecution for sex offense, that where there are two direct witnesses involved, complainant and defendant, reputation evidence may well take on significance beyond that which a jury might accord it in an ordinary criminal trial).

We, therefore, conclude that there is arguable merit to the claim of ineffectiveness and proceed to a study of whether there was any reasonable basis for the failure of trial counsel to provide for the presentation of character testimony.

The recurring and primary reason provided by counsel for his decision not to call character witnesses at the trial, and a theme which pervades his entire testimony at the post-trial hearing is that appellant had not provided trial counsel with the names of potential character witnesses prior to the trial. Trial counsel provided a further rationale in an attempt to justify the failure to present character testimony: (1) that the leisure time activities of appellant included underage. drinking and marijuana smoking, that appellant had been suspended from high school and that he had lost his job prior to the trial; (2) that there would be a danger that such unfavorable evidence would be elicited on cross-examination of any potential character witnesses; and (3) that such potential harmful testimony from the use of character witnesses would outweigh any possible advantage of presenting such testimony. We hold these reasons are not sufficiently compelling to constitute a reasonable basis for his decision not to present character testimony in a case: (1) where the credibility of the complainant is so crucial an issue; (2) where the complainant and accused similarly describe the events immediately preceding the occurrence; (3) where the evidence of force is not objective; (4) where the corroboration of the claim of force is not substantial; and (5) where the accused is a young man with no prior criminal record.

Trial counsel testified that he did, in fact, discuss with appellant on one occasion the possibility of presenting character testimony at trial and that he then explained to appellant that the primary usefulness of calling character witnesses was to present testimony that he was “a good guy and not the kind of individual who would commit a violent crime such as rape.” Trial counsel admits that he did not pursue this potential line of defense in any way prior to the trial, despite the fact that appellant initially indicated to his counsel that there would be such people who could testify as character witnesses on his behalf. The testimony of trial counsel reveals that the discussion was overshadowed by numerous discussions as to the permissibility of calling character witnesses to impugn the chastity of the victim. Counsel never requested that appellant provide a list of names of potential character witnesses prior to the trial and, therefore, counsel made no effort to interview any such potential witnesses so as to prepare such testimony for presentation at the trial in the event that such a strategy might seem prudent. Trial counsel claimed at the post-trial hearing that it was during the course of the trial, following the testimony of the victim, that he decided not to call character witnesses to testify on behalf of appellant and, instead, decided to highlight the “shakiness” of the victim’s testimony. Nevertheless, it is clear from a review of the record that his decision was not based upon a careful selection between available alternatives—e.g. consideration of the relative value of presenting character testimony through ascertained potential witnesses as opposed to the absence of such testimony—but was essentially grounded upon the fact that, prior to trial, he had failed to identify, interview, select and prepare any potential character witnesses. We further observe that the logic of the rationale of trial counsel for foregoing the presentation of character testimony is questionable. Certainly the declared strategy of trial counsel to concentrate upon the “shakiness” of the victim’s testimony would have been substantially aided by the presentation of testimony upon the character of appellant.

Nor do we accept as justification for his decision the rationale of trial counsel that the presentation of character testimony would have produced more harm than benefit. First, appellant did not have a criminal record which might have been the basis of unfavorable cross-examination by the Commonwealth. Second, the fear of trial counsel that the cross-examination by character witnesses would reveal appellant had been suspended from high school, had lost his job and used alcohol and marijuana was unfounded since, while the Commonwealth may discredit evidence of good character, it may only do so by evidence of general reputation and not by particular acts of misconduct, Commonwealth v. Butts, 204 Pa.Super. 302, 204 A.2d 481 (1964), and the cross-examination of character- witnesses by the Commonwealth is limited to knowledge of the reputation of the defendant as to the traits vouched for on direct examination. Commonwealth v. Thomas, supra; Commonwealth v. Colandro, supra; Commonwealth v. Hurt, supra; Commonwealth v. Wiswesser, supra. Third, a balancing of the benefits of character testimony against the unfavorable cross-examination, even if it were admitted, reveals that, under all of the circumstances of this case, the benefit far outweighs any harm.

In a case where virtually the only issue is the credibility of the witness for the Commonwealth versus that of the defendant, failure to explore all available alternatives to assure that the jury heard the testimony of a known witness who might be capable of casting doubt upon the truthfulness of the Commonwealth witness is ineffective assistance of counsel. Commonwealth v. Abney, 465 Pa. 304, 309, 350 A.2d 407, 410 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 110, 331 A.2d 440, 443 (1975). We conclude that the decision of counsel to forego the presentation of character testimony at the trial: (1) was ill advised; (2) was a decision made without adequately informing his client of the value of such evidence; and (3) was principally defective by a failure to adequately prepare for the presentation of such testimony. We, therefore, hold that the failure of counsel to present such testimony, did not have a reasonable basis and, therefore, appellant was denied the effective assistance of trial counsel.

Judgment of sentence reversed. Case remanded for new trial.

BROSKY and BECK, JJ., filed concurring opinions.

BROSKY, Judge,

concurring:

I agree with the majority’s determination of trial counsel’s ineffectiveness, but write to address the manner in which the claim was preserved for our review. I also join in the Concurring Opinion by Judge Beck.

As noted in footnote one of the majority opinion, trial counsel was replaced at the post-trial motions stage of the proceedings below and new counsel filed post-trial motions in arrest of judgment and for a new trial. Included in the motion for a new trial was a claim that trial counsel was incompetent. It was, of course, necessary for new counsel to raise this claim in the post-trial motions since a claim of ineffectiveness of prior counsel is not preserved unless it is raised at the earliest stage, in the proceedings at which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

However, new counsel subsequently filed a motion in which he requested that the argument on post-trial motions be converted to a post-conviction hearing. The court below then consolidated the argument on the post-trial motions with what it terms a PCHA hearing in the context of which the claim of ineffectiveness of counsel was heard.

After the hearing, the lower court, on September 16, 1980, entered an order in which it denied the motions for a new trial and in arrest of judgment and further denied what it termed appellant’s PCHA application. On November 3, 1980, appellant was sentenced to a term of imprisonment of not less than three nor more than six years.

On this appeal from the judgment of sentence, we then, theoretically, could refuse to consider the ineffectiveness claim on the basis that it was the subject of a prior final order (that part of the court’s order of September 16 denying the PCHA application) from which appellant has not appealed. See, Petition of Baily, 365 Pa. 613, 76 A.2d 645 (1980).

However, I believe the better and more just course is, as we have here, to consider the substance of the proceedings below rather than their form. I find that, in substance, what occurred was no more than the raising of the ineffectiveness claim in a post-trial motion for a new trial; an evidentiary hearing pursuant to that claim; and a denial of the claim by the court below.

I think that the key point is that the claim was raised in appellant’s post-trial motions. The fact that it was subsequently termed a PCHA claim due to an erroneous impression on the part of new counsel and the lower court that such was necessary because the claim was one of ineffectiveness of counsel should not serve to invalidate an otherwise proper procedure. Furthermore, the court below did treat the claim on its merits despite the fact that an actual PCHA claim should have been dismissed under § 9543(2) since appellant had not yet been sentenced. Therefore, I conclude that when the lower court stated that it was refusing appellant’s PCHA application, it was, in effect, simply specifically denying one of appellant’s grounds for a new trial. Thus, on appeal from the judgment of sentence it is proper to consider the ineffective assistance of counsel claim.

BECK, Judge,

concurring:

I join in the majority opinion of Judge McEwen and in the concurring opinion of Judge Brosky. However, I write separately to underscore the basis for our holding that appellant received ineffective assistance of counsel because his trial attorney did not attempt to identify and interview potential character witnesses.

As the majority has observed,

when confronted with a claim of ineffectiveness of counsel, this Court utilizes a two-step analysis. The Court .must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit____ If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whethér the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests.

Commonwealth v. Jennings, 285 Pa.Super.Ct. 295, 298-99, 427 A.2d 231, 232 (1981).

The majority opinion clearly establishes that character evidence would have figured prominently in the trial of this case since “virtually the only issue [was] the credibility of the witness for the Commonwealth [i.e., the complainant] versus that of the [appellant].” (At 1080.) Consequently, there is arguable merit in appellant’s claim that his attorney should have interviewed possible witnesses as to appellant’s character.

We now consider whether appellant’s counsel had a reasonable basis for not interviewing any potential character witnesses. In Commonwealth v. Jones, 496 Pa. 448, 437 A.2d 958 (1981), the Pennsylvania Supreme Court held that defense counsel was ineffective for not interviewing or attempting to interview an eyewitness to the charged crime (1) where there was arguable merit in interviewing the eyewitness to ascertain if the witness’s testimony would prove useful to the defense at trial and (2) where, without first interviewing the witness, counsel could not have made an informed decision regarding the likely helpful or harmful effect of the witness’s testimony upon the defendant’s case. To support its conclusion that counsel lacked a reasonable basis for not interviewing the eyewitness before opting not to call the witness at trial, the Supreme Court quoted extensively from its reasoning in Commonwealth v. Mabie, 467 Pa. 464, 475, 359 A.2d 369, 374-75 (1976):

[T]he question here is the decision not to interview [the witnesses], not the decision to refrain from calling them at trial____ (Emphasis added.) [T]he value of the interview is to inform counsel of the facts of the case so that he may formulate strategy.... [NJo ... claim of strategy can be attached to a decision not to interview or attempt to interview [witnesses] prior to trial. (Emphasis in original.) Therefore, no reasonable basis designed to effectuate [the defendant’s] interest can be attributed to counsel’s failure to question ... witnesses or at least make a reasonable attempt to do so.

Jones, 496 Pa. at 451, 437 A.2d at 959-60.

Accordingly, in the present case appellant’s counsel likewise lacked a reasonable basis for not interviewing or trying to interview potential character witnesses in order to evaluate the possible utility of their testimony.

      . Although trial counsel filed post-trial motions in arrest of judgment and for a new trial after the entry of the verdict, he subsequently withdrew them when appellant dismissed him and retained new counsel. New counsel then filed post-trial motions and subsequently filed an application requesting that argument upon the post-verdict motions be consolidated with a hearing upon the alleged ineffectiveness of trial counsel for failing to apprise appellant of his right to present character testimony and for failing to explain the nature and weight of such testimony to appellant-. The trial court, after a hearing, entered an order which denied the motion for new trial and the motion in arrest of judgment and further denied the motion that sought relief on grounds of ineffectiveness of trial counsel. Appellant was subsequently sentenced to a term of imprisonment of not less than three nor more than six years.

      . At the post-trial evidentiary hearing appellant produced the names of nine potential character witnesses who stated that they would have been willing to testify at his trial and would be willing to testify on his behalf at a future trial.

      . It is appropriate that we provide mention of two decisions quite relevant to this issue even though neither forms any basis for our decision since they were pronounced subsequent to the trial of appellant. Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981); Commonwealth v. Fawcett, 297 Pa.Super. 379, 443 A.2d 1172 (1982). We stated in Fawcett, supra, 297 Pa.Superior Ct. at 385, 443 A.2d at 1175:
      Until recently, when a defendant has introduced evidence of his own good character, the Commonwealth could then cross-examine the character witness as to whether or not he or she had ever heard persons in the neighborhood attribute particular offenses to the defendant, Commonwealth v. Amos, 445 Pa. 297, 300, 284 A.2d 748, 750 (1971); Commonwealth v. Jenkins, 413 Pa. 606, 607-608, 198 A.2d 497, 498 (1964). The cross-examination, however, was required to pertain to offenses which related to the character trait vouched for on direct examination. Commonwealth v. Becker, 326 Pa. 105, 116, 191 A. 351, 357 (1937); Commonwealth v. Thomas, 282 Pa. 20, 24, 127 A. 427, 428 (1925); Commonwealth v. Colandro, 231 Pa. 343, 355, 80 A. 571, 575-576 (1911); Commonwealth v. Hurt, 163 Pa.Super. 232, 236, 60 A.2d 828, 830 (1948); McCormick on Evidence, § 191 n. 73 (2d Ed. 1972).
      We further observed in Fawcett, supra, that:
      In Commonwealth v. Scott, 496 Pa.188, 436 A.2d 607 (1981), ... the Supreme Court abrogated the rule which permitted character witnesses to be cross-examined regarding arrests even when they pertained to the character trait vouched for on direct examination. By so doing, the court has cast a cloud of doubt on the right to cross-examine a character witness concerning any and all prior relevant offenses absent a conviction therefor.
      The eminent Chief Justice Henry X. O’Brien, writing for a unanimous court, in Scott, quoted with approval the following portion of the dissenting opinion of Mr. Justice Rutledge in Michelson v. United

        States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), wherein he wrote:
      My own preference and, I think, the only fair rule would be to foreclose the entire line of inquiry concerning the specific incidents in the defendant's past, both on cross-examination and on new evidence.in rebuttal. This would leave room for proper rebuttal without turning the defendant’s trial for a specific defense into one for all his previous misconduct, criminal or other, and would put the prosecution on the same plane with the defendant in relation to the use of character evidence. Id. at 496, 69 S.Ct. at 228 (Dissenting Opinion).

      . Counsel apparently believed either that a claim of ineffectiveness of counsel must be raised in a Post Conviction Hearing Act (PCHA) proceeding, see 42 Pa.C.S.A. § 9541 et seq., or that an evidentiary hearing on the claim could not be part of the post-trial motions proceedings, but had to take place in the context of a post-conviction hearing. Neither of these propositions is true.
      A claim of ineffectiveness of counsel can certainly be raised in post-trial motions and there is no reason why the post-trial court cannot conduct an evidentiary hearing, if necessary, on such a claim. Furthermore, a PCHA proceeding is not proper before judgment of sentence. One is not eligible for relief under the Act unless he is, inter alia, “incarcerated ... under a sentence of ... imprisonment ...” 42 Pa.C.S.A. § 9543(2); see 42 Pa.C.S.A. § 9542.


author: CIRILLO, Judge:

text:
    463 A.2d 1082
    John CHERRY, Appellant, v. Theodore J. WILLER, Jr.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1982.
    Filed July 15, 1983.
    Reargument Denied Aug. 30, 1983.-
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Allen L. Feingold, Philadelphia, for appellant.
    Pamela Gagne, Philadelphia, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the Order of the Court of Common Pleas, Philadelphia County, per the Honorable Charles A. Lord, dated September 30, 1977, denying appellant’s motion for a new trial.

The action underlying this appeal arose out of the April 6, 1973 collision of appellant’s and appellee’s automobiles in the intersection of Hunting Park Avenue and Front Street in the City of Philadelphia. Appellant filed a complaint in trespass on June 4, 1973. Compulsory arbitration ended in a June 25, 1974 award of $4,700.00 in favor of appellant and against appellee. Appellee filed an appeal to the Court of Common Pleas. A jury trial de novo was held before Judge Lord and ended in a verdict in appellee’s favor. Appellant filed post-verdict motions for a new trial and judgment n.o.v. on February 9, 1977. Judge Lord denied appellant’s motion for a new trial on September 30, 1977. Judgment was entered on the verdict on November 3, 1977. This appeal followed.

Appellant raises two issues on appeal. First, appellant claims that under “the circumstances of this case” the refusal of the trial court to grant a continuance when appellant was unable to secure the attendance of his witnesses at trial was an abuse of discretion. “The circumstances of this case” referred to by appellant is the 1977 program of the Court of Common Pleas of Philadelphia to reduce the civil trial backlog. Under this program, the entire civil trial list was scheduled for conference before a large bench of judges of the Court of Common Pleas. Each judge was assigned eight cases a day for conferences. Each case was advertised in the Legal Intelligencer on several occasions prior to the conference, giving the judge’s name and the date and time for conference. Appellant’s second, related contention, is that the operation of this program in the present case, resulted in an arbitrary denial of the services of counsel to appellant.

Because appellant has failed to comply with both local and statewide procedural rules, he has failed to preserve either of these issues for appellate review; and we, therefore, affirm the order of the trial court.

This case presents our Court with another opportunity to review and clarify the procedural requirements for preserving an issue in a civil case for appellate review, particularly, the specificity with which claims must be raised in post-verdict motions.

Appellant raised neither of the claims he now asserts on appeal in his post-verdict motions. Appellant filed only boilerplate post-verdict motions in the trial court. In those motions, appellant made only the bare assertions that the verdict was against the evidence, against the weight of the evidence and contrary to the law. Appellant also requested permission to file additional reasons in support of the motion when the notes of testimony were transcribed. Appellant, however, never ordered the notes of testimony transcribed and never filed additional reasons in support of the motion. Appellant did, however, raise the claim that he should have been granted a continuance in a brief filed on May 9, 1977 in support of his post-verdict motions.

In Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981), this Court, per Judge Spaeth, held that the Supreme Court’s Opinion in Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981), required that the disapproval of boilerplate motions in criminal cases be extended to civil cases. In the instant case, we are presented with the issue of whether Tagnani and Carnicelli require that the Supreme Court’s disapproval in criminal cases of consideration of issues raised only in a brief filed in support of boilerplate post-verdict motions should also be extended to civil cases. We hold that they do.

In Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), the Supreme Court held that in the interest of the efficient administration of our judicial system only alleged errors specifically objected to at trial could be considered on appeal. In Tagnani v. Lew, the Supreme Court held that the holding in Dilliplaine precluded the trial court from granting relief in post-verdict motions when such relief had not been requested during trial. In Carnicelli, this Court addressed the issue of. the degree of specificity required in civil trial post-verdict motions in light of the Supreme Court’s Opinion in Tagnani.

In Carnicelli, as in the instant case, the motion for a new trial contained the boilerplate assignments that the verdict was “against the evidence,” “against the weight of the evidence,” and “against the law.” This Court held in Carnicelli that when a party makes only boilerplate assignments of error, the trial court may not, sua sponte, consider as though- within those assignments, specific assignments of error that might have been but were not made; rather, the trial court may grant a new trial only on the basis of specific assignments of error.

Judge Spaeth reasoned in Carnicelli that the Supreme Court’s holding in Tagnani implied that for an issue to be properly before the court on a motion for a new trial, it must be specifically assigned; thus, Tagnani required that the Supreme Court’s disapproval of boilerplate motions in criminal cases, announced in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), be extended to civil cases.

In the instant case, we hold that Tagnani and Carnicelli require that the Supreme Court’s disapproval of consideration of issues raised only in briefs in support of boilerplate post-verdict motions in criminal cases, announced in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), be extended to civil cases. In Gravely, the Supreme Court reviewed with dissatisfaction its experience in allowing consideration of issues not included in post-verdict motions but presented in briefs filed in the trial court, and held that only issues included in post-verdict motions could be considered. The extention of this rule to civil cases effectuates, at both the trial and appellate levels, the underlying rationale of Dilliplaine, Tagnani and Carnicelli: (1) the clearer presentation of issues, (2) the greater assurance that issues will be called to the attention of and considered by the trial court, and (3) the more orderly and efficient use of judicial resources.

The raising of claims only in briefs in support of boilerplate post-verdict motions does not satisfy the specificity requirement of Tagnani and Carnicelli, and we, therefore, hold that hereafter, in civil as well as criminal cases, only issues specifically raised in post-verdict motions can be considered and will be preserved for appeal, and issues raised only in briefs in support of those motions may not be considered. However, since appellant’s post-verdict motions in the instant case were filed before the Gravely, Tagnani and Carnicelli, decisions, we will consider the issue raised in his brief in support of his post-verdict motions and pressed on appeal.

In his brief in support of his post-verdict motions, appellant claims that he asked for and was denied a continuance when he was unable to procure his witnesses’ attendance at trial, and that this denial was an abuse of discretion. However, by failing to comply with Philadelphia Court of Common Pleas Local Rule 240, appellant was abandoned this claim and failed to preserve it for appeal. Local Rule 240 provides that counsel filing post-verdict motions shall insure that the notes of testimony, if necessary, are ordered from the court reporter and further provides for the imposition of sanctions, including the dismissal of the motion, for failure to comply.

Appellant never ordered the notes of testimony transcribed in the instant case. Thus, appellant cannot establish that he ever requested a continuance. Appellant’s failure to comply with Local Rule 240 denied the appellee and the trial court an opportunity to assess the merits of his claim and denied the trial court an opportunity to write a meaningful opinion for our review. Thus, by failing to comply with Local Rule 240, appellant has failed to preserve this issue for appeal. See, Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978); Straff v. Nationwide Mutual Fire Insurance Co., 230 Pa.Super. 403, 326 A.2d 586 (1974). As this Court said in Straff, 230 Pa.Super. at 407, 326 A.2d at 587, “[I]t cannot seriously be contended that procedural rules, either at the state or local level are not absolutely essential to the orderly administration of justice and the smooth and efficient operation of the judicial process.”

Finally, appellant also claims on appeal that the 1977 program instituted in the Philadelphia Court of Common Pleas to reduce the civil backlog resulted in this case in the arbitrary denial of the services of counsel to appellant. This claim was not raised in post-verdict motions, nor was it included in appellant’s brief in support of those motions and is, therefore, waived. Baccare v. Mennella, 246 Pa.Super. 53, 369 A.2d 806 (1976). This Court will not consider issues raised for the first time on appeal; issues not raised in the lower court are waived. Pa.R.A.P. 302(a), 42 Pa.C.S.A.

Judgment affirmed.

SPAETH, J., concurs in the result.

      . In Carnicelli, the motion for a new trial also contained more specific assignments of error.

      . In Carnicelli, we remanded the case to the trial court for its consideration of only the specific assignments of error in the motion for a new trial.

      . In so holding, we note that the Supreme Court in In Re Adoption of F.D.S., 490 Pa. 43, 415 A.2d 23 (1980), in an appeal from a decree terminating a mother’s parental rights, held that failure to include a claim of bias on the part of the trial judge in written exceptions did not bar assertion of that issue on appeal when the claim was included in appellant’s brief in support of her exceptions, was orally argued and the trial court was presented with an opportunity to consider and did consider the question. We believe that the Supreme Court would limit In Re Adoption of F.D.S. to Orphans Court or Equity matters. Furthermore, In Re Adoption of F.D.S. is distinguishable from the instant case in that there, the trial court was presented with an opportunity to and did consider the issue presented in the brief. In the instant case, however, appellant’s failure to comply with Local Rule 240 denied the trial court an opportunity to meaningfully consider the issue presented in the brief.