text:
    549 A.2d 927
    John LEE, Jr., Appellant, v. SAFEGUARD MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1988.
    Filed Sept. 19, 1988.
    Reargument Denied Nov. 7, 1988.

      Allen L. Feingold, Philadelphia, for appellant.
    Wayne A. Schieble, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI, and CERCOME, JJ.
   OLSZEWSKI, Judge:

This case involves the question of a claimant’s recovery for attorney fees under section 107 of the Pennsylvania No-fault Motor Vehicle Insurance Act (“No-fault Act”). Finding the record incomplete to support a claim for counsel fees under section 107(3) of the No-fault Act, the trial court denied appellant’s claim. Appellant contends that the trial court erred in failing to award attorney’s fees pursuant to sections 107(1) and 107(3) of the No-fault Act. We find the record lacks evidentiary support for recovery of attorney’s fees under either section and, consequently, affirm the judgment.

On September 4, 1976, appellant was injured in an automobile accident. Appellant, at the time of the accident, was insured by appellee, Safeguard Mutual Insurance Company. On May 29, 1979, the insurance commissioner suspended appellee and, on April 21, 1982, the Commonwealth Court declared appellee insolvent. Subsequently, the Pennsylvania Insurance Guarantee Association (“PIGA”) handled the file on behalf of appellee.

In 1978, appellant filed his first action for no-fault benefits in which he demanded judgment for itemized medical bills totalling $1,087.00, claiming that those bills were “incomplete and continuing,” and demanded judgment for lost wages “together with penalties, attorney’s fees, interest and costs thereon.” Appellant also sought punitive damages. In 1980, appellant filed another action for no-fault benefits arising out of the same car accident, adding a request for payment of uninsured motorist benefits for “pain and suffering.”

On December 4,1984, after PIGA assumed appellee’s file, an arbitration panel, with respect to the 1978 action, found in favor of appellant in the amount of the itemized bills, namely $1,087.00. The panel also assessed interest at the rate of 18% per year, for a total award of $2,296.29. The panel rejected appellant’s claim for lost wages, any additional medical bills, and attorney’s fees. With respect to the 1980 action, an arbitration panel entered an award in favor of appellant in the amount of $1,722.50. Appellant and PIGA appealed the panel decisions resulting from the 1978 action and the 1980 action, respectively. Both appeals were consolidated for purposes of trial.

Prior to trial by jury, pursuant to a motion in limine, the trial court ruled that all claims for punitive damages and previously adjudicated uninsured motorist matters would be barred from the lawsuit. The court also ruled that the claim for counsel fees would be severed and determined by the court after the jury decided the claim for the underlying no-fault benefits. At trial, PIGA’s counsel made the following opening statement during which appellant’s counsel at various points moved for a directed verdict:

[PIGA’s counsel]: Yes, your Honor. I simply mean to put before the jurors the matters which I do not dispute that [appellant] is entitled to____
******
When this accident occurred, they were notified by [appellant], and they received one bill from St. Joseph’s Hospital____ Saint Joe’s Hospital, had a bill, for [appellant], in the amount of Seven Hundred Seventy-Nine Dollars net. We’ll prove in this case by virtue of ... cancelled check that we received from the liquidator, in the Pennsylvania Insurance Commissioner’s Department, that Safeguard paid that bill, June one, 1977____
... by a letter of [appellant’s counsel’s] dated August twenty-eighth, 1978, he sends them additional bills, I am going to itemize these bills here for you.
To Doctor Freedman, One Hundred Five Dollars. Doctor Anday, Seventy-five Dollars. Doctor Nelson, One Hundred Dollars. And Gemedco Supply, Twenty Five Dollars.
He also encloses in that letter and makes demand for payment to Saint Joseph’s Hospital bill that that had been paid more than a year before.
So that you have the Saint Joe’s Hospital bill ... that’s been paid, he submits that again, and a total of Three Hundred Five Dollars more in medical bills.
Also, there’s made a demand for wage payment, but as to the exact amount of the wage losses, any documentation to prove the wage losses, you’ll see there is not anything submitted to Safeguard at all.
Under the law, it’s true that when an attorney presents reasonable proof of an outstanding bill and documentation to support that there was a reasonable bill and it was for services actually rendered and bills outstanding, the insurance company has to generally pay within thirty days or at least come up for a reason not to dispute. In this case, Safeguard is presented with a bill, one of which they find out has previously been paid by looking through their check file, and they are presented with literally no documentation for the rest.
Unfortunately, what happened, Safeguard went bankrupt, ... [s]o, between 1979 and 1982, nobody can make complaints against them, any lawsuits against them were suspended[.] ...
[Appellant’s counsel] filed this first lawsuit ... in September of 1978. Since that time until this date, at least since the Insurance Guaranty Association got the files in L982 (sic), we have not contested that we’ll pay this Three Hundred Five Dollar bill.
******
[PIGA’s Counsel]: As these are not in dispute, ladies and gentleman, when you go out, we ask you to award this three hundred five dollars to the claimant, because we have no disputes he is entitled to this.
[Appellant’s counsel]: (INTERPOSING.) Your honor, I ask for a directed verdict for those amounts.
THE COURT: You will get it in time.
[Appellant’s counsel]: Thank you.
[PIGA’s counsel]: (CONTINUES TO ADDRESS JURY.) Unfortunately, you have got a lawsuit, however, by this time, there are additional claims made that we do dispute. We dispute the exact amount, and we are willing to pay reasonable wages for the two months, eight weeks or so — you will see that the plaintiff has indicated in statements to us, and handwritten and signed statements, that his wage loss is Two Hundred Dollars a week for that eight-week period, and sixteen hundred dollars wages. We don’t dispute that.
[Appellant’s counsel]: Your Honor, Also notation for directed verdict for the sixteen hundred dollars.
[PIGA’s counsel]: So we are now and have been willing, the Guaranty Association, since we got these files, I guess in ’82 or ’83, to pay that wage, despite the lack of documentation at this point — we don’t even care — to pay these bills. We are here not to waste your time, the court’s — not to waste the court’s time, but to get this matter over with.
******
You will find the Guaranty Association, myself, Mr. Perkins has done everything they can to move this case, and I will ask you to find in favor of the Plaintiff in the amount of Nineteen Hundred Five Dollars. Thank you.
[Appellant’s counsel]: I ask for a directed verdict of Nineteen Hundred and Five Dollars, and I rest my case. Thank you.

Transcript at 59-68.

Subsequently, the trial court directed the jury to return a verdict in the amount of nineteen hundred dollars. After the jury was discharged, the trial court considered appellant’s claim for counsel fees. During the proceedings, appellant’s counsel reviewed his files, identifying the nature of the pleading or correspondence, and stated the time expended on each item as he identified it. He also informed the trial court of his hourly charge for professional services. Throughout his review, appellant’s counsel intermittently made assertions of proper notification of the insured, submission of documentation, and the lack of response on part of the insured. After submission of briefs, the lower court denied the claim. Appellant subsequently filed post-trial motions alleging that the trial court “erred when it failed to award plaintiff counsel fees under 40 P.S. Sec. 1009.107(1) [and 40 P.S. § 1009.107(3) ].” Appellant’s motion for post-trial relief at 1-2. The trial court denied the motion noting that:

[T]he record developed at trial and presently before this Court is silent as to many — if not most — of the factual assertions and contentions set forth in plaintiff’s Brief and Memorandum of Law. Accordingly, such matters are not properly before the Court and the assertions with respect thereto must be disregarded.

Trial court order dated December 30, 1987 at 1. On January 28, 1988, the trial court order and judgment were entered. This timely appeal followed.

Appellant contends that the trial court erred in denying appellant’s request for counsel fees when appellee admittedly failed to make timely payments of personal injury protection benefits under the No-fault Act. Specifically, appellant argues that the trial court erred in failing to make the distinction between sections 107(1) and 107(3). Appellant contends that, unlike section 107(3), recovery of counsel fees under section 107(1) does not require proof of bad faith on part of the no-fault carrier. In the alternative, appellant maintains that he is entitled to counsel fees under 107(3), stating:

[Defendant's actions totally violated the No-Fault Law when they did not pay within 31 days and gave no reason, in writing or otherwise, as required by law, for their failure to pay. That in itself, was bad faith and required the payment of attorney’s fees and costs.

Appellant’s brief at 24.

Appellee argues that “without offering any of (sic) evidence to support an allegation of bad faith on part of defendant, the plaintiff cannot succeed in his claim for attorney fees.” Appellant’s brief at 9. Appellee makes no reference to section 107(1).

In construing the No-fault Act, we are guided by the following principle of statutory construction: “to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). We also recognize that we are, “if possible, to give effect to all [a statute’s] provisions,” and “when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(a) and (b). With these principles in mind, we first turn to the legislature’s findings and purposes in enacting the No-fault Act. The legislature found that:

(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce;
(5) exhaustive studies by the United States Department of Transportation, the Congress of the United States and the General Assembly have determined that the present basic system of motor vehicle accident and insurance law, which makes compensation and restoration contingent upon:
(A) every victim first showing that someone else was at fault;
(B) every victim first showing that he was without fault;
(C) the person at fault having sufficient liability insurance and other available financial resources to pay for all the losses.
is not such a low-cost, comprehensive, and fair system;
* * # ik * #
(6) careful studies, intensive hearings, and some State experiments have demonstrated that a basic system of motor vehicle accident and insurance law which:
(A) assures every victim payment of all his basic medical and rehabilitation costs, and recovery of a reasonable amount of work loss, replacement services and survivor’s loss; and
(B) eliminates the need to determine fault except when a victim is very seriously injured,
is such a low-cost, comprehensive, and fair system;
* * # * * »fc
(9) a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims can save and restore the lives of countless victims by providing and paying the cost of services so that every victim has the opportunity to:
(A) receive prompt and comprehensive professional treatment; and
(B) be rehabilitated to the point where he can return as a useful member of society and a self-respecting and self-supporting citizen.

40 P.S. § 1009.102(a).

In addition, the legislature stated its purposes as follows: (b) Purposes. — Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

40 P.S. § 1009.102(b) (emphasis added).

In order to accomplish these objectives, the legislature has enacted a comprehensive statute which includes penalties for non-payment of legitimate claims or untimeliness in reacting to the presentation of claims. These penalties include the imposition of interest and an award of attorney’s fees in specified circumstances. Circumstances where attorney’s fees are recoverable by a claimant are set forth in specific, detailed language in sections 107(1) and 107(3) of the Act, respectively:

(1) If any overdue no-fault benefits are paid by the obligor after receipt by the obligor of notice of representation of a claimant in connection with a claim or action for the payment of no-fault benefits, a reasonable attorney’s fee (based on actual time expended) shall be paid by the obligor to such attorney. No part of the attorney’s fee for representing the claimant in connection with such claim or action for no-fault benefits shall be charged or deducted from benefits otherwise due to such claimant and no part of such benefits may be applied to such fee.
(3) If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

40 P.S. § 1009.107(1) and (3).

To ensure “a Statewide system of prompt ... basic loss benefits for motor vehicle victims and the survivors of deceased victims,” an insurer “shall” pay attorney’s fees “if any overdue no-fault benefits are paid by the [insurer] after receipt by the [insurer] of notice of representation of a claimant.” 40 P.S. § 1009.107(1). Pursuant to section 106(a)(2) of the No-fault Act,

[n]o-fault benefits are overdue if not paid within thirty days after the receipt by the [insurer] of each submission of reasonable proof of the fact and amount of loss sustained, unless the [insurer] designates, upon receipt of an initial claim for for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period. If reasonable proof is supplied as to only part of a claim, but the part amounts to one hundred dollars ($100) or more, benefits for such part are overdue if not paid within the time mandated by this paragraph. An obligation for basic loss benefits for an item of allowable expense may be discharged by the [insurer] by reimbursing the victim or by making direct payment to the supplier or provider of products, services, or accommodations within the time mandated by this paragraph. Overdue payments bear interest at the rate of eighteen per cent (18%) per annum.

40 P.S. § 1009.106(a)(2)

We note, however, that the legislature, by enacting the No-fault Act, intended to establish a “fair” system. Thus, it acknowledged the possibility of the presentation of fraudulent claims, and provided for the right of the no-fault carrier to contest the claim in a timely manner under section 106(a)(5). Section 106(a)(5) states in pertinent part:

An [insurer] who rejects a claim for basic loss benefits shall give to the claimant written notice of the rejection promptly, but in no event more than thirty days after the receipt of reasonable proof of the loss. Such notice shall specify the reason for such rejection and inform the claimant of the terms and conditions of his right to obtain an attorney.

Id., § 1009.106(a)(5).

Thus, through its enactment of section 107(1), the legislature has provided mechanisms to ensure a fair system whereby promptness is encouraged and tardiness penalized. When a claimant is not timely notified or has not been timely paid and the claimant must enlist the services of an attorney to secure no-fault benefits owned to him by the insurer, the legislature provides for recovery of counsel fees by the claimant. Consistent with establishing a “fair” system and “assuring] every victim payment of all his basic medical and rehabilitation costs, and recovery of a reasonable amount of work loss, replacement services and survivor’s loss,” the legislature has also provided recovery of attorney fees where the insurer has acted unreasonably in denying a claim. Section 107(3) provides for the recovery of attorney fees by the claimant where the insurer, although providing timely notification of its denial of payment, denies the claim on an unreasonable basis. Pennsylvania appellate courts have construed section 107(3) “to allow an award of counsel fees only upon proof of bad faith on the part of an insurer in denying the claim. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 160, 425 A.2d 419, 424 (1981); Hall v. Midland Insurance Co., 320 Pa.Super. 281, 288-289, 467 A.2d. 324, 328 (1983); Shomper v. Aetna Life and Casualty Co., 309 Pa.Super. 97, 100, 454 A.2d 1101, 1102 (1982); Baker v. Aetna Casualty and Surety Co., 309 Pa.Super. 81, 92-93, 454 A.2d 1092, 1098 (1982), overruled on other grounds, Atanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), aff'd, [507] Pa. [68], 488 A.2d 571 (1985).” Fasciana v. Aetna Life and Casualty Co., 343 Pa.Super. 1, [5], 493 A.2d 772, 774 (1985); see also Romanski v. Prudential Property and Casualty Insurance Co., 356 Pa.Super. 243, 514 A.2d 592 (1986).”

Having ascertained the legislative intent in enacting sections 107(1) and (3), we now turn to the instant case. In reviewing this case,

we must be mindful that findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. Firestone v. Luther Ford Sales, Inc., 271 Pa.Superior Ct. 480, 414 A.2d 355 (1979). The appellate court, in these circumstances, is limited to determinations of whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law. Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Superior Ct. 177, 395 A.2d 1373 (1978). It is also clear that in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to the successful party must be taken as true and all unfavorable inferences rejected. Courts v. Campbell, 245 Pa.Superior Ct. 326, 369 A.2d 425 (1976); Colish v. Goldstein, 196 Pa.Superior Ct. 188, 173 A.2d 749 (1961). This is especially true where the credibility of witnesses had to be weighed by the lower court. Brent- water Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977).

Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567-68, 440 A.2d 609, 611 (1982). In denying an award of attorney’s fees, the trial court relied on section 107(3) and found that “on the present record of this case there is not a scintilla of evidence that the denial of payment was in bad faith.” Trial court’s memorandum at 12. The trial court did not consider section 107(1). Regardless of whether section 107(1) or section 107(3) is applicable, we find that appellant failed to meet its burden of proof to establish a prima facie case for attorney’s fees under either section.

To recover attorney’s fees pursuant to section 107(1), appellant must prove:

(1) On a particular date, appellant provided reasonable proof of the fact of loss and amount of loss incurred;
(2) Appellant was not paid no-fault benefits by appellee prior to the filing of a notice of representation by appellant’s counsel;
(3) A notice of representation was filed when payments were overdue pursuant to section 106; and
(4) Appellee did not notify appellant within thirty days “after the receipt of reasonable proof of loss” of any denial of benefits.

In reviewing the record before us, we find that appellant failed to prove that reasonable proof was submitted to appellee. Appellant asserts:

[Appellant], through his attorney, and/or the health care providers, submitted bills and reports to [appellee] by certified mail, return receipt requested and within thirty-one (31) days, [appellee] neither paid these no-fault obligations, nor did they give any reason for their failure to pay, either in writing or any other way.

Appellant’s brief at 4. Perusal of the record, however, indicates that no bills, no reports, no certified return receipt cards were introduced into evidence to demonstrate that appellee received reasonable proof of loss on a particular date. Appellant cannot rely on opposing counsel’s remarks during his opening statement to excuse appellant from proving each element of his cause of action. It is well established that counsel, acting within the scope of his authority, may bind his client by an admission made during the course of a trial. Piper Aircraft Corporation v. Workmen’s Compensation Board, 86 Pa.Cmwlth. 614, 485 A.2d 906 (1985); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973). Constituting a judicial admission, the attorney’s statement is “competent as evidence in the same case or in another case: (sic) Associates Discount Corp. v. Kelly, 169 Pa.Super. 74, 77, 82 A.2d 689, [690] (1951).” Rizzo v. Rolarback, 8 D.C.3d 122 (1978) aff'd mem., 261 Pa.Super. 455, 395 A.2d 995 (1978) (footnote omitted.) PIGA’s counsel, however, did not admit that appellee received reasonable proof of the fact of loss and amount of loss incurred. During opening statement, PIGA’s counsel did not dispute specific claims, but, with regard to those particular claims, PIGA’s counsel asserted that the St. Joseph bill had already been paid “and [appellee was] presented with literally no documentation for the rest.” Transcript at 66. At another point in his opening statement, PIGA’s counsel states that “despite the lack of documentation at this point — we don’t care — to pay these bills. We are here not to waste your time, the Court’s — not to waste the court’s time, but to get this matter over with.” Transcript at 69. These remarks by opposing counsel do not admit receipt of reasonable proof.

Assuming 107(3) is applicable, we accept the trial court’s analysis that appellant has failed to prove that appellee acted in bad faith in denying any claims:

On the present record of this case there is not a scintilla of evidence that the denial of payment was in bad faith, without reasonable foundation or frivolous. The entire record is limited to the admissions and volunteered statements of the defendant’s attorney soliciting the Jury “not to waste your time and the court’s time over a nineteen hundred-dollar claim[”], the swiftly voiced Motion of claimant to enter “a directed verdict of Nineteen Hundred and Five Dollars, and I rest my case” followed only by the recital of the claimant’s review of the documents in his file from which a time calculation of the hours of this professional service was constructed. This will not support an award of counsel fees under the Act. There is not a shred of evidence on the record of this case to support a finding of bad faith, the absence of reasonable foundation or frivolity of action upon which entitlement to counsel fee can be based. The assertions in the claimant’s Memorandum of proper notification of claim to the insurer, prompt submission of reports and bills and like claims have no support or factual basis on the record before the Court. The admissions of defense counsel that they would not contest entitlement despite late notice or lack of documentation cannot by any stretch of language be viewed as admissions of bad faith. Nor can the recital of time expended by counsel in the “paper war” which has been engaged in be construed as demonstration “bad faith” on the part of defendant anymore than can such appellation be attached to the plaintiff, based on the same serious of legal thrusts and counter-thrusts.

Opinion at 12-13.

The judgment of the trial court is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Sec. 101, et seq., 40 P.S. Sec. 1009.101, et seq., repealed, Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984. At the time of the auto accident in question, appellee’s insurance claims were governed by the currently repealed No-fault Act.

      . On September 14, 1982, appellant filed a petition to compel uninsured motorist arbitration; and on February 5, 1985, an arbitration panel found in favor of appellant in the amount of $6,500.00. Judgment was entered on this award.

      . In his statement of the question and summary of argument, appellant asserts that he is also seeking "interest.” Perusal of the record indicates that a claim for interest was not raised in post-trial motions and, therefore, cannot be raised for the first time in this forum. Pa.R.C.P. 227.1. Consequently, any claim for interest is deemed waived.

        In regard to costs, appellant contends:
      The No-Fault law requires that the plaintiff be put back into the best possible situation with the payment of all losses, 18% interest, attorney’s fees and costs, as outlined in the various sections of the No-Fault law. This includes record costs, which are usually recovered by the winner of a claim, as well as costs of depositions and other out-of-pocket expenses necessitated by the defendant’s actions.
      Appellant’s brief at 16 (emphasis added).
      Our review of the No-fault Act indicates that the legislature has not provided for the recovery of costs as outlined by appellant and for the purposes set forth by appellant. We, therefore, find that the trial court did not abuse its discretion in failing to award costs. See In Re Scott Township, Allegheny County, 186 Pa.Super. 167, 142 A.2d 357 (1958) ("The power to impose costs in a proceeding based on a statute must be found in the statute.”). We, however, note that there are two particular contexts where the legislature has provided recovery of costs, in addition to attorney fees. One situation is where a trial court enters an order "specifying conditions of discovery, and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requires." 40 P.S. § 1009.408(d). Costs are also recoverable where a claim is "discharged by a settlement to the extent authorized by law and upon a finding, by a court of competent jurisdiction, that the settlement is in the best interest of the claimant and any beneficiaries of the settlement, and that the claimant understands and consents to such settlement____” 40 P.S. § 1009.106(b)(1). These costs are "the costs of such proceeding including a reasonable attorney’s fee (based upon actual time expended) to the attorney selected by or appointed for the claimant.” 40 P.S. § 1009.106(b)(1).

      . Section 1009.106(a)(2) provides in pertinent part: "Overdue payments to bear interest at the rate of eighteen percent (18%) per annum.”

      . "‘Obligor’ means an insurer, self-insurer, or obligated government providing no-fault benefits in accordance with [the No-fault Act].” 40 P.S. § 1009.103. "Insurer,” "self-insurer,” and "government” are further defined in the No-fault Act. See 40 P.S. § 1009.103. For purposes of discussion, we shall use the terms "insurer” or "no-fault carrier.”

      . 40 P.S. § 1009.102(b).

      . This is further evidenced by section 107(2) whereby the legislature provides for the recovery of counsel fees by the insurer. Section 107(2) states:
      (2) if, in any action by a claimant to recover no-fault benefits from an [insurer), the court determines that the claim or any significant part thereof is fraudulent or so excessive as to have no reasonable foundation, the court may award the [insurer’s] attorney a reasonable fee based upon actual time expended. The court in such case, may direct that the fee shall be paid by the claimant or that the fee may be treated in whole or in part as an offset against any benefits due or to become due to the claimant.
      40 P.S. § 1009.107(2).

      . Appellee contends that:
      Justice Larsen, speaking for the Pennsylvania Supreme Court in the seminal case of Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981), recognized that the sole consequence of an overdue first-party benefit payment under § 106 of the No-Fault Act [sic] is a penalty of 18% interest, nothing more.
      Appellee’s brief at 10.
      Appellee’s interpretation of Hayes is misplaced. In Hayes, a claimant filed an action against the insurer for non-payment of no-fault benefits. The trial court granted recovery of the personal injury protection benefits; however, the lower court refused to grant an award of counsel fees. The insurer promptly paid the benefits due with interest at 6%. The claimant, however, insisted that she was entitled to interest at 18% pursuant to § 106(a)(1) and brought an action for recovery of interest and attorney’s fees. The trial court held for the insurer, and this Court affirmed, "reasoning that [the insurer’s] good faith and reasonable cause for its initial denial of [the claimant’s] claim excused it from 18% interest payment as well as from the claim for attorney’s fees.” Hayes v. Erie Insurance Exchange, id., 493 Pa. at 153, 425 A.2d at 420. Our Supreme Court reversed, holding that "where a payment is overdue as defined by § 106, 18% interest is owed on that payment regardless of the ‘good faith’ of the insurer or the ‘reasonable cause’ of the delay." Id. Our Supreme Court stated:
      [The insurer] argues that, as a 'good faith/reasonable foundation’ may be successfully asserted to a claim for attorney’s fees, under § 107(3), this indicates the legislature similarly could not have intended to ‘penalize’ insurance carriers by imposing 18% interest on overdue payments wherein the delay was in ‘good faith and with reasonable foundation.’ However, exactly the converse is true — the quite clear negative implication of the appearance of a 'good faith/reasonable foundation’ exception in § 107 coupled with its absence in the prior section, § 106, raises precisely the opposite inference. The legislature intended to create the exception to a claim for attorney’s fees — they so indicated in § 107(3). The legislature did not intend to create the exception to a claim for 18% interest on overdue payments — they so indicated in § 106.

        Hayes, id., 493 Pa. at 154-55, 425 A.2d at 421 (footnote omitted).
      Thus, contrary to appellee’s contention, our Supreme Court, in Hayes, did not address the issue of what penalties could be imposed on the insurer for overdue payments, but rather whether the insurer could rely on a "good faith/reasonable basis” exception to avoid payment of overdue benefits at 18% interest. Appellee’s interpretation is also inconsistent with principles of statutory construction. If we were to agree that the sole consequence of an overdue no-fault benefit is interest at 18%, we would be ignoring the express terms of section 107(1) and treating the section as mere surplusage. A construction which fails to give effect to all provisions of a statute must be avoided. 1 Pa.C.S.A. § 1921; Wilson v. Central Penn Industries, 306 Pa.Super. 146, 149, 452 A.2d 257, 259 (1982). As stated earlier, section 107(1) evidences a clear policy of entitling a claimant to counsel fees . when an insurer reacts untimely in presentation claims. No where in the No-fault Act does the legislature specifically limit the claimant to recovery of interest. Rather, it seeks to ensure award of attorney’s fees by specifically providing that ”[n]o part of the attorney’s fees for representing the claimant in connection with such claim or action for no-fault benefits shall be charged or deducted from benefits otherwise due to such claimant and no part or such benefits may be applied to such fee." 40 P.S. § 1009.107(1).

        . We note that, unlike section 107(3), section 107(1) does not require the insurer’s actions to be "without reasonable foundation” or in "bad faith.” That is, whether the insurer’s untimeliness in reacting to the presentation of a claim was "without reasonable foundation” or in “bad faith” is irrelevant. The phrase “without reasonable foundation” or its equivalent is excluded from section 107(1). “Where the legislature includes specific language in one section of a statute and excludes it from another, it should not be implied where excluded.” Patton v. Republic Steel Corp., 342 Pa.Super. 101, [109], 492 A.2d 411, 415 (1985).

      . As in other civil actions, we hold that the plaintiff is required to prove facts essential to his right of recovery. See Benjamin v. Allstate Insurance Company, 354 Pa.Super. 269, 511 A.2d 866 (1986).

      . The Insurance Department’s regulations provide in pertinent part: Proof of claim shall be made upon forrps furnished by the Company unless the Company fails to supply such forms within 15 days after receiving notice of claim.
      31 Pa.Code § 66.102(e) (example of basic loss benefits endorsement).

      . Finding that appellant has not proven that reasonable proof was submitted to appellee, we, consequently, cannot determine from the record whether appellant timely notified appellee nor can we determine whether appellant timely filed a notice of representation.

      . “Items ordinarily used to prove economic loss or ‘special damages’ in personal injury cases should suffice as ‘reasonable proof of the fact and amount of loss sustained’ for the purpose of obtaining no-fault benefits. Counsel for no-fault claimants should submit, for example, medical reports and bills to prove medical expenses, income tax returns and a statement from the employer to prove work loss, and bills and receipts to prove survivor’s loss, replacement services loss, or funeral expenses. D. Shrager, ed. The Pennsylvania No-fault Motor Vehicle Insurance Act, Sec. 1:22 (1979). While such documents are necessary, the mere fact that they were submitted does not alone establish ‘reasonable proof of the fact and amount of the loss.’ The court must make a case-by-case determination of whether there is ‘reasonable proof based on the the particular facts of each case.” Ralph v. Ohio Casualty Insurance Company, 363 Pa.Super. 286, 297, 525 A.2d 1234, 1240 (1987).

      . At the appellate level, appellee attempted to introduce evidence of reasonable proof and proper notification by filing a petition for leave to file record. This Court denied the petition for leave to file record by order dated June 27, 1988, and also denied appellant's reconsideration of petition by order dated July 15, 1988. As an appellate court, we cannot usurp the function of the trial court as a factfinder. In addition, we find it inappropriate to make evidentiary rulings regarding the admissibility of evidence that should have been introduced at trial. Appellant argues, however, that the purpose of appellant's petition is to “contradict the false and fraudulent statements made by the appellee's counsel [during oral argument].” Appellant’s reconsideration of petition for leave to file record at 3. These allegations can be properly addressed by the disciplinary board.


source: Caselaw Access Project

author: MONTEMURO, Judge: TAMILIA, Judge,

license: Public Domain

text:
    549 A.2d 935
    Nancy F. MITZELFELT and Lewis Mitzelfelt, Husband and Wife v. Robert KAMRIN, M.D., Earle Andre Wootton, Co-Executor of the Estate of Robert S. Andre, M.D., Deceased, The Fidelity Bank, Co-Executor of the Estate of Robert S. Andre, M.D., Deceased, Neurosurgical Associates and Riddle Memorial Hospital. Appeal of RIDDLE MEMORIAL HOSPITAL.
    Superior Court of Pennsylvania.
    Argued May 10, 1988.
    Filed Sept. 20, 1988.
    Reargument Denied Nov. 10, 1988.

      William Sullivan, Philadelphia, for appellant.
    William P. Murphy, Philadelphia, for Mitzelfelt, appellees.
    Michael Saltzburg, Philadelphia, for Kamrin, appellees.
    Before MONTEMURO, TAMILIA and JOHNSON, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order in the Court of Common Pleas of Philadelphia County dated May 14, 1986, denying Riddle Memorial Hospital’s motion for a new trial and judgment n.o.v.

The lawsuit that is the basis of this appeal arose out of a medical malpractice claim commenced by Nancy F. Mitzelfelt and her husband. In her complaint, Mrs. Mitzelfelt alleged medical negligence in connection with a neurosurgical procedure performed by Dr. Robert Kamrin at appellant Riddle Memorial Hospital. Also named in her suit were Dr. Robert Andre, Dr. Kamrin’s co-practitioner; Neurological Associates, a professional corporation composed of the two doctors; and Riddle Memorial Hospital, whose negligence allegedly flowed from the acts of its agents administering the anesthesia. Riddle, in turn, cross-claimed against Drs. Kamrin and Andre, alleging that Mrs. Mitzelfelt’s injuries were the result of the negligence of its co-defendants and not the result of any negligence on the part of the hospital or its agents. As a result of her surgery, Mrs. Mitzelfelt now suffers from quadriparesis, a weakening of her extremities.

Pretrial discovery revealed two possible causes for Mrs. Mitzelfelt’s injuries: an uncorrected drop in blood pressure during surgery which cut off the blood flow to the spinal cord; and the positioning of the head of the patient during surgery. The first theory implicated the conduct of those medical personnel providing the anesthesia. The second implicated the surgeons who performed the procedure.

On the first day of trial, Dr. Kamrin, the Estate of Dr. Andre and Neurological Associates settled with and obtained a joint tortfeasor release from the Mitzelfelts. Consequently, counsel for the Mitzelfelts presented no expert testimony to establish negligence on the part of the surgeons. The Mitzelfelts did, however, call as their sole liability expert Dr. Henry Shenkin, who they had not previously named as an expert in their pretrial memoranda, but who was the expert of the defendant surgeons. The testimony of Dr. Shenkin revolved around a small portion of a report he prepared prior to trial which referred to the issue of anesthesia and the potential liability of Riddle. At the close of Plaintiffs’ case, all Defendants moved for a compulsory non-suit and were denied. At the close of all the evidence at trial, the court, on the motion of the defendant surgeons entered a directed verdict in their favor, finding that there was no evidence of negligence against them as a matter of law. As against Riddle, the jury returned a verdict in favor of the Mitzelfelts in the amount of $3,000,-000. 00 which was subsequently molded to include delay damages. Riddle then filed timely post-trial motions, which were denied. The trial court entered judgment on the verdict and this appeal by Riddle followed. We reverse.

The question presented in this case is whether the appellees presented the competent expert testimony required to establish a prima facie case of medical malpractice. Resolution of this question is dependent upon whether the plaintiff’s expert, Dr. Shenkin, expressed an opinion with sufficient certainty with respect to the cause of Mrs. Mitzelfelt’s condition to allow the case to go to the jury. Because our review of the record reveals that Dr. Shenkin’s opinion as to causation did not rise to the level of certitude necessary to constitute legally competent evidence, we find that the appellees failed to present a prima facie case of medical malpractice and accordingly reverse the judgment of the trial court.

As a preliminary matter we address appellees’ contention that Riddle has waived this issue for purposes of appeal. In its post-trial motions Riddle set forth this claim as follows:

The trial court erred in refusing to grant a non-suit at the conclusion of plaintiff’s case, where the only expert testimony offered by the plaintiffs on the question of negligence and causation was from Dr. Henry Shenkin, and where Dr. Shenkin testified that he could not say, within a reasonable degree of medical certainty, that a drop in blood pressure caused Nancy Mitzelfelt’s paralysis.

The Mitzelfelts claim that Riddle has waived its challenge to the trial court’s failure to grant a compulsory non-suit when it elected to put on its defense. In support of this proposition the Mitzelfelts cite Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986). In Burns we stated:

A compulsory nonsuit can be granted at the close of plaintiff’s case and before the defense presents any evidence. If the defendant elects to proceed, the non-suit stage is over and the correctness of the court’s ruling is moot.

Id., 350 Pa.Superior Ct. at 623, 504 A.2d at 1325.

Because the defendant in Burns elected to present its case after the plaintiff had rested, we refused to address the propriety “of the motion for compulsory non-suit as such.” Id. However, we went on to address the underlying arguments in support of the motion for non-suit as arguments in support of the defendant’s motion for judgment n.o.v. Id. Here too, as in Burns, we will treat Riddle’s underlying claim of error as an argument in support of its motion for judgment n.o.v.

The standard of review that we employ in considering the propriety of an order granting or denying judgment n.o.v. is the same as the trial court’s: the appellate court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference which can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences. Judgment n.o.v. may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Ingrassia Construction Company, Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984).

Riddle contends that the verdict was improper because the plaintiffs failed to meet their burden of proof. More specifically, Riddle argues that there was insufficient competent expert testimony for the issue of causation to be submitted to the jury. The general rule in this Commonwealth is that in order to establish a cause of action for medical malpractice, the plaintiff must present expert testimony establishing variance from accepted medical practice and that this deviation from community standards caused the plaintiffs injuries. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980); Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280, 1285 (1978); Denardo v. Carneval, 297 Pa.Super. 484, 489, 444 A.2d 135, 137 (1982). The only exception to the general requirement that expert testimony must be produced is “where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons.” Chandler v. Cook, 438 Pa. 447, 451, 265 A.2d 794, 796 (1970), citing Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). The present case is one which falls under the general rule requiring expert testimony since questions as to the cause of Mrs. Mitzelfelf s quadriparesis are beyond the knowledge of the average layperson.

As in other negligence cases, the plaintiff in a medical malpractice case bears the burden of proving a causal nexus between the wrongful conduct and the injury as part of the prima facie case. The plaintiffs “burden of proof” on this issue encompasses two separate and distinct burdens. C. McCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 336, at 947 (3d ed. 1984). The first burden, the burden of production, refers to the responsibility of the plaintiff to present evidence of sufficient quality and weight that reasonably intelligent men could believe in the existence of the causal link sought to be established. If the plaintiff fails to satisfy this initial burden, it becomes incumbent upon the trial judge to remove the issue from consideration by the jury, since any decision reached by the jury based on consideration of this evidence would involve an inordinate amount of speculation and conjecture. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 37, at 205 (4th ed. 1971). If the plaintiff succeeds in presenting evidence of sufficient quality and weight so that the evidence is allowed to reach the jury, he or she must then satisfy the second burden, the burden of persuasion. The burden of persuasion involves convincing the jury that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to the plaintiff. Hamil, supra 481 Pa. at 265, 392 A.2d at 1284.

The yardstick by which it is determined whether the expert testimony presented by the plaintiff is of a sufficient quality and weight so as to be proper evidence for jury consideration is “reasonable medical certainty.” See Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980). Although the expert need not express his opinion in the same language that we use to enunciate the legal standard, the opinion, taken in its entirety, must demonstrate reasonable certainty that the result in question came from the cause alleged. Pirches v. General Accident Insurance Company, 354 Pa.Super. 303, 308, 511 A.2d 1349, 1352 (1986); Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). Perhaps the most authoritative expression of the rule, and the policy reasons behind it, was set forth by our supreme court in McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971). In McMahon, the physician testified that there was “probably a cause and effect relationship between the accident and the injury” and that the automobile accident was “consistent with that sort of injury.” In finding the physician’s testimony did not constitute legally competent evidence, the court opined:

... [T]he expert has to testify, not that the condition of the claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence ...
The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that that condition was legally caused by the defendant’s conduct. Here, the only evidence offered was that it was “probably” caused, and that is not enough. Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which the jury can make a decision with sufficient certainty so as to make a legal judgment.

Id,., 442 Pa. at 486, 276 A.2d at 535. Consequently, if the plaintiff’s expert’s testimony does not convey the requisite confidence, the jury will not be permitted to consider the evidence and speculate on the issue of causation. It is only when the physician demonstrates reasonable certitude in his opinion that the expert testimony can be said to aid the trier of fact in resolving the ultimate issue of causation.

In the present case, the “target” defendants were Dr. Kamrin, the surgeon who performed the operation, Dr. Andre, his partner, and the professional corporation composed of the two doctors. The theory under which the plaintiff’s asserted that the surgeons were liable was that Dr. Kamrin negligently positioned Mrs. Mitzelfelt’s head and neck during the operation which allegedly resulted in her quadriparesis. On the day that trial was scheduled to commence, Dr. Kamrin, the Estate of Dr. Andre, and Neurological Associates, settled with the Mitzelfelt’s and obtained a joint tortfeasor’s release. As a result, the plaintiffs presented no expert testimony with respect to the negligence of the surgeons. Instead, the plaintiffs proceeded on the theory that Riddle was liable because its ostensible agent, the anesthesiologist, negligently failed to maintain Mrs. Mitzelfelt’s blood pressure at a level which would facilitate blood flow to the spinal cord. The plaintiffs further claimed that the drop in blood pressure to 80/55 during the procedure caused Mrs. Mitzelfelt’s quadriparesis. In support of this contention, plaintiffs called Dr. Shenkin, who had previously been the expert of the defendant surgeons. On direct examination by plaintiff’s counsel, Dr. Shenkin testified as follows:

Q. Was it your opinion, and I assume any opinion you express is based upon your reasonable evaluation as a physician, isn’t that true?
A. Yes, sir.
Q. And your opinion that this drop in blood pressure is sufficient to compromise the blood supply to the spinal cord of this particular patient in the upright position and under general anesthesia. You said that opinion in this letter, did you not?
A. Yes, sir.
Q. And that is your opinion, is it not?
A. I think that is what I think, yes.
Q. That is what you said there?
A. That is my opinion, whatever that means, yes.
N.T. August 29, 1984, at 175. However, on cross examination by defense counsel Dr. Shenkin equivocated on his earlier opinion as to the cause of Mrs. Mitzelfelt’s condition:
Q. The bottom line is, do you know within a reasonable degree of medical certainty, can you tell the ladies and gentlemen of this jury within a reasonable degree of medical certainty that this drop in that blood pressure, that one reading to something between 85 and 90 millimeters of mercury caused the problem that Mrs. Mitzelfelt has?
A. No. It is my opinion that it could have, but I wouldn’t put it as a reasonable degree of medical certainty.
Q. I am asking you the question within a reasonable degree of medical certainty, can you say this drop, as you have testified to, caused Mrs. Mitzelfelt’s condition?
A. No, I can’t.

N.T. August 29, 1984, at 223-224 (emphasis added).

We believe that the totality of Dr. Shenkin’s testimony reflects his belief that the drop in Mrs. Mitzelfelt’s blood pressure during the operation “could have” caused her quadriparesis. A medical opinion that merely states that the cause alleged “could” lead to the condition in question does not rise to the level of certainty required to constitute competent evidence for jury consideration. See Kravinsky, supra, 263 Pa.Super. at 21, 396 A.2d at 1355. While it may be true that there was other evidence presented regarding the standard of care and breach of that standard which may have warranted submission of the question of negligence to the jury, the record is devoid of expert testimony, other than Dr. Shenkin’s, which could establish with reasonable certainty that Mrs. Mitzelfelt’s condition resulted from the drop in blood pressure. In short, the probabilities with respect to the causative agent were not sufficiently linked to the patient’s condition such that a jury determination on the issue would be shielded from the specter of undue speculation. As a result, we find that the plaintiffs failed to provide the competent medical evidence necessary to establish a material element of their prima facie case, namely, that conduct of the anesthesiologist caused Mrs. Mitzelfelt’s quadriparesis. Because there was insufficient competent evidence to sustain the jury’s verdict, we find that judgment n.o.v. was appropriate.

Accordingly, judgment is reversed.

TAMILIA, J., files a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

While I agree with most of what the majority has written, I respectfully dissent from the ruling of the majority, which overturns the jury verdict against Riddle Memorial Hospital, because the testimony given by Dr. Shenkin, an expert relied upon by appellee, did not express an opinion with sufficient medical certainty with respect to the cause of Mrs. Mitzelfelt’s condition to allow the case to go to the jury. I have no quarrel with the majority on its finding that failure to request a nonsuit, following appellees’ case, would not result in a waiver when Riddle went on to put in its defense, when the motion for nonsuit can be construed to be a motion for judgment n.o.v.

The issue as posed by the appellant and ruled on favorably by the majority was whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference which can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences. As such no two reasonable minds could fail to agree that the verdict was improper. Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). I disagree with the majority that this test was met.

The majority correctly states the general rule for establishing malpractice in this Commonwealth that plaintiff must present expert testimony establishing variance from accepted medical practice and that this deviation from community standards caused the plaintiffs injuries (citations in majority).

As I view the case, the majority minimizes the impact of the testimony of Nurse McGrath, that in her opinion it would be negligence to allow a patient’s blood pressure to fall to a level of 80/55 without taking corrective measures. The evidence in this case and the testimony of Nurse McGrath brings the case within the parameters of Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980) , where the exception to the rule regarding expert testimony applied when “[t]he matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons”, citing Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970); Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). See generally, Restatement (Second) of Torts, § 323B(d). There, the court went on to say: “We think it clear that staff failure to notify the attending physician of the deteriorating condition of one of his patients falls within the exception to the requirement of expert testimony.” Brannan, 490 Pa. at 598, 417 A.2d at 201.

The error of the majority is treating Nurse McGrath’s testimony as insignificant and relying totally on the failure of of Dr. Shenkin to state, on cross-examination, the drop in blood pressure caused Mrs. Mitzelfelt’s condition within a reasonable degree of medical certainty. As to her qualifications, the standard is a liberal one: “If a witness has any reasonable pretention to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury.” Beary v. Container General Corp., 368 Pa.Super. 61, 74, 533 A.2d 716, 722 (1987), quoting Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 598, 437 A.2d 1198, 1201 (1981) . As in Brannan, supra, from the hospital records there appeared to be a staff failure resulting in the patient’s receiving care below an acceptable standard, and from the testimony and evidence presented, a jury could reasonably find that Riddle was negligent.

Two things appear in this case that are ignored by the majority. First is that Nurse McGrath is a nurse anesthetist and as such she is sufficiently trained and skilled to be present daily in operations requiring anesthesia so that she has a knowledge of that field which would or should be only somewhat less than the doctor anesthetist. Her opinion as to the effect of permitting a patient’s blood pressure to fall to a level of 80/55, without taking corrective measures, can not be ignored. The trial court treated her as an expert and, in fact, she is an expert. While she does not have the stature of Dr. Shenkin, her opinion that permitting this to happen was negligence carries weight, and despite Dr. Shenkin’s refusal to state that the drop in blood pressure was the cause of injury, within a reasonable degree of medical certainty, at best, the statement of Dr. Shenkin is conflicting and qualified in relation to his prior statements, but in reality, even if the majority is correct on that aspect of the case, his testimony and that of Nurse McGrath as to the harm caused by a drop in blood pressure cannot be ignored, first as being negligence on the part of the anesthesiologist, and second as capable of causing serious harm. Put into perspective with the direct evidence from the hospital records as to the actual drop in blood pressure, failure to take action at that time and the well established opinion of all expert testimony, there was ample expert testimony and evidence for determination by the jury as to causation and liability. The plaintiff need not exclude every possible explanation and the fact that some other cause concurs with the negligence of defendant in producing injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independent of his negligence. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981).

Judge Mirarchi’s Opinion clearly pointed out these matters and properly determined this was a jury question, as follows:

Dr. Henry Shenkin, a neurosurgeon, called by the plaintiff was qualified as an expert in his field. He outlined the procedure to be taken when a patient undergoing a cervical laminectomy sustains a drop in blood pressure. His procedure began with attempting to ascertain the cause and initiate preventive measures. He maintained that it was necessary to prevent “pooling of the blood in the lower extremeties [sic], or in the lower part of the body.” The patient’s legs must be wrapped, the patient is then placed in a g-suit or a g-blanket and/or administer drugs. The responsibility is with everyone concerned.
“But, in treating that, the diagnoses of the pressure dropping is in the hands of the anesthesist [sic] who is recording the blood pressure and the treatment, therefore is generally in their hands because the surgeon is busy surgeoning [sic].” (emphasis supplied) (N.T. 1.171) Dr. Shenkin further testified that a drop in blood pressure as sustained by the plaintiff was “sufficient to compromise the blood supply to the spinal cord of this particular patient in the upright position and under general anesthesia.” (N.T. 1.73-1.75)
Nurse MARLENE MC GRATH testified that it is the responsibility of the anesthesia department to monitor the vital signs of the patient. She further testified that if the blood pressure dropped too low she would take corrective measures to bring it up. Specifically, McGrath testified that she would take measures to bring up plaintiff’s blood pressure if it had dropped to eighty (80) over fifty-five (55). (3.144). In the instant case, the record indicates such a drop in pressure. The record further indicates that no corrective measures were taken during plaintiffs surgery (emphasis added).
Defendant’s expert medical witness in neuro-anesthesiology, on cross-examination, stated in his report the plaintiff, Nancy Mitzelfelt had a [sic] intraoperative range of blood pressure between 100 and 80 systolic. However, when he examined the original chart he testified that it did not show an 80 systolic. This inconsistency between his report and testimony was properly a question for jury determination.

Slip Op., Mirarchi, J., 12/30/87, pp. 16-17.

While the majority would have us rule that absent the explicit testimony of a doctor medical expert, the jury cannot be permitted to make a determination as this would amount to mere speculation. That rule applies only in the situation when no other competent evidence is available upon which a decision can be made. Such is not the case here as the record is complete as to causation and liability and sufficient for a jury to find that the hospital is liable under an agency theory, due to the negligence of the anesthesiologist. While there might be some conflict in the testimony, it has been held that conflict in testimony is fatal only if absolute. Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954).

I would affirm the jury verdict and resolve all other issues in favor of the plaintiff as I perceive no reversible error as to the remaining issues.

      . Because of our resolution of this issue we need not address the other issues raised in appellant’s brief.

      . We note that the present case is readily distinguishable from Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980), which has been relied upon by the dissent. In Brannan, our supreme court held that expert testimony was not necessary to establish that hospital staffs failure to notify the attending physician of a patient’s deteriorating condition was negligent conduct. Instantly, whether Mrs. Mitzelfelt’s present medical condition was caused by the conduct of the medical personnel who provided the anesthesia during her surgery is a complex medical question which requires the testimony of a qualified medical expert.

      . There is a limited exception to the general rule requiring that the expert opinion demonstrate reasonable certainty with respect to the issue of causation. In Hamil v. Bashline, supra, our supreme court carved a narrow exception to the general rule to be applied in a limited context. In cases to which Section 323(a) of the Restatement (second) of Torts applies, the so called "lost chance cases”, the issue of causation may be submitted to the jury upon a lesser showing of certainty. Id., 481 Pa. at 269, 392 A.2d at 1288. The court stated:
      Section 323(a) recognizes that a particular class of tort actions, of which this case is an example, differs from those cases normally sounding in tort. Whereas typically a plaintiff alleges that a defendant’s act or omission set in motion a force which resulted in harm, the theory of the present case is that the defendant’s act or omission failed in a duty to protect against harm from another source. To resolve such a claim a fact-finder must consider not only what did occur, but also what might have occurred, i.e., whether the harm would have resulted trom the independent source even if defendant had performed his service in a non-negligent manner. Such a determination as to what might have happened necessarily requires a weighing of probabilities.

        Id. The court further reasoned that because fact patterns which fall within the confines of Section 323(a) "by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable", these cases will be permitted to go to the jury upon a showing that the defendant’s acts or omissions have "increased the risk of harm to the plaintiff." Id. In finding that a lower standard of proof was appropriate given the peculiar nature of such cases, the court in Hamil also noted its decision was not meant "to undermine the well-established standard of 'reasonable degree of medical certainty’ as the accepted norm for medical opinions on causation.” Thus, the Hamil exception to the normal degree of certitude required for expert testimony applies only to those medical malpractice cases in which "the harm resulting from the improper treatment or lack of treatment is difficult to distinguish from the harm which could result even given the best treatment.” See Note, Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases, 65 B.U.L.Rev. 275 (1985).

      . While the plaintiffs expert is required to express an opinion with reasonable medical certainty on the issue of causation, the defendant’s rebuttal expert on the issue need not express such certainty. See Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987).

      . Several witnesses, including Dr. Shenkin, testified that it was the function of the anesthesiologist to monitor the patients blood pressure during the course of the operation. In addition, Nurse McGrath, a nurse anesthetist, testified that in her opinion it would be negligence to allow a patient’s blood pressure to fall to a level of 80/55 without taking corrective measures. Nurse McGrath did not testify, however, concerning her opinion of the cause of Mrs. Mitzelfelt’s quadriparesis.


author: KELLY, Judge:

text:
    549 A.2d 943
    COMMONWEALTH of Pennsylvania v. Arnold HITCHON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed Sept. 22, 1988.
    Reargument Denied Nov. 22, 1988.

      Stanley M. Shingles, Philadelphia, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before BECK, KELLY and JOHNSON, JJ.

      . A scriber is defined as a "sharp-pointed tool for making marks and especially for marking of material (as wood or metal) to be cut.” Webster’s Ninth New Collegiate Dictionary 1055 (1986).

   KELLY, Judge:

Appellant, Arnold Hitchon, appeals the judgment of sentence entered on July 23, 1987. We affirm.

On October 1,1986, appellant was convicted of possession of a prohibited offensive weapon. Timely post-verdict motions were filed, argued, and denied. Thereafter, on July 23, 1987, appellant was sentenced to a term of six months probation. This timely appeal followed.

On appeal, appellant contends that: (1) the evidence is insufficient to support the verdict; (2) Section 908 of the Penal Code is unconstitutionally vague and impermissibly shifts the burden of proof to defendant; (3) the submission to the jury of the issue of whether the object in question is a dagger, knife, razor or cutting instrument, constituted prejudicial error; and (4) a written advertisement relating to the implement was erroneously admitted into evidence.

FACTUAL HISTORY

While on patrol at approximately 12:10 p.m. on December 9, 1983, Captain Ronald Traenkle of the Bensalem Township Police Department observed a brown Oldsmobile parked illegally in front of a True Value hardware store. (N.T. 9/29/86 at 18). The vehicle was unoccupied with the motor running. (N.T. 9/29/86 at 18). Captain Traenkle parked his police car and observed the Oldsmobile and the hardware store for approximately five minutes. (N.T. 9/29/86 at 18). The officer then approached the Oldsmobile, copied down the registration number and radioed headquarters for a registration check. (N.T. 9/29/86 at 19). After receiving the information requested, Captain Traenkle entered the hardware store and twice called out in a loud voice “[w]ho is the owner of the vehicle parked in front of the doorway, the brown Oldsmobile?” (N.T. 9/29/86 at 20-22). Upon receiving no response, the officer commented to the store manager that he would have the vehicle towed away and began to exit the store. (N.T. 9/29/86 at 22). Before Captain Traenkle got out of the door, however, he was approached by appellant, who asked, “Which vehicle do you mean?” (N.T. 9/29/86 at 22). When Captain Traenkle pointed to the brown Oldsmobile, appellant admitted that it was his car. (N.T. 9/29/86 at 22). Captain Traenkle told appellant to meet him outside after he completed his purchase.

While appellant and Captain Traenkle were outside by the vehicle, Captain Kenneth Hopkins and Officers Holdren and Campellone arrived on the scene. (N.T. 9/29/86 at 25). After receiving appellant’s consent to search the Oldsmobile, Captain Hopkins opened up the trunk of the car and leaned over to look inside. (N.T. 9/29/86 at 26-27). As Captain Hopkins did that, appellant walked towards the trunk, and as he did so, he passed in front of Captain Traenkle. (N.T. 9/29/86 at 27). As appellant walked passed him, Captain Traenkle observed the upper third of an item which he recognized to be a “Guard Father” protruding from appellant’s right rear pants pocket. (N.T. 9/29/86 at 22-29). After removing the object from his pocket, Captain Traenkle placed appellant under arrest for possession of a prohibited offensive weapon.

At the police station, appellant was allowed to make a telephone call. (N.T. 9/29/86 at 61). Approximately ten to fifteen minutes later, a woman arrived at the station and handed appellant an advertisement. Upon receiving the advertisement, appellant said, “That’s it.” (N.T. 9/29/86 at 65-66). Appellant then gave the advertisement to Captain Traenkle who then made a copy of the advertisement and returned the original to the woman. (N.T. 9/29/86 at 66). The advertisement depicted an implement identical to the object seized from appellant. The object was identified as a “Guard Father,” and described as a pen like instrument which, when its pocket-clip is depressed, a six inch long pointed steel shaft automatically ejects. According to the advertisement, the instrument was designed to be used as a “defensive” weapon. (Commonwealth Exhibits C-l, C-2).

I.

Appellant’s first contention is that the evidence was insufficient to support the verdict. Upon review of the record and the applicable authority, we find this claim is without merit.

In evaluating the sufficiency of the evidence, we must view all of the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, as the verdict winner, in order to determine if the evidence was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987); Commonwealth v. Hanes, 361 Pa.Super. 357, 522 A.2d 622 (1987); Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986). Moreover, where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented. Commonwealth v. Pearsall, supra; Commonwealth v. Hanes, supra.

Section 908(a) of the Pennsylvania Crime Code states: “[a] person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapons.” 18 Pa.C.S.A. § 908(a). Section 908(c) defines an “offensive weapon” as “any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.” 18 Pa.C.S.A. § 908(c). (Emphasis added). Thus, a jury could properly find appellant guilty of possessing a prohibited offensive weapon if they found either (1) that the object in question is a cutting instrument, the blade of which is exposed in an automatic way or (2) that it was an implement for the infliction of serious bodily injury, which serves no common lawful purpose.

A.

The object seized from appellant is a metal instrument shaped like a pen. When the clip is pressed a six-inch steel pointed shaft is ejected and locked into place. The only way the steel shaft can be put back into its casing is by placing the steel tip against a very hard surface and pushing it back into the casing and resetting the spring mechanism. It is clear therefore that the steel shaft is exposed automatically. The question is whether a six-inch steel shaft constitutes a “cutting instrument” as that term is used in the statute.

It is appellant’s position that the per se section cannot apply because the guard father is not a “cutting instrument.” Specifically, he contends that a cutting instrument must in fact have a blade and defines that term as the broad, flat sharp-edged part of a tool, instrument or weapon, the cutting part of a tool. Thus, appellant concludes that the six-inch steel pointed shaft is not a “cutting instrument.” (Appellant’s Brief at 11). We disagree.

“Our purpose in interpreting statutes is to ascertain and effectuate the intention of the legislature, and we may presume the legislature did not intend a result that is absurd or unreasonable.” Commonwealth v. Fisher, 485 Pa. 8, 16, 400 A.2d 1284, 1287 (1979); see also 1 Pa.C.S.A. §§ 1921(a), 1922(1).

Section 908 was “intended to establish a prohibition very nearly absolute aimed at the implements or weapons themselves, whether enumerated or falling within the general definition which are offensive by nature.” Commonwealth v. Stewart, 348 Pa.Super. 514, 533, 495 A.2d 584, 594 (1985) citing Commonwealth v. Adams, 245 Pa.Super. 431, 435, 369 A.2d 479, 481-82 (1976) (footnote omitted).

As interpreted by appellant, the term “cutting instrument” following “dagger, knife and razor” is superfluous as any weapon with a flat edged blade which is exposed in an automatic way would also be characterized as a dagger, knife or razor. Moreover, to conclude that the legislature intended to distinguish between edged and non-edged weapons both of which have lethal capabilities, both of which are designed for and useful for concealment and quick transformation is absurd and unreasonable. As aptly summarized by the trial court, “appellant’s reasoning implies that the legislature meant only to prohibit those weapons which slice while allowing weapons which stab, tear and gouge.” (Trial Ct.Op. at 5). (Emphasis added). In light of the purpose of Section 908, we do not believe the legislature intended such an absurd result, therefore, we find that the evidence was sufficient to support a verdict that a six-inch cylindrical steel shaft with a pointed end was a “cutting instrument.” Hence, a guard father is an offensive weapon under the first definition in the statute.

B.

Appellant also contends that the second alternative, i.e. the “other implement” clause, is equally inapplicable, because although the guard father is capable of inflicting serious bodily injury, it serves a common lawful purpose. Appellant maintains that he uses the guard father as a center punch and a metal scriber. Moreover, appellant argues that the Commonwealth failed to produce competent evidence to establish that the instant object did not have a common lawful purpose. Finally, appellant contends that his conviction was improper because the circumstances surrounding the possession of the object negated any intent or likelihood that it would be used unlawfully. Again, we cannot agree.

“While some conceivable lawful use could be found for almost every object otherwise proscribed by Section 908, the statute does not prohibit only items with no conceivable lawful purpose, but, more broadly, items with no common lawful purpose.” Commonwealth v. Fisher, supra, 485 Pa. at 16, 400 A.2d 1288. (Emphasis in original). Furthermore, our Supreme Court, in Commonwealth v. Fisher, supra, held that on a charge of violating Section 908(c), a circumstance-of-the-possession test was inappropriate in determining whether the instrument served a common lawful purpose. 485 Pa. at 16, 400 A.2d at 1288. See also Commonwealth v. Artis, 275 Pa.Super. 127, 418 A.2d 644 (1980); Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979) (plurality). The question therefore is not whether appellant has proffered a plausible lawful use for the object, or whether the circumstances of the possession negated an intent to use the instrument unlawfully, but whether the guard father has common lawful purpose within the community.

At trial, appellant testified oh his own behalf. He stated that he used this particular instrument in his capacity as a machinist. He testified further that he used the implement as a center punch and as a metal scriber. (N.T. 9/30/86 at 168). To support his theory, appellant called as his expert James G. Longo, a precision toolmaker. Mr. Longo testified that he owned an identical object and that he used it as a metal scribe and center punch. (N.T. 9/30/86 at 106). Mr. Longo also outlined the practicality and utility of using this particular object as a metal scribe and as a center punch. (N.T. 9/30/86 at 104-05).

As its rebuttal witness, the Commonwealth called Trooper Leon E. Krebs, who had been employed by the Pennsylvania State police department as a firearm and toolmark examiner. Trooper Krebs testified that he had extensive experience with metal scribes and center punches. (N.T. 9/30/86 at 192). Trooper Krebs stated that he has used a metal scribe almost daily in his work with the police department. He also used one when he was a United States Navy mechanic, when he worked as a machine operator, and as a hobbyist. (N.T. 9/30/86 at 192). Trooper Krebs further testified that he had never seen a spring loaded scribe and he had never seen a scribe with as much play as the guard father had. (N.T. 9/30/86 at 198-99). Additionally, he testified that he had never seen a center punch with a six-inch shaft and he had never seen a center punch activated with a clip. (N.T. 9/30/86 at 199-200). Finally, Trooper Krebs explained the impracticality of using a guard father as either a center punch or a metal scribe. (N.T. 9/30/86 at 200-201).

In addition to Trooper Krebs’ testimony, the Commonwealth produced the advertisement shown to Captain Traenkle by appellant at the police station on the day of his arrest, which depicted an instrument identical to the one appellant possessed. It identified the object as a guard father, designed to be used as a discreet defensive weapon. (Commonwealth’s Exhibit 02).

Viewing the evidence in the light most favorable to the verdict winner, with all reasonable inferences arising therefrom, the evidence is sufficient to support a finding that a guard father is an instrument with no common lawful purpose which may be used to inflict serious bodily injury; therefore, the “other implement” clause provides an alternate basis for upholding the trial court’s determination that the evidence was sufficient to sustain the verdict. A verdict based on sufficient, albeit conflicting evidence, is conclusive on appeal. It is not our role, as an appellate court, to pass upon the credibility of witnesses or to act as a trier of fact; we will not substitute our judgment for that of the fact finding jury. Commonwealth v. Pearsall, supra; Commonwealth v. Reddix, supra; see also Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, Inc., 844 Pa.Super. 367, 496 A.2d 840 (1985).

II.

Appellant’s second claim is that Section 908 is unconstitutional for two reasons. Appellant argues that the statute is unconstitutional because it is impermissibly vague and because it irnpermissibly shifts the burden of proof regarding specific enumerated defenses to the defendant.

A.

Appellant argues that the statute is impermissibly vague because the “no common lawful purpose” language fails to inform those who are subject to it what conduct will render them liable for criminal sanctions. We disagree.

In determining whether a statute is impermissibly vague, the following principles are applicable:

Absent the assertion of an infringement of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.
* * * * * *
A criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
* * * * * *
That the terms of a penal statute creating a new' offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

Commonwealth v. Walton, 252 Pa.Super. 54, 57-58, 380 A.2d 1278, 1279 (1977) citing Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 245-46 (1976). See also Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.2d 322 (1926); Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294 (1986); Commonwealth v. Wallace, 368 Pa.Super. 255, 533 A.2d 1051 (1987). Thus, the question is not whether the wording of the statute leaves gray areas, but whether appellant’s conduct falls within such an area.

In Commonwealth v. Walton, supra, this Court held that as applied to an antique sword cane, Section 908 was not unconstitutionally vague. 252 Pa.Superior Ct. at 59, 380 A.2d at 1280. The court reasoned that it took no guess work to conclude that a sword cane is an “instrument for infliction of serious bodily injury which serves no [common] lawful purpose.” 252 Pa.Superior Ct. at 59, 380 A.2d at 1280. The same can be said of the guard father. The instrument was designed strictly for use as a discreet “defensive” weapon. Thus, like the sword cane there is no question that the guard father is an instrument for infliction of serious bodily injury which serves no common lawful purpose. Therefore, appellant’s claim that he was unfairly surprised by the application of the statute is without merit.

B.

Appellant also claims the statute is unconstitutional because it impermissibly shifts the burden of proof to the defendant by requiring him to prove enumerated defenses by the preponderance of the evidence. This particular claim has previously been rejected and therefore is without merit. See Commonwealth v. McFarland, 252 Pa. Super. 523, 382 A.2d 465 (1977) (en banc) (prohibited offensive weapons statute was not rendered unconstitutional because of provision which placed burden on defendant to prove by preponderance of evidence one of enumerated defenses contained therein, in view of fact that provision establishing defense to such charge did not create an element of the offense).

III.

Appellant’s third claim is that the submission to the jury of the issue of whether the object in question is a dagger, knife, razor or cutting instrument constituted prejudicial error. This argument is erroneously premised on the conclusion that as a matter of law, the object here was not a “knife, razor, or other cutting instrument,” the blade of which is exposed automatically. However, as discussed in Section IA, supra, we concluded that a six-inch steel shaft with a pointed end may properly be characterized as a cutting instrument as that term is used in the statute. Having made this finding, we believe that the issue was properly submitted to the jury and we find no prejudical error.

IV.

Appellant’s fourth and final argument is that it was error to admit into evidence a written advertisement relating to the guard father. Appellant claims that there were three problems relating to the admissibility of this evidence: (1) the officer could not identify the exhibit as the paper he received on the night of appellant’s arrest; (2) it was inadmissible hearsay; and (3) the exhibit was not relevant to the issue of why appellant possessed the object or used it. We disagree with each of these claims.

We note initially the admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Osborn, 364 Pa.Super. 505, 516, 528 A.2d 623, 629 (1987). The exhibit in question was a photostatic copy of an advertisement for the “guard father” shown to Captain Traenkle by appellant the day he was arrested. It depicted an object identical to the instrument seized from appellant. The object was identified in the advertisement insert as a “guard father” designed for use as a discreet defensive weapon which can be easily concealed. (Commonwealth’s Exhibit C-2).

The record completely contradicts appellant’s assertion that the officer could not identify the exhibit as the same advertisement appellant showed him at the police station. Captain Traenkle testified on two occasions that the exhibit was in fact a photostatic copy of the advertisement that appellant identified on the night of the arrest. (N.T. 9/29/86 at 66, 67).

Furthermore, we agree with the Commonwealth and the trial court that the advertisement was not inadmissible hearsay and that it was relevant to the issue of whether or not the instrument had a common lawful purpose. The Commonwealth introduced the advertisement, which appellant had shown to Captain Traenkle the day of his arrest, for the purpose of proving that appellant purchased the weapon knowing that it was a discreet weapon, albeit one self-servingly characterized as “defensive.”

Secondly, the advertisement was introduced to support the Commonwealth’s position that the instrument had no lawful purpose. The community’s perception of the nature of the object, ie. the common purpose of the object, is a material issue. One method of establishing the community’s perception of the item, beyond consideration of the weapon itself or calling individual members of the community to testify, is to demonstrate how it is advertised to that community. It is reasonable to infer that a community’s perception of the common purpose of an object may be inferred from the advertisements of the object. The advertisement was thus not introduced to prove that the statements of the manufacturer were true (which could be characterized as hearsay), rather, the advertisements were properly introduced to prove the “state of mind” of the community (which is not hearsay). Cf. Commonwealth v. Fisher, supra (the defendant used an advertisement from a sporting good magazine to support his defense that a “Wyoming Knife” had a common lawful purpose as a hunting tool).

CONCLUSION

Based on the foregoing, we find appellant’s claims are all without merit. Accordingly, we affirm the judgment of sentence.

      . Appellant was originally tried and convicted in September of 1984. By order dated June 19, 1986, the trial court reversed the conviction and granted appellant a new trial on the basis that a court exhibit containing appellant's prior record inadvertently went out with the jury when it commenced deliberations.

      . A center punch is defined as a "hand punch consisting of a short steel bar with a hardened conical point at one end used for marking the centers of holes to be drilled.” Webster’s Ninth New Collegiate Dictionary 221 (1986).

      . While the evidence is sufficient to sustain a verdict of guilty under the first theory, we cannot ascertain from the jury’s verdict whether they found appellant guilty under both theories or only one of the two. Had we concluded that the evidence was insufficient to sustain the verdict on either theory, we would have been compelled to vacate and remand for a new trial. Cf. Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed 39, 99 S.Ct. 2450 (1979) (when a case has been submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside); U.S. v. Stanley, 597 F.2d 866 (4th Cir.1979) (where defendant was convicted on one count of an indictment that charged him with possession of both a pistol and a shotgun and the court reversed the defendant’s conviction for possession of the shotgun, the conviction in whole was reversed because it could not be determined from the general verdict of guilty whether the defendant had been convicted of possessing the pistol or the shotgun or both).

      . As described by Trooper Krebs: “A tool mark analysis is conducted when a tool, regardless of the type of tool, is used to alter an object by prying, by cutting, by impressing its own mark upon an object, I am asked to attempt to duplicate and identify that tool as the tool which made the mark in question." (N.T. 9/30/86 at 194).

      . The statute, of course, makes no such distinction between offensive and defensive weapons. Offensive is used in the statute in the sense of “objectionable” rather than “attack” or "initiate.” See Commonwealth v. Adams, supra.

      . Though an advertisement may properly be admitted as evidence tending to establish indirectly the common purpose of an object, we in no way suggest that such evidence is conclusive as to the object’s common purpose. Indeed, one of the purposes of advertisement is to change the public perception of a product.