author: TAMILIA, Judge:

text:
    682 A.2d 350
    Bradley G. SMALL, Appellant, v. JUNIATA COLLEGE, Dr. Robert Neff, President, Arnold Tilden, Vice-President, William Berrier, Athletic Director, Toby A. Dick, Chester Darlington and Joseph K. Kimmel, Appellees.
    Superior Court of Pennsylvania.
    Argued June 13, 1996.
    Filed Aug. 6, 1996.

      James L. Cowden, Harrisburg, for appellant.
    Mark A. Fontana, Harrisburg, for appellees.
    Before TAMILIA and JOHNSON, JJ.', and MONTEMURO, Judge.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge:

Bradley Small appeals from the July 20, 1995 Order granting the motion for summary judgment filed on behalf of all appellees in this employment dispute. As enunciated by the trial court, the facts of this case are as follows.

Plaintiff, Dr. Bradley G. Small, was employed by Juniata College from 1983 until his discharge on February 24, 1992. Dr. Small’s duties at the college were in the athletic department and in this regard he served Juniata as head football coach from April, 1989, until his dismissal. In 1983, the initial year of employment, the offer to work for the college for the period of one year was tendered to Dr. Small in a letter from the then President Dr. Frederick M. Binder. Dr. Small indicated his acceptance of the terms of the offer by signing and returning a duplicate of the letter of offer. Each year thereafter, Dr. Small was invited to renew his relationship with Juniata for another year in the same fashion. The college President would extend an offer by letter; Dr. Small would accept by signing and returning a copy.
After an unsuccessful football campaign in 1991, 17 players met for the purpose of verbalizing their dissatisfaction with Coach Small. The dissidents memorialized their complaints about Coach Small in a letter to Vice-President Arnold Tilden dated February 3, 1992. Mr. Tilden and Athletic Director William Berrier responded to the students by investigating their complaints. Random interviews of past and present players were conducted by Dean Tilden and Mr. Berrier. None of the signers of the February 3rd letter were interviewed. On February 18, 1992, Tilden and Berrier met with Coach Small and shared with him their findings. The substance of this meeting was set forth in a letter tendered to Dr. Small that same day in which terms and conditions were spelled out for employment during the 1992-93 academic year. Although there is substantial dispute as to the length of time afforded Dr. Small to respond to Vice-President Tilden’s letter, there is no dispute that President Robert W. Neff wrote to the plaintiff on February 24, 1992, informing him that since he had not responded to the terms of future employment dictated by Vice-President Tilden, his employment would not be continued beyond June 30, 1992. Further, plaintiff was directed to vacate his office within forty-eight (48) hours, and advised that he would not be permitted to fulfill other duties during the remainder of the 1991-92 academic year. [Thereafter, the college paid appellant and continued his benefits, pursuant to his one year contract, for the remainder of the 1991-92 academic year.]
This action was commenced against not only the college and the administrators directly involved in plaintiffs dismissal, but also against three of Coach Small’s players who unquestionably were linchpins in the group of players that fomented the letter to Vice-President Tilden on February 3, 1992.

(Slip Op., Kurtz, J., 7/20/95, pp. 2-3.)

The causes of action advanced by appellant below were breach of contract, intentional interference with employment relations and intentional infliction of emotional distress. By Order dated July 20,1995, summary judgment was granted as to all three claims and this appeal followed.

A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusions that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; see also Atkinson v. Haug, 424 Pa.Super. 406, 409-11, 622 A.2d 983, 985 (1993). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 317-18, 549 A.2d 1311, 1313 (1988).

As to the breach of contract claim, appellant claims, “the lower court, having found the existence of a written employment contract, erred in finding as a matter of law that ‘just cause for termination’ and conflict resolution provisions of a personnel manual were not incorporated into the employment contract.” (Appellant’s brief at 10.) We reject this claim.

Initially, we agree with appellant and the trial court that appellant had a contractual relationship for employment, and thus we reject the appellees’ claim that appellant’s employment was at-will. We find that the annual letters offering employment between 1983 and 1992, which appellant was to sign and return to the college President, constituted one-year employment contracts. However, we reject appellant’s contention that a personnel manual submitted to all employees, which contained sections discussing termination “for cause” and conflict resolution procedures, somehow transformed these consecutive one-year contracts into permanent employment.

As noted by the trial court, our resolution of this issue is guided by the decision in Ruzicki v. Catholic Cemeteries Association, 416 Pa.Super. 37, 610 A.2d 495 (1992). In Ruzicki, an employee at-will challenged his termination on the basis that an employee handbook conferred upon him the right to certain disciplinary proceedings before he could be terminated. In affirming the trial court’s grant of summary judgment in favor of the appellee/employer, our Court held as follows:

‘A handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule.’ The handbook, moreover, must contain a clear indication that the employer intended to overcome the at-will presumption. We have held that it is for the court to interpret the handbook to discern whether it contains evidence of the employer’s intention to be legally bound.

Id. at 42, 610 A.2d at 497 (citations omitted).

In support of its conclusion, the Ruzicki court also relied on Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), in which a newspaper editor was fired for running an advertisement in a competing newspaper. The editor challenged the dismissal on the basis that her conduct was not an act specified in the employee handbook as warranting disciplinary action. Thus, like Ruzicki, Martin claimed that the handbook converted her at-will employment into employment that could be terminated only for good cause. We again disagreed, reasoning as follows:

Appellant had been hired as an at-will employee. To now hold that the handbook allowed her discharge only for just cause would, in effect, convert her into an employee with a contract for an indefinite term who could be fired only for a just cause. This would be a modification of immense proportions. For such an extreme modification of a preexisting contract, we would require a clear statement of an intent to so modify. We do not believe a reasonable person in the appellant’s position would have read this handbook provision as converting her from an at-will employee to an employee with an indefinite contract who could never be discharged without objective just cause. We reiterate that there was already a contract between the appellant and the newspaper, the terms of which were that appellant could be discharged for any or no reason. In the handbook, we fail to see the definiteness required to overcome that original at-will contract.

Id. at 215-16, 511 A.2d at 838 (citations omitted).

Appellant attempts to distinguish Ruzicki and Martin on the basis that “in this case Dr. Small is not an at-will employee, and the question is whether the Administrative Personnel Manual which the college expected Dr. Small to abide by was, in fact, a part of his written employment contract.” (Appellant’s brief at 18.) We reject appellant’s claim that the at-will status of the plaintiffs in Ruzicki and Martin renders those cases inapplicable to our analysis. The point of Ruzicki and Martin is that in order for the courts to allow an employee handbook to work “an extreme modification of a pre-existing contract, we would require a clear statement of an intent to so modify.” Martin, supra at 215, 511 A.2d at 838. The only plausible construction of this holding is that it should apply in all cases where an employee argues that a handbook operates to work an extreme modification of his or her existing contractual status. As in Martin, our review of the instant handbook, which was not referenced by any of appellant’s one-year employment contracts, indicates that it does not contain a “clear statement of an intent to so modify” those one-year contracts. In fact, our review has not revealed a single statement, nor does appellant direct our attention to one, indicating that the “just cause” and conflict resolution provisions urged by appellant were intended by the college to contradict the terms of appellant’s annual employment contracts. We are simply unable to conclude that a reasonable person in appellant’s position would have read the handbook provisions at issue as converting his annual contracts into permanent employment terminable only for just cause. Martin, supra. Thus, we find that the provisions of the handbook upon which appellant relies did not become terms of his employment. In light of this finding, it becomes apparent that at the end of the 1991-92 academic year, for which appellant was fully compensated, the college merely declined to renew its employment relationship with appellant and such was its right. As there was no contract to breach, appellant’s first claim fails.

Appellant next claims “the lower court erred in concluding as a matter of law that the player-defendants did not intentionally interfere with Dr. Small’s employment contract[.]” (Appellant’s brief at 18.) In order to successfully advance a cause of action for intentional interference with contractual relations, appellant must demonstrate the following: (1) the existence of a contractual relationship; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of a privilege or justification for such interference; and (4) damages resulting from the defendant’s conduct. Triffin v. Janssen, 426 Pa.Super. 57, 62-64, 626 A.2d 571, 574 (1993), alloc. denied, 536 Pa. 646, 639 A.2d 32 (1994). In analyzing such a claim, our Courts have traditionally applied section 767 of the Restatement (Second) of Torts which provides as follows:

767. Factors in Determining Whether Interference is Improper

In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:

(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties. ■

Further, comment (b) to section 767 provides:

The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation. This Section states the important factors to be weighed against each other and balanced in arriving at a judgment; but it does not exhaust the list of possible factors.

Id.

In rejecting appellant’s claim below, the trial court held as follows:

We believe strongly that the ‘rules of the game’ in the academic world encourage students to voice their opinions even when those opinions are wrong or premised on untruths, half-truths or the unverified hearsay testimony of other persons. It would be a sad day if this Court burdened college students with the possibility of tort liability for expressing their thoughts, including those motivated by pride, resentment and anger on any subject related to college life. In making this judgment, we assume that administrators and faculty are mature and wise enough to separate the wheat from the chaff.

(Slip Op. at 13.) We agree with the trial court that the student concerns involved herein, as expressed to college administrators under the facts of this case, do not constitute intentional interference with a contractual relationship within the meaning of section 767. Of course, this holding does not carve out a new exception to a recognized tort. Rather, we simply recognize that, under the facts of this case, student criticism of a college employee with whom the students must interact, when expressed to the administration, does not constitute intentional interference with an employment relationship. Hence, we find that the trial court was correct in concluding as a matter of law that the student-appellees had not engaged in improper conduct and that appellant had failed to set forth a prima facie cause of action for intentional interference with contractual relations. See Triffin, supra (summary judgment appropriate where appellant fails to set forth a prima facie cause of action for intentional interference with contractual relations.).

Finally, appellant claims the lower court erred by concluding that the player/appellees were entitled to judgment as a matter of law on the count of intentional infliction of emotional distress. Initially, we note that a panel of our Court has held that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania. Ford v. Isdaner, 374 Pa.Super. 40, 44-45, 542 A.2d 137, 139 (1988), alloc. denied, 520 Pa. 617, 554 A.2d 509 (1988). However, it appears that the Ford holding is the subject of some confusion and conflict in our law. See Johnson v. Caparelli, 425 Pa.Super. 404, 625 A.2d 668 (1993). Like the Johnson court, rather than contributing to this conflict and confusion, we find that, regardless of the current state of this tort in Pennsylvania, appellant has failed to establish its requisite elements. Id. Section 46 of the Restatement (Second) of Torts, provides as follows:

§ 46 Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it for such bodily harm.

In defining the outrageous conduct requirement, our Court has held:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, arid to be regarded as atrocious, and utterly intolerable in a civilized society. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’

Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1976) (emphasis in original). Finally, as appellant concedes, a court must make the initial determination of whether a defendant’s conduct was so extreme and outrageous that recovery may be justified. See Reimer v. Tien, 356 Pa.Super. 192, 198-200, 514 A.2d 566, 569 (1986); and Restatement (Second) of Torts, § 46, Comment (h) (1965) (“It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.”).

We have no difficulty in concluding that the conduct of the player/appellees herein, in expressing concerns about their football coach to the college administration, was not so extreme and outrageous that it went beyond “all possible bounds of decency and [was] utterly intolerable in a civilized community.” Jones, supra. Thus, the trial court properly granted summary judgment in favor of appellees on this claim.

Based on the foregoing, we agree with the trial court that appellant has failed to set forth prima facie causes of action for breach of contract, intentional interference with an employment relationship and intentional infliction of severe emotional distress. We affirm the July 20, 1995 Order granting summary judgment.

Order affirmed.

      . See for example Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971); Triffin v. Janssen, 426 Pa.Super. 57, 62-64, 626 A.2d 571, 574 (1993), alloc. denied, 536 Pa. 646, 639 A.2d 32 (1994); Allied Security, Inc. v. Security Unlimited, Inc., 265 Pa.Super. 297, 401 A.2d 1219 (1979).

      . At argument before the trial court, appellant conceded that no claim of intentional infliction of emotional distress was available against the college/appellees. (Slip Op., Kurtz, J., 7/20/95, p. 14.)


source: Caselaw Access Project

license: Public Domain

text:
    682 A.2d 356
    COMMONWEALTH of Pennsylvania, Appellant, v. Jesse Eugene RENNINGER.
    Superior Court of Pennsylvania.
    Argued June 12, 1996.
    Filed Aug. 8, 1996.

      Patrick T. Barry, Assistant District Attorney, Middlesburg, for Commonwealth, appellant.
    Michael C. Morrone, Williamsport, for appellee.
    Before TAMILIA and JOHNSON, JJ., and MONTEMURO, J.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge:

The Commonwealth presents this appeal from the June 27, 1995 Order granting appellee’s oral motion for judgment of acquittal following his conviction for driving under the influence of alcohol. The Order was premised on the fact that the blood alcohol test relied upon by the Commonwealth analyzed only the supernatant of appellee’s blood, rather than his whole blood, and the Commonwealth failed, at trial, to provide a formula for converting the alcohol content of the supernatant into the alcohol content of appellee’s whole blood. As set forth by the trial court, the facts of this case are as follows.

At the hearing on the Defendant’s Omnibus Pretrial Motion Trooper Curtis Cooke of the Pennsylvania State Police testified that on August 2, 1994, he was assigned to the Crime Unit of the Selinsgrove Barracks of the Pennsylvania State Police. While Trooper Cooke was working in the barracks the Defendant presented himself at the barracks to file a complaint.
While Trooper Cooke was speaking with the Defendant, Trooper Cooke detected a strong odor of a [sic] alcoholic beverage about the person of the Defendant. Trooper Cooke also observed that the Defendant’s eyes were glassy and bloodshot. When the Defendant left the barracks
Trooper Cooke observed the Defendant walk toward a pickup truck parked in the parking lot, but could not determine if the Defendant was driving this vehicle, or if someone else in the vehicle was operating the vehicle. Based upon his observations of the Defendant and his uncertainty as to whether the Defendant was operating the pickup truck, Trooper Cooke broadcast a radio message to the State Police cruisers on patrol, giving a description of the vehicle, the Defendant’s name, Trooper Cooke’s observations regarding the smell of alcohol, the appearance of the Defendant’s eyes, and Trooper Cooke’s concerns that the Defendant may be operating a motor vehicle while under the influence of alcohol.
Trooper Ricky Goodling testified that while on routine patrol as a member of the Pennsylvania State Police on August 2, 1994, he heard the radio broadcast of Trooper Cooke. Trooper Goodling testified that he had recalled seeing the vehicle that was the subject of the radio broadcast parked at the barracks previously. After the radio call from Trooper Cooke, Trooper Goodling parked some distance to the east of the barracks along U.S. Route 522, which is the highway upon which the Selinsgrove Barracks is located. While parked there monitoring traffic he observed the Defendant’s vehicle traveling east toward Selinsgrove on U.S. Route 522. Trooper Goodling pulled out behind the Defendant’s vehicle and followed it for approximately two (2) to three (3) miles. While following the Defendant’s vehicle he observed it crossed the center line of the highway one (1) time by approximately one-half (}f¿) a tire width.
The Defendant turned off U.S. Route 522 onto Broad Street in Selinsgrove, and then turned and stopped his vehicle. Trooper Goodling testified that he did nothing to indicate to the Defendant that he should stop, and that the Defendant pulled into the parking lot and the parking stall, stopping his vehicle, completely on the Defendant’s own.
Trooper Goodling approached the Defendant’s vehicle. The Defendant, who was driving the pickup truck, rolled down the driver’s window before Trooper Goodling approached. When Trooper Goodling approached the Defendant he detected an odor of alcoholic beverage about the Defendant’s person. Trooper Goodling asked the Defendant to exit his vehicle and perform a preliminary breath test on a device which the Pennsylvania State Police, Selinsgrove Barracks, maintains in the police cruisers. The test results were a .13, above the legal .10 blood alcohol limit. 75 Pa.C.S.A. Sec. 3731(a)(4) and (5). We acknowledge that such a preliminary breath test may be used only to establish probable cause to arrest.
Trooper Goodling did not ask the Defendant to perform any field sobriety tests. He decided not to arrest the Defendant for driving under the influence of alcohol, given that the Defendant pulled into the parking lot safely, parked his vehicle, and indicated that he would leave his vehicle there and would call his wife to come and pick him up. Trooper Goodling radioed to the barracks as to what had transpired and left the Weis Market[’]s parking lot.
After Trooper Goodling’s radio call, Trooper Cook [sic] left the barracks and proceeded east on U.S. route 522, in the same direction in which the Defendant had traveled to arrive at the Weis Market parking lot. As Trooper Cooke proceeded he observed the Defendant operating his pickup truck in the opposite direction. This transpired approximately ten (10) minutes after the Defendant left Trooper Cooke at the barracks. Trooper Cooke, who was caught in traffic, made a radio broadcast advising those troopers on routine patrol that he observed the subject pickup truck traveling west on U.S. route 522 toward Kreamer, Pennsylvania. Trooper Cooke’s observation of the Defendant traveling west on U.S. Route 522 occurred approximately five (5) minutes after Trooper Cooke had received the radio call from Trooper Goodling.
Trooper Ryan Maxwell of the Pennsylvania State Police testified that while on routine patrol on August 2, 1994, he heard the initial radio broadcast by Trooper Cooke, the subsequent broadcast by Trooper Goodling, and the second radio broadcast from Trooper Cooke concerning Trooper Cooke’s observation of the Defendant traveling west on U.S. Route 522. Trooper Maxwell, who was also traveling west on U.S. route 522 toward Kreamer, parked his cruiser in a position where he could observe traffic traveling west on U.S. Route 522 toward Kreamer. He then observed the Defendant’s vehicle traveling west on U.S. Route 522, activated his emergency lights, and subsequently stopped the Defendant.
Trooper Maxwell approached the Defendant and asked the Defendant for his license, registration, and insurance cards. He detected an odor of alcohol on the Defendant’s breath and observed that the Defendant’s eyes were bloodshot. When Trooper Maxwell asked the Defendant for his cards the Defendant stated, “I knew I shouldn’t have done it,” or words to the effect.
Trooper Maxwell placed the Defendant under arrest for driving under the influence of alcohol.

(Slip Op., Woelfel, J., 6/27/95, pp. 1-4.)

Following his arrest, appellee was transported to Evangelical Community Hospital and blood alcohol testing was conducted which, the parties stipulated at trial, revealed a blood alcohol content of .167 per cent. On December 22, 1994, appellee filed his omnibus pretrial motion, seeking, inter alia, suppression of the blood alcohol test results on the basis that the testing machine utilized, the DuPont ACA-IV, analyzed only supernatant, rather than whole blood. On January 20, 1995, a hearing on appellee’s motion was held and the court took judicial notice of two provisions of the Pennsylvania Bulletin in which the Department of Health published its certification of Evangelical Community Hospital as a laboratory approved to conduct blood alcohol testing pursuant to the Vehicle Code (N.T., 1/20/95, p. 69). Other than argument, appellee presented no evidence or testimony at the suppression hearing attacking the validity of the blood test and his motion to suppress was denied by Order dated March 29, 1995. Appellee’s nonjury trial was held on March 31, 1995 and the Commonwealth presented its case exclusively through the incorporated suppression hearing testimony of Troopers Cooke, Goodling and Maxwell. The sole witness called on behalf of appellee was Joan Moilanen, the technologist at Evangelical Hospital who conducted the alcohol testing on appellee’s blood. At the conclusion of the evidence, appellee was found guilty of violating section 3731(a)(5). Immediately following the court’s verdict, appellee made an oral motion for judgment of acquittal on the basis that the Commonwealth had failed to meet its burden of proving the amount of alcohol in his whole blood. By Order dated June 27, 1995, the court granted appellee’s motion and this Commonwealth appeal followed.

The Commonwealth claims the trial court’s grant of appellee’s motion for judgment of acquittal was erroneous for two reasons. “First, although the Court has stated that its Order was predicated on an ‘insufficiency of evidence’ theory, it is clear and inescapable that the ‘insufficiency’ was the very issue raised, litigated, and ruled against the Appellee in his Motion to Suppress.” (Appellant’s brief at 11.) Thus, according to the Commonwealth, the court’s post-trial grant of acquittal constituted an improper reversal of its pretrial denial of appellee’s motion to suppress. Secondly, the Commonwealth claims “even within the realm of ‘insufficiency’, the court’s ruling constitutes reversible error [because] no where in her testimony does [Ms. Moilanen] testify that the test she performed upon the appellee’s blood was anything other than a test upon his whole blood as deemed appropriate by the Pennsylvania Department of Health.” (Appellant’s brief at 11-12.)

Initially, as to the Commonwealth’s claim that the trial court’s acquittal of appellee constituted a reversal of the pretrial suppression Order, the trial court, in its Opinion filed pursuant to Pa.R.A.P.1925(a), responds as follows:

Respectfully, we suggest that the District Attorney is confusing an absence of evidence on a crucial point with an asserted reversing of our Order denying the Defendant’s motion to suppress evidence. In fact, we did not reverse our ruling on the motion to suppress evidence. All of the testimony which the Commonwealth wished to present regarding the certification of the laboratory at Evangelical Community Hospital, the procedures used by that laboratory, and the results of the tests performed were admitted. What the Commonwealth did not present was the conversion factor that would convert the alcoholic content of the supernatant to a blood alcohol content of the Defendant’s whole blood---- Simply because certain evidence, such as a laboratory being an approved laboratory to perform blood tests to determine blood alcohol content, is admitted does not necessarily mean that the presentation of evidence supporting that fact would be sufficient for the Commonwealth to meet[ ] its burden.

(Slip Op., Woelfel, J., 7/18/95, pp. 2-3.)

We agree with the trial court that by taking judicial notice of a laboratory’s certification, upon which the denial of appellee’s suppression motion was based, the court did not thereby create an irrebuttable presumption that the test results would satisfy the Commonwealth’s burden of proof at trial. Such judicial notice operated only to shift the burden of proof as to the test’s validity from the Commonwealth to appellee.

As we held in Commonwealth v. Brown, 428 Pa.Super. 587, 595, 631 A.2d 1014, 1018 (1993):

[J]udicial notice does not deny an opposing party the opportunity to disprove the fact sought to be judicially noticed. Therefore, a party who believes that, notwithstanding a lab’s state approval and publication in the Pennsylvania Bulletin, some error in testing occurred, i.e., the improper timing of a test or an equipment malfunction, is free to present evidence of that error to rebut the inference created by judicial notice---- A party may convince the court that even though a lab has state approval, the circumstances surrounding his or her test were such that the results are not rehable.

Id. (citations omitted.) Thus, judicial notice of the laboratory’s certification created a rebuttable presumption of validity which appellee had every right to attack at trial. In fact, this was clearly enunciated and understood by all parties at the suppression hearing, during which the following exchange occurred:

THE COURT: The Commonwealth made an oral motion regarding being relieved of the burden of presenting any testimony relating to the blood test if they introduced the Pennsylvania Bulletin regarding the Evangelical Community Hospital laboratory being an approved lab. That motion was granted.
The Order that was entered in this matter indicates that the Commonwealth’s motion was granted and that they would be relieved of the burden.
Mr. Campana [defense counsel], it is your burden at this point to go forward. If you have not met the burden at the time scheduled, then the motion is going to be denied, and the evidence will not be suppressed. Now, again, I’m inclined to agree with [the District Attorney] that the law of the case would control.
DISTRICT ATTORNEY: I would say, Your Honor, to modify my position slightly, I think the law of the case would control with regard to the right of the Commonwealth to introduce its testimony. If the defense in its defense would call an expert, I don’t think that would be inappropriate.
THE COURT: I don’t think that it can be precluded from challenging at that point and time, but right now, all the Commonwealth has to do is present the Pennsylvania Bulletin.
DISTRICT ATTORNEY: What I’m looking at, Your Honor, is — the motion is a motion to suppress evidence. That motion has been denied. The question that comes in the defense of the case is [defense counsel] going to be prohibited from, bringing forth an expert to challenge a test at that time. On the defense, I think they have every right to do that. But I think in terms of our case today and also our case-in-chief, we can rest upon the certification.

(N.T., 1/20/95, pp. 4-10; emphasis added.) As this testimony indicates, all parties, including the Commonwealth, understood that the defense at trial could seek to rebut the presumption of validity established when the court took judicial notice of the laboratory certification. The suppression motion was denied on the basis that appellee did not attempt, via evidence or testimony, to rebut the presumption at the suppression hearing, but as all parties recognized, appellee was not precluded from attacking the blood test at trial. Thus, the post-trial judgment of acquittal reversed neither the denial of suppression nor the presumption of validity established at suppression when the court took judicial notice of the laboratory’s certification. Rather, the trial court granted the Commonwealth every benefit of the presumption at trial and held appellee to the burden of overcoming that presumption. Simply because the court found that appellee had succeeded does not, as the Commonwealth suggests, indicate that the court “reversed” either the denial of suppression or the presumption upon which the denial was premised. Were we to endorse the Commonwealth’s position, the practical implication would be that state certification of a testing laboratory automatically establishes, beyond question, the accuracy of all testing conducted by that lab under all circumstances. Our courts will not countenance such an ironclad presumption. See Brown, supra at 595, 631 A.2d at 1018 (“[A] party who believes that, notwithstanding a lab’s state approval and publication in the Pennsylvania Bulletin, some error in testing occurred ... is free to present evidence of that error to rebut the inference created by judicial notice.”). Thus, we reject the Commonwealth’s claim that the trial court reversed its pretrial suppression decision when it granted appellee’s post-trial motion for judgment of acquittal.

We next consider the Commonwealth’s claim that the trial court erred in concluding that appellee had successfully rebutted the presumption of sufficiency established when the court took judicial notice of the lab certification. As noted, the Commonwealth claims that “at no time did [Ms. Moilanen] present any fact or opinion within her expertise that the DuPont ACA or the procedures she utilized resulted in anything less than a ‘whole blood’ finding.... ” (Appellant’s brief at 13.)

As the following excerpts indicate, the Commonwealth misconstrues Ms. Moilanen’s testimony:

Q [DEFENSE COUNSEL]: Now, when you say [the pre-test procedure] precipitates out of the red cells, what do you — it takes out the red cells from the rest of the blood?
A So that after I mix them and put them in a centrifuge, I’m going to just work with the supernatant.
Q Now, how do you get the supernatant? Do you centrifuge—
A Centrifuge it for four minutes, and then I remove the supernatant.
Q And the supernatant is the—
A Is the clear liquid on the top and cells come to the bottom as a clot.
Q So the red cells are taken out. The clear liquid on top, which is called a supernatant, is utilized from that point on?
A Yes, it is.

(N.T., 3/31/95, pp. 12-13.)

Q When you — in the testing of the substance that you did in this case, if you define whole blood as blood from which none of its elements have been removed, is the substance that you injected in the machine supernatant? Is that whole blood under that definition?
A No, it is not whole blood.
Q [DISTRICT ATTORNEY]: The question is, if you are aware, why does the instrument not test the entire whole blood? Why is a precipitant removed?
A The instrument cannot analyse [sic] whole blood at this point in time....
Q [DEFENSE COUNSEL]: And the machine cannot test whole blood?
A No, it cannot.

(N.T. at 31-38.)

As this testimony indicates, Ms. Moilanen clearly and repeatedly stated that she did not test appellee’s “whole blood.” Further, Ms. Moilanen was unable to provide a calculation for extrapolating a whole blood alcohol content from the result of the supernatant test.

Q [DEFENSE COUNSEL]: Is there documentation about a supernatant whole blood alcohol ratio?
A No.

(N.T. at 52.) We agree with the trial court that Ms. Moilanen’s testimony rendered the Commonwealth’s evidence insufficient.

In Commonwealth v. Bartolacci, 409 Pa.Super. 456, 598 A.2d 287 (1991), we addressed, as follows, “the apparent practice of testing blood serum”, rather than whole blood:

While our statutes do not dictate in what form blood must be tested, only evidence of the amount of alcohol by weight in the person’s blood can support a conviction based upon a violation of § 3731. Where a test is performed on blood serum rather than whole blood, the fact finder must be informed of this and must be provided with evidence of the alcohol by weight in the defendant’s blood in order to properly sustain a conviction based upon a violation of § 3731. Evidence offered of a reading based upon a test of blood serum, without conversion, will not suffice---- [W]e caution the Commonwealth that a conviction based upon a violation of § 3731(a)(4) will not be upheld absent clear evidence that the alcohol content in the defendant’s blood is .10 per cent or greater and that evidence of test results based solely on blood serum will not suffice to sustain a conviction.

Id. at 459, 598 A.2d at 288.

Similarly, in Commonwealth v. Wanner, 413 Pa.Super. 442, 605 A.2d 805 (1992), we considered whether a blood alcohol analysis performed only on blood plasma would suffice for conviction under section 3731. In holding that it would not and vacating the defendant’s conviction, we stated:

The Commonwealth presented a .136 per cent blood alcohol count as evidence of appellant’s intoxication. The test which produced this reading was not performed on whole blood. Rather, a review of the record shows that the hospital performed a test on the blood plasma.... When a blood test is performed specifically for legal analysis, the test is performed on whole blood. “Whole blood” is defined as ‘blood from which none of the elements have been removed.’.... [Instantly], [a] comprehensive review of the record shows that the Commonwealth did not produce any evidence that would allow the fact finder to convert the result of the plasma test into an amount of alcohol by weight in the whole blood. As the statute requires a ‘whole blood’ analysis, we see no reason to distinguish a test on serum from a test on plasma. As both plasma and serum tests are performed on only a portion of whole blood, both tests require conversion to establish the correlative whole blood test result. In the absence of any converting evidence, appellant’s convictions for driving while under the influence of alcohol and homicide by vehicle while driving under the influence of alcohol cannot be sustained.

Id. at 447-50, 605 A.2d at 807-809.

Although our courts have not specifically considered the validity of supernatant testing, we do not hesitate to find that Bartolacci and Wanner, render such testing invalid unless converting evidence is provided to establish the alcohol content of whole blood. Since all three tests “are performed on only a portion of whole blood, [they] require conversion to establish the correlative whole blood test results”, Wanner, supra, and we now hold that supernatant testing also requires such “converting evidence”. Id. In light of the absence of such evidence presented at appellee’s trial, we are constrained to agree with the trial court that appellee successfully rebutted the presumption of validity established when the court took judicial notice of the laboratory’s certification. Hence, the court was correct in finding that the Commonwealth failed to establish appellee’s violation of section 3731(a)(5) beyond a reasonable doubt and judgment of acquittal was properly entered.

Based on the foregoing, we hold that the entry of judgment of acquittal did not reverse either the denial of appellee’s suppression motion or the presumption of testing validity established when the trial court took judicial notice of the certification of Evangelical Community Hospital to conduct blood alcohol testing. Rather, that presumption was successfully rebutted via the testimony of the lab technician at trial, who failed to relate the results of supernatant testing to whole blood alcohol content, as required by our law. Wanner, Bartolacci, supra. For these reasons, the June 27, 1995 Order granting appellee’s motion for judgment of acquittal was proper.

Order affirmed.

      . Appellant was charged under 75 Pa.C.S. § 3731(a), which provides in pertinent part as follows:
      § 3731. Driving under influence of alcohol or controlled substance (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
      (4) while the amount of' alcohol by weight in the blood of the person is 0.10% or greater; or
      (5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person’s breath, blood or urine, which sample is:
      (i) obtained within three hours after the person drive, operated or was in actual physical control of the vehicle; or
      (ii) if the circumstances of the incident prevent collecting the sample within three hours, obtained within a reasonable additional time after the person drove, operated or was in actual physical control of the vehicle.
      Appellant was convicted of violating (a)(5) and found not guilty of violating (a)(4).

      . The first Pennsylvania Bulletin is identified as Volume 24, No. 1, January 1, 1994. The second is identified only by date, August 27, 1994.

      . The Commonwealth also claims it relied on the judicial notice of laboratory certification in deciding not to offer scientific testimony at trial as to the test's validity. However, as noted, the presumption raised by the judicial notice was rebuttable, Brown, supra, and therefore the Commonwealth was not entitled to rely on the judicial notice as irrebuttable proof at trial. In fact, the district attorney admitted as such at the suppression hearing. See N.T., 1/20/95, p. 8 ("[District Attorney]: Whether I would have [the lab technician] or some other expert available to rebut any defense [appellee] might bring up [at trial], that would be my decision.”).

      . Webster’s Medical Desk Dictionary, Merriam-Webster, Inc. (1986), p. 693, defines "supernatant” as “the usu[ally] clear liquid overlying material deposited by settling, precipitation, or centrifugation.” In addition to Ms. Moilanen’s testimony, this definition leaves no doubt that "supernatant” blood testing is not conducted on whole blood, which the Wanner court defined as "blood from which none of the elements has been removed[.]” See Wanner, supra at 448, 605 A.2d at 808, citing Dorland’s Illustrated Medical Dictionary, Twenty-Fifth Edition, W.B. Saunders Co. (1974).


author: KELLY, Judge.

text:
    682 A.2d 363
    Jennifer GOODMAN, A Minor by her Parent and Natural Guardian, Deanna GOODMAN, Appellant, v. Peter PIZZUTILLO, M.D., Harold Marks and the Alfred I. DuPont Institute and James Riviello, Appellees. Jennifer GOODMAN, A Minor by her Parent and Natural Guardian, Deanna GOODMAN, Appellee, v. Peter PIZZUTILLO, M.D., Harold Marks and the Alfred I. DuPont Institute and James Riviello, Appellees, Appeal of Harold MARKS, M.D., Appellant. (Two Cases.) Jennifer GOODMAN, A Minor by her Parent and Natural Guardian, Deanna GOODMAN, Appellee, v. Peter PIZZUTILLO, M.D., James Riviello, Jr., M.D., Harold Marks, M.D., and the Alfred I. Dupont Institute. Appeal of Peter PIZZUTILLO, M.D., James Riviello, M.D., Harold Marks, M.D., Appellants. (Two Cases.) Jennifer GOODMAN, A Minor by her Parent and Natural Guardian, Deanna GOODMAN, Appellee, v. Peter PIZZUTILLO, M.D., James Riviello, Jr., M.D., Harold Marks, M.D., and the Alfred I. DuPont Institute, Appellees. Appeal of Peter PIZZUTILLO, M.D., Appellant. Jennifer GOODMAN, A Minor by her Parent and Natural Guardian, Deanna GOODMAN, Appellee, v. Peter PIZZUTILLO, M.D., James Riviello, Jr., M.D., Harold Marks, M.D., and the Alfred I. DuPont Institute, Appellees. Appeal of James RIVIELLO, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1996.

      Filed Aug. 27, 1996.

      Michael J. D’Aniello, Norristown, for Jennifer Goodman.
    Roseann L. Brenner, Philadelphia, for P. Pizzutillo, M.D., Alfred I. Dupont Institute & James Riviello.
    Lawrence R. Berger, III, Philadelphia, for Harold Marks, M.D.
    Before BECK, KELLY and OLSZEWSKI, JJ.
   KELLY, Judge.

In this appeal, we are called upon to determine whether the trial court abused its discretion when it granted a motion to dismiss a complaint on the grounds of forum non conveniens, and whether the court erred when it denied: preliminary objections, which were based on lack of in personam jurisdiction; motions for reconsideration of the denial of the preliminary objections; and a motion for summary judgment. Under the facts of this case, we hold that the trial court did abuse its discretion when it dismissed the complaint on the grounds of forum non conveniens. We conclude that the appeals taken from the denial of preliminary objections based on lack of in personam jurisdiction, the denial of the motions for reconsideration, and the denial of the motion for summary judgment, are interlocutory. Accordingly, we reverse the trial court’s order which dismissed the complaint on the ground of forum non conveniens, quash the cross-appeals as interlocutory, and remand for further proceedings consistent with this opinion.

In these consolidated appeals, Jennifer Goodman, a minor, and Deanna Goodman, Jennifer’s parent and natural guardian, appeal from the order dated March 13, 1995, and entered on the docket on March 22, 1995, in the Court of Common Pleas, Philadelphia County, which granted the motion to dismiss of Dr. Peter Pizzutillo, Dr. Harold Marks, Dr. James Riviello, Jr., and the Alfred I. DuPont Institute. Dr. Marks cross-appeals from the order dated August 24, 1989, which denied his preliminary objections based on lack of in personam jurisdiction and from the order dated May 26, 1994, which denied his motion for reconsideration, in the Court of Common Pleas, Philadelphia County. Dr. Pizzutillo cross-appeals from the order dated May 26,1994, and revised on August 25, 1994, in the Court of Common Pleas, Philadelphia County, which denied his motion for reconsideration. Dr. Riviello cross-appeals from the order dated March 13, 1995, in the Court of Common Pleas, Philadelphia County, which granted defendants’ petition to dismiss plaintiff’s complaint for forum non conveniens. Drs. Pizzutillo, Riviello and Marks jointly cross-appeal from the order dated June 24, 1992, denying defendants’ motion for summary judgment and from the order dated October 21,1993, denying defendants’ motion for reconsideration, in the Court of Common Pleas, Philadelphia County-

The relevant facts and procedural background of this appeal are as follows. On November 7, 1980, Jennifer Goodman, born November 2, 1971, was taken by her parents to consult Dr. Pizzutillo, a staff pediatric orthopedist at the DuPont Institute, to determine a method of treating her leg and orthopedic problems, including tibial torsion with which she had been afflicted for approximately five years. (Complaint at 3). In an effort to flatten out the overarch in Jennifer’s left foot and place her heel in a neutral rotation, Dr. Pizzutillo began a program of casting Jennifer’s left foot. (Id.). The casting continued through December of 1980. (Id. at 3-4). Because there was marked improvement of the cavis deformity of Jennifer’s left foot, Dr. Pizzutillo recommended that Jennifer be fitted for an ankle-foot orthosis. (Id. at 4).

On February 17, 1981, Dr. Pizzutillo recommended that Deanna Goodman perform various stretching exercises on Jennifer’s left foot and leg at least twice a day. (Id.). Jennifer’s “leg problem remained relatively stable” until July 1, 1983, when she discovered that she was unable to bend her left foot upward. (Id.). On July 8, 1983, after a consultation with Dr. Marks, a neurologist, it was noted that Jennifer had developed a small osteochondroma of her left fibula and that she was suffering from weakness of and damage to her peroneal enervated muscles. (Id.).

As a result of these findings, Doctors Marks and Pizzutillo ordered an EMG study and a “rule-out diabetes” urinalysis. (Id.). Except for these studies, no further treatment was prescribed for Jennifer’s neurologic or “drop-foot” disorder or the osteochondroma located at the proximal neck of her left fibula. (Id. at 4-5).

The condition of Jennifer’s left extremity continued to deteriorate during the period from July 1983 through June 1984. (Id. at 5). On June 11, 1984, the deterioration in Jennifer’s condition was noted by the doctors. (Id.). On October 8, 1984, Dr. Riviello, a staff pediatric neurologist at the DuPont Institute, saw Jennifer for a follow-up examination during which Deanna Goodman expressed her concern over her daughter’s “drop-foot” condition and inability to operate the muscles that controlled the first toe on her left foot. (Id. at 5-6). Not until April 16, 1985 was Jennifer reevaluated and, on that date, Dr. Marks suggested an x-ray and CT scan of her left knee area, an orthopedic evaluation, and a possible surgical release of the peroneal nerve for Jennifer’s left peroneal neuropathy, which Dr. Marks expressed might be secondary to nerve entrapment from the osteochondroma of the left tibia. (Id. at 6). However, it was not until June 11, 1985, when Jennifer was examined by Dr. Leslie N. Sutton at the Children’s Hospital of Philadelphia, that the appellants were informed that Jennifer had an osteochondroma on the fibular head of her left leg which was destroying her peroneal nerve.

As a result of this information, on June 12, 1985, Jennifer underwent decompression of peroneal nerve and excision of osteophyte surgery, performed by Dr. Sutton. At the time of the surgery, Jennifer was thirteen and one-half years of age. On May 24,1988, Deanna Goodman filed a complaint sounding in negligence and medical malpractice by and for her daughter, Jennifer, naming as defendants Doctors Pizzutillo, Marks, and Riviello and the Alfred I. DuPont Institute of the Nemours Foundation, and requesting that judgment be entered for the Goodmans, along with damages in excess of $20,000.00.

On June 23, 1988, the doctors and DuPont Institute filed preliminary objections to the Goodmans’ complaint in the nature of a petition to transfer as well as raising the question of in personam jurisdiction. On September 26, 1988, the Honorable Samuel M. Lehrer ordered discovery on all disputed facts. Depositions of all the doctors and the administrator of the DuPont Institute were taken and filed of record by December 15, 1988. Judge Lehrer reviewed the doctors’ and DuPont Institute’s preliminary objections, together with all depositions, and rendered his decision to deny them on December 28, 1988. Dr. Marks and DuPont Institute moved for reconsideration of Judge Lehrer’s ruling. On January 13, 1989, Judge Lehrer ordered his previous order vacated, pending reconsideration. Following oral argument on the issue of the court’s in personam jurisdiction, Judge Lehrer reconsidered his decision of December 28, 1988, and entered an order on August 24, 1989, dismissing the DuPont Institute from this action based on the lack of in personam jurisdiction in Philadelphia. However, Judge Lehrer found that the court had in personam jurisdiction over Dr. Marks. On August 28, 1989, the remaining defendants filed a demand for jury trial.

On November 17, 1989, the doctors filed their answer to the Goodmans’ complaint and new matter, averring that the complaint was barred by the applicable statute of limitations, that the Goodmans failed to state a claim upon which relief might be granted, that the Goodmans were barred from recovery under the doctrine of comparative negligence, that “other entities” caused in whole the Goodmans’ injuries and losses, and that all of the Goodmans’ claims were barred by the doctrine of laches. In conclusion, Doctors Pizzutillo, Riviello, and Marks demanded judgment in their favor, together with costs and attorneys’ fees. The Goodmans filed a reply to the doctors’ new matter eleven days later.

The doctors then filed a motion for summary judgment. On June 24, 1992, the Honorable Gene D. Cohen denied the motion. The doctors filed a petition for reconsideration of their motion for summary judgment. On October 21, 1993, Judge Cohen denied the doctors’ petition for reconsideration. In a July 27, 1994 petition for clarification, the doctors requested that Judge Cohen delete a footnote from his May 26, 1994 order which related to the statute of limitations. On August 25,1994, Judge Cohen denied this request.

Prior to trial, a settlement conference was ordered by the Honorable Sandra Mazer Moss. During this conference, Judge Mazer Moss considered the doctors’ renewed petition to dismiss for forum non conveniens. As a result of the conference, on March 13, 1995, Judge Mazer Moss granted the doctors’ petition and ordered that the matter be transferred to the State of Delaware. The Goodmans filed a timely notice of appeal on March 28,1995. On April 10,1995, the doctors filed a notice of cross-appeal from the part of Judge Mazer Moss’ order which dismissed the doctors’ petition for reconsideration of the order denying their motion for summary judgment.

On appeal, the Goodmans present the following questions for our review:

I. WHETHER THE CALENDAR JUDGE ERRED IN DISMISSING A COMPLAINT FOR FORUM NONCONVENIENS AFTER RAISING THE ISSUE SUA SPONTE?
II. WHETHER THE COURT ERRED IN DISMISSING A COMPLAINT BASED UPON FORUM NON-CON VENIENS WHERE THERE WAS NO ALTERNATIVE FORUM AVAILABLE?

(The Goodmans’ Brief at 5). The doctors raise the following questions:

I. WHETHER THE LOWER COURT ERRED IN DENYING DRS. PIZZUTILLO, MARKS AND RIVIELLO’S MOTION FOR SUMMARY JUDGMENT?
A. WHETHER THE SUBSTANTIVE LAW OF DELAWARE RATHER THAN THE SUBSTANTIVE LAW OF PENNSYLVANIA SHOULD BE APPLIED TO THIS LAWSUIT?
B. WHETHER MS. GOODMAN IS BARRED FROM BRINGING THIS LAWSUIT UNDER TITLE 18, DELAWARE CODE, SECTION 6856?
II. WHETHER THE LOWER COURT ERRED IN DENYING DR. MARKS’ PRELIMINARY OBJECTIONS FOR LACK OF IN PERSONAM JURISDICTION?
A. WHETHER THE PENNSYLVANIA COURTS LACK SPECIFIC JURISDICTION OVER DR. MARKS PURSUANT TO 42 PA.C.S.A. § 5322?
B. WHETHER THE PENNSYLVANIA COURTS LACK GENERAL JURISDICTION OVER DR. MARKS PURSUANT TO 42 PA.C.S.A. § 5301.

(The Doctors’ Brief at 11).

We note that although the Goodmans have enumerated two issues on appeal, essentially, they claim that the trial court abused its discretion in dismissing their action pursuant to the doctrine of forum non conveniens. We therefore address these issues as a single claim.

The Pennsylvania Rules of Civil Procedure pertinently provide as follows:

For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

Pa.R.Civ. P. 1006(d)(1). When a trial court orders the change of venue in a civil action, an interlocutory appeal as of right exists. Pa.R.App.P. 311(c); Vogel v. National Railroad Passenger Corporation, 370 Pa.Super. 315, 318 n. 3, 536 A.2d 422, 424 n. 3 (1988). A trial court’s decision to change venue will not be reversed by an appellate court absent an abuse of discretion. Scribner v. Mack Trucks, 427 Pa.Super. 71, 77, 628 A.2d 435, 438 (1993), allocatur denied, 537 Pa. 623, 641 A.2d 588 (1994) (citations omitted); Shears v. Rigley, 424 Pa.Super. 559, 564, 623 A.2d 821, 824 (1993) (citations omitted). Hence, a change of venue must stand on appeal if any basis for it exists. Scribner v. Mack Trucks, supra at 77, 628 A.2d at 438 (citing Shears v. Rigley, supra at 564, 623 A.2d at 824).

Our Supreme Court has recently reiterated in Scola v. A.C. & S., Inc., 540 Pa. 353, 367, 657 A.2d 1234, 1241 (1995) the relevant factors for transferring a case based on forum non conveniens as set forth in Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989). In both these cases, the Supreme Court has stated that,

[o]ur Rules of Civil Procedure provide a plaintiff with options as to where to bring suit, and this Court has emphatically stated that the choice of forum by a plaintiff is entitled to weighty consideration..... [A plaintiff] should not be deprived of the advantages presumed to come from [his or her original] choice
“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own private and public interest factors’ [but ] unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.”
Thus, the party seeking a change of venue bears a heavy burden of justifying the request, and it has been consistently held that this burden includes the demonstration on the record of the claimed hardships.

Scola v. A.C. & S., Inc., supra at 367, 657 A.2d at 1241 (quoting Okkerse v. Howe, supra at 517-18, 556 A.2d at 831-32) (emphasis in original). Furthermore, this Court recognizes that

one of the most important factors in determining whether a dismissal on ground of forum non conveniens is appropriate is whether an alternative forum is available to the plaintiff. Plum v. Tampax, Inc., [399 Pa. 553, 160 A.2d 549 (1960) ]. See also Shears v. Rigley, [424 Pa.Super. 559, 623 A.2d 821 (1993) ]. Cinousis v. Hechinger Dep’t Store, [406 Pa.Super. 500, 594 A.2d 731 (1991) ]; Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983). The Pennsylvania Supreme Court in Plum v. Tampax, Inc., supra, stated:
[an] action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how appropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiffs cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept defendant’s stipulation that he will not raise this defense in the second state.
Id. at 561, 160 A.2d at 553 (quoting Restatement (Second) Conflicts of Laws § 117(c) (tentative draft 1957)). See also Shears v. Rigley, supra; Cinousis v. Hechinger Dep’t Store, supra. Proper application of the doctrine of forum non conveniens requires the trial court to make a finding, on the record, as to the availability of other forums and then exercise its discretion after considering all other factors. Plum v. Tampax, Inc., supra. Dismissal of a complaint on the grounds of forum non conveniens should not be granted when such a decision results in the plaintiff being unable to institute an action elsewhere. Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983). Cf. Norman v. Norfolk & Western Railway, Co., 228 Pa.Super. 319, 323 A.2d 850 (1974) (no abuse of discretion to dismiss a complaint conditionally requiring the defendant to stipulate that he will accept service and will not plead the statute of limitations in the more convenient forum); White v. Norfolk and Western Railway Co., 229 Pa.Super. 331, 323 A.2d 68 (1974) (same).

Farley v. McDonnell Douglas Truck Services, Inc., 432 Pa.Super. 456, 462-63, 638 A.2d 1027, 1030 (1994).

Instantly, the trial court granted the doctors’ motion and dismissed the Goodmans’ complaint on the grounds of forum non conveniens. In its opinion, the trial court discussed the private and public interest factors that it considered and made a finding that an alternative forum was available. The trial court recognized that this action could not be transferred to Delaware, where it would be barred by the statute of limitations. For this reason, the trial court approved a stipulation which reserved all defenses regarding the statute of limitations available in Pennsylvania in May 1988. Unfortunately, the trial court failed to understand that the Delaware statute of limitations was an available defense to the doctors in May 1988. Thus, this stipulation places the Good-mans out of court in Delaware without an alternative forum in which to bring this action. Therefore, we conclude that the trial court erred when it dismissed the Goodmans’ complaint where, as here, no alternative forum was available to them. See id. (citing Plum v. Tampax, Inc., supra).

Further, we conclude that the trial court erred when it found, reasoning that there were insufficient contacts with Philadelphia County to maintain this action in that forum (Trial Court Opinion at 12), that the private and public interest factors and hardship considerations strongly favored transfer to the State of Delaware. In the instant case, the doctors failed to adduce facts on the record that either showed that trying the case in Philadelphia County was so oppressive and vexatious to them as to be out of proportion to the Goodmans’ convenience; nor has the evidence presented made a trial in Philadelphia County inappropriate. The trial court considered the following private interest factors to be in favor of transferring the action to Delaware: (1) during the relevant period of time, the doctors treated Ms. Goodman solely at the Alfred I. DuPont Institute in Delaware, where the doctors maintained their medical practices; (2) the medical records of that treatment are located in Delaware; and (3) at that time, Drs. Pizzutillo and Marks were residents of the State of Delaware. The trial court, however, did not fully consider the following facts: (1) the Goodmans and Dr. Pizzutillo currently reside in the Commonwealth of Pennsylvania and Drs. Pizzutillo and Riviello presently practice medicine in Philadelphia County; (2) during the relevant period, all three doctors were licensed to practice medicine in Pennsylvania; (3) Dr. Marks has been a clinical assistant professor of pediatrics and neurology at Temple University Medical Center and St. Christopher’s Hospital in Philadelphia; and (4) Dr. Marks continues to have staff privileges at both Philadelphia institutions.

In its opinion, the trial court implied that the Goodmans had an improper motive for filing in Philadelphia County and stated, “It would constitute a hardship for Defendants to expend vast sums to litigate in the Philadelphia court system which continues to be severely congested.” (Trial Court Opinion at 14-15). However, the trial court failed to consider the six years of discovery and pre-trial preparation which has taken place in Philadelphia County. The thrée doctors have participated in trial videotape depositions and settlement conferences in Pennsylvania. Ms. Goodman’s subsequent diagnosis and treatments were rendered in Pennsylvania. In addition, the Goodmans’ expert witnesses are located in Pennsylvania. Hence, we conclude that dismissing the case in Pennsylvania does not best effectuate the interests of the parties considering the substantial cost to relitigate the action in Delaware. Moreover, the record does not demonstrate how a trial in Philadelphia, the county where six years of preparation for trial has occurred and Drs. Pizzutillo and Riviello currently practice, would create great hardship for the doctors. The private factors simply do not supply sufficiently weighty reasons for depriving the Goodmans of their choice of forum. See Scola v. A.C. & S., Inc., supra.

The trial court also discussed the public factors which it considered in determining whether to dismiss the case on the grounds of forum non conveniens. The trial court stated: “It would be unfair, unreasonable, and against public policy to misuse our overburdened court system to impose jury duty on Philadelphia citizens who have no connection to treatment rendered in Delaware at a Delaware institution solely to provide a Montgomery County resident with better verdict potential.” (Trial Court Opinion at 14-15).

This Court is aware of the increased congestion in the Philadelphia courts, however,

this factor alone should not be viewed as giving trial courts carte blanche authority to transfer any case which may be as conveniently litigated elsewhere. See Rini v. New York Central Railroad Co., 429 Pa. 235, 240 A.2d 372 (1968) (Musmanno, J., dissenting) (“if case load is to determine availability of the courts to injured persons, then justice has become a commodity dependent on the size of the courthouse and the number of personnel therein rather than on the intrinsic merit of claims filed by litigants”); Greenfeig v. Seven Springs Farm, Inc., 416 Pa.Super. 580, 611 A.2d 767 (1992) (“Although we certainly recognize the tremendous burdens placed upon our courts by inadequate and unreasonable funding limitations, such circumstances do not provide the basis for a forum non conveniens transfer of a case.”). See also Wills v. Kaschak, 420 Pa.Super. 540, 617 A.2d 37 (1992) (Kelly, J. dissent); Turner v. Kohl, 420 Pa.Super. 507, 617 A.2d 20 (1992) (Concurring Statement by Kelly, J.).

Farley v. McDonnell Douglas Truck Service, Inc., supra at 466, 638 A.2d at 1032. Here, all three doctors are licensed in Pennsylvania and Drs. Pizzutillo and Riviello practice in Philadelphia County. Further, Dr. Marks has an affiliation with two Philadelphia institutions. Thus, the citizens of Philadelphia have an interest in this litigation and the quality of treatment which these doctors provide to their community. For these reasons, we conclude that the public factors do not weigh strongly in favor of the motion to dismiss on the basis of forum non conveniens. See Scola v. A.C. & S., Inc., supra.

Next, we must determine whether the issues raised by the doctors on cross-appeal are properly before this Court. The cross-appeal taken from the August 24, 1989 order, which denied Dr. Marks’ preliminary objections based on lack of in personam jurisdiction is interlocutory and therefore not appealable. Pa.R.App.P. 311(b). The orders of October 21, 1993, May 26, 1994, and August 25, 1994, which denied the doctors’ motions for reconsideration, are not appealable in that an order denying reconsideration is not subject to review on appeal. See Valentine v. Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990). Furthermore, the cross-appeal taken from the order dated June 24,1992, which denied the doctors’ motion for summary judgment, is interlocutory and therefore not properly on appeal before this Court. See Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990). Thus, the issues raised by the doctors on cross-appeal are quashed because they are improper appeals from interlocutory orders.

Accordingly, we conclude that the private and public factors do not weigh strongly in favor of the motion to dismiss on the basis of forum non conveniens and that the trial court did not fully consider all the facts on the record, specifically whether an alternative forum existed, before dismissing the Goodmans’ complaint. Therefore, we hold that the trial court abused its discretion when it granted the motion to dismiss. As to the issues raised on cross-appeal, we conclude that they are not appealable. For the foregoing reasons, we quash the doctors’ cross-appeals, reverse the trial court’s March 13, 1995 order and remand for further proceedings consistent with this opinion.

Order reversed; cross-appeals quashed; case remanded for trial. Jurisdiction relinquished.

BECK, J., concurs in the result.

      . This nerve enervates the muscles of the foot, ankle, and toes.

      . The Goodmans refused to sign the stipulation. We note that only the doctors are required to sign said stipulation because it restricts only their rights.

      . The Goodmans’ case is not time barred by the Pennsylvania statute of limitations. Ms. Goodman, while still an unemancipated minor, discovered the alleged negligence in June, 1985, and commenced this action in May, 1988, within the time period allowed under the Pennsylvania Statute of Limitations. See 42 Pa.C.S.A. § 5533(b). Section 5533(b), specifically provides that if an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the statute of limitations is tolled during the period of minority and permits the individual to commence the action within two (2) years after attaining the age of eighteen. 42 Pa.C.S.A. § 5533(b). In contrast, the Delaware Statute of Limitations states that a claim for personal injury arising out of medical malpractice shall be brought within two (2) years from the date upon which the injury occurred, unless the event of the personal injury could not be discovered within two (2) years, then the individual may bring the action prior to the expiration of three (3) years from the date upon which the injury occurred. 18 Del. C. § 6856(1). Further, the Delaware Statute of Limitations provides that a minor under the age of six shall commence the action within three (3) years from the date upon which the injury occurred or has until the minor’s sixth birthday in which to bring the action. 18 Del. C. § 6856(2).

      . We note that Pa.R.App.P. 311(b)(2) is not applicable because the trial court’s order dismissing the Goodmans’ complaint for forum non conveniens was not a determination on the merits.


author: CERCONE, President Judge Emeritus: DEL SOLE, Judge,

text:
    682 A.2d 370
    Cynthia LONG and Deborah Long, Appellants, v. Diane MANZO v. Margaret HAWKINS.
    Superior Court of Pennsylvania.
    Argued March 5, 1996.
    Filed Aug. 29, 1996.

      Lewis A. Walder, Langhorne, for appellants.
    Jennifer A. Lawley, Philadelphia, for Diane Manzo, appellee.
    John J. Hart, Doylestown, for Margaret Hawkins, appellee.
    Before DEL SOLE and JOHNSON, JJ., and CERCONE, President Judge Emeritus.
   CERCONE, President Judge Emeritus:

In this appeal, Cynthia and Deborah Long, appellants, challenge the grant of a compulsory non-suit in favor of appellees. We affirm.

The trial court has provided us with a concise summary of the applicable facts:

On July 24, 1986, Plaintiff Cynthia Long, then thirteen years old, was left at home with her eleven year old sister while their mother was at work. As was the custom that summer, the two girls walked to a nearby playground to meet their friends. At the playground the girls met up with several children including additional Defendant Margaret Hawkins, who was the sixteen year old baby-sitter for Defendant Diane Manzo’s three children. Plaintiff Long returned to the Manzo home with Ms. Hawkins and the Manzo children.
In the back of the Manzo residence was an above-ground pool. Over the course of the summer, Plaintiff had gone swimming in the pool anywhere from one to five times and she knew that the pool’s water level was only to her waist. Despite several different warning signs indicating that diving was prohibited, Plaintiff accepted a dare to dive into the pool. Plaintiff misjudged the depth of her dive and hit her head on the bottom of the pool sustaining serious injuries to her neck.

Trial Court Opinion dated October 10,1995 at 1-2.

Appellants initiated the underlying negligence action against appellee Manzo by filing a complaint on July 27, 1987. Diane Manzo then filed a complaint to join Margaret Hawkins as an additional defendant. A jury trial began on March 30, 1995. On the second day of trial and at the close of appellants’ case, appellees successfully moved for a compulsory nonsuit. The trial court agreed with appellees’ characterization of Cynthia Long as a trespasser and concluded that appellants had failed to establish that appellees’ had breached any duty owed to trespassers. After the trial court denied appellants’ ensuing Motion for Post-Trial Relief, appellants filed this appeal.

A judgment of nonsuit is properly entered only if the factfinder, viewing all the evidence and all reasonable inferences from the evidence in the light most favorable to the plaintiff, could not reasonably conclude that the elements of a cause of action have been established. American States Insurance Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 187, 628 A.2d 880, 889 (1993). Moreover, the facts must be so clear that reasonable persons could not differ about the finality of their evidentiary significance. Zito v. Merit Outlet Stores, 436 Pa.Super. 213, 216, 647 A.2d 573, 574 (1994); Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987), appeal denied, 517 Pa. 607, 536 A.2d 1331 (1987) (noting that a trial court must allow an issue to go to the jury unless it is so clear that reasonable minds could not possibly differ over its resolution).

According to appellants, the trial court should have allowed the jury to adjudicate Cynthia Long’s status as trespasser or licensee. Based on the evidence of record, which we need not here relate, we agree that the classification of Cynthia Long as either a trespasser or a licensee should have been resolved by the jury. Nevertheless, we recognize that Cynthia failed to present sufficient evidence to raise a jury question as to appellees’ liability to her regardless of her status as trespasser or licensee. Absent that evidence, Cynthia could not establish the elements of a negligence cause of action. Consequently, we find that the trial court properly granted appellees’ motion for compulsory nonsuit.

Were the jury to deem Cynthia a licensee, then the landowners would be subject to liability for physical harm caused to her by a condition on their land if:

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

Restatement (Second) of Torts, § 342 (adopted in Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970)). Each of those three elements must be satisfied before a possessor of land will be subject to liability. Himes v. New Enterprise Stone & Lime Company, 399 Pa.Super. 301, 307, 582 A.2d 353, 356 (1990), appeal denied, 527 Pa. 618, 590 A.2d 758 (1991) and 527 Pa. 617, 590 A.2d 758 (1991). Satisfaction of the third element, that is whether the licensee knew or had reason to know of the condition and its attendant risks, is usually a question of fact for the jury. Himes, 399 Pa.Super. at 310, 582 A.2d at 358. This question may be decided by the court, however, if reasonable minds could not differ. Id.

In Himes, a panel of this court was presented with an appeal from an order granting summary judgment in favor of the landowners. Those landowners owned a bridge that provided the only access from the main road to the residence of the six year old appellee, Jeremy Moyer. A schoolmate of Jeremy’s threw a roll of tape into the creek beneath the bridge. Jeremy walked to the bridge owners’ home to advise them of the incident. Although one of the owners warned Jeremy not to attempt to retrieve the tape until the older children arrived home from school, Jeremy returned to the bridge to search. While standing near the edge of the bridge and looking into the water, he lost his balance and fell into the creek. Id. at 305, 582 A.2d at 355.

During his deposition, Jeremy conceded that he was aware that the bridge lacked guardrails and that the lack of guardrails posed a danger. He also testified that he had traversed the bridge many times without assistance and had been specifically warned that it was possible to fall off the bridge. Regardless, he peered over the side of the bridge and lost his balance. Id. at 309, 582 A.2d at 357. After considering those facts, the Himes court concluded that Jeremy had failed to satisfy the criteria enumerated in subsection (c) of Section 342 of the Restatement (Second) of Torts. In demonstrating Jeremy’s appreciation of the condition of the bridge and the risk involved in encountering it, this court relied on Jeremy’s own deposition testimony. Id.

Similarly, in this case, Cynthia demonstrated through her testimony, as well as her conduct, that she understood or had reason to understand the risks involved in diving head first into a shallow swimming pool. At trial, Cynthia acknowledged that she had been swimming since she was about four years old. Two years before the accident, she joined and frequented a swim club. At the time of the accident, Cynthia was three days shy of her fourteenth birthday. She was preparing to enter the eighth grade at the end of the summer. N.T. 3/30/95 at 4, 6; N.T. 3/31/95 at 62-64. During that summer, Cynthia swam in the Manzo pool on about four or five occasions. Accordingly, she knew that the water was four feet deep and only reached her waist. N.T. 3/30/95 at 84-85. Although Cynthia noticed several “no diving” signs posted around the pool, she denies understanding the consequences of diving into a shallow pool. Instead, she claims that Mrs. Manzo posted those “no diving” signs to prevent the children from splashing water out of the pool:

Q. You thought these signs saying no diving meant no diving because we don’t want the water splashed out of the pool?
A. I guess. It is hard to say, that was over nine years ago.

Id. at 75. The babysitter confirmed that Mrs. Manzo opposed diving “[bjecause you always had to fill the water back up.” N.T. 3/31/95 at 7. On that basis, appellants conjecture that the question of whether Cynthia appreciated the risks associated with diving into the four foot pool must be debated by a jury. We cannot agree.

Despite her protestations to the contrary, Cynthia revealed through statements, including those that we have already recounted, that she understood the risks of diving head first into a shallow pool. To further illustrate, we shall highlight the circumstances of this accident. Specifically, Cynthia admitted diving head first over a raft and into the shallow pool in response to a dare from one of the other children. N.T. 3/30/95 at 21. She defined a dare as “[wjhen somebody asks you to do something that is [dangerous].” Id. at 65. Moreover, Cynthia conceded that “[p]eople don’t dare you to do safe things.” Id. at 65.

During trial, Cynthia admitted that in 1986, she normally executed a “skim” dive when she thought the water was too shallow to accommodate a deep dive. N.T. 3/30/95 at 69. Likewise, in her deposition, she acknowledged that she normally did a “skim dive” as opposed to a deep dive when plunging into water of about four feet. Deposition of Cynthia Long 10/5/89 at 55. When asked if she was aware in 1986 that she should not dive into a shallow pool, Cynthia answered, “[s]ort of.” Id. at 46.

Furthermore, Cynthia conceded that on the day of the accident, she noticed a pool-side sign that depicted a figure diving head first into a pool and striking its head on the bottom of that pool. N.T. 3/30/96 at 91-92. The word “danger” was written above the figure and the phrase “no diving” was written below. When asked what the word danger meant to her in the summer of 1986, Cynthia responded, “[b]e careful.” Deposition of Cynthia Long 10/5/89 at 64.

Consequently, through her testimony, Cynthia conveyed her cognizance of the risks associated with diving head-first into a shallow pool. Because Cynthia knew or had reason to know of those risks, appellees will not be held liable for physical harm caused to her in her capacity as a licensee. As no issue of fact remains to be decided by a jury, the motion for nonsuit was properly granted.

Similarly, because Cynthia failed to present sufficient evidence to raise a question as to whether appellees breached any duty owed to trespassing children, the appellees in this case would not be subject to liability if the jury deemed Cynthia Long to be a trespasser. Section 339 of the Restatement (Second) of Torts outlines the duty owed by possessors of land to trespassing children:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Restatement (Second) of Torts, § 399 (adopted in Jesko v. Turk, 421 Pa. 434, 219 A.2d 591 (1966)). The burden of satisfying each of the above requirements rests with the trespassing child. Scarborough by Scarborough v. Lewis, 359 Pa.Super. 57, 75, 518 A.2d 568, 572-73 (1986), appeal denied, 518 Pa. 650, 544 A.2d 961 (1988) and 518 Pa. 651, 544 A.2d 962 (1988). Again, liability may only be imposed when all of the requirements of that section are present. Jesko, 421 Pa. at 437, 219 A.2d at 592. Appellants in this case have failed to present sufficient evidence to support the criteria listed in subsection (c). Although questions regarding a child’s appreciation of danger should ordinarily be resolved by the jury, those questions may be decided by the court as a matter of law when the decision is clear and obvious. Bethay v. Philadelphia Housing Authority, 271 Pa.Super. 366, 375-76, 413 A.2d 710, 714-15 (1979).

A landowner’s duty “does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them.” Prokop v. Becker, 345 Pa. 607, 611, 29 A.2d 23, 25 (1942) (the thirteen year old plaintiff frequented a landing field about once or twice a week and saw many planes fly over the runway and land just beyond him; because the risk of being struck by a landing plane while riding a bicycle on that runway was obvious, the plaintiff failed to satisfy subsection (c) of section 339 of the Restatement). Generally, because ponds, pools, lakes, streams and other waters embody perils that are deemed to be obvious to children of the tenderest years, no liability attaches to a possessor of a pond. Cooper v. City of Reading, 392 Pa. 452, 463, 140 A.2d 792, 797 (1958) (quoting Murdock v. Pennsylvania Railroad Company, 150 Pa.Super. 156, 169, 27 A.2d 405, 410 (1942)). “Under certain circumstances, however, a body of water may present such an unusual danger that its maintenance without proper safeguards involves an unreasonable risk to trespassing children.” Cooper, 392 Pa. at 463, 140 A.2d at 797. For example, the pool of water in Cooper looked like an oversized puddle but actually had a sixteen-foot deep “step-off’ at its center. Id. Because the pool was deceptively shallow at its edges, it created an unreasonable risk of harm to unsuspecting child trespassers. Id.

In this case, however, we are not presented with unusual circumstances. As stated, Cynthia was aware that the pool was only four feet deep and was able to see the bottom of the pool. Nevertheless, she chose to dive head first into the shallow water in response to a dare. The Comment to subsection (c) of the Restatement specifically exempts a landowner from liability for injuries to a child who appreciates the danger but chooses to encounter it through recklessness or bravado:

The purpose of the duty is to protect children from dangers which they do not appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known and appreciated danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved, but none the less [sic] chooses to encounter it out of recklessness or bravado.

Carter by Carter v. United States Steel, 390 Pa.Super. 265, 288, 568 A.2d 646, 657 (1990), appeal denied, 526 Pa. 626, 584 A.2d 310 (1990), reversed in part on other grounds, 529 Pa. 409, 604 A.2d 1010 (1992), cert. denied, 506 U.S. 864, 113 S.Ct. 186, 121 L.Ed.2d 130 (1992) (quoting Restatement (Second) of Torts, § 339, Comment to subsection (c) (emphasis omitted)).

In Carter, a panel of this court likewise considered whether a possessor of land could be held liable to a child trespasser who was injured after accepting a dare. Id., 390 Pa.Super. 265, 568 A.2d 646. United States Steel (USX) maintained and partially operated a plant. Over a six month period, Andrew Carter, a fourteen year-old, frequently trespassed with his friends. Although USX no longer manufactured steel at the plant, the generating plant remained in operation. Electricity passed through high voltage wires, which were suspended on steel towers. One tower was accessible and could be ascended with a ladder. On one evening, Andrew’s friend dared him to climb the ladder to reach the tower. During his climb, Andrew touched one of the high voltage wires and was shocked and severely injured. Id. at 270-71, 568 A.2d at 648-49.

The Carter court considered whether Andrew was aware that climbing the tower involved the risk of electrocution, and not merely the risk of falling. Andrew testified that he believed the electricity had been shut off because the plant appeared to be abandoned. He and his friend had climbed other structures without incident. The wires did not emit a “buzzing” sound, which would have indicated the presence of electric voltage. Further, neither boy saw signs warning of dangerous conditions on the tower. A panel of this court found that the foregoing evidence was sufficient to raise a question for the jury as to whether Andrew fully appreciated the risk of electrocution. Id. at 279, 568 A.2d at 646.

As in Carter, the appellant in this case, Cynthia Long, acted in response to a dare. Through his own testimony, Andrew Carter explained why he did not believe that the risk of electrocution was present. Despite her claims to the contrary, Cynthia conveyed through both deposition and trial testimony that she did appreciate the risks associated with diving into a shallow pool. As a result, Cynthia failed to present sufficient evidence to raise a question for the jury as to whether she, because of her youth, did not realize the risk involved in diving into the shallow pool. Because appellants were therefore unable to satisfy each of the prerequisites to a possessor of land’s liability for injuries to a trespassing child, the trial court properly granted appellees’ motion for compulsory nonsuit.

Order affirmed.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

While I agree with the Majority’s conclusion that the question of whether Cynthia Long was either a trespasser or licensee should have been resolved by the jury, I would also hold that the ultimate issue should have gone to the jury, as well. From my reading of the record there was sufficient evidence to allow this entire case to proceed to a jury. I conclude that such a result in appropriate in light of the standard of review for a grant of a compulsory non-suit. In such instances, we must view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable factual inferences and resolving any evidentiary conflicts in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley Park, 509 Pa. 553, 506 A.2d 862 (1986). A compulsory nonsuit will be upheld only where it is inconceivable under the governing principles of law, after viewing the evidence in a light most favorable to plaintiff, that an issue can be resolved in plaintiff’s favor. Stevens v. Commonwealth, Department of Transportation, 89 Pa.Cmwlth. 309, 492 A.2d 490 (1985).

In this case, although Cynthia admitted she had some swimming experience, she knew the depth of the pool and was advised not to dive into the pool, she also stated that she was advised against diving, not because it was dangerous in the four foot pool, but rather because Ms. Manzo was concerned about water loss from the pool. Cynthia testified she thought the “no diving” signs were posted because the home owner did not want water to be splashed out of the pool. The babysitter corroborated this testimony and stated, although Ms. Manzo allowed her children to jump or dive into the pool, she didn’t like it. When asked why she “didn’t like people jumping or diving into the pool” the babysitter responded: “Because you always had to fill the water back up.” N.T. 3/31/95 at 7. In support of Appellants’ position that Cynthia did not know the danger of diving, is Cynthia’s testimony that she didn’t consider a dive into four feet of water to be dangerous. She testified: “I guess because like when you dive in like real cushiony, real soft, like pillows, you know, catches you, so I guess I never thought it was dangerous.” N.T. 3/30/95 at 90.

Given the testimony offered by Appellants I would conclude that the question of whether Cynthia appreciated the risks associated with diving into the four foot pool must be debated by a jury. While the jury may refuse to accept her testimony, there is evidence in the record to suggest that Cynthia did not know the danger in diving. The critical matter to be determined is whether Cynthia knew of the risk involved at the time she dove into the pool. While, as the trial court noted, she may have understood she was not suppose to dive, she may not have associated diving with any danger, but rather with the home owner’s desire to prevent water loss from the pool.

In Mucowski v. Clark, 404 Pa.Super. 197, 590 A.2d 348 (1991) the court considered a similar fact pattern in an action against a retail vendor. Therein a 21 year old senior engineering student dove head first into a four foot pool from a railing which was built three and one-half feet high around the pool. The student, who knew the depth of the pool before diving, struck his head on the bottom of the pool sustaining serious injury. The seller contended that the student voluntarily assumed the risk of his dive. We stated:

In the instant case, there is an issue of fact concerning the plaintiff-appellant’s knowledge and understanding of the risk of diving into four (4) feet of water from the railing around the pool. The evidence is clearly adequate to permit a finding that appellant, a senior engineering student who was familiar with the pool and the depth of the water therein, was cognizant of the risk and voluntarily chose to encounter it. On the other hand, appellant has himself denied an understanding of the risk which he encountered by diving head first into the pool’s shallow water. A jury, to be sure, may find his testimony incredible, but it is nevertheless sufficient to prevent the court from finding as a matter of law that he subjectively understood the risk and voluntarily chose to encounter it. We conclude, therefore, that a summary judgment could not be entered summarily for appellee-vendor on grounds that the plaintiff-appellant had voluntarily assumed the risk of striking his head on the bottom when he dived into the pool.

Id. at 202, 590 A.2d at 348.

We then affirmed the grant of summary judgment for other reasons, concluding that the absence of warnings could not be changed to the seller since it did not know and could not anticipate the changes made by the homeowner in adding the railing. Thus, the pool was not defective when sold because it did not warn of the risks of diving from a railing erected by the purchaser.

Although the Mucowski case differs because the court was considering recovery against a seller and the doctrine of assumption of the risk, its rationale is applicable here. Where there is testimony which, if believed by the jury, supports the position that a party did not understand the risks associated with a dive, or did not have reason to understand such risks, the matter must go to the jury.

In Baran v. Pagnotti Enterprises, Inc. 402 Pa.Super. 298, 586 A.2d 978 (1991), this court considered Section 342 of the Restatement in a wrongful death and survival action brought against a property owner after the plaintiffs son was killed when his vehicle fell into a 150-200 feet deep strip mining pit. We reversed the trial court’s grant of a nonsuit and refused to accept its conclusion that the pit was an obvious danger. We ruled that the question of whether the condition was known or discoverable by the decedent, relieving the property owner of any duty to warn, was a factual question for the jury to resolve. The court wrote: “It is elementary to our system of jurisprudence that a jury should decide factual questions. We refuse to usurp this basic function of the jury.” Id. at 307, 586 A.2d at 982.

I would conclude that the questions presented in this case are likewise appropriate for a jury to consider and decide. In my view it was an error for the trial court to take the matter out of its hands. Accordingly, I would reverse the grant of the nonsuit, and remand this matter for trial.