author: BECK, Judge:

text:
    651 A.2d 1139
    Robert L. MOYER, Administrator of the Estate of Michelle M. Moyer, Deceased v. Herbert C. RUBRIGHT, M.D., Mei-Pu Lin, M.D., Walter R. Bohnenblust, M.D., Frank C. Yartz, M.D., Latif Awad, M.D., Pottsville Hospital and Warne Clinic and Geisinger Medical Center Appeal of Robert L. MOYER.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed Dec. 30, 1994.

      Edward F. Silva, Philadelphia, for appellant.
    David J. Selingo, Wilkes-Barre, for Herbert C. Rubright, M.D., appellee.
    Michael M. Badowski, Harrisburg, for Mei-Pu Lin, M.D., appellee.
    John Henry Reed, Danville, for Geisinger Medical Center, appellee.

      Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge:

The issue is whether this wrongful death and survival action is barred by the statute of limitations. The trial court held that the claims were time-barred and granted summary judgment dismissing them. We affirm dismissal of the survival claim but reverse dismissal of the wrongful death claim.

Plaintiff-appellant Robert L. Moyer filed this suit for survival on behalf of the estate of his wife, Michelle M. Moyer, and for wrongful death on his own behalf. The complaint asserted claims against defendants-appellees Herbert C. Rubright, M.D., Mei-Pu Lin, M.D., Walter R. Bohnenblust, M.D., Frank C. Yartz, M.D., Latif Awad, M.D., Pottsville Hospital and Warne Clinic, and Geisinger Medical Center for their alleged failure properly to diagnose Michelle Moyer’s breast cancer.

The cause of action for wrongful death provides:

(a) General Rule. — An action may be brought ... to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.

42 Pa.C.S. § 8301(a).

The survival statute is located at 42 Pa.C.S. § 8302, and provides that “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or the defendant, or the death of one or more joint plaintiffs or defendants.”

Mrs. Moyer’s breast cancer was diagnosed in September 1986. Deposition testimony indicates that, in August 1987, Mrs. Moyer stated to her husband that she was dying, and that she believed “she shouldn’t be dying.” Mr. and Mrs. Moyer at that time discussed filing a lawsuit. R. 262a-266a. Mrs. Moyer died on November 7, 1987. This lawsuit was filed on November 6, 1989.

Appellees filed motions for summary judgment, asserting that both the wrongful death and survival actions had expired prior to the filing of the lawsuit. Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b). In passing upon a motion for summary judgment we must examine the record in a light most favorable to the non-moving party and must resolve any doubt against the moving party. Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991). A summary judgment properly may be entered in favor of a defendant where plaintiffs cause of action is barred by the statute of limitations. Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982).

The statute of limitations applicable to both wrongful death and survival actions appears at 42 Pa.C.S. § 5524(2) and provides that “[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another” must be commenced within two years. The two year period begins to run “from the time the cause of action accrued ...” 42 Pa.C.S. § 5502(a).

The analysis of when the cause of action accrued, for purposes of deciding whether the statute of limitations has run, is different for wrongful death and survival actions. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987); Ingenito v. AC & S, Inc., 430 Pa.Super. 129, 633 A.2d 1172 (1993) (en banc); Baumgart v. Keene Bldg. Prods. Corp., 430 Pa.Super. 162, 633 A.2d 1189 (1993) (en banc), appeal granted, 537 Pa. 657, 644 A.2d 1195 (1994). This difference stems from the distinct injuries the two causes of action are designed to redress. We summarized the different bases for wrongful death and survival actions in Frey v. Pennsylvania Elec. Co., 414 Pa.Super. 535, 607 A.2d 796 (1992):

An action for survival damages is unlike the action for wrongful death ... Under the survival statute, survival damages are essentially those for pain and suffering between the time of injury and death. The survival action has its genesis in the decedent’s injury, not his death. The recovery of damages stems from the rights of action possessed by the decedent at the time of death....
In contrast, wrongful death is not the deceased’s cause of action. An action for wrongful death may be brought only by specified relatives of the decedent to recover damages in their own behalf, and not as beneficiaries of the estate. Wrongful death damages are implemented to compensate the spouse, children, or parents of the deceased for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime ... This action is designed only to deal with the economic effect of the decedent’s death upon these specified family members.

414 Pa.Super. at 539-40, 607 A.2d at 798 (citations omitted).

SURVIVAL ACTION

For the action known as a “survival action” the statute of limitations, as a general rule, begins to run on the date of injury, as though the decedent were bringing his or her own lawsuit. Baumgart, 430 Pa.Super. at 169, 633 A.2d at 1192.

“[A] party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed period ... Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding [does] not toll the running of the statute of limitations ... Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.” Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). This general rule ... has application to a “survival action”....
The “discovery rule” is an exception to the general rule. It “arises from the inability of the injured [person], despite the exercise of due diligence, to know of the injury or its cause.”

Baumgart, supra (citing Pocono Int’l Raceway, Inc., supra).

As we stated in Ingénito, supra, the discovery rule tolls the statute of limitations where a plaintiff does not “know that he has a cause of action, or that he has suffered an injury due to another party’s wrongful conduct.” 430 Pa.Super. at 134, 633 A.2d at 1174-75. However, once a plaintiff “ ‘possesses the salient facts concerning the occurrence of [the] injury and who or what caused it, [the plaintiff] has the ability to investigate and pursue [the] claim.’ ” Id. (quoting Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985)). ' In a survival action, the discovery rule

causes the statute of limitations to commence to run on the date when the victim ascertained, or in the exercise of due diligence should have ascertained, the fact of a cause of action. In no case, however, can that date be later than the date of death; hence, the statute runs, at the latest, from death.

Pastierik v. Duquesne Light, 514 Pa. at 524, 526 A.2d at 327.

In this case, Mrs. Moyer’s cancer was diagnosed in September 1986. Under the due diligence standard, by that time she had reason to suspect she was injured and that previous health care providers had missed an earlier cancer diagnosis. Therefore, the statute of limitations began to run in September 1986. The survival action was not filed until November 1989, three years and two months after the statute of limitations began to run. Consequently, it is time barred by the two-year statute of limitations. We affirm the grant of summary judgment in the survival action.

WRONGFUL DEATH ACTION

In wrongful death actions, the statute of limitations begins to run “when a pecuniary loss is sustained by the beneficiaries of the person whose death has been caused by the tort of another.” Baumgart, 430 Pa.Super. at 172, 633 A.2d at 1194 (citing Pastierik v. Duquesne Light, supra). The rule is that an action for wrongful death must be brought no later than two years after the date of death. Pastierik, supra. The discovery rule can have no application to extend the time for filing a wrongful death action beyond the date of death:

Because death is not an event that is indefinite as to the time of its occurrence, and because survivors are immediately put on notice that they may proceed to determine the cause of death, there is no basis to regard the cause of action for death as accruing at any time other than at death.

Pastierik, supra 514 Pa. at 522, 526 A.2d at 326. Mrs. Moyer died on November 7, 1987 and this wrongful death action was filed within two years on November 6, 1989. Under the two-year statute of limitations, this action appears to be timely.

Our analysis of the wrongful death action does not end here, however. The rule also provides that if at the time of death, the underlying negligence action would have been time-barred as to Mrs. Moyer, then the wrongful death cause of action is time barred as to her relatives. Baumgart, supra 430 Pa.Super. 172, 633 A.2d 1194. Mr. Moyer’s wrongful death action is derivative of the original tortious act which would have supported his wife’s own cause of action. Ingenito v. AC & S, supra at 136, 633 A.2d at 1176. See also Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663 (1936).

We examine whether at the time of her death Mrs. Moyer still had a viable tort action. Ingenito, supra; Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613 (1932). We conclude that she did. On the date of her death in November 1987, Mrs. Moyer’s potential medical malpractice action was not time-barred. Under the discovery rule the statute ran from the date of diagnosis of breast cancer in September 1986. Mrs. Moyer died fourteen months later in November 1987, with her cause of action still viable.

Since Mrs. Moyer’s cause of action was viable at the time of her death and Mr. Moyer’s wrongful death action was brought within two years of his wife’s death, Mr. Moyer’s suit was timely. Baumgart, supra 430 Pa.Super. 172, 633 A.2d 1194.

Under the wrongful death statute the rationale for the two-years-from-death rule is the fact that the husband’s injury is the death of his wife. Why then is a suit brought within two years of her death not timely regardless of whether the decedent’s cause of action was viable at the time of her death? The answer is that the wrongful death suit is derivative of the wife’s injury and dependent upon her own cause of action being viable at the time of her death. To measure the statute of limitations from the time of death without reference to the original tort ignores the basis for the derivative tort action, the wife’s injury. Also, a suit without reference to wife’s injury might be too remote. For example, the alleged malpractice could have occurred five or ten years before the death without the wife’s filing a timely legal action. The law should not permit her relatives to resurrect a time-barred cause of action which is dependent on and derivative of the original tort.

CONCLUSION

In summary, the survival action is barred by the statute of limitations because recovery was personal to the decedent to compensate her (her estate) for the pain and suffering the alleged malpractice caused her. Since the survival suit was brought more than two years after the accrual of the underlying negligence action, the statute of limitations bars recovery. In contrast, the wrongful death action is not barred by the statute of limitations because Mr. Moyer’s loss occurred at his wife’s death. The wrongful death action was brought within two years of death, and the original tort action still was viable at the time of death.

Summary judgment on the survival action is affirmed; summary judgment on the wrongful death action is reversed, and the matter is remanded to the trial court for further proceedings. Jurisdiction relinquished.

      . Appellant alleged the following additional facts. Michelle Moyer first detected a lump in her right breast on October 7, 1985, and immediately went to see her obstetrician/gynecologist, appellee Dr. Rubright. Dr. Rubright ordered a mammogram, which was performed by appellee Dr. Bohnenblust on October 15, 1985 at appellee Pottsville Hospital and Warne Clinic. Dr. Rubright allegedly informed Mrs. Moyer that the mammogram results were normal. Late in 1985, Mrs. Moyer became pregnant and came under the care of appellee Dr. Lin. During the course of her pregnancy, Mrs. Moyer noticed that the breast lump had increased in size, and she apparently brought this to Dr. Lin’s attention. Dr. Lin told her that there was nothing that could be done while she was pregnant.
      Mrs. Moyer went into premature labor on July 17, 1986, and was admitted to appellee Geisinger Medical Center, under the care of ■appellee Dr. Awad, who failed to diagnose cancer. On August 14, 1986, Mrs. Moyer went into actual labor and gave birth to a baby girl at Geisinger under the care of appellee Dr. Yartz. After her discharge, Mrs. Moyer underwent a mammogram and biopsy. Infiltrating ductal carcinoma of the right breast was diagnosed in September 1986. A right radical mastectomy was performed on February 7, 1987, and was followed by series of radiation and chemotherapy. Mrs. Moyer died of metastatic breast cancer nine months later. Appellant's Brief at 4-5.

      . In this case, the injury is not the cancer itself, but the late cancer diagnosis, which makes treatment less effective and a cure less probable.

      . Appellees argue that the wrongful death action is time-barred because the survival action is time-barred; they assert that these two separate causes of action are derivative of one another. Appellees’ argument is incorrect. Both actions are derivative of the original tort, and certainly are related in that way. But the statutes are distinct in scope and purpose, and the statute of limitations applies to them differently, as we have noted. See Baumgart, supra at 172 n. 3, 633 A.2d at 1194 n. 3.


source: Caselaw Access Project

author: PER CURIAM: OLSZEWSKI, Judge,

license: Public Domain

text:
    651 A.2d 1143
    COMMONWEALTH of Pennsylvania, Appellant, v. John EMS, Appellee.
    Superior Court of Pennsylvania.
    Submitted Nov. 29, 1994.
    Filed Jan. 20, 1995.

      Lindsay N. Scott, Asst. Dist. Atty., Doylestown, for Com., appellant. ■
    David J. Sowerbutts, Bristol, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   PER CURIAM:

Order Affirmed.

OLSZEWSKI, Judge,

dissenting.

After he was arrested on June 5, 1993 for driving under the influence, appellee John Ems applied to the District Attorney of Bucks County for admission into a program for Accelerated Rehabilitative Disposition (ARD). The District Attorney’s office advised Ems that he would not be approved for ARD because his driver’s license had expired over two months before the date of his arrest.

Ems then filed a Motion to Compel Admission to ARD with the court of common pleas, arguing that the District Attorney’s office had abused its discretion in refusing to recommend him for ARD. After a hearing, the court granted Ems’s motion and ordered the District Attorney to approve Ems’s petition for inclusion into the ARD program. The Commonwealth appealed, and the majority affirms.

We respectfully dissent. The case law unambiguously dictates that a defendant may not move his own admission to ARD, and unless and until the Commonwealth moves to accept an individual for ARD, a court is without authority to entertain a motion to compel acceptance. Commonwealth v. Lutz, 508 Pa. 297, 312, 495 A.2d 928, 936 (1985); Commonwealth v. Paul, 383 Pa.Super. 486, 494, 557 A.2d 357, 361 (1989), alloc. denied, 525 Pa. 633, 578 A.2d 927 (1990). Therefore, we would hold that the question of whether the District Attorney abused his discretion in this instance is not properly before us.

In affirming the trial court’s ruling, the majority holds that the Commonwealth waived its objection to the trial court’s lack of authority when it failed to question that authority below. We cannot agree with the proposition that a lower court may assume an authority which we have expressly denied it, merely because a party fails to object. Id.; cf., e.g., Commonwealth v. Ziegler, 251 Pa.Super. 147, 150, 380 A.2d 420, 422 (1977) (“Since a question of subject-matter jurisdiction goes to the very power of the court to act, it may be raised at any time during the proceedings, and may not be waived by consent or otherwise.” (emphasis supplied)).

We would also reject the idea that the trial court could have interpreted Ems’s Motion to Compel Admission as an effective request for a writ of mandamus, and that the court could properly have entertained the motion on that ground. Mandamus is an extraordinary remedy, to be used only where there exists a clear legal right in the plaintiff. E.g., Commonwealth v. Blystone, 421 Pa.Super. 167, 177, 617 A.2d 778, 783 (1992). Admission to an ARD program, however, is not a matter of right, but rather a privilege. Lutz, 508 Pa. at 306, 495 A.2d at 933. Moreover, while mandamus may be used to compel an official to exercise her discretion, it may not be used to compel her to do so in a certain manner or to arrive at a certain decision. See Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 18-22, 493 A.2d 1351, 1355-56 (1985); Taylor v. Abernathy, 422 Pa. 629, 638, 222 A.2d 863, 868 (1966). But see Lutz, 508 Pa. at 314, 495 A.2d at 937 (C.J. Nix, concurring and dissenting).

We would hold that once a district attorney has openly specified her reasons for refusing to admit a defendant to ARD, a court may review those reasons only in the context of a constitutional challenge on equal protection or due process grounds. See Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986); Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986), alloc. denied, 515 Pa. 605, 529 A.2d 1080 (1987); Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991). Moreover, we would find this claim to have been waived, as an appellate court may not raise constitutional issues sua sponte. See Commonwealth v. Berryman, 437 Pa.Super. 258, -, 649 A.2d 961, 973 (1994).

If the constitutional question were properly before us, we note that precedent exists which then would allow us to compel admission to ARD, if the Commonwealth had indicated, that “but for” the impermissible reason it would have considered the defendant for ARD. Commonwealth v. Melnyk, 378 Pa.Super. 42, 548 A.2d 266 (1988); alloc. denied, 522 Pa. 594, 562 A.2d 319 (1989). Even if the constitutional claim were not waived, however, the record before us contains no such indication by the Commonwealth.

Unless the legislature sees fit to amend our statutes, or our Supreme Court chooses to rewrite the Rules of Criminal Procedure, our power over a district attorney in this matter of her discretion (and hence the scope of the remedy available in this Court) can extend only so far as to force that officer to adhere to the law of this Commonwealth. We may compel the district attorney to openly state the reasons for her decision, and require those reasons to be rationally related to the purposes of individual rehabilitation or societal protection. See Commonwealth v. Ebert, 369 Pa.Super. 318, 322, 535 A.2d 178, 180 (1987). We may reject her reasons as arbitrary or legally impermissible, and require that officer to act within the bounds of the law or be held in contempt. The decision to accept or refuse an application to ARD, however, must remain hers, and we have no authority to perform that action in her place. Respectfully, we dissent.


author: BROSKY, Judge. KELLY, Judge, CAVANAUGH, Judge,

text:
    652 A.2d 317
    COMMONWEALTH of Pennsylvania, Appellant v. Thomas C. GORDON.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1994.
    Filed Dec. 27, 1994.

      Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for the Com., appellant.
    Michael Dennehy, Danville, for appellee.

      Before CAVANAUGH, KELLY and BROSKY, JJ.
   BROSKY, Judge.

These appeals are from orders of the trial court which granted appellee’s motion in limine and denied appellant-Commonwealth’s motion for allowance of evidence. The sole issue presented for our review is whether the trial court erred in refusing to allow the Commonwealth to introduce evidence at appellee’s trial relating to criminal acts he perpetrated on other victims. In addition, appellee has filed a motion to quash the appeals. For the reasons set forth below, we deny the motion to quash and reverse the orders entered by the trial court.

Before addressing the Commonwealth’s allegation of error, it is necessary to recount the relevant facts of this case. In 1991, appellee, Thomas Gordon, Esq. was employed in the Montour County Public Defender’s Office on a part-time basis. In early October of that year, appellee met with his client, the female victim, at her residence to discuss her eligibility for representation by the public defender and matters pertaining to her defense. Appellee allegedly arrived earlier than the designated appointment time and was admitted to the victim’s home. Although appellee initially sat on the opposite end of the sofa in the living room, the victim indicated that he soon moved closer to her and began fondling her hair and the back of her neck. Appellee then allegedly placed his hand on the victim’s right breast as he reached for an application which she had completed. The victim stood up and went to the kitchen to escape appellee’s attentions. When the victim emerged from the kitchen, appellee was again seated on the sofa. No further contact between the victim and appellee occurred at this time due to the fortuitous arrival of the victim’s boyfriend.

On October 23, 1991, the victim again met with appellee regarding her case; this meeting took place in the courtroom of the Montour County Courthouse. While reviewing paperwork at the counsel table, appellee allegedly positioned himself behind the victim and began rubbing his penis against her buttocks and leg. The victim moved away from appellee but he continued to follow her and repeat his behavior until another person entered the courtroom. Because appellee was representing the victim, she did not disclose these incidents at the time they occurred. However, in June of 1993, appellee was charged with committing indecent assault as a result of these incidents.

A preliminary hearing was held following which the district justice bound appellee over for trial based on the incident at the victim’s home. Although the magistrate initially dismissed the offenses arising out of the courtroom incident, these charges were refiled by the Commonwealth. All of the offenses were later consolidated for trial.

Appellee subsequently filed an omnibus pre-trial motion in which he sought, inter alia, to preclude the Commonwealth from referring to or otherwise introducing evidence relating to three similar incidents which had occurred in Columbia County. On December 29, 1993, the trial court issued an order granting appellee’s motion in limine. Despite granting appellee’s request, the trial court indicated that it would accept an offer at trial by the Commonwealth regarding the evidence of the three Columbia County incidents, at which time the court would consider whether the evidence fell within the common plan exception and whether the probative value of the testimony would outweigh any prejudicial impact to the defendant.

When trial was scheduled to begin on February 8, 1994, the Commonwealth filed a motion requesting admission of the Columbia County incidents in accordance with the December 29th order. The trial court denied the Commonwealth’s request and this order was duly entered upon the docket on February 9, 1994. The Commonwealth thereafter filed appeals from both of the trial court’s orders. Appellee subsequently filed a motion to quash the appeals. Disposition of the motion was deferred, and the parties were directed to address this matter at oral argument. Hence, this motion is now properly before us for resolution.

In the brief filed in support of his motion to quash, appellee suggests that the appeal from the December 29 order is untimely. Appellee further contends that the Commonwealth should not be permitted to appeal because it failed to follow the procedures set forth in Pa.R.A.P., Rule 301(e), 42 Pa. C.S.A. After reviewing appellee’s arguments and the pertinent rules, we disagree with appellee and conclude that the appeal is timely.

Rule 903(a) of the Pennsylvania Appellate Rules of Procedure provides that “[e]xcept as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. (emphasis added). See also 42 Pa.C.S.A. § 5571(b) (an appeal from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order). The appellate rules further define the manner for determining the date of entry of an order as follows:

Except as otherwise prescribed in this rule, in computing any period of time under these rules involving the date of entry of an order by a court ..., the day of entry shall be the day the clerk of the court ... mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk ... makes such copies public. The day of entry of an order may be the day of its adoption by court ..., or any subsequent day, as required by the actual circumstances.

Pa.R.A.P., Rule 108(a)(1), 42 Pa.C.S.A. As instructed by this rule, we must accordingly determine whether the clerk of court was required by law to deliver or mail copies of the order to the parties. We must necessarily direct our attention to the Rules of Criminal Procedure to answer this question, as the instant matter is a criminal rather than civil action. With respect to this issue, Rule 9024 provides:

Upon receipt of an order from a judge, the clerk of court shall immediately docket the order and record in the docket the date it was made. The clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof.

Pa.R.Crim.P., Rule 9024, 42 Pa.C.S.A.

Review of the certified docketing statement submitted to this court reveals that the clerk of courts did not enter the December 29th order on the docket and duly notify counsel and appellee until February 8, 1994. Accordingly, the day of entry of the trial court’s December 29th order is technically February 8, 1994. Because the Commonwealth filed its appeal from this order on February 10, 1994, well within the 30 day period computed from the day of entry, the appeal from this order is timely.

A contrary result is not mandated by this court’s decision in Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979), as argued by appellee. At the time Dorman was decided in 1979, the Rules of Criminal Procedure did not require the clerk of courts to note in the docket the day of entry of the order and the day on which notice thereof was sent to the parties. See Commonwealth v. Dorman, 272 Pa.Super. at 154 n. 6, 414 A.2d at 716 n. 6. Since Dorman was decided the Supreme Court has promulgated Rule 9024 which, as we previously noted, imposes the notation/notification requirement. See Rule 9024, supra. Because the Rules of Criminal Procedure currently provide the courts as well as the parties with a clear method of determining when an order was entered, mailed, delivered or made public, the other alternative set forth in Rule 108(a), i.e., the date on which the order was adopted by the court or any subsequent day required by the actual circumstances, need no longer be utilized to ascertain the day of entry of an order. Instead, the appellate courts now recognize that the entry date of an order is the day on which it is formally entered on the docket. See, e.g., Commonwealth v. Cavanaugh, 500 Pa. 313, 315, 456 A.2d 145, 146 (1983); Commonwealth v. Bartley, 395 Pa.Super. 137, 141, 576 A.2d 1082, 1083 (1990).

The appeal also is not rendered untimely based on the Commonwealth’s failure to follow the procedure outlined in Pa.R.A.P., Rule 301(e), 42 Pa.C.S.A. This rule provides:

Where the exigency of the case is such as to impel an immediate appeal and the party intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to • the usual procedures, the party may file in the lower court and serve a praecipe for entry of an adverse order, which action shall constitute entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action shall not be affected by this subdivision.

Pa.R.A.P., Rule 301(e), 42 Pa.C.S.A. This provision was inapplicable here.

There is no indication that this case involved an exigency which impelled an immediate appeal, because the trial court had granted appellant the right to seek admission of the evidence at trial, notwithstanding the language contained in the trial court’s initial order. See Transcript of Hearing on Omnibus Pre-trial Motions, 12/29/93 at 39. Appellant was therefore justified in delaying further action until the time of trial, at which time the proposed evidence could be presented to the trial court for a determination as to whether it satisfied the requirements for admissibility. Moreover, there is nothing in the record which justifies invocation of Rule 301(e) based on appellant’s inability to secure formal entry of the order pursuant to the usual procedures. Compliance with Rule 301(e) was therefore not required in this instance.

It was likewise unnecessary for appellant to praecipe for entry of the order upon the docket pursuant to Pa.R.A.P., Rule 301(d), 42 Pa.C.S.A. The trial court advised appellant that introduction of the evidence could be sought at trial despite its decision to grant appellee’s motion in limine. Transcript of Hearing on Omnibus Pre-trial Motions, 12/29/93 at 39. The December 29th order thus was not immediately appealable at the time it was issued because it neither terminated nor substantially handicapped the prosecution. See Pa.R.A.P., Rule 311(d), 42 Pa.C.S.A. (providing that the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution). Under these circumstances, appellant was not required to praecipe for entry of the December 29th order within thirty days after its issuance because the order was unappealable at that time.

We also note that appellee does not refer us to any precedent, nor are we aware of any such authority, which directs that a party must praecipe for entry of an interlocutory or final order upon the docket. The rules instead only require a party to take such action in the event appellate review is sought. In the absence of any statute or rule compelling a party to praecipe for entry of an order upon the docket, we decline to impose such a requirement here.

We must next consider the propriety of the appeal from the February 8th order, as appellee’s motion to quash raises this issue. Appellant initiated the appeal from this order on February 10, 1994, and therefore, this appeal was timely filed. Notwithstanding this fact, appellee intimates that this appeal should be quashed. Appellee’s argument is premised upon his characterization of the Commonwealth’s motion to allow the evidence as a motion for reconsideration of the December 29th order. Appellee thus believes that because no action was taken within 30 days after issuance of the December 29th order, the Commonwealth’s subsequent motion to allow the evidence and the denial thereof were somehow rendered improper and unappealable.

We question whether the Commonwealth’s motion for allowance of the evidence can be treated as a motion for reconsideration. Even were we to regard it as such, we nevertheless find no indication that the Commonwealth was precluded from seeking such relief. As previously discussed, the order of December 29th was an interlocutory order which was unappealable as of right pursuant to Pa.R.A.P., Rule 311(d), 42 Pa.G.S.A. The Commonwealth thus did not lose its right to seek reconsideration of the December 29th order more than 30 days after it had been issued. See Commonwealth v. McMillan, 376 Pa.Super. 25, 34, 545 A.2d 301, 305 (1988), affirmed, 523 Pa. 426, 567 A.2d 1043 (1990) (42 Pa.C.S.A. § 5505, which prohibits modification or rescission of any order within 30 days after its entry, does not apply to interlocutory orders; prior to entry of the judgment of sentence, the thirty day limit in § 5505 does not apply to reconsideration of interlocutory orders). The Commonwealth’s motion was therefore correctly before the trial court for consideration and disposition.

Having determined that both of these appeals are proper, we deny appellee’s motion to quash and accordingly proceed to address the issue raised by the Commonwealth. The appeals will be considered together since the issue raised by the Commonwealth pertains equally to both. Appellant challenges the trial court’s decision precluding references to or introduction of evidence regarding the Columbia County indecent assaults. We recognize that the admissibility of evidence is a matter vested in the sound discretion of the trial court, and that an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Seiders, 531 Pa. 592, 596, 614 A.2d 689, 691 (1992); Commonwealth v. Smith, 431 Pa.Super. 91, 96, 635 A.2d 1086, 1089 (1993). We will evaluate the trial court’s decision in accordance with this precept.

Appellant argues that the evidence fell within the common scheme, plan or design exception to the general rule which prohibits admission of other crimes or wrongs committed by the accused.

A determination of whether evidence is admissible under the common plan exception must be made on a case by case basis in accordance with the unique facts and circumstances of each case. However, we recognize that in each case, the trial court is bound to follow the same controlling, albeit general, principles of law. When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator.

Commonwealth v. Smith, 431 Pa.Super. at 96, 635 A.2d at 1089 (quoting Commonwealth v. Frank, 395 Pa.Super. 412, 421-422, 577 A.2d 609, 614, allocatur denied, 526 Pa. 629, 584 A.2d 312 (1990)).

Comparison of the conduct giving rise to the offenses in this case and the conduct in the Columbia County proceeding discloses the following similarities: (1) appellee strategically placed his female victims in a standing position for the ostensible purpose of reviewing court-related documents or matters; (2) while the victims were thus occupied and focused on the materials, appellee positioned himself behind the women and began rubbing his penis against their buttocks/thighs/legs; (3) despite their efforts to move away from appellee, appellee continued his conduct and followed the women about the table or desk until the victims were either able to sit down or leave, or a third-party interrupted; (4) the conduct occurred during the course of an attorney-client relationship with the victims, at a time when the victims were emotionally vulnerable and dependent upon appellee for advice and assistance with their legal problems; (5) the incidents occurred while the women were alone with appellee; (6) the victims were fearful of resisting or advising anyone of this behavior because they did not want to jeopardize either their own case or appellee’s representation of their husband or boyfriend and (7) the offenses here occurred less than one year before the Columbia County incidents.

The above factors are not confined to insignificant details that would likely be common elements regardless of who committed the crimes. Instead, the implementation of the crimes was so similar as to constitute appellee’s signature. All the incidents arose out of appellee’s exploitation of his attorney-client relationship with the victims. Moreover, appellee was able to strategically position himself and his victims so that he was able to engage in this particular sexual behavior for his own gratification. The conduct perpetrated on the victims, i.e., appellee rubbing his penis against the victims’ buttocks/thighs/legs was also identical in each instance. Further, the chance that there are two attorneys in the Montour-Columbia County area perpetrating this particular type of sexual abuse is miniscule. The offenses were additionally committed within one year. We therefore conclude that there is a logical connection between the Columbia County crimes and those at issue here so as to permit the evidence to be introduced under the common plan exception.

We must next determine whether the probative value of the evidence outweighs its prejudicial impact on appellant. Commonwealth v. Seiders, 531 Pa. at 596, 614 A.2d at 691; Commonwealth v. Smith, 431 Pa.Super. at 97, 635 A.2d at 1089; Commonwealth v. Frank, 395 Pa.Super. at 421-422, 577 A.2d at 614. In conducting this analysis, the potential prejudicial impact of the evidence must be balanced against such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth’s need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence in their deliberations. Commonwealth v. Smith and Commonwealth v. Frank, supra.

As previously discussed, there were sufficient similarities between the instant offenses and the Columbia County incidents to warrant admission pursuant to the common plan exception. Moreover, the Commonwealth has demonstrated a need for the evidence, since appellee will undoubtedly assail the victim’s credibility through the use of the victim’s prior criminal history, her failure to make a prompt complaint regarding the conduct or her apparent acquiescence in the acts by failing to resist at the time they occurred. Appellee might further attempt to show that the victim was mistaken regarding the nature of the acts. As in all cases where evidence of prior crimes/bad acts is admitted, undue prejudice to the defendant can be eliminated by adequate and proper jury instructions regarding the limited purpose for which the evidence can be considered.

In concluding that the Columbia County crimes did not fall within the common plan exception, the trial court placed undue emphasis upon the location of the offenses and did not adequately consider the pertinent similarities between the Columbia county offenses and the crimes charged here. The trial court further did not discuss any of the relevant factors in assessing the Commonwealth’s need for the evidence. Under these circumstances, the trial court abused its discretion by neglecting to apply the correct standard in determining that the evidence was inadmissible under the common plan exception and that the prejudicial impact outweighed the probative value of the evidence. We accordingly reverse the trial court’s decision precluding the Commonwealth from introducing evidence of the Columbia County incidents.

Orders reversed. Motion to quash denied.

KELLY, J., files a concurring statement.

CAVANAUGH, J., files a dissenting opinion.

KELLY, Judge,

concurring:

I join Judge Brosky’s well reasoned memorandum admitting the evidence regarding appellee’s, Thomas C. Gordon’s, other crimes or wrongs under the common scheme, plan, or design exception to the rule which generally prohibits the admission of such evidence. The Commonwealth’s appeal is properly before this Court. Our Supreme Court has held that the Commonwealth may directly appeal adverse orders from motions in limine which exclude evidence when the Commonwealth certifies that the exclusion terminates or substantially handicaps its prosecution because such orders “are final in the same way as suppression orders.... ” Commonwealth v. Cohen, 529 Pa. 552, 559, 605 A.2d 1212, 1216 (1992). See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). I write separately, however, to express my concern about the issues raised by Judge Cavanaugh in his enlightening dissent.

Currently, the Commonwealth possesses the potential to abuse the pre-trial motions process. I believe that Justice Cappy, in Commonwealth v. Cohen, supra 529 Pa. 552, 605 A.2d 1212, aptly explained the inherent problems in allowing the Commonwealth to directly appeal adverse orders from motions in limine. By concluding that the Commonwealth should not possess the absolute right to directly appeal adverse motion in limine rulings, Justice Cappy, in my opinion, correctly distinguished between orders which grant or deny motions in limine and those which suppress evidence. See Commonwealth v. Cohen, supra, 529 Pa. at 566-69, 605 A.2d at 1219-21 (Cappy, J., concurring). Thus, I respectfully request our Supreme Court to revisit this issue.

CAVANAUGH, Judge,

dissenting:

While I appreciate the majority’s careful and prudent consideration of this important issue, I am constrained to disagree since the present appeal represents a deviation from bedrock principles of appellate review which, if followed in other cases, could dramatically engender improper pre-trial appellate consideration of problematic evidentiary issues anticipated to arise at trial by the Commonwealth. Therefore, I must respectfully dissent.

Initially, I recognize that the majority is facially correct in finding both appeals are properly before this Court. The case Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992), grants the Commonwealth a pre-trial right of appeal from rulings in limine which it certifies has the effect of terminating or substantially handicapping its prosecution. Id. at 557, 605 A.2d at 1215. I differ, however, with the majority’s analysis stating that the Commonwealth’s motion was correctly before the trial court for consideration and disposition. I believe that the majority’s analysis allows the Commonwealth, by filing pre-trial a motion concerning the appellee’s Columbia County convictions, to obtain a ruling by this Court which should otherwise not be available. I find the case sub judice represents an abuse of the Cohen doctrine in that the Commonwealth did not comply with the trial court’s December 29 ruling.

In Commonwealth v. Pikur Enterprises, 142 Pa.Commw. 114, 596 A.2d 1253 (1991), the Commonwealth Court set forth the proper definition of an in limine motion as:

An in limine motion is a motion or petition submitted to the court in a pending matter either pretrial or during trial whereby exclusion is sought of anticipated prejudicial evidence, keeping extraneous issues out of the underlying proceeding, precluding reference to prejudicial matters, or preventing encumbering the record with immaterial matter. A trial court may or may not in its discretion, entertain such in limine motions and the denial thereof cannot in and of itself constitute reversible error since those matters seeking to be precluded have not been presented to the factfinder and may never reach the factfinder.

Id. at 127, 596 A.2d at 1259 (emphasis added).

In the case sub judice, the defendanf/appellee successfully obtained the in limine order precluding evidence of his Columbia County convictions from being introduced at the pending Montour County trial. Presiding Judge Greevy, in his December 29 disposition of appellee’s motion in limine, correctly opined that “if the Prosecution can show common scheme, plan, or design, or motive, the Court will receive an offer at trial, and determine whether the probative value of such testimony outweighs the prejudicial impact ...” (emphasis added).

I believe the Commonwealth disregarded the court’s ruling and did not follow proper in limine practice. Instead of waiting to make an offer of proof at trial, as instructed by the court, the Commonwealth, seeking to introduce appellee’s Columbia County convictions, presented the court with a pretrial motion styled as a Motion for Allowance of Testimony. When the court refused to reverse its earlier December 29 ruling, the Commonwealth took the present appeal. I believe that the proper in limine practice would have been for the Commonwealth to make an offer of proof at trial and achieve a ruling in that setting. Further, the Pikur case, supra, set forth correctly that denial of an in limine motion is not appealable where the issue may be re-presented to the fact finder at trial.

The danger in this situation for this Court to act upon an in limine motion is that we have no way of understanding the full evidentiary impact of the proposed evidence. At trial, however, contestants can present such evidence in its totality with other relevant factual evidence. The hazards for this Court to rule upon an in limine motion are particularly acute in the present case. We are forced to speculate and to rule upon whether the scheme, plan or design for bizarre sexual conduct which occurred in Columbia County is similar to the sexual conduct that allegedly occurred in Montour County. I would therefore hold that the Cohen doctrine, supra, does not extend to in limine rulings on the admissibility of evidence where the Commonwealth, (appropriately) is given the opportunity to re-present the issue at trial.

The net result is that I would quash the appeal of these two orders. The first because it is not a final order, i.e. the order by its terms permitted reconsideration at trial. I would further quash the second because there is no provision in our law for the Commonwealth to seek a pre-trial order for the admission of testimony in order to create an appeal issue if denied.

For the foregoing reasons, I believe this present appeal should be quashed.

      . 18 Pa.C.S.A. § 3126(a).

      . Appellee maintained a practice in both Montour and Columbia counties. The incidents in Columbia County were perpetrated on three females within a year after those allegedly performed on the victim in this case. Two of these women had a marital or romantic relationship with men who were clients of appellee; the third victim sought appellee’s advice with respect to her impending divorce. Appellee was convicted of three counts of indecent assault regarding the Columbia County victims in August, 1993.

      . For reasons which do not appear of record, this order was not entered on the docket until February 8, 1994. Although this order was filed on February 8th, we will refer to this order as the December 29th order for clarity and ease of discussion.

      . This order will be referred to as the February 8th order.

      . The appeal from the December 29th order is docketed at No. 00468 Philadelphia 1994; the appeal from the February 8th order is docketed at No. 0469 Philadelphia 1994. The appeals were subsequently consolidated for review.

      . The rule was amended in March 22, 1993. The 1993 amendment deleted the phrase "Except as may be provided by local rules” from the rule. The 1993 amendment is applicable in this instance since it governs those cases in which the determination of guilt occurs on or after January 1, 1994 and the orders were entered after this date. The rule was later renumbered Rule 9025 and the comment was revised in June 2, 1994, effective September 1, 1994. The renumbering and the revised comment are inapplicable since the instant orders were entered prior to the effective date thereof.

      . In any event, Dorman does not support appellee’s position. The Dorman court held that the date of entry was the day on which the judgment of sentence was entered on the lower court's docket. Id., 272 Pa.Super. at 156, 414 A.2d at 717. We have reached an analogous conclusion here.

      . This court has jurisdiction to entertain these appeals pursuant to Pa.R.A.P., Rule 311(d), 42 Pa.C.S.A., since the Commonwealth has certified in good faith that the orders appealed from substantially handicap the prosecution. Although appellee disputes the Commonwealth's assessment of the effect of the orders, our Supreme Court has explicitly held that the Commonwealth’s certification is not contestable. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). The rule accords the Commonwealth an absolute right of appeal and this court may not make inquiry as to whether the suppression order does indeed substantially handicap the prosecution. Id., 506 Pa. at 546-547, 486 A.2d at 386-387. See also Commonwealth v. Luddy, 532 Pa. 623, 627, 617 A.2d 315, 317 (1992) (following Dugger and recognizing that the Commonwealth has the right to appellate review of an adverse suppression ruling which terminates or substantially handicaps the prosecution). Moreover, the Supreme Court has held that the Commonwealth may appeal from adverse pretrial orders, such as a motion in limine, in the same manner as it may appeal adverse suppression orders. Commonwealth v. Cohen, 529 Pa. 552, 564-565, 605 A.2d 1212, 1218 (1992). While we acknowledge the concerns raised by our colleagues, our Supreme Court’s decision controls our disposition, as we perceive no relevant distinction between this case and the Supreme Court’s decision in Cohen. See, e.g., Commonwealth v. Warrick, 415 Pa.Super. 385, 392 n. 4, 609 A.2d 576, 580 n. 4 (1992), allocatur denied, 534 Pa. 639, 626 A.2d 1157 (1993) (as an intermediate appellate court, the Superior Court is bound by the decisions of the Pennsylvania Supreme Court; absent a legally relevant distinction between a previous decision by the Pennsylvania Supreme Court and a case before the Superior Court, we are obliged to follow the mandate of the prior Supreme Court ruling); Commonwealth v. Smith, 404 Pa.Super. 553, 559, 591 A.2d 730, 733 (1991), reversed on other grounds, 532 Pa. 177, 615 A.2d 321 (1992) (as an intermediate appellate court, we are not empowered to expand existing legal doctrines or enunicate new precepts of law).
      We further note that the instant case does not appear to fall within the scenario described by the dissent in Cohen, where it was posited that the Commonwealth will improperly utilize the motion in limine process as an evidentiary testing device. Commonwealth v. Cohen, 529 Pa. at 568-569, 605 A.2d at 1220-1221 (Dissenting Opinion by Cappy, J.). This case involves a situation in which it was the defendant, rather than the Commonwealth, who filed the motion in limine. Confronted with the lower court’s unfavorable ruling, the Commonwealth thus had the option of either taking an immediate appeal or risk proceeding to trial without all of its evidence. If the latter course was chosen, appellate review of the adverse ruling would have been foreclosed in the event of appellee’s acquittal. The Commonwealth likewise could not postpone its decision to renew its evidentiary request during trial, since appeal from an unfavorable ruling would not have been permitted. Commonwealth v. Cohen, 529 Pa. at 557, 605 A.2d at 1215 (once a juiy is sworn, jeopardy attaches and the Commonwealth will not be permitted to appeal an adverse evidentiary ruling during the trial).

      . Events during trial may cause the evidence to fall within one or more of the other exceptions. Because trial has not yet occurred, we express no opinion regarding the admissibility of the evidence pursuant to any other exception.

      . Compare Commonwealth v. Rush, 538 Pa. 104,-, 646 A.2d 557, 561 (1994) (evidence admissible pursuant to common, plan where: the defendant lived in the same building as his victims and gained access to their apartments by ringing the doorbell; both female victims were African-American, relatively young and were attacked in their bedrooms while alone; both victims were repeatedly stabbed and had their undergarments removed; and in each instance the defendant ransacked the victims’ apartments, took only valuables therefrom, cleaned the knives used in the stabbings but left the knives at the scenes); Commonwealth v. Hawkins, 534 Pa. 123, 129-130, 626 A.2d 550, 553-555 (1993) (prior murder conviction was inadmissible under common plan exception where the murders were accomplished by different methods of strangulation, different weapons were used to inflict wounds on the victims, and one of the killings indicated that it was intentional whereas the other suggested that the death was accidental); Commonwealth v. Seiders, 531 Pa. at 596, 614 A.2d at 691 (prior convictions involving indecent assault with two sisters, ages 6 and 7, did not fall within common scheme exception where there was sparse testimony regarding prior offenses and proof of the prior crimes did not naturally tend to prove the one for which the defendant was then being tried); Commonwealth v. Newman, 528 Pa. 393, 400, 598 A.2d 275, 278-279 (1991) (common design exception was satisfied where both crimes occurred in the X-ray department of a hospital at night, both victims were females suffering from head injuries, and the incidents began with the defendant kissing and hugging the victims and fondling their breasts before raping them); Commonwealth v. Hughes, 521 Pa. 423, 459-460, 555 A.2d 1264, 1282-1283 (1989) (evidence of another crime fell within common plan exception where both offenses were committed during the day on young females who were members of a racial minority and who knew the defendant; the offenses were implemented in a similar manner in that the defendant took the victims to an upstairs bedroom of a vacant building, asked them to undress, raped them and perpetrated other sexual acts before manually strangling them); Commonwealth v. Smith, 431 Pa.Super. at 98-99, 635 A.2d at 1090 (evidence of other crimes fell within common plan exception where the defendant sexually molested his daughters from the time they were young children until they reached their teenage years; the defendant's conduct established a repeated pattern of sexual abuse); Commonwealth v. Frank, 395 Pa.Super. at 425-428, 577 A.2d at 616-617 (evidence of other crimes fell within common plan exception where the incidents arose out of the defendant-therapist counseling the victims during a time in their adolescence when they were experiencing emotional, psychological or behavioral difficulties; the victims were always alone when they met with the defendant; the crimes began .with the victims seated on the defendant's lap, and after several counseling sessions, the nature of the sexual acts progressed; and the victims did not report the incidents because they were dependent upon the defendant's assistance).

      . The situs of the crimes is but one factor to be evaluated and may be entitled to greater or lesser weight depending upon the particular facts of the case. In this instance, the location of the offenses appears to have been relatively unimportant in that appellee perpetrated the assaults wherever and whenever he was able to be alone with his victims in his professional capacity. However, the nature of the acts performed and the method of implementing the crimes discloses the previously discussed similarities. When viewed as a whole, the striking similarities between the offenses outweigh the differences in location.

      . We express no opinion regarding the admissibility of appellee’s convictions for the Columbia County crimes, although such evidence may be admissible for impeachment purposes provided that the necessary requisites have been met. See generally, L. Packel & A. Poulin, Pennsylvania Evidence, § 609-§ 609.1 (1987) (discussing the use and admissibility of a defendant’s convictions for impeachment).

      . I note that in Cohen, the proffered evidence for the pending trial related to the existence of a child and applicability of the collateral estoppel doctrine. On appeal to our Supreme Court, both disputed evidence issues in Cohen were resolved using existing records and basic principles of law. In the case at bar, a proper decision requires the trial court during trial to hear all the relevant evidence and for contestants to make detailed offers of proof in the trial setting.

      . Our sister states have also noted that a denial of an in limine motion is not appealable since the evidentiary issue may be re-presented to the fact finder at trial. Cf. State v. Hill, 37 Ohio App.3d 72, 523 N.E.2d 894, 898 (1987), where the court stated:
      A grant of a motion in limine does not determine the admissibility of the evidence under consideration, but instead suspends questions about the subject until the court can determine under the circumstances whether the evidence would be admissible. The grant is interlocutory, malleable in the discretion of the trial court.

        Id. (emphasis added). See Boyd v. State, Ind., 494 N.E.2d 284, 303 (1986), where the court defined an in limine order as:
      a temporary order to suspend or prevent the imposition of a subject into evidence without first having the court review the proposed subject outside the presence of the jury. If the court had granted the motions in limine when asked for, it would have delayed a ruling on the subject until the occasion arose for the offering of such evidence. The granting of a motion in limine does not conclusively rule that that evidence will not be permitted.

        Id. (emphasis added). See also Braden v. Hendricks, Okl., 695 P.2d 1343, 1348 (1985), where the court stated:
      If the evidence is excluded by an in limine ruling, the party seeking to introduce it must at trial — out of the hearing of the jury — make an offer to show for the record the essence of testimony sought to be elicited. In this manner the trial court is afforded an opportunity to make its in-trial ruling upon the issue in contention.

        Id. (emphasis added).


author: WIEAND, Judge:

text:
    652 A.2d 327
    WORKINGMEN’S SAVINGS AND LOAN ASSOCIATION OF DELLWOOD CORPORATION v. Robert W. KESTNER and Jean C. Kestner, His Wife and all Other Occupants Appeal of Robert W. KESTNER and Jean C. Kestner, His Wife.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1994.
    Filed Dec. 21, 1994.

      John P. Yukevich, Jr., Pittsburgh, for appellants.
    Louis P. Vitti, Pittsburgh, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In cross actions to determine rights of ownership and possession to improved real estate sold at sheriffs sale, the trial court entered judgment on the pleadings in favor of the purchaser and against the former owners. After careful review, we affirm.

Robert W. Kestner and Jean Kestner, husband and wife, were the owners of and resided at premises 539 Glen Mitchell Road, Osborne, Allegheny County. In 1990, they borrowed the sum of forty-four thousand, one hundred fifty ($44,150) dollars from Dellwood Corporation (Dellwood) and gave as security therefor a mortgage on their real estate. The mortgage was thereafter assigned to Workingmen’s Savings and Loan Association of Dellwood Corporation (Workingmen’s). When the Kestners defaulted in making repayment of the loan, Workingmen’s was able to obtain judgment in an action to foreclose the mortgage. After the real estate had been scheduled for sheriffs sale on December 7,1992, the Kestners, on December 4, 1992, filed a joint petition in bankruptcy. This, of course, resulted in the issuance by the bankruptcy court of an automatic stay of the sheriffs sale.

On December 7, 1992, the sheriffs sale of the real estate was continued publicly until March 1, 1993, in accordance with Pa.R.C.P. 3129.3(b). On February 3, 1993, the bankruptcy court granted relief from the automatic stay; and, on March 1, 1993, the mortgaged premises were sold by the Sheriff of Allegheny County to Workingmen’s. Thereafter, a sheriffs deed for the premises was duly executed, delivered and recorded to the purchaser. The prior owner-mortgagors, however, refused to surrender possession of the premises; and, therefore, Workingmen’s commenced an action in ejectment to recover possession. The Kestners, in turn, filed a cross action to quiet title to the same premises. In this action the Kestners contended that the sheriffs sale had been null and void and the sheriffs deed ineffective to pass title to the purchaser. The trial court entered judgment on the pleadings in favor of Workingmen’s in the ejectment action and dismissed the Kestner’s cross action to quiet title.

The proper procedure to contest a sheriffs sale is by petition, before delivery of the sheriffs deed, under Pa.R.C.P. 3132. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). After delivery of a sheriffs deed to a purchaser, the only attacks possible on the sheriffs sale are those based on fraud which vitiates the transaction or a lack of authority to make the sale. Concord-Liberty Savings and Loan Association v. NTC Properties, Inc., 454 Pa. 472, 476, 312 A.2d 4, 5-6 (1973); Garrison v. Erb, 424 Pa. 306, 309, 227 A.2d 848, 849 (1967); Kowatch v. Home Building and Loan Association of Latrobe, 131 Pa.Super. 517, 522, 200 A. 111, 113 (1938).

In the instant case, appellants’ attack on the sheriffs sale came too late. Appellants argue, however, that the sheriffs sale was in violation of the automatic stay issued by the bankruptcy court. More specifically, they contend, the automatic stay prevented the scheduled sheriffs sale of December 7, 1992, from being continued publicly to a date certain under Pa.R.C.P. 3129.3(b). According to their contention, the automatic stay wiped away the sheriffs execution, and any later execution had to begin anew. Therefore, they would have us conclude, there was an absence of proper notice of the sheriffs sale on March 1, 1993; and this rendered the sale null and void. We reject this argument.

Under the prevailing view, postponing a foreclosure sale is not violative of the automatic stay provisions. Zeoli v. RIHT Mortgage Corp., 148 B.R. 698, 700 (D.N.H.1993). Postponement notices which specify a new sale date merely preserve the status quo between creditor and debtor. Matter of Roach, 660 F.2d 1316, 1318-1319 (9th Cir.1981); Zeoli v. RIHT Mortgage Corp., supra at 702; BAM Investments, Inc. v. Roberts, 172 Ariz. 602, 838 P.2d 1363, 1365 (App.1992). See also: In re Tome, 113 B.R. 626, 630-632 (C.D.Cal.1990). We agree that this is a correct view and, therefore, adopt it. Such a view is entirely consistent with the protection intended by the automatic stay provisions of 11 U.S.C. § 362 and the rule of Pa.R.C.P. 3129.3(b).

Because the sheriffs sale was properly held on due notice, appellants were not improperly denied an opportunity to cure their default. The opportunity to cure their default was lost by the Kestners’ failure to tender the amount necessary to reinstate the mortgage and not because of any defect in the foreclosure proceedings.

A judgment on the pleadings is proper where there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471 (1992). Here, it is clear that a trial would be a fruitless exercise. It was proper, therefore, for the trial court to enter judgment on the pleadings. Kelly v. Nationwide Ins. Co., supra; Matthew-Landis Co. v. Housing Authority of County of Chester, 240 Pa.Super. 541, 543, 361 A.2d 742, 743 (1976).

Affirmed.

      . Pa.R.C.P. 3129.3(b) provides as follows:
      (b) If the sale is stayed, continued, postponed or adjourned to a date certain within one hundred days of the scheduled sale, and public announcement thereof, including the new date, is made to the bidders assembled at the time and place originally fixed for the sale, no new notice shall be required, but there may be only one such stay, continuance, postponement or adjournment without new notice.


author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    652 A.2d 329
    Karl ADAMS, Appellant v. US AIR, INC. and N.A. Lanzilotti and Frank Allen, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1994.
    Filed Dec. 20, 1994.

      David B. Washington, Pittsburgh, for appellant.
    John O’Connor, Pittsburgh, for appellees.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In this appeal, Karl Adams, the plaintiff, contends that the trial court erred when it entered summary judgment against him in an action to recover for intentional infliction of emotional distress and interference with contractual relations, based upon Adams’ discharge from employment in the reservations operation for USAir, Inc. (USAir). Named as defendants, in addition to USAir, were Frank Allen, the director of reservations services, and N.A. Lanzilotti, a senior director of reservations offices. Allen had notified Adams of his discharge from employment following an internal investigation and determination that Adams had been violating company policies. Lanzilotti had advised Adams that his grievance had been rejected and confirmed his discharge.

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). See: Pa.R.C.P. 1035(b). An entry of summary judgment is appropriate only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989).

As to Adams’ claim against USAir for intentional infliction of emotional distress, we agree with the trial court that an action at law is barred by the exclusivity clause of the Worker’s Compensation Act. See: Papa v. Franklin Mint Corp., 400 Pa.Super. 358, 583 A.2d 826 (1990). Any emotional distress suffered by Adams was job related. It was not caused by an act of a third person intended to injure him for personal reasons not related to his employment. Even Adams conceded in his depositions that he was not aware of any facts, other than his termination, that would suggest that either Allen or Lanzilotti bore any personal animosity or malice toward him. His discharge was based, rather, on an internal investigation conducted in response to suspicion that Adams was engaging in illegal drug activities on business premises.

For the same reason, it is eminently clear that appellant is unable to show intentional conduct by Allen and Lanzilotti sufficient to subject them individually to liability for infliction of emotional distress. See: Act of Aug. 24, 1963, P.L. 1175, § 1, 77 P.S. § 72. There is not one iota of evidence that Allen or Lanzilotti acted to inflict on appellant an intentional wrong. Instead, they acted, pursuant to the duties of their employment, to investigate appellant’s activities on the employer’s premises and whether they were violative of USAir’s policies. For this there can be no liability against a fellow employee.

Appellant’s claims against Allen and Lanzilotti for interference with Adams’ contractual relations with USAir also are fatally flawed. It is well established that managerial employees acting within the scope of their employment are not third persons for purposes of satisfying the elements required to maintain an action for interference with contractual relations. Nix v. Temple University, 408 Pa.Super. 369, 596 A.2d 1132 (1991); Daniel Adams Assoc. v. Rimbach Pub., 360 Pa.Super. 72, 78-83, 519 A.2d 997 (1987), allocatur denied, 517 Pa. 597, 535 A.2d 1056 (1987). There is no evidence in the record that either Allen or Lanzilotti acted outside the scope of their authority as managers at USAir.

When defendant-appellees made and supported a motion for summary judgment, as provided for by Pa.R.C.P. 1035, plaintiff-appellant was required to “set forth specific facts showing that there [was] a genuine issue for trial.” Marks v. Tasman, supra 527 Pa. at 135, 589 A.2d at 206 (emphasis in original). Adams failed to make such a showing even though the trial court gave him every opportunity to do so.

The summary judgment in favor of defendants is affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur in the well-reasoned majority decision, and write separately only to note that the exclusive remedy defense does not necessarily apply to co-employee defendants. If the acts of the co-employee defendants were “intentional wrongs,” then the Workers’ Compensation remedy is not the exclusive source of relief. 77 P.S. § 72. In order to determine whether the co-employees’ acts were “intentional wrongs,” we ask if the alleged wrong is one that is not normally expected in the workplace. Vosburg v. Connolly, 405 Pa.Super. 121, 130, 591 A.2d 1128, 1133 (1991).

In this case, appellant was fired from his place of work in a completely professional manner. He was first suspended and notified of such suspension. After investigation, he was terminated, but he was allowed several appeals. The co-employee defendants never publicized anything about the termination. In such a case, appellant was not subjected to an unexpected wrong. Compare Vosburg, 405 Pa.Super. at 130, 591 A.2d at 1133 (finding an unexpected, and therefore intentional, wrong when employee suffered physical assault at the hands of a co-employee). Unfortunately, terminations do occur in the workplace, and this one was handled in a professional and competent manner.

Thus, the co-employees’ acts were not “intentional wrongs” within the meaning of Section 205 of the Workers’ Compensation Act, 77 P.S. § 72, and appellant’s exclusive remedy is under the liability provisions of that Act. 77 P.S. § 1, et seq. Since appellant was not entitled to maintain this action at law, summary judgment was properly granted in appellees’ favor.

      . Act of June 2, 1915, P.L. 736, art. Ill, § 303(a), as amended, 77 P.S. § 481(a).