author: HOFFMAN, Judge:

text:
    612 A.2d 485
    Harriet Marie FINK, Appellant, v. DELAWARE VALLEY HMO.
    Superior Court of Pennsylvania.
    Argued May 27, 1992.
    Filed July 13, 1992.

      Mary A. Knight, Philadelphia, for appellant.
    Richard H. Martin, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order granting appellee Delaware Valley HMO’s (DVHMO’s) preliminary objections and dismissing Counts II through XI of appellant Harriet Marie Fink’s complaint. Appellant presents the following issue for our review:

Whether the learned trial judge erred in holding 5 U.S.C. § 8901 et. seq. preempts plaintiffs state common law tort claims?

Appellant’s Brief at 5. For the following reasons, we quash appellant’s appeal as to the dismissal of her counts for interference with contractual relations and punitive damages and affirm as to the remainder of claims.

The instant action arose as a result of appellant’s efforts to find a surgeon to operate on her injured shoulder, and appellee’s unwillingness to approve the surgery under appellant’s medical plan. Appellant filed an eleven-count complaint on December 31,1990 advancing the following causes of action: (1) breach of contract, (2) intentional infliction of emotional distress, (3) negligence, (4) fraudulent misrepresentation, (5) common law deceit, (6) tortious interference with prospective contractual relations, (7) tortious interference with contractual relations, (8) violation of the Unfair Insurance Practices Act, 40 40 P.S. § 1171.5(a)(10), (9) violation of the Unfair Insurance Practices Act: Bad Faith, 42 Pa.C.S.A. § 8371, (10) medical malpractice, and (11) a claim for punitive damages. Thereafter, appellee filed preliminary objections to appellant’s complaint. In its order of September 3, 1991, the trial court sustained the majority of appellee’s preliminary objections and dismissed ten of the eleven counts of the complaint, retaining only appellant’s contract cause of action. This timely appeal followed.

A.

Before considering the merits of appellant’s issues, we must first determine whether the order of the trial court was final and appealable. It is well-settled that only a final order is appealable, unless otherwise provided by statute. Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983) (citations omitted). “In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications---- A final order is generally one which terminates the litigation, disposes of the entire case, or effectively puts the litigant out of court.” Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981) (citations omitted).

“As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory, and not appealable.” Praisner v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d A.2d at 1258. However, this court has recognized that “if the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appeal-able; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable.” Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). Thus, a pivotal factor to consider in determining whether an order is final is whether the order has put the aggrieved plaintiff out of court on all theories of recovery asserted against a given defendant for a given loss. Id. (citing Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987)).

In Cloverleaf Development v. Horizon Financial, 347 Pa.Super. 75, 82, 500 A.2d 163, 167 (1985), this court held that dismissal of a claim for damages allegedly caused by wrongful interference with negotiations with a third party was final and appealable although a claim for breach of contract remained. We further found that a count averring intentional infliction of emotional distress constituted a cause of action separate from breach of contract. Id., 347 Pa.Superior Ct. at 85, 500 A.2d at 168. Accordingly, we find that appellant’s counts raising tortious interference with prospective contractual relations and intentional infliction of emotional distress are separate and distinct from the count for breach of contract.

Similarly, in Hardy v. Pennock Insurance Agency, 365 Pa.Super. 206, 529 A.2d 471 (1987), we held that where a claim of breach of agreement to provide insurance remained, the order was not final insofar as it dismissed a claim for “negligent breach of contract” but was final insofar as it dismissed claims of misrepresentation, fraud, and deceit and claims based on alleged violations of Unfair Insurance Practices Act and/or UTPCPL. See also Drohan v. Sorbus, 401 Pa.Super. 29, 35, 584 A.2d 964, 966 (1990) (the fact that the claims are based upon statutory law indicate that they are separate and distinct from the non-statutory breach of contract claim); Gabriel v. O’Hara, 368 Pa.Super. 383, 388, 534 A.2d 488, 490-91 (1987) (denial of petition to amend complaint to include a claim under Unfair Trade Practices and Consumer Protection Law is appealable order because although claims for fraud and breach of contract remained, plaintiffs would be precluded from seeking recovery of damages and attorney’s fees to which they may be entitled under the UTPCPL). Thus, we find that appellant’s counts for fraudulent misrepresentation, common law deceit, and violation of the Unfair Insurance Practices Act are separate and distinct causes of action.

This court recently addressed the issue of appealability where a separate count for punitive damages was dismissed and the only remaining count asserted breach of contract. In Bash v. Bell Telephone, 411 Pa.Super. 347, 601 A.2d 825 (1992), we determined that a claim for punitive damages was not final and appealable because the contract action remained unresolved. We reasoned that “ ‘where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if appellant is successful in his cause of action of breach of contract does the measure of damages become relevant.’ ” Id., 411 Pa.Superior Ct. at 352-53, 601 A.2d at 828 (citations omitted). Thus, to the extent the order dismissed the claim for punitive damages, it is not appealable.

We must now analyze the counts asserting general negligence, medical malpractice, and tortious interference with contractual relations. . Preliminarily, we note that Count I, the only count that was not dismissed, states a cause of action for breach of contract, asserting that DVHMO failed to perform its obligation under the contract for health benefits by refusing to pay for the cost of appellant’s surgery. As a result, appellant seeks payment of all medical bills, special damages in the amount of $100,000.00 for her bodily harm, wage loss, disfigurement and emotional distress, cost of suit, and other relief deemed just and proper. Count III alleges general negligence on the part of appellee resulting in pain and suffering, mental anguish and other injuries for which appellee seeks an amount in excess of twenty thousand dollars ($20,000.00). The alleged negligence consisted of

(a) failing to provide Harriet Fink full complete information as to correct doctors, hospitals and options for treatment;
(b) refusing and continuing to refuse to pay for plaintiff’s medical bills as listed above;
(c) negligently withholding needed medical services from Harriet Fink;
(d) negligently inflicting severe emotional distress and bodily harm to Harriet Fink, including, but not limited to anxiety, sleeplessness, loss of weight, loss of appetite, headaches, severe depression, nausea, cosmetic deformity and a severe loss of quality of her life;
(e) negligently depriving plaintiff of her right to choose between two medically accepted procedures for the treatment of her separated AC-joint;
(f) permitting its employees, who are not medical doctors, to override the recommendations of four physicians;
(g) negligently processing Harriet Fink’s application for medical benefits;
(h) conspiring to force Harriet Fink to live with a shoulder deformity.

Complaint at 12.

In determining whether appellant’s breach of contract and general negligence claims state separate and distinct causes of action, we note that this court has adopted the following test for determining whether a breach of contract gives rise to an actionable tort:

The test used to determine if there exists a cause of action in tort growing out of a breach of contract is whether there was an improper performance of a contractual obligation (misfeasance) rather than the mere failure to perform (nonfeasance).

Raab v. Keystone Ins. Co., 271 Pa.Super. 185, 187-88, 412 A.2d 638, 639 (1980) (citations omitted).

In the instant matter, we recognize that subsections (a) and (b) of appellant’s negligence count resemble allegations of breach of contract, and that it appears to state an alternate theory of recovery. However, the remainder of the allegations contained the negligence count suggest that appellee’s conduct extended beyond mere nonfeasance and rose to the level of misfeasance. Further, appellant seeks two different measures of damages under the negligence and breach of contract counts. We do not find appellant’s action for general negligence to be encompassed within her claim for breach of contract, and therefore find that they are separate and distinct causes of action.

Similarly, we find that Count X, which asserts a cause of action for medical malpractice, is separate and distinct. In that count, appellant alleged, inter alia, that appellee failed to adequately treat appellant, permitted non-medically licensed employees to override the professional opinion of four doctors, failed to obtain plaintiff’s informed consent, and failed to supervise the medical performance of its doctors, nurses, and staff. Thus, again appellant alleges improper performance which is distinct from a breach of contract.

Finally, Count VII, captioned Tortious Interference with Contractual Relations, alleges that “DVHMO’s employees and/or agents, by providing wrong information to plaintiff Harriet Fink and Drs. Vogin and McPhilemy, and by overriding four medical opinions interfered with plaintiff’s contract with DVHMO so as to cause a breach of Ms. Fink’s contract to receive approved medical services.” Since this statement merely rephrases appellant’s claim for breach of contract, it constitutes an alternative theory of recovery.

In summary, we find that to the extent the order dismissed appellant’s counts raising tortious interference with prospective contractual relations, intentional infliction of emotional distress, fraudulent misrepresentation, common law deceit, violation of the Unfair Insurance Practices Act, general negligence and medical malpractice, it is final and appealable. Insofar as the order dismissed the count raising tortious interference with contractual relations and punitive damages, the order is interlocutory and not appeal-able. We may now turn to the merits of appellant’s appeal.

B.

The relevant facts are as follows. Appellant, an employee of the United States Government, opted to receive medical coverage from DVHMO. DVHMO’s insurance plan is negotiated and approved by the Office of Personnel Management (OPM) pursuant to the Federal Employees Health Benefits Act, 5 U.S.C. § 8901 et seq. (“FEHBA”).

Appellant sought treatment for a separated shoulder. Three out of four orthopedic surgeons she consulted recommended surgery. However, a DVHMO authorized orthopedic surgeon would not approve surgery. Eventually, an orthopedic surgeon not affiliated with DVHMO performed the surgery at appellant’s request. DVHMO refused to authorize payment for the surgery. As a result, appellant instituted a suit alleging injuries and expenses occasioned by the delay in obtaining surgery because of DVHMO’s wrongful conduct.

In preliminary objections, DVHMO alleged that appellant’s state law contract and tort remedies were preempted by the FEHBA, that appellant had failed to exhaust her available administrative remedies under 5 C.F.R. §§ 890.-105-107, that her claims failed to state causes of action, and that Pennsylvania law does not recognize several of her causes of action. After our review of the record, we find that appellant’s tort causes of action are preempted by federal law.

In the instant case, the contract between DVHMO and appellant is comprised of a brochure issued by DVHMO to its subscribers. The brochure states that DVHMO entered into a contract with the Office of Personnel Management (OPM) as authorized by FEHBA, to provide a comprehensive medical plan. On the cover page of the brochure is a statement providing that "[t]his brochure is the official statement of benefits available to [FEHBA] members and is the sole document you should rely upon. Any supplemental literature you may receive should agree in content with the benefits described in this brochure.” Included in that contract is a provision stating that:

Federal law governs claims for relief that relate to benefits under the Plan. Damages recoverable under Federal law. are limited to the amount of contract benefits in dispute, plus simple interest and court costs. Under 5 C.F.R. Section 890.107, such legal actions should be brought against Delaware Valley HMO.

Contract at 14 (emphasis added).

The issue before us concerns the extent to which the above contract provision preempts state law remedies. The section of the FEHBA pertaining to preemption provides:

The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any state of local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions.

5 U.S.C. § 8902(m)(l).

In determining whether a certain state action is preempted by federal law, one must look to the congressional intent underlying the federal law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985) (citations omitted); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). When Congress does not state explicitly the extent to which it intends to preempt state law, “courts sustain a local regulation ‘unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.’ ” Allis-Chalmers Corp., supra (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978)).

“The policy underlying section 8902(m)(l) is to ensure uniformity in the administration of FEHBA benefits.” Hayes v. Prudential Ins. Co. of America, 819 F.2d 921, 925 (9th Cir.1987) (citing H.R.Rep. No. 282, 95th Cong., 1st Sess. 1, 4 (1977)), cert. denied, 484 U.S. 1060, 108 S.Ct. 1014, 98 L.Ed.2d 980 (1988). See Blue Cross & Blue Shield of Fla. v. Dept. of Banking, 613 F.Supp. 188, 192-193 (D.C.Fla. 1985) (discussion of legislative history of the preemption provision of the FEHBA), aff'd, 791 F.2d 1501 (11th Cir. 1986), reh’g denied, 797 F.2d 982 (11th Cir.1986); Hartenstine v. Superior Court, 196 Cal.App.3d 206, 220, 241 Cal.Rptr. 756, 765 (1987) (discussing OPM’s belief that state law claims should be preempted because the imposition of varying state law requirements would undermine the purposes and objectives of the FEHBA), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 234 (1988).

Although an issue of first impression for Pennsylvania courts, the question of the preemptive effect of FEHBA has been addressed by other jurisdictions. For example, in Myers v. U.S., 767 F.2d 1072, 1074 (4th Cir.1985), the Court of Appeals for the Fourth Circuit held that a state law purportedly allowing recovery of attorney’s fees in an action involving a health benefit plan was preempted by the FEHBA because the terms of the health plan contract did not provide for attorney’s fees. Similarly, in Hayes v. Prudential Ins. Co. of America, 819 F.2d 921, 925 (9th Cir.1987), cert. denied, 484 U.S. 1060, 108 S.Ct. 1014, 98 L.Ed.2d 980 (1988), the Court of Appeals for the Ninth Circuit held that state law causes of action for breach of duty of good faith and fair dealing and breach of California Insurance Code section 790.03 were preempted by the FEH-BA. The court rejected the distinction drawn by the plaintiff between a claim relating to the manner in which the defendant processed his benefits and a claim relating to the “nature or extent of coverage of benefits.” The Ninth Circuit reasoned that “tort claims arising out of the manner in which a benefit claim is handled are not separable from the terms of the contract.” Id. at 926 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213-20, 105 S.Ct. 1904, 1912-16, 85 L.Ed.2d 206 (1985)). Further, the court held that “[bjecause the state law claims invariably expand appellees’ obligations under the terms of the Plan, the claims are inconsistent with the Plan and, hence, preempted under § 8902(m)(l).” Id. See also Myers, supra (“a state law which purports to allow recovery of additional benefits not contemplated by a federal insurance contract must be deemed inconsistent.”)

The reasoning employed by Hayes and Myers has been relied upon by the majority of other jurisdictions addressing this issue. See Federal Plaza Medical Associates v. Palermino, (1991 WL 29201 (S.D.N.Y.)) (claim that prepayment review process constituted a breach of duty to deal in good faith preempted by FEHBA because state law affords a remedy beyond that provided by the contract, and thus is inconsistent with the contract); Fuller v. Blue Cross & Blue Shield of Florida, Inc., 677 F.Supp. 1131, 1135 (N.D.Fla.1987) (Florida’s five-year statute of limitations applicable to actions on written contracts preempted by two-year limitations period contained in provider’s contract with OPM to provide government-wide service benefit plan authorized by FEHBA); Nitschke v. Blue Cross of Montana, 231 Mont. 113, 117, 751 P.2d 175, 177 (1988) (federal law does not provide for federal employees’ cause of action in tort for breach of covenant of good faith and fair dealing and claim is thus preempted); Hartenstine v. Superior Court, supra, 196 Cal.App.3d at 221, 241 Cal-Rptr. at 766 (claims for breach of covenant of good faith and fair dealing and violation of Insurance Code provision regarding unfair claims settlement practices seeking compensatory and punitive damages were preempted by FEHBA); Blue Cross & Blue Shield of Fla. v. Dept. of Banking, supra, 613 F.Supp. at 193 (FEHBA preempts Florida’s Disposition of Unclaimed Property Act); LaBelle v. Blue Cross & Blue Shield United of Wisconsin, 548 F.Supp. 251, 253 (W.D.Wis.1982) (Wisconsin’s six-year statute of limitations preempted by contract’s two-year limitation). But see Eidler v. Blue Cross Blue Shield United of Wis., 671 F.Supp. 1213, 1217 (E.D.Wis.1987) (while contractual provisions come into play in evaluation of bad faith tort claim, tort claim is not inconsistent with any specific contractual provision).

Appellant relies on Mooney v. Blue Cross of Western Pennsylvania, 678 F.Supp. 565 (W.D.Pa.1988) for the proposition that FEHBA § 8902 does not preempt state contract and tort claims. In Mooney, the plaintiff sued his insurance providers for breach of contract after they failed to pay claims under his FEHBA policy. The complaint was originally filed in state court but the defendants removed the case to federal district court. The district court, however, relying on the reasoning of the Tenth Circuit Court of Appeals in Howard v. Group Hospital Service, 739 F.2d 1508 (10th Cir.1984), concluded that there was no federal question involved, and remanded the case back to the state court.

The Mooney court also noted its disagreement with Hayes by stating

The plaintiffs state law breach of contract claims are not contradictory to the provisions of FEHBP. There are no provisions in FEHBP which govern the interpretation of the rights of the plan participants; their rights are set forth in their contract with the plan providers.

678 F.Supp. at 567.

We disagree with this statement. The federal law, as set forth in the preemption provision of the FEHBA, indeed governs an insured’s rights in that it provides that the terms of the contract preempt conflicting state law. Thus, appellant’s reliance on Mooney is misplaced for several reasons. First, the court in Mooney was confronted only with the issue of federal question jurisdiction, not preemption. Second, the only cause of action involved in Mooney was breach of contract, not tort. Third, any discussion of preemption was merely dicta. Fourth, the rationale of that decision is inconsistent with that of the majority of jurisdictions.

In summary, we find the following. The legislative intent of the FEHBA was to promote uniform application of health plans for federal employees. Appellant’s claim that there are no contract provisions limiting her right to bring a tort action is unsupported by the language of the contract stating that “[djamages recoverable under federal law are limited to the amount of contract benefits in dispute, plus simple interest and court costs,” i.e., contract damages. Our conclusion that appellant’s state tort law claims are preempted by the FEHBA is supported by the majority of jurisdictions that have addressed this issue. Accordingly, we quash appellant’s appeal as to the dismissal of her counts for interference with contractual relations and punitive damages and affirm as to the remainder of claims.

Quashed in part. Affirmed in part.

      . In her Statement of Questions Involved, appellant also contends that if her common law tort claims are preempted by federal statute, damages under her breach of contract claim should not be limited to the cost of the procedure improperly denied. We must decline to review this issue because appellant does not address it in her brief. Furthermore, this contention is not properly before us as appellant's claim for breach of contract was not dismissed by the court below.

      . However, the trial court did not submit an opinion explaining his reasons for dismissing ten of the eleven counts, and we must infer his reasons for so doing.

      . In Howard v. Group Hosp. Service, 739 F.2d 1508 (10th Cir.1984), the U.S. Court of Appeals for the Tenth Circuit held that the district court had no federal question jurisdiction over an insured’s action for damages in tort and contract arising from insurer’s failure to pay claims under a FEHBA policy. The court reasoned that the FEHBA "would not be significantly hindered by different state law interpretations of the medical necessity provision in the Blue Cross plan nor would disputes regarding those provisions involve anyone but private litigants," and that the suit does not seek funds from the United States Treasury. However, the analysis in Howard has been found to be irrelevant to the issue of preemption because it “was limited to the contract claim; there was no reference to preemption in the majority opinion, and, as the concurring opinion stated, the existence of a federal preemption defense would be insufficient to invoke the exercise removal jurisdiction." Hartenstine, supra, 196 Cal.App.3d at 218, 241 Cal.Rptr. at 764. Howard has also been criticized as being contrary to the uniformity purpose of § 8902(m)(l) and for disregarding the jurisdictional provisions of § 8912 which provides that "[t]he district courts of the United States have original jurisdiction, concurrent with the United States Claims Court, of a civil action or claim against the United States founded on this chapter.” Id. at 219, 241 Cal.Rptr. at 764.


source: Caselaw Access Project

author: MONTEMURO, Judge: HESTER, Judge,

license: Public Domain

text:
    612 A.2d 493
    Wesley E. DIBLE, Jr., and Norma Jean Dible, his wife, Appellants, v. Richard T. VAGLEY, M.D., K. Sharma, M.D., John Hain, M.D., Forbes Health System, East Suburban Health Center, and/or Forbes Health System, Forbes Regional Health Center, Raymond Leen, M.D., and the Western Pennsylvania Hospital.
    Superior Court of Pennsylvania.
    Argued May 20, 1992.
    Filed July 13, 1992.

      Louis M. Tarasi, Jr., Pittsburgh, for appellants.
    William D. Geiger, Pittsburgh, for Richard T. Vagley, M.D., appellee.
    Deborah D. Olszewski, Pittsburgh, for Raymond Leen, M.D., appellee.
    Before ROWLEY, President Judge, and MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment entered in favor of appellees/defendants below in a medical malpractice action.

In October of 1979, appellant Wesley Dible was referred to appellee Richard T. Vagley, M.D., a plastic surgeon, for examination and treatment of a lump behind his left ear. In November, the lump was excised, submitted to appellee Kusum Sharma, M.D., a pathologist, for diagnosis, and a skin graft was applied to the area. The laboratory report returned by appellee Sharma characterized the lump as squamous cell carcinoma, and noted that the margins of the surgical resection were free of tumor.

In February of 1981, another tumor was discovered in the area of the one previously excised. A biopsy of the growth by the pathologist, a Dr. Gregorio, produced an initial diagnosis of basal cell carcinoma, which was later altered to squamous cell carcinoma with basaloid features. Part of the tumor was removed by appellee Vagley. Pathological examination of the tissue revealed that the margins were not clear, and that further treatment was necessary. Appellee Vagley testified that the surgery was incomplete because to have removed it all would have involved the simultaneous mutilation of most of appellant’s ear, and appellant had expressed an unwillingness to submit to so radical a procedure. Appellee Vagley then referred appellant to appellee Raymond Leen, M.D., a radiologist, to determine the appropriateness of the tumor for radiation therapy. Appellee Leen had the specimen submitted to another pathological examination which resulted in another diagnosis of squamous cell malignancy. Appellant submitted to fifty-one radiation treatments by appellee Leen during the months of May, June and July of 1981.

In September of 1982, a tumor appeared in the canal of appellant’s left ear, and was surgically removed. When the growth there recurred in early 1983, appellee Leen declined to subject appellant to further radiation treatments. Appellee Vagley then referred appellant to a dermatologist, Dr. Zitelli, for treatment by the method known as Moh’s chemo-surgery due to appellant’s reluctance to undergo the disfigurement attendant upon total excision of the growth. However, appellant returned to appellee Vagley for reconstructive surgery after Dr. Zitelli had, in applying the Moh’s technique removed most of the ear.

Suit was commenced in 1985, alleging negligent rendering of examination, treatment and diagnosis, and lack of informed consent in two respects: 1) in diagnosing the type of cancer appellant’s tumors represented; and 2) appellees’ failure to inform appellant of a viable alternative to radiation therapy. Appellant blames successive surgeries, deformity of his ear, severe emotional distress, tinnitus, and increased risk of metastasis on radiation exposure characterized as unnecessary, and due only to appellees’ derelictions. The jury found for appellees and against appellant, thus awarding no damages. This appeal followed.

Appellant has presented four issues for our review. Three of these claims concern alleged error in the trial court’s instructions to the jury, the fourth is directed at various evidentiary rulings. We will address them all seriatim.

Appellant first argues that the trial court erred in refusing to order a directed verdict or to issue binding instructions on the matter of informed consent against appellees Vagley and Leen.

When deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony. Cooke v. Travellers Ins. Co., 350 Pa.Super. 467, 504 A.2d 935 (1986). A directed verdict can only be granted where the facts are clear and there is no room for doubt. Id. On review, we can reverse only if an abuse of discretion or error of law which controlled the outcome of the case occurred. Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835 (1985)

Boyce v. Smith-Edwards-Dunlap Company, 398 Pa.Super. 345, 354, 580 A.2d 1382, 1386 (1990).

Further, “binding instructions may not be given if there is a question of fact properly submissible to the jury”. Hogan v. Bryn Mawr Hospital, 250 Pa.Super. 109, 116, 378 A.2d 477, 481 (1977).

Herein, appellant requested a binding instruction on informed consent concerning the allegedly otiose and excessive radiotherapy. Specifically, he contends that such an instruction was compelled because despite knowledge of his fear of radiation, neither appellee made him aware of the confusion existing in the pathology reports on his ear, of the availability of the Moh’s chemosurgery treatment which eventually cured the tumor in his ear, nor of the low success rate of radiation therapy for cancers such as his.

In order for consent to be considered informed, it must be shown that the patient was advised of “those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment." Sagala v. Tavares, 367 Pa.Super. 573, 578, 533 A.2d 165, 167 (1987) alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1988). The determination of what is material is a jury question, and in making that determination the jury must be supplied with expert information as to the nature of the harm attendant to the procedure, and the probability of that harm occurring. Thereafter, the jury must determine whether the type of harm and the probability of its occurrence is information which a reasonable patient would consider in deciding whether to undergo the medical procedure. Id., 367 Pa.Superior Ct. at 578, 533 A.2d at 167.

Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1008 (1992).

Despite appellant’s insistence that he was injured by lack of information, the informed consent doctrine has never been applied to situations in which the missing information was other than that affecting a surgical and/or operative procedure actually performed. This court, in Kaskie v. Wright, 403 Pa.Super. 334, 589 A.2d 213 (1991), explained the condition precedent to informed consent, a touching by the physician, by noting that consent to treatment involves a contract between doctor and patient conferring the patient’s permission for physical contact with his body. Absent knowledge of the risks attendant upon the proposed procedure, the patient is presumed to have suffered a technical battery. Therefore the contractual principles which apply in the consent to treatment context are only germane to those situations involving actual performance, however excellent, of an unauthorized surgical or operative procedure. Moure, 529 Pa. at 404-05, 604 A.2d at 1008. See, Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985).

No such procedure was involved here, as there has been no argument advanced that the surgery actually performed was beyond that authorized by appellant. Even in the unlikely event that the definition of “touching” were to be strained sufficiently to include the radiation treatments, appellant acknowledges having been informed of their possible negative side effects, and nevertheless having permitted the treatment to occur. Compare, Wu v. Spence, 413 Pa.Super. 352, 605 A.2d 395. (1991) (informed consent doctrine found inapplicable to intravenous administration of drug treatment); Sinclair by Sinclair v. Block, 406 Pa.Super. 540, 594 A.2d 750 (1991) allocatur granted, 529 Pa. 623, 600 A.2d 538 (no specific informed consent necessary for use of forceps to accomplish delivery of child).

Accordingly, we find that the trial court correctly declined to give the jury binding instructions on the issue of informed consent. See also, Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987). Similarly, because this issue was clearly one to be decided by the jury, the motion for a directed verdict was properly denied.

It is also claimed that the trial court erred in its refusal to give binding instructions as to the liability of appellee Vagley. Appellant’s claim is based on the allegation that appellee had violated the standard of care set forth by his own expert, Ian Jackson, M.D. Specifically, appellant repeats Dr. Jackson’s statement that radiation treatment is contraindicated for cancer patients with bone and cartilage involvement. However, appellant provides us to no evidence that such involvement existed at the time appellant was referred for radiotherapy, of if it did exist, that appellee Vagley was aware of it. Moreover, the expert opined in his report, that in view of appellant’s refusal of the radical resection necessary to completely remove the tumor, appellee Yagley’s referral of appellant to a radiotherapist was proper.

As the expert’s testimony evinced no disapprobation of the course actually followed by appellee Vagley, as opposed to what was to be done under hypothetical circumstances, that is, invasion of the bone by tumor, the court correctly denied appellant’s request for binding instruction on this point.

Appellant next argues that the trial court erred by instructing the jury on the two schools of thought doctrine, which he asserts was unjustifiable where appellee Vagley’s diagnosis of appellant’s illness was in doubt.

In reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.

Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985).

The purpose of the charge is “to remove from the jury’s discretion those matters requiring medical expertise, and on which medical experts disagree among themselves.” D’Angelis v. Zakuto, 383 Pa.Super. 65, 70, 556 A.2d 431, 433 (1989).

After having labored long to prove that appellees in this case caused him harm by treating his cancer with unnecessary and excessive radiation rather than Moh’s chemosurgery, appellant now dismisses these claims, asserting that no disagreement exists among the experts as to the proper curative modalities, and contends in the alternative that injury derived from mis-diagnosis of the type of cancer from which he suffered.

In fact, what is clear from the testimony in this case is that both appellees Vagley and Leen relied for the diagnoses of appellant’s cancerous growths upon pathology reports, and that at no time was evidence adduced at trial to the effect that the persons providing these reports, e.g., appellee Sharma, fell below the standard of care applicable to their speciality. Although evidence was presented that the initial diagnosis of squamous cell carcinoma was incorrect, appellant’s experts concentrated on providing proof that Moh’s chemosurgery would have been the most efficacious mode of treatment in appellant’s case, and that subjecting him to radiotherapy was both unnecessary and dangerous. No expert testified on behalf of any party that the combination of surgery and radiation administered to appellant was not a viable method of treatment for skin cancer. To the contrary, Drs. Breitenbach and Zitelli were forthright in admitting that radiation is recognized therapy for either basal or squamous cell cancers. However, appellees’ experts unanimously opined that, for various reasons, the Moh’s procedure was not a common, conventional or in this case acceptable treatment modality. There were, therefore, two schools of thought presented to the jury concerning the treatment available for appellant’s problem. Accordingly, the instruction was properly given.

Next, appellant assigns error to the trial court’s refusal to recharge the jury on informed consent and the standard of care in reply to a question posed by the jury during deliberations. During deliberation, the jury directed the following question to the court:

Is it the responsibility of a doctor (Vagley) to be familiar with procedures (Moh’s surgery) outside of his speciali ty, and to inform the patient of these procedures? (Emphasis in original).

The trial court response was as follows:

You have been charged on all of the law you need to answer the issues in this case.

In circumstances very similar to those at bar, our Supreme Court has held in Nebel v. Mauk, 434 Pa. 315, 253 A.2d 249 (1969),

While the fact that the question was asked would indicate that some confusion existed, a new trial should not be ordered unless it can be shown that the confusion worked to the detriment of the losing party---- In order to obtain a new trial the moving party must demonstrate in what way the trial error caused an incorrect result.

Id., 434 Pa. at 318, 253 A.2d at 251.

Here appellant, alleging two components to the jury’s query, decries the absence of recharges on informed consent and the standard of care. As to the former, for the reasons delineated in the first issue, any confusion cannot have operated to appellant’s prejudice. As to the second, appellee Leen correctly points out that, in posing its question, the jury was seeking a factual determination from the trial court. Its refusal to step beyond the bounds of its duty did not redound to appellant’s detriment.

Appellant’s final assertion concerns several evidentiary rulings by . the court. The first of these is that appellee Vagley was improperly allowed to introduce evidence in contradiction to a judicial admission in the answer responding to the second amended complaint. Appellant argues that Appellee Leen too was permitted to testify over objection to matters denying an admission in the opening statement of his counsel. Appellant also complains that appellee Vagley’s expert was permitted to testify to matters beyond the scope of his report.

Judicial admissions were recently defined by this court as follows:

[A] judicial admission is an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of trial, the truth of the admission. Jewelcor Jewelers & Distributors, Inc. v. Corr, 373 Pa.Super. 536, 542, 542 A.2d 72, 75 (1988). It has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the statement was made is not allowed to disprove it. Jewelcor Jewelers, supra, 373 Pa.Superior Ct. at 542, 542 A.2d at 75. A principal element of a judicial admission is that the fact has been admitted for the advantage of the admitting party, and consequently, a judicial admission cannot be subsequently contradicted by the party that made it. Jewelcor Jewelers, supra, 373 Pa.Superior Ct. at 543, 542 A.2d at 76.

Nasim v. Shamrock Welding Supply Company, 387 Pa.Super. 225, 228, 563 A.2d 1266, 1267 allocatur denied 525 Pa. 619, 577 A.2d 890 (1989).

To take these claims in the order presented, paragraph 18 of appellant’s second amended complaint states that a specimen submitted to pathologist R.M. Gregorio, M.D. was diagnosed as squamous cell carcinoma, and that the margins were not evaluated. Appellee Vagley’s answer rejoined that no analysis was performed on marginal tissue because no such analysis was sought, and that the specimen was diagnosed as basal cell carcinoma. Appellant argues that because a major issue in the case was the precise nature of his tumors, appellee’s statement conceding him to have had basal cell carcinoma should be binding, and no testimony to the contrary should have been received at trial.

The trial court determined that appellee’s response, so far from being an admission, was merely reportage of Dr. Gregorio’s findings, and therefore without restrictive effect on appellee’s testimony. We agree, and conclude that the trial court was correct in refusing to characterize this response as a judicial admission.

Appellant’s contention with regard to appellee Leen’s testimony concerns appellant’s assertion that the radiation he received was not only unnecessary as a whole, but specifically that radiation to his neck and spine was superfluous, excessive and itself a health hazard. His claim that appellee Leen admitted this to be true is based upon the following remarks made by counsel in her opening statement:

Dr. Leen is going to show you how he radiated Mr. Dible’s ear. But the prophylactic radiation that he received was in this area to prevent the tumor from spreading into the lymph nodes and down into the neck. It is a recurrence of the basal cell cancer that Mr. Dible has today that he was trying to prevent. He was trying to prevent the metastatic disease that can move into your lymph system and kill you. In fact, that is what it did. This aggressive tumor is gone today. Mr. Dible does not have it and never did have it.

N.T. 9.13.89 Vol. I at 112-3.

Appellant’s reasoning is that this statement admits his cancer was not squamous cell, that the cancer he did have was non-metastatic, and that the radiation administered to his neck and spine was therefore a priori inappropriate because basal cell tumors do not spread. It is argued that the trial court’s reading of the same remarks, that appellant did not have a metastatic disease that could kill him, is a misinterpretation.

We find the statement fails to admit of one specific meaning, and conclude that remarks such as these, in which pronouns are burdened with ambiguous antecedents, and syntax is opaque, cannot qualify as admissions. The definition given above implies that to be an admission, a statement must at least be intelligible. To be an “express waiver,” the subject matter of the waiver must be readily determinable. Such is not the case herein. The trial court therefore correctly, albeit for the wrong reason, permitted the testimony at issue.

Finally, appellant insists that reversible error occurred when the trial court permitted appellee Vagley’s expert, Dr. Ian Jackson, to testify to matters outside the limitations set by his written report in violation of Pa.R.C.P. 4003.5(c). Specifically, appellant complains that at trial Dr. Jackson was permitted to discuss the negative aspects of the Moh’s chemosurgery technique, but that his report states only that it “is not a recognized method of treating skin cancers outside the United States,” that he himself would not have applied it to appellant at any point in the management of his case, and that he would never have considered it. Anything beyond the simple rejection of this treatment modality, appellant claims, is fatally prejudicial.

[I]n deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.

Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, 290, 502 A.2d 210, 212-213 (1985).

We find that under this standard, the testimony of appellee’s expert was within the fair scope of his report. Indeed, from the nature of his written comments, the necessity for ammunition to counter Dr. Jackson’s obvious disapproval of the Moh’s technique could easily have been anticipated. Therefore, we again find the trial court’s ruling to have been appropriate.

For the foregoing reasons, we affirm the judgment entered in favor of appellees herein.

Judgment affirmed.

Concurring and dissenting statement by HESTER, J.

HESTER, Judge,

concurring and dissenting.

I concur with the opinion of the majority, with the exception of the finding to the effect that the informed consent doctrine should not be required or extended to include radiation treatments. From that portion of the opinion, I respectfully dissent.

      . We note with disapproval the fact that Pa.R.App.P. 124(a)(4) and 2118 have been ignored by various of the parties to this case.

      . Since the 1983 tumor was removed, appellant has undergone further Moh’s treatment of at least six subsequent growths. These were described by Dr. Zitelli as all attributable to sun exposure. (Videotape Deposition of 9.6.89)

      . Even if the failure to inform appellant of the availability of Moh’s treatment could in and of itself be faulted, there was no evidence presented by appellant to prove that had he been willing to undergo the radical surgery originally proposed by appellee Vagley, the same result would not have occurred. Appellant’s reluctance to suffer the effects of conventional surgery resulted in both the radiation he feared, after which the tumor did not return in that specific area, and the mutilation he suffered from the appearance of tumor in an adjacent spot.

      . It is to be noted that appellees also moved that the jury be ordered to return a directed verdict.

      . Appellant also claims that the instruction was warranted due to a failure of the same expert to testify within the fair scope of his report filed during discovery. This issue, as it affects an evidentiary ruling, is discussed infra.

      . Rule 4003.5(c) reads as follows:
      (c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.


author: HUDOCK, Judge.

text:
    612 A.2d 500
    Bruce B. RUTHERFOORD, Appellant, v. PRESBYTERIAN-UNIVERSITY HOSPITAL, Medical and Health Care Division of the University of Pittsburgh, and Ronald J. Forsythe, Appellees.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed July 14, 1992.

      Bruce S. Gelman, Pittsburgh, for appellant.
    Martha H. Munsch, Pittsburgh, for appellees.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   HUDOCK, Judge.

Bruce Rutherfoord (Appellant) appeals from the grant of preliminary objections and, thereafter, summary judgment in favor of Appellees in a wrongful discharge case. We affirm.

The facts and procedural history may be summarized as follows: Appellant began employment with Appellee Presbyterian-University Hospital (Hospital), a private non-profit organization, in 1974 and advanced to the position of Security Systems Operator by 1985. In this latter position, Appellant was assigned various duties including responsibilities as a locksmith for the Hospital, maintenance of shuttle bus vehicles and responsibility for the Hospital’s telecommunication system of the Safety, Security and Parking Department (the Department). At all times pertinent to the proceedings, the Medical and Health Care Division of the University of Pittsburgh (MHCD) and the Hospital were parties to a management services agreement pursuant to which MHCD was responsible for, among other things, the day-to-day operations of the Department. It is undisputed that MHCD was acting as the lawful agent of the Hospital. Appellee Ronald Forsythe (Forsythe) is a Vice President of MHCD and the individual responsible for carrying out MHCD’s management services contract with the Hospital as it pertained to, among other things, the Department.

In the Spring of 1988, a senior official of MHCD received a report from employees of the Hospital’s Purchasing Department indicating that Appellant had attempted to use his position with the Hospital to try to gain personal favors from a prospective vendor. The report concerning Appellant’s interaction with the vendor reinforced senior management’s serious concerns about Appellant’s reliability, trustworthiness, and loyalty. In April 1988, Appellant was informed by the new director of the Department that he was being relieved of his responsibilities as a locksmith and was required to return his keys. Appellant was told that his name had surfaced in an investigation by a Vice President of MHCD and that his duties as locksmith were removed at the direction of Forsythe.

In May 1988, Appellant met with the Director of Human Resources at the Hospital in order to file a grievance pursuant to the regulations in Hospital’s Policy and Procedure Manual. It is alleged by Appellant that Forsythe precluded the processing of his grievance under these procedures. Subsequently, Appellant’s job duties were further restricted and he was denied use of Hospital vehicles in the performance of his duties. Appellant’s attempts to once again use the grievance procedure established by the Hospital were allegedly frustrated by Forsythe and MHCD. In June 1988, Appellant was called to Forsythe’s office at which time Forsythe informed Appellant that his employment with the Hospital was terminated immediately and that his further access to the Hospital was prohibited. Upon inquiry, Appellant was informed that he had no right to file a grievance concerning his termination.

In August 1989, Appellant filed a five-count complaint in trespass and assumpsit against Appellees. In the complaint, Appellant alleged that he had been wrongfully and negligently discharged from his employment with the Hospital (Counts I and V), that the Appellees had defamed him (Count II), had intentionally interfered with his employment relationship with the Hospital (Count III), and had conspired to demote and discharge him (Count IV). On October 13, 1989, the trial court sustained the Appellees’ preliminary objections in the nature of a demurrer as to Counts IV and V, and the Hospital’s preliminary objection in the nature of a demurrer as to Count III. The trial court also sustained the Appellees’ preliminary objection in the nature of a motion for a more specific pleading as to Count II and gave Appellant leave to amend Count II, which he did.

Following the issuance of this order, the Appellees timely filed their answer and new matter and the parties engaged in discovery as to the following remaining claims: (i) the claim in Count I that Appellant was wrongfully discharged in breach of an implied contract of employment; (ii) the claim in Count I that he was wrongfully discharged with specific intent to harm him; (iii) the claim in amended Count II that he was defamed; and (iv) the claim in Count III that MHCD and Forsythe intentionally interfered with his employment relationship with the Hospital. Upon motion of the Appellees, and after submission of briefs and oral argument, the trial court entered summary judgment against Appellant as to these remaining claims. Appellant then filed the present appeal from both orders below, claiming that the trial court erred in granting the Appellees’ preliminary objections and summary judgment.

Initially, we set forth our standards of review with regard to the grant of preliminary objections and the grant of summary judgment. For the sake of simplicity, we will thereafter discuss the propriety of the trial court’s particular action as to each count of Appellant’s complaint.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom; it tests the legal sufficiency of the challenged complaint and will be sustained only in those cases where the pleader has clearly failed to state a claim for which relief may be granted. If there is any doubt as to whether a claim for relief had been stated, the trial court should resolve it in favor of overruling the demurrer. Creeger Brick and Bldg. Supply Inc. v. Mid-State Bank and Trust Co., SEDA, 385 Pa.Super. 30, 560 A.2d 151 (1989) (citations omitted).

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment is to be entered only if “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 a judgment as a matter of law.” Pa.R.C.P. 1035(b), 42 Pa.C.S. (Purdon 1987). In deciding whether the moving party had met this burden, the court must examine the record in the light most favorable to the moving party. Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981). The court’s responsibility is merely to determine whether such an issue of material fact exists; the court does not resolve the issue on its merits. Moreover, the court should not enter summary judgment unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983).

Appellant first claims that the trial court erred in granting Appellees’ motion for summary judgment with regard to Count I of his complaint because a genuine issue of material fact existed as to whether the Hospital’s Policy and Procedure Manual (Manual) modified the at-will status of Appellant’s employment and as to the Hospital’s intentions in discharging Appellant. We do not agree.

The appellate courts of Pennsylvania have provided a significant body of law analyzing various issues relating to termination of employment, and, in particular, issues related to the application of the at-will employment doctrine. From these cases, certain principles or rules of law have become well-settled. First and foremost is the principle that, absent a valid contract providing to the contrary or other recognized exception, “employees may be discharged at any time, for any reason, or for no reason at all.” Darlington v. General Electric, 350 Pa.Super. 183, 188, 504 A.2d 306, 309 (1986) (citations omitted); see also, Geary v. United States Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974) (“[ajbsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.”). Moreover, because the at-will doctrine is a presumption, the burden of proving that one is not employed at-will rests squarely upon the employee. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192, alloc. den’d., 517 Pa. 607, 536 A.2d 1331 (1987).

The clearest manner in which a party can overcome the at-will doctrine is where the employer and the employee have entered into a contract which expresses a definite term of employment and forbids discharge in the absence of “just cause” or without first utilizing an internal dispute resolution mechanism. A clear and definite intention to overcome the presumption must be expressed in the contract. Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 545 A.2d 334 (1988); Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986). It is undisputed in the present case that Appellant did not enter into a contract of employment with the Hospital. Instead, Appellant claims that the existence of the Hospital’s Manual, and the fact that it was the Hospital’s custom and practice to utilize the procedures provided therein, modified his at-will employment and created an implied contract of employment. In other words, Appellant claims that the discipline and grievance procedures contained within the Manual allow only “just cause” termination. Such a claim places even a larger burden upon Appellant to overcome the at-will presumption. “In cases involving implied contracts of employment, the litigant will be able to reach the jury only if he can clearly show that he and the employer intended to form a contract.” DiBonaventura v. Consolidated Rail Corp., 372 Pa.Super. 420, 425, 539 A.2d 865, 868 (1988) (citation omitted).

As our Supreme Court recently stated:

It is basic contract law that one cannot suppose, believe, suspect, imagine or hope that an offer has been made. An offer must be intentional, definite, in its terms and communicated, otherwise the minds cannot meet. ******
It is not sufficient to show [the employer] had a policy. It must be shown [the employer] offered it as binding terms of employment. A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.

Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 495, 496, 564 A.2d 151, 152, 153 (1989) (footnotes and citation omitted). See also, Vincent v. Fuller Co., 400 Pa.Super. 108, 582 A.2d 1367 (1990), alloc. granted, 527 Pa. 637, 592 A.2d 1304 (1991) (this Court rejected purported reliance on company policy as the basis for a claim of implied employment contract).

In the present case, there is no evidence that the Hospital’s Manual, or any of the corporate policies contained therein, were offered to Appellant as part of a definite offer of employment with the Hospital. Indeed, Appellant admitted in his deposition that the Manual was never distributed to him personally during his period of employment with the Hospital and that it was only after he was terminated that he obtained a copy of the Manual from a former colleague in the Department. Moreover, we note that, in discussing the effect of the Manual on his employment status, Appellant neglects to inform this Court of an express disclaimer found within an employee handbook distributed to him. This disclaimer reads as follows:

The guidelines in this handbook are a summary of the [Hospital Manual] and group benefits policies with insuranee companies, and are not intended to be a legal contract. These policies are revised from time to time. [Emphasis added].

As stated by the trial court, this “disclaimer” language in the front of the employee handbook — a document which summarizes provisions of the Manual — contains a clear expression of the Hospital’s intention that the policies within the Manual, including those relating to disciplinary and grievance procedures, are not intended to constitute a contract, thereby conferring rights upon employees. Thus, Appellant’s claim to the contrary is without merit, and, as a matter of law, the Manual cannot be found to create an implied contract of employment.

Appellant also argues that summary judgment should not have been granted as to Count I because a genuine issue of material fact exists as to whether the Appellees terminated him with a specific intent to cause him harm. “[I]f the termination of an employee violates a clear mandate of public policy, or is done with a specific intent to harm the employee, a cause of action [for wrongful discharge] will lie.” Booth v. McDonnell Douglas Truck Services, Inc., 401 Pa.Super. 234, 242, 585 A.2d 24, 28 (1991), alloc. den’d., 528 Pa. 620, 597 A.2d 1150, citing Geary v. United States Steel, supra. While the public policy exception to the at-will doctrine has become ingrained in Pennsylvania law, see e.g., Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (en banc) (violation of public policy to discharge an employee for accepting jury service), it is questionable whether any tort claim for wrongful discharge exists in Pennsylvania. See Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 98-99, 559 A.2d 917, 923 (1989) (Concurring Opinion by Nix, C.J.) (the Pennsylvania Supreme Court “did not announce a cause of action for wrongful discharge in Geary____ Indeed, the language in Geary clearly states that a cause of action for wrongful discharge in an at-will employment relationship does not exist.”), cited favorably in Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990). The trial court was of the opinion that whether such a claim is cognizable in Pennsylvania is presently unsettled with this Court:

Such a theory was recently recognized by the Superior Court in [Booth v. McDonnell Douglas Truck Services, Inc., 401 Pa.Super. 234, 585 A.2d 24 (1991), alloc. den’d., 528 Pa. 620, 597 A.2d 1150]. However, [four days] after Booth was filed, that same court held that an employee’s allegation of wrongful discharge with specific intent to harm failed to state a cause of action. [Yetter v. Ward Trucking Corp., 401 Pa.Super. 467, 585 A.2d 1022 (1991).]

Trial Court Opinion at p. 4. The trial court then stated that, rather than attempting to predict this Court’s present position on this issue, it had reviewed the briefs and pleadings of the respective parties and found that, although Appellant had suffered financially, he had failed to show the Appellees’ specific motive for discharging him was to inflict harm upon him.

We believe that the Booth and Yetter decisions can be harmonized. In Booth, Booth argued that his employer terminated him so as to prevent him from receiving the commissions he claimed he was owed. In so arguing, Booth claimed that the employer terminated him with a specific intent to harm him, thereby giving rise to a cause of action for wrongful discharge. As support for this proposition, Booth cited to this Court’s decision in Tourville v. Inter-Ocean Insurance Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), alloc. den’d., 514 Pa. 619, 521 A.2d 933 (1987), as authority that this exception exists. Citing no further authority, the Booth panel stated its agreement that termination by an employer with the specific intent to harm the employee gave rise to a cause of action for wrongful discharge, but held that Booth had not made out a case of specific intent to harm. In so holding, the Booth panel distinguished Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 543 A.2d 1092 (1988), in which a panel of this Court allowed a cause of action for wrongful discharge where the plaintiff alleged that the firing was done to prevent her pension benefits from vesting, by stating that in Mudd there was no question that the plaintiff would be entitled to the pension benefits. The Booth panel stated that, under the facts with which it was presented, the amount which Booth claimed was due was disputed. While not stating so, the Booth panel concluded that Booth was not clearly entitled to these monies. In other words, because the plaintiff in Mudd would be entitled to these funds, a matter of public policy would be violated had she been terminated with the specific intention of depriving her of these funds. No such public policy considerations existed in Booth.

In Yetter, Yetter based his claim of wrongful discharge on the basis of specific intent to harm by arguing that the employer selectively enforced its company rules against him, that his supervisor personally disliked him and was jealous of him, and that the employer exaggerated or fabricated numerous incidences of job misconduct by him. In a thorough discussion of whether a cause of action existed, the Yetter panel first reiterated the following recent statement by our Supreme Court in Paul v. Lankenau Hospital, supra:

It should be noted that, as general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.

Yetter v. Ward Trucking Corp., 401 Pa.Superior Ct. at 473, 585 A.2d at 1025. The Yetter panel then stated that, while the Supreme Court considered and rejected Geary’s cause of action based on specific intent to harm, the actual holding of Geary was “where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.” Id., citing Geary v. United States Steel Corp., 456 Pa. at 184-85, 319 A.2d at 180.

The Yetter panel then reviewed the subsequent treatment of the Geary holding in several cases decided by this Court:

Although in several cases this Court has interpreted Geary as recognizing a cause of action under the specific intent to harm theory, see Mudd v. Hoffman Homes For Youth, [supra]; Tourville v. Inter-Ocean Insurance Co., [supra]; Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306, 318 (1986), in at least one case, this Court has interpreted Geary as viewing a discharge motivated by specific intent to harm as an example of when a discharge violates public policy. Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Div., 281 Pa.Super. 560, 422. A.2d 611 (1980). We note that all of these cases were decided prior to the Clay and Paul cases, which clearly hold that the only exception to the employment at-will doctrine is where the discharge violates clear mandates of public policy.

Id. The Yetter panel concluded, therefore, to survive a challenge for failure to state a cause of action, the complaint must establish the violation of public policy. Because Yetter had only raised the above reasons to support his claim of wrongful discharge, and because the allegations made did not rise to the level of significant and recognized public policy violations, i.e., none of the allegations “[struck] at the heart of the citizen’s social right, duties, and responsibilities,” Hineline v. Stroudsburg Electric Supply Co., Inc., 384 Pa.Super. 537, 559 A.2d 566 (1989), alloc. den’d., 524 Pa. 628, 574 A.2d 70, the Yetter panel affirmed the order of the trial court dismissing Yetter’s complaint for failing to state a cause of action for wrongful discharge.

We repeat that the only exception to the at-will doctrine, absent a genuine contract of employment, is a discharge which impinges matters of public policy. Paragraph 28 of Appellant’s complaint alleges that the Appellees exhibited a specific intent to harm him through demotion and discharge. Appellant alleged that Forsythe stated to other employees at the Hospital and MHCD that he would “get” Appellant due to the actions of Appellant’s former supervisor and that this malicious conduct is evidenced by the Appellees’ refusal to accommodate Appellant in seeking post-termination health benefits. In his deposition, however, Appellant stated that it was the desire of Appellees to terminate as many employees of the Hospital in the Department as possible, in an attempt to fill the vacant positions with MHCD employees. Appellant also admitted as true that he had told potential employers that he was terminated as a result of MHCD’s efforts to reduce the payroll and bring in its own people. As stated by a panel of this Court regarding similar allegations in Yetter, and concluded by the trial court in the present case, the allegations within Appellant’s complaint do not rise to the level of significant and recognized public policy violations which would support a cause of action for wrongful discharge. Thus, the trial court did not err in dismissing this argument in Count I of Appellant’s complaint as a matter of law. Appellant’s claim to the contrary is without merit.

Appellant next claims that the trial court erred in granting summary judgment in favor of Appellees as to amended Count II of the complaint which raised a defamation claim. The trial court stated that the communications and the individuals involved were connected to the management of the Department and had a direct interest in Appellant’s job performance. It therefore concluded that such communications among management-level personnel concerning an employee’s job performance were necessary for the operation of the Department and, consequently, have been deemed “privileged” by caselaw in Pennsylvania. We agree that each alleged defamatory statement was conditionally, if not absolutely, privileged and, therefore, was not actionable as a matter of law. See generally, Sobel v. Wingard, 366 Pa.Super. 482, 531 A.2d 520 (1987) (Pennsylvania law recognizes an absolute privilege in connection with communications concerning employment termination); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980) (conditional privilege attaches to a communication which is made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable cause). Thus, Appellant’s claim is without merit.

Appellant next claims that the trial court erred in granting summary judgment as to Forsythe and MHCD in regard to Count III of his complaint which raised a claim for intentional interference with a contractual or business relationship. In his complaint, Appellant specifically states that Forsythe intentionally interfered with his alleged contractual and/or business relationship with the Hospital by revoking the disciplinary and discharge policies in the employee handbook “to ensure that the hospital employees, such as [Appellant] would remain terminated without question.” Appellant’s Complaint, Paragraph 37. The trial court concluded that Appellant had failed to state a cause of action, as a matter of law, because at all times pertinent to the case Forsythe and MHCD were acting as duly appointed agents of the Hospital and, therefore, no third party was present to interfere in Appellant’s relationship with the Hospital. We agree.

In Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), cert. den’d., 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), the Pennsylvania Supreme Court recognized a cause of action for intentional interference with contractual and/or business relations, thereby adopting the following definition of the Restatement (Second) of Torts:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Restatement (Second) of Torts, § 766. Essential to a right of recovery under this section is the existence of a contractual and/or business relationship between the plaintiff and a “third person” other than the defendant. By definition, this cause of action requires three separate parties; parties to a contract or employment relationship cannot assert this cause of action against each other. Glazer v. Chandler, 414 Pa. 304, 200 A.2d 416 (1964).

In the present case, any alleged “contract” or business relationship was between Appellant and the Hospital as his corporate employer. A corporation is a creature of legal fiction which can act only through its officers, directors, agents and other employees. Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 519 A.2d 997, alloc. den’d., 517 Pa. 597, 535 A.2d 1056, alloc. den’d., 517 Pa. 599, 535 A.2d 1057 (1987). Where employees or agents for the corporation act within the scope of their employment or agency, the employees, the agents and the corporation are one and the same; there is no third party. Id. Accordingly, Pennsylvania law is clear that where, as here, a claim for intentional interference is based upon an alleged “contract” or business relationship with an employer, and that relationship is terminated by an agent of the employer acting within the scope of his agency, there is no third party involved and no claim will lie. Curran v. Children’s Service Center, 396 Pa.Super. 29, 578 A.2d 8 (1990), alloc. den’d., 526 Pa. 648, 585 A.2d 468 (1991).

Upon review of the briefs of the parties, the various depositions and the pleadings, it is clear that Forsythe and MHCD were, at all times, acting as agents for the Hospital. Thus, no third person exists and the trial court did not err in granting summary judgment on their behalf. Appellant further claims that even if MHCD is not a separate entity, his cause of action remains viable because an agent is liable for intentional interference if he or she intentionally and improperly induces his principal to break its contract with a third person. Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980). However, Pennsylvania law recognizes that corporate officers, directors, and other management personnel have a privilege to cause the corporate employer to terminate an employee. Menefee v. CBS, Inc., 458 Pa. 46, 329 A.2d 216 (1974); Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc., supra. Forsythe and MHCD caused the termination of Appellant due to the belief that Appellant engaged in wrongdoing. As a matter of law, they were privileged to do so. Appellant’s claim of trial court error with regard to Count III of his complaint is, therefore, without merit.

Appellant next claims that the trial court erred in granting Appellees’ preliminary objection, in the nature of a demurrer, to Count IY of his complaint which alleged a cause of action for civil conspiracy. In order to state a cause of action for civil conspiracy under Pennsylvania law, a complaint must allege the existence of all elements necessary to such a cause of action. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). The Pennsylvania Supreme Court set forth the elements of civil conspiracy in Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A,2d 466, 472 (1979): “[I]t must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means.” Proof of malice, i.e., an intent to injure, is an essential part of a conspiracy cause of action; this unlawful intent must also be without justification. Thompson Coal Co. v. Pike Coal Co., supra. Furthermore, a conspiracy is not actionable until “some overt act is done in pursuance of the common purpose or design ... and actual legal damage results[.]” Baker v. Rangos, 229 Pa.Super. 333, 351, 324 A.2d 498, 506 (1974) (citations omitted).

As stated above, both Forsythe and MHCD are agents of the Hospital. A single entity cannot conspire with itself and, similarly, agents of a single entity cannot conspire among themselves. See generally, Wells v. Thomas, 569 F.Supp. 426 (E.D.Pa.1983); O’Neill v. ARA Services, Inc., 457 F.Supp. 182 (E.D.Pa.1978). Moreover, because we have concluded that Appellees did not act unlawfully in terminating Appellant, Appellant’s claim of civil conspiracy must also fail. See Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982) (where complaint failed to set forth claim for defamation or outrageous conduct causing emotional distress, there could be no conspiracy to commit those acts); see also Raneri v. DePolo, 65 Pa.Cmwlth. 183, 187, 441 A.2d 1373, 1376 (1982) (under Pennsylvania law, when a party fails “to sufficiently allege in [other] counts any unlawful act or unlawful means” the conspiracy claim must also fail when it is based on these claims). Finally, we have also determined that Appellees did not act with a specific intent to harm Appellant. Thus, the trial court properly dismissed Count IV of Appellant’s complaint.

Appellant’s final claim is that the trial court erred in granting Appellees’ preliminary objection, in the nature of a demurrer, to Count V of his complaint which alleged a cause of action for wrongful discharge based on negligence principles. Negligence is not a recognized exception to the at-will doctrine in Pennsylvania. Negligence is not a public policy matter which forms the basis for a wrongful discharge claim. See, e.g., Engstrom v. John Nuveen & Co., Inc., 668 F.Supp. 953 (E.D.Pa.1987) (Pennsylvania does not recognize a claim for negligence arising from termination of an at-will employee); Gaiardo v. Ethyl Corp., 697 F.Supp. 1377 (M.D.Pa.1986), 835 F.2d 479 (3d Cir.1987) (defendant owed no duty to use reasonable care in terminating plaintiff’s at-will employment). Thus, the trial court correctly dismissed this Count of Appellant’s complaint.

Orders affirmed.

      . Those concerns were initially raised the prior year as a result of an investigation into the activities of the Department. That investigation initially focused on allegations that gambling operations were being conducted out of the Department. The investigation also dealt with further allegations that other unethical, unorthodox, dishonest and/or unprofessional business practices were occurring in the Department under the direction of the prior head of the Department. Because Appellees believed that Appellant was in a position to have had information pertinent to matters under investigation in early 1987, Appellant was asked to cooperate. Although Appellant was interviewed by an attorney, he refused to interview with another person conducting the investigation.

      . Under the heading, "Other Policies and Information for Your Guidance” and the sub-heading ‘Disciplinary Action,” the employee handbook states that the Hospital’s policies concerning disciplinary actions are detailed in the Manual and that each department and patient unit had an up-to-date Manual to which employees were encouraged to refer. The disclaimer in the employee handbook is sufficient to place an employee on notice that the disciplinary procedures in the Manual were not offered as a part of a definite offer of employment.
      As stated above, Appellant makes no mention of the disclaimer in the employee handbook. Therefore, this is not a case in which we must address the effect of distributing handbooks to all employees. It is only upon the Hospital’s Manual that Appellant relies. Appellant would fare no better, however, if this were the case. It is only in the extreme situation where there is a very clear statement in the employee handbook of an intent to alter the employment-at-will relationship and legally bind the employer that the provisions of a handbook may be the basis for relief from the at-will rule. Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), alloc. den’d., 514 Pa. 643, 523 A.2d 1132 (1987). Indeed, for an employee handbook to be considered a contract it “must contain unequivocal provisions that the employer intended to be bound by it and, in fact, renounced the principle of at-will employment." Reilly v. Stroehmann Bros. Co., 367 Pa.Super. 411, 416, 532 A.2d 1212, 1214 (1987), alloc. granted, 520 Pa. 577, 549 A.2d 137 (1988). The above express disclaimer clearly shows that the Hospital had no such intention.

      . Appellant also relies on changes to the various provisions of the Manual published at times in the Presby News, the Hospital’s newsletter. Having already determined that the employee handbook expressed the Hospital’s intent that the Manual did not convey contractual rights to employees, the Hospital’s unilateral changes to these “policies” likewise do not modify Appellant's at-will employment.

      . The public policy exception to the at-will doctrine of employment has been consistently recognized in Pennsylvania.

      . We are aware of our decisions which find the at-will doctrine of employment inapplicable where additional consideration has been rendered by the employee beyond the normal services for which the employee was hired, Martin v. Capital Cities Media, Inc., supra, or where the employee undergoes a substantial hardship other than the services which the employee is hired to perform, Darlington v. General Electric, supra. We need not address the continuing validity of these cases in light of Clay v. Advanced Computer Applications Inc., supra, because Appellant has not raised such a claim on appeal.

      . Appellant also claims that Appellees breached a duty of good faith and fair dealing toward him by denying him access to the grievance procedure and, therefore, that Appellees are liable under Section 205 of the Restatement (Second) of Contracts. This issue has not been developed on appeal and is, therefore, waived. Moreover, it is well-settled that no such cause of action is recognized in Pennsylvania. See, e.g., Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3d Cir.1982).

      . We note that Appellant has not set forth in his brief the specific statements alleged to be defamatory.

      . On appeal, Appellant does not take issue with the trial court’s grant of the Hospital’s preliminary objection as to this count.

      . We have already determined that Appellant did not have any type of contractual relationship with the Hospital.


author: WIEAND, Judge. CAVANAUGH, Judge,

text:
    612 A.2d 509
    In re ESTATE OF Abigail E. WAINWRIGHT, Deceased. Appeal of Gail Wainwright TSECKARES.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed July 15, 1992.
    Reargument Denied Sept. 25, 1992.

      Foster S. Goldman, Jr., Pittsburgh, for appellant.
    Robert M. Entwisle, Pittsburgh, for Children of Marcus Wainwright, participating party.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge.

In this appeal, we are asked to review the trial court’s interpretation of the holographic will of Abigail E. Wainwright. Although our assignment is not without difficulty, our careful review of the provisions of the will persuades us that the testatrix intended final distribution of assets precisely in accord with the plan stated in her will and not equally among her surviving heirs per capita. Therefore, we are constrained to reverse, the trial court’s equal distribution.

Abigail Wainwright died June 24, 1941, leaving a holographic will dated October 1, 1934. The will was duly admitted to probate, as was a holographic codicil dated September 7,1937. The pertinent provisions of the will are as follows:

2nd After my debts have been paid and my requests attended to I place my stocks and bonds in a trust fund and the interest to be paid quarterly to the following heirs.
3rd First to my brother Samuel Jacob Wainwright Jr. I give one quarter of said interest as long as long [sic] as he lives. Afterward said interest to be divided equally between his four children, Esther Wainwright Neeb, Leroy Wainwright, Grant Wainwright and Marcus Wainwright.
4th The other three quarters is to be divided in six parts.
5th First to Esther Wainwright Neeb I give and bequeath two parts of said interest to be paid quarterly.
6th To Leroy Wainwright I give and bequeath one part of said interest to be divided quarterly.
7th To Grant Wainwright I give and bequeath two parts of said interest to be divided quarterly.
8th To Marcus H. Wainwright I give and bequeath one part of said interest to be divided quarterly.
9th If Esther W. Neeb dies without issue her shares are to go to Esther Gail Wainwright daughter of Grant Wainwright if living if not to be placed in trust fund and to be divided equally with the others.
10th At the death of the parent, the children are to inherit their part. If without issue into the trust fund and divided between the others.

Samuel Jacob Wainwright predeceased his sister, the testatrix, on July 3, 1940. In accordance with paragraph three of the will, his one-quarter share remained in the trust, and income thereafter was distributed 5/ie to Grant, %6 to Esther Wainwright Neeb, %6 to Leroy and 3/i6 to Marcus. Grant Wainwright died on February 6, 1959, and his share of the principal was distributed to his surviving daughter, Esther Gail. Marcus Wainwright died on May 22, 1973, and his proportionate part of the trust principal was distributed to his three surviving children, Marcus, Elizabeth and Susan, pursuant to paragraph ten of the will. Esther Wainwright Neeb died without issue on March 18,1977, and her share of the principal was paid to Esther Gail in accordance with paragraph nine of the will. The last first tier beneficiary, Leroy Wainwright, died without issue on August 27, 1989.

Paragraph ten of the will directs that if Leroy dies without issue, his interest shall go back into the trust fund and be “divided [among] the others.” The term, “the others” must not be read in isolation but in the context in which it appears. Estate of McKenna, 340 Pa.Super. 105, 110, 489 A.2d 862, 865 (1985). When this is done, it becomes apparent that the testatrix intended the trust fund to be distributed among the members of the second tier beneficiaries, to wit, Esther Gail, Marcus, Elizabeth and Susan. Thus far the parties are in agreement. The more difficult issue is in what proportions the remaining trust principal shall be distributed among them. The trial court added the word “equally” to the testatrix’s will and ordered a one-fourth share of principal distributed to each member of the second tier. Esther Gail contends that this was error. She argues that the trial court erred when it rewrote the will by adding the word “equally” and ignored the instruction that Leroy’s share should go back “into the trust fund” and be distributed in accordance with the provisions of the will. We are constrained to agree.

In order to ascertain testamentary intent, a court must focus first and foremost on the precise wording of the will. “[C]anons of construction will be resorted to only if the language of the will is ambiguous or conflicting or the testator’s intent is for any reason uncertain.” Carter Estate, 435 Pa. 492, 497, 257 A.2d 843, 845 (1969).

If Leroy Wainwright had not been the last to die, the result would have been clear. His part of the trust fund, since he died without issue, would have remained in the trust fund; and eventually the principal thereof would have been distributed among the second tier of beneficiaries according to the scheme of distribution established by the testatrix. Should the result be different because Leroy was the last to die?

The trial court concluded, perhaps because it appeared more equitable, that paragraph ten could not be applied literally when the last of the first tier beneficiaries died without issue. In support thereof the court reasoned that the trust ceased to exist after Leroy died; and, therefore, paragraph ten could not be applied strictly. Further, the court reasoned, the testatrix, having prepared her own will and being unaware of the actual circumstances which would transpire, could not have intended anything other than an “equal,” per capita distribution.

This interpretation, of course, is contrary to the express language of the will. It is also contrary to the rule of construction appearing at 20 Pa.C.S. § 2514(5), which, when interpreting a phrase such as “the others,” prefers a per stirpes distribution. Moreover, the trust did not terminate until all income and principal had been distributed.

The tenth paragraph of the will does not direct that the interest of any first tier beneficiary, including the last to die, be distributed equally per capita among all second tier beneficiaries. On the contrary, the will unequivocally directs that the interest of a first tier beneficiary who dies without issue shall go back into the trust fund. Thereafter, it shall be divided among “the others.” The phrase “the others” can only mean those first and second tier beneficiaries who have been named by the testatrix. If, as we have observed, Leroy had been the first to die and had died without issue, the principal of his interest would not have been distributable upon his death but would have remained in the trust fund for the benefit of Marcus, Grant, and Esther Wainwright Neeb. If Grant or Marcus died next, the principal of his interest would have become distributable to his child or children; and if Esther Wainwright Neeb died, the principal of her interest in the trust fund would have become distributable to Esther Gail Wainwright. So, too, when the last of the first tier beneficiaries died, his or her share was to remain in the trust for distribution as set forth in paragraphs four to nine of the will.

Appellant has cited us to Vandergrift Estate, 406 Pa. 14, 177 A.2d 432 (1962), and appellees cite us to Campbell Estate, 395 Pa. 395, 150 A.2d 333 (1959). However, neither decision is on all fours or, indeed, very helpful in interpreting the instant will. We are left, therefore, with the language of the will which directs that Leroy’s share shall go into the trust fund and be divided among the others. When the language of paragraph ten is read in conjunction with the testamentary scheme established by the testatrix, the intent of the testatrix becomes clear. Leroy’s portion of the trust fund was distributable among the second tier beneficiaries in proportions consistent with the terms of the testatrix’s will. Under this interpretation, one share was distributable to the children of Marcus Wainwright and four shares were distributable to Esther Gail Wainwright.

Reversed and remanded for the entry of a decree consistent with the foregoing opinion. Jurisdiction is not retained.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting.

I respectfully dissent. What is at issue here is a holographic will written by a non-lawyer over a half century ago. After carefully reviewing the matter, I feel constrained to agree with the disposition and reasoning of the trial court as ably explained by the Honorable Robert A. Kelly in his opinions of January 7, 1991 and June 6, 1991.

Accordingly, I would affirm the order of the trial court.

      . The codicil has no effect on the provisions of the will under scrutiny in this appeal.

      . Thereafter, an attempt by Leroy, Marcus and Esther Wainwright Neeb to obtain a distribution of the principal of the trust set up for their father, Samuel Jacob, was unsuccessful.