author:
HOFFMAN, Judge:
      WIEAND, Judge,

text:
    661 A.2d 403
    Michelle Duchene INGEBRETHSEN, Appellant, v. Karl INGEBRETHSEN.
    Superior Court of Pennsylvania.
    Argued April 19, 1995.
    Filed July 10, 1995.

      Joanne Zack, Philadelphia, for appellant.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered February 2, 1994, holding appellant, Michelle Duchene Ingebrethsen, in contempt. Appellant raises the following issue for our review.

UNDER ALL OF THE CIRCUMSTANCES, WAS THE TRIAL JUDGE’S ORDER OF 90-DAY INCARCERATION, UNSUPERVISED VISITATION AND OTHER DETERMINATIONS UNREASONABLE AND UNSUPPORTED BY THE PRESUMPTION OF ALLEGATIONS OR OPINIONS WHICH LACKED FACTUAL EVIDENCE AND A RESULT OF PARTIALITY, JUDICIAL PREJUDICE AND BEING SEXUALLY BIASED, THEREBY REPRESENTING A GROSS ABUSE OF DISCRETION?

Appellant’s Brief at 6. For the following reasons, we reverse.

Appellant and appellee, Karl Ingebrethsen, were married on July 2, 1983 and one child, E.I., was born on April 8, 1986. The parties eventually divorced and appellant retained primary physical custody of E.I.

On April 28, 1993, the Honorable R. Barry McAndrews granted appellee partial custody and visitation every other weekend commencing May 1, 1993. Appellant filed a motion to stay the April 28, 1993 order, but on September 15, 1993, the Superior Court denied appellant’s motion. In the interim, appellee filed a petition for contempt stating that appellant had failed to deliver the child to appellee as required by the April 28, 1993 order. On November 15, 1993, Judge McAndrews found appellant in contempt for failing to appear with the child and remanded her to jail. The parties subsequently reached an agreement regarding custody and the trial court purged appellant of contempt.

On the weekend of November 28, 1992, while visiting with appellee, E.I. sustained head and arm injuries. The injuries were reported to the City of New York Child Welfare Administration and that bureau wrote to Judge McAndrews explaining that their office was investigating a case against appellee and that they had advised appellant to suspend appellee’s visitation rights as they were contemplating filing an abuse petition against appellee. The letter also mentioned that there was a history of sexual abuse by appellee’s sister, and that the child told the child welfare worker that appellee “punched me in the face.”

On December 28, 1993, appellant filed an emergency petition seeking to modify the November 15, 1993 custody agreement. Appellee then filed a petition for contempt stating that appellant had not deliver E.I. to appellee, as mandated by the custody agreement, on December 25, 1993. On November 2, 1994, a hearing was held before the Honorable Michael J. Kane. E.I. testified that appellee punched him in the face and that he is afraid of his father. N.T., February 2, 1994 at 101, 103 and 107-108. Appellant testified that she took E.I. to the hospital on November 28, 1994 after he returned from visiting appellee and that E.I. was x-rayed and treated for loose teeth and swelling. N.T., February 2, 1994 at 37-38. Appellant further testified that she contacted Bucks County Children and Youth Services, explained the situation to the emergency case worker and was advised to suspend visitation. N.T., February 2, 1994 at 45-46. The case worker, Sally Gilbert, testified that she advised appellant, based upon the letter from the New York Child Welfare department, to temporarily disobey the order. N.T., February 2, 1994 at 61-62. E.I.’s psychologist, Dr. Cevasco, also testified that E.I. was afraid of his father and recommended supervised visitation to allay the child’s anxiety. N.T., February 2,1994 at 73-74. Two protection from abuse orders, dated 1/12/94 and 1/26/94, filed against appellee in New York were also introduced at the hearing. At the end of the hearing Judge Kane held appellant in contempt of the April 28, 1993 and November 15, 1993 orders and sentenced her to jail for 90 days without the opportunity to purge herself of the finding. Appellant filed a motion to stay her sentence, which was denied February 25, 1994. This timely appeal followed.

Appellant challenges the contempt order as well as the custody order allowing unsupervised visitation. However, as appellant’s notice of appeal challenges only the order of contempt, and the custody order was not appealed within 30 days, only the contempt order is before us. Pa.R.A.P. 902, 903 and 904.

First we must consider whether the contempt order has become moot as appellant has already served the 90 day sentence. Where the trial court acts beyond its authority by failing to afford contemnors their procedural due process rights, the appeal will not be considered moot. Altemose Construction Co. v. Building & Construction Trades Council, 449 Pa. 194, 216, 296 A.2d 504, 516 (1972) (plurality opinion, but six participating justices agreed on contempt issue), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973), Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622 (1993), appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994). Because we find the denial of procedural due process rights here more egregious than the situation presented in either Altemose or Smith, we find this matter is not moot.

We now turn to the merits of the appeal. First, we note that

a civil adjudication of contempt coerces with conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fíne which the contemnor is powerless to escape by compliance.

Schnabel Assoc. v. Building and Construction Trades Council, 338 Pa.Super. 376, 385-86, 487 A.2d 1327, 1332 (1985) (quotations omitted). See also Commonwealth v. Aikins, 422 Pa.Super. 15, 618 A.2d 992 (1993). Here, appellant was subject to criminal contempt as she did not have the opportunity to purge herself of the contempt finding. Consequently, she was entitled “to the essential procedural safeguards that attend criminal proceedings generally.” Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 132, 560 A.2d 133, 137 (1989). See also Commonwealth v. Brown, 424 Pa.Super. 333, 622 A.2d 946 (1993); Fatemi v. Fatemi, 371 Pa.Super. 101, 111, 537 A.2d 840 (1988). These protections include the right to bail, the right to be notified of accusations against him or her and reasonable time to prepare a defense, the assistance of counsel, and the right, upon demand, to a jury trial. Schnabel, 338 Pa.Super. at 387, 487 A.2d at 1333. Finally, “the law is clear that in criminal contempt proceedings, guilt must be proved beyond a reasonable doubt.” Vito v. Vito, 380 Pa.Super. 258, 267, 551 A.2d 573, 577 (1988).

In the instant case, appellant was denied several of the procedural safeguards to which she was entitled. Interestingly, the trial court cites 23 Pa.C.S. § 4346 which requires “an order committing a person to jail under this section shall specify the condition which, when fulfilled, will result in release of the obligor.” However, the trial court failed to follow the dictates of this very statute. Rather, the trial court in its opinion refers flippantly to “the procedural nicities [sic].” However, where an individual is sentenced to imprisonment, we decline to overlook the basic procedural mandates which would have protected appellant’s fundamental due process rights.

For the above reasons, we reverse the contempt finding.

Reversed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the decision to reverse. In my judgment, however, the contempt was civil in nature; and the trial court’s error was in failing to include in its order the conditions which, when fulfilled, would enable the appellant to purge herself of contempt and be released from prison.

      . We note that Judge McAndrews originally sentenced appellant to 90 days incarceration for failure to obey the court order, but suspended sentence on the condition that appellant abide by the agreement between the parties. However, later in the hearing Judge McAndrews explicitly stated that appellant was purged of contempt. N.T., November 15, 1993 at 10-11, 17.

      . Unfortunately, appellant has already served the full 90 day sentence.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    661 A.2d 405
    COMMONWEALTH of Pennsylvania, Appellant v. Alfred Franklin LUTZ.
    Superior Court of Pennsylvania.
    Submitted March 28, 1995.
    Filed July 12, 1995.

      W. Andrew Worthington, Asst. Dist. Atty., Stroudsburg, for the Com., appellant.

      Colleen M. Nevins, Asst. Public Defender, Stroudsburg, for appellee.
    Before BECK, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth of an order of the lower court granting appellee’s petition for habeas corpus relief. We reverse and remand.

The lower court stated the procedural history of the case as follows:

On February 16, 1994, Defendant, Alfred Franklin Lutz, was arrested and charged with driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(1), and various related traffic offenses following an automobile accident in Mount Pocono. At a preliminary hearing on March 22,1994 before District Justice Dennis, the charge was held over for trial. On April 4, 1994, Defendant filed a Petition for Habeas Corpus alleging that the Commonwealth failed to establish a prima facie case of driving under the influence of alcohol. A hearing was scheduled for April 15, 1994; however, no witnesses appeared. This Court directed the Commonwealth to evaluate the substance of Defendant’s allegations as set forth in the habeas petition. On May 31, 1994, Defendant filed a second Petition for Writ of Habeas Corpus. A hearing was held on June 16, 1994.

Trial court opinion, July 11, 1994, at 1-2.

At the hearing, police officer John Uhler testified. He indicated that he had specific training in determining whether a person is intoxicated. N.T., June 16, 1994, at 5. On February 16, 1994, Officer Uhler was called to the site of the accident at issue. Id. at 6. There were two cars involved. One, a Nissan Pathfinder, was facing east on the westbound side of the road with its back end in a snow bank. Id. The other was a dark-colored Pontiac Sunbird. Id. Officer Uhler first stopped at the Pathfinder. He saw that the people in that vehicle were unharmed, so he went to the next car. Id. Appellee was leaning against the side of the car. Id. When Officer Uhler approached appellee, he noticed that appellee’s eyes were extremely bloodshot and his face was very red. Id. at 7. Officer Uhler also detected a strong odor of an alcoholic beverage on appellee’s breath. Id. The police officer stated that he observed a six pack of beer in the back seat area, with three full beers in it. There was an empty bottle laying on the floor in the rear and another empty one on the front, driver’s side floor. Id. Officer Uhler walked appellee to his police car. He observed appellee having a difficult time getting into the car. Id. at 9. He told appellee that he knew that appellee was drunk and appellee agreed that he was. Id. In Officer Uhler’s opinion, appellee was well beyond the legal limits of intoxication and unable to safely operate a motor vehicle. Id. at 11.

Mary Mate also testified at the hearing. Ms. Mate is an emergency medical technician who was driving her car in front of appellee’s at the time of the incident. Id. at 21. Ms. Mate testified that as she came to a red light and was stopping, appellee, who was behind her, went around her and ran the red light. Id. She went up to his car to offer assistance. Id. Ms. Mate testified that appellee was very belligerent, very nervous, and appeared to have been drinking. Id. She also indicated that she noticed a slight smell of alcohol on appellee. Id. at 25.

Appellee testified that he had had two beers at lunchtime, several hours before the accident. Id. at 35. However, he indicated that he had not drunk any of the beer in the six-pack that was in the car on the day of the accident. Id. at 33.

The lower court granted appellee’s petition for habeas corpus relief and dismissed the charge. The court reasoned that “[t]he evidence was not sufficient to establish substantial impairment of the normal faculties essential to the safe operation of an automobile, an element necessary to sustain a charge of driving under the influence.” Id. at 4-5. The Commonwealth filed a timely appeal of the lower court’s order in which it raised the following issue: whether the Commonwealth presented a prima facie case at the habeas corpus proceeding sufficient to require the defendant to stand trial?

A pre-trial petition for writ of habeas corpus is similar in purpose to a preliminary hearing. Commonwealth v. Scott, 396 Pa.Super. 339, 578 A.2d 933 (1990), appeal denied, 528 Pa. 629, 598 A.2d 283 (1991). The focus of a pre-trial habeas corpus petition is on whether the Commonwealth possesses sufficient evidence to require a defendant to be held in government custody until he may be brought to trial. Id. at 347, 578 A.2d at 937. A petition for writ of habeas corpus “is the proper means for testing the finding that the Commonwealth has sufficient evidence to establish a prima facie case.” Commonwealth v. Morman, 373 Pa.Super. 360, 363, 541 A.2d 356, 357 (1988). Proof of a prima facie case consists of the following: “the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. McBride, 528 Pa. 153, 158, 595 A.2d 589, 591 (1991). Accord Commonwealth v. Neckerauer, 421 Pa.Super. 255, 617 A.2d 1281 (1992).

The elements of the offense charged in the instant case were as follows:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle: (1) while under the influence of alcohol to a degree which renders the person incapable of safe driving;

75 Pa.C.S.A. § 3731. Under this section, the Commonwealth is required to prove (1) that the defendant was operating a motor vehicle, (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986). In interpreting section 3731(a)(1), the Pennsylvania Supreme Court has held:

The statute does not require that a person be drunk, or intoxicated, or unable to drive his automobile safely in traffic, but merely that the Commonwealth prove beyond a reasonable doubt that the defendant was operating his automobile under the influence of intoxicating liquor ... The statutory expression “under the influence of intoxicating liquor” includes not only all the well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of drinking alcoholic beverages and (a) which makes one unfit to drive an automobile, or (b) which substantially impairs his judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile.
Thus, substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Its meaning is not limited to some extreme condition of disability.

Commonwealth v. Griscavage, 512 Pa. 540, 544-45, 517 A.2d 1256, 1258 (1986) (citations and emphasis omitted). The Griscavage court further stated that “[w]hen dealing, with the question of driving under the influence we cannot condone a requirement that the driver exhibit some extreme eccentricity before allowing a reasonable inference of substantial impairment. Id. at 547, 517 A.2d at 1259. Accord Commonwealth v. Weis, 416 Pa.Super. 623, 611 A.2d 1218 (1992) (in prosecution under section 3731(a)(1), absence of extreme impairment or other tangible behavior is not necessarily dispositive of appellant’s ability to operate his vehicle in a safe manner).

As we have previously indicated, to establish a prima facie case, the Commonwealth must (1) present evidence with regard to each of the material elements of the charge, and (2) establish sufficient probable cause to warrant the belief that the accused committed the offense. Commonwealth v. McBride, supra, 528 Pa. 153, 595 A.2d 589. In the instant case, the Commonwealth presented evidence that appellee was driving a motor vehicle, that at the time he was driving that motor vehicle, he exhibited many signs of intoxication and in the opinion of an experienced police officer at the scene, was intoxicated. The Commonwealth also produced evidence that the motor vehicle appellee was driving ran a red light, ran off the road, and that another vehicle ran off the road at the same time. The Commonwealth thus presented evidence as to each of the material elements of the charge and established probable cause to warrant a belief that appellant committed the offense. Thus, the Commonwealth established a prima facie case.

We note the trial court’s concern that the evidence presented did not establish a substantial impairment of the normal faculties due to the failure of the Commonwealth to offer evidence of any field sobriety or blood tests. We agree that the evidence which the Commonwealth presented at the instant hearing may not be sufficient to carry the Commonwealth’s burden of proof at trial. However, the sufficiency of evidence required to establish a prima facie case does not rise to the level of that required to sustain a conviction. See, e.g., Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989) (evidence is sufficient to sustain conviction if jury could reasonably have concluded that all the elements of the crime were established beyond a reasonable doubt). In addition, as we have previously indicated, “substantial impairment” under section 3731(a)(1) does not require an extreme condition of disability. Commonwealth v. Griscavage, supra, 512 Pa. 540, 517 A.2d 1256.

We conclude that a prima facie case was established and the lower court erred in granting appellee’s petition for writ of habeas corpus.

Order reversed; case remanded to lower court for further proceedings; jurisdiction relinquished.


author: CERCONE, Judge.

text:
    661 A.2d 409
    WPNT INC. v. SECRET COMMUNICATION INC. T/D/B/A WDVE FM and Pittsburgh Brewing Company, Appellants.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed July 12, 1995.

      Kathleen A. Gallagher, Pittsburgh, for appellants.
    John G. Shorall, II, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from an order of the lower court granting appellee a preliminary injunction without conducting a hearing. We vacate the lower court’s order and remand the case for further proceedings.

On September 14, 1994, appellee WPNT, Inc. (“WPNT”) filed a Complaint in Equity and a Petition for Injunctive Relief against appellant Secret Communication, Inc., t/d/b/a WDVE FM (“WDVE”) claiming the right to' exclusive use of the service mark “Boo ’n Brew.” Appellee based the claim on its status as initial registrant under the Pennsylvania Trademark Act. On September 27, 1994, appellant Pittsburgh Brewing Company (“PBC”) claimed common law ownership of the mark and was granted leave to intervene. On that same date, the lower court, acting without a hearing, granted appellee a preliminary injunction and ordered appellee to post bond in the amount of $200,000.00. On September 30,1994, appellants responded with an unsuccessful Motion to Dissolve Injunction and To Set a Date for Hearing, arguing that the lower court had improperly granted the preliminary injunction without a hearing. In this timely appeal, appellants continue to question whether the issuing court could properly award a preliminary injunction without conducting a hearing.

A trial court has broad discretion to grant or deny a preliminary injunction. Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 244, 544 A.2d 450, 453 (1988), appeal denied, 520 Pa. 612, 554 A.2d 505 (1989). When reviewing a trial court’s grant or refusal of a preliminary injunction, an appellate court does not inquire into the merits of the controversy, but rather examines only the record to ascertain whether any apparently reasonable grounds existed for the action of the court below. Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 197, 479 A.2d 500, 507 (1984) (quoting Singzon v. Commonwealth Dept. of Public Welfare, 496 Pa. 8, 10-11, 436 A.2d 125, 126-27 (1981)). We may reverse if the trial court’s ruling amounted to an abuse of discretion or a misapplication of law. Bell Fuel, 375 Pa.Super. at 244, 544 A.2d at 453.

A trial court may grant an injunction only if the plaintiff seeking that extraordinary remedy establishes a clear right to the requested relief. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 477, 522 A.2d 1129, 1131 (1987). Furthermore, the moving party must satisfy the following essential prerequisites: (1) that relief is necessary to thwart immediate and irreparable harm which could not be remedied by damages; (2) that greater injury will result by refusing the injunction than by granting it; (3) that the injunction will restore the parties to their status as existing prior to alleged wrongful conduct; and (4) that the injunction is reasonably suited to abate such activity. Schaeffer v. Frey, 403 Pa.Super. 560, 565, 589 A.2d 752, 755 (1991); Bell Fuel, 375 Pa.Super. at 245, 544 A.2d at 453.

Pennsylvania Rule of Civil Procedure 1531(a) sets forth the procedure governing preliminary injunctions:

A court shall issue a preliminary or special injunction only after written notice and hearing unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or special injunction without a hearing or without notice. In determining whether a preliminary or special injunction should be granted and whether notice or a hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require.

Pa.R.C.P. 1531(a), 42 Pa.C.S.A. Accordingly, a court will ordinarily issue a preliminary injunction only after written notice and hearing. Soja, supra, 361 Pa.Super. at 478, 522 A.2d at 1131. A preliminary injunction may be granted without notice and a hearing only when there exists a need for unusual haste so that a clear right may be protected from immediate and irreparable injury. Id. at 478 n. 1, 522 A.2d at 1131 n. 1. In that event, the court must make a finding that relief is necessary and must be awarded before the defendant can be notified. Id. If the court then fails to conduct a hearing within five days, the injunction is deemed dissolved. See Pa.R.C.P. 1531(d), 42 Pa.C.S.A.

In the instant action, the lower court granted appellee’s request for a preliminary injunction solely on the basis of the pleadings and arguments of counsel. The issuing court refused to conduct a hearing either before or after entering the decree. This court has acknowledged that there is no absolute right to a hearing on a preliminary injunction. Bell Fuel, 375 Pa.Super. at 248, 544 A.2d at 455; Franklin Decorators, Inc. v. Hende-Jon Furniture Showrooms, Inc., 339 Pa.Super. 449, 489 A.2d 246 (1985). Nevertheless, “our rules and our case law clearly indicate that a hearing is the preferred procedure. It is the rare preliminary injunction that can correctly be denied without a hearing and no prelimi nary injunction can be granted and continued without a hearing, whether before or after the initial grant.” Bell Fuel, 375 Pa.Super. at 249, 544 A.2d at 455 (emphasis added). See also Pubusky v. D.M.F. Inc., 428 Pa. 461, 239 A.2d 335 (1968).

In Pubusky, supra, the trial court initiated a hearing on the requested preliminary injunction. Interrupting defendant’s cross-examination of plaintiff and preventing defendant from presenting any evidence or testimony on his own behalf, the lower court discontinued the hearing and granted plaintiff a preliminary injunction. This state’s Supreme Court vacated the decree and remanded the case for an evidentiary hearing after concluding that “[i]t is ... fundamental that all of the parties are entitled to a hearing before [a preliminary] injunction should issue.” Id. at 463, 239 A.2d at 336-37. The court in Pubusky further noted that even when circumstances support the issuance of an ex parte injunction, a hearing is not excused, but merely delayed for a limited time. Id. at 463 n. 1, 239 A.2d at 337 n. 1. See also Ogontz Controls Co. v. Pirkle, 329 Pa.Super. 8, 13-14, 477 A.2d 876, 879 (1984), appeal after remand, 346 Pa.Super. 253, 499 A.2d 593 (1985) (although the trial court conducted a hearing within five days of issuing an ex parte injunction, it erred by continuing the preliminary injunction without allowing the objecting party to present evidence at the abbreviated hearing); Rosenzweig v. Factor, 457 Pa. 492, 327 A.2d 36 (1974) (preliminary injunction issued without notice or hearing was fatally defective when the record was devoid of any showing that immediate and irreparable injury would result from non-action).

In the case before us, the lower court correctly characterized the underlying issue: “[W]hether the first registrant of a particular mark, ‘Boo ’n Brew’ is entitled to preliminary injunctive relief against Defendants, barring their use of a virtually identical mark, ‘Boo & Brew.’” Memorandum in Support of Order dated 9/27/94 at 1. The lower court granted the contested preliminary injunction after concluding that appellee’s clear legal right to the relief sought obviated the need for an evidentiary hearing: “[OJwnership of the registration, without more, required that the injunction issue forthwith upon posting of the appropriate bond.” Trial court opinion dated 12/21/94 at 2. We disagree.

“[Registry of a trademark, in and of itself, gives no right to exclusive use. In addition to registration the initial registrant must prove the originality of the registered mark and that the mark is not deceptively similar to the mark used by another.” Conti v. Anthony’s Shear Perfection, 350 Pa.Super. 606, 610, 504 A.2d 1316, 1318 (1986) (citing Stroehmann Bros. Co. v. Manbeck Baking Co., 331 Pa. 96, 99, 200 A. 97, 99 (1938)). Appellee claims initial registration of the mark. Appellants, however, contend that the use of the words “Boo ’n Brew” originated not with appellee but with appellant PBC. Because the originality of the mark is a contested factual issue and resolution of that issue is critical to each party’s exclusivity claim, the lower court erred in concluding that appellee possessed a clear legal right to the relief requested. Moreover, the existence of an unequivocal legal right could not excuse the trial court’s issuance of an injunction absent sufficient evidence of the remaining prerequisites to injunctive relief. See e.g. Larson v. Pennsylvania Turnpike Commission, 507 Pa. 471, 477-78 n. 7, 490 A.2d 827, 830 n. 7 (1985) (a plaintiff who seeks a preliminary injunction must show not only a clear legal right but also irreparable harm, a concept that almost always involves development of a factual record).

Based on the foregoing, we conclude that the lower court erred in granting appellee’s request for a preliminary injunction without holding a hearing. Accordingly, we vacate the order of the court below and remand for proceedings consistent with this memorandum.

Order vacated; case is remanded to the lower court for a hearing on appellee’s request for a preliminary injunction; jurisdiction relinquished.

      . The Pennsylvania Trademark Act provides:
      Any owner of a mark registered under this chapter may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof, and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the court deemed just and reasonable....
      54 Pa.C.S.A. § 1125.

      . In an action brought by an employer to enforce the terms of a restrictive covenant, the lower court relied solely on the complaint and its attachments and denied the preliminary injunction. Beck Computing Services Inc. v. Anderson, 362 Pa.Super. 505, 508-09, 524 A.2d 990, 992 (1987). Because the lower court failed to hold a hearing, it lacked a sufficient factual basis to determine whether or not the prerequisites for injunctive relief were present. Id. at 510, 524 A.2d at 992. See also Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 544 A.2d 450 (1988) (denial of preliminary injunction deemed error when lower court based its denial solely on the pleadings, affidavits and memoranda of law and discounted any testimony elicited at the hearing); Boyd v. Cooper, 269 Pa.Super. 594, 410 A.2d 860 (1979) (the lower court erred in denying a preliminary injunction without a hearing; an evidentiary hearing was necessary to assess whether petitioner could establish a clear right to recovery, an imminent need for relief, irreparable injury, and the absence of an adequate remedy at law).


author: TAMILIA, Judge.

text:
    661 A.2d 412
    John T. TREZAK, Frank Peter Treciakiewicz and Joan Ann Reilly, Co-Executors of the Estate of Frank Trzeciakiewicz v. Frances JIERSKI and Dolores Weiss, Administratrix of the Estate of Emma Kozlowski, Appellants.
    Superior Court of Pennsylvania.
    Argued May 9, 1995.
    Filed July 13, 1995.
    Joseph S. Colbassani, Scranton, for appellants.
    Storm G. Feigles, Francis J. Wormuth and R. Méy, Scranton, for appellees.
    Before CAVANAUGH, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge.

Frances Jierski and Dolores Weiss, administratrixes of the estate of Emma Kozlowski, a/k/a Emma Trzeciakiewicz, hereinafter “wife,” appeal from the September 24, 1994 Order dismissing their exceptions to and making final the Master’s August 11, 1994 recommendations which found, inter alia, the appellees herein, John T. Trezak, Frank P. Treciakiewicz and Joan A. Reilly, co-executors and heirs of the estate of Frank Trzeciakiewicz, hereinafter “husband,” were entitled to enforce husband’s right of election to take against wife’s will. The plethora of parties, protracted litigation and the legal maneuvering which preceded this appeal necessitate a complete recitation of the facts as set forth in the parties’ stipulation.

Husband and wife were married in October, 1964. Wife died on July 10, 1982 and on September 8, 1982, her will was submitted for probate. On October 1, 1982, husband filed an appeal from probate challenging the validity of the will. On October 22, 1982, appellants responded, alleging husband had forfeited his spousal rights. On August 6, 1985, the court issued an Order dismissing appellants’ claim of forfeiture. The Order became final on January 8,1986. On July 11,1987, wife’s estate challenged the validity of her will and the parties agreed in the event the document was determined to be a will, husband would receive a one-third interest and, should it be found invalid, husband was to be awarded a one-half interest in wife’s estate. On September 17, 1987, the court found wife’s document was indeed her last will and testament. One day later, on September 18, 1987, husband filed an election to take against the will thereby exercising his spousal rights. On October 15, 1987, husband appealed from the court’s Order finding the document was a will. On October 19, 1987, husband died and appellees were appointed executors of his estate. Husband’s appeal from the September 17, 1987 Order was dismissed for failure to file a brief. On April 14, 1989, appellees herein filed an action in partition seeking one-third of wife’s real estate. Appellants answered, admitting husband had elected to take against wife’s will, but arguing appellees could not enforce husband’s spousal election because husband failed to perfect said election during his lifetime. The Master found husband’s heirs/executors had the power to enforce his spousal election following his demise, and this finding was affirmed by Order dated September 24, 1994. This appeal followed.

Appellants’ sole argument is husband’s heirs may not exercise his imperfected spousal election to take against wife’s will.

The applicable statute is set forth in pertinent part below:

§ 2206. Right of election personal to surviving spouse
The right of election of the surviving spouse may be exercised in whole or in part only during his lifetime by him or by his attorney-in-fact in accordance with section 5603(d) (relating to implementation of power of attorney)....

20 Pa.C.S. § 2206. Based on this statute, the Master found husband’s heirs were entitled to pursue the claim husband had initiated prior to his demise, noting the operative, statutory word “exercise” is defined in a legal sense as:

‘To make use of; thus to exercise a right or power is to do something which enables the holder to do.’ The exercise of a right of election is to enable the holder of the right of election, here Frank Trzeciakiewicz, to claim a one-third (íé) share in his late spouse’s estate. The right has been exercised but not yet enforced. What the statute enables Frank Trzeciakiewicz to do is to actually receive one-third ( Jé) of his late spouse’s estate.

(Master’s Recommendations, 8/11/94, p. 2.) In support of his position, the Master relied on Krasney Estate, 10 Pa.D. & C.2d 450, 7 Fiduciary Rep. 403 (1958), wherein the court found there was no reason in law or equity why the claims of a surviving spouse, now deceased, being pursued by her heirs, should be weakened by death. Id. We agree with these findings as adopted by the trial court.

Although caselaw on this issue is sparse, that which this Court has reviewed indicates once a surviving spouse has declared his intent or initiated proceedings to take against a deceased spouse’s will, the action may be pursued by the heirs or executors of the estate of surviving spouse who has had the misfortune of dying before the extent of his or her bounty has been determined. See Buckland’s Estate, 239 Pa. 608, 86 A. 1098 (1913) (The estate of husband, who had elected during his lifetime to take against wife’s will, was entitled to whatever benefit had accrued to husband by reason thereof); Greiner’s Appeal, 103 Pa. 89 (1883) (The fact widow died before her share in husband’s estate was ascertained in no way defeated her right to the property which had vested in her as a result of the election she had made during her lifetime to take against husband’s will); Paul’s Executors v. Paul, 36 Pa. 270 (1860) (Widow’s filed election to take against husband’s will was determined to be an adequate demand of her dower, enabling her personal representative, after widow’s demise, to continue an action to secure her rights).

Order affirmed.

McEWEN, J., concurs in the result.

      . Apparently the issue of the validity of wife's will was not resolved when initially challenged in husband’s 1982 petition.


author: HOFFMAN, Judge:

text:
    661 A.2d 414
    P & F INDUSTRIES, INC., Appellant, v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued April 19, 1995.
    Filed July 17, 1995.

      Gabriel D. Cieri, Philadelphiá, for appellant.
    Lise Luborsky, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order dated August 15, 1994, granting summary judgment in favor of appellee, Pennsylvania Insurance Guaranty Association [“PIGA”]. Appellant, P & F Industries, Inc., [“P & F”], raises the following issues for our review.

1. WHETHER A CONTRIBUTION PAYMENT BY AN INSURED ON BEHALF OF ITS INSOLVENT INSURER TO EFFECT SETTLEMENT OF AN ACKNOWLEDGED “COVERED CLAIM” DEPRIVES THE INSURED OF ANY BENEFIT UNDER THE PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION ACT, 40 P.S. § 1701.101 ET SEQ.'l
2. WHETHER THE ACTIONS OF PIGA IN DIRECTING P & F TO EXHAUST ALL SOURCES OF RECOVERY AGAINST ANY OUT OF STATE GUARANTY ASSOCIATION WITH RESPECT TO THE MISSION POLICY AND AFTER COMPLYING WITH THIS DIRECTIVE, DENYING THE CLAIM, IS A VIOLATION OF P & F’S DUE PROCESS RIGHTS UNDER THE CONSTITUTIONS OF THE UNITED STATES OF AMERICA AND THE COMMONWEALTH OF PENNSYLVANIA?

Appellant’s brief at 3. For the following reasons, we affirm.

On April 2,1980, Barry Richmond, a Pennsylvania resident, filed a complaint in the Philadelphia Court of Common Pleas, averring that on June 28, 1978, he sustained severe injuries when he slipped and fell on the deck of an above-ground swimming pool. P & F, a New York corporation, was joined as the successor in interest of the manufacturer of the swimming pool and deck in question.

At the time of the accident, P & F was insured by Mission Insurance Company [“Mission”], a California company. However, while the Richmond case was pending, Mission was declared insolvent. On the eve of trial, the Richmond case settled for $1,600,000.00, and P & F contributed $200,000.00 on behalf of Mission to expedite the settlement.

P & F then filed a claim in New York to recover the $200,000.00 it had paid in the Richmond case on behalf of Mission, but some time in 1989, the New York Guaranty Association rejected P & F’s claim and forwarded the claim to PIGA. On August 15, 1990, PIGA refused P & F’s claim. Consequently, P & F filed a complaint against PIGA on April 24,1991, to recover the $200,000.00. PIGA then filed a motion for summary judgment on May 27, 1994, asserting that P & F does not have a “covered claim” as defined by 40 P.S. § 1701.103(5)(a). The Honorable Norman Ackerman granted summary judgment on August 15, 1994 and this timely appeal followed.

P & F first argues that PIGA’s actions in denying its claim constituted a due process violation. However, as P & F failed to raise this claim before the trial court, it is waived. Pa. R.A.P. 302(a).

P & F next argues that the trial judge erred in granting summary judgment. Specifically, P & F asserts that it is entitled to reimbursement for the monies it expended on Mission’s behalf in settling the Richmond lawsuit. We disagree.

Initially, we note that our scope of review of a grant of summary judgment is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). The legal issue before us is whether PIGA has an obligation to P & F under the Pennsylvania Insurance Guaranty Association Act [“the act”]. The act provides that where there is a “covered claim,” PIGA takes the place of the insolvent insurer, with all of that insurer’s rights, duties and obligations. Donegal Mutual Insurance Company v. Long, 528 Pa. 295, 597 A.2d 1124 (1991). A covered claim is defined as:

“Covered claim” means an unpaid claim ... which arises under a property and casualty insurance policy of an insolvent insurer and is:
(i) The claim of a person who at the time of the insured event resulting in loss or liability was a resident of the Commonwealth....

40 P.S. § 1701.103(5)(a) (emphasis added).

Here, it is undisputed that P & F is a New York resident, not a Pennsylvania resident. P & F, however, argues that because Mr. Richmond, the injured party in the underlying claim, was a Pennsylvania resident at the time of the accident, the claim should be considered covered. Although this issue, whether a non-resident company may use the residence of its underlying claimants to satisfy the residency requirement under 40 P.S. § 1701.103(5)(a)(i), has not been specifically addressed by our court, we find the reasoning of the Third Circuit, in T & N v. Pennsylvania Insurance Guaranty Association, 44 F.3d 174 (3rd Cir.1994), persuasive. In T & N, the court explained:

The purpose of the Act is clearly to protect Pennsylvania residents. If the underlying Pennsylvania residents can proceed against PIGA to recover for their losses, their rights are protected; they will not suffer any harm from the insured’s inability to pay them.... The district court’s analysis [allowing coverage,] does not provide the underlying Pennsylvania claimants with any additional protection. Rather, it merely allows a non-resident to make a claim against the Act. Such a result violates the intent of the Act which is to protect Pennsylvania residents. While it is unfortunate that [the company whose insurance company became insolvent] apparently does not have a guaranty association which it can approach for relief, this does not affect Pennsylvania and PIGA should not be forced to pay [the company’s] claim based on this reason alone.

T & N, 44 F.3d at 180. Here, no benefit would inure to Mr. Richmond, the Pennsylvania resident, by forcing PIGA to pay P & F. The reasoning as set forth in T & N, combined with the plain language of the act, dictates that coverage should not be provided to this non-resident company. See Commonwealth v. Johnson, 417 Pa.Super. 636, 612 A.2d 1382 (1992) (when construing statute, its words are to be given their plain and ordinary meaning). Cf. Hill v. Divecchio, 425 Pa.Super. 355, 625 A.2d 642 (1993) (when words of statute are unambiguous, they are not to be disregarded under pretext of pursuing spirit of statute), appeal denied, 538 Pa. 613, 645 A.2d 1316 (1994).

Accordingly, for the above reasons we affirm.

Affirmed.

      . We note that 40 P.S. § 1701.101-1701.605 were repealed and replaced by 40 P.S. § 991.1801 et seq. by P.L. 1005, No. 137, § 1, December 12, 1994, effective February 10, 1995. Under 1 Pa.C.S. § 1926 a presumption exists against construing statutes retroactively unless the legislature clearly and manifestly intends that construction. See also McMahon v. McMahon, 417 Pa.Super. 592, 601, 612 A.2d 1360, 1364 (1992) (where statute addresses substantive rights, retroactive application is disfavored). The new statute does not provide for retroactive application. Therefore, as the trial court decided the summary judgment motion prior to February 10, 1995, 40 P.S. § 1701.101 et seq. is controlling.


author: SAYLOR, Judge:

text:
    661 A.2d 416
    Samuel WALSH, Joanne Walsh, Appellees, v. Henrietta KUBIAK, Executrix, of the Estate of Richard Kubiak, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1995.
    Filed July 20, 1995.

      Lawrence G. McMichael, Philadelphia, for appellant.
    Barbara A. Axelrod, Philadelphia, for appellees.
    Before ROWLEY, P.J., and WIEAND, McEWEN, CIRILLO, DEL SOLE, KELLY, POPOVICH, FORD ELLIOTT and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from a judgment entered on a jury verdict in favor of Appellee, Samuel Walsh, in a medical malpractice action brought against decedent, Richard Kubiak, M.D. We affirm.

Samuel Walsh, a thirty-five year old ironworker and welder, began experiencing back pain and weakness in his legs while working at a job site in November of 1984. When Walsh’s symptoms increased in severity, he sought treatment from a chiropractor, who referred him to Dr. Richard Kubiak, an orthopedic surgeon. Dr. Kubiak first examined Walsh on November 15, 1984, and expressed the concern that Walsh might have a bulging disk. Accordingly, Dr. Kubiak recommended that Walsh undergo a myelogram in order to determine the source of the pain. On December 5,1984, Walsh was admitted to Nazareth Hospital; however, Dr. Kubiak apparently was unable to successfully complete the myelogram. Walsh did undergo a CAT scan, which indicated that he did not have a herniated disk, but only a mildly bulging disk. During this initial period of hospitalization, Walsh’s condition improved substantially and he was discharged to be treated as an outpatient.

Dr. Kubiak continued to treat Walsh on an outpatient basis until April 23, 1985, when Walsh was readmitted to the hospital for a second myelogram due to the recurrence of his pain. Although Dr. Kubiak was again unable to perform the myelogram successfully because he had improperly injected the dye, he kept Walsh in the hospital for observation. Dr. Kubiak requested a consultation from Dr. Scogna, a neurosurgeon, who observed Walsh on April 24, 1985. Dr. Scogna noted that Walsh’s sensory and motor responses and coordination were good and that his condition had significantly improved following bed rest. Accordingly, Dr. Scogna recommended in his consultation report that Walsh be observed as an outpatient on a continuing basis and that no surgery be performed at that time.

On April 30, 1985, Dr. Kubiak performed a lumbar laminectomy on Walsh, whereby disc material and some bone were removed from Walsh’s lower back. Prior to the surgery, Walsh was not informed of the material risks involved in the operation or of any non-surgical alternatives, nor was he informed of the type of operation which he was to undergo; rather, Dr. Kubiak simply informed Walsh that he was going to perform exploratory surgery, assuring him that the operation would be “a piece of cake” and that he would be “up and walking around the next day.” Although the hospital records indicate the existence of a signed consent form, the notes on Walsh’s patient chart reveal that as of the early morning hours on the day of the surgery, no consent form had been signed, and the record reveals that the consent form which was eventually executed was signed at a time when Walsh would have already received a pre-operative tranquilizer.

Following the operation, Walsh experienced difficulty with his bladder and bowel functions, increased pain in his back and legs, and sexual dysfunction. Although Walsh eventually gained more control over his bladder function, his other symptoms persisted and he was unable to return to work. Consequently, Walsh and his wife commenced suit against Dr. Kubiak in April, 1986; however, Dr. Kubiak died of cancer a few days after the complaint was filed and his wife, the appellant in this action, was substituted as a party in her capacity as the executrix of Dr. Kubiak’s estate.

Walsh’s action was premised upon three theories: (1) Dr. Kubiak’s negligence in deciding to perform the surgery rather than following a more conservative course of treatment; (2) Dr. Kubiak’s negligent performance of the surgery; and (3) Dr. Kubiak’s failure to obtain Walsh’s informed consent to perform the surgery. The parties began exchanging expert medical reports in March of 1987. At that time, Walsh supplied Appellant with the expert report of Dr. Romy, who opined that Dr. Kubiak had negligently performed the surgery. In January of 1991, Appellant supplied Walsh with the expert report of Dr. Murtagh, who had reviewed Walsh’s x-rays and medical records and had concluded:

[t]his is an accepted technique for this kind of surgery and represents current surgical practice---- It is evident that the bladder and bowel impairment is secondary to injury to the L5 nerve root, incurred as a result of perhaps some traction on the nerve root and the presence of some bleeding in the area. This is a well-known, infrequently occurring complication, which can occur regardless of the technique used for the surgery____ There appears to be no deviation from normal, accepted practice and surgical technique. There is no indication of negligence on the part of Dr. Kubiak.

In June of 1991, Walsh supplied Appellant with a supplemental report from Dr. Romy, wherein Dr. Romy again stated his opinion that Dr. Kubiak had breached the applicable standard of care in treating Walsh. In addition to reiterating his opinion in his original report that the surgery had been negligently performed, Dr. Romy also expressed the opinion that the surgery had been performed without Walsh’s informed consent, that the surgery had been ill-advised and unnecessary, and that the neurologic effects of the surgery were permanent. Upon receipt of Dr. Romy’s supplemental report, Appellant requested a postponement of the scheduled trial in order to review Dr. Romy’s conclusions. Despite the grant of a continuance, Appellant did not proffer any supplemental expert reports.

Trial commenced in September of 1991. At trial, Dr. Romy testified that Dr. Kubiak had been negligent in performing the surgery, that the surgery had been performed without Walsh’s informed consent, and that the surgery had been unnecessary. During his testimony, over the objections of defense counsel, Dr. Romy made reference to Dr. Scogna’s statements contained in his consultation report concerning the necessity of the surgery. Counsel’s objections were overruled, and Dr. Romy was permitted to testify that Dr. Scogna had stated in his report that surgery was not recommended.

At a conference in chambers immediately prior to the commencement of the defense’s case, Walsh’s counsel requested that the testimony of Appellant’s expert, Dr. Murtagh, be limited to the issue of whether Dr. Kubiak’s surgical technique and approach were the cause of Walsh’s injuries, namely, whether Dr. Kubiak was negligent in the manner in which he had performed the surgery. At that time, Walsh’s expert, Dr. Romy, had concluded his testimony, had been excused as a witness, and was no longer present at trial. Defense counsel, who sought to introduce Dr. Murtagh’s opinion testimony regarding the necessity of the surgery, objected. The trial court, over defense counsel’s objection, ruled that because the pre-trial report submitted by Dr. Murtagh only dealt with the issue of negligence in the performance of the operation, Dr. Murtagh’s testimony would be limited to “the four corners” of the report. Accordingly, Dr. Murtagh testified only concerning whether Dr. Kubiak had performed the surgery properly.

At the conclusion of trial, the jury answered special interrogatories. The jury found that Dr. Kubiak had been negligent in performing surgery which was unnecessary and that Dr. Kubiak had operated without obtaining Walsh’s informed consent. The jury found, however, that Dr. Kubiak had not been negligent in his operating technique and had performed the surgery correctly. A verdict was rendered in favor of Walsh in the amount of $2,600,000. Appellant filed a motion for judgment notwithstanding the verdict, or, in the alternative, a new trial. The trial court denied the motions and molded the verdict to include delay damages, resulting in a total verdict of $4,054,325.

Appellant appealed to the Superior Court, and a panel affirmed the judgment entered in favor of Walsh. Appellant petitioned for reargument before the Superior Court en banc. The petition was granted, and the matter is now before this court for disposition.

Appellant raises two issues for our review:

1) Whether the trial court erred in prohibiting Appellant’s expert from testifying regarding the necessity of the surgery?
2) Whether the trial court erred in permitting Walsh’s expert to testify regarding the hearsay opinion of Dr. Scogna?

Appellant claims that the trial court erred in its evidentiary rulings concerning the proposed trial testimony of her defense expert and the trial testimony of Walsh’s expert, and that such errors warrant the grant of a new trial. When reviewing a trial court’s denial of a motion for a new trial, this court is limited to determining whether there was a clear and palpable abuse of discretion or error of law which controlled the outcome of the case. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 595, 604 A.2d 270, 272 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992), citing Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987); Stover v. Association of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11, 635 A.2d 1047 (1993).

Appellant first contends that the trial court improperly precluded the defense’s expert from testifying regarding the necessity of the operation when such testimony was within the fair scope of the expert’s report and was therefore admissible under Pa.R.Civ.P. No. 4003.5(c). The admission of expert testimony is a matter within the sound discretion of the trial court, whose rulings thereon will not be disturbed absent a manifest abuse of discretion. Brogley v. Chambersburg Engineering Company, 306 Pa.Super. 316, 452 A.2d 743 (1982). Rule 4003.5(c) of the Pennsylvania Rules of Civil Procedure provides that an expert witness may not testify on direct examination concerning matters which are either inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or included in a separate report. Greer v. Bryant, 423 Pa.Super. 608, 621 A.2d 999 (1993). Specifically, the Rule provides:

To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under ... this rule, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings 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.

Pa.R.Civ.P. No. 4003.5(c). The Rule’s Explanatory Note states that “where the full scope of the expert’s testimony is presented in ... the separate report ... this will fix the permissible limits of his testimony at trial.” This limitation “serves to insure that an expert’s report will be sufficiently comprehensive and detailed to inform an opposing party of the expert’s testimony at trial.” Havasy v. Resnick, 415 Pa.Super. 480, 492, 609 A.2d 1326, 1331 (1992).

Thus, “[e]xperts may testify at trial concerning matters which are within the fair scope of a pretrial report.” Pascale v. Hechinger Company of Pennsylvania, 426 Pa.Super. 426, 435, 627 A.2d 750, 754 (1993) (citations omitted). “The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert’s proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report.” Id. (citation omitted).

In Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 348 Pa.Super. 285, 502 A.2d 210 (1985), the Superior Court noted that

it is impossible to formulate a hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary’s request, “the substance of the facts and opinions to which the expert is expected to testify” is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa.Super. [194] at 199, 481 A.2d [319] at 321 [ (1984) ] (“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise”); Martin v. Johns-Manville Corp., 322 Pa.Super. [348] at 358, 469 A.2d [655] at 659 [ (1983) ] (“[W]e have found experts’ reports to be adequate ... when the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare á rebuttal witness.”)
In other words, in 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.

Id., 348 Pa.Super. at 290, 502 A.2d at 212-213.

Thus, in determining whether an expert’s trial testimony falls within the fair scope of his pre-trial report, the trial court must determine whether the report “provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.” Hickman v. Fruehauf Corporation, 386 Pa.Super. 455, 459, 563 A.2d 155, 157 (1988), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991) (citation omitted). The trial court must also inquire “whether there has been surprise or prejudice to the party which is opposing the proffered testimony of the expert, based upon any alleged deviation between the matters disclosed during discovery, and the testimony of such expert at trial.” Trent v. Trotman, 352 Pa.Super. 490, 502, 508 A.2d 580, 587 (1986). “What constitutes surprise and prejudice, however, depends upon the pre-trial particulars of each case.” Augustine by Augustine v. Delgado, 332 Pa.Super. 194, 199, 481 A.2d 319, 321 (1984).

Here, the pre-trial report of Appellant’s expert stated that his opinion was that “[tjhere is no indication of negligence on the part of Dr. Kubiak.” The report briefly described the surgical technique employed by Dr. Kubiak and then stated that such technique was an accepted one which represented current surgical practice. Nowhere in the report was there any mention of the medical necessity of the surgery, an issue which Walsh had raised prior to trial, nor did the report state the basis upon which Dr. Murtagh would be prepared to formulate and express an opinion concerning this issue. Because nothing in the report would have lead Walsh to anticipate that Dr. Murtagh had formed or would express the opinion at trial that the surgery was in fact necessary, the report lacked sufficient comprehensiveness and detail to inform Walsh of the defense’s expert testimony. Accordingly, the opinion contained in Dr. Murtagh’s report was limited to the issue of whether Dr. Kubiak had negligently performed the surgery, and any proposed testimony concerning the necessity of the surgery was outside the scope of such report.

Because a fair reading of Dr. Murtagh’s report does not provide sufficient notice concerning any opinion on his part that the surgery was indeed necessary, Walsh would not have been able, based upon the report, to anticipate such testimony and adequately prepare to cross-examine Dr. Murtagh and rebut his testimony on such point. Furthermore, Walsh’s expert, Dr. Romy, the only expert witness who could have rebutted Dr. Murtagh’s proposed testimony, had already testified and had been dismissed as a witness at the time of Dr. Murtagh’s testimony. Therefore, Walsh had no expert witness available to listen to and observe the testimony of the defense’s expert in order to assist Walsh’s counsel in challenging Dr. Murtagh’s opinion on cross-examination and in preparing a proper rebuttal. Accordingly, Walsh would have been prejudiced by the introduction of Dr. Murtagh’s testimony, and the trial court properly limited the scope of Dr. Murtagh’s testimony to the issue of whether the surgery was negligently performed, as discussed in the expert report.

Appellant’s second contention is that the trial court erred in permitting Walsh’s expert, Dr. Romy, to testify regarding the out-of-court statements of the consulting physician, Dr. Scogna, that the surgery was unnecessary. Appellant contends that the opinion of Dr. Scogna was inadmissible hearsay, and that the admission of such testimony resulted in reversible error, warranting a new trial.

Dr. Scogna’s opinion was contained in his consultation report which was part of Walsh’s hospital records. Although hospital records are admissible under the business records exception to the hearsay rule to show the fact of hospitalization, treatment prescribed, and symptoms found, Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987), medical opinion contained in such records is not admissible where the doctor who offered the opinion is not available for cross examination. Id.; see also, Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975); Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). Because Dr. Scogna’s consultation report contained an expression of his examination findings, his recommendation that Walsh should be observed and treated on an outpatient basis, and his impression that surgery was unnecessary, his statements contained in the report constituted an opinion, and as such, were inadmissible hearsay to which Dr. Romy should not have been permitted to testify.

Although Appellant is correct in asserting that the trial court erred in admitting the hearsay statements of Dr. Scogna through the testimony of Dr. Romy, not all trial errors rise to the level of reversible error. Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987). “An erroneous ruling must also be harmful to the complaining party before reversal is required.” Id., 513 Pa. at 308, 520 A.2d at 1378, citing Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965).

In the instant case, Dr. Romy’s hearsay testimony concerning Dr. Scogna’s opinion pertained solely to the issue of whether the surgery was necessary and merely buttressed Dr. Romy’s expert opinion on that point. The jury, however, separately determined that Walsh was entitled to recover based upon the lack of informed consent, and there is ample evidence on the record to support the jury’s finding in that regard.

The testimony of Walsh and his expert at trial established that Walsh was not advised by Dr. Kubiak of the nature and risks of the operation, nor was Walsh advised of any nonsurgical alternatives. Rather, Dr. Kubiak merely informed him that the “exploratory surgery” would be a “piece of cake.” The nurses’ notes included in Walsh’s hospital records indicate that Dr. Kubiak had not discussed the kind of surgery with Walsh prior to performing the operation. Furthermore, the hospital records indicate that a consent form had still not been obtained as of 12:30 a.m. on the morning of the operation, and the only evidence presented regarding Walsh’s alleged consent was a consent form which appeared to have been signed between 7:00 a.m. and the time of surgery, after Walsh had already received a preoperative tranquilizer. Additionally, Dr. Murtagh’s expert report indicated that the neurological impairment experienced by Walsh was “a well-known, infrequently occurring complication, which can occur regardless of the technique used for the surgery.” The record does not indicate that Dr. Kubiak ever advised Walsh of the possibility of such a well-known complication.

Thus, there was more than sufficient evidence by which the jury could have reasonably concluded that Walsh had not been informed of material facts, risks, complications, and alternatives to surgery which a reasonable person would have considered significant in deciding whether to have the operation, see, Stover v. Association of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11, 635 A.2d 1047 (1993), and the outcome of the trial would not have differed had the challenged testimony been excluded.

Accordingly, Appellant is not entitled to a new trial and the judgment entered on the jury verdict is affirmed.

Judgment affirmed.

      . Dr. Kubiak died shortly after the complaint was filed and his wife, Henrietta Kubiak, was substituted as the defendant in her capacity as executrix of his estate. It is Henrietta Kubiak who is the appellant in this action.

      . Walsh was married at the time of his injury and through the commencement of this action. Walsh and his wife subsequently divorced in 1988 for reasons which were unrelated to this proceeding. The original complaint included a claim by Walsh’s wife for damages premised upon a loss of consortium; however, this claim was withdrawn at the time of trial, and Walsh’s wife did not participate in the proceedings before the trial court and is not a party to this appeal.