author: KELLY, Judge:

text:
    533 A.2d 436
    Constance L. McDANIEL, as Administratrix of the Estate of Carol M. Lee, and on behalf of Paul T. Lee, a minor and Elizabeth R. Lee, Appellants, v. MERCK, SHARP & DOHME, the Western Pennsylvania Hospital, Kenneth Melani, M.D., Lester A. Dunmire, M.D., John H. Goodworth, M.D., Timothy Kavic, M.D. and Paul Kim, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1986.
    Filed Sept. 15, 1987.
    Reargument Denied Nov. 17, 1987.

      Frank M. McClellan, Pittsburgh, for appellants.
    Raymond G. Hasley, Pittsburgh, for Merck, Sharp & Dohme, appellees.
    John C. Conti, Pittsburgh, for Western Pennsylvania Hosp. and Melani, Kavic and Kim, appellees.

      John W. Jordan, IV, Pittsburgh, for Dunmire and Good-worth, appellees.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   KELLY, Judge:

In this trespass action, plaintiff-appellant, Constance L. McDaniel, as Administratrix of the Estate of Carol M. Lee, appeals from an order of the Court of Common Pleas of Allegheny County denying her post-trial motions for the removal of a compulsory non-suit and judgment n.o.v. as to appellee, Merck, Sharp & Dohme (hereinafter Merck), and denying motions for a new trial and judgment n.o.v. as to appellees, Dr. John H. Goodworth, Dr. Timothy Kavic, and Western Pennsylvania Hospital (hereinafter West Penn). We reverse and remand this case to the Court of Common Pleas of Allegheny County for a new trial and for removal of the non-suit.

Although the legal issues presented will require extended discussion, the underlying facts may be briefly stated. On February 25, 1982, decedent, Carol M. Lee, visited appellee West Penn’s emergency room complaining of a sore throat. She was diagnosed as having streptococal pharyngitis, received treatment, and was discharged. Nonetheless, her condition worsened and she returned to the hospital on February 28, 1982.

Decedent was diagnosed by appellee, Dr. Kavic (a surgical resident at West Penn), as having acute appendicitis. Decedent was admitted for surgery and put under the supervision of the hospital’s surgery staff. The attending physician on that date was Dr. Dunmire. Blood studies were ordered, and the first dose of the antibiotic Mefoxin was prescribed by Dr. Kim, and administered. Mefoxin, also referred to as Cefoxitin, is an antibiotic belonging to a group of drugs known as cephalosporins. It is a registered trademark of Merck and is registered with the United States Food and Drug Administration.

By noon, decedent was anemic. Following an appendectomy performed by Dr. Dunmire on the evening of February 28, Mefoxin was again administered. Because the supervising physician is generally assigned to the surgery staff for only a thirty day period, Dr. Goodworth assumed supervision of the case the next day, replacing Dr. Dun-mire.

Post-operatively, the decedent developed a wound infection and manifested an elevated temperature. Mefoxin was continuously administered from February 28 until decedent’s death on April 4, 1982, except for a three day period while Dr. Kavic was on vacation. Decedent underwent three subsequent operations to treat her infection. Nevertheless, her fever continued and she developed a severe case of hemolytic anemia with bone marrow depression, which ultimately precipitated her death.

Appellant, Administratrix of decedent’s estate, filed her original complaint on July 15, 1983 and amended that complaint on October 20, 1983, on March 28, 1984 and on November 10, 1984. After preliminary objections were heard, appellant’s causes of actions remaining for trial included: a claim against Merck under the Restatement of Torts (Second) § 402A; claims against Dr. Melani for failure to elicit informed consent from decedent and for failure to properly perform an appendectomy and administer the drug Mefoxin; a claim against West Penn for failure to properly supervise its staff; claims against Drs. Dunmire, Goodworth, Kavic and Kim for failure to consult specialists and for failure to discontinue the administration of Mefoxin post-operatively. The causes of action which were dismissed included claims against Merck under the Restatement of Torts (Second) § 402B and in tort for misrepresentation, and a claim against all defendants for punitive damages.

Trial began on June 17, 1985. During the trial, testimony of several of appellant’s proferred expert witnesses was excluded, or limited in scope. In addition, reports acquired from Merck through appellant’s discovery process which concern adverse reactions to the drug Mefoxin were also excluded. On June 27, 1985, following the close of appellant’s evidence on the issue of liability, the trial court granted a compulsory non-suit in favor of Merck and Drs. Dunmire and Melani, and against appellant. The trial court asserted that appellant failed to present sufficient evidence that the product was defective or that lack of an adequate warning was the proximate cause of decedent’s death. The trial court further noted that appellant presented no expert witness qualified to render an opinion as to the cause of decedent’s death. On July 3, 1985, the jury returned a verdict in favor of the remaining defendants, Drs. Good-worth and Kavic, and West Penn.

Post-trial motions were heard and denied. Timely appeal to this Court followed. Appellant argues three allegations of trial court error on appeal, with multiple sub-arguments.

I. THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING, WHOLLY AND IN PART, CERTAIN EXPERT TESTIMONY.
A. The Trial Court Abused Its Discretion In Excluding The Testimony of Dr. David Gary Smith.
B. The Trial Court Abused Its Discretion In Excluding The Testimony of Dr. John Adriani.
C. The Trial Court Abused Its Discretion In Limiting The Testimony of Dr. Bennett Lorber.
D. The Trial Court Abused Its Discretion In Excluding The Testimony of Dr. Robert McCleery.
E. The Trial Court Abused Its Discretion In Limiting The Testimony of Dr. Richard Eisenstaedt.
II. THE TRIAL COURT ERRED IN GRANTING A NON-SUIT IN FAVOR OF MERCK AND DENYING McDANIEL’S REQUEST FOR POST-TRIAL RELIEF.
A. An Order Granting A Non-Suit Was Improper.
1. The court improperly excluded evidence which would have supported McDaniel’s allegations that Merck manufactured and sold a defective product.
2. The trial court erred in preventing McDaniel to impeach Dr. William S. Beck.
3. The court improperly excluded evidence which would have supported McDaniel’s allegations that Mefoxin caused the death of decedent.
B. The Court Erred As A Matter Of Law In Granting A Non-Suit In Favor Of Merck.
III. THE TRIAL COURT ERRED IN DENYING CLAIMS FOR PUNITIVE DAMAGES AGAINST MERCK, WEST PENN, AND DRS. KAVIC AND GOODWORTH.

We shall address these contentions seriatim.

I. EXPERT TESTIMONY

A. DR. DAVID GARY SMITH

Appellant offered into evidence the videotaped deposition of Dr. David Gary Smith, M.D. Dr. Smith was to testify to the standard of care required of the treating physicians, specifically their failure to discontinue the administration of the drug Mefoxin and their failure to obtain an appropriate consultation with a medical specialist when decedent’s fever continued after her appendectomy. His testimony was also offered on the issue of causation. Dr. Smith’s testimony was excluded at trial because, as the trial judge stated, Smith wasn’t qualified, and “[h]e doesn’t give the correct answers as to his opinion consistent with the law____” (N.T. at 259). Appellant asserts the court’s ruling was error. We agree.

The law regarding the qualification of witnesses as experts is well established. It is true that whether a witness has been properly qualified to give expert opinion testimony is vested in the discretion of the trial court. Abbott v. Steel City Piping Co., 437 Pa. 412, 421, 263 A.2d 881, 885 (1970). “The Pennsylvania standard of qualification for an expert witness is a liberal one. ‘If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury.’ Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974).” Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 597-598, 437 A.2d 1198, 1201 (1981) (plurality opinion). Although the witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire that knowledge as a result of formal schooling; expertise acquired by experience is expertise nonetheless. Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222 (1985). See e.g. Rutter v. Northeastern Beaver County School District, supra; Abbott v. Steel City Piping Co., supra; Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967).

The determination of whether a witness is a qualified expert involves two inquiries:

When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is ‘so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman.’... If the subject is of this sort, the next question the court should ask is whether the witness has ‘sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.’

Dambacher v. Mallis, 336 Pa.Super. 22, 35-36, 485 A.2d 408, 415 (1984) (citations omitted).

Dr. Smith is a licensed practicing physician, board certified in the specialty of internal medicine. As an attending physician, Dr. Smith is responsible to oversee and direct the care of hospitalized patients. In addition, Dr. Smith teaches as an assistant professor of medicine at Temple University and serves on the staff of Temple University Hospital. As a professor, he directs required courses in clinical decision-making. Dr. Smith has pursued a specialty in clinical epidemiology and clinical decision-making; these areas do not yet receive board certification. Finally, he has prescribed and treated patients with Mefoxin, and has provided care to patients suffering from hemolytic anemia.

Due to Dr. Smith’s training, education and experience, we find that he had a “reasonable pretension to specialized knowledge” on at least one of the subjects under investigation: the post-operative care of the decedent. Kuisis, supra. The combination of his areas of specialization, internal medicine and clinical decision-making, rendered him qualified to aid the jury in its deliberations. Dambacher, supra. We find that it constituted an abuse of discretion for the trial court to exclude his depositional testimony as to the standard of post-operative care.

Dr. Smith’s report, filed pre-trial, refers in several instances, to the need to consult an expert in hematology “to shed some light” upon issues that Dr. Smith, by his own admission, was not qualified to render an expert opinion. These issues include decedent’s bone marrow failure and the blood transfusions given decedent post-operatively. However, both in his pre-trial report, and in his depositional testimony, Dr. Smith expressed, with a reasonable degree of medical certainty, his opinions regarding: the failure to adequately evaluate the hematological problems of decedent; the effect of the continuation of Mefoxin treatment after decedent’s blood values evinced a decline; and the effect of the nine-day delay in requesting expert consultation. Although Dr. Smith is not a hematologist, as a specialist in internal medicine and clinical decision-making he was qualified to testify to his opinion that a hemotologist should have been consulted; furthermore, he was qualified to testify as to the inadequate care given decedent by continuing to administer Mefoxin.

Exclusion of Dr. Smith’s testimony constituted harmful, prejudicial, and reversible error necessitating reversal and remand for a new trial as to the causes of action against Drs. Goodworth and Kavic, and West Penn.

B. DR. JOHN ADRIANI

The trial court also excluded the testimony of Dr. John Adriani (N.T. at 27). Dr. Adriani is a medical doctor with a specialty in anesthesiology. In addition, Dr. Adriani has taught pharmacology at Louisiana State University; he edited the first edition of the American Medical Association (AMA) text on Drug Evaluations; he served on various national committees preparing standards on drug purity; he serves as a consultant with the Food and Drug Administration; he is the administrator of the blood bank at Charity Hospital in New Orleans; he inspects residency programs for the AMA.

However, by his own admission, Dr. Adriani’s extensive and impressive pharmacology experience has focused on anesthetics. Although generally familiar with Mefoxin through the literature available, he has never studied or conducted research on the drug nor reviewed the clinical reports on Mefoxin. (See deposition transcript at 43-45).

Dr. Adriani was proferred to testify to: 1) the cause of death; 2) the inadequate supervision by West Penn of its staff; and 3) the attending physicians’ failure to ascertain the source of decedent’s post-operative infection and in continuing the antibiotic Mefoxin.

The trial court properly ruled Dr. Adriani was not competent to testify as an expert on matters at issue in this case. Kuisis, supra. First, Dr. Adriani’s pharmacology expertise was in the area of anesthetics, not antibiotics; he had no experience, either through clinical use, or through research, with the drug Mefoxin. Thus he was not qualified to express an opinion upon whether Mefoxin was the exact cause of decedent’s fatal illness. Secondly, Dr. Adriani’s years of hospital administration were focused on the administration of a blood bank rather than upon the supervision of attending physicians or surgeons; therefore he was not qualified to express an opinion on any possible negligence of West Penn in supervising its surgical staff. Finally, Dr. Adriani's pretrial report does not reflect any opinion that specialists should have been consulted at an earlier stage of decedent’s illness; therefore, Dr. Adriani could not have aided the factfinder’s deliberations as to any possible negligence in failing to consult specialists. Dambacher, supra. While Dr. Adriani may have been qualified to express an opinion that the continued use of Mefoxin was substandard care, by his own admission, he had no reasonable pretension to specialized knowledge of the drug. (Deposition at 43). Kuisis, supra. In addition, other doctors had already testified on this issue and Dr. Adriani’s testimony would only have been cumulative. Accordingly, we find that the trial court commited no abuse of discretion in excluding his testimony.

C. DR. BENNETT LORBER

Although Dr. Bennett Lorber was permitted to testify at trial, his testimony was limited in that he was not allowed to express any opinion as to the exact cause of death. Dr. Lorber testified, to a reasonable degree of medical certainty, that Mefoxin caused decedent’s fever; however, his testimony that the drug also caused decedent’s hemolytic anemia and her death was stricken by the trial court. (N.T. at 385).

In striking Dr. Lorber’s opinion that Mefoxin caused decedent’s hemolytic anemia and death, the trial court ruled, essentially, that only a hemotologist would have been qualified to express an opinion on that causation issue. “[H]is testimony indicates that he had no more expertise concerning the drug than any other physician who would prescribe it.” (Trial Ct.Op. at 32). We find that the trial court’s ruling was erroneous.

The standard of qualification of an expert is “a liberal one.” Rutter, supra. Experts in one area of medicine have been ruled qualified to address other areas of specialization where the specialties overlap in practice, or where the specialist has experience in another related medical field. See, e.g. Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985) (urologist qualified to testify against surgeon to evaluate surgeon’s performance in hysterectomy where urologist was familiar and had assisted in performance of other hysterectomies); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982) (professor of pharmacology qualified to testify to post-operative care given by orthopedic surgeon with respect to drug administered to patient); Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974) (surgeon permitted to testify in medical malpractice action as to causation against radiologist where surgeon was knowledgeable through experience as to x-ray treatments); Christy v. Darr, 78 Pa.Cmwlth. 354, 467 A.2d 1362 (1983) (neurosurgeon qualified to testify on causation in personal injury cases where plaintiff suffered double vision and hearing loss despite objection that such testimony concerned problems outside neurosurgical specialty); Workmen’s Compensation Appeal Board v. Jones E. Laughlin Steel Corp., 22 Pa.Cmwlth. 469, 349 A.2d 793 (1975) (orthopedist permitted to testify to causation, and urological and pyschological effects of fractured pelvis). The rationale behind the standards enunciated in these cases is that the qualified witness need only have a reasonable pretension to specialized knowledge; the standard is not set so high as to exclude the kind of testimony ordinarily available.

Dr. Lorber has such a reasonable pretension to specialized knowledge. He is a licensed, practicing physician affiliated with Temple University teaching hospital. He is a board certified specialist in both internal medicine and infectious diseases. As such, he is precisely one type of specialist that appellant asserted the defendant physicians should have consulted. Dr. Lorber prescribes Mefoxin in the course of his treatment; he started prescribing the antibiotic approximately five years prior to the trial. Although he never conducted laboratory or clinical studies of the drug, nor did he conduct a complete literature search, he did read journal reports on the drug; “... as part of my job as an infectious disease physician I am required to be familiar with anticoagulants of all varieties____ I was familiar with reports of the drug Mefoxin, Cefoxitin.” (N.T. at 302-303). We note that the testimony of a physician who has prescribed the drug for more than five years could certainly aid the jury in its deliberations. Dr. Lorber would also, as would any qualified physician, understand and recognize anemias and would be able to evaluate probable causes of anemias. (See N.T. at 332).

Accordingly, Dr. Lorber, as a specialist who is familiar with Mefoxin, both through the literature and through prescribing the drug, and who is qualified to diagnose anemias should be permitted to testify at re-trial on all issues of causation. We hold that the trial judge abused his discretion by prohibiting Dr. Lorber from expressing his expert opinion. Thus, we reverse and remand the case for a new trial as to appellees, Drs. Goodworth and Kavic, and West Penn.

D. DR. ROBERT McCLEERY

Dr. Robert McCleery was excluded from testifying at trial by a court ruling at the pre-trial conference for failure to comply with Allegheny County Local Rule 212. Dr. McCleery failed to complete a written report of his expected testimony by the time appellant's pre-trial statement was filed on June 3, 1985. Accordingly, Dr. McCleery was not permitted to testify. Appellant contends this result was error. We agree.

Our Supreme Court has recently reiterated the approach appellate courts should take toward local procedural rules:

This Court’s approach to the enforcement of procedural rules, whether local or state-wide, is dictated by the facts and circumstances in each individual case. To analyze otherwise would exalt procedural rules, which were created for efficiency and fairness, to a status far beyond their inherent power. “It has been our policy to overlook ... procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. ‘Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives.’ ” Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978) (citation omitted).
Additionally, this Court has previously held that local rules cannot be construed so as to be inconsistent with the prevailing state-wide rules. See Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983).

Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 572, 517 A.2d 1270, 1272 (1986).

The state-wide rule which applies to the discovery of expert testimony is Pa.R.C.P. 4003.5. The rule provides that a party may learn “the substance of the facts and opinions to which the expert is expected to testify.” The substance may be revealed through interrogatory answers or through reports. Pa.R.C.P. 4003.5(a)(1)(b). However, the rule does not state that exclusion of testimony is the unvarying remedy for failure to comply with discovery. Rather, an expert may be excluded from testifying if the court determines there are no “extenuating circumstances beyond the control of the defaulting party.” See Pa.R.C.P. 4003.5, Explanatory Note (3).

Thus the state rule “... specifically provides that the presiding court must balance the facts and circumstances of each case to determine the prejudice to each party.” Feingold, 517 A.2d at 1273. The basic considerations the court must weigh include:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith of (sic) willfulness in failing to comply with the court’s order.

Feingold, 517 A.2d at 1273, quoting Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 21, 488 A.2d 284, 288 (1985).

Our examination of the trial court’s deliberation demonstrates no such balancing process occurred. Rather, we note that appellant, as early as November 1984, some seven months before the June 1985 trial, listed Dr. McCleery as an expert witness in answers to defendant’s interrogatories. Appellant informed defendants in those interrogatories that the doctor was to testify to the defective or misbranded label attached as a package insert to Mefoxin. Furthermore, Dr. McCleery’s currículum vitae was attached to the interrogatories. “By allowing for early identification of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of experience on the spot.” Sindler v. Goldman, 309 Pa.Super. 7, 12, 454 A.2d 1054, 1056 (1982). Dr. McCleery’s identity and his conclusion that Mefoxin had been improperly labelled were revealed early in the discovery process. Thus, Dr. McCleery would not have been a surprise witness.

The doctor was available for deposition through the pretrial process. Further, appellant offered defendants the doctor’s working notes in place of a report. Thus, appellant made some effort to cure the lack of a report. In addition, appellant asserts the delay in receiving documents from defendants resulted in Dr. McCleery’s delay in preparing a report explaining his conclusion. Appellant did not receive the requested documents until May 21, 1985, Dr. McCleery received them later that week, and the appellant’s pre-trial statement (which listed Dr. McCleery as a witness but did not contain any report from the doctor) was filed on June 3, 1985, less than two weeks later and some two weeks before trial. This abbreviated time-table weighs, in a balancing process, to show there was no bad faith indicated by appellant’s failure to file the doctor’s report.

Accordingly, we must conclude that the trial court erred by its automatic application of the local rule of exclusion rather than by balancing the facts and circumstances of this case. Feingold, supra. As no surprise or prejudice to the defendants was demonstrated, and no bad faith was shown by appellant in failing to provide the doctor’s written pre-trial report, we hold that it was an abuse of discretion to exclude Dr. McCleery from testifying.

E. DR. RICHARD EISENSTAEDT

Dr. Richard Eisenstaedt is a physician and associate professor of medicine at Temple University, board certified in internal medicine, hematology and oncology. He frequently consults with practicing physicians diagnosing blood problems, particularly drug-induced blood problems. (N.T. at 401). He was retained by appellant to render an opinion with respect to the cause of decedent’s anemia and her death.

At trial, Dr. Eisenstaedt was not permitted to testify to the “propriety or impropriety of the blood transfusion on February 28, 1982.” (N.T. at 91). The court noted that, as late as the pre-trial conference, appellant had not alleged in pleadings that the blood transfusion was a factor in the case; appellant agreed with the court. (N.T. at 90). Dr. Eisenstaedt had, in his pre-trial report, questioned the decision to transfuse decedent and concluded “[t]he role of these transfusions in her subsequent blood disease is unknown.” Nonetheless, during Dr. Eisenstaedt’s testimony, appellant attempted to elicit testimony “that the giving of the transfusion was a contributing factor ... because it clouded the picture with respect to allowing the physician to identify the true source of the hemolysis____” (N.T. at 431). The trial court ruled that the prejudice from admitting the changed opinion would outweigh its benefit, and in fact “would have only served to confuse the jury as to the actual claims against defendants.” (Trial Ct.Op. at 40). We agree with the trial court, and affirm its disposition of this issue.

First, appellant originally failed to plead that it constituted negligence to post-operatively transfuse the decedent; appellant never requested to amend her complaint to include such a theory of negligence. Second, Dr. Eisenstaedt’s pre-trial report gave no indication that the expert would testify that the transfusion was a “contributing factor,” but only that its role in decedent’s demise was “unknown.” Thus, defendants had no notice before trial of the doctor’s change in opinion; appellant revealed the change in opinion for the first time at sidebar conference during the doctor’s testimony. Appellees would have been taken by surprise at trial had such testimony been admitted. See Ingrassia Construction Co. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). Third, the jury was allowed to hear sufficient testimony from Dr. Eisenstaedt and others to explain the history of the blood transfusion and its impact on decedent’s blood values. (See e.g. N.T. at 433-434, 443-449). Finally, admission of the opinion testimony would only serve to encourage the jury to improperly speculate on an extraneous matter not at issue in the trial. Accordingly, we find no abuse of discretion and we affirm the trial court’s ruling excluding that opinion.

II. NON-SUIT

The trial court granted defendant Merck a non-suit at the conclusion of appellant’s case in chief. The trial court ruled that appellant failed to state a cause of action in strict liability against Merck. Appellant argues on appeal that the non-suit should not have been granted because the trial court improperly: 1) excluded testimony of expert witnesses; 2) excluded drug reaction reports; 3) and limited cross-examination of defendant’s expert witness, Dr. William Beck. We grant removal of the non-suit, on the following basis.

1. EXCLUSION OF TESTIMONY

It is well-settled that a judgment of non-suit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain a cause of action. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Since we have ruled that the trial court erred in excluding the testimony of Dr. McCleery, and in limiting Dr. Lorber’s testimony, we conclude appellant was improperly prevented from presenting sufficient evidence to prove elements of strict liability against Merck; accordingly, the non-suit must be removed.

Section 402A of the Restatement (Second) of Torts imposes strict liability on the seller of any product ‘in a defective condition unreasonably dangerous to the user or consumer’____ Comment (h) to the section makes clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a ‘defective condition’. Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 219 (1971). Where a prescription drug is accompanied by proper warnings, the manufacturer is ‘not strictly liable for unfortunate consequences attending the use of otherwise useful and desirable products which are attended with a known but apparently reasonable risk. Rather, such a manufacturer is liable only if he fails to exercise reasonable care to inform, those for whose use the article is supplied of the facts which make it likely to be dangerous.’ Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 (1984). In the case of prescription drugs, the warning required is not to the general public or to the consumer but rather to the prescribing doctor.

Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 595-96, 523 A.2d 374, 377 (1987) (citations omitted) (emphasis added).

Appellant’s theory of liability against Merck was that Merck knew Mefoxin had induced hemolysis, and could cause fatal hemolytic anemia but Merck marketed Mefoxin without providing the medical community with adequate warning of these risks, and so proximately caused decedent’s death. Dr. MeCleery would have testified that Mefoxin’s warning label was inadequate. Without McCleery’s testimony, appellant was unable to establish that element of his action. Had Dr. Lorber been permitted to testify, he could have supplied another element of the action—that the improperly marked Mefoxin was a substantial factor in causing decedent’s hemolytic anemia and death. See Car recter v. Colson Equipment Co., 346 Pa.Super. 95, 499 A.2d 326 (1985).

Accordingly, we remand for removal of the compulsory non-suit as to appellee Merck.

2. EXCLUSION OF EVIDENCE

Appellant contends the trial court erred by refusing to compel defense expert witness Dr. Christopher Martin to appear at trial. Appellant claims to have attempted to serve a subpoena on Dr. Martin unsuccessfully, prior to trial. Although this issue is moot in light of our remand for new trial, and removal of the non-suit, we note that the court had the power to enforce a valid subpoena. See 42 Pa.C.S.A. § 5905. As appellant failed to either produce her subpoena, or to take advantage of the court’s ability to enforce the alleged subpoena, we conclude appellant’s argument in this matter has no merit. {See N.T. at 9-12).

Appellant also contends that the trial court erred by excluding reports detailing adverse drug reactions, including anemia, blood dyscrasia and bone marrow depressions, occurring after Mefoxin was administered. (N.T. at 595-598). The reports were intended to demonstrate Merck’s knowledge of the risks of Mefoxin which appellant claims was not communicated to the medical community. The trial court based its ruling excluding the reports upon the fact that appellant offered the reports in evidence without any supporting testimony, and that the reports were “sufficiently technical, complex” that they required an expert’s explanation. (N.T. at 598). Appellant explained she intended to have Dr. Martin explain the reports to the jury. The reports were indeed technical and complex and not capable of aiding the jury without an accompanying expert explanation. On appeal, appellant argues the reports could have been explained by Dr. McCleery, had he been permitted to testify. We note this issue is also moot in light of our remand for a new trial. However, on re-trial, should appellant present the reports with an expert whose testimony would explain their significance, the evidence should be admitted.

3. CROSS-EXAMINATION OF DR. BECK

Appellant argues the trial court erroneously limited cross-examination of defense expert witness, Dr. William Beck. Dr. Beck testified that he had conducted a search of the medical literature regarding Mefoxin and anemias. (N.T. at 703). Appellant then sought to cross-examine Beck, using medical authorities and treatises, to impeach Beck’s statement that Mefoxin was only rarely reported to be associated with anemia. The court, in sustaining objection to the use of any treatise with which Dr. Beck was unfamiliar, stated:

You can ask him about any publication in the world—let me finish—but he says I am not familiar with it, the publication, the article or the doctor, that is the end of it.
[Appellant’s counsel]: Fine, your Honor.
THE COURT: You are not going to go into Dr. A who appeared here three days ago, recognize it. You argue that to the jury.
[Appellant’s counsel]: No, your Honor. I think what we are saying is that the law, so long as any witness has testified that the journal or article or book is authoritative one can use it on cross examination.
I don’t think you have to have the particular witness who is being cross examined, someone has to authenticate it during the—
THE COURT: That is not the law as I understand it____

(N.T. at 744). The opinion of an expert witness may be tested by reference to standard works, Cummings v. Nazareth Borough, 430 Pa. 255, 242 A.2d 460 (1968), or to the works of others which the witness considered in forming his opinion. It is also proper to show that an expert is unfamiliar with the literature in a particular field. Cummings v. Nazareth Borough, supra.

Alternatively, as long as appellant has produced her own expert to verify that the particular publications are authoritative in the field, an expert witness may be tested by reference to those publications. Evanuik v. University of Pittsburgh Western Psychiatric Institute and Clinic, 234 Pa.Super. 287, 338 A.2d 636 (1975). Accord Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982); Foster v. McKeesport Hospital, 260 Pa.Super. 485, 394 A.2d 1031 (1978).

Thus, we conclude the trial court erred in its interpretation of the law; where “Dr. A who appeared here three days ago” recognized a treatise as authoritative, appellant should have been able to use that treatise as a basis for cross-examining Dr. Beck. See Evanuik, supra. Appellant did not attempt to further cross-examine Beck with reference to treatises appellant’s experts had authenticated; however, in light of the trial court’s overbroad ruling, appellant’s continued attempts would likely have been futile. Accordingly, if appellant at re-trial properly attempts to cross-examine appellees’ expert by reference to a text which has been authenticated as authoritative, through the prior testimony of a qualified expert, such cross-examination should be permitted.

III. PUNITIVE DAMAGES

Appellant argues the trial court erred in denying claims for punitive damages against appellees. The trial court, in response to appellee’s preliminary objections, dismissed the claim for punitive damages because appellant had pled “nothing but conclusory statements that the conduct of the defendants was ‘willful, wanton and reckless’ ... without allegations of fact in support thereof.” (Trial Ct.Op. at 34). We affirm the trial court’s ruling on this issue with regard to appellees Dunmire, Kavic and West Penn, but reverse as to appellee Merck.

Pennsylvania has adopted the principles of the Restatement of Torts (Second) § 908(2) governing punitive damages.

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. See Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985) (per Hutchinson, J. with one justice concurring and four justices concurring in the result). Appellant failed to allege any facts in its complaint against defendant physicians, or hospital, other than those which would constitute ordinary negligence. Accordingly, we affirm the trial court’s dismissal of the punitive damages claims as to those defendants.

However, appellant pled sufficient facts to allow a punitive damages claim against Merck. Appellant’s complaint alleged that appellee Merck knew of a serious risk of illness and death resulting from Mefoxin use, and deliberately and negligently failed to communicate that knowledge to the medical community. This allegation concerning Merck’s culpable state of mind provided a sufficient basis for a punitive damages claim because it alleged misconduct on Merck’s part beyond that conduct required in the underlying strict liability claim. “The state of mind of the actor is vital [in a punitive damages claim].” Feld v. Merriam, 506 Pa. 383, 396, 485 A.2d 742, 747 (1984). Where appellant in pleadings alleged facts that demonstrate the requisite state of mind, punitive damages may be awarded. Accordingly, we reverse the trial court’s dismissal of the punitive damages claim as to appellee Merck.

Order reversed; case remanded for new trial as to appellees Western Pennsylvania Hospital and Drs. Goodworth and Kavic, and for the removal of the compulsory non-suit and a new trial as to appellee Merck, Sharp & Dohme, consistent with this opinion. Jurisdiction relinquished.

      . Appellant does not allege that entry of the non-suit as to Dr. Dunmire was error. Accordingly, he is not a party to this appeal.

      . The trial court noted that "Dr. Kim was identified in the complaint but was never served and never filed an appearance. No allegations were raised against him in any of the complaints. He is therefore not a party to this action.” Trial Court Opinion at 4. On appeal, appellant asserts no error as to this finding.

      . See note 3 on page 605.

        3. The original complaint alleged that Dr. Melani administered the first dose of Mefoxin and failed to obtain decedent’s informed consent. This claim was not pursued at trial and no error is asserted on appeal regarding possible claims against Dr. Melani.

      . Anemia is a deficiency or inadequacy of the hemoglobin in the blood.

      . There is a discrepancy in the medical records as to the exact dates the drug was discontinued. (N.T. at 438).

      . Clinical epidemiology is the study, in part, of the causation and management of specific diseased conditions.

      . Although the trial court stated that “In that portion of the record that [appellant] did have transcribed, the ruling concerning Dr. Smith’s testimony does not appear" (Trial Ct.Op. at 27), we, upon review of the record, found the ruling and appellant’s request that the portion of the record concerning the ruling be transcribed. (N.T. at 259, 260).

      . We note that, had Dr. Adriani applied his extensive pharmaceutical knowledge and conducted a thorough search of the literature, or had he used the antibiotic in treating his own patients, our holding might be different.

      . While appellant’s case might have benefitted from testimony of more than one hemotologist, it was for the jury, as factfinder, not the court, to evaluate the fact that appellant presented specialists from a variety of medical arenas other than from only hematology.
      Different doctors will have different qualifications, some doctors being more qualified than others to testify about certain medical practices. It is, however, for the jury to determine the weight to be given to expert testimony, in light of the qualifications shown by the expert witness.

        Taylor v. Spencer Hospital, 222 Pa.Super. 17, 24 n. 2, 292 A.2d 449, 453 n. 2 (1972).

      . Allegheny County Local Rule 212 states in part:
      Rule 212 *VI
      VI. In all trespass actions, and in other forms of action to the extent this rule may be applicable:
      A. Plaintiff, on or before the date set forth in the notice of accompanying the publication of the trial list;
      (1) Shall serve upon all parties a written statement containing: ******
      (d) The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusions of the expert.
      ******
      E. Witnesses whose identities have not been revealed as provided in paragraph VI.A(l)(b) and VI.C(l)(c) and (d), supra will not, under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    533 A.2d 448
    COMMONWEALTH of Pennsylvania, Appellant, v. Doug MANNING.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed Oct. 9, 1987.
    Reargument Denied Dec. 1, 1987.

      Ann Osborne, Assistant District Attorney, Radnor, for Com., appellant.
    Timothy J. Gorbey, Chester, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Delaware County granting the appellee’s petition to dismiss a drunk driving charge pursuant to Pennsylvania Rule of Criminal Procedure 1100 (speedy trial). The sole issue on appeal is whether the trial court erred in granting appellee’s Rule 1100 application when the court failed to list the case for trial based upon the Commonwealth’s refusal to place the appellee in the Accelerated Rehabilitative Disposition (ARD) program. We affirm.

On March 11, 1984, appellee collided with another vehicle stopped at a traffic light, and a blood test determined his blood-alcohol content level to be .16%. On that date, appellee was charged with driving under the influence (DUI), driving while operating privileges are suspended, and operation of a vehicle without official certificate of inspection. After a preliminary hearing, appellee was held for court on the DUI charge; however, the other charges were dismissed.

On June 4, 1984 at appellee’s guilty plea hearing, the attorney for the Commonwealth stated, in response to the court’s inquiry, that appellee was ineligible for the ARD program because he had been driving under a license suspension. The court directed the district attorney to entertain appellee’s ARD application, at which time appellee waived the running of Rule 1100 until June 18, 1984.

On June 18, 1984, the Commonwealth reiterated its decision to deny ARD based upon appellee’s license suspension. The trial court took issue with this decision because the license suspension charge had been dismissed, and on June 20, entered an order directing the Commonwealth to submit the case for ARD consideration. The Commonwealth refused and requested a trial date.

On July 19, 1984, the Commonwealth filed a Rule 1100(c) extension request, which was granted on September 7, 1984 for a period of 30 days. On October 4, before the expiration of the 30-day extension, the court held a hearing at which time it refused to set a trial date despite the Commonwealth’s reiteration that it was prepared to go to trial. However, the court indicated that it would reconsider its order concerning appellee’s ARD admission if provided with a transcript of the preliminary hearing to determine upon what grounds the license suspension charge had been dismissed. Further, the court stated that the Commonwealth had the option of either placing appellee on ARD or certifying the question for interlocutory appeal, and also indicated that it would entertain applications filed before or after the Rule 1100 run date. The court further suggested to the Commonwealth that it file for another Rule 1100 extension if necessary to obtain the preliminary hearing transcript.

The Commonwealth declined to exercise the options offered by the court, and on January 30, 1985 the court granted appellee’s Rule 1100(f) dismissal petition. The Commonwealth now appeals.

After the filing of the appeal, the court wrote an opinion stating that its dismissal of the prosecution had been improper because, based on the subsequent decision in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the court had no right to review the Commonwealth’s refusal to admit appellee into ARD.

In Lutz, the supreme court said:

[T]he decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

508 Pa. at 310, 495 A.2d at 935.

The Rules of Criminal Procedure support the autonomy of the Commonwealth’s decision to submit a case for ARD consideration. Rule 175 provides that “the attorney for the Commonwealth, upon his own motion ... may move that the case be considered for accelerated rehabilitative disposition,” thus making clear that only the prosecution may initiate ARD. See Commonwealth v. Ayers, 363 Pa.Super. 232, 525 A.2d 804 (1987).

Although under Lutz the district attorney’s discretion to accept a defendant into ARD is extremely broad, it is not completely unfettered. Recently, in Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986), we held that the prosecutor may not summarily reject a person from consideration for ARD admission, and must openly specify reasons for not submitting the case to ARD. Here, although the district attorney’s office stated that the reason for not considering Manning for ARD was based upon Manning’s suspended license, it offered no evidence to this effect. In fact, it appeared to the court that the contrary may have been true, since the district justice had dismissed the charge of driving under suspension. Thus, the court in requesting the transcript of the preliminary hearing was merely attempting to establish whether Manning’s license was actually suspended, so as to determine whether the reason given by the district attorney for rejecting appellee’s ARD application had a basis in fact.

Nevertheless, for the purposes of this appeal, we will assume that the court was correct in its later conclusion that the Commonwealth was not obligated to admit Manning to ARD no matter what the preliminary hearing transcript disclosed about the status of his driver’s license. See Lutz; see also Ayers.

We now turn to the propriety of the order dismissing the charges based upon the Commonwealth’s failure to comply with Rule 1100.

Although the Commonwealth was at all times prepared to proceed to trial, and the delay which ultimately led to dismissal was caused by the trial court’s refusal to list the case for trial until the ARD issue was resolved, at no time did the Commonwealth file a petition for extension pursuant to Rule 1100. Thus, we cannot find that the Commonwealth exercised due diligence as required by the rule.

In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976) our supreme court held that, if the Commonwealth is to prevail on a Rule 1100 petition, all delay beyond the mandatory time period must either be excluded from computation of the period (Rule 1100(d)) or justified by an order granting an extension pursuant to Rule 1100(c). However, periods of delay attributable to the judiciary are not excludable under Rule 1100(d). Commonwealth v. Evans, 249 Pa.Super. 142, 375 A.2d 799 (1977). Nor does judicial delay excuse the Commonwealth from filing a petition to extend the time period. Commonwealth v. Neal, 348 Pa.Super. 155, 501 A.2d 1116 (1985). Moreover, whenever postponements by reason of judicial delay have been the sole cause of delay, the records must show the reasons why such postponements could not have been avoided. Commonwealth v. Selig, 317 Pa.Super. 533, 464 A.2d 450 (1983). Therefore, in the absence of an application for an extension of time, and a showing of due diligence, judicial delay does not constitute a basis for an exclusion of time under Rule 1100. Commonwealth v. Ellison, 249 Pa.Super. 339, 378 A.2d 325 (1977).

Here, since the delay caused by the court in refusing to list the case for trial was not excludable, the Commonwealth’s only alternative to protect the time period was to file an application for extension. The record does not clearly reflect that judicial delay was the sole cause of delay here. However, assuming that such was the case, it is clear that this delay could have been avoided had the district attorney complied with the court’s request to produce the preliminary hearing transcripts. Even if the court’s request was irrelevant or even erroneous, the Commonwealth may not refuse to cooperate if that refusal becomes a cause for further delay. Where a case has Rule 1100 problems, prosecutors must do everything in their powers to see that the case is tried on time. Commonwealth v. Caden, 337 Pa.Super. 390, 487 A.2d 1 (1984) (citing Commonwealth v. Smith, 477 Pa. 424, 383 A.2d 1280 (1978)).

Furthermore, the Commonwealth’s position, with which the trial court subsequently agreed, that filing a petition to extend would have been a “futile gesture,” is misplaced. The Commonwealth may not refuse to comply with Rule 1100 procedure by simply allowing the time period to run out in order to get a legal ruling from this court. Cf. Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965) (prosecution cannot intentionally cause a mistrial to obtain an appellate court ruling on the correctness of a pretrial order).

Therefore, due to the Commonwealth’s failure to file an application for extension pursuant to Rule 1100(c), we find that the order dismissing the charges against appellee was properly granted.

Order affirmed.


author: ROWLEY, Judge:

text:
    533 A.2d 451
    Milton RUBIN v. Allan NOWAK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 27, 1987.
    Filed Nov. 9, 1987.

      Leonard Schaeffer, Philadelphia, for appellant.
    Niels Korup, Philadelphia, for appellee.
    Before ROWLEY, KELLY and WATKINS, JJ.
   ROWLEY, Judge:

This is an appeal from an order denying appellant’s petition to open a default judgment. Appellant contends he was never served with the Complaint, despite the existence of record of the sheriff’s return of service indicating that the Complaint was served on the “Manager/Clerk” of the place of lodging in which appellant resides. Appellant argues that the court abused its discretion by not accepting: 1) his averment of lack of service as a reasonable explanation for failure to answer the Complaint, or at least, as proof of a “disputed issue of fact” under Pa.R.C.P. 209 for which the trial court should have ordered discovery; and 2) facts alleged in his petition as true where appellee failed to file an answer conforming to Pa.R.C.P. 208. Although appellant does not specifically raise the issue of jurisdiction, our disposition of the matter rests entirely on jurisdictional grounds. We vacate and remand.

The trial court denied appellant’s petition to open the default judgment on the basis that the sheriff’s return of service, which is complete on its face, was conclusive and immune from extrinsic attack as to facts of which the sheriff presumptively had personal knowledge. Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738 (1975). However, we find that the record discloses the existence of an issue relative to a material fact contained in the return of which the sheriff’s deputy did not presumptively have personal knowledge. This issue has a direct bearing on whether or not valid service of process was achieved, and in turn dictates whether the trial court had personal jurisdiction over the appellant to order that a default judgment be entered against him. Because the material fact was not one of which the sheriff’s deputy presumptively would have knowledge, the trial court erred in barring appellant’s challenge to the return of service.

Our decision in this case is governed by the prior decision of this Court in Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979). In that case, Liquid Carbonic brought a breach of contract action against Cooper & Reese. The sheriffs return showed that service was made at defendant’s place of business. The deputy did not specify on the return the person whom he served, but he put a check mark in a box on the return indicating that he had handed the complaint to an “agent or person for the time being in charge of defendant’s office or usual place of business.” Id., 272 Pa.Superior Ct. at 465, 416 A.2d at 550. In spite of the sheriff’s return, the defendant claimed it had no notice of the suit until after judgment was entered.

Judge Hoffman, writing for the panel in Liquid Carbonic, noted the general rule that “a sheriff’s return is conclusive and immune from attack as to facts stated therein of which the sheriff presumptively has personal knowledge.” Id., 272 Pa.Superior Ct. at 467, 416 A.2d at 551. However, he held that under the facts as presented, “the representation that service was made upon an agent or person for the time being in charge of appellant’s place of business was not a matter within the personal knowledge of the deputy sheriff who executed the return.” Id. In so holding, Judge Hoffman followed Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). Justice Jones, writing for the majority in Hollinger, stated:

The rule of conclusiveness of a return of service of process is based upon the presumption that a sheriff, acting in the course of his official duties, acts with propriety and, therefore, when the sheriff in the course of such official duties makes a statement, by way of an official return, such statement is given conclusive effect. However, both logic and common sense restrict the conclusive nature of a sheriff’s return only to facts stated in the return of which the sheriff presumptively has personal knowledge, such as when and where the writ was served; when, in his official return, the sheriff states that he served a writ at a certain time and at a certain place, such facts are known to the sheriff personally and should be given conclusive effect. However, the immutability of a return should not extend (a) to facts stated in the return of which the sheriff cannot be expected to have personal knowledge and which are based upon information obtained through hearsay or statements made by third persons or (b) to conclusions based upon facts known to the sheriff only through statements made by others. (Emphasis in original.)

Id., 416 Pa. at 477, 206 A.2d at 3.

The panel of this Court, in Liquid Carbonic, took note of the following facts: Both Reese and Cooper, owners of the business, denied ever having been served; they questioned their employees and determined that none of them had been-served; a furniture store next to defendant appeared to have a common entrance; and, the deputy sheriff testified that he had approached a cluster of men in the vicinity of defendant’s premises, and served one of them without determining whether he was an employee of defendant.

The facts of the instant matter are similar. A box is checked on the sheriff’s pre-printed return of service form which states that appellant was served via the “Manager/Clerk of place of lodging in which Defendant(s) reside(s).” The instructions on the return direct the sheriff to serve the defendant at “Parktown Place East, 2200 Benjamin Franklin Pkwy. East 1914, Philadelphia, PA 19013.” In the section to be completed by the sheriff, the deputy wrote that service was made at “2200 Benjamin Franklin Pkwy.” Appellant filed an affidavit stating that he never received the Summons and Complaint. Warren Dickens, the doorman in Parktown Place—East Building (appellant’s place of residence), filed an affidavit stating that the log book for appellant’s particular building shows that no such hand delivery was made to appellant’s apartment on June 4 or 5, 1986.

Although the sheriffs return was indeed valid on its face, it is clear under Liquid Carbonic and Hollinger that the trial court must determine whether valid service of process on the defendant was actually achieved, because appellant’s attack is directed towards a fact not presumptively within the personal knowledge of the sheriff, i.e. that the person served was the “Manager/Clerk” of appellant’s place of residence. If the trial court determines that the person served was the manager or clerk at appellant’s residence then valid service was achieved and the court has personal jurisdiction over the defendant. If that is the case, the court must then determine whether the default judgment should be opened. On the other hand, if the court determines that service of process was invalid, such service must be stricken and the judgment must be opened because without personal jurisdiction over the defendant the court was without authority to enter the judgment against him.

In view of the foregoing analysis, we vacate the trial court’s order and remand the case to the trial court for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Pa.R.C.P. 402 states, in relevant part:
      (a) Original process may be served
      (2) by handing a copy
      (ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides____

      . On or about September 11, 1986 plaintiff/appellee filed a document headed "Plaintiff’s Memorandum in Opposition Petition to Open Default Judgment.” It was agreed at oral argument that this document was considered by the parties and the trial court as the appellee’s answer to appellant’s petition to open judgment. Appellee claims in the document that service was made and that appellant’s attorney, Michael Simon, mailed a copy of the Notice of Default to appellant with a cover letter warning that default judgment would be taken if appellant did not answer the complaint within ten days.
      We note that appellant subsequently did not proceed to take depositions or order the cause for argument pursuant to Pa.RX.P. 209, and appellee did not avail himself of his right to compel appellant to proceed. Failure of the parties to proceed under Rule 209 does not affect our disposition of the case.

      . Superior Court may raise sua sponte the question of jurisdiction. Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981).

      . See Pa.R.C.P. 402(a)(2)(iii).

      . Defendant alleges in his brief that Parktown Place—East Building is one of four separate high-rise apartment buildings, each with its own entrance, intercom system and doorman. Unsupported allegations in briefs are not a part of the record, so we must disregard this statement.


author:
BROSKY, Judge:
      WIEAND, Judge,

text:
    533 A.2d 453
    COMMONWEALTH of Pennsylvania v. Frank A. DeSUMMA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1987.
    Filed Nov. 10, 1987.

      Patrick J. Duffy, Philadelphia, for appellant.
    Alan M. Rubenstein, District Attorney, Doylestown, for Com., appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed after appellant’s jury conviction of simple assault.

Appellant’s complaint to this Court is that the trial court erred in permitting the Commonwealth to make a substantive amendment to the information by changing the name of the victim prior to the commencement of trial where such an amendment violates Pa.R.Crim.P. 229 by working an irreparable prejudice to appellant’s right to a fundamentally fair trial. Finding this argument lacking in foundation, we affirm. Although we look to the well-reasoned opinion of the trial court, we wish to further elaborate on its analysis.

Evidence adduced at trial revealed that appellant knew from the time of the preliminary hearing, at which he was present, that four passengers were in the car in addition to the original victim-driver (N.T. 35). Moreover, the evidence demonstrated that appellant conceded that the original victim, Mr. O’Hara, testified at the preliminary hearing that appellant pointed the gun at the car (N.T. 135). Yet, appellant urges us to create a per se rule of prejudice, without asserting specific reasons therefor, because allowance of an amendment which charges no additional or different offense materially altering the elements or defenses to the original crime but which merely seeks to add the names of victims is requested and granted just before trial. This we decline to do.

In Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1985), relied upon by the trial court, this court held that the defendant was not surprised by the amendment because neither the factual scenario nor the nature of the charges had been altered thereby, thus obviating any prejudice to him.

Neither may appellant here claim surprise. The nature of the instant amendment worked no change in the factual scenario nor in the description of the charges. Hence, the amendment here did not charge an additional or different offense which would necessarily implicate a last-minute alteration in defense strategy. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), aff'd, 498 Pa. 326, 446 A.2d 583 (1982). Accord Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986). It merely added the names of victims of whose existence and role in the criminal scenario appellant was cognizant since the preliminary hearing. Commonwealth v. Johnson, supra. In our view, Commonwealth v. Johnson, supra, is squarely apposite to the matter now before us.

The case sub judice is unlike Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344 (1980), where substitution of a named co-conspirator for another one later implicated was held prejudicial because the amendment alleged a different set of events. There, the complaint alleged defendant to have conspired with Hart on the basis of an initial photo array from which the victim chose Hart’s photo. Hart was found not to be implicated, whereupon the victim was shown another array and identified Kocher as the co-conspirator. At the preliminary hearing, the Commonwealth sought to amend the complaint by substituting the name of Kocher for that of Hart. This was considered to be a substantive defect calling for discharge under former Rule 150 distinguishing between substantive and informal defects. In so holding, our court distinguished Thomas from Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845 (1974), on the basis that the former charged conspiracy with a specifically named co-conspirator, implicating a unique factual situation and defense strategy, which the amendment, if allowed, would have altered. In Brown, on the other hand, the name of the co-conspirator was omitted from the indictment, yet the defendant knew of his identity several months before trial. Accordingly, this court held that no prejudice resulted from allowance of the amendment.

In any event, if appellant believed that the Commonwealth’s requested amendment worked a genuine surprise and would prejudice his defense, his remedy at that time was to ask the trial court for a continuance to enable him to adequately prepare his defense. Pa.R.Crim.P. 301. See Commonwealth v. Souder, 176 Pa.Super. 523, 108 A.2d 831 (1954). But compare Commonwealth v. Brown, supra (no abuse of discretion to refuse motion for continuance because of amendment of indictment to add name of co-conspirator where appellant was aware several months before trial of the name of the co-conspirator).

Judgment of sentence affirmed.

WIEAND, J., filed a dissenting opinion.

WIEAND, Judge,

dissenting:

The issue in this case, more fully stated, is whether the Commonwealth, after the victim of an alleged assault by physical menace has failed to appear for trial and cannot be produced, may amend the information to allege an assault committed by physical menace against other and different victims whose attendance at trial can be compelled. The trial court allowed such an amendment; and, thereafter, a jury found the defendant guilty on the amended charge. On direct appeal, the defendant argues that it was error to allow an amendment to the information at trial which alleged a new and additional offense. The majority disagrees and affirms the judgment of sentence. I dissent. I would reverse the judgment of sentence and discharge the defendant.

On June 13, 1985, Frank DeSumma was driving his vehicle on Route 13 in Tullytown, Bucks County, when a vehicle operated by Frank O’Hara pulled out directly in front of him. DeSumma was angered by O’Hara’s thoughtless conduct and, after pulling his vehicle alongside of the O’Hara vehicle, shouted obscenities at him. O’Hara shouted back. DeSumma then produced a handgun, which, depending upon the version of the incident believed, he either “displayed” or “pointed” at O’Hara. Sgt. John Ryn, who was summoned, spoke with O’Hara and removed the gun from DeSumma. Ryn thereafter filed a criminal complaint in which he accused DeSumma of recklessly endangering another person and assaulting O’Hara by attempting “by physical menace to put [O’Hara] in fear of imminent serious bodily injury.”

Following a preliminary hearing, the district justice found that the Commonwealth had established a prima facie case and returned the case to court. There, the District Attorney prepared and issued an information charging DeSumma with recklessly endangering another person and committing a simple assault against Frank O’Hara.

On the day of trial, O’Hara could not be found. However, there had been four passengers in the O’Hara vehicle at the time of the alleged offense, and the Commonwealth was able to compel the attendance of one of them, Michelle Sharper. Immediately prior to the commencement of trial, the Commonwealth requested leave of court to amend the information to add as victims the passengers in the O’Hara vehicle. The trial court, over defense objection, allowed the amendment. At trial, the only eyewitness called by the Commonwealth was Michelle Sharper, who testified that DeSumma had pointed the gun in the direction of the O’Hara vehicle. DeSumma, testifying on his own behalf, admitted that he had “shown” a gun but denied that he had pointed it at anyone or had intended to put anyone in fear of serious bodily injury. The jury found DeSumma not guilty of recklessly endangering another person but guilty of simple assault. Post-trial motions were denied, and a sentence of probation was imposed.

Pa.R.Crim.P. 229 permits an information to be amended in limited circumstances. It provides:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The safeguards of Rule 229 are intended to give a defendant adequate notice and time to prepare without risk of last-minute additions to the charge which materially alter potential defenses thereto. Commonwealth v. Johnson, 336 Pa.Super. 1, 13, 485 A.2d 397, 403 (1985). Similarly, in Commonwealth v. Tillia, 359 Pa.Super. 302, 307, 518 A.2d 1246, 1248-1249 (1986), this Court said:

In Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), [aff'd, 498 Pa. 326, 446 A.2d 583 (1982),] this Court articulated the following guidelines for assessing the propriety of permitting such an amendment:
(T)he courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.
Stanley, 265 Pa.Super. at 212-213, 401 A.2d at 1175 (footnotes omitted). The purpose of Rule 229 is to insure that a defendant is notified of the charges against him, and to avoid prejudice by prohibiting last minute additions of which the defendant is uninformed. Stanley, 265 Pa.Super. at 212, 401 A.2d at 1175.

See also: Commonwealth v. Hulehan, 338 Pa.Super. 309, 316-317, 487 A.2d 980, 983-984 (1985); Commonwealth v. Thomas, 278 Pa.Super. 39, 47-48, 419 A.2d 1344, 1349 (1980).

In the instant case, the charges against appellant were changed substantially when he appeared for trial. Instead of being charged with an attempt by menace to put in fear of bodily injury the driver with whom he had exchanged words because of the latter’s thoughtless driving, he found himself charged with assaulting the passengers in the other vehicle. He arrived for trial anticipating that he would be required to defend against a charge that he had pointed a loaded gun at O’Hara with the intent of putting O’Hara in fear of imminent bodily injury. At trial, however, he found that he was required to defend against an accusation that he had intended to put in fear of bodily injury the passengers in the other vehicle with whom he had not exchanged words and with whom he had had no quarrel. Until the time when trial started, there had not been either accusation or testimony that appellant had intended to menace anyone but the driver with whom he had quarreled. The last-minute amendment of the information under these circumstances was prejudicial. It added an additional and different offense. See and compare: Commonwealth v. Thomas, supra (outright substitution of a named co-conspirator in a complaint held to constitute a different set of events and was prejudicial to defense, amendment should not have been permitted).

In Commonwealth v. Johnson, supra, the defendant had been charged with murder, robbery, and conspiracy in connection with a robbery which had occurred in Philadelphia. Killed in the robbery had been Bruce Porter. Porter was also named as the victim of the robbery in the information. When it was discovered that the name of David Colefield, who had also been robbed, was not in the information, the Commonwealth was permitted to add his name by amendment as a victim of the robbery and conspiracy. On appeal following conviction, Johnson argued that the allowance of the amendment had been error. A panel of this Court concluded that there had been no prejudice. Johnson had been aware of the episode and knew that the Commonwealth’s evidence showed that Colefield had been present and had been threatened and searched. Because Johnson was not surprised by the amendment and because neither the factual scenario nor the nature of the charges had been altered thereby, the Court concluded, his defense had not been altered, and he had not been prejudiced. The correctness of allowing an amendment which charges the defendant with a second robbery is not now before us. Even if we assume that Johnson was correctly decided, it is nevertheless distinguishable from the instant case. In Johnson, the defendant had been aware that the incident for which he was being tried involved the robbery of a second victim. In the instant case, appellant had been charged with assaulting another driver with whom he had had a confrontation. There was no reason for him to believe that he had committed an assault or would be charged with committing an assault against the passengers in the other car, with whom there had been no confrontation and with respect to whom there had been neither reason nor motive to attempt by physical menace to put them in fear of serious bodily injury. Clearly, the Commonwealth’s amendment in the instant case sought to add an additional and different offense. It was requested only after the Commonwealth had learned that it would be unable to prove the offense with which appellant had originally been charged. The amendment was effected suddenly and without prior warning at the time of trial and required appellant to defend against an alleged offense which had not been charged previously. This, in my judgment, was improper, unfair, and prejudicial.

I would reverse the judgment of sentence and discharge the defendant.

      . DeSumma was licensed to carry the firearm.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 2701(a)(3).


text:
    533 A.2d 457
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas Dean HENLEN.
    Superior Court of Pennsylvania.
    Submitted June 17, 1987.
    Filed Nov. 4, 1987.
    Reargument Denied Dec. 15, 1987.

      Kenneth K. McCann, Assistant District Attorney, Mercer, for appellant.
    Robert G. Kochems, Assistant Public Defender, Mercer, for appellee.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is an appeal by the Commonwealth from an order granting appellee, Thomas Henlen’s, petition for a Writ of Habeas Corpus and dismissing the charges against him for a violation of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5703. We reverse.

The facts have been stipulated to be as follows:

1. Sometime prior to June 19, 1986, a theft of an inmate’s personal property occurred at the Mercer County Jail and Trooper James D. Dibler of the Pennsylvania State Police was ordered to investigate the same on March 26, 1986.
2. On or about June 19, 1986, Trooper Dibler made arrangements to interview Mr. Henlen concerning the theft.
3. Mr. Henlen was a suspect in the theft case.
4. On June 19, 1986, Mr. Henlen was interviewed by Trooper Dibler at the Mercer County Jail for thirty to forty-five minutes, concerning the theft case.
5. Officer Stonebraker, another guard at the Jail, was present at Mr. Henlen’s request for eight to ten minutes.
6. Trooper Dibler did not know he was being taped, did not see the tape recorder and would not have agreed to be taped if he had been asked.
7. Trooper Dibler made some rough notes of the interview and would have made a more complete report of the interview if he would have obtained more information he believed that he could use against Mr. Henlen in court.
8. On August 1, 1986, Mr. Henlen turned the tape over to Sgt. Conley of the Internal Affairs Division of the Pennsylvania State Police as part of a complaint by him against Trooper Dibler for harassment.
9. On August 1, 1986, Mr. Henlen told Sgt. Conley he was unaware of the violation he allegedly committed and had tape recorded the conversation for his own protection.

The Commonwealth’s only issue on appeal is whether appellee’s recording of his conversation with Trooper Dibler without the knowledge or consent of Trooper Dibler was a violation of the Wiretapping and Electronic Surveillance Control Act. The Commonwealth argues that the police officer’s expectation that the conversation would not be intercepted was the same as any other individual’s expectation and therefore the recording of the conversation was a violation of the Act. The trial court held, and the appellee argues, that because the police officer was interviewing the appellee with regard to a criminal investigation, and himself took notes of the conversation, the police officer should have reasonably expected that the conversation would not be private but would be repeated to other police officers, law enforcement officials, and perhaps in court. For this reason, appellee contends that the conversation was not an “oral communication” protected by the Act. Appellee also argues that a police officer acting in his official capacity waives any protection which the Act might otherwise afford to him. Finally, appellee argues that it is a violation of his due process and equal protection rights “to try him on a felony criminal charge when a civil burden of proof may not be made out under the same statute.”

The trial court and appellee rely primarily on Gunderman v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 95 Pa.Cmwlth. 479, 505 A.2d 1112 (1986) to support the position that the police officer had no reasonable expectation of privacy and that, therefore, the conversation was not protected under the Act. In Gunderman, the claimant secretly tape-recorded his unemployment compensation hearing. The Court held that because a record of the testimony at such hearings was always made as a matter of course so that a record could be preserved for review by the Board and courts, there was no legitimate expectation of privacy. Appellee also relies on Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974) for the rule that where the circumstances suggest that permission has been given that the matter be communicated elsewhere, the Act does not apply. Neither of these cases is applicable here.

Gunderman is distinguishable from the instant case because here no official recording of the conversation was made, nor was one expected to be made. The police officer had no expectation that his words would be recorded verbatim and accurately. Although the police officer may have realized that his questions to appellee and appellee’s responses may have to be revealed to other people, or could be divulged by appellee, the police officer had no reason to expect that the entire conversation, which may have included statements unrelated to the investigation, would be recorded.

Furthermore, appellee’s contention that the police officer did not have a “reasonable expectation of privacy” in the interview with appellee, and therefore is not entitled to the protection afforded by the Act, misconstrues the Act. The Act does not provide that when one does not have a reasonable expectation of privacy, the Act does not apply and any person is then free to record the conversation. Rather the Act with only a few, specifically enumerated exceptions, protects all communications which fall within its definition of “oral communication,” The Act defines “oral communication” as:

Any oral communications uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. (Emphasis added.)

18 Pa.C.S. § 5702. The Act further defines “intercept” as:

Aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.

Id. Thus the expectation which must be justified under the definition of “oral communication” is the expectation that one’s communication will not be recorded by any electronic, mechanical or other device. The fact that one may have reason to believe that he himself will have to reveal what transpired in a conversation, or that the other party to the conversation may relate to third parties the contents of a communication, does not necessarily mean that a party to the communication should have expected that the communication would be recorded, even though the party may not have a reasonable expectation of privacy in the communication.

It is the distinction between “reasonable expectation of privacy” and “expectation that such communication is not subject to interception,” which emphasizes the inapplicability of Gunderman to the facts before us. Because the hearing which was surreptitiously recorded in Gunderman was recorded officially, with the knowledge of the participants to the hearing, there was no expectation that the statements made at the hearing would not in fact be “aurally acquired through the use of an electronic, mechanical or other device.” Hence, the oral statements made at the hearing were not protected by the Wiretap Act. In the case before us, however, although the appellee has suggested why he thinks the police officer did not have a reasonable expectation of privacy in the conversation, appellee has not demonstrated, and there is nothing to support the claim, that the police officer should have expected the conversation to be subject to interception by an electronic, mechanical, or other device. For this reason, we conclude that the interview between the police officer and the appellee was an oral communication protected under the Wiretap Act.

Similarly, Gullett is distinguishable. Gullett did not establish the general rule which appellee sets forth. On the contrary, the Court in Gullett only determined that where a party calls the police to report that a homicide has occurred, the location where it has occurred, and that there will probably be several bodies, the person has supplied consent that a recording of the phone conversation be supplied to other police personnel. The Court noted in Gullett that the agency to which the call was placed, the nature of the call, the emergency atmosphere engendered by the call, and the non-confidential information conveyed, made it apparent that the person did not intend the phone call to remain private. The exception to protection of the privacy of oral communications under the Act created by Gullett is in essence now codified in § 5704(3) of the Act which provides that it is not unlawful for police and emergency communication systems to record telephonic communications coming into and going out of the system under certain enumerated circumstances. The facts of the case before us do not fall within this exception: the conversation did not involve an emergency reporting of a crime to a police department, where it would be likely, particularly considering the nature of the crime reported, for the police officer who received the call to reveal the substance of the call to others. Therefore, we are not persuaded that Gullett applies to this case.

Appellee adopts in his brief the trial court’s conclusion that the Federal Wiretap Act, 18 U.S.C. § 2510 et seq. is “nearly identical” to Pennsylvania’s Wiretap Act, and therefore the legislative intent expressed in the Federal Act “to exclude prosecutions in cases where at least one person does consent to interception” (Tr.Ct.Op. p. 6) applies to the Pennsylvania Act. However, this conclusion is not supported by the terms of the Pennsylvania Act itself. The Federal Act provides in § 2511(2)(d):

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution of the laws of the United States or of any State. (Emphasis added.)

However, § 5704(4) of the Pennsylvania Act states that it is not unlawful to intercept an oral communication “where all parties to the communication have given prior consent to such interception.” If the Pennsylvania legislature intended, as the appellee argues and the trial court held, that the Act did not apply where at least one party to a conversation consented to the interception, then § 5704(4) would have provided that it was not unlawful to intercept an oral communication where at least one party to the communication had given consent to the interception. The absence of this language unambiguously demonstrates, regardless of the Congressional intent with regard to § 2511(2)(d) of the Federal Act, that in Pennsylvania oral communications are protected by the Act even when some, but less than all, parties to a communication consent to the interception.

The Act provides for a few, limited, specific exceptions to this rule in § 5704. The exception for police and emergency communications discussed previously with regard to Gullett is one example. Another exception to the rule that all parties to a communication must consent to its interception is when a police officer or an agent acting at the direction or request of an investigative or law enforcement officer intercepts a communication involving suspected criminal activities provided that certain safeguarding prerequisites are satisfied before the interception is conducted. See 18 Pa.C.S. § 5704(2)(i) and (ii). However, in this case, none of these exceptions applies, and therefore the interception of the police officer’s interview with appellee was a violation of the Act.

Appellee’s argument that the very nature of the police officer’s job waived for the police officer the protection of the Act is without merit. Although the police officer, as part of his job, knew that he may have to testify concerning the substance of his interview with appellant, this knowledge does not, as previously discussed, constitute a waiver of the protections afforded by the Act. Nothing in the Act categorically excludes police officers from the protection of the Act. On the contrary, the police officer falls with the definition of “person” to which the Act applies. Section 5702 of the Act defines “person” as:

Any employee, or agent of the United States or any state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.

Because the police officer in this case was an employee of the Commonwealth of Pennsylvania, he comes squarely within the statutory definition of persons whose oral communications are protected. We therefore, find no merit to appellee’s argument.

Finally, appellee appears to argue that the Act is unconstitutional because it provides both that a violation of the Act is a felony, and that one may be civilly liable for violating the Act. Appellee admits in this four-sentence argument that there is no case law to support his argument, however, he believes that the accuracy of his conclusion that the Act is unconstitutional is “self-evident”. The mere fact that a statute provides that one who violates an Act may be both criminally as well as civilly liable does not make the Act unconstitutional. Nothing in the statute indicates, and appellee does not argue, that the same burden of proof is required in both a civil and criminal action to establish a violation of the Act. We do not find the basis of appellee’s argument to be self-evident, and in the absence of any discussion explaining his argument, we are unable to comprehend the basis of the argument.

Order reversed.