author:
POPOVICH, Judge:
      BECK, Judge,

text:
    672 A.2d 1353
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald D. JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted December 18, 1995.
    Filed March 15, 1996.

      Jeffery M. Cook, Gettysburg, for appellant.
    Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

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

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Adams County, following appellant’s convictions on two counts of rape, one count of indecent assault and one count of simple assault. The lower court imposed a sentence of three to six years incarceration on one rape count and did not impose any sentence for the remaining convictions. Upon review, we reverse the judgment of sentence and remand for new trial.

Herein, appellant contends the evidence was insufficient to support his rape convictions because the Commonwealth failed to present evidence of forcible compulsion or threat of forcible compulsion. Appellant also contends that the lower court’s jury instruction on lack of prompt complaint was erroneous and prejudiced his right to a fair trial.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 555, 488 A.2d 29, 31-32 (1985). Applying the foregoing standard, the lower court set forth the facts of this case as follows:

... In April, 1994, the victim, S.B., then age 19, and five months pregnant, was living alone in Room # 3 at the Homeless Shelter in Gettysburg, Pennsylvania. [Appellant], his girlfriend, Angela Clark, and their three children were residing in Room # 1, across the hallway from S.B.’s unit. Occasionally when Ms. Clark was not nearby, [appellant] would utter sexual remarks or make sexual overtures towards S.B. who thought he was joking at the time.
On April 5, 1994, S.B. retired for the evening at 11:00 P.M. Sometime between 12:30 — 1:00 AJVL, S.B. was awakened by [appellant’s] entry into her room. [Appellant] approached S.B.’s bed and asked if she was going to have sex with him. S.B. refused. [Appellant] hit S.B. in the face several time with a pillow which “kind of hurt”. Then while holding her shoulders down, he pulled her shirt off and began kissing her breasts. S.B. protested but [appellant] told her to be quiet or he would tell Ms. Clark that S.B. invited him to her room and Ms. Clark would “beat her up”. S.B., who appears shy and lacking in self-confidence, was afraid of Ms. Clark because she looked “rough”. S.B. was also afraid that [appellant] would hit her in the stomach. [Appellant] then pulled off S.B.’s pants, penetrated her vagina with his penis, and continued telling her to be quiet when she protested. When [appellant] finished, he left the room.
At the time of the incident approximately 15 persons were staying at the Shelter, including S.B.’s friend, plus two staff persons. S.B. did not cry out for help. The next day S.B. went to work and spent time with another friend but told no one about the incident with [appellant] out of embarrassment. On the evening of April 6, 1994, Defendant again entered S.B.’s room, went through her wallet, removed her medical card, Social Security car and identification card and said he would keep them unless S.B. gave him some money from her next paycheck. After [appellant] left the room, S.B. reported both incidents to her friend, and a staff person, and the police.
[Appellant] acknowledged seeking S.B. earlier on April 5, and asking “Are you going to give me good loving tonight?” He admitted entering S.B.’s room and engaging in sexual intercourse but claimed it was consensual. When departing the room within 10 minutes after entry, he thought it important to say “Thank you.”
[Appellant], age 20, stood 6'1", weighted] 220 pounds and was in good physical shape. He displayed an attitude of being able to take whatever pleased him whether that be sex or important personal documents.

Trial Court Opinion, pp. 1-2.

Rape is defined in 18 Pa.C.S.A. § 3121(1) and (2) as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution!)]

Appellant, citing Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), contends that the Commonwealth failed to prove forcible compulsion or threat of forcible compulsion, and appellant argues that this case is factually similar to and, therefore, controlled by Berkowitz, supra. In Berkowitz, 641 A.2d at 1163, our supreme court reiterated that:

The victim of a rape need not resist. 18 Pa.C.S.A. § 3107. “The force necessary to support a conviction of rape ... need only be such as to establish lack of consent and to induce the [victim] to submit without additional resistance.... The degree of force required to constitute rape is relative and depends on the facts and particular circumstances of the case.” Commonwealth v. Rhodes, 510 Pa. 537, 554, 510 Pa. 537, 554, 510 A.2d 1217 (1986) (citations omitted.)

Our high court further noted that “where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the ‘forcible compulsion’ requirement under 18 Pa.C.S.A. § 3121 is not met.” Berkowitz, 641 A.2d at 1164. In reaching its decision in Berkowitz, supra, the supreme court wrote: “In regard to the critical issue of forcible compulsion, the complainant’s testimony is devoid of any statement which clearly or adequately describes the use of force or the threat of force against her.” 641 A.2d at 1164. Presently, however, we find that there was sufficient evidence of the use of force and the threat of force.

Appellant hit the victim in the face with a pillow which “kind of hurt” each time she refused to engage in intercourse with him. Appellant, a large man, held down the victim’s shoulders before and during intercourse and removed the victim’s clothing. In addition, appellant threatened to tell his girlfriend that they had engaged in consensual sex and his girlfriend would then “beat up” S.B., if she continued to refuse his advances. Further, the victim was pregnant and concerned for the well-being of her unborn child. In sum, we find that the facts sub judice, unlike those presented in Berkowitz, supra, were sufficient to establish the rape elements of physical force and threat of physical force necessary to sustain appellant’s conviction. Cf, Commonwealth v. Garaffa, 440 Pa.Super. 484, 656 A.2d 133 (1995) (evidence was sufficient to sustain rape conviction despite victim’s admissions that she willingly accompanied defendant into hotel room and failed to attempt to leave the room when given the opportunity, coupled with fact that defendant did not verbally threaten her, where defendant “pushed” victim onto bed, victim was “fighting” defendant’s advances and she “pushed” him away); Commonwealth v. Pride, 252 Pa.Super. 34, 380 A.2d 1267 (1977) (evidence was sufficient to sustain rape conviction where defendant placed pillow over 'victim’s face when she refused his advances and threatened to harm her and her baby if she continued to resist).

Next, appellant complains that his right to a fair trial was unduly prejudiced when the lower court erroneously instructed the jury regarding the lack of prompt complaint by the victim. In Commonwealth v. Snoke, 525 Pa. 295, 300, 580 A.2d 295, 297 (1990), our supreme court wrote:

Under common law, the promptness of a complaint or the “hue and cry” was considered an element for a jury to consider when weighing the veracity of a complainant. See, e.g., Commonwealth v. Allen, 135 Pa. 483, 19 A. 957 (1890); Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746 (1949); see also, IV Wigmore on Evidence § 1135. The theory is based on the principle that a victim of a violent assault would be expected to complain of the assault at the first safe opportunity. Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246 (1989); Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979); Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987); Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982). This principle has been codified in our crimes code at 18 Pa.C.S.A. § 3105. Section 3105 states:
Prompt reporting to public authority is not required in a prosecution under this chapter: Provided, however, that nothing in this section shall be construed to prohibit a defendant from introducing evidence of the alleged victim’s failure to promptly report the crime if such evidence would be admissible pursuant to the rules of evidence.

It has been said that “hue and cry follow rape like smoke follows fire.” Commonwealth v. Freeman, 295 Pa.Super. at 476, 441 A.2d at 1332. The presumption follows that if a complaint is made promptly after the alleged offense, the victim has not had time to fabricate the story and the story is given more credibility. See e.g., Commonwealth v. Krick, supra. Conversely, if a complaint is delayed substantially without any reasonable explanation, an inference can be drawn regarding the credibility of that complaint and against whether the incident in fact occurred.

Presently, the record reveals that S.B. did not complain of the sexual assault after appellant left her room despite the fact that there were fifteen residents plus two staff members in the Homeless Shelter at the time. Further, appellant did not complain the next morning, nor while at work that afternoon, nor while at a friend’s home that evening. It was not until after appellant took several important documents from S.B., late in the evening following the assault, that she told a friend of hers who was also staying at the shelter.

Clearly, the trial judge is only required to instruct the jury upon law which is applicable to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial. Commonwealth v. Holland, 518 Pa. 405, 411-13, 543 A.2d 1068, 1071 (1989), quoting Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963), citing Commonwealth v. Coleman, 402 Pa. 238, 166 A.2d 525 (1961); Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006, appeal denied, 524 Pa. 618, 571 A.2d 381 (1989); Snoke, 580 A.2d at 298. We agree with appellant (and the trial court) that an instruction on S.B.’s failure to make a prompt complaint was appropriate given the facts presented.

Appellant claims the court’s jury instruction was erroneous because it neglected specifically to inform the jury in accordance with Pa.S.S.Crim.J.I. § 4.13(a) (1979) which provides:

Before you may find the defendant guilty of the crime charged in this case, you must be convinced beyond a reasonable doubt that the act charged did in fact occur and that it occurred without [S.B. ’s] consent.
The evidence of [S.B.’s] delay in making a complaint does not necessarily make her testimony unreliable, but may remove it from the assurance of reliability accompanying the prompt complaint or outcry which the victim of a crime such as this would ordinarily be expected to make. Therefore, the delay in making a complaint should be considered in evaluating her testimony and in deciding whether the act occurred with or without her consent.
You must not consider [S.B.’s] delay in making a complaint as conclusive evidence that the act did not occur or that it did occur but with her consent. [S.B.’s] failure to complain promptly and the nature of any explanation for that failure are factors all bearing on the believability of her testimony and must be considered by you in light of all the evidence in the case. (Emphasis added.)

The trial court gave the following instruction regarding an alleged victim of sexual assault’s failure to complain promptly:

I want to caution you that in considering especially count one and count two and also the one that I’m going to go over with you next, count three, there is no requirement for a victim of a sexual assault whether that be rape, and I’m going to describe indecent assault to you in a moment, to make a prompt complaint. There’s no time limit. Lack of prompt complaint is something that you can consider but by itself it doesn’t mean that the event didn’t occur. There’s argument her that there is some passage of time, opportunities to make a complaint and there wasn’t. That’s something you can consider and in doing that, consider again the setting, the circumstances, the individuals, the reasons that might have been given for that and determine whether that means anything to you or not.

Trial Transcript, pp. 103-104.

While a trial judge has broad discretion in phrasing points for charge and is not bound to give instructions in the form requested by the defendant, Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28 (1991), cert. denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397; Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336 (1994), the instruction must adequately, accurately and clearly present the law to the jury and must be sufficient to guide the jury in its deliberations. Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986), appeal denied 515 Pa. 603, 529 A.2d 1078; Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985).

Although we acknowledge the lower court was not required to instruct the jury on the issue of the lack of a prompt complaint verbatim from the standard jury instruction, we find that the instruction given by the court did not adequately and clearly present the issue to the jury. Nowhere in its instruction did the lower court inform the jury that S.B.’s delay in making a complaint should be considered in deciding whether the act occurred with or without her consent. In fact, the instruction could have been reasonably interpreted by the jury as bolstering the victim’s credibility since it provided: “Lack of prompt complaint is something that you can consider but by itself it doesn’t mean that the event didn’t occur.” To the contrary, the law is that lack of a prompt complaint should cause the jury to look more critically upon the credibility of the victim. Snoke, 580 A.2d at 297; Berklowitz, 2 A.2d at 517, 518.

The question of whether S.B. consented to engaging in intercourse with appellant was the ultimate issue in the case, and, thus, we are convinced that it was essential to the fair administration of justice for the jury to have been informed that if a complaint is delayed substantially without any reasonable explanation, a negative inference can be drawn regarding the credibility of the victim and against whether she consented to the sexual contact. As our supreme court has previously stated, “[t]he lack of a prompt complaint by a victim of crime, although not dispositive of the merits of the case, may justifiably produce a doubt as to whether the offense indeed occurred, or whether it was a recent fabrication by the complaining witness.” Snoke, 580 A.2d at 298, quoting Lane, supra.

Presently, appellant did not complain of the incident until nearly twenty-four hours after the incident and then did so only after appellant had taken several important personal documents from her and had threatened not to return them unless she gave him money from her paycheck. Thus, had the jury been properly instructed, it might have found the victim’s allegation of lack of consent to have been a “recent fabrication” designed to punish appellant for his actions the following day. Such a conclusion is not inconceivable given the minimal (but, nevertheless, sufficient) evidence of physical force or threat of force which S.B. alleged and the ease with which S.B. could have summoned others to her rescue and received assistance in the Homeless Shelter. Accordingly, we conclude the erroneous instruction was not harmless since it failed to focus the jury’s attention upon the issue of consent and the impact of S.B.’s failure to complain promptly. Commonwealth v. Dietterick, 429 Pa.Super. 180, 188-90, 631 A.2d 1347, 1352 (1993) (where a jury charge is erroneous, we will grant a new trial where the error was not harmless); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 59-61, 512 A.2d 1199, 1209 (1986).

In sum, we find that the evidence, when viewed in a light most favorable to the Commonwealth, was sufficient to sustain appellant’s rape convictions. Nevertheless, we also hold that the lower court erred when it failed to instruct the jury properly in regards to S.B.’s failure to make a prompt complaint, and, consequently, we remand for a new trial since we are convinced the error was not harmless. Cf., Berklowitz, supra.

Judgment of sentence reversed. Case remanded for new trial. Jurisdiction relinquished.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting.

I concur in the majority’s conclusion that the evidence presented by the Commonwealth was sufficient to establish force. However, I respectfully dissent from the majority’s conclusion that the trial court’s prompt complaint instruction was flawed. I would find that the instruction was sufficient.

A trial court is not bound to use specific language when charging a jury. It is the effect of the charge in its entirety that is controlling; all that is required is that the relevant legal principles be fully and adequately presented. Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1344 (1994). With respect to the issue of delay in making a complaint, the relevant law is that “the lack of a prompt complaint by a victim of a crime, although not dispositive of the merits of the case, may justifiably produce a doubt as to whether the offense indeed occurred....” Commonwealth v. Snoke, 525 Pa. 295, 580 A.2d 295, 298 (1990).

In this case, the trial court instructed the jurors that they could consider the lack of a prompt complaint in their deliberations. Since the sole issue was whether the sexual contact was consensual, the charge essentially instructed the jurors to consider the failure to make a prompt complaint when deciding whether the victim was telling the truth.

Upon review of the court’s instruction, I would hold that the relevant law was sufficiently communicated to the jury and, therefore, a new trial is unwarranted.

      . Moreover, we note that appellant has failed to allege that the evidence was insufficient to sustain his conviction for simple assault. By neglecting to contest the sufficiency of the evidence for his assault conviction, appellant has essentially admitted the forcible compulsion element of the rape conviction. Commonwealth v. Irvin, 260 Pa.Super. 122, 128-30, 393 A.2d 1042, 1046 (1978) (crime of rape, when perpetrated by forcible compulsion, includes crime of simple assault where assault is one element in the process and is used to overcome the volition of the victim).

      . We note that in Stohr, supra, this court found that the victim's complaint to her mother after a sexual assault by her father was a "prompt complaint” even though some twenty-four hours had passed since the assault. Thus, it could be argued that S.B.’s complaint which was made within twenty-four hours of the attack was a "prompt complaint”, and, consequently, appellant was not even entitled to such a jury instruction.
      However, we find Stohr, supra, to be distinguishable in that the victim therein was four years old at the time and was
      assaulted by her father. Where an assault is of such a nature that the minor victim may not have appreciated the offensive nature of the conduct, the lack of a prompt complaint would not necessarily justify an inference of fabrication. Snoke, 580 A.2d at 299 (a delay of one year in reporting would not necessarily require a prompt complaint instruction). In the present case, unlike Stohr, supra, the victim was an adult and had numerous opportunities to report the crime later that evening after appellant left her room and the following day, including when she was at work and at her friend’s home. As this court noted over fifty-seven years ago: Where the victim is an adult, it is an important test of her credibility to have "complained on the first opportunity.” Commonwealth v. Berklowitz, 133 Pa.Super. 190, 2 A.2d 516, 517 (1938).

      . S.B. testified that the doors at the shelter did not have locks and that the rooms therein were by no means soundproof, given she was able to hear events in other rooms when she was in hers.


source: Caselaw Access Project

author:
JOHNSON, Judge:
      CAVANAUGH, Judge,

license: Public Domain

text:
    672 A.2d 1359
    Barbara MORGAN and Joseph Morgan, Her Husband, Appellants, v. John A. McPHAIL, M.D.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed March 15, 1996.

      Michael Pribanic, White Oak, for appellant.
    John A. Bass, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to consider whether Pennsylvania law recognizes a cause of action where a doctor failed to obtain his patient’s informed consent to the administration of an intercostal nerve block. Because we find that we are bound by prior case law which limits actions for informed consent to situations involving surgical or operative procedures, we are constrained to affirm the trial court order that granted Dr. John A. McPhail’s preliminary objections to those paragraphs of the complaint which involved informed consent. Nonetheless, we are compelled to express our reservations regarding this result.

In October 1988, Barbara Morgan fractured two of her ribs. In December 1988, due to persistent lingering pain in and around her ribs, she sought treatment from John A. McPhail, M.D. Dr. McPhail attempted to relieve Barbara’s pain by performing an intercostal nerve block, which involves injecting anesthesia into the area around the ribs. Following that procedure, Barbara became very weak and short of breath and telephoned Dr. McPhail to inform him of her condition. Thereafter, she reported to the hospital for emergency medical care, where it was determined that she had sustained a collapsed right lung as a result of the intercostal nerve block. Barbara and her husband, Joseph, then filed suit against Dr. McPhail, alleging, among other things, that he had failed to obtain Barbara’s informed consent prior to performing that procedure. Dr. McPhail filed preliminary objections in the nature of a demurrer as to those paragraphs of the Morgans’ complaint which concerned the doctrine of informed consent, arguing that informed consent is necessary only for surgical or operative procedures. The trial court agreed and, accordingly, granted a demurrer. The Morgans filed a motion for reconsideration, which was denied. The Morgans then filed a petition for permission to appeal pursuant to 42 Pa.C.S. § 702(b), which was granted. See Order of Court, dated May 1,1991. This appeal followed.

On appeal, the Morgans assert that the trial court erred in granting Dr. McPhail’s preliminary objections. Specifically, they contend that the trial court erred in determining that the doctrine of informed consent does not apply to the facts of this case.

Our scope of review in an appeal from an order granting preliminary objections in the nature of a demurrer is plenary. Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175, appeal denied, 533 Pa. 634, 621 A.2d 580 (1992). Moreover,

[a]ny doubt as to whether a demurrer should be sustained is to be resolved against the moving party. Furthermore, “we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom.” Preliminary objections should be sustained only when it appears with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

Id. at 233, 606 A.2d at 1177, quoting Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 192, 500 A.2d 470, 472 (1985).

The doctrine of informed consent “grants the competent patient the right to medical self-determination regarding an operative or surgical procedure.” Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993), citing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Our supreme court has held that

a physician or surgeon who fails to advise a patient of material facts, risks, complications and alternatives to surgery which a reasonable [person] in the patient’s position would have considered significant in deciding whether to have the operation is liable for damages which ensue, and the patient need not prove that a causal relationship exists between the physician’s or surgeon’s failure to disclose information and the patient’s consent to undergo surgery.

Gouse v. Cassel, 532 Pa. 197, 202, 615 A.2d 331, 333 (1992). “The basis of an action for a lack of informed consent is that when a physician touches a patient a technical battery occurs, unless that touching is done with the patient’s consent.” Wu v. Spence, 413 Pa.Super. 352, 355-56, 605 A.2d 395, 397 (1992), appeal dismissed, 534 Pa. 309, 632 A.2d 1294 (1993), citing Gray, supra. The goal of this doctrine “is to provide the patient with material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition.” Sinclair, supra, at 570, 633 A.2d at 1140.

To determine whether the trial court erred in concluding that the doctrine of informed consent does not apply to an intercostal nerve block, it is necessary to understand the manner in which the law in this area has developed. In Cooper v. Roberts, 220 Pa.Super. 260, 263, 286 A.2d 647, 648 (1971), appeal denied, a patient underwent a gastroscopio examination, during which doctors lowered a fiberscope into her stomach “to photograph that area for purposes of diagnosis and treatment.” Doctors never informed the patient of any collateral risks associated with the procedure. Rather, they assured her that the examination was “a relatively simple diagnostic procedure and that (there) should not be any trouble with it.” Id. at 263, 286 A.2d at 648. However, during the examination, the patient’s stomach was punctured, and she required emergency surgery to seal the perforation. The patient filed suit alleging negligence and lack of informed consent. At trial, the jury rendered a verdict in favor of the doctors. On appeal, this Court was asked to determine the proper standard against which the doctors’ conduct should have been weighed. Preliminarily, we noted that

[t]here was some dispute as to whether the gastroscopic examination qualified as a surgical operation. [The patient] was anesthetized and transported to a special area for the examination, occurrences which seem to closely relate the examination to the normal surgical procedure. However, if there is any distinction between the two types of procedures, such a distinction is immaterial for purposes of this issue. The same duty of disclosure obtains whether or not the treatment can be technically termed operative.

Id. at 265 n. 2, 286 A.2d at 649 n. 2 (emphasis added). Thus, we concluded that the patient was entitled to be informed of those risks that a reasonable person would consider material to his or her decision to undergo treatment.

However, Cooper appears to be the only case in which a court has stated that physicians have the same duty of disclosure concerning surgical or non-surgical procedures. In every case since Cooper, courts of this Commonwealth have steadfastly refused to apply the doctrine of informed consent to any procedure or treatment that is not operative or surgical. For example, in Malloy v. Shanahan, 280 Pa.Super. 440, 442-43, 421 A.2d 803, 804 (1980) (plurality), the sole question on appeal was “whether a doctor who renders treatment to a patient consisting of the therapeutic administration of a drug with known potentially dangerous side effects is obligated to secure the patient’s informed consent to the treatment....” In that case, a patient became partially blind after orally taking prescription drugs over a period of twelve years. The court, recognizing that informed consent is necessary prior to a surgical operation, concluded that such consent “ha[d] not been extended to therapeutic treatment....” Id. at 443, 421 A.2d at 804.

In 1985, this Court was again asked to consider whether the doctrine of informed consent was applicable to the oral administration of prescription drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985). After looking to Malloy for guidance, we concluded that the doctrine should be limited to only those cases involving surgical or operative procedures. In reaching this conclusion, we reasoned that

[i]n Gray, supra, our supreme court expressly grounded its adoption of the informed consent doctrine upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery. To now expand the doctrine’s current applicability to cases involving the administration of therapeutic drugs would be to radically depart from, and indeed obliterate, the foundation upon which the Gray decision stands. Not only are we unpersuaded that such expansion is necessary, we consider ourselves bound by our supreme court’s pronouncements in Gray.

Id. at 72, 497 A.2d at 649.

Subsequently, the United States District Court for the Eastern District of Pennsylvania, applying Pennsylvania law, considered whether the administration of prescriptive drugs required informed consent when such drugs were injected rather than taken orally. Karibjanian v. Thomas Jefferson Univ. Hosp., 717 F.Supp. 1081 (E.D.Pa.1989). The court recognized that Boyer was the leading Pennsylvania case on the issue of informed consent as it relates to the administration of drugs, but stated that “[t]he middle ground over which the Boyer court leapt includes a case like the plaintiffs in which the patient is injected with a substance. A touching occurs, perhaps a painful one, yet it is something less than surgery.” Id. at 1084. That court determined that

[w]hen it is the need for an injection which the patient disputes, it is reasonable to impose a duty of informed consent. For example, there are some drugs which may be administered orally or by injection; the decision to inject such a drug should be made only with the patient’s informed consent. On the other hand, when it is the substance administered, not the method of administration, which is challenged ... it is absurd to invoke the duty of informed consent simply because the physician or nurse must touch the patient to inject the drug.

Id.

This Court addressed a similar issue in Wu v. Spence, supra. In that case, a patient was treated intravenously with an antibiotic. She brought suit alleging that her doctor failed to inform her of the potential risk of peripheral neuropathy as a result of the treatment. The trial court found that the patient failed to state a cause of action based upon lack of informed consent and granted a nonsuit in favor of the doctor. On appeal, the patient asserted that the touching involved with the intravenous administration of the drug was sufficient to form the basis of the battery required to support a cause of action for lack of informed consent. In the alternative, she urged this Court to adopt a negligence standard for informed consent. As to the patient’s first contention, we determined that the injection of the drug was not sufficient to support a cause of action because the patient claimed damage caused by the action of the drug, not by insertion of the needle. Id. at 355, 605 A.2d at 396, citing Karibjanian, supra. Further, we stated that informed consent has been consistently limited to a battery theory, and we declined to adopt a negligence theory.

Finally, in the recent case of Hoffman v. Brandywine Hosp., 443 Pa.Super. 245, 661 A.2d 397 (1995), Helen Hoffman filed suit on behalf of her mother (the patient) after she died as a result of contracting the AIDS virus from contaminated blood she received during a transfusion. Hoffman maintained that the doctor improperly failed to obtain the patient’s informed consent before administering the blood transfusions. The court stated that “when surgical or operative procedures are involved, a physician must obtain informed consent as to injected drugs.” Id. at 254, 661 A.2d at 401. It explained that “[bjoth the method of insertion and the potential latent harm of any substance injected, inserted, or otherwise introduced into the patient’s body and left there during surgery may be the subject of informed consent.” Id. at 254, 661 A.2d at 401 (emphasis omitted). However, in Hoffman, the patient was given the contaminated transfusion approximately seven hours after surgery. Thus, because it was not introduced during surgery, this Court concluded that the doctor was not required to disclose the attendant risks and alternatives to transfusion.

In light of the foregoing authority, we are constrained to conclude that under the current state of the law in Pennsylvania, the doctrine of informed consent is applicable only when a patient is subject to a surgical or operative procedure. Compare Sinclair, supra (doctrine of informed consent inapplicable to physician’s use of forceps to facilitate natural delivery); Matukonis v. Trainer, 441 Pa.Super. 570, 657 A.2d 1314 (1995) (doctrine of informed consent inapplicable to chiropractic manipulation of patient’s neck, as it was not surgical in nature), alloc. granted, 542 Pa. 648, 666 A.2d 1057 (1995); Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493 (1992) (doctrine of informed consent inapplicable to radiation treatment), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993); with Stover v. Assoc. of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11, 635 A.2d 1047 (1993) (physician required to disclose the attendant risks and alternatives to surgical implantation of prosthetics); Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978) (where a drug was administered intravenously during surgery, the doctrine of informed consent was applicable). Our reservations regarding the injustice of this rale do not free us from the constraints imposed upon us as an intermediate appellate court. The primary role of intermediate appellate courts “is to apply existing law to the great volume of cases that come before us.” Hatchard v. Westinghouse Broadcasting Co., 350 Pa.Super. 1, 22, 504 A.2d 211, 223 (1986), rev’d on other grounds, 516 Pa. 184, 532 A.2d 346 (1987) . Nonetheless, a second function of the intermediate appellate court is to stimulate revision in the law by the highest court where reform or clarification is necessary. Id. We believe that this is such a case. Although we are bound by Sinclair, Hoffman, Wu, and Boyer and must affirm the trial court order granting Dr. McPhail’s preliminary objections, we express our reservations regarding both the battery theory of informed consent and the distinction between surgical and non-surgical procedures under that theory.

Indeed, we are not the first members of this Court to question whether the battery theory should be abandoned in favor of a negligence standard. In Malloy, supra, Judge Hoffman authored a lengthy dissent, in which he cited with approval the “overwhelming trend among courts in other jurisdictions toward recognizing the doctrine as being grounded on negligence rather than battery.” Id. at 445, 421 A.2d at 805 (citing cases). He explained that courts following this trend “have recognized that the failure to obtain a patient’s informed consent does not correspond to the traditional concept of battery because the doctor’s omission rarely results from a willful intent to injure the patient.” Id. at 446, 421 A.2d at 805-06. Similarly, “the physician’s culpable conduct, the failure to inform, does not itself involve a ‘touching’ of the patient.” Id. at 446, 421 A.2d at 806. Judge Hoffman recognized that the doctrine of informed consent is based upon the principle that each adult of sound mind has the right to determine what is done with his or her body. Id., citing Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 126, 105 N.E. 92, 93 (1914). In order to make such determinations, a patient must be given adequate information to knowledgeably evaluate the options available and the risks attendant to those options. Id. at 447, 421 A.2d at 806. Thus, Judge Hoffman reasoned that “[wjhere a physician prescribes a drug without properly informing the patient of the risks involved, he invades the patient’s bodily integrity and violates the patient’s concomitant right to know just as if he had performed a surgical operation without first obtaining the patient’s informed consent.” Id.

Similarly, although the Wu court determined that informed consent was not required for administration of therapeutic drugs under the battery theory, it recognized that

[i]t may be time for the Supreme Court to reconsider its decision in Gray. The greater use of various drug treatments has led to a situation where the risk associated with adverse side effects may be considerable. Further, there is the possibility that in light of adverse side effects, a patient may wish to chose [sic] an alternative treatment. A patient’s decision to undergo drug therapy should be no less informed than a decision to undergo surgery. The law should require that a physician provide his patient with all available information and options. We find the dissenting opinion of Judge Hoffman in Malloy ... persuasive in regard to adopting a negligence standard to eliminate any present confusion in the law. Under the present development of the law, whether or not to make such a change in the law is not within the province of this Court.

Wu, supra, at 356-57, 605 A.2d at 397. See also Lynne Heckert, Informed Consent in Pennsylvania — The Need for a Negligence Standard, 28 Vill.L.Rev. 149 (1982-83) (explaining development of informed consent in Pennsylvania and suggesting adoption of negligence standard).

Moreover, under the current state of the law, which requires a touching to establish a cause of action, we see no logical reason for the distinction between a surgical procedure and a non-surgical touching, such as an injection. In Stover, the court acknowledged the problematic nature of this distinction, stating that it would be less than candid if it failed to “admit to a degree of artificiality in creating a distinction which limits the touching required for actionable informed consent to be the surgical cut.” Stover, supra, at 26 n. 6, 635 A.2d at 1054 n. 6. However, it concluded that “until such time as our supreme court expands the technical assault definition, such artificiality must hold sway.” Id. The Hoffman Court echoed this concern. See Hoffman, supra, at 255 n. 3, 661 A.2d at 402 n. 3. Further, Judge Beck wrote separately in Hoffman to express her discomfort with the distinction between operative and non-operative procedures in our informed consent law. Id. at 254-55, 661 A.2d at 402.

Thus, although we have reservations regarding the law as it now stands, we are constrained to affirm the order granting Dr. McPhail’s preliminary objections to those paragraphs of the complaint which concerned the doctrine of informed consent.

Order Affirmed.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

Since I see no reason to extend the informed consent doctrine beyond its present confínes, or to redefine the doctrine, I concur in the result only.


author: TAMILIA, Judge.

text:
    672 A.2d 1364
    In re the BARNES FOUNDATION, a Corporation. Appeal of BARNES FOUNDATION and its Trustees (“Foundation”).
    Superior Court of Pennsylvania.
    Argued May 16, 1995.
    Filed March 15, 1996.

      Bruce W. Kauffman, Sheryl L. Auerbach, and Lynn R. Rauch, Philadelphia, for appellant.
    Arthur L. Jenkins, Jr., Norristown, for Students of the Barnes Foundation, participating party.
    Lawrence Barth, Deputy Attorney General, Philadelphia, for the Commonwealth, participating party.
    J. Brooke Aker, Norristown, for Friends of the Barnes Foundation, participating party.
    Carol S. Buechner, Philadelphia, for Alfred A. Knopf, Inc., participating party.
    Before ROWLEY, President Judge , TAMILIA and SAYLOR, JJ.

       Former President Judge Rowley participated in the oral argument held in this matter and joined in the Judgment Order entered on May 17, 1995; however, due to his subsequent retirement from the court he did not participate in this opinion.

   TAMILIA, Judge.

This Opinion follows our Judgment Order Per Curiam of May 17, 1995, which authorized the Barnes Foundation Trustees to permit off-site exhibition of selected works of art owned by the Barnes Foundation. Allocatur to the Supreme Court was requested following our May 17th Order and was denied on May 26, 1995. In re Barnes Foundation, 541 Pa. 649, 664 A.2d 539 (1995).

While the Barnes Foundation appeal at No. 00794 Philadelphia, 1994, was held to be moot in this Court’s Order of March 8, 1995, and in In re The Barnes Foundation, 443 Pa.Super. 369, 661 A.2d 889 (1995) (Barnes I), the emergency appeal and hearing at No. 01641 Philadelphia, 1995, was timely and brings us to a basic consideration of the issues posed by Friends of Barnes (hereinafter Friends) and of Barnes Students (hereinafter Students). Considering the issue raised by the Trustees as to the role of the Students in this appeal, as stated in Barnes I at No. 02605 Philadelphia, 1994, the students have no standing. This is so for either of two reasons. At the time of Barnes I, the Students, represented solely by Nicholas Tinari, had no standing as Tinari was not a student at the time, having been expelled. This Court also held in Barnes I at No. 02085 Philadelphia, 1993, that mandamus did not lie for Tinari’s reinstatement, and as a matter of contract, no breach of contract was alleged or proven for termination of the student status. The grounds for termination were found to be on-going, vexatious and substantial and neither the trial court nor this Court would intervene in a decision by the trustees to suspend under those facts. Even though reinstatement might have occurred prior to the instant appeal, the Students have no standing on the issues of this case because their appointment to the Board of Trustees ad litem by Judge Stefan was purely for the limited purpose to provide the court with facts about the educational process and curriculum of the Foundation’s Art Department from the perspective of current and future students. Unfortunately, the Students have used this wedge to engage in what must be described as frivolous and harassing conduct which has done nothing but run up attorneys’ fees for the Foundation. (Slip Op., Stefan, J., 8/9/91.) Based upon the ruling of Judge Stefan and this Court on appeal, the trial court erred in refusing to grant preliminary objection as to “student” participation. The matter of standing is jurisdictional and may not be waived by the court refusing to decide the case on a technical basis (Judge Ott, T.T., 5/10/95, p. 6), but electing to proceed on the merits. The Trustees objected to that disposition, preserving the issue on the record (T.T. at 8), thereby requiring our disposition of that issue on appeal.

As to the standing of the Friends of Barnes Foundation, the Foundation likewise raised an issue as to their standing which was also ignored by the court in its dismissal of all preliminary objections. This issue was likewise preserved for appeal by the Foundation. Prior to ruling on that issue, the case was considered on the merits by the panel of this Court as it appeared to be the propitious means of expediting an emergency appeal when the record was not available to determine the standing issue as to the “Friends.” This Opinion will focus on the merits which required resolution by the trial court as part of a continuum of the preceding cases and the several petitions to permit loans and touring of the art considered by Judge Stefan. The trial court proceeded to hear the request of the trustees to extend the venue, permitting the Students and Friends to contest this action. Nothing in the record subsequently forwarded to this Court established that the Friends have standing. Having issued our Per Curiam Order on the assumption that they did have standing, we will proceed to support that Order on the merits, as though they did have standing. Only in the Procedural Background Statement of the Adjudication and Decree of February 1, 1994 is there a reference to Friends of Barnes in conjunction with the Violette de Mazia Trust as co-protagonists requesting denial of the petition by the trustee. It would appear the de Mazia Trust has standing and as a “Friend of Barnes” it permits this matter to go forward on the merits. Treating these cases as a continuum, there is a basis for according standing to the Friends of Barnes, as including the de Mazia Trust, Violette de Mazia was the long-time assistant, co-author and traveling companion of Dr. Barnes, who was given special status in the Barnes indenture. Her trust, following her decease, was designed to continue the support and interest in the Foundation she manifested during her life and pursuant to the Foundation indenture.

As to Friends of Barnes, we have held in the previously entered Per Curiam Order of May 17, 1995, following the emergency argument conducted by conference call before a panel of this Court, that the reasoning of Judge Stefan, as applied to new facts, controls in this case with the same opportunities (gain without harm) central to Judge Stefan’s decision. Judge Ott, who assumed jurisdiction upon the death of Judge Stefan, deviated from Judge Stefan’s analysis, which is the law of the case, and withdrew to a technical application of the trust agreement which would have unnecessarily denied the Foundation the ability to enlarge its endowment and protect what could be an inevitable defeasance of the trust based upon a corpus which fails to earn sufficient income to fulfill the dominant intent of the trust to preserve the art works intact and to teach students.

The 1922 trust agreement provided for no loans of the art and preservation of the art in the building created for that purpose and to educate students. When two purposes of a trust become conflicted and the dominant intent of the trust to preserve the institution created by the trust becomes imperiled, some provisions of the trust, such as a no-loan policy, must give way to the dominant purpose if this can be done reasonably. In re Mears Estate, 299 Pa. 217, 149 A. 157 (1980) (Equity will prevent failure of definite charity by employing other means, where necessary, to carry out substantial intention of donor). The role of the Court is to look back to the mind of the settlor of the trust, to determine what he would have done when faced with conditions which were unanticipated at the time of the creation of the trust and nearly as possible to fulfill the intention of the conveyor. In re Bodine’s Trust, 429 Pa. 260, 239 A.2d 315 (1968). Blind adherence to the terms of the trust agreement could result in the trust losing its public non-tax status and financially defaulting to the point the art works sought to be preserved in the Barnes Foundation would be sold off or assigned to some other institution which would not respect the wishes of Dr. Barnes and might in fact be the very institutions he had strongly opposed during his lifetime. The Friends of Barnes and the Students espouse a principle of blind adherence to the trust agreement despite clearly inevitable destruction of the Foundation and total denial of an inherent public interest in preserving the trust and its tax exempt status. The Barnes Foundation is no stranger to litigation and early on it was threatened with oblivion for failure of the settlor to accommodate the public interest which was essential to tax exempt status. Through intervention by the Commonwealth of Pennsylvania, this crisis was resolved. See Barnes Foundation v. Keely, 314 Pa. 112, 171 A. 267 (1934). The administrative scheme adopted by the settlor was approved at that time, but it did not acquire a mantel of impenetrable insulation incapable of being adjusted to a change of cultural, social and economic factors.

The administrative scheme provided two conditions which became the source of internal tension because of changing conditions, inflationary pressures, unanticipated additional expenses and the passage of time. The original trustees, pursuant to the trust indenture and because of close identity with Dr. Barnes and his philosophy, were extremely conservative and due to limitations on investments, were unable to expand the endowment in relation to the increased costs and needs of the Foundation over the many years of their administration.

Judge Ott, in disregarding the approach taken by Judge Stefan who recognized the need to bring the settlor’s intent into equilibrium and thereby assure the continuity of the Foundation, applied the technical wording of the agreement to the detriment of the settlor’s intent to perpetuate the art collected by the Barnes Foundation for the distant future generations of students and the public. This was an abuse of discretion and violated the law of the case established by the two decrees entered by Judge Stefan which were sustained on appeal.

A careful review of the history of this case, involving prior litigation leading to the loan of paintings to various venues, establishes the following, pursuant to the petition of the Trastees to exhibit art at an additional premises, a European Museum:

1. On July 21, 1992, [the Court of Common Pleas, Orphans’ Court Division,] issued an Adjudication and Decree permitting a one-time exhibition tour of selected works of art “between April, 1993 and September, 1995, at the National Gallery of Art in Washington, D.C., and at appropriate International and National Art Institutions, in accordance with the testimony produced at time of hearings”.
2. On February 21, 1994, [the Court of Common Pleas, Orphans’ Court Division,] issued an Adjudication and Decree Sur Petition of Richard H. Glanton, Esquire, et al., for Approval of Exhibition of Works of Art at the Kimbell Art Museum and the Art Gallery of Ontario.
3. While the exhibition which [was] underway at the Philadelphia Museum of Art [and] scheduled to close on April 23, 1995, renovations at the [Barnes] Foundation [was not to be completed when originally anticipated]. The reinstallation of the collection [which was anticipated to begin in April, was put off until] October Í995 and [was to] be completed, with the planned official reopening scheduled for October 14,1995.
4. Pursuant to their fiduciary obligations, the Trustees [petitioned the Court alleging] that the Foundation [was] presented with an opportunity to receive substantial additional funds for exhibition of works of art at an additional premier art museum in Europe.
5. Exhibition at [that] museum, which would take place ' on or about June 1,1995 through September 30,1995, would not delay completion of the renovations or reopening of the Foundation.
6. [That] museum is a premier facility with personnel qualified to safely handle, exhibit and secure the Foundation’s art in a suitable environment.
7. Exhibition of works of art at [that] facility, ... would be supervised and regularly checked by curators and security guards, [thereby] safeguarding] the works and pro-mot[ing] education and the appreciation of the fine arts, while the renovations at the Foundation are being completed.

Pursuant to the petition to extend the tour, Judge Ott took testimony from relevant individuals concerning the tour, its conduct, protection benefit, and detriment to the Barnes Foundation on May 10,1995.

At the outset, Judge Ott stated he would deal with a motion to quash within the framework of the procedure established by Judge Stefan (T.T., 5/10/95, p. 9). By implication, Judge Ott adopted the procedural if not substantive scheme established by Judge Stefan. Despite considerable antagonism and heated personal interchange between counsel and witnesses, the essential facts were elicited which permit a clear application of law to an appropriate disposition.

Our careful review of the record supports the findings of fact by the trial court as detailed below.

An all day hearing convened on May 10, 1995. At the outset, the Court announced it was dismissing all the preliminary objections. Thereafter, testimony was produced in support of the petition.
In addition to the findings of facts set forth in the Court’s Adjudications of July 21, 1992 and February 1, 1994, the Court makes the following:
FINDINGS OF FACT
1. The Trustees seek approval to add an additional venue, viz., the Haus der Kunst in Munich, Germany.
2. The Haus der Kunst is a premier art facility qualified to handle, exhibit and secure the Foundation’s art in a suitable environment.
3. The proposed exhibit would include between eighty and eighty-three of the paintings included in the previous venues but would not include The Models by Georges Seurat or La Danse by Henri Matisse.
4. Negotiations surrounding the proposed exhibition began in February of 1995.
5. Although a written draft of an agreement containing all pertinent terms has passed between the Trustees and the Haus der Kunst, no contract has been executed.
6. The proposed addition venue would produce $2,250,-000 in revenue for the Foundation and would provide insurance coverage for the exhibited works of art.
7. The Haus der Kunst would be responsible for expenses attendant to the exhibition.
8. The Foundation proposes that the exhibition at the Haus der Kunst will take place from June 15,1995, through October 15, 1995, with the exhibited paintings being returned to the Foundation by the end of October 1995.
9. Ideally, the Haus der Kunst would require six months advance notice of the exhibit’s availability in order to make all appropriate arrangements; in all events, a decision as to the proposed exhibition must be made immediately.
10. The exhibition paintings are presently stored in the administration building of the Foundation.
11. The renovations to the Foundation are seventy percent (70%) completed and are expected to be finished by the end of August.
12. Reinstallation of the Foundation’s art is expected to commence in late August or early September 1995.
13. The anticipated final cost of the renovations has increased to $11,100,000.
14. Exhibitions of the selected paintings at the six completed tour venues has generated revenues for the Foundation of approximately $14,600,000.
15. The Office of the Attorney General as parens patriae for charities approves the idea of the tour to Germany, subject to certain conditions relating to the paintings’ suitability for travel and the use of the tour’s proceeds.
16. The Foundation has not engaged in significant development efforts beyond those related to the one-time tour authorized by this Court.

We take exception to the finding by the trial court that the Students have standing for the reasons given above, and the court’s dismissal of the Trustees’ preliminary objections as to the Students appears to be unsupported.

Additionally, the court ignored perhaps the most significant fact established of record, that the paintings would not be shown to the public nor available to the Students until late October, 1995, because they would remain in storage until that time, whereas, with approval of the Haus de-Kunst showing, they would be earning 2.5 million dollars (T.T., Glanton, pp. 84-85). The September opening would be limited to classes probably in the administration building rather than the galleries, until the pictures were hung (T.T. at 85).

Judge Ott, in his adjudication and decree, recognized the efficacy of Judge Stefan’s reasoning in his two adjudications, the first in 1992 authorizing “a single tour” limited to the period of any renovations in order to raise revenues to cover repairs. Judge Stefan had found an internal and irreconcilable conflict in the trust indenture between paragraphs 16 and 30. Paragraph 16 provides:

16. All of the buildings and improvements of Donee shall at all times be kept in first class order and repair.

Paragraph 30 provides

30. It shall be incumbent upon the Board of Trustees of Donee to make such rules and regulations that will protect the works of art in the gallery and the trees, shrubs and plants constituting the said arborater.

Judge Stefan, in Finding of Fact # 55, stated:

55. Without the tour, the Foundation, which is operating at a deficit, lacks the financial resources to pay for the renovations necessary to maintain the Foundation facilities and collection. [N.T. 5/21/, pp. 21, 51, 111, 126, 132, 133, 254, 258; N.T. 6/9; Ex. B-8]

Judge Stefan, in Discussion of the Decree dated July 21, 1992, stated:

It is difficult to believe that a man of Dr. Barnes’ erudition would not have anticipated that the day would come when the structure he had created to house his collection would require such fundamental structural repairs and renovations as would make impossible the uninterrupted display of the collection as mandated by the Indenture. If such were his thought and desire, then history should tell us that an inevitable conflict with reality eventually would occur. The testimony is overwhelming that, after the passage of many decades, a basic overhaul of the Foundation buildings and systems is required if the very reason for their existence — housing and protection of the collection — is not to be frustrated by the ravages of an unfriendly environment.

Following this observation, Judge Stefan went on to find:

A serendipitous circumstance has presented itself to the Foundation: a singular opportunity to restore, protect, and display a portion of the collection, while procuring a substantial sum of moneys to be applied to the required renovation project. The testimony is clear that this opportunity is indeed unique; and, if lost, might not come again. The limitation on investments imposed by Dr. Barnes has not well-served the Foundation; rather, and ironically, this is a factor which now militates in favor of seizing the opportunity at hand.

Decree at p. 14.

In so finding, the Court held there was no need to amend the Indenture and that approval of a single tour limited to the period of renovations can and should be accomplished by court Order pursuant to 20 Pa.C.S. § 6110(a), Administration of charitable interests, upon the express conditions that following the completion of the renovations, the paintings be returned to their places on the walls as directed by Dr. Barnes, and the provisions of the Indenture reinstated in full. (Adjudication and Decree, 7/21/92, pp. 14-15.)

This is the heart of the authorization for permitting paintings of the Barnes Foundation to be placed on tour. When the Trustees again petitioned the court (Stefan, J.) to extend the tour, the court found it expedient to do so because the cost of renovation had escalated, the amount to cover those costs could be recovered by extending the tour to additional venues, the original parameters would still be operative, that is a single tour during the period of restoration, and the need to cover the restoration expenses. Thus in the Adjudication and Decree of February 1, 1994, the trial court simply extended an established policy to cover new and fortuitous circumstances to achieve the already approved result. In addition, the likelihood of harm to the paintings would be de minimus as the best professional safeguards were employed to insure their safety and the number of paintings exhibited was limited to 83 out of the total collection in excess of 2,000.

This brings us to the petition in the present case. What is different about the facts of this case is that the money to be obtained from extending the tour and venue to Germany would be in excess of the amount that was needed for present restoration. However, the major operative fact is that the tour would take place during the period when restoration was still in process, and the mandate of the 1992 decree to have the paintings permanently returned to their places at the Barnes Foundation by completion of restoration of the buildings would still be met. The Order by Judge Stefan that the proceeds of the tours, and any excess over the amount needed for restoration, be retained in a special account for purposes of restoration present and future, and not to be used for operating expenses, is crucial and remains intact. While we are bound by Judge Ott’s findings of fact absent gross abuse of discretion, we are not bound by his conclusions of law. We find he was in error in concluding that extension of the tour was impermissible because cost of restoration had been met, when an equally significant finding by Judge Stefan, which continues to be binding in this case, is that the tour may be conducted throughout the period of restoration when the paintings could not be displayed at the Barnes Foundation. To deny the additional venue in Germany, and the possibility of obtaining $2,500,000 additional funds for future restoration, while permitting the paintings to remain in storage, would be unconscionable. Seventy years elapsed from the time of the Indenture and the establishment of the endowment for maintenance of the buildings and art work of the Foundation, during which there has been serious deterioration of the buildings and art work and greatly diminished value of the endowment. We cannot predict the future and a reserve of two or three million dollars in the restoration account is small protection against future, probably escalating, costs of maintenance and restoration required by the trust indenture.

For the above reasons and because of the approval by the Attorney General of Pennsylvania, which represents the people of Pennsylvania, the Per Curiam Order by this Court entered May 17,1995 is hereby reaffirmed.

      . Although the Opinion in In re The Barnes Foundation, 443 Pa.Super. 369, 661 A.2d 889 (1995), indicates the Order was filed on March 8, 1995, the Order as filed by the prothonotary is dated March 10, 1995.

      . Section 6110(a) provides as follows:
      (a) General rule. — Except as otherwise provided by the conveyor, if the charitable purpose for which an interest shall be conveyed outright or in a testamentary or inter vivos trust shall be or become indefinite or impossible or impractical of fulfillment, or if it shall not have been carried out for want of a trustee or because of the failure of a trustee to designate such purpose, the court may, on application of the trustee or of any interested person or of the Attorney General, after proof of notice to the Attorney General when he is not the petitioner, order an administration or distribution of the interest for a charitable purpose in a manner as nearly as possible to fulfill the intention of the conveyor, whether his charitable intent be general or specific.


author: POPOVICH, Judge: BECK, Judge,

text:
    672 A.2d 1371
    CINTAS CORPORATION, Appellee, v. LEE’S CLEANING SERVICES, INC. t/a Lee’s Industries, Inc., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1995.
    Filed March 12, 1996.

      Gary S. Server, Philadelphia, for appellant.
    Howard B. Zavodnick, Philadelphia, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County which denied appellant’s petition to strike a default judgment. Appellant contends that the judgment is defective on the face of the record because, inter alia, the person who served the original process failed to make a return of service. Upon review, we are constrained to agree with appellant and reverse the decision of the court below.

The record reveals the following procedural history: On or about February 22, 1994, appellee filed a complaint against appellant alleging breach of a contract to clean certain uniforms of appellee. Thereafter, on February 28, 1994, service was made upon appellant. On March 16, 1994, Attorney Howard B. Zavodnick filed a certificate of service which stated that Albert Zavodnick served original process upon appellant at its business address, 3858 Pulaski Street, Philadelphia, Pennsylvania 19140, by handing a copy of the complaint to Virginia Watson, the person in charge of Lee’s Cleaning Services at the time. On September 23, 1994, a default judgment was entered against appellant due to its failure to answer or otherwise respond to appellee’s complaint. On March 23, 1995, appellant filed a petition to strike the subject default judgment which alleged that appellee failed to comply with the mandates of Pa.R.C.P. 405(a) and 424(2).

In Franklin Interiors v. Wall of Fame Management, 510 Pa. 597, 599-600, 511 A.2d 761, 762 (1986), our Supreme Court stated:

It is well settled beyond peradventure that a petition to strike may be granted only for defects appearing on the face of the record. (Citations omitted.)
Review of a motion to strike, therefore, is limited only to the record as filed by the party in whose favor the warrant is given (here, Appellee). (Citations omitted.) Accordingly, if the record is not self-sustaining, the judgment should be stricken.

Our Supreme Court has also noted that in making the determination whether fatal irregularities appear on the face of the record, a court must look only at what was in the record at the time the judgment was entered. Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969).

Presently, appellant complains that judgment should be stricken because a fatal defect appears of record since appellee neglected to comply with Pa.R.C.P. 405(a) which, in pertinent part, provides: “When service of original process has been made the sheriff or other person making service shall make a return of service forthwith.... ” (Emphasis added.) Indeed, our review of the record establishes that appellee’s counsel, Howard B. Zavodnick, Esq., filed the return of service on March 16, 1994, when Albert Zavodnick was the person who actually served the complaint and should have filed the return. Since the record is fatally defective, we find that the judgment should have been stricken. Franklin Interiors, supra.

The fact that appellee filed a return of service made by Albert Zavodnick well after appellant filed its petition to strike does not cure the defect since we are obligated to look only at the record which existed when the judgment was entered. Linett, supra.

Appellee argues that its service was not defective because it sets forth sufficient facts “for the Court to determine whether proper service has been made” in accordance with Pa.R.C.P. 405(b). However, as previously stated, appellee neglected to comply with the mandatory provision of Pa.R.C.P. 405(a) which requires the person who serves the process, not the attorney for the plaintiff, to “make” the return of service forthwith.

Further, appellee appears to argue that appellant’s motion to strike should be barred by laches because it had notice of this action through various events, including the sending of notice of the default judgment pursuant to Pa. R.C.P. 236, the filing and service of the writ of execution in attachment, a garnishment action, the payment of the judgment by the garnishee bank and satisfaction of the judgment by appellant. However, “in the context of service of process, the rules ‘must be strictly followed, and jurisdiction of the court over the person of the defendant is dependent upon proper service having been made’ Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966).... Improper service, therefore, is not merely a procedural defect which can be ignored when the defendant, by whatever means, becomes aware that an action has been commenced against him or her.” Frycklund v. Way, 410 Pa.Super. 347, 599 A.2d 1332 (1991), appeal denied 531 Pa. 654, 613 A.2d 560 (1992).

Moreover, “it is never too late to attack a judgment or decree for want of jurisdiction.” DeCoatsworth v. Jones, 414 Pa.Super. 589, 604, 607 A.2d 1094, 1101 (1992), quoting, In re Simpson’s Estate, 253 Pa. 217, 225, 98 A. 35, 38 (1916). “For a judgment to be void on its face, one or more of three jurisdictional elements must be absent: the court’s jurisdiction of the parties; the court’s jurisdiction of the subject matter; or the power or authority to render the particular judgment.” DeCoatsworth, 607 A.2d at 1101, quoting Roberts v. Gibson, 214 Pa.Super. 220, 226, 251 A.2d 799, 802 (1969).

In the case sub judice, appellee failed to file a proper return of service. Consequently, the face of the record does not reveal whether service was properly made, and the court’s jurisdiction over the action remains in question. Accordingly, the lower court should have stricken the judgment for want of jurisdiction apparent on the face of the record. DeCoatsworth, 607 A.2d at 1101-1102; Mamlin v. Tener, 146 Pa.Super. 593, 596, 23 A.2d 90, 92 (1941) (“It is never too late to attack a judgment for want of jurisdiction of either the subject matter or the person for a fatal deficiency appearing on the face of the record.”).

Accordingly, we reverse the order of the court below and strike the judgment.

Order reversed. Judgment stricken. Jurisdiction relinquished.

BECK, J. files a dissenting statement.

BECK, Judge,

dissenting.

I dissent because I believe the majority exalts form over substance.

I recognize that Pennsylvania Rule of Civil Procedure 405(a) expressly requires that the “person making service shall make a return of service” with the court. It is clear that in this case, someone other than the “person making service” made the return of service. However, I question whether such technical noncompliance should be treated as “defective” or “improper” service for purposes of striking the default judgment.

The majority correctly cites to Frycklund v. Way, 410 Pa.Super. 347, 599 A.2d 1332 (1991) for the proposition that “improper service” is not “merely a procedural defect which can be ignored when the defendant, by whatever means, becomes aware that an action has been commenced against him or her.” In Frycklund, the plaintiff did not serve defendant at the proper address, and the court therefore never obtained jurisdiction over her person. Such a defect indeed yields an “improper service.” Service of process under these circumstances was therefore properly set aside. Id. at 352-353, 599 A.2d at 1335. The “defect” in this case is quite different and ought not to result in a stricken judgment.

      . Appellant also contends that service of process was defective because the person who was served, Virginia Watson, was not authorized to accept service of process. However, we need not address this issue in light of our resolution of appellant's other allegation of error.


author: MONTEMURO, Senior Judge:

text:
    672 A.2d 1373

    Frank A. CAPPIELLO, Marie Cappiello, Jacques J. Moore and Lawrence G. Spiel Vogel, Appellants, v. Paul J. DUCA, Gabriel A. Vetare, and Paul J. Duca and Gabriel A. Vetare, Trading as Lincoln Farm Associates.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed March 12, 1996.

      Maralynne Flehner, Gulph Mills, for appellants.

      Paul Duca, Philadelphia, for appellees.
    Before KELLY, POPOVICH, JJ., and MONTEMURO, Senior Judge.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Senior Judge:

This appeal arises from an order of the Philadelphia County Court of Common Pleas which denied Appellants’ request for a preliminary injunction. Appellants filed a complaint in equity seeking: (1) a declaratory judgment, (2) a preliminary injunction and a permanent injunction, (3) an accounting, (4) the appointment of a custodian for the partnership, and (5) damages based on breach of contract, tortious interference with the partnership’s business relations and tortious interference with the limited partners’ interests. Based upon Appellants’ simultaneous filing of a Petition for a Preliminary Injunction, an Accounting and an Order Appointing a Custodian, on April 28, 1995, Judge Nigro issued a rule to show cause why a preliminary injunction, an order for an accounting and an order appointing a custodian should not be granted. After an evidentiary hearing on the petition, Judge Sheppard denied Appellants’ petition in all respects. This appeal follows.

In December 1974, a limited partnership agreement was executed between Kofey, Ltd., a Pennsylvania corporation, as the general partner, and various limited partners. The limited partnership, known as Lincoln Farms Associates, was formed to promote and to develop real estate. On December 18, 1980, Paul Duca, Secretary/Treasurer of Kofey, Ltd., notified the limited partners that on advice of an accountant, for tax reasons, he wished to remove Kofey, Ltd. from the general partner position and instead substitute Gabe Vetare and himself. A Certificate of Amendment to this effect was filed with the state on December 26,1980.

Following some concern that Duca, acting as a general partner, was not promoting the interests of the partnership, Appellants, Frank Cappiello, Marie Cappiello, Jacques Moore and Lawrence Spielvogel, executed an amendment to the partnership agreement. That amendment, dated October 27, 1989, provided that limited partners, holding more than fifty percent of the total capital contribution of the limited partners, would have the right to remove and replace a general partner. A majority of the limited partners, holding 72.5% of the total contribution of the limited partners, then voted to remove Duca from the position of general partner. Duca, however, refused to acknowledge the vote as binding. As a result, Vetare, acting as general partner and for the partnership, filed suit seeking an injunction to prohibit Duca from, among other things, acting as a general partner or from interfering with partnership business, from writing checks, or otherwise withdrawing funds from the partnership account. On June 22, 1990, the Court of Common Pleas of Philadelphia County granted Vetare’s motion for a preliminary injunction only with respect to requiring Duca to turn the checkbook over to Vetare and prohibiting Duca from withdrawing any partnership funds. Vetare did not further prosecute the other issues and ultimately, the suit was non-prossed.

Nonetheless, Duca continued to assert that his removal from general partner status was invalid. In October 1991, Vetare assessed a real estate tax on the limited partners’ interests so that the partnership could pay its real estate taxes. Duca, continuing to assert his position as a general partner, notified Vetare that the assessment was invalid since it had not been authorized by Duca. Accordingly, Duca refused to pay the assessment.

From the end of 1991 until the beginning of 1993, Vetare conducted the operations of the partnership without much interference from Duca. However, in April of 1994, Duca executed and filed an amendment to the partnership certificate. That amendment purported to make null and void the amendment executed by the limited partners enabling a majority of the limited partners to remove and replace a general partner. Duca did not notify the limited partners of this amendment. Within months, however, the limited partners discovered the amendment and demanded that Vetare file an amendment to remove Duca. Vetare, however, refused. In fact, on February 22, 1995, Vetare and Duca filed an amendment which indicated that they were both general partners, and further, specifically ratified the April 1994 amendment which Duca had filed declaring the removal amendment null and void. Based on this conduct, on April 17,1995, Appellants filed this present action.

The trial court conducted a two day evidentiary hearing on Appellants’ request for a preliminary injunction. At the conclusion of that proceeding, the trial court denied relief, concluding that Appellants had failed to establish (1) that they were suffering from irreparable harm, (2) that they did not have an adequate remedy at law, and (3) that they would be exposed to greater harm than the Appellees would be if Appellants’ requested relief was not granted.

Appellants raise the following issues on appeal:

I. Does the record reasonably support the lower court’s order denying Appellants’ petition for a preliminary injunction on the grounds that they failed to demonstrate immediate, irreparable harm, an adequate remedy at law, that greater injury will result from denying the injunction than from granting it, and that the entry of an injunction will restore the parties to the last actual, lawful, noncontested status quo?
II. Did the lower court misapply the rule of law governing irreparable harm by failing to recognize that the violation of an express statutory provision and/or the existence of repeated, continuing wrongs and/or the absence of an adequate remedy at law constitute irreparable harm?
III. Did the lower court misapply the law governing lack of an adequate legal remedy?
IV. Did the lower court misapply the rule of law governing the requirement that the party seeking an injunction demonstrate that more harm will result from denying the injunction than from granting it by failing to recognize that when the preservation of or injury to an established right is in issue it is not appropriate to balance hardships, and/or by failing to recognize that when an express statutory provision is being violated the balance of hardships tips in plaintiffs’ favor as a matter law?

The standard for reviewing a request for a preliminary injunction is well settled. Our Supreme Court recently reiterated the standard as follows:

first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct ... Even more essential however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded.

School District of Wilkinsburg v. Wilkinsburg Education Association, 542 Pa. 335, 338, 667 A.2d 5, 6 (1995) (citing New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978)). Therefore, it is clear that a preliminary injunction may be granted only when the moving party sufficiently carries the burden to establish the following five elements:

(1) that relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) that greater injury will occur from refusing the injunction than from granting it; (3) that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) that the plaintiffs right to relief is clear.

Lewis v. City of Harrisburg, 158 Pa.Commw. 318, 324, 631 A.2d 807, 810 (1993). Moreover, it must be remembered that a preliminary injunction is an extraordinary, interim remedy to be granted only upon a clear right to relief in order to preserve the status quo pending resolution of the case on the merits. DiLucente Corp. v. Pennsylvania Roofing, 440 Pa.Super. 450, 455, 655 A.2d 1035, 1037 (1995).

Furthermore, it is also settled that when reviewing a denial of á preliminary injunction on appeal,

“[the] appellant has a very heavy burden to overcome; such a decree will not be interfered with upon appellate review in the absence of a plain abuse of discretion by the court below.” Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 577-78, 345 A.2d 664, 670 (1975) (citations omitted). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.” Roberts v. Board of Directors of the School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975) (citations omitted).

Psi Upsilon v. University of Pennsylvania, 404 Pa.Super. 604, 608, 591 A.2d 755, 757-58, allocatur denied, 528 Pa. 637, 598 A.2d 994 (1991) (quoting Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 505-506, 573 A.2d 575, 577 (1990)). Essentially, we need only determine whether there are any apparently reasonable grounds for the trial court’s action on the request for a preliminary injunction. Giant Eagle Markets v. Food & Commercial Union, 539 Pa. 411, 423, 652 A.2d 1286, 1291 (1995). Because our scope of review on a denial of a preliminary injunction is narrow, we will overturn the decision of the Chancellor only when an appellant demonstrates that the trial court clearly abused its discretion or committed an error of law. DiLucente Corp., 440 Pa.Super. at 456, 655 A.2d at 1038. Accordingly, in light of these standards, we shall proceed to address Appellants’ contentions.

Prior to addressing whether there are any reasonable grounds for the Chancellor’s denial of Appellants’ request for a preliminary injunction, we shall begin our analysis by addressing Appellants’ contention of legal errors. To begin with, Appellants argue that the trial court misapplied the rule of law governing irreparable harm, particularly in light of alleged statutory violations. Appellants contend that Vetare and Duca, individually and together, are violating numerous provisions of the Pennsylvania Revised Uniform Limited Partnership Act, 15 Pa.C.S. §§ 8505 — 8594, (PRULPA), and the Uniform Partnership Act, 15 Pa.C.S. §§ 8301 — 8365, (UPA), and as such, those violations are per se considered to constitute immediate and irreparable harm.

While our Supreme Court has recognized that statutory violations are sufficiently injurious to constitute irreparable harm, see Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 406, 52 A.2d 317, 321 (1947) (wherein the Supreme Court noted that when conduct proscribed by a statute is continued, such conduct constitutes irreparable injury); Save Our School v. Colonial School District, 156 Pa.Commw. 671, 677 n. 5, 628 A.2d 1210, 1213 n. 5 (1993) (Commonwealth Court, citing Hempfield School District v. Election Board of Lancaster County, 133 Pa.Commw. 85, 574 A.2d 1190, allocatur denied, 525 Pa. 650, 581 A.2d 575 (1990), stated that “a violation of a statute per se constitutes immediate and irreparable harm justifying the issuance of a preliminary injunction.”), in this case, it is not clear that any provisions of the PRULPA or the UPA are being violated. Appellants begin their argument on this point by noting that in 1989, 72.5% of the limited partners amended the partnership agreement, and consistent with that amendment, removed Duca from his position of general partner. Essentially, Appellants’ entire argument is premised upon the 1989 removal of Duca.

Our legislature has provided the methods by which a limited partnership is created, 15 Pa.C.S. § 8511 (a limited partnership is formed by filing a Certificate of Limited Partnership), and the methods by which a certificate of limited partnership may be amended, 15 Pa.C.S. § 8512. Section 8512 states that:

(a) General rule. — A certificate of limited partnership is amended by filing a certificate of amendment thereto and ... a certificate of summary of record in the Department of State.

The certificate of amendment shall set forth:

(1) The name of the limited partnership.
(2) The date of filing of the original certificate.
(3) The amendment to the certificate.
(4) If the amendment is to be effective on a specified date, the hour, if any, and the month, day and year of the effective date.
(b) Events requiring amendment. — An amendment to a certificate of limited partnership shall be filed upon the occurrence of any of the following events:
(1) A change in the name of the limited partnership.
(2) The admission of a new general partner.
(3) The withdrawal of a general partner.
(e) Effectiveness of certificate of amendment. — Upon the filing of the certificate of amendment in the department or upon the effective date specified in the certificate of amendment, whichever is later, the certificate of amendment shall become effective and the certificate of limited partnership shall be deemed to be amended accordingly.

Consequently, in order for an amendment to the certificate to be valid, it must be filed with the State. The trial court specifically found that “[the] amendment, enacted by a majority of the limited partners, [which] purported to remove Duca as a general partner and strip him of his power of attorney ... was never filed in Harrisburg with the state office.” Cappiello v. Duca, No. 1724 Civil Division, slip op. at 3 (C.C.P. Philadelphia, August 16, 1995). As such, a factual dispute exists as to whether the 1989 amendment validly removed Duca from the general partner position. Accordingly, Appellants have not clearly established a statutory violation. The trial court did not misapply the law with respect to immediate and irreparable harm as suggested by Appellants.

Next, Appellants argue that the trial court erred by concluding that they had not established that they did not have an adequate remedy at law. Appellants again focus on the alleged statutory violations, contending that in essence, the law presumes that infringement of statutory rights cannot adequately be compensated at law. Appellants have not established that Appellees have violated any statutory provisions, and as such, their argument must fail. In their complaint in equity, Appellants have, in fact, sought damages based on breach of contract, tortious interference with the partnership’s business relations and tortious interference with the limited partners’ interests. If, on the merits, Appellants are able to prove that the removal amendment was valid and that Duca and Vetare acted improperly in light of that amendment, a legal remedy would be available for any mishandling of the partnership.

Appellant also argues that the trial court committed an error of law by balancing the hardships in deciding whether to grant Appellants’ requested preliminary injunction. Instead, Appellants contend that the law requires that when an established right is being violated, the Court should not balance the hardships. In Kanefsky v. Dratch Construction Co., 376 Pa. 188, 101 A.2d 923 (1954), our Supreme Court noted that “[e]ven though greater injury may result from granting than refusing an injunction, a plaintiff is entitled thereto if the defendant’s act is tortious.” Consistent with this principal, this Court has noted that it would be inappropriate for an individual to complain that he will suffer by being prohibited from committing tortious acts against another. Weiss and Maen v. Greenberg, 101 Pa.Super. 24 (1930). This is simply not the case in this action, and as such, the general rule which requires the court to balance the potential harm to each side was appropriately employed by the trial court.

Consequently, believing that the trial court did not commit any errors of law, we shall proceed to review whether there are any apparently reasonable grounds in the record to support the common pleas court’s denial of the preliminary injunction.

Based upon our review of the record, we believe that the trial court did, in fact, properly refuse to issue a preliminary injunction. The court concluded that this partnership dispute has been ongoing since 1989. In that year, a majority of the limited partners attempted to amend the partnership agreement and thereafter, consistent with the amendment, strip Duca of his position as general partner. However, notwithstanding that the partnership agreement itself and 15 Pa.C.S. § 8512 require that any amendments be filed with the State, the attempted amendment was never filed. In April of the next year, Vetare, in the name of the partnership, filed suit against Duca seeking preliminary and permanent relief, including the return of the partnership books and records; enjoining Duca from withholding partnership information; enjoining Duca from continuing to serve as a general partner and from otherwise exercising control over the management of the partnership; enjoining Duca from receiving any payments from the partnership; and enjoining Duca from issuing partnership checks or otherwise withdrawing partnership funds. Addressing the partnership’s petition for preliminary injunction, the court of common pleas granted the injunction

to the extent that the checkbook of Lincoln Farm Associates, and the authority to draft checks in the ordinary course of business is transferred from Paul J. Duca to Gabriel Vetare, on behalf of Lincoln Farms Associates, and Paul J. Duca is hereby restrained from withdrawing any funds from Lincoln Farm Associates.

Vetare t/a Lincoln Farms Associates v. Duca, No. 3341 Civil Action — Equity (C.C.P. Philadelphia, June 22, 1990). After that preliminary award, the suit was not pursued and eventually, the suit was dismissed.

The record reveals that from the time of the 1989 attempt to remove Duca to the present, Duca has never recognized the amendment as valid or binding. In fact, while at times not actively filing certificates of amendment with the state, Duca maintained his opinion that the 1989 amendment was invalid, and as such, he maintained his position as general partner.

Appellants would have this Court believe that today there is an urgent need to grant the requested relief in order to prevent immediate and irreparable harm, particularly in light of the 1994 amendment filed by Duca and the February 1995 ratification of that amendment filed by Duca and by Vetare. Nevertheless, based upon our review of the record, we believe that the record contains adequately reasonable grounds to support the trial court’s conclusion that this case does not possess a compelling sense of immediacy or urgency to justify a preliminary injunction, especially in light of the “fact that the plaintiffs have essentially stood by until very recently as Duca maintained his general partnership status.” Cappiello v. Duca, No. 1724, Civil Division, slip op. at 3 (C.C.P. Philadelphia, August 16, 1995).

Accordingly, the order of the Philadelphia Court of Common Pleas is affirmed.

      . As an alternative theory, Appellants also argue that the trial court erred by refusing to recognize that repeated violations of statutory and contractual rights constitutes irreparable harm. Because the alleged violations are not clear as a result of the factual dispute with respect to the removal amendment, this argument too must fail.

        . We note that as an alternative argument on this point, Appellants contend that even if the general rule is applied, they sufficiently have carried their burden to show that the harm will be greater to them if the preliminary injunction is not granted. Appellants base their conclusion on the premise that when statutory provisions are being violated, it is presumed that greater injury results from refusing the injunction than from granting the injunction. As we have already recognized, however, Appellants have not established a clear right to relief on the basis of alleged violations of the UPA or the PRULPA.

      . Paragraph 23, subsection (b) of the Limited Partnership Agreement requires that if the partnership agreement is amended, "the Certificate of Limited Partnership shall also be amended if necessary to reflect such change.”

      . Further evidence to support the trial court’s conclusion that Appellants have not established a clear right to immediate relief can be found in Vetare's testimony with respect to a November 6, 1991, letter in which Duca’s counsel requested that Vetare sign a Certificate of Amendment which notes that Paul J. Duca and Gabriel A. Vetare are the General Partners of Lincoln Farms Associates. The testimony is as follows:
      Q: And, this is a letter from Mr. Duca’s counsel to you enclosing a Certificate of Amendment showing that Paul Duca is a general partner, is that right?
      A: That’s correct.
      Q: You didn't sign this either, did you?
      A: No, I didn't.
      Q: And you didn't sign it because you knew that Mr. Duca was not a general partner, is that correct?
      ‡ ‡ * # H*
      A: No, that is not correct.
      Q: Why did’t you sign it?
      A: I didn’t sign it because I was under the impression from what the court had adjudicated that Mr. Duca was still a general partner. I could not send something to the state saying that he wasn’t.
      (N.T. 5/10/95 at 60.) Moreover, at a partnership meeting held in December of 1991, Vetare informed the limited partners that a certificate of amendment needed to be filed when any material changes concerning the partnership had been made, i.e., a change in the partners. Vetare testified, however, that he never filed a certificate of amendment giving notice of Duca’s withdrawal. (N.T. 5/10/95 at 68.) The trial court inquired "So why didn't you call [the partners] together, and why don’t we make these very bright people sit down, and vote Duca is either in, or out?” Vetare responded: “Well it went on over the years.” (N.T. 5/10/95 at 75.) Additionally, the Court asked Vetare why he had done nothing about Duca's 1994 amendment which purported to declare the 1989 amendment null and void. Vetare noted that he believed that Duca was still a general partner and further stated that "I didn’t understand the vindication, if you will, of an individual who had been doing nothing but assisting me for two years prior to this [1994]. I could call [Duca] up, arid he would fax something to Larry [Speilvogel] as far as a contract.” (N.T. 5/10/95 at 89.)

      . Because we note that Appellants were required to prove each of the elements necessary to obtain a preliminary injunction, in other words, the elements are cumulative, our decision on this particular element is sufficient to sustain the trial court's action. Nevertheless, we also note that our review of the record also supports the trial court’s conclusion that (1) Appellants have failed to establish that greater injury will befall them if the injunction is not granted than will befall Appellees if the injunction is granted and (2) Appellants have failed to prove that if the injunction were to be granted, the parties would be restored to the status quo as it existed immediately prior to the alleged violations. In fact, because Duca has been participating as a general partner since he and Vetare were substituted for Kokey, Ltd. on December 22, 1980, it seems that Appellants, instead of seeking a return to the status quo, are attempting to litigate the issue of the validity of the 1989 amendment in an action for a preliminary injunction. We believe that this dispute is better resolved on the merits of the case.