author: KELLY, Judge.

text:
    631 A.2d 1053
    COMMONWEALTH of Pennsylvania v. James Walton SMITHTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed Sept. 29, 1993.

      Gary L. Dorsett, Asst. Public Defender, Reading, for appellant.

      Carolyn L. Darringer, Asst. Dist. Atty., Reading, for Com., appellee.
    Before McEWEN, KELLY and CERCONE, JJ.
   KELLY, Judge.

In this opinion we are called upon to determine whether a trial court’s consideration during sentencing of the testimony of alleged victims of crimes for which the defendant was acquitted constitutes reversible error. We hold that it does and vacate and remand for a new sentencing hearing.

The relevant facts and procedural history were set forth in the Commonwealth’s brief as follows:

Appellant was charged by information in three related cases which were consolidated for trial. On September 1, 1992, appellant was tried before a jury and found guilty of Bisorderly Conduct at Criminal Action No. 1520/92; and Resisting Arrest and Bisorderly Conduct at Criminal Action No. 1521/92. The jury acquitted appellant of Criminal Trespass and Criminal Mischief at No. 1710/92. The charges arose out of appellant’s conduct on April 20-21, 1992.
In No. 1710/92, appellant broke into the home of Bonna and Richard Hinkle by breaking through the Hinkle’s front glass door. The Hinkles did not know appellant before this incident. Richard Hinkle discovered appellant inside their home and fearing for his life and that of his family, attacked appellant with a shard of glass. Then, the Hinkles called the police. Appellant was found a short time later a few blocks away, bleeding from his wound. Police transported appellant to Community General Hospital in Reading, Pennsylvania for treatment.
Appellant’s conduct at the hospital lead to the charges in No. 1521/92. While there, appellant was loud and boisterous and pushed a hospital technician. Appellant shouted profanities at the technician as she tried to treat him. Appellant also hurled profanities at police in a public area of the hospital. Appellant, who was HIV positive, spit upon Officer Burr several times. After appellant was released, in the hospital parking lot, appellant refused to be transported to City Hall for arraignment. Four police officers had to wrestle appellant to the ground in order to place appellant in the police vehicle.
At City Hall, appellant again was disorderly shouting profanities and being unruly as police attempted to take him for arraignment. This incident lead to the charges at No. 1520/92 of Disorderly Conduct.
Following his conviction at Nos. 1520/92 and 1521/92 of Resisting Arrest and Disorderly Conduct, appellant filed post verdict motions for a new trial and/or arrest of judgment which were denied after a hearing.
Appellant was sentenced on September 10, 1992, to the following term of incarceration. Appellant received a sentence of not less than 11 and a half months nor more than 24 months incarceration for the crime of Resisting Arrest at No. 1521/92. (N.T., Sentencing Hearing, September 10, 1992, p. 55). Appellant received a sentence of not less than 6 months nor more than 12 months for the crime of Disorderly Conduct at No. 1521/92 to be served consecutive to the sentence for Resisting Arrest. Id. Appellant received a sentence of not less than 6 months nor more than 12 months incarceration for the crime of Disorderly Conduct at 1520/92 to be served consecutive to the above sentences. Id. at p. 55-56. Hence, appellant received an aggregate sentence of 23 and one half months to 4 years.
On September 24, 1992, appellant filed a motion to Modify or Reconsider Sentence. After a hearing on October 20, 1992, the trial court denied appellant’s motion.
It is from the judgment of sentence entered on September 10, 1992, that appellant seeks allowance of appeal.

Commonwealth’s Brief at 2-4.

On appeal, appellant contends that the trial court abused its discretion in sentencing him. After careful consideration of the relevant law and the record certified to us on appeal, we agree.

The imposition of sentence for offenses whether high or petty is among the severest tests for a trial court. Within the constraints of certain statutory máximums and minimum sentences enacted to ensure a measure of predictability and certainty, our legislature has vested ,the sentencing courts with great discretion to impose sentence in Pennsylvania. It has done so because of its resolve that the measure of condign punishment may not be foretold through an inflexible and inviolable sentencing code.

The discretion and deference afforded to the sentencing court by the legislature is not, however, unfettered. Appellate courts of this Commonwealth retain the power and the duty to vacate sentences imposed where an abuse of discretion has been committed. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The instant case presents just such a scenario.

In the instant case, a particularly unusual set of circumstances was presented to the court in sentencing. Appellant, who is a victim of the tragic and deadly disease AIDS, had been charged, but not convicted, of crimes related to the unlawful entry of the home of Donna and Richard Hinkle. During the trial of these charges, appellant did not dispute that he had entered the Hinkle’s home without their consent. On the contrary, his defense at trial was that he was justified in entering the Hinkle’s home, even without their consent, because he was reasonably in fear for his life at the time. The jury apparently credited appellant’s contention and acquitted him of all charges relating to his conduct while at the Hinkle’s home. Appellant was convicted of crimes listed on separate criminal informations which technically included only charges relating to appellant’s conduct during and after his arrest. It was for these crimes, and these crimes only, that appellant was to be sentenced.

At the sentencing hearing, however, the trial court decided to hear testimony of Donna and Richard Hinkle, explaining to the Hinkles that:

[THE COURT:] I’m glad you’re here for this reason. Quite innocently, you and your family got into a legal situation by doing nothing, just being home that night.
DONNA HINKLE: Yes, sir.
THE COURT: I have been disturbed that you and your husband would never fully understand just how the law works. It’s very easy to dismiss the law, but the law has been around a long time. And we deal not with specific cases. The law deals with the general law. And you were dealt the bad hand, I suppose, here. That’s the best you can say for it.
DONNA HINKLE: Very.
THE COURT: A very bad hand. Today there’s a great philosophy that nothing’s done without fault. When I first went to law school, we used to have a legal expression called damnum absque injuria. I think that’s the correct expression. You broke your ankle, it was your own dumb fault. You didn’t look to see how many people you could blame. Spent a lot of time trying to find somebody who’s responsible for your ankle, which you broke. You know what I mean? I think you have to be very philosophical about the situation that you’re in. I’m glad you’re here because I was very concerned about how you and your husband would take all this.
DONNA HINKLE: It’s very hard.
THE COURT: It’s not the type of thing you go home tonight and you have a final answer. You have to live with whatever happens here for some time. But the law did carry out to its conclusion here, and now we’ll have to deal with what’s left. But I will—
DONNA HINKLE: We will accept that.
% * # * *
THE COURT: The one thing you’re going to have to be careful about is this. I don’t think you should ever misconstrue what the jury did. The jury — don’t ever think that the jury didn’t believe you. My own personal reaction is that the jury believed you and your husband. It’s just that we came in to play with this other thing called justification. In other words, before your door was knocked on, there was another chapter that nobody heard about. Right or wrong, that’s what the jury believed. You understand that?
DONNA HINKLE: Um-hum.
THE COURT: I believe they believed you and your husband. It’s just that they also believed this justification theory and accepted it. But don’t get the idea that they didn’t necessarily believe you. I don’t think your credibility’s involved at all. Understood?
DONNA HINKLE: Yes.

N.T. September 10, 1992 at 9-11. Thus, Mrs. Hinkle testified as follows:

Sir, I would like to say, someone with HIV — the things that we have been through since April 21st has been very traumatic. All right. My husband was cut very badly during the struggle between Mr. Smithton and my husband when he came through my doors. There is no one trying to elaborate on this or anything else. We only want the truth to be said. My husband could have HIV because of Mr. Smithton. I could have HIV because of Mr. Smithton. And if that, in fact, is the case, that it does come up, who’s going to take care of our four-year-old daughter?
Okay. Mr. Smithton is thinking of Mr. Smithton. He is thinking of, oh, I want to come out, I want to do right, I want to get back on track, I want to do what I’m supposed to do. But what happens to the people that he has inflicted and — or might have infected and just has walked over and does not give thought to? That is what we are living with everyday now.
My husband and I have been together for a very long time, and I never thought I would ever have to worry about HIV. And I’ll tell you something. It is something that’s very scary. And to look at my daughter, and to think, and to have those feelings, yes, they do make you angry. And, I’m sorry, I do feel that Mr. Smithton is a menace to society, and I feel thát, no, he should not be left out. I feel that he should seek help and he should take and get help, but I do not feel that he should be left out to go and do the same thing to someone else that he has done to us, because it does tear your life upside-down.

N.T. September 10, 1992 at 7-8.

It is an abuse of discretion, as a denial of due process of law, for the sentencing court to consider irrelevant factors during sentencing. Thus, previous sentences have been vacated because, in imposing sentence, the sentencing court relied upon, e.g.: the defendant’s decision to stand trial rather than plead guilty, Commonwealth v. Bethea, 474 Pa. 571, 580, 379 A.2d 102, 106, 107 (1977); prior constitutionally infirm convictions, Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975); the defendant’s political ideology, Commonwealth v. Berrigan, 369 Pa.Super. 145, 535 A.2d 91 (1987) (en banc), allocatur denied, 521 Pa. 609, 557 A.2d 341 (1989), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 173 (1989); unverified hearsay, id.; and the defendant’s status as a naturalized citizen, Commonwealth v. Dugan, 335 Pa.Super. 82, 483 A.2d 965 (1984).

It is not enough that a trial court simply entertained impermissible evidence in its deliberations. A court is “ordinarily presumed to be capable of identifying and properly disregarding all but the most prejudicial and inflammatory evidence.” Commonwealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486, 491 (1990). Thus, a sentence must be vacated only where “it reasonably appears from the record that the trial court relied in whole or in part upon such [an impermissible] factor.” Commonwealth v. Bethea, supra, 379 A.2d at 107 (emphasis added).

Here, the Hinkle’s testimony was unquestionably irrelevant in appellant’s sentencing. The charges of which appellant was found guilty, though indirectly related by the loosely formed concatenation of events which transpired on the evening of appellant’s arrests, were contained in separate Criminal Informations and did not involve the Hinkles. In Commonwealth v. Graves, 275 Pa.Super. 557, 419 A.2d 41 (1980), a similar circumstance arose. There, the defendant had been charged with two separate counts of arson based on the Commonwealth’s allegation that he had deliberately set two separate but related fires in his apartment building. The second fire was much more serious than the first and resulted in the death of one of the tenants of the building, Edward “Geach” Kirkland. Ultimately, the defendant was convicted of setting the first fire but found not responsible for the second. Notwithstanding this fact, the sentencing court considered the death of Mr. Kirkland when sentencing the defendant. Curiously, the defendant did not challenge his sentence on appeal. Nonetheless, in dicta, this Court took care to point out the error:

It appears from the record of sentencing that the lower court took into consideration the fact that “Geach” Kirkland died during the second fire. However, since appellant was not convicted of setting the second fire, Kirkland’s death is an improper consideration in sentencing.

Id. at 563-64 n. 7, 419 A.2d at 44 n. 7 (citing Commonwealth v. Bethea, supra).

In the instant case, the testimony of the Hinkles is materially indistinguishable from the evidence of the death in Graves. In each case, the challenged evidence bore directly on crimes for which the defendant had been acquitted. It was, therefore, irrelevant testimony during sentencing. To rule otherwise would give precious little meaning to the acquittal. This, of course, we cannot do.

This is not to say that “victim impact” testimony is impermissible. We must take care to distinguish the present irrelevant and impermissible testimony of the Hinkles from the relevant and wholly permissible “victim impact” testimony. Where a defendant is convicted of a crime against a person, that person is considered by the law to have been a victim of the defendant’s crimes. The legislature has authorized the trial court to consider “the gravity of the offense as it relates to the impact on the life of the victim and on the community.” 42 Pa.C.S.A. § 9721. Thus, “victim impact” statements have been expressly upheld by this Court and others before. See, e.g., Payne v. Tennessee, — U.S.-, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Commonwealth v. Nieves, 399 Pa.Super. 277, 582 A.2d 341 (1990); Commonwealth v. Penrod, supra. The critical distinction in this case is that appellant was not convicted of a crime against the Hinkles. Thus, there is, strictly speaking, no legal authority for considering the Hinkles “victims” or for considering the impact of appellant’s conduct on their lives. This testimony was, therefore, irrelevant at appellant’s sentencing.

Moreover, review of the record reveals that the admission of this irrelevant testimony requires new sentencing herein. In pertinent part, the sentencing transcript reads:

I’ve read what records we do have involving you. I was interested in knowing more about you, because, on the one hand, I certainly sympathize with anybody that has a future outlook that you don’t have. But the one thing that I was waiting for and never heard was an expression of sincere and real concern for the living hell that you have put the Hinkles into, even while you complained about the hell you’re going through.

N.T. September 10, 1992 at 53 (emphasis added). Furthermore, during sentencing the court specifically advised appellant: “You may have conned the jury, but you’re not going to con me.” Id. at 49. The remorse the trial court awaited was not relevant. The jury’s findings were not at issue. Appellant was not found guilty of any crimes against the Hinkles. The Hinkle’s testimony was irrelevant and the court’s reliance upon it undeniable.

It is true that the trial court relied upon factors other than the Hinkles’ testimony in imposing sentence. It is also irrelevant for our purposes. Where, as here, a trial court relies upon an impermissible factor, in whole or in part, new sentencing must be affored. See Commonwealth v. Bethea, supra. Accordingly, we are constrained to vacate appellant’s sentence.

Judgment of sentence vacated and case remanded for resentencing.

      . 18 Pa.C.S.A. § 5503(a).

      . 18 Pa.C.S.A. § 5104.

      . 18 Pa.C.S.A. § 5503(a).

      . At trial, appellant claimed that the reason he broke into the Hinkle’s home was to seek protection from a group of individuals who were pursuing him. Appellant was acquitted of the charges of criminal trespass and criminal mischief.

      . We note that appellant has complied with both the procedural and substantive prerequisites for allowance of appeal to be granted pursuant to Pa.R.Crim.P. 2119(f). See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). A concise statement of reasons for allowance of appeal appears in appellant’s brief. Moreover, his claim that the sentencing court abused its discretion presents not only a substantial question for our review but also, as explained below, grounds to vacate the sentence. Accordingly, we grant allowance of appeal. See Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

      . We note that appellant has not raised any motion for recusal of the sentencing judge. See, e.g., Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983). The sentencing court’s impartiality is, therefore, not properly before us and accordingly, we express no opinion in this regard.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    631 A.2d 1058
    The ARTKRAFT STRAUSS SIGN CORPORATION v. William R. DIMELING and Richard Schreiber, t/a Classic Outdoor Advertising, Co. and Myron Levin, Appeal of Myron LEVIN.
    Superior Court of Pennsylvania.
    Argued July 1, 1993.
    Filed Oct. 5, 1993.

      Evan Levow, Cherry Hill, NJ, for appellant.

      Kara L. Svendsen, Philadelphia, for Dimeling, appellee.
    Before DEL SOLE, BECK and HESTER, JJ.
   HESTER, Judge:

Myron Levin appeals from the June 16, 1992 judgment entered by the Philadelphia Court of Common Pleas following the denial of post-trial motions. Sitting as the factfinder, the court ordered appellant to pay Classic Outdoor Advertising Co. (“Classic”) the sum of $80,000 and The Artkraft Strauss Sign Corporation (“Artkraft”) the sum of $7,500. Appellant argues that the trial court committed numerous errors. We affirm.

The record, viewed in the light most favorable to appellees as verdict winners, reveals the following. Appellant was an experienced commission salesman for Continental Outdoor Advertising Co. (“Continental”) in the outdoor sign advertising business and went into business for himself as a del credere broker, an independent agent who relies on the credit of his principals. He attempted to complete a project on his own which his former employer had elected not to pursue.

The availability of space for billboards at the location involved in this appeal, the intersection of Tenth Avenue and Forty-First Street, just outside the Lincoln Tunnel in Manhattan, New York, is limited. Kelly Operating Co. (“Kelly”) leased and operated a gasoline service station at this location. It entered into a sublease with Continental to permit erection of a sign at this location (hereinafter the “sublease”). Kelly represented that it had the authority of the purported owner, St. Raphael’s Church, to make this sublease and to permit the erection of an advertising sign.

The Claridge at Park Place, Inc, t/a Claridge Hotel & Casino and Continental previously had executed a ten-year commitment for advertising on a sign. The sign, to display “Tropicana,” the name of a casino located in Atlantic City, New Jersey, was to be erected at this location near the Lincoln Tunnel (hereinafter referred to as the “advertising contract”). Appellant combined the advertising contract and the Kelly sublease, and sold this arrangement to Classic, an investment partnership comprised of William Dimeling and Richard Schreiber (“Classic”). Classic’s investment provided the funding for this project which was a “turn-key” deal, i.e. an investment in the cash flow of a project without any future obligation to perform under the contract. Finally, appellant persuaded Classic to execute a contract directly with Artkraft, which had expertise in obtaining zoning permits and in constructing large signs and which would be able to supply the proper documentation for the zoning exception required to obtain a construction permit. This contract called for Artkraft to design, construct, and paint the sign.

Reviewing the situation, the following information is pertinent. First, there was the sublease of the gas station from Kelly, which ran from December 1, 1984, to November 30, 1994, for a total rental of $18,000, which was assigned to Classic. The sublease was made contingent upon the erection and maintenance of a sign. Next, Classic contracted to purchase or invest in the turn-key arrangement for $96,000, which it would pay directly to appellant, plus reimburse the $6,000 deposit and advance rent already paid to Kelly for the sublease. In return, Classic would become the owner of the sign and would receive $9,000 per month ($108,000 per year for ten years or $1,080,000) from Tropieana plus tax deductions for investment costs. Appellant, who was not a party to the construction contract, would profit from the sale of this arrangement to Classic for $102,000, which included New York sales tax, minus his cost of $10,000 which he promised he would pay to Artkraft. Continental was not a party either to the construction or to the investment contract.

Classic meanwhile entered into the construction contract with Artkraft in which Artkraft was to design, obtain, and assemble the parts to erect a sign. The amount of the contract included a deposit of $40,000, $40,000 due upon completion, and the balance due thirty days after completion. In addition, appellant agreed to pay $10,000 if the sign was completed by a date certain as required by Claridge. The construction involved cutting an aluminum pole and crossbeam and some wood to construct the frame and face of the sign. Artkraft commenced performance under the construction contract as a consequence of lead times and the need to perform by a date certain. The pole was inserted, and the wood cut for the frame.

However, Leroy Realty Co. (Leroy), the true lessor of the gas station, obtained an injunction preventing erection of the sign. This occurred after Artkraft severed a utility line while inserting the pole for the sign. Leroy asserted it never gave Kelly authority to execute a sublease or to authorize construction of a sign on the gas station property. It declined to reconsider its refusal or to permit any alternative. Essentially, Kelly had misrepresented the identity of its lessor. Without the permission or authority of the owner of the gas station, it was impossible for the sign to be constructed. Artkraft had expended $50,000 to obtain and assemble parts for the sign, even though it had not yet been erected.

Artkraft instituted this action against Classic, a Pennsylvania corporation which had its offices in Philadelphia, seeking damages of $110,000, representing both the costs it incurred and its lost profit. Artkraft also joined appellant as Classic’s agent in order to recover the $10,000 which he promised to pay. Thus, Classic lost its deposit with Artkraft, and Artkraft lost its profit in addition to the $50,000 already expended, less the $40,000 deposit from Classic which it retained. Classic also sought to recover its $40,000 deposit from appellant. The court resolved this triangular situation by ordering appellant to pay Classic $80,000 and Artkraft $7,500 on a theory of promissory estoppel. It reasoned that appellant, as an independent agent, was most responsible among innocent parties since he was the one who dealt directly with Kelly, who actually misrepresented its authority to sublease its premises. Artkraft and Classic relied on appellant’s representations that Kelly had proper authority to sublease. The court utilized the principles of legal impossibility and promissory estoppel to hold appellant liable. It also found it would not be feasible to re-use the materials, so the amount Artkraft expended on the project was not reduced by the value of these materials. This appeal followed.

Appellant first argues that the trial court improperly utilized the theory of legal impossibility rather than finding the contract void ab initio due to mutual mistake. Appellant claims that he was an innocent party, who was unaware of Kelly’s lack of authority to assign the lease or sublease. Accordingly, appellant maintains, as there is no place to erect a sign, there never was a “meeting of the minds,” since a material element necessary to form a valid contract was missing. He further claims that mutual mistake voids the contract and excuses any obligation he may have. Appellant seeks recision of the contract based upon mutual mistake. See Loyal Christian Benefit Ass’n v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985); Cobaugh v. Klick-Lewis, Inc., 385 Pa.Super. 587, 561 A.2d 1248 (1989). As a result, he asserts that each party should be left as is to bear its own loss. McNeely v. Philadelphia Natl. Bank, 314 Pa. 334, 172 A. 111 (1934).

We disagree. In this instance, neither appellee can be made whole through recision. The misrepresentation or fraud perpetrated by Kelly clearly is an unexpected event that totally frustrates the intent and purpose of the parties to these contracts. Nevertheless, there is reliance as well as uncompensated losses, and recision will not make the parties whole. Accordingly, recision of the contract is not appropriate. See Sanders v. Lawn Mutual Ins. Co., 194 Pa.Super. 491,168 A.2d 758 (1961) (recision as a result of mutual mistake is not applicable where parties are not rendered whole).

Further, it long has been clear that under certain circumstances, where two innocent parties suffer as the result of the fraud of a third, the one who has accredited him must bear the loss. In Rothman v. Fillette, 503 Pa. 259, 265, 469 A.2d 543, 545 (1983), our Supreme Court quoted Rykaczewski v. Kerry Home, Inc. 192 Pa.Super. 461, 161 A.2d 924, 926 (1960), for the proposition that “[w]here one of two innocent persons must suffer, the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetuate the wrong.” Moreover, this principal is not limited to actual agency situations. In Zitelli v. Dermatology Foundation, 409 Pa.Super. 219, 230, 597 A.2d 1173, 1178 (1991), we stated that “[e]stoppel applies when action, inaction or negligence by a party ... leads the other party ... to act, thereby precluding the first parties from asserting a legal defense to the action by the second party.” In the instant case, the trial court applied this principal and determined that appellant’s negligence induced reliance by the other parties making the loss possible, and therefore, appellant should bear the loss.

Appellant argues this was error in that this case authority is distinguishable on the basis that he is no more at fault than the other parties who also did not investigate Kelly’s authority. He claims that appellees equally were negligent. Thus, he maintains that equity should not be invoked where he is no more at fault than the other parties, and there was no active concealment, misrepresentation or other inequitable conduct on his part to justify invoking estoppel against him. Appellant relies upon Zitelli v. Dermatology Foundation, supra, where we stated:

The essential elements of estoppel are “an inducement by the party sought to be estopped to the party who asserts the estoppel to believe certain facts exist — and the party asserting the estoppel acts in reliance on that belief.” Sabino v. Junio, 441 Pa. 222, 225, 272 A.2d 508, 510 (1971) (emphasis in original).
Where the actions by the party asserting estoppel were such to promote the condition which now is asserted as an estoppel and the party to be bound by the estoppel did nothing to create the condition, estoppel cannot be alleged. Where there is no concealment, misrepresentation, or other inequitable conduct by the other party, a party may not properly claim that an estoppel arises in his favor from his own omission or mistake. Northwestern National Bank v. Commonwealth, 345 Pa. 192, 27 A.2d 20 (1942).

Id., 409 Pa.Super. at 247, 597 A.2d at 1187. Appellant insists that appellees had an equal obligation to verify Kelly’s authority to sublease.

We disagree. Appellant dealt directly with Kelly and was in the best position to verify its representations and to bear the loss. Appellant did more than overlook a nuance in the deal. He effectively vouched to others that Kelly possessed authority to sublease the property to the other parties. He structured and promoted the transaction. Yet, appellant did nothing to verify Kelly’s authority such as requesting a copy of the original lease or the signed consent of the lessor. This failure and his subsequent active representations to the other parties that Kelly did have the proper authority to assign the lease, in our view, constitutes sufficient grounds to invoke equitable relief and supports invoking both equitable and promissory estoppel. See Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978) (courts may enforce promises unsupported by consideration in order to avoid a manifest injustice). Appellant’s actions, more than any other party, made these losses possible.

We do not find that appellees’ failure to inquire independently regarding Kelly’s authority rises to such a level in this instance as to preclude resort to equitable and promissory estoppel. Appellant vouched for Kelly’s authority by promoting this deal. It is reasonable for appellees to look to him. See Doppler v. Doppler, 393 Pa.Super. 600, 574 A.2d 1101 (1990) (equitable principals protect the reasonable expectations of a party who relies on another’s conduct). Consequently, we reject appellant’s argument.

Judgment affirmed.

      . We note that the caption incorrectly indicates that the appeal is from an order when judgment subsequently was entered.


author: CAVANAUGH, Judge:

text:
    631 A.2d 1289
    Kimberly JONES v. George N. CONSTANTINO, M.D., and Gregory Vincent, M.D. Appeal of George N. CONSTANTINO, M.D.
    Superior Court of Pennsylvania.
    Argued May 27, 1993.
    Filed July 28, 1993.
    Reargument Denied Oct. 6, 1993.

      Francis J. McGovern, Plymouth Meeting, for appellant.
    Karen L. Saraco, Langhorne, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order which granted appellee Kimberly Jones’ request for judgment notwithstanding the verdict. The order also granted in the alternative, if the above verdict is set aside on appeal, that the appellee be awarded a new trial. Our review concludes that judgment notwithstanding the verdict was improperly granted. However, we affirm the lower court’s award of a new trial. Order affirmed in part, and reversed in part.

This case arises from a medical malpractice claim brought by the appellee, Kimberly Jones, for injuries she sustained in a gallbladder operation performed by appellant George Constantino, M.D., and co-defendant Gregory Vincent, M.D. In March, 1987, the appellee was under the care of Dr. Vincent, who diagnosed her as having chronic cholecytitis. Because the appellee experienced recurrent attacks of upper right quadrant and epigastric abdominal pain, nausea, and vomiting, she decided in consultation with Dr. Vincent to have an elective gallbladder operation on April 3, 1987 at St. Mary’s Hospital in Bucks County. Dr. Vincent was scheduled to perform the surgery, apparently with the appellant, Constantino, assisting him. However, immediately before the time scheduled for surgery, the appellee’s parents were informed by the appellant that Dr. Vincent was delayed because of an emergency case in another hospital. It was agreed that the appellant would begin without Dr. Vincent. Before the arrival of Constantino’s partner, an unplanned injury occurred.

The injury occurred to the appellee’s common hepatic duct. Testimony indicated that the ducts of the gallbladder and the liver transport bile, which is a toxin that helps break down food, to the large intestines. The left hepatic duct and the right hepatic duct emerge from two sides of the liver, and merge near the gallbladder beneath the liver to form the common hepatic duct. The common hepatic duct then merges with another bile duct from the gallbladder, the cystic duct, to form the common bile duct. During the operation, the common hepatic duct somehow became severed. Both sides agree that the common hepatic duct is relatively far away (over an inch and a half) from the operative site, and that severing the duct was neither necessitated nor anticipated as part of the operation.

As a result of the injury, the operation turned from an hour- and-a-half procedure to an over four-and-a-half hour procedure. Dr. Vincent, absent when the injury occurred, assisted the appellant in repairing the damage. To repair the injury, the appellant bifurcated the right and left hepatic ducts with a rubber t-tube stenting, attaching the two hepatic ducts into the duodenum (the first division of the small intestine). One limb of the t-tube subsequently became dislodged before appellee left the hospital on April 12, 1987. On May 19, 1987, the first tube was removed by the appellant; the second tube was removed on June 1, 1987 by Dr. Vincent. After the operation, Dr. Vincent and the appellant informed the appellee’s parents that an unexpected injury occurred during surgery.

Subsequent to the removal of these tubes, the appellee had numerous symptoms of someone whose bile has backed up because the hepatic ducts had narrowed or closed by stricture (scarring), which is not an unusual reaction when these small ducts are attached to a portion of the bowel. Namely, appellee started vomiting, having back pain, contracted a high fever, and suffered extreme itching. After numerous visits to her family physician and Dr. Vincent, she underwent an operation at Jefferson Hospital to correct this problem. The operation was unsuccessful and her condition continued to get worse. She was readmitted to Saint Mary’s on September 19, 1987, with a basic diagnosis of stricture of both hepatic ducts. It was considered necessary to transfer her to Hahnemann Hospital, where an operation was performed which inserted wires and catheters to dilate the strictures and drain her of bile. These tubes led to bags that were attached to the appellee’s legs. These tubes were not removed until six months after discharge. Because of the concern that these tubes could be easily dislodged, the appellee and her family were forced to undergo serious dislocations in their life style.

This suit was filed on March 8, 1989, alleging that the appellant and Dr. Vincent were negligent in the removal of the gallbladder. The trial was conducted by jury on February 19, 1992, and lasted five days. At the close of her case-in-chief, the appellee agreed to the entry of non-suit as to defendant Gregory Vincent, M.D. A motion by George Constantino, M.D., for non-suit was refused. At the conclusion of the trial, the jury granted a verdict in favor of the appellant. The lower court issued an order granting the appellee’s subsequent motion for judgment n.o.v. The court’s order alternatively granted the appellee a new trial. As the court’s rationales for its rulings help to shed light on our disposition, we recount them at some length.

The court opined that judgment not withstanding the verdict was appropriate because the appellant admitted that, in a gallbladder operation, there is no reason to cut or injure the common hepatic duct. The court further found that the appellant at least tacitly admitted to cutting the duct. He noted that his post-operative report, dictated minutes after surgery, indicated that the duct had been “inadvertently transected.” During cross-examination, appellant claimed that when he wrote “inadvertently transected,” he was not admitting he transected or cut the duct. Rather, he was merely noting that somehow the duct became separated during the operation. Upon further cross, however, the appellant acknowledged that he was the only person with a knife or scissors and he must have been the one to “cut” the common hepatic duct. The court added that the plaintiff’s expert consistent with this “admission” stated that there was no reason to “cut” the common hepatic duct.

The court ruled that if our Court decides to reverse his grant of judgment notwithstanding the verdict, a new trial would be held on three independent bases.

The court first of all felt that it erroneously permitted the appellant’s expert, a Dr. Hughes, to testify beyond the fair scope of his report. The doctor’s report claimed in a general way that the accident did not happen through any negligence, and did not supply a specific theory as to why the accident happened. At trial, however, Dr. Hughes testified that the accident was likely caused by “traction,” which is the normal manipulation of tissue, organs, and other objects during an operation. Dr. Hughes claimed also that the operative area was very delicate, and that an injury could happen to the common hepatic duct without cutting.

The court also ruled, secondly, that it erroneously refused to issue an “increased risk of harm” jury instruction to the jury. The court presently believes that the evidence could be construed to indicate that the defendant failed to take certain precautions during surgery, thereby increasing the appellee’s chance of injury. These precautions included: (1) failing to identify all vascular and ductal structures relating to the gall bladder prior to approaching the operative site with scissors; (2) failure to perform a careful anatomical dissection prior to the division of any structure of the biliary tree; and (3) failure to perform a cholangiogram prior to the division of any structure of the biliary tree.

The court finally ordered a new trial because it was in error to permit, over objection, Dr. Hughes to read a paper entitled “Early Management of Operative Injuries of the Extrahepatic Biliary Tract.” It noted that Pennsylvania law does not permit experts to read portions of learned treatises to juries on direct examination. See Majdic v. Cincinnati Mach. Co., 370 Pa.Super. 611, 537 A.2d 334 (1988) (en banc) and Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 546 A.2d 1226 (1988).

It is from this order granting judgment notwithstanding the verdict, and, in the alternative, a new trial, that this appeal arises.

Appellant raises four issues on appeal: (1) whether the appellee was entitled to judgment n.o.v. given the facts adduced at trial; (2) whether the grant of a new trial was warranted on the basis that appellant’s expert witness testified beyond the fair scope of his expert report subjecting the appellee to unfair surprise; (3) whether a new trial is warranted on the basis that appellant’s expert witness read a portion of a paper given at a medical conference to the jury for the truth of the matters contained therein; (4) whether the grant of a new trial was warranted based on the court’s refusal to charge on the increased risk of harm doctrine. We address these issues seriatim.

Appellant’s first argument is that the lower court committed an error of law in granting the appellee’s motion for judgment notwithstanding the verdict. The appellant claims that the lower court mischaracterized his testimony as an admission that he had “cut” the hepatic duct with surgical scissors during the operation. He asserts that the lower court ignored the thrust of his testimony and Dr. Hughes’ testimony that the probable cause of the accident was “traction,” the normal manipulation of tissue, vessels, and other objects during surgery.

The appellee counters that the entry of judgment, notwithstanding the verdict, was entirely appropriate. He cites to various parts of the transcript where appellant and Dr. Hughes appear to concede that appellant “cut” the common hepatic duct. He notes that the appellant in his post-operative report states he “inadvertently transected” the duct.

An appellate court reviews an order granting or denying judgment n.o.v. under the following standard:

The standard which we employ when reviewing the denial of a motion of directed verdict and a motion for judgment n.o.v. is the same. We will reverse the lower court when we find an abuse of discretion or an error of law that controlled the outcome of the case.

Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892 (1984), citing McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

There is ample law describing when it is appropriate for a trial court to grant a motion for judgment n.o.v. Such a motion will only be granted in a clear case where no two reasonable minds could fail to agree that the verdict is improper. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989), alloc. den., 527 Pa. 635, 592 A.2d 1302 (1990). “[T]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992), quoting Broxie v. Household Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). It is further well-settled that a judge should not reach his decision on how he would have voted if a member of the jury, but on the facts as they present themselves through the sieve of the jury’s deliberations. Moure, supra, 529 Pa. at 402, 604 A.2d at 1007; Brown v. Shirks Motor Express, 393 Pa. 367, 375, 143 A.2d 374, 379 (1958).

Our reading of the record before us indicates that this is not a clear ease and reasonable minds could disagree as to the import of the evidence. The court supports its analysis by referring to isolated portions of the Notes of Testimony, but ignores their totality. Although sometimes their use- of language was imprecise, both the appellant and his expert witness testified that the duct was not separated with a scissors or knife, but was most likely separated by normal traction or manipulation. The only vessel that Dr. Constantino testified as cutting was an artery, which was a necessary part of the operative procedure he was performing. He stated that he carefully visualized the clamping of that artery and “felt” it as he cut it. Dr. Constantino repeatedly testified that he could not have cut the duct with scissors because he only cut the artery and he got nowhere near the common hepatic duct before he noticed the injury. He explained that he used the word “transected” in his report not as a synonym for the word “cut,” but as a medical term of art to describe the nature of the injury as a separation across the vessel as opposed to a longitudinal or partial division. Notwithstanding, the court mischaracterizes his testimony as an admission he “cut” the duct with his surgical scissors during the operation.

The tenor of the trial court’s opinion is to give these two words the effect of an admission of legal responsibility. However, we believe that the evidence could be reasonably construed to admit of more than one meaning. See, e.g., Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493, 499 (1992) (subject statements were ambiguous and insufficient to compose judicial admissions). By far the better reading of the testimony adduced at trial is that the appellant did not admit to “cutting” the common hepatic duct, and that both he and Dr. Hughes believed the injury occurred because of “traction.” Considering the evidence in the light most favorable to the verdict winner, and giving him the benefit of all inferences, we believe that it is apparent that reasonable minds could disagree as to the accident’s cause. The court abused its discretion in granting a judgment notwithstanding the verdict.

The appellant’s second, third, and fourth arguments all concern the court’s alternative ruling that a new trial is mandated by trial errors. The standard of review of a trial court’s grant of a motion for a new trial is whether the court palpably and clearly abused its discretion or committed an error of law. Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 445, 625 A.2d 1181, 1183 (1993); Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 256, 523 A.2d 723, 725 (1987).

The appellant’s second argument is that the lower court clearly abused its discretion in ordering a new trial because Dr. Hughes’ trial testimony was not within the fair scope of his expert report. He claims that the Discovery Rules pertaining to the disclosure of an expert witness are meant to afford only enough discovery to prevent tactical surprise. See Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987). He believes that the expert report sufficiently apprised the appellee of Dr. Hughes’ planned testimony when it revealed that it was his opinion that it was “not negligence” when the duct “somehow divided.” The appellant asserts that Dr. Hughes merely fleshed out his expert report when he testified, supplying reasons why he thought the injury occurred without negligence. The appellant alternatively argues that the appellee suffered no prejudice from a lack of clarity, as the appellee learned a year before trial from Dr. Constantino’s deposition that “traction” was one possible explanation for the injury.

We believe that Dr. Hughes’ testimony was certainly not within the letter or spirit of Pa.R.Civ.P. 4003.5. Rule 4003.4 “favors the liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise.” Augustine v. Delgado, 332 Pa.Super. 194, 199, 481 A.2d 319, 321 (1984). Relevant to this appeal, Pa.R.Civ.P. 4003.5(c) states as follows:

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

The Explanatory Note to Rule 4003.5 states in pertinent part as follows:

To prevent incomplete or “fudging” of reports which would fail to reveal fully the facts and opinions of the expert or his grounds therefor, subdivision (c) provides that an expert’s direct testimony at trial may not be inconsistent with or go beyond the fair scope of his testimony as set forth in his deposition and answer to interrogatories, separate report or supplements thereto. However, he may testify to anything which he has never questioned in the discovery proceedings. This is a new provision not expressly found in the Federal Rule. It is implicit in the Federal Rule.

We have recently held as follows:

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

Dibel v. Vagley, 417 Pa.Super. 302, 315, 612 A.2d 493, 499 (1992), quoting Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, 290, 502 A.2d 210, 212-3 (1985). We have found that the above limitations on the scope of the expert’s testimony “serves to insure that an expert’s report will be sufficiently comprehensive and detailed to inform an opposing party of the expert’s testimony at trial.” Havasy v. Resnick, 415 Pa.Super. 480, 489, 609 A.2d 1326, 1331 (1992); accord Pargas, supra, 348 Pa.Super. at 290, 502 A.2d at 212. The tenor of our prior precedent requires prejudice to the opposing party before an opinion given outside the scope of an expert report is considered reversible error. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 603, 604 A.2d 270, 276 (1992); Delgado, supra, 332 Pa.Super. at 200-5, 481 A.2d at 322-4. Given the above pronouncements, it is clear that the expert’s testimony violated Rule 4003.5.

The appellant sent to the appellee two versions of the separate expert report, an initial version and an updated one. Both expert reports provide only conclusory statements and general, unsupported opinions in describing why the accident occurred without negligence. The initial expert report provides that “[djuring the procedure, the gallbladder was actually removed, the hepatic duct was somehow inadvertently divided.” (emphasis added) The report regarding the injury’s occurrence is elsewhere no more enhghtening. Dr. Hughes asserts later in the report simply:

Inadvertent damage to the ductal system happens in the best of hands to experienced surgeons sooner or later if they do enough gall bladder surgery, and it is not due to negligence.

In the updated expert report, Dr. Hughes was equally imprecise in providing a theory as to how the accident occurred without negligence. He opined simply that “[t]he injury suffered by this unfortunate patient was unavoidable and was promptly discovered by Dr. Constantino and corrected in an accepted manner.”

At trial, however, Dr. Hughes went beyond his simple assertions of non-negligence. He provided an in-depth theory of how the accident occurred without negligence. Dr. Hughes claimed that the accident occurred because of “traction,” an injury caused by the normal manipulation of extremely fragile ducts in the course of the surgery:

Dr. Hughes:
My opinion is that traction that is necessary— Attorney:
Again, I object. This is outside the scope of the reports that were submitted. There was nothing discussed about traction in the physician’s reports.
(SRK)
Attorney:
Doctor, you were talking about traction.
(KHW)

Dr. Hughes:

Once a surgeon enters the abdominal cavity, he makes the incision. He looks down and sees the organs that can be moved out of the way — which must be moved out of the way before he can get down to where the gall-bladder is to see what he is doing.
Now, in the process of doing that as the doctor mentioned earlier with you, you put in retractors. You put them on top of the colon. That is up here and the retractors are about this long and this wide.
The usual type that it used is curved like this. You put that in there and it instantly pulls that down.
Now, the liver is hanging over this area. So this has to be put up here and a retractor put in and has to be lifted up this way and that puts these tissues on stretch.
And it is my opinion these injuries at this level are not caused by cutting. You can’t hardly do it. I’ve done thousands of them and when a surgeon is up there cutting — he is down here cutting and the cystic artery is no where up there.
The only thing that makes sense to me in this case is the simple part of it. You heard the doctor say, you heard the testimony, when he saw the duct up there, he used the word cellophane — it looked like cellophane. It was so thin and fragile. We know their [sic] tiny from the operative cholangiogram. That three millimeters in diameter is down here, up here may be smaller.

So, it is my opinion that is how this injury happened. While the appellant may think that Rule 4003.5 allows his expert to make a bald assertion of non-negligence in his expert report and then proffer an in-depth theory explaining absence of culpability at trial, we simply disagree.

We specifically reject appellant’s misconception that the discovery rules relating to expert witnesses are meant to afford only enough discovery to prevent tactical surprise. As noted supra, Rule 4003.5 “favors the liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise.” To accept appellant’s position we would be sanctioning ambiguity and avoidance in separate reports. We do not think that a pre-trial separate report of an expert is in comport with Rule 4003.5 where it fails to apprise the opposing party of the basis for the expert’s ultimate conclusion. Cf. Havasy, supra, 415 Pa.Super. at 492, 609 A.2d at 1332.

A much closer question is whether the appellee was prejudiced or surprised by the appellant’s testimony. Appellant argues with some force that the appellant’s deposition testimony, taken a year before trial, informed his opponent that the “traction” defense could be used. He refers us to two brief snippets of testimony in the appellant’s deposition that the injury may have occurred because of the fragility of the ducts and the retraction done during the surgery to gain access to the gallbladder. The clearest snippet is as follows:

A. I think two ways it could have occurred. One is with a retractor. As we separate, pull up on the liver and pull down on the bowel, that puts pressure and the retractor itself could have injured the ducts, possibly just the tension on the duct could have torn it.

Appellant states that the appellant’s testimony in this regard was sufficient to inform the appellee that “traction” might be used as a defense at trial. He cites for support Boyce v. St. Paul Property and Liability, 421 Pa.Super. 582, 618 A.2d 962 (1992).

We do not think the brief, oblique references in the appellant’s deposition testimony sufficiently put the appellee on notice that appellant’s expert would testify that “traction” was the cause of the injury. The appellant did not refer to the “traction” theory by name. His deposition testimony on the subject was brief. The testimony did not inform the appellee what was the basis for the expert’s opinion. We believe the better argument is that the appellee was prejudiced. We note that in Boyce, supra, the court found no surprise existed when the expert who made the report testified in two depositions pertaining to matter that was arguably beyond the scope of the expert report. Id. at 593, 618 A.2d at 968. We do not believe that the lower court palpably and clearly abused its discretion in ordering a new trial on this basis.

The appellant’s third argument is that the lower court abused its discretion in granting a. new trial on the basis that it erroneously allowed Dr. Hughes to read to the jury portions of a “learned treatise” during direct examination. Appellant claims that contrary to the appellee’s assertion, neither the medical article or the “test results” reported in the article were admitted into evidence. The appellant, in fact, asserts that the contents of the article were not read to the jury. Rather, Dr. Hughes merely “observed” that the location of the nineteen (19) injuries reported in the article supported his opinion. The appellant further claims that this testimony was admissible because medical experts are allowed to express opinions based in part on medical reports, which though not in evidence, are customarily relied on by experts in the practice of the profession. He relies principally in this regard on Primavera v. Celotex Corp., 415 Pa.Super. 41, 608 A.2d 515 (1992). The appellant attempts to distinguish in a footnote on its facts Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334, 340 (1988) (en banc), which the lower court found dispositive.

We agree with the lower court that Majdic, supra, correctly summarizes the law relating to learned treatises in Pennsylvania and is dispositive. In Majdic, we re-examined en banc the rule which prohibits hearsay statements appearing in learned treatises from being admitted into evidence and used as substantive proof of the information which they discuss. The plaintiff in that case attempted to show through the expert testimony of a mechanical engineer that a power press manufactured by the defendant was defective because of the absence of safety guards. During the expert’s testimony, the plaintiff sought to introduce into evidence various articles in trade publications and learned treatises upon which the expert relied in forming an opinion. The plaintiff also requested to read excerpts frond the articles aloud at trial. We found that the trial court’s decision to refuse plaintiffs requests was in accordance with the law. We summarized the law on learned treatises as follows:

The law in this Commonwealth is well-settled that an expert witness may be cross-examined on the contents of a publication upon which he or she has relied in forming an opinion, and also with respect to any other publication which the expert acknowledged to be a standard work in the field. See: Cummings v. Borough of Nazareth, 430 Pa. 255, 242 A.2d 460 (1968); Walheim v. Kirkpatrick, 305 Pa.Super. 590, 451 A.2d 1033 (1982); and, Brannan v. Lankenau Hospital, [254 Pa.Super.] 352, [365,] 385 A.2d 1376 (1978), rev’d. on other grounds, 490 Pa. 588, 417 A.2d 196 (1980). In such cases, the publication or literature is not admitted for the truth of the matter asserted, but only to challenge the credibility of the witness’ opinion and the weight to be accorded thereto. Brannan v. Lankenau Hospital, supra, 885 A.2d at 1383. Learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury. See: McCormick on Evidence § 321, at 899 (3d ed. 1984).

Id. 370 Pa.Super. at 621, 537 A.2d at 339; accord Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 218, 546 A.2d 1226, 1233 (1988), appeal den., 522 Pa. 584, 559 A.2d 527 (1989); Packel & Poulin, Pennsylvania Evidence, § 803.18 (1987). We went on to find that it was entirely appropriate for the trial court to refuse to admit the treatises. Whether offered substantively or whether read to the jury, the materials were being offered for the truth of the matter asserted, and thus were hearsay. We specifically rejected the argument that reading the documents to the jury did not create a hearsay problem. We declared: “[i]t is the purpose for which the information is offered, not the manner in which it [sic] is introduced, which makes it objectionable.” Id. 370 Pa.Super. at 622, 537 A.2d at 340. We went on to decline to accept the plaintiffs invitation to adopt a more liberal rule towards learned treatises when relied upon by an expert.

We disagree with appellant’s contention that the subject matter related to this testimony was of the type envisioned in Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971) and Primavera, supra. “The kind of data contemplated by this rule is often, as it is in this case, the kind of data used daily by experts in making judgments, reaching diagnoses, and taking action.” Primavera, supra, 415 U.S. at 49, 608 A.2d at 519-520. There has been no showing that the medical article under consideration is the type that experts use commonly as a basis for their decisions. To the contrary, the present article seems to be an unpublished paper given at a medical conference. We do not believe this type of article fits under the Thomas exception. The lower court did not palpably and clearly abuse its discretion in ordering a new trial on this basis.

The appellant’s fourth and final argument is that the trial court erred in granting a new trial based on the court’s reconsideration of its refusal to render the appellee’s requested charge regarding “increased risk of harm.” The appellant believes that the court’s instruction adequately informed the jury that they were to find for the appellee if there “was negligence and that [appellant’s] negligent conduct was a substantial factor in bringing about the harm.” Thus, the appellant argues no prejudice exists because this charge conveys the tenor of the “increased risk of harm” instruction. In the alternative, the appellant claims that since the appellee’s expert did not testify within a reasonable degree of medical certainty that appellant’s conduct “increased the risk of harm,” such an instruction was not warranted.

As we have already found sufficient reasons why a new trial is mandated, we need not address appellant’s final argument. The lower court on remand, however, may wish to reconsider whether the increased risk of harm doctrine applies to this situation. See Hamil v. Bashline, 481 Pa. 256, 269, 392 A.2d 1280, 1286 (1978) (“Whereas typically a plaintiff alleges [in a tort action] that a defendant’s act or omission set in motion a force which resulted in harm, the theory presented in [an increased risk of harm case] is that the defendant’s act or omission failed in a duty to protect against harm from another source”), (emphasis added).

Having found that the trial court did not palpably and clearly abuse its discretion in ordering a new trial because the expert testimony exceeded the scope of the separate report and because a hearsay matter from a medical article was referred to on direct examination, we affirm the order’s award of a new trial.

Order affirmed in part, reversed in part. Case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . Appellee was 17 years old at the time of surgery.

      . Testimony differs as to whether the appellant offered to start "prepping" the appellee for surgery or whether he offered to actually start the operation without his partner. As resolution of this disparity in the testimony does not impact on any issue before us, we simply note the differing positions in passing.

      . The appellant and his expert used the word "cut” as a synonym for the word “tear” or the word “separate."


author: OLSZEWSKI, Judge:

text:
    631 A.2d 1298
    In re Catherine P. SHAHAN, Adult. Appeal of Ronald J. TOMCHIK.
    Superior Court of Pennsylvania.
    Argued June 22, 1993.
    Filed Aug. 13, 1993.
    Reargument Denied Oct. 22, 1993.

      Timothy G. Wojton, Pittsburgh, for appellant.
    James F. Nowalk, Pittsburgh, for appellee.
    Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the Honorable Robert A. Kelly’s order granting a $37,614.40 judgment in favor of Catherine P. Shahan [“Catherine”]. Catherine petitioned the Orphan’s Court Division of the Allegheny Court of Common Pleas for an accounting and surcharge against Ronald J. Tomchik [“Tomchik”], alleging that he misallocated certain insurance proceeds while acting as administrator of her deceased son’s [“John”] estate. We affirm.

John died intestate in Pennsylvania after he overdosed on drugs in late 1987. As John’s sole intestate heir, Catherine was appointed to administer his estate. At the time, Catherine was approximately eighty years of age and living in South Carolina, which made administering John’s estate understandably impractical. She therefore granted a durable power of attorney in favor of Tomchik, her daughter’s boyfriend (now husband), who lived in Pennsylvania. The power of attorney provided in pertinent part:

I, [Catherine], appoint [Tomchik] my true and lawful attorney-in-fact, for myself and in my name, place and stand for my use and benefit, to sign all documents necessary to handle the estate of John C. Shahan, and to receive and accept on my behalf monies or proceeds and pay bills for the described estate.

The power of attorney was signed in October of 1987, and according to Tomchik, Catherine also signed a release which entitled him to collect insurance proceeds in the amount of $24,000.00 for a life insurance policy owned by John which named Catherine as beneficiary. In March of 1988, Tomchik registered with the court of common pleas as administrator of John’s estate. R.R. at 247A.

Tomchik thereafter collected insurance proceeds in the approximate amount of $48,000.00 ($24,000.00 pursuant to the policy mentioned above and $24,000.00 from another policy which was realized sometime after March 1988). He deposited these disbursements into his personal accounts, and his accounting indicates that he utilized some of the funds for satisfaction of the estate expenses, such as the funeral and a post-funeral luncheon. He used a substantial portion of the funds to satisfy John’s outstanding illegal drug and gambling debts, and applied another portion to his and his wife’s personal expenses. He was unable to account for approximately $17,000.00.

This dispute centers around whether Tomchik properly kept the portion of the proceeds not necessary to satisfy estate debts and whether he properly applied the insurance proceeds to the outstanding illegal drug and gambling debts. Catherine contends that the power of attorney gave Tomchik the right to act as administrator of the estate, and as such he had a fiduciary duty to apply estate funds in a reasonable and prudent manner. She claims that since insurance proceeds are not part of estate proceeds, Tomchik violated his fiduciary duty by applying them to John’s illegal debts. Tomchik contends, however, that while the insurance proceeds are not part of the estate, Catherine intended, by executing the power of attorney, that the insurance proceeds would apply to satisfy all John’s debts. Tomchik also contends that the portion of the insurance proceeds in excess of John’s debts was meant to be a gift. Tomchik relies on his and several family members’ testimony that Catherine indicated that she did not want to benefit from any proceeds from John’s estate.

After a hearing on exceptions to Tomchik’s accounting, the trial court found that Tomchik owed a fiduciary duty to Catherine and the estate, that the insurance proceeds were not part of John’s estate, and that Tomchik did not act reasonably and prudently in his handling of the insurance proceeds. The trial court thus surcharged Tomchik for the value of his improper expenditures, ordering him to remit the funds to Catherine with interest calculated at six percent per annum. Tomchik raises a plethora of arguments on appeal from the order; we will address each below.

I. Jurisdiction

Tomchik claims that the Orphan’s Court Division of the Allegheny County Court of Common Pleas did not have jurisdiction. He contends that he is not a “fiduciary” under the Pennsylvania Estate and Fiduciary Code. He also argues that Catherine’s claim is entirely distinct from his position as fiduciary to John’s estate since it seeks remuneration of non-estate funds — insurance proceeds — incident to the power of attorney. This, he contends, divests the Orphan’s Court Division of jurisdiction. We disagree.

Jurisdiction in the Orphan’s Court Division is exclusively a matter of statute. Estate of Soupcoff, 329 Pa.Super. 130, 477 A.2d 1388 (1984). 20 Pa.C.S.A. § 711 requires the Orphan’s Court Division to exercise mandatory jurisdiction in two pertinent situations:

(12) Fiduciaries. The appointment, control, settlement of the accounts of, removal and discharge of, and allowance to and allocation of compensation among, all fiduciaries of estates and trusts, jurisdiction of which is exercised through the orphan’s court division ...
(17) Title to personal property. The adjudication of the title to personal property in the possession of the personal representative, or registered in the name of the decedent or his nominee, or alleged by the personal representative to have been in the possession of the decedent at the time of death.

Id., §§ 711(12), (17).

The statutory definition of “fiduciary” includes the personal representative, ie., the administrator, of a decedent’s estate. 20 Pa.C.S.A. § 102. Since Tomchik registered with the court of common pleas as the administrator of John’s estate, any action contesting his accounting of funds incident to settling the estate comes squarely within the jurisdiction of the Orphan’s Court. We find, as did the trial court, “particularly disingenuous” the argument that John’s alleged liability to Catherine as her attorney-in-fact divests the Orphan’s Court of jurisdiction. The power of attorney clearly limits Tomchik’s role as attorney-in-fact to acts necessary to resolve John’s estate matters. Thus, any funds Tomchik received as attorney-in-fact were limited to those he could procure as John’s personal representative. Moreover, our Supreme Court has held that even though life insurance proceeds are not estate assets, the life insurance policies producing the proceeds are personal property of the decedent in his possession at death, vesting the Orphan’s Court with jurisdiction to order the appropriate delivery of the proceeds. Henderson’s Estate, 895 Pa. 215, 149 A.2d 892 (1959).

For these reasons, we find Estate of Cantor, 424 Pa.Super. 24, 621 A.2d 1021 (1998), relied on by Tomchik at oral argument, inapposite. In Cantor, we held that the Orphan’s Court division of the court of common pleas did not have jurisdiction over a claim against an attorney-in-fact. Id. at 28, 621 A.2d at 1028. In that case, however, the principal granted the power-of-attorney for the purpose of controlling her financial affairs and sued the attorney-in-fact for alleged conversion of entrusted assets. Thus, under the jurisdictional statute, the Orphan’s Court could not exercise non-mandatory jurisdiction over the action absent a factual averment that the principal was either deceased, disabled, or incapacitated. Id., 20 Pa.C.S.A. § 712(4).

Here, the Orphan’s Court did not exercise non-mandatory jurisdiction over Catherine’s claim. It found that jurisdiction was mandatory because, as we discuss above, Tomchik was a “fiduciary” under 20 Pa.C.S.A. § 711(12). Tomchik did not, as did the attorney-in-fact in Cantor, have control over Catherine’s financial affairs. His acts were limited to those necessary as John’s personal representative, and he was sued for improperly acting in that capacity. Moreover, even if Tomchik’s role as attorney-in-fact is somehow distinct from his role as John’s personal representative, the Orphan’s Court may exercise non-mandatory jurisdiction over “[t]he disposition of any case where there are substantial questions concerning matters enumerated in section 711 ...” 20 Pa.C.S.A. § 712(3). Tomchik’s role as attorney-in-fact is so intertwined with his role as fiduciary to John’s estate (they are, in fact, identical) that his acts as fiduciary raise “substantial questions” necessary to resolve this lawsuit, rendering jurisdiction proper in any event. Tomchik’s first claim fails.

II. Burdens of Proof and Sufficiency of Evidence

Tomchik next presents a series of arguments which amount to contentions that: (1) as attorney-in-fact he owed no fiduciary duty to Catherine; (2) the trial court erred in finding that he did not act as a reasonable and prudent person would have with respect to the insurance proceeds; and (3) the trial court erred by failing to find that Catherine made a gift of all insurance proceeds to him. We disagree.

Tomchik is correct in asserting that as an attorney in fact, he is Catherine’s agent. See generally, Estate of Livingston, 531 Pa. 308, 612 A.2d 976 (1992). As an agent, however, he is still a fiduciary with respect to his principal, Catherine:

Under Pennsylvania law, the duty of an agent to his principal is one of loyalty in all matters affecting the subject of his agency, and the “agent must act with the utmost good faith in the furtherance and advancements of the interests of his principal.” This duty is the same as that of fiduciary which has been described as the duty to act for the benefit of another as to matters within the scope of the relation.

Garbish v. Malvern Federal Savings & Loan Assn., 358 Pa.Super. 282, 296, 517 A.2d 547, 553-554 (1986), alloc. denied, 516 Pa. 641, 533 A.2d 712 (1987) (citations omitted); see Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987). Thus, unless Tomchik holds himself out as an expert in estate administration (which he clearly does not), he is expected to exercise the care, skill, and judgment of an ordinarily prudent person under the circumstances. Garbish, supra, at 298, 517 A.2d at 555; Estate of Lychos, 323 Pa.Super. 74, 470 A.2d 136 (1983). The trial court viewed Tomchik’s conduct with respect to Catherine by this standard; it is therefore irrelevant why the trial court concluded the fiduciary duty was owed. Tomchik owed Catherine a fiduciary duty — in other words, a duty to administer John’s estate as a reasonably prudent person would — whether he is being sued in his capacity as John’s estate’s personal representative or attorney-in-fact.

The trial court found that Tomchik misrepresented the value of the insurance policies to Catherine. Catherine testified that Tomchik told her that he received $17,000.00 dollars in insurance proceeds on her behalf, of which he forwarded $10,000.00 directly to her. Thereafter, he deposited over $30,000.00 in insurance proceeds, which were payable to Catherine outside of the estate, into his own bank accounts. Then, after threats from hoodlums, Tomchik reimbursed drug pushers and gambling creditors for John’s alleged debts. The trial court therefore concluded that Tomchik, by misrepresenting the value of the proceeds, paying illegal debts, and commingling the proceeds for personal use, violated his fiduciary duty.

“In reviewing the decision of the orphan’s court, our task is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.” Lychos, supra, at 82, 470 A.2d at 140. After reviewing the record in this case, we find that the trial court’s findings are supported by Catherine’s testimony. We are not in a position, as Tomchik would ask, to reevaluate the witnesses’ credibility. Moreover, since a fiduciary is under a duty to act solely on behalf of his principal, Garbish, supra, we agree with the trial court that Tomchik was under a duty, at a minimum, to inform Catherine of the true value of the insurance benefits. Therefore, the trial court did not err in surcharging Tomchik for the loss occasioned by his breach of fiduciary duty.

Likewise, we are constrained to hold against Tomchik regarding his contention that Catherine meant to give the proceeds to him as a gift. In order to establish a gift, the donor must intend to make an immediate gift and must actually or constructively make delivery of the gift to the donee so as to divest herself of dominion and control over the subject matter. Lessner v. Rubinson, 382 Pa.Super. 306, 555 A.2d 193 (1989), aff'd, 527 Pa. 393, 592 A.2d 678 (1991). Here, the trial judge found Catherine’s testimony that Tomchik misrepresented the value of the insurance policies credible. He therefore concluded that since Catherine had no knowledge of the value of the policies, she could not have intended to divest herself of them. We agree with this conclusion. Mere presentation of contradictory testimony is no ground to reverse the court’s factual finding.

III. Evidentiary Findings

Finally, Tomchik claims that the trial court erred in admitting various testimony into evidence. We note at the outset that evidentiary rulings are left to the sound discretion of the trial court and we may not reverse absent an abuse of discretion. Yost v. Union Railroad Co., 380 Pa.Super. 236, 551 A.2d 317 (1988); Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), alloc. denied, 520 Pa. 594, 552 A.2d 249 (1988). Furthermore, it is not enough for Tomchik to prove that the evidence was improperly admitted. He must also demonstrate that he was prejudiced by the erroneous admission. Hamill-Quinlan, Inc. v. Fisher, 404 Pa.Super. 482, 591 A.2d 309 (1991).

Tomchik contends that the trial court admitted improper hearsay testimony on two occasions. First, Tomchik claims that it was hearsay for Catherine to testify regarding her daughter’s statement that “[tjhere was more money coming and [Tomchik] stole it.” Hearsay is an out-of-court statement offered to prove the truth of the matter it asserts. Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987). The record indicates, and Tomchik concedes, that this statement was elicited to explain Catherine’s initial suspicion that Tomchik was receiving insurance benefits on her behalf. Since the statement was not admitted for its truth, but rather its effect on the listener, the statement was not hearsay.

Next, Tomchik claims that certain letters written by Catherine’s former counsel were admitted for their truth and are thus hearsay. Catherine argued at trial that the documents were admitted to prove that she was in contact with her counsel. We note, first, that Tomchik has not reproduced the letters, and the oral testimony in the record does not clearly indicate their content. In any event, Catherine’s former counsel testified at trial regarding the letters. Since Tomchik’s counsel had a full and fair opportunity to cross-examine the author of the letters, even if the letters were hearsay, their admission was harmless. Printed Terry Finishing Co. v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977).

Next, Tomchik argues that he should have been able to cross-examine one of Catherine’s witnesses, Carl William Shahan, regarding John’s gambling habits. The trial court denied Tomchik the opportunity to pursue this line of questioning because it exceeded the scope of Carl’s direct testimony. The trial court has discretion to limit the scope and manner of cross examination. See Commonwealth v. Tyler, 402 Pa.Super. 429, 587 A.2d 326 (1991). Here, Carl was called to testify regarding his investigation into whether Tomchik received insurance proceeds on Catherine’s behalf. He did not testify regarding the personal habits of John Shahan. Catherine’s objections to questions in this regard were properly sustained.

Tomchik claims that counsel should not have been entitled to use Catherine’s deposition testimony to impeach her daughter. Our review of the record reveals that the deposition testimony was merely cumulative of Catherine’s earlier testimony, and that the trial court allowed counsel to use the deposition rather than having the court reporter search for the transcription. We cannot hold that this was an abuse of the trial court’s discretion in overseeing the manner of cross-examination.

Finally, Tomchik claims that the trial court should not have permitted Catherine to inquire into matters regarding Tomchik’s administration of John’s estate. He claims that such questions were irrelevant. A matter is relevant if it tends to make a fact at issue more or less probable. Hamill Quinlan, supra. Here, the only purpose of the power of attorney was to allow Tomchik to resolve John’s estate. While we understand Tomchik’s position that the power of attorney might have contemplated that he was entitled to satisfy estate debts with non-estate assets, Tomchik’s handling of the estate was entirely relevant to determine whether he breached his fiduciary duty to Catherine as attorney-in-fact. The questions were therefore proper.

Order affirmed.

      . For some reason, however, Tomchik has not provided a copy of this document in the reproduced record, nor is it part of the original record provided to us. Even if we assume that what Tomchik asserts is true, he cannot prevail on this appeal.

      . We therefore need not resolve the derivative claim that the Orphan’s Court’s exercise of jurisdiction deprived Tomchik of a trial by jury, since where jurisdiction in the Orphan’s Court division is proper, he is not entitled to one. See 20 Pa.C.S.A. § 777(c) (Orphan's Court judge may impanel a jury to decide facts, but jury’s findings are advisory only).

      . It is well-established that we may affirm the trial court on any ground, so long as it reaches the correct result. Elder v. Nationwide Ins. Co., 410 Pa.Super. 290, 599 A.2d 996 (1991).

      . We note that despite his tireless efforts to distinguish between his relationship to the estate and his relationship to Catherine as attorney-in-fact, Tomchik seems to concede this point.

      . The parties do not make an effort to explain why this testimony was even relevant, and our review of the record does not offer enlightenment.

      . Tomchik also claims that he should have been entitled to ask Catherine's former attorney why their attorney/client relationship ended. Without addressing Tomchik's contention that by admitting the letters written by the attorney, Catherine waived her attorney/client privilege, we affirm the trial court's decision to disallow the question. Catherine's former attorney was called solely to establish Catherine’s awareness of the investigation and circumstances surrounding the inception of this case. Any inquiry into confidential matters, waived or not, clearly exceeded the scope of direct examination and were therefore properly excluded.