text:
    630 A.2d 55
    UNISYS FINANCE CORPORATION, A Successor to Burroughs Finance Corporation, Appellant, v. U S VISION, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued April 27, 1993.
    Filed Aug. 24, 1993.

      Robert Lenahan, Blue Bell, for appellant.
    Jonathan M. Petrakis, Valley Forge, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal is from an order granting judgment on the pleadings in favor of defendant-appellee on the basis of the running of the statute of limitations. Appellants argue that the lower court erred in applying Pennsylvania law to the statute of limitations issue because Pennsylvania is merely the disinterested forum state and it has no interest in applying its procedural or substantive law to the resolution of this contract action. We find this argument without merit and affirm.

Appellant-Unisys Finance Corporation (“Unisys”) sued appellee-U.S. Vision, Inc. (“U.S. Vision”) on an equipment lease agreement in the Court of Common Pleas of Montgomery County. The complaint alleged that Unisys was a Michigan corporation and the successor in interest to the original contracting party Burroughs Finance Corporation. It alleged that U.S. Vision was a Pennsylvania corporation with its principal place of business in New Jersey. The complaint went on to allege the non-payment by U.S. Vision of its obligation under the lease, i.e. $1,836.00 per month for sixty (60) months, for office equipment. The lease contained a choice of law provision that, “this lease shall in all respects be governed by and construed in accordance with the laws of the State of Michigan.” The default under the lease was alleged as follows:

8. Vision defaulted on its obligation to tender monthly lease payments and despite demands by UFC, has consistently failed and refused to pay UFC any of the sums due and owing under the Lease.
9. On oí* about April 14,1987, UFC notified Vision by letter that it was terminating the Lease and all of Vision’s rights to the Equipment, demanded return of the Equipment, declared that the then sum of Ninety Three Thousand Two Hundred Seventy One Dollars Sixty Seven Cents ($93,271.67) including interest to that time due to be immediately due and payable and reserved any of its other rights and remedies against Vision under the terms of the Lease or otherwise available.
10. Pursuant to a letter dated March 9,1988, Vision tendered to UFC a Voluntary Surrender Agreement and UFC repossessed the Equipment.
11. On or about May 27, 1988, UFC confirmed that it had repossessed the Equipment and notified Vision that it intended to arrange a private sale of the Equipment.
12. UFC was able to re-market a portion of the Equipment and accordingly has credited Vision’s account in the amount of $6,800.00.
13. Pursuant to the term of the parties agreement interest has continued to accrue on the unpaid balance from 4/1/87 at 12% per year.

Complaint, filed August 1, 1991.

U.S. Vision moved for judgment on the pleadings. It sought judgment in its favor on the basis that the applicable statute of limitations, 42 Pa.C.S. § 5525, had run prior to commencement of the suit. It argued that since the default was alleged to have occurred at the latest on April 14, 1987 suit should have been commenced within the four-year period specified in § 5525(7) and (8). The lower court, the Honorable Samuel W. Salus, agreed with U.S. Vision and granted the order in its favor for judgment on the pleadings.

On appeal, Unisys makes a multi-tiered argument that Pennsylvania law should not have been applied in determination of the statute of limitations questions. The first portion of its argument is that there was a false conflict between the four-year Pennsylvania statute of limitations and the six-year Michigan statute of limitations. It contends that Pennsylvania was a mere disinterested forum and that, under its choice of law rule, it should have applied the law of the state whose interests would be harmed if its law was not applied. Unisys maintains that Michigan had a strong interest in having its laws applied because Unisys is incorporated there, it has its principal place of business there, the lease was entered into there, and the lease provides that its laws would apply.

This argument is without merit because it is based upon the factually unsubstantiated premise that Pennsylvania’s only interest in the litigation was as the forum state. This is not so because one of the parties is a Pennsylvania corporation. Unisys alleged in its complaint and U.S. Vision admitted in its answer that U.S. Vision is a corporation incorporated in Pennsylvania. Therefore, the role of Pennsylvania in the instant litigation goes beyond that of the forum state to a state which has an interest in the protection of one of the parties, i.e., a corporate entity organized and existing pursuant to its laws. For this reason no false conflict exists in this case. The lower court did not err in not addressing this contention since it is without factual support in the record.

Unisys next argues that because the lease contained a choice of law provision for Michigan law that its six-year statute should have been applied.

Pennsylvania statutory law provides that for claims accruing outside of Pennsylvania, the period of limitations shall be prescribed by the limitations period of the place where the claim accrued or by the law of Pennsylvania, whichever is shorter. 42 P.C.S. § 5521(b); Gwaltney v. Stone, 387 Pa.Super. 492, 501, 564 A.2d 498, 503 (1989). Under the terms of the “borrowing statute”, since the Pennsylvania Statute provides for the shorter period of time to bring a claim after accrual, the court was correct in holding that the Pennsylvania statute of limitations applied.

Regarding the choice of law provision in the lease, such clauses do not apply to questions of applicability of the chosen state’s statute of limitations unless they expressly so provide. Gluck v. Unisys Corporation, 960 F.2d 1168 (3d. Cir.1992). As is apparent from a reading of the above-quoted lease clause, it does not expressly provide that the law of Michigan as to statute of limitations shall be applied.

The long-standing rule of Pennsylvania is that the law of the forum determines the time within which a cause of action shall be commenced. Freeman v. Lawton, 353 Pa. 613, 46 A.2d 205 (1946); AAMCO Transmissions, Inc., 759 F.Supp. 1141 (E.D.Pa.1991). This rule has not been changed despite the adoption of the significant contacts/interest analysis on substantive choice of law matters by the supreme court in Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Cistone v. Ford Motor Company, 504 F.Supp. 328 (E.D.Pa.1980). Rather, the proper source of analysis is the terms of the borrowing statute at 42 Pa.C.S. § 5521. Therefore, the lower court did not err in concluding that the appropriate statute of limitations was that of Pennsylvania.

Appellant’s next argument is that, if Pennsylvania law controls the statute of limitations question, then it is the six-year statute, rather than the four-year statute which should have applied. The statutory provisions at issue read as follows:

§ 5525. Four year limitation
The following actions and proceedings must be commenced within four years:
(7) An action upon a negotiable or nonnegotiable bond, note or other similar instrument in writing. Where such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.
(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal of otherwise, except an action subject to another limitation specified in this subchapter.
§ 5527. Six year limitation
Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.

We have no difficulty in concluding that the equipment lease agreement executed by the parties on September 2, 1986 which forms the basis of Unisys’ claim against U.S. Vision is a “contract, obligation or liability founded upon a writing.” As such, the terms of § 5525(8) are applicable. The only other section of the subchapter that Unisys claims is applicable is § 5527. Since the action is based upon a contract, obligation or liability founded upon a writing, the condition stated in § 5527 does not apply, and § 5525(8) is the controlling statute of limitations.

Unisys cites Cucchi v. Rollins Protective Service Co., 524 Pa. 514, 574 A.2d 565 (1990) and urges us to limit its holding, that a lease of burglary equipment is covered by the Uniform Commercial Code-Sales, 13 Pa.C.S.A. §§ 2102-2725, to conventional equipment leases and to leases which are purely finance devices securing certain goods. There is no need to address this issue since the limitations period involved in Cucchi was that provided for in 13 Pa.C.S.A. § 2725. This statute is not involved in the instant case, and the issue presented by Unisys is whether § 5525 or § 5527 should cover this action.

The final argument is that, even if the four-year statute applies, since the lease provided for installment payments each missed payment would constitute a separate breach and distinct cause of action. As correctly determined by Judge Salus, this argument is without merit because Unisys terminated the lease on April 14, 1987 and the cause of action accrued on that date. Upon termination of the lease, U.S. Vision’s obligation to make installment payments was accelerated and the time for bringing the action for monies due commenced on that date.

We conclude that the lower court properly ordered entry of judgment on the pleadings in favor of U.S. Vision.

U.S. Vision has filed a motion to quash or dismiss the appeal for appellant’s failure to conform with appellate rules. The deficiencies relied upon in support of the motion are not of such a nature that they deny the court the ability to conduct effective appellate review. For this reason, we deny the motion to quash or dismiss.

Order affirmed.

Motion to quash or dismiss denied.

      . There is no question that the claim did not accrue in Pennsylvania.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    630 A.2d 436
    William MORRISON and Roseann Morrison H/W v. FIBREBOARD CORPORATION, Keene Corporation, Owens-Illinois, Inc., GAF Corporation and Armstrong World Industries, Inc. Appeal of FIBREBOARD CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 30, 1993.
    Filed July 15, 1993.
    Reargument Denied Sept. 23, 1993.

      Richard T. Wentley, Pittsburgh, for appellant.
    Suzanne Reilly, Philadelphia, for appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

Defendant Fibreboard appeals from the December 9, 1991 judgment entered in favor of the plaintiffs, William and Roseann Morrison, after a jury found appellant liable for personal injury allegedly incurred by husband/appellee as a result of exposure to asbestos-containing products manufactured by the appellant.

Appellant argues the court erred by failing to grant its motion for a nonsuit and, consequently, allowing the jury to award damages on the basis husband might suffer or fears he might suffer a disease in the future. In support of its argument, appellant relies on this Court’s en banc Opinion in Marinan v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), wherein, inter alia, the “separate disease rule” was recognized and adopted as controlling in asbestos exposure actions. This rule allows a cause of action for nonmalignant, asbestos-related lung pathology and a later separate cause of action for lung cancer or mesothelioma. For the reasons which follow we vacate the judgment entered in favor of the plaintiffs and remand for a new trial in accordance with the findings of this Opinion.

Plaintiffs’ expert, Dr. Allan Friedman, opined Mr. Morrison suffered from pleural thickening, plaque formation and early pulmonary asbestosis (N.T., 4/23/91, pp. 30-31). Dr. Friedman also stated the asbestos to which Mr. Morrison had been exposed was a contributing factor to the afflictions mentioned. Id. Dr. Paul E. Epstein, who testified on behalf of the appellant, opined his examination of Mr. Morrison and a review of Morrison’s medical history and record revealed no indication of asbestos-related conditions or abnormalities (N.T., 4/20/91, p. 19). Dr. Epstein did agree, however, because of Mr. Morrison’s exposure to asbestos, the effects of which are cumulative, he was at greater risk of developing lung cancer or mesothelioma than had he never been exposed (Id., pp. 22-23).

We do not deny a pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action. See Marinari, supra. However, in the matter before us, due primarily to the trial court’s erroneous instruction, allowing damages for the possibility of incurring or fear of incurring a future asbestos-related malignancy, we are unable to ascertain if the money damages awarded to the plaintiffs were based on a finding Mr. Morrison presently suffered from pleural thickening, or a finding he was likely to develop a malignancy as a result of his exposure to asbestos products manufactured by the appellant. For this reason we must reverse the judgment entered in plaintiffs’ favor. Because the Marinari Court, however, found juries must now base their verdicts not upon sheer speculation as to possible future damages, but rather upon only empirical or physically objective evidence of present injury, should Mr. Morrison at some future date develop an asbestos-related malignancy, he is not to be precluded from instituting a second action. This, of course, rules out an award of damages based upon the fear of developing asbestos-related lung cancer or mesothelioma no matter how reasonable the basis for such fear. By establishing the two disease rule for recovery and eliminating the bar of the statute of limitations preventing an action for a malignancy which developed after the onset of asbestosis or pleural thickening, the need to anticipate all possible consequences arising out of a single disease approach has been obviated. Just as all “past, present and future asbestos related mental anguish, inconvenience and distress” (Jury Instruction, N.T., 5/2/91, p. 19) arising out of asbestosis or pleural thickening injuries may be fairly compensated in the initial asbestosis action, the same factors are relevant in establishing damages for the malignancy at the time it becomes actionable. No recovery may be had merely for the emotion and anguish arising from the possibility of the development of a malignancy. While the appellant did not frame its statement of the questions involved in this appeal on the erroneous charge by the court to the jury, the statements of question had to do with, first, whether recovery may be had because cancer or mesothelioma might occur in the future as a result of defendant’s wrongful conduct, and second, whether recovery is permitted because defendant suffers a fear that he might contract cancer or mesothelioma as a result of defendant’s wrongful conduct, which substantially centered on the court’s erroneous charge. These statements were more than adequate to permit this Court to conduct appellate review of the trial court’s governance of the case and to rule accordingly without being implicated in a sua sponte entertainment of the issues.

Based on the foregoing we vacate the judgment entered in favor of plaintiffs and against defendant Fibreboard and remand this matter for a new trial consistent with this Opinion as to only those injuries presently suffered by Mr. Morrison.

Judgment vacated and case remanded.

Jurisdiction relinquished.

      . Although plaintiffs’ complaint included a number of other defendants, only Fibreboard is party to this appeal.

      . This Court’s en banc decision in Giffear v. Johns-Manville Corp., et al., — Pa.Super.-, 632 A.2d 880 (1993), has specifically overruled this panel’s holding, based on Marinari v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), that asymptomatic pleural thickening is an injury giving rise to a cause of action. The Giffear Court stated: "Without evidence that such a condition [asymptomatic pleural thickening] is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-compensable injury and, therefore, does not give rise to a cause of action.... Thus, [Higginbotham v. Fibreboard, — Pa.Super. -, 630 A.2d 14 (1993), and Morrison v. Fibreboard, — Pa.Super.-, 630 A.2d 436 (1993) ] are overruled only to the extent that they cite Marinari to stand for the principle treating asymptomatic pleural thickening as a legally cognizable injury.” Giffear, supra at-, 632 A.2d at 888.

      . The jury instruction given by the court on May 2, 1991 was in compliance with Pennsylvania law as it existed at that time. However, in light of this Court’s en banc decision in Marinari v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), which was decided after the jury charge, the court’s instructions are no longer an accurate representation of Pennsylvania law.

      . The pertinent part of the jury instruction follows:
      Doctors testified plaintiffs have an increased risk of developing asbestos-related lung cancer and mesothelioma.
      You must determine if an increased risk exists and what figure, if any, is an appropriate award. If you find an increased risk exists please do three things: one, decide upon a figure you believe appropriate if plaintiff develops lung cancer or mesothelioma; two, decide upon a fair percentage for plaintiff’s increased risk; and, three, multiply the figure by the percentage to calculate a dollar amount reasonably reflecting each plaintiff’s increased risk.
      Plaintiff may recover for fear of contracting asbestos-related lung cancer and mesothelioma if you find their fears are factually reasonable, legitimate and real. Plaintiffs must prove by competent testimony: one, their fears are sincerely felt, and, two, the lung cancer and mesothelioma they fear may reasonably develop from their current condition.
      There is no cause of action for risk or fear of asbestosis.
      Plaintiffs may be fairly and adequately compensated for all past, present and future asbestos-related mental anguish, inconvenience, and distress.
      Plaintiffs may be fairly and adequately compensated for all past, present and future asbestos-related loss of life’s pleasures.
      (N.T., 5/2/91, pp. 17-19.)


author: CAVANAUGH, Judge: HUDOCK, Judge,

text:
    630 A.2d 438
    Joell SANDERS/DPA, Appellants, v. Vertis LOTT, Appellee.
    Superior Court of Pennsylvania.
    Argued March 3, 1993.
    Filed Aug. 12, 1993.

      Joan Esmonde, Asst. Dist. Atty., Philadelphia, for appellants.
    Before CAVANAUGH, BECK and HUDOCK, JJ.
   CAVANAUGH, Judge:

This case involves a sua sponte adjudicatory attempt to realign the import of our Child Support Guidelines and Federal Regulations concerning the payment of child support to children on welfare. The current way of treating the support of children whose custodial parent is on welfare embodies certain judgments as to what best fulfills the relevant social and economic goals of our society. The lower court order improperly attempts to change the current methodology and replace it with a practice it believes is more efficacious. We must conclude that the court’s calculation of the support award was in error. Accordingly, we reverse.

This case arose out of a claim for child support by Ms. Joell Sanders filed on August 23, 1991. The father, Vertís Lott, acknowledged paternity of the child in March, 1991. On January 22,1992, both parties appeared before the Permanent Hearing Officer. The Permanent Hearing Officer apparently applied the guidelines correctly, determining, inter alia, that the mother had no earnings or earning capacity and the father earned a monthly net income of $1,778. The Permanent Hearing Officer, based on his calculations and his application of the guidelines, determined that $82.13 per week was the proper amount for the father to pay in support. The father filed exceptions to the Hearing Officer’s recommendation.

Argument was heard on these exceptions on March 9,1992, before the Hon. Stephen E. Levin. At no point did the lower court challenge the accuracy of the Permanent Hearing Officer’s calculation or point out an error in the Permanent Hearing Officer’s application of the guidelines. Nonetheless, Judge Levin reduced the Father’s support award approximately fifty (50%) percent, to $42.00 per week. At the hearing, he justified his action as follows:

THE COURT:
I am not going to belabor it, because I am going to grant your exceptions, but I want you to understand the tragedy that has occurred here. I think your client does.
We do not have the ability, although I think we should, to order that this child be removed from welfare. I have often thought, district attorney, that what we should be allowed to do in cases like this is order this child removed from the grant, and, unfortunately, I used to try to do that and I have given up.
MS. ESMONDE:
You can’t remove one child—
THE COURT:
I am aware of that.
MS. ESMONDE:
—if others remain.
Yes.
THE COURT:
This father should be entitled to provide for that child directly to this mother and not pay through the Department of Welfare. Now, I cannot do that. That is one solution that, unfortunately, I am blocked from using, which would be the appropriate solution in my personal view, but not as a judge. I cannot do it.
The other solution, in the long run, sir, is, at some point, you should consider being very active in this child’s life and seeing if you can remove the child from the mother, because that would probably be the only way you are going to influence this child in a way that is positive.
As far as this Order is concerned, I will change the Order — all right? — because my own view is, this is providing the Department of Public Assistance with more money by a very significant amount than they are laying out for this child.
What I have done, counsel, just so you will understand it, in reaching my calculation, I have assumed that the actual cash grant that is being laid out is somewhere around $1100. I have further assumed that there will be a pass through of $600 to the mother. That is the $50 a month. I am assuming that the department is laying out at least the six hundred, no matter what we do; the eleven hundred, no matter what we do.
I am further assuming that the department will not have medical costs for the child, because I am ordering the father — I am changing the portion of that Order where it says, “when available.”
I am ordering that the child be covered by the father, and I am putting on the Order that we are advised that the child is presently covered by the father.
Now, having done those two things, I think there is still one additional sum that the department lays out, in addition to that, which is a food stamp amount, which I have difficulty calculating, because I do not know the accurate amount.
MS. ESMONDE:
Your Honor, if I could just get clear one point, the medical coverage, does that cover one hundred percent of the child’s needs, because if it doesn’t cover weli-baby care and things of that nature, the Department of Public Assistance and the taxpayers of the Commonwealth will be picking up that cost, without a reimbursement from the defendant?
THE COURT:
I will inquire.
What does it cover, sir?
MR. McD ANIEL:
Your Honor, he has two coverages. He has a city health plan, because he works for the City, so that’s full, as well as the government, which there would be an overlap. So— THE COURT:
Is there an HMO with the City, sir?
MR. LOTT:
Yes, sir. There is.
THE COURT:
O.K. Then the mother has available complete coverage, counsel.
MR. ESMONDE:
Thank you, Your Honor.
THE COURT:
Complete coverage, all right.
I am going to make the Order, and I am being very quite honest with both of you, so you understand how I am doing it. I am going to add $500 above that absolute minimal, that seventeen hundred, that is being laid out, and the Order will be approximately $2200 per year.
MS. ESMONDE:
Your Honor, if I could just make an argument for the record.
THE COURT:
Well, wait. Let me just—
MS. ESMONDE:
Oh. I’m sorry.
THE COURT:
So it is right—
MS. ESMONDE:
I thought you were finished.
THE COURT:
—I am just showing both of you how I am calculating it out.
Although the guidelines — and you will have a chance to argue against what I am going to do. My thinking, right now, is, although the guidelines would work out to $83, that would be inappropriate, because it would actually be giving the department money that it is not expending, and that a fair Order would be in the range of $42 a week, which would completely reimburse the department and provide the mother with a six hundred-dollar pass through.
Now, counsel, you know how I got it. I have put the $1100 cash, the six hundred-dollar pass through and I have added $500, to include any incidental expenses that the department might have.
You may argue.
MS. ESMONDE:
Your Honor, welfare is merely the assignee of this Order. At some point in the future, if the plaintiff goes off cash assistance from welfare, which you can neither assume that she will or assume that she won’t, but she might, she is entitled to the amount of money that welfare has received but, yet, has not paid out.
So you are talking about halving her Order and, at some point in the future and in the child’s future, that money, which she would have, otherwise, been entitled as a credit from the Department of Welfare, you’re wiping that out, and some fund, in the future, that the child may receive is, by this action, being wiped out.
That is putting her and the child in what I would see as a constitutionally impermissible class, based on their wealth or lack thereof.
THE COURT:
It is an interesting argument and it is a sound argument and it is one that I would appreciate.
However, I will factually determine that a mother who has had seven children or eight now at twenty-four years of age is so irresponsible that the possibility of her going off welfare is non-existent, unless she dies.
Next case.
The argument is proper—
MR. McDANIEL:
Thank you, Your Honor.
THE COURT:
—but, factually, it is not proper, not this lady, but I commend you on the argument, because you are right—
MS. ESMONDE:
I know.
THE COURT:
—O.K.?—but not factually.
MS. ESMONDE:
We’ll see.
THE COURT:
Not factually.
You know, sir — Mr. McDaniel, I want you to hear it — I often tell, very young men who come in here, kids who are twenty, twenty-one years of age, who have gotten involved with someone who has a procession of children, that they should have known better, because, when they had intercourse with this lady, they knew that there was a risk that she would do this thing.
You, sir, knew better, and I am sorry that this happened to you. I am sorry for the child, but, quite frankly, you did know better—
MR. LOTT:
Yes, sir.
THE COURT:
—O.K.?
MR. McDANIEL:
Thank you, Your Honor.
(Whereupon, the hearing concluded.)

Thus, it appears that without argument, much yet suggestion, from either party, the court decided to (1) modify father’s support award to reflect the amount DPA pays to the mother in welfare and (2) conduct an armchair calculation of a modified award.

Appellant makes two claims of error before this court: (1) the trial court erred in failing to apply either the Support Guidelines or the Melzer formula in determining the child’s reasonable needs and (2) the trial court erred in basing its calculations and conclusions of the support award on its own guesses and suppositions, rather than any evidence presented. We agree with the tenor of both arguments, for the reasons articulated infra.

Appellant’s first argument is that the court erred in failing to apply either the Support Guidelines or the Melzer formula in determining the child’s reasonable needs. Appellant argues that the court’s finding that the mother’s receipt of cash assistance constituted an “extraordinary circumstance” to deviate from the guidelines is erroneous and a vehicle for to evade the requirements of the guidelines. We agree.

Before proceeding with the present analysis, it is pertinent to note this is apparently not the first time the judge below has employed this dispositional scheme. See DPW ex rel. Dessus v. Chamberlain, 421 Pa.Super. 137, 617 A.2d 762 (1992).

In Chamberlain, supra, a panel of this Court had before it the decision of Judge Levin to reduce another support order by 50%, from $71.00 per week to $71.00 bi-weekly, based on the same rationale that is presently before us. In that case, we remanded without considering the merits of the appeal. We reasoned as follows:

The trial court acknowledged that this case involves significant issues of law and social policy, which the court decided without benefit of briefs or oral argument. We agree that a more extensive illumination of the issues presented by this appeal is warranted.

Id. at 141, 617 A.2d at 764. Although we believe that the court has made a better attempt at fleshing out what it considers the relevant issues than in Chamberlain, we are troubled by the fact that the court has impermissibly acted based on its own conception of social policy and in derogation of the controlling law.

Our Commonwealth’s law relating to support awards is as follows. There exists a rebuttable presumption that the amount of award which would result from the application of the guidelines is the correct amount of support to be awarded. 23 Pa.C.S.A. § 4322(b); Pa.R.C.P. 1910.16-l(b). This presumption is so strong that a written explanation is required when there is a deviation from the guidelines. Id.; See also Stanton v. Petersen, 413 Pa.Super. 470, 605 A.2d 819 (1992). In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider:

(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; and
(8) other relevant and appropriate factors, including the best interest of the child or children.

It is readily apparent that the mother’s earning capacity is “0.00” under the guidelines. The trial court found that the mother was on Public Aid and had no chance in the foreseeable future of attaining a job. Moreover, the trial court specifically adopted the amount of net income assigned to both mother and father by the Permanent Hearing Officer and acknowledged the accuracy of his determinations. Accordingly, the Permanent Hearing Officer’s determination of support was in accordance with the guidelines and entitled to a rebut-table presumption of being correct.

The question, therefore, is whether the receipt of Public Aid can be considered one of the eight enumerated factors to deviate from the guidelines. It is not for us to speculate that our rules regarding child support were drafted in ignorance of the fact that many fathers would be paying child support to mothers on Public Aid. We note that even though “income” for the purposes of support action is defined broadly, the receipt of Public Aid is not considered to be income. The definition of “income” for support purposes appears in 23 Pa.C.S.A. § 4302 and reads as follows:

“Income.” Includes compensation for services, including, but not limited to, wages, salaries, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workman’s compensation and unemployment compensation.

A review of the definition of income indicates that Public Aid is not one of the items enumerated as income. We believe that this can lead to the conclusion that the legislature considered that Public Aid should not be considered as income. Therefore, the trial court’s decision to consider the receipt of public aid an “unusual circumstance” for deviating from the support guidelines is error, and appears to be a backdoor method of considering something that the legislature believed should not be considered.

The court’s decision appears to be in derogation also of federal law. The trial court ruled presently that the actual need of a child whose mother receives Public Aid is self-determined by what DPA allots to the child for assistance. Its rationale for deviating from the guidelines in this instance is that federal law unwisely • mandates that if DPA collects more support for a particular child than it pays out in direct assistance for that child, it can apply any excess monies to reimburse monies owed to DPA for other family members. See 42 U.S.C. § 602(a)(38); 45 CFR § 206.10(a)(l)(vii) (1986). Accordingly, the lower court viewed this case as presenting the problem that a father’s contributions would potentially only reduce the debt owed to the state by Mother and all other fathers of her children. The court cited in its opinion the Dissenting Opinion in a Supreme Court case for recognition of this apparent problem. See Bowen v. Gilliard, 483 U.S. 587, 619-20, 107 S.Ct. 3008, 3027, 97 L.Ed.2d 485, 513 (1987) (Brennan, J., Dissenting). The trial court has been quite candid that absent this federal practice, it would not reduce the amount of the father’s award. In fact, the court said it would modify the award back up to $82.15 if the mother was off welfare and no longer had to reimburse the federal government.

The court felt the need to rectify this alleged injustice perpetrated by federal law. We find troubling, however, that the court ignored the Majority Opinion which held that there were several legitimate reasons for this practice and consequently the practice was Constitutional. Gilliard, supra at 600, 107 S.Ct. at 3016, 97 L.Ed.2d at 500. Among those reasons was the assumption that child support payments are typically used for an entire family’s needs. Gilliard, supra at 600 n. 14, 107 S.Ct. at 3016 n. 14, 97 L.Ed.2d at 500 n. 14. Underpinning much of the Majority Opinion in Gilliard was a deference to the province of the legislative branch, in that “the intractable economic, social, and even philosophical problems presented by the public welfare assistance programs are not the business of this Court.” Id. at 609, 107 S.Ct. at 3021, 97 L.Ed.2d at 506, quoting Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.2d 491, 503 (1970). Neither should it be the business of lower state courts, including this court.

We also find merit with the tenor of appellant’s second argument, and rely on it as an independent basis for reversal. The appellant argues that the court’s calculations of a support award were seriously flawed, chiefly based upon self-generated estimates that the court placed into the record. She alleges that the trial court’s conclusions about the apportionment of the mother’s welfare grant was a wild guess at best, as was the court’s assignment of a monetary value to mother’s food stamps and medical benefits.

We agree with the tenor of appellant’s argument. Although we believe, as indicated supra, that the lower court provided in the current Record a better indication of how the support award was calculated than in Chamberlain, we believe its pronouncements reflect the fact that neither party was prepared to provide figures to calculate a support award that was in line with the court’s enthusiasm for equating an award with the actual money the government provided for a child. We are particularly concerned that when neither party could tell the court how much food stamps a family of seven would get, he literally guessed that $500 a year in stamps would be spent on the child. No information appears in the Record as to how he reached this figure. Additionally, we believe that the whole concept of figuring out how much one child receives from DPA by looking at the increase in monthly benefits resulting from an additional family member may be flawed. DPA decreases the amount of money awarded for each additional child, reflecting the belief that it is less expensive to raise each successive child. Therefore, DPA has a “family” concept of determining the cost of raising children. The court, however, viewed the costs of raising a particular child as the additional money which DPA provides for each child.

Accordingly, for the foregoing reasons, the court erred. It has undoubtedly invaded the province of our national and state legislatures. The impact of Judge Levin’s practice, if adopted on a more widescale basis, could well be a marked increase in the amount of federal expenditures for AFDC. Gilliard, supra, 483 U.S. at 599, 107 S.Ct. at 3016, 97 L.Ed.2d at 499 (challenged practise estimated would save $455 million during fiscal years 1984 through 1987). We acknowledge that a problem could be perceived in support cases such as this that may call for a legislative response. See Gilliard, supra at 619-20, 107 S.Ct. at 3027, 97 L.Ed.2d at 513 (Brennan, J., Dissenting). Notwithstanding, if relief is to come, it must come from our national or state executives or legislators. We would conclude that the trial court’s not unpraiseworthy efforts were contrary to the law and authorities which bind us all.

For the foregoing reasons, we reverse.

Case remanded for proceedings consistent with this Memorandum. Jurisdiction relinquished.

HUDOCK, J., files a dissenting statement.

HUDOCK, Judge,

dissenting.

Respectfully, I dissent. I disagree with the majority’s conclusion that the receipt of public aid can never be an “unusual circumstance” which permits deviation from the support guidelines. The majority suggests that, because the definition of income as found in 23 Pa.C.S. § 4302 does not include public aid as one of the items enumerated, to consider the receipt of public aid as an unusual circumstance for purposes of deviating from the support guidelines is to promote a backdoor method of considering as income something that the legislature believed should not be considered. This reasoning, I respectfully suggest, is flawed, as the note to Pa.R.C.P. 1910.16-4(a) clearly states that a deviation from the support guidelines applies to the amount of the support obligation and not to the amount of the income. The court found that no matter what support obligation was reached, the most the child could actually receive was $50/per month due to the family’s receipt of public aid. In considering this factor, the trial court did not attribute an income which was equivalent to the amount of the public aid to the mother. Rather, the court merely found that, due to the receipt of public aid, an exact calculation of the child’s needs would be superfluous. Thus, the trial court’s consideration of the" mother’s receipt of public aid as an unusual circumstance does not equate with the consideration of public aid as income, as the majority suggests. The trial court, on the contrary, adopted the amount of net income assigned by the hearing officer to both mother ($0.00) and father ($1,778 monthly), acknowledging the accuracy of such determinations. From these figures, it determined that there existed an obligation on the part of the father to pay support ($82.13 weekly). At this point, a rebuttable presumption arose that the amount of the award determined from the guidelines was the correct amount of child support to be awarded. However, this presumption was rebutted when the court made a written, specific finding on the record that an award in the amount determined from the guidelines would be unjust and inappropriate under the circumstances. See Pa. R.C.P. 1910.16-l(b). As the majority notes, Pa.R.C.P. 1910.-16-4 enunciates the requirements for deviation from a support amount derived from the guidelines. Rule 1910.16-4 provides, in relevant part:

(b) In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; and
(8) other relevant and appropriate factors, including the best interest of the child or children.

Thus, the court has reasonable discretion to deviate from the guidelines if it appears to be necessary. Ball v. Minnick, 414 Pa.Super. 242, 260, 606 A.2d 1181, 1191 (1992) (en banc). The trial court justified its deviation from the guidelines as follows:

The Court found that the public assistance aspect of this case constituted unusual circumstances, requiring deviation from the guidelines.
Because Mother was already receiving public assistance, this child had to be included in the family unit for purposes of calculating monthly welfare benefits. 42 U.S.C.A. § 602(a)(38) (West 1991); 45 C.F.R. § 206.-10(a)(l)(vii) (1991). Accord 55 Pa.Code § 171.21(b)(1) (1991). In addition, to be eligible for benefits, Mother had to assign any right to receive child support to DPW and assist in the collection of that support. 42 U.S.C.A. § 602(a)(26)(B) (West 1991). Accord Pa.Stat.Ann., tit. 62, §§ 432.6(e), 432.7 (Purdon Supp.1991); 55 Pa.Code §§ 141.21(c) and (d), 187.21(b), 187.23(a)(2) (1991).
Of the child support that would be collected each month, the first $50.00 would have to be passed through to the family in accordance with federal law. 42 U.S.C.A. §§ 602(a)(8)(A)(vi), 657(b)(1) (West 1991). The remaining support collected would be turned over to DPW as reimbursement, to be applied against the total amount of public assistance provided to the family. See generally Bowen v. Gilliard, 483 U.S. 587, 599-600 & n. 14, 107 S.Ct. 3008, 3016-17 & n. 14 [97 L.Ed.2d 485] (1988) [ (1987) ]. If DPW collected more in child support than it paid out in assistance for the family as a whole, the excess would be distributed to the family, should it ever stop receiving public assistance. 42 U.S.C.A. § 657(b)(4)(B). The result is that a Father’s contributions for his child’s support serve only to reduce the debt owed to the state by Mother and all the fathers of her children:
This Mother was twenty-four years old at the time this child, her sixth, was born. By the time this case was listed before this Court, Mother had borne another child — her seventh child out of wedlock. (N.T. 3/9/92, at 3). These children had several different fathers, at least two of which had paid or were currently paying support through the court. Because Mother was on welfare, this support was remitted to DPW as reimbursement for the public assistance the entire family was receiving. According to the federal requirements described above, other than the $50.00 pass-through, the support paid by Father would go to the child only if the family were taken off welfare, and if DPW had been reimbursed for the total assistance paid to the family as a whole. However, this Court found that a woman who had borne seven children by the age of twenty-four would likely never be able to remove herself from public assistance. (N.T. 3/9/92 at 18). Therefore, whatever support the Court ordered Father to pay for the support of the child would be turned over to DPW, and most likely retained by DPW to reduce the expense of the assistance paid for an eight-member (as of the hearing date) family. Under the circumstances, the Court found that entering a support order conforming to the guidelines would ultimately benefit DPW, rather than the child. Deviation was therefore appropriate.

Trial Court Opinion dated October 16, 1992, at pp. 3-6. (Emphasis in original.) Although the method of assignment of support to DPA, and the distribution of public aid as outlined by the trial court, has been held to be constitutional, see Bowen v. Gilliard, 483 U.S. 587, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987), I fail to see how consideration of .receipt of public aid by the mother as an unusual circumstance is inconsistent with or in derogation of federal law. In this instance, the trial court recognized that any monies in excess of $50.00 would not benefit the child and, even if the court found the child’s needs exceeded $50.00 per week, the child would still only receive the $50.00 pass-through per month plus whatever sum is allotted by DPA for assistance of a family of eight persons. The fact that federal law provides that support monies in excess of the $50.00 pass-through per month decrease the custodial parent’s debt to DPA (applied as recoupment for monies expended by DPA on other family members) in the event that parent becomes self sufficient does not necessarily prohibit the court from finding the receipt of public aid as an unusual circumstance where it is doubtful that the family will ever be able to independently function without assistance. The unusual circumstance is not that the mother is receiving public aid, per se, but rather that the chances of ever removing herself from the system are slight. In this situation, the child receiving support and/or the family as a whole neither benefit nor suffer from a payment in excess of $50.00. Accordingly, I would find that the trial court, in this instance, did not abuse its discretion in deviating from the support guidelines.

For similar reasons, I also disagree with the majority’s alternative basis for reversal. The majority finds that the trial court’s financial conclusions regarding welfare cash allotment, food stamps, and medical assistance were merely guesses unsupported by the record. The record, however, reveals that the trial court was presented, by the assistant district attorney, a document from DPA, dated January 1,1990, which delineated family allotments in the different counties, including Philadelphia County. The family allotments were calculated on the number of family members in a budget group. Therefore, there was a basis for the estimated cash assessment calculated for the family per month. As to medical benefits, the court determined that it need not include this in the calculation, since the father provided full medical benefits for the child. Accordingly, DPA was not responsible for, nor allotted resources for, medical care. Finally, with regard to food stamps, no evidence was presented to the court by the parties or their attorneys on exactly what mother received per month or per year in food stamps. Although me transcript reveals the court did make inquiry as to the amount, no one present appeared to know the answer. Accordingly, the trial court added to the amount which would be spent on the child in a year, by DPA, a sum of $500.00 for food. Although it is clear that this calculation was speculative, it did not prejudice the child or mother in the actual amount the family would receive, as this was determined by DPA guidelines, plus the $50.00 pass-through per month. The calculation made by the court was merely an effort to reimburse DPA for its expenditures on the child. Accordingly, any error in this calculation was harmless error at worst. I would, therefore, affirm the order of the trial court.

      . It is important to note that a father is not paying any more under this practice than he would be if the child was not under public assistance.

        “The assignment shall be effective only up to the amount of AFDC/GA received.” 55 Pa.Code § 187.21(b). In fact, Judge Levin's practice appears to have the perverse result that many fathers of children whose mothers are on public aid are receiving a break from what they ordinarily would have to pay in support.


author: DEL SOLE, Judge: WIEAND, Judge, concurring: FORD ELLIOTT, Judge,

text:
    630 A.2d 446
    COMMONWEALTH of Pennsylvania v. Chong XIONG, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Aug. 19, 1993.

      David Zuckerman, Philadelphia, for appellant.
    Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This case is presented to our court for the determination of whether Appellant’s trial counsel stipulated to the admissibility of a notation contained in a medical record which stated that the child victim had “no hymen”. We find that Appellant’s counsel did stipulate to the admission of the notation and therefore we hold that Appellant’s claim is waived. Appellant’s related claim of ineffectiveness of trial counsel likewise fails because we hold that the notation at issue was admissible under the Uniform Business Records as Evidence Act.

Appellant, Xiong Chong, was convicted of rape and corruption of a minor. The charges stemmed from allegations lodged against him by his twelve year old step daughter. The record reveals that the young victim was born in Thailand and moved to this country with her mother. Shortly thereafter, when the victim was two years of age, Appellant, also a Laotian immigrant, and the victim’s mother, married. During the course of their marriage, they had eight children. Testimony offered at trial, established that the family lived in a four room house and, in accordance with Laotian custom, slept together in one room.

The victim claimed that often during the night, her father would wake her up and sexually molest her. She stated that her mother slept through these incidents and therefore was unaware of the attacks. She also testified that additional acts of molestation occurred in the family’s living room, kitchen and bathroom.

After enduring this abuse for more than three years, the victim told her family’s minister and his wife about the assaults. The couple took the victim to Children’s Hospital in Philadelphia where she was examined in the hospital’s emergency room and subsequently, charges of rape and corrupting the morals of a minor were filed against Appellant. Following a jury trial, Appellant was convicted of all of the charges and was sentenced to a five to ten year term of imprisonment for the rape charges and a one to two year sentence for the morals charge. Appellant’s post-trial motions were thereafter denied and he filed the present appeal.

Appellant first claims that he properly preserved, for our review, the issue of whether the trial court erred in allowing the admission of the physician’s report that was prepared in conjunction with the victim’s physical exam, as a business record, where the report indicated that the victim had no hymenal tissue. Appellant alleges that the report was inadmissible under the Uniform Business Records as Evidence Act because it contained opinion evidence rather than merely factual information. Appellant claims that because the treating physician did not testify at trial.regarding the contents of the report, Appellant was denied his constitutional right to confrontation and cross-examination of an adverse witness.

A close examination of the record, however, leads us to the conclusion that Appellant stipulated to the admission of the report into evidence. Just prior to calling a medical expert, Dr. DeJong, to the stand, the Commonwealth sought to enter the victim’s medical record into evidence and Appellant’s counsel objected. Counsel stated that while he was willing to stipulate to the custodian of records’ testimony, he was unwilling to stipulate to admission of the report on the grounds that he had not been afforded the opportunity to cross-examine the doctor who prepared it. A discussion was then held off the record in the trial judge’s chambers and the defense’s motion was denied. The following exchange was then held on the record.

MS. RUIZ: Your Honor, the Commonwealth’s next witness will be Dr. Allan DeJong. However, your Honor, before DeJong actually testifies, there is a stipulation by and between counsel as to [the victim’s] hospital records from the Children’s Hospital of Philadelphia. And I will read that stipulation to the jury. I don’t know if the Court would like to explain the stipulation first before I read it.
THE COURT: Well, a stipulation, ladies and gentlemen, means that the lawyers agree that if a witness is called, that he or she would testify to the particular facts.
Specifically what the lawyers are stipulating or agreeing to is that on — Miss Ruiz will tell you the particular day — that [the victim] went to a particular hospital and these are in fact the medical records that exist as a result of that visit to a hospital.
Go ahead [M]iss Ruiz.
MS. RUIZ: Thank you your Honor. If the custodian of records from Children’s Hospital of Philadelphia were to testify that the emergency room records of Children’s Hospital of Philadelphia which are six pages are kept in the ordinary course of Children’s Hospital business. And that these records do in fact indicate that [the victim] was seen on March 12, 1990, in the early evening hours.
And that when she was seen in the emergency room, she was seen by a doctor John Pope who conducted a physical exam of [the victim]. And that specifically he did examine the child’s genital area; that is, the vaginal, cervix, the uterus and the rectum, and that the vagina was found—
MR. WILSON: Objection, your Honor. That’s not part of the stipulation.
THE COURT: Miss Ruiz, would you speak to Mr. Wilson and be sure of the exact nature of the stipulation, please.
(Pause.)
MS. RUIZ: Your Honor, could we see you at side bar? THE COURT: Sure.
MS. RUIZ: I think maybe we should go in the back. (The following occurred in chambers:)
THE COURT: Yes.
MS. RUIZ: Your Honor, it is my understanding that the stipulation is that Dr. Pope did a genital examination and found the child had no hymen.
THE COURT: What is the stipulation to your way of thinking?
MR. WILSON: Judge, I understood that what I was objecting to was we have a notation. I don’t know who made the notation; that there’s no signature, there’s several names of people who talked to her or examined her.
THE COURT: I have a document in front of me, it’s three pages. This is called the physician’s sexual assault checklist. Page one appears to be a history, page two is a diagram, and that’s the page that no hymen is on, and page three has an impression and the signature of Dr. Pope. It all appears to be in the same handwriting to me.
The medical records are of, I guess, a couple of different categories. There’s emergency department record which— so you’re not stipulating to the fact that he found there to be no hymen because you’re not certain that those are his findings, right?
MR. WILSON: That’s correct, Judge.
THE COURT: Well, assuming it’s reflected in the medical records, isn’t that admissible that there’s no hymen?
MR. WILSON: Judge, I would have no objection to the jury being told that the records have a notation no hymen. THE COURT: Because that notation is admissible that the records have no hymen, period.
MR. WILSON: That’s right.
THE COURT: And so what you’re objecting to is the fact that she’s representing that Dr. Pope made that determination as opposed to someone else?
MR. WILSON: That’s correct.
THE COURT: I’m not the finder of fact. If I were the finder of fact, looking at the incredible similarity of handwriting, I would find that this is Dr. Pope’s handwriting. However, I’m not the fact finder and so I will tell the jury that this is what’s reflected in the records, period, or you can tell them that this is what’s reflected in the records, that she has no hymen.
When your expert testifies it doesn’t make a bit of difference really that it came from Dr. Pope or didn’t come from Dr. Pope because that’s not the significance, is not, and who wrote it.
MR. WILSON: It is in one respect, Judge. It does make a difference what tissue was or was not there, according to the medical literature.
THE COURT: I understand the presence or absence of remnants of tissue makes a difference, but the problem is that whether Dr. Pope wrote this is or a nurse wrote this, you don’t know, which is obviously what you’re going to argue, you don’t know what they mean when they write no hymen, so it doesn’t matter who it comes from.
MR. WILSON: Right. That’s why I don’t want to stipulate that it comes from Dr. Pope.
THE COURT: Fine.
MR. WILSON: It’s as simple as that. That’s all.
MS. RUIZ: Can I say that according to the physician’s sexual assault list she was found to have no hymen?
MR. WILSON: That’s fíne. I can stipulate to that.
THE COURT: That’s the only other thing that you have left to say on the stipulation?
MS. RUIZ: Yes, Judge. Although, Judge, note my objection, that as the court noted, that it’s the same writing as Dr. Pope.
THE COURT: I know that.
MR. WILSON: But there’s also two names written in the same—
MS. RUIZ: Tony Morrow is the social worker, Mr. Wilson. You can read that.
THE COURT: Let’s define the issues and let’s argue about things that genuinely matter. We have an agreement on this so let us proceed.
(The following occurred in open court in the presence of the jury).
THE COURT: Go ahead, Miss Ruiz.
MS. RUIZ: Your Honor, it is indicated in the physician’s sexual assault checklist that the child was found to have no hymen. And that everything else as far as the genital exam was normal.
And, Your Honor, that is the extent of the stipulation.
THE COURT: Is that stipulated to, Mr. Wilson?
MR. WILSON: So stipulated, your Honor.

Therefore, it is clear that the nature of defense counsel’s objection to the admission of the victim’s medical record at trial, centered on the identity of the report’s author rather than its content. Counsel unmistakably stated that he had no objection to the admission of the “no hymen” notation contained in the record. Accordingly, we can only conclude that the claim now raised by Appellant regarding the notation has been waived.

Appellant repeatedly argues that the notation was hearsay and that trial counsel never abandoned his objection to the physician’s hearsay testimony, yet, further evidence of counsel’s stipulation to the admissibility of the contents of the physician’s report is found in that portion of the trial transcript that contains medical expert, Dr. DeJong’s testimony.

During direct examination of Dr. DeJong, the Commonwealth showed him the physician’s checklist indicating that the victim did not have a hymen. The Commonwealth then asked the doctor to assume certain facts i.e., that the victim was twelve years old when examined, that she had alleged that she was the victim of sexual assault and that she did not have a hymen. After setting forth the factual framework, the Commonwealth asked the doctor whether it was his opinion that it was normal for a child of that age not to have a hymen. The physician responded that it was not. We point to this portion of the witness’ testimony for a very specific reason. If, in fact, as Appellant argues, his stipulation went only to testimony that would have been offered by the custodian of the medical records, and not to the contents of the report, Appellant’s counsel would have objected to the Commonwealth’s factual assertion that the victim had no hymen and to the witness’ discussion of the same. At no time, however, did counsel object to the assertion. Therefore, we find no support in the record for Appellant’s claim that counsel’s stipulation was limited to testimony that would have been offered by the custodian of records.

In anticipation of our holding today, Appellant’s counsel sets forth an alternative argument urging us, that, in the event we find that Appellant’s claim has been waived, we hold that Appellant’s trial counsel was ineffective for not preserving it.

Before addressing this claim, we note that although Appellant’s present counsel did not represent Appellant at trial, he is affiliated with the same public defender’s office that represented Appellant at trial, and therefore, by raising trial counsel’s ineffectiveness he is really alleging his own ineffectiveness. Commonwealth v. Knight, 421 Pa.Super. 485, 618 A.2d 442 (1992). “In this context, the law requires a remand for the appointment of new counsel except (1) where it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is merit-less.” (emphasis in original) Id., 421 Pa.Super. at 488, 618 A.2d at 443 (1992) citing Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986). In determining counsel’s ineffectiveness, we first examine whether the issue foregone by trial counsel was of arguable merit, and if so, whether counsel had a reasonable basis for failing to assert it. If we find that counsel did not have a reasonable basis for the omission, we must then determine whether Appellant was prejudiced by his counsel’s inaction. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant asserts that there was “no plausible explanation that would justify abandoning a properly preserved claim after an adverse ruling and thereby acquiesce[ing] to the admission of disputed and damaging evidence in violation of his client’s right to confront and cross-examination [sic] witnesses against him. Such a failure by counsel would deny appellant his state and federal constitutional rights to the effective assistance of counsel.” (Appellant’s brief at 20-21). To support this notion, counsel argues that the statement in the medical report that the victim had “no hymen” was opinion testimony and therefore inadmissible under the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108. Counsel adds that if trial counsel had cross-examined the physician who examined the victim, counsel would have been able to call into attention the accuracy of the “no hymen” notation.

In the past, this court has had numerous occasions to address the issue of what constitutes opinion as opposed to fact for purpose of admission of a hospital record under the Uniform Business Records as Evidence Act. “Under this exception, hospital records have been admitted to show the fact of hospitalization, treatment prescribed and symptoms found.” Commonwealth v. Hemingway, 369 Pa.Super. 112, 118, 534 A.2d 1104, 1107 (1987) citing Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (additional citations omitted). Opinion evidence contained in hospital records, however, is not admissible. Id. “The rationale for excluding medical opinion in hospital records lies in the fact that such evidence is expert testimony and is ‘not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability and veracity of his opinion.’ ” Commonwealth v. Seville, 266 Pa.Super. 587, 591, 405 A.2d 1262, 1264 (1979) citing Commonwealth v. McNaughton, 252 Pa.Super. 302, 307, 381 A.2d 929, 931 (1977).

Drawing the line between what is fact and what is opinion is often difficult and has led to varying results. See Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987) (hospital record that contained impressions of social worker that plaintiff’s pain may have a psychosomatic source was found to be inadmissible); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (medical records custodian’s testimony regarding diagnosis, as it was contained in hospital record, of injuries sustained by murder victim was inadmissible); Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974) (autopsy report offered to prove essential element of crime or to connect appellant to crime where appellant was denied opportunity to cross-examine physician who prepared report, was inadmissible); Commonwealth v. Hemingway, 369 Pa.Super. 112, 534 A.2d 1104 (1987) (results of “rape kit”, excluding the finding of spermatozoa, were held to be wrongly admitted into evidence without testimony of criminalist who conducted tests); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976) (hospital record stating that spermatozoa was found in victim’s vagina was treated as fact and therefore was admissible); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979), (medical report containing results of blood alcohol test was properly admitted into evidence even though technician who administered the test did not testify at trial); Commonwealth v. McNaughton, 252 Pa.Super. 302, 381 A.2d 929 (1977) ; (hospital record was inadmissible where it was the sole evidence offered by the Commonwealth to prove an essential element of the offense charged); Commonwealth v. Green, 251 Pa.Super. 318, 380 A.2d 798 (1977) (medical report stating that rape victim exhibited “excoriations” to elbow and forehead did not involve a medical diagnosis or opinion and therefore was admissible under Uniform Business Records as Evidence Act).

In Commonwealth v. Green, supra, this court defined the terms “medical diagnosis” and “opinion” as entailing "... a conclusion concerning a condition not visible but reflected circumstantially by the existence of other visible and known symptoms.” Id., 251 Pa.Super at 323, 380 A.2d at 801 citing Paxos v. Jarka Corp., 314 Pa. 148, 153-154, 171 A. 468, 471 (1934). The court also noted that, “[t]he existence of a readily observable physical condition, the evaluation of which does not require a complex application of technical knowledge, can as easily be ascertained by the lay person as by the trained physician.” Id.

In the instant case, the notation at issue stated, “no hymen”. For the following reasons we hold that this was a factual assertion rather than a diagnosis or opinion. Applying the definitions of diagnosis and opinion set forth in Green, to the case sub judice, the notation clearly was not a conclusory statement based upon a review of symptoms. It was a physical fact. A gynecological exam was performed on the victim and the doctor found that she did not have a hymen. It was not an opinion based statement, but rather was based on an observation made during the exam.

As this court noted in Commonwealth v. Seville, supra, the justification for allowing hospital records to be admitted into evidence under the Business Records as Evidence exception to the hearsay rule is that they are to be considered reliable.

Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance striking, because the very regularity and continuity of the records is calculated to train the recordkeeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.

Id. 266 Pa.Super. at 592, 405 A.2d at 1265, citing McCormick, Handbook of Law of Evidence, § 306 (2d ed. 1972); Commonwealth v. DiGiacomo, supra 463 Pa. 449, 457-8, 345 A.2d 605, 609 (Roberts, J., concurring).

The court also stated that with respect to medical records in particular, “... the manner in which hospital records are maintained carries safeguards ‘at least as substantial as the guarantees of reliability of the records of business establishments” and noted that, “... ‘these recorded facts are routinely used to make decisions upon which the health and life of the patient depend.’ ” Commonwealth v. Seville, 266 Pa.Super. at 592-93, 405 A.2d at 1265, citing McCormick, Handbook of Law of Evidence, § 313 (2d ed. 1972).

In Commonwealth v. Campbell, supra, this court held that the detection of spermatozoa in the victim’s vagina was fact and therefore was admissible without the testimony of the individual who conducted the test. The court stated that, “[w]hen a circumstance becomes very routine or basic it is designated as a fact.” Commonwealth v. Campbell, 244 Pa.Super. at 510, 368 A.2d at 1301 (1976). As further support for this conclusion, the court said that “[t]ests to determine the presence of sperm are basic and routine and leave little room for error. Either there was spermatozoa present in her vagina or there was not.” Id.

Under the circumstances of the present case, we fail to see how the the absence of hymenal tissue differs from the admissibility of hospital records indicating detection of spermatozoa, such as in Commonwealth v. Campbell, supra, alcohol in the blood as in Commonwealth v. Seville, supra, or bruises as in Commonwealth v. Green, supra. It was a factual statement recounting the physician’s discovery.

Appellant alleges that the notation was based on opinion and that it raised many questions e.g., did the victim ever have a hymen and if so, how was it destroyed. It is not reasonable, however, for Appellant to assume that the examining physician would be able to answer these questions.

The medical expert who testified at trial stated that it is highly unusual for a twelve year old girl not to have a hymen, but during the course of his testimony added, that while the absence of a hymen was consistent with the victim’s claims, a child could endure the abuse described by the victim and still have an intact hymen.

The plain reading of the physician’s notation is simply that the child did not have a hymen. It was not written in a confusing or ambiguous manner and therefore, we are not persuaded by Appellant’s argument that it was opinion evidence.

We also find no merit in Appellant’s claim that by admitting the medical record without affording Appellant the opportunity to cross-examine the physician who prepared the report, his constitutional right to confrontation and cross-examination, as provided for in the United States Constitution, Amendment VI and the Pennsylvania Constitution, Article I, Section 9, was violated.

By raising this claim, Appellant in essence asserts that in every instance where facts contained in a business record are admitted into evidence, the defendant should have a right to cross-examine the individual responsible for recording the information. What Appellant seems to overlook, however, is the underlying purpose of the Uniform Business Records as Evidence Act. The inherent reliability and trustworthiness of factual entries in a business record negate the need for cross-examination. Requiring cross-examination regarding facts contained in the hospital record involved in the present case would therefore obviate the purpose and need for the exception.

Appellant claims that through cross-examination, counsel would have possibly uncovered errors in the transcription of the information, whether the physician exercised care in making the determination, whether he was thorough and what basis he had for the determination. In essence Appellant urges us that by cross-examining the physician, counsel may have been able to show that the physician was not qualified, that the victim did have a hymen, that the victim never had a hymen or that the hymen was damaged as the result of something other than penile penetration. None of these arguments compel us to hold that Appellant’s constitutional rights were violated.

As we stated earlier, the Commonwealth’s medical expert, Dr. DeJong testified that it is very unusual for a twelve year old female to not have a hymen and added that the lack of a hymen could be the result of trauma caused by penetration by a penis or by any number of other objects, or even, in very limited circumstances, may be the result of a birth defect. Furthermore, while the notation was used by the Commonwealth to add credence to the victim’s testimony it alone would not be sufficient to establish a material element of the crime of rape, i.e., penetration. At best, it was circumstantial evidence. As Dr. DeJong testified, while the condition of the victim’s hymen was consistent with her allegations, penile penetration was not the only possible cause of the trauma. Through Dr. DeJong’s testimony, the jury was apprised of the potential causes for the destruction of the hymenal tissue.

Accordingly, because we hold that the notation was factual and not opinion evidence, and was therefore admissible under the Uniform Business Records as Evidence exception to the hearsay rule, we also hold that Appellant’s trial counsel was not ineffective for stipulating to its admission. Since we have been able to reach this determination based upon the record before us, we find it unnecessary to remand this matter to the trial court for appointment of new counsel. Commonwealth v. McBee, supra.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion. TAMILIA, J., joins the majority opinion and Judge Wieand’s concurring opinion.

Ford Elliott, J., files a concurring and dissenting statement.

WIEAND, Judge, concurring:

I concur in the result.

“The definition of business in the Business Records Act is sufficiently broad to include medical or hospital records — The courts of Pennsylvania, however, have been reluctant to admit those portions of medical or hospital records which include the opinions of medical personnel.” Packel and Poulin, Pennsylvania Evidence, Ch. VIII, § 803.6(h), at p. 587 (1987). Therefore, the rule adopted by the Supreme Court is that “hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given.” Commonwealth v. DiGiacomo, 463 Pa. 449, 455, 345 A.2d 605, 608 (1975). See: Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974); Commonwealth v. Mobley, 450 Pa. 431, 301 A.2d 622 (1973). Under this rule, medical diagnoses contained in hospital records are not admissible unless the doctor making the diagnosis is available for cross-examination. Commonwealth v. DiGiacomo, supra at 455-456, 345 A.2d at 608; Commonwealth v. McCloud, supra. This rule has not been modified by the Supreme Court, and its decisions have created no exceptions.

In my judgment, the realities of modern day life require that the Pennsylvania rule be broadened. The majority has done so in this case by relying on Superior Court decisions which have treated several medical diagnoses as statements of fact. I agree. In so doing, the Superior Court has adopted the reasoning of the late Justice Roberts as expressed in his Concurring Opinion in Commonwealth v. DiGiacomo, supra at 457-460, 345 A.2d at 609-610. The business and professional records exception to the hearsay rule, he observed,

“is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance-striking, because the very regularity and continuity of the records is calculated to train the record-keeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.”

McCormick’s Handbook of the Law of Evidence § 306, at 720 (2d ed. E. Cleary, 1972). Wigmore finds that the fact that hospital records are “made and relied upon in affairs of life and death” renders them especially reliable. VI Wig-more, Evidence § 1707, at 36 (3d ed. 1940).

The physician’s diagnosis is probably the most important element in the hospital record in determining what treatment is necessary to preserve the patient’s life and health. It would seem, therefore, that the reliability of the diagnosis is sufficiently safeguarded to allow its admission even where there is no opportunity for the non-offering party to cross-examine the recording physician. Cf. Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945).

Furthermore, I question the efficacy of cross-examination to uncover discrepancies in the physician’s diagnosis. As Professor Wigmore has recognized,

“[a]midst the day-to-day details of sources of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand.”

Wigmore, supra. See generally, 4 Weinstein’s Evidence, ¶803(6)[04] (1975); but see McCormick, supra, § 313.

Finally, although the use of the record deprives the non-offering party of the opportunity to explore the physician’s qualifications, the fact that the diagnostician is a physician on the staff of a hospital assures at least minimal qualifications. The fact that no greater competence is indicated by the record can be adequately communicated to the jury.

However, even assuming that there may be some danger in admitting diagnoses without cross-examination of the recording physician, this does not dictate that all records containing diagnoses must be excluded from evidence. Judge Weinstein reports that “most federal courts reached an accommodation between the need for relevant information and the fear of uncross-examined opinion. They drew a distinction between diagnoses involving ‘conjecture and opinion’ and diagnoses upon which ‘competent physicians would not differ.’ ” 4 Weinstein’s Evidence, ¶ 803(b)[04] at 803-158 (1975). Records containing diagnoses tending toward the former were excluded, those tending toward the latter were not. McCormick finds a similar development in several state courts. McCormick, supra, § 313. A sample of cases in which other jurisdictions have held that, at least in some situations, diagnoses are admissible include Thomas v. Hogan, 308 F.2d 355 (4th Cir.1962); Bailey v. Tennessee Coal, Iron & RR. Co., 261 Ala. 526, 75 So.2d 117 (1954); Tryon v. Casey, Mo.App., 416 S.W.2d 252 (1967); Brown v. St. Paul City Ry. Co., 241 Minn. 15, 62 N.W.2d 688 (1954) (dictum); Allen v. St. Louis, 365 Mo. 677, 285 S.W.2d 663 (1956); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947) (dictum); McReynolds v. Howland, 218 Or. 566, 346 P.2d 127 (1969); Travis Life Insurance Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Ct.Civ.App.1959); Joseph v. W.H. Groves Latter Day Saints Hospital, 7 Utah 2d 39, 318 P.2d 330 (1957); Noland v. Mutual of Omaha Insurance Co., 57 Wis.2d 633, 205 N.W.2d 388 (1963).

Id. at 457-460, 345 A.2d at 609-610 (footnotes omitted).

For these reasons, I am of the opinion that the Pennsylvania rule must be expanded to allow a medical record to be received as a business record to show that a patient was found to have “no hymen.” Although this is a medical diagnosis, it is not based on conjecture and opinion but represents a finding upon which competent physicians would not differ. Therefore, I concur in the result reached by the majority. Whether or not defense counsel stipulated to the notation, the medical record was admissible as a business record to show that the child was found to have no hymen.

Judge Tamilia joins the majority opinion and joins Judge Wieand’s concurring opinion.

FORD ELLIOTT, Judge,

concurring and dissenting:

I join in the majority’s determination that appellant’s trial counsel stipulated to the admission of the medical record notation and therefore this issue is waived. However, I respectfully dissent from the majority’s alternate holding on the ineffectiveness issue. Rather, I would hold that the notation “no hymen” was medical opinion based upon a physical examination. I would find such a notation is subject to interpretation and explanation and therefore is inadmissible without the testimony of the examining physician. Commonwealth v. Hemingway, 369 Pa.Super. 112, 534 A.2d 1104 (1987). Therefore, it is of arguable merit whether counsel may be held ineffective for stipulating to its admission.

In his Concurring Opinion Judge Wieand, citing Justice Robert’s Concurring Opinion in Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), has called for an expansion of the Business Records Exception to include medical diagnosis as exemplified herein. While I may well agree with his advocacy for a more common sense approach, I must adhere to the caution of former President Judge Spaeth in his Dissenting Opinion in Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976):

It is evident that the distinction between an entry of fact and an entry of opinion will not always be easy to draw. Moreover, there are opinions and opinions. Thus, encouraged by the commentators, a number of courts have adopted a middle ground, holding that even though the entry is of opinion, it will be admitted if the opinion is one upon which competent physicians would not be likely to differ. That is what Mr. Justice Roberts and Mr. Justice Pomeroy would hold, as they say in their respective concurring opinions in Commonwealth v. DiGiacomo, supra; as the opinion by Mr. Justice Roberts collects the authorities, there is no need to cite them here. The fact remains that the view of Mr. Justice Roberts and Mr. Justice Pomeroy is a minority view.

Id. at 513, 368 A.2d at 1303 (footnotes omitted).

To date, the majority opinion in DiGiacomo continues to set forth the test we must follow. Therefore, I would find the notation “no hymen” to have been inadmissible instantly.

      . The Uniform Business Records as Evidence Act provides in pertinent part as follows:
      (b) General Rule. — A record of an act, condition or event, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity arid the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
      42 Pa.C.S.A. § 6108(b).