author: ROWLEY, Judge:

text:
    556 A.2d 425
    COMMONWEALTH of Pennsylvania v. Robert R. TITUS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed March 29, 1989.

      Robert W. Suter, Deputy Public Defender, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   ROWLEY, Judge:

This appeal of Robert R. Titus is from the judgment of sentence of five to ten years imprisonment that was imposed following his conviction, by the court sitting without a jury, on charges of rape, 18 Pa.C.S. § 3121, and other related offenses. The victim was appellant’s thirteen-year-old daughter, D.... Appellant’s sole argument on appeal is that the evidence of forcible compulsion or the threat of forcible compulsion was insufficient as a matter of law to support his conviction on the charge of rape. For the reasons set forth below, we reverse the judgment of sentence.

The facte of the case, as derived from the trial testimony, are as follows: In December 1985, D...., who had been living with her mother in Florida, came to live with appellant and his parents in a two-bedroom apartment in Morris-ville, Pennsylvania. D.... slept in one of the two bedrooms and her grandparents in the other; appellant sometimes shared the bedroom with D..... Toward the end of December 1985, appellant came home from a night of drinking, got into bed with D...., who was asleep, and, after she awoke, proceeded to have sexual intercourse with her. D.... then pushed him away, after which he left her alone.

In September 1986, appellant gave a written statement to the police in which he admitted having had sex with D..... Coincidentally, D.... returned to Florida in September 1986. Following a non-jury trial, appellant was convicted of rape, 18 Pa.C.S. § 3121; statutory rape, 18 Pa.C.S. § 3122; corruption of minors, 18 Pa.C.S. § 6301; incest, 18 Pa.C.S. § 4302; indecent assault, 18 Pa.C.S. § 3126; indecent exposure, 18 Pa.C.S. § 3127; and endangering the welfare of children, 18 Pa.C.S. § 4304. Posttrial motions were filed and denied. On April 8, 1988, appellant was sentenced to a term of imprisonment of five to ten years, five years being the minimum term mandated by 42 Pa.C.S. § 9718(a) when the victim of rape is under sixteen years of age. This timely appeal followed.

Section 3121 of our Crimes Code, 18 Pa.C.S. § 3121, provides, in pertinent part, that a person commits the offense of rape “when he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion; [or] (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution....” Appellant’s sole argument on appeal is that because there was no testimony that he resorted to forcible compulsion or the threat of forcible compulsion in order to engage in sexual intercourse with Ms daughter, the evidence is insufficient as a matter of law to support Ms conviction on the charge of rape.

Where, as here, appellant has preserved Ms challenge to the sufficiency of the evidence in a post-verdict motion in arrest of judgment,

we must view the evidence presented and all reasonable inferences taken therefrom In the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229-30 (1984) (citations omitted).

At trial, D.... testified that she never consented to have sexual intercourse with appellant (N.T. at 13, 16) and that she tried to stop him by pushing Mm away (N.T. at 11). Additional questioning made dear, however, that she did not push appellant away until after intercourse had occurred (N.T. at 11-12, 15). She testified further that after she pushed appellant away, he left her alone (N.T. at 11, 15). Appellant admitted, as he had earlier in his statement to the police, that he had engaged in sexual intercourse with his daughter (N.T. at 28, 31, 37-88). Asked whether she consented or appeared not to resist, he answered, “Yes, she seemed like you know don’t keep going” (N.T. at 34), which he interpreted variously as “she didn’t ... shrug me off” (N.T. at 34), she “didn’t try to fight me off” (N.T. at 44), she meant “don’t stop keep going” (N.T. at 45), or that she meant, in effect, “leave me alone” (N.T. at 47). In any event, appellant indicated that D.... made the ambiguous comment only after the act of intercourse had begun (N.T. at 47-48).

After evaluating the testimony at trial in the light most favorable to the Commonwealth, as we must, we conclude that appellant did not use actual physical force, or the threat thereof, against the victim. At most, the testimony at trial shows that the victim pushed appellant away at some point after the act of intercourse had begun. Nevertheless, the trial court concluded, and the Commonwealth argues on appeal, that because appellant was the father of the thirteén-year-old victim, “it may be reasonably inferred that he held a position of authority, and that the father/daughter relationship created a psychological and emotional atmosphere in which the victim was prevented from resisting” (Trial Court Opinion at 5). Accordingly, the trial court held that the Commonwealth had proved forcible compulsion, and therefore rape. The trial court based its holding upon that of our Supreme Court in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). Accordingly, we turn for guidance to the Supreme Court’s opinion in that case.

The defendant in Rhodes, a twenty-year-old man who lived near the eight-year-old victim and had known her for several years, lured the victim into an abandoned building and instructed her to submit to sexual acts. A panel of this Court set aside his conviction of rape after concluding that there was insufficient evidence that he had used forcible compulsion or the threat thereof. Commonwealth v. Rhodes, 332 Pa.Super. 273, 273, 481 A.2d 610, 613 (1984). The Supreme Court disagreed, holding that “ ‘forcible compulsion’ as used in section 3121(1) includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.” Id. 510 Pa. at 555, 510 A.2d at 1226. Whether a defendant did or did not resort to forcible compulsion [§ 3121(1)] or the threat of forcible compulsion sufficient to prevent resistance by a person of reasonable resolution [§ 3121(2) ] is a determination to be made in each case based upon the totality of the circumstances. Id.

Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is by no means exclusive.

Id., 510 Pa. at 555-56, 510 A.2d at 1226. After evaluating the evidence in the case before it, the Court concluded that

[tjhere is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (“prevent resistance”), without the use of physical force or violence or the explicit threat of physical force or violence.... This eight year old child was physically and emotionally helpless to resist the commands of her twenty year old neighbor....

Id., 510 Pa. at 557-58, 510 A.2d at 1217. Accordingly, the Court held that the evidence was sufficient to sustain the defendant’s conviction.

This Court has cited Rhodes in a number of subsequent cases in which sufficient evidence of forcible compulsion or the threat of forcible compulsion was found. In Commonwealth v. Stambaugh, 355 Pa.Super. 73, 512 A.2d 1216 (1986), appellant had been convicted of rape upon evidence showing that he had compelled his fourteen-year-old stepdaughter to engage in intercourse over a two-year period. This Court upheld the conviction after pointing out that the stepdaughter’s past experience with appellant, including physical abuse, and appellant’s threats of physical force prevented her resistance.

In Commonwealth v. Berry, 355 Pa.Super. 243, 513 A.2d 410 (1986), a panel of this Court, citing Rhodes, found sufficient evidence of force in the fact that appellant, the fifteen-year-old victim’s stepfather, had pushed the victim down and restrained her. In addition, the victim testified that she did not protest, except for attempting to pull away from appellant, because she knew that appellant had often struck her sister for disciplinary reasons.

The facts of Commonwealth v. Gabrielson, 870 Pa.Super. 271, 536 A.2d 401 (1988), allocatur denied, 518 Pa. 636, 542 A.2d 1365 (1988), indicated that the victim, who was apparently an adult, was taken by appellant to an isolated, wooded area, where he threatened to beat her up badly if she refused to have intercourse with him. This Court, following the instruction of the Supreme Court in Rhodes to consider, inter alia, the physical locale of the offense, the extent of appellant’s authority and dominion over the victim, and whether the victim engaged in intercourse under duress, concluded that the Commonwealth had proved the forcible compulsion element of rape.

In Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988), the thirteen-year-old victim was driven by appellant, her thirty-eight-year-old uncle, to a remote, wooded area, where he pushed her down on the seat of the car and had intercourse with her. Although the victim did not resist, except for saying “don’t,” this Court found the absence of more forceful resistance to be easily understandable given the remote location and “volatile circumstances” in which the victim found herself. Id., 377 Pa.Superior Ct. at 429, 547 A.2d at 762. “More importantly, appellant, who was the victim’s uncle, occupied a position of authority and trust such that the victim would feel coerced to submit to his demands out of a sense of duty or obedience.” Id. Having considered the factors noted in Rhodes, this Court held that the evidence of forcible compulsion or the threat thereof was sufficient to sustain appellant’s conviction.

In addition, although Rhodes was not cited by this Court in Commonwealth v. Poindexter, 372 Pa.Super. 566, 539 A.2d 1341 (1988), the Court nevertheless found sufficient evidence of force, “by and large subtle and psychological,” id., 372 Pa.Superior Ct. at 574, 539 A.2d at 1344 (quoting trial court), to uphold appellant’s conviction for the rape of his three daughters. In reaching this conclusion, the Court took into account the trial court’s findings that appellant’s assaults had begun when the girls were quite young (prepuberty), that they submitted to his demands out of obedience to his parental authority, that he overcame their resistance by reproaches and threats of beatings, that two of them were in fact beaten on two occasions, and that as they grew older, appellant warned them to remain silent in order not to split up the family.

When the facts of the present case are compared to Rhodes and its progeny, a number of dissimilarities are apparent. In the case at bar, the victim was not threatened by appellant; although it is not known whether her grandparents were nearby when the assault occurred, she was nevertheless not taken to a remote, unfamiliar location from which help could not be summoned; there was no testimony that either she or other family members had been abused by appellant in the past, and in fact we know nothing about appellant’s past relationship with the members of his family. Because it is the Commonwealth’s burden to prove, beyond a reasonable doubt, every element of the offense with which appellant was charged, Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 663 (1975), the uncertainty created by the absence, in this case, of the type of information that is present in similar cases redounds to the benefit of appellant.

In the present case, the trial court based its finding of sufficient evidence of forcible compulsion upon the fact that appellant, as D.....'s father, could reasonably be assumed to have exercised authority over D.... However, neither Rhodes nor its progeny holds that the mere fact of a parent/child relationship, without more, establishes the existence of “moral, psychological or intellectual force” sufficient to sustain a conviction of rape. In each of the cases cited above in which the assailant’s role as an authority figure who was known to the victim contributed to the finding of forcible compulsion or the threat thereof, additional contributing factors were present: in Dorman, the remote locality and the uncle’s use of force to push the victim down; in Poindexter, the father’s reproaches and threats, the beatings of two of the victims, and their fear of breaking up the family; and in Rhodes itself, the extreme youth of the victim and the isolated location to which she was taken.

Our review of the cases just cited indicates that the trial court’s ruling has extended the Rhodes holding beyond the existing boundaries of case law. In effect, the trial court holds that every act of sexual intercourse between father and minor daughter will be held to constitute rape, as well as incest, if the daughter testifies that she did not consent to the act. The relevant statutory provisions, however, offer no support for such a conclusion. If the legislature had intended the mere existence of a parent-child relationship, without more, to constitute “forcible compulsion” or the “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution,” such a presumption could have been written into the Crimes Code in the same manner as, for example, the presumption, embodied in 18 Pa.C.S. § 3123(5), that deviate sexual intercourse with a victim under the age of sixteen is necessarily involuntary. The absence of any such legislative presumption argues against its establishment by judicial fiat.

More importantly, given the unique facts of the present case, we cannot agree with the trial court that “it may be reasonably inferred that [appellant] held a position of authority [over D....]” (Trial Court Opinion at 5). At the time of the incident in question, D„__ had been living with appellant for less than a month. The record is devoid of evidence concerning the nature of their relationship, if indeed there was any relationship between them, before D.... moved to Morrisville from Florida, nor does the record explain why D.... left Florida in order to live with appellant. D....’s only comments on her relationship with appellant in the period preceding the incident was that she was sometimes affectionate with him and that she would sometimes “wait up” for him to come home at night (N.T. at 15). These comments tell us nothing about the nature and degree of authority that appellant exercised over D.....

Nor can we accept the Commonwealth’s assertion that from D....’s testimony that after the incident in question appellant would always slap her face when she expressed a desire to return to Florida (N.T. at 12-13), we may reasonably infer “the atmosphere and physical setting of the household where the incident took place, as well as the appellant’s position of authority and custodial control over the victim” (Brief for Appellee at 5-6). It is equally possible that appellant’s sexual interaction with his daughter poisoned the family atmosphere and led to appellant’s subsequent hostile behavior toward D...., or that appellant struck D.... in frustration because she refused to accept his authority.

Assuming, for the sake of argument only, that the usual family situation is for a father to. exercise a considerable degree of authority over a thirteen-year-old daughter, nevertheless the limited duration of the relationship at issue here, and the limited information available to us concerning that relationship, does not allow us to assume that the usual situation prevails. As noted earlier, it is the Commonwealth’s responsibility to prove beyond a reasonable doubt that appellant used forcible compulsion or the threat thereof against D..... Even after viewing the evidence presented at trial and all reasonable inferences therefrom in the light most favorable to the Commonwealth, as we must, we cannot say that the Commonwealth has met its responsibility in this regard. Appellant’s conduct in engaging in sexual relations with Ms thirteen-year-old daughter is abhorrent and fully merits the punishment attendant upon conviction of statutory rape, incest, and the other offenses of wMeh appellant was found guilty. We do not perceive in the record before us, however, evidence of force, whether moral, psychological, intellectual, or physical, sufficient to sustain appellant’s conviction of rape.

At the close of sentencing, the trial court sentenced appellant to a term of incarceration of five to ten years without indicating whether the sentence being imposed was for the offense of rape, statutory rape, corruption of minors, incest, indecent assault, indecent exposure, and/or endangering the welfare of children. We assume the sentence imposed was for the offense of rape, inasmuch as the court noted that the sentence was mandatory, and rape is the only one of the offenses committed by appellant wMch entails a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9718(a).

Accordingly, the judgment of sentence is vacated; the judgment of sentence on the charge of rape is arrested; and the case is remanded for resentencing on the remaining charges. Jurisdiction is relinquished.

      . D.... testified that she had sexual intercourse with appellant twice (N.T. at 13). It is not clear from her testimony when the second act of intercourse occurred, and a second incident is not at issue in this appeal.

      . In Commonwealth v. Mlinarich, 345 Pa.Super. 269, 498 A.2d 395 (1985), this Court, pre-Rhodes, held that "the legislature intended the term ‘forcible compulsion’ to mean ‘physical compulsion or violence’.” Id., 345 Pa.Superior Ct. at 272, 498 A.2d at 396. Accordingly, the Court reversed appellant’s conviction of rape after finding that his threats to return the fourteen-year-old victim to a juvenile detention home did not constitute forcible compulsion.
      The Supreme Court in Rhodes noted that the phrase "forcible compulsion" has a broader meaning in common usage than the limited definition adopted in Mlinarich and other cases. 510 Pa. at 553 & n. 12, 510 A.2d at 1225 & n. 12. However, when Mlinarich itself reached the Supreme Court, subsequent to Rhodes, this Court’s opinion was affirmed by an equally divided court. Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988). In the Opinion in Support of Affirmance, Chief Justice Nix, citing the Court's opinion in Rhodes, acknowledged that psychological coercion could be so intense as to overpower a victim’s will to resist, but he concluded that that had not happened in the case at bar. Id., 518 Pa. at 260-61, 542 A.2d at 1342. Instead, the victim had made a deliberate choice to submit to Mlinarich’s demands rather than risk being returned to the detention home. Id., 518 Pa. at 258-59, 542 A.2d at 1341.
      In a strongly worded Opinion in Support of Reversal, Justice Larsen asserted that "Rhodes is the law of this Commonwealth, and is unquestionably dispositive in this case; Rhodes compels the conclusion that Mlinarich engaged in sexual intercourse with the child victim without her consent and by forcible compulsion or its threat." 518 Pa. at 274, 542 A.2d at 1349. This Court, after considering the effect of the Supreme Court’s holdings in Rhodes and in Mlinarich, has also concluded that Rhodes remains the law of the Commonwealth. Commonwealth v. Dorman, 377 Pa.Super. 419, 427-29, 547 A.2d 757, 761 (1988); Commonwealth v. Thek, 376 Pa.Super. 390, 392 n. 1, 546 A.2d 83, 85 n. 1 (1988). Accordingly, we apply Rhodes in the present case.

      . At sentencing the assistant district attorney described D....as "mentally retarded" (Sentencing Transcript at 4). However, no evidence was offered at trial regarding D....’s educational history, and the court, with the Commonwealth’s consent, sustained appellant’s demurrer to, inter alia, count four of the information, which charged appellant with engaging in sexual intercourse with one who was "so mentally deranged or deficient [as to be] incapable of consent” [18 Pa.C.S. § 3121(4)]. Appellant did not demur to count fourteen, which charged him with indecent assault pursuant to 18 Pa.C.S. § 3126(2), “know[ing] that the other person suffers from a mental disease or defect which renders ... her incapable of appraising the nature of ... her conduct.”


source: Caselaw Access Project

author: MONTEMURO, Judge: KELLY, Judge,

license: Public Domain

text:
    556 A.2d 431
    George D’ANGELIS, Jr. and Andrea J. D’Angelis, Co-Administrators of the Estate of George D’Angelis, III, Deceased Appellants, v. Alan S. ZAKUTO, M.D. and Bensalem Pediatric Associates, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1988.
    Filed March 29, 1989.

      Donald E. Matusow, Philadelphia, for appellants.
    Thomas W. Smith, Philadelphia, for appellees.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment entered pursuant to a jury determination that appellants’ decedent was not the victim of appellee’s medical malpractice.

On Dec. 5, 1981, appellants brought their twenty-six month old son, Georgie, to appellee for examination. The child had been febrile for several days; he was coughing up mucus, his nose was running, the gland on one side of his neck was swollen, and he was suffering from diarrhea. The diagnosis was purulent rhinitis, and an upper respiratory infection, for which appellant prescribed erythromycin, a broad spectrum antibiotic, and Dimetapp, a cough syrup. On Dec. 19, appellants telephoned appellant’s office to report the persistence of their son’s cough. Appellee was not available, and one of his associates prescribed a stronger cough medication. On Dec. 25, Georgie’s fever, which had abated, reappeared, and he was again brought in for examination. The chart entry for this visit indicates that the child’s temperature was 104 degrees, the glands on both sides of his neck were swollen, his throat was red, and his chest was congested with rhonchi. Appellee treated these symptoms with a change of both antibiotic and cough syrup, this time prescribing oral penicillin and Ambenyl.

Since Georgie’s fever had subsided, appellants decided that despite the persistence of his cough, he could be left with his aunt on New Year’s Eve. Georgie slept during most of the night, awakening only when his aunt roused him to administer medication, and to move him to another room. The next morning, however, the child went into cardiopulmonary arrest. Despite efforts at resuscitation, Georgie died at 2:80 that afternoon.

Post mortem examination, without specifying cause of death, revealed that Georgie had suffered from acute and chronic pneumonia of the left lung. No culture was obtained, and no etiology for the pneumonia was given.

Appellants filed the instant suit, alleging medical incompetence on appellee’s part for having failed adequately to examine, test, diagnose and monitor the baby’s illness. At trial, the deposition testimony of the pathologist who had performed the autopsy, Dr. Jane Chatten, revealed that based on her microscopic examination of the lung tissue, the pneumonia had been in existence many days and probably at least a week. Appellants’ pediatric expert, Dr. William Bason, opined that the pneumonia had been present from the time of the Dec. 5 visit, and could have been detected by any one of a number of tests. More specifically, he noted that given the results of the autopsy, an X-ray would certainly have demonstrated the presence of pneumonia on Dec. 25. The post mortem absence of a specific pathogen was explained by the effects of the antibiotics administered. Both doctors attributed the infant’s death to the pneumonia.

Neither of appellee’s experts. Drs. Caroline Hall and Gerald Fendrick, were able to isolate cause of death, both testifying that the degree of pneumonia was insufficient to bring on cardiopulmonary arrest. Although both physicians agreed that pneumonia might be present despite the absence of rales, Dr. Hall testified that she believed appellee to have considered pneumonia as a possible diagnosis, but that the lack of signs justified his discarding it to explain the illness. Appellee indicated his view that the child had not presented symptoms serious enough to warrant testing, and that despite the persistence of the cough the two visits to his office represented two episodes of unrelated disease. Dr. Fendrick, in supporting this assessment posited viral infection as responsible for the cough. Despite his testimony that antibiotics were not useful in combating viral illnesses, it was stated that the two courses of treatment prescribed did operate to decrease the child’s fever, and that because of the course of Georgie’s illness, there was nothing further appellee could or should have done. Despite the autopsy findings, Dr. Fendrick, disagreed that the child had pneumonia on Dec. 25, reasoning that the boy was not sick enough. Both appellee’s experts suggested that testing, inclusive of radiography, would have revealed nothing, and would not have resulted in treatment any different than that prescribed. The jury found that appellee had not been negligent.

Appellants have presented us with three issues, which we will address seriatim.

It is first argued that the trial court erred in its charge on the “two schools of thought doctrine.” Appellants do not contend that the charge should not have been given, but that its presentation was unclear, and failed to conform to Pennsylvania law.

The doctrine referred to has a secure place in our jurisprudence. See Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935); Remley v. Plummer, 79 Pa.Super. 117 (1922). It directs that “a lay jury is not to be put in a position of choosing one respected body of medical opinion over another, when each has a reasonable following among the members of the medical community.” Trent v. Trotman, 352 Pa.Super. 490, 496, 508 A.2d 580, 584 (1986). See also, Brannan v. Lankenau, 490 Pa. 588, 417 A.2d 196 (1980). The charge complained of was as follows:

A physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought. Even though the school that he follows is a minority one, he will not be deemed to be negligent or practicing improperly so long as it is reputable and respected by reasonable medical experts.

No further explanation of this doctrine was offered.

Counsel objected to the instruction on grounds that it may have led the jury to believe in the acceptability of a particular practice so long as that practice was condoned by any reasonable medical expert.

In a case presenting striking similarities to the one before us, this court has recently expounded on the limitations of the two schools of thought doctrine. In Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180 (1988), appellant’s decedent died as a result of undiagnosed unstable angina. An overweight man with a history of hypertension, Mr. Morganstein had visited his physician complaining of pain in his left armpit and arm. An EKG was taken, along with a routine history, and nitroglycerine was prescribed pursuant to a diagnosis of presumptive coronary artery disease. No hospitalization or further testing was ordered. Several days later, having in the interim reported to Dr. House another, albeit brief, recurrence of the pain, Mr. Morgan-stein collapsed and died.

Predictably, the experts called at trial disagreed over the significance of the EKG readings and the symptoms presented. After the two schools of thought charge was given to the jury, counsel objected on grounds that it was inappropriate and misleading, giving the jury the impression that any expert validation of a particular course of treatment negates a malpractice verdict. We agreed.

The basis for our agreement was found in Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939). There our supreme court noted that “where medical experts in a case agree as to the recognized and established proper treatment for a particular type injury but there is a dispute as to whether the plaintiff had that type of injury, the latter question is one of fact for the jury.” Morganstein, supra, 377 Pa.Super. at 518, 547 A.2d at 1183. This purpose, consistent with the spirit of the two schools doctrine, is to remove from the jury’s discretion those matters requiring medical expertise, and on which medical experts disagree among themselves, and to limit jury deliberations to matters in which

the symptoms of a disease or the effects of an injury are so well known that a reasonably competent and skillful physician or surgeon ought to be able to diagnose the disease or injury, his negligence in failing to do so is likewise a matter of fact on which a jury of laymen may pass judgement.

Id. quoting Remley v. Plummer, supra, at 122.

The appellant in Morganstein argued that the question to be decided by the jury was whether the treating physician should have identified the symptoms of an unstable angina, realizing the need for hospitalization and further treatment. The issue was therefore not the propriety of the specific treatment actually ordered, since both sides agreed on the usefulness of nytroglycerine under certain circumstances. Rather the jury was to determine if negligence was apparent from the physician’s failure to recognize a disease whose existence is a matter of public knowledge.

Even as chest and arm pains are commonly believed to presage a heart condition of some kind in patients such as the overweight man in Morganstein, symptoms such as Georgie’s are sufficiently familiar to conjure in the minds of laymen the possibility of pneumonia. Therefore, the question to be posed to the jury was whether Dr. Zakuto should have identified Georgie’s condition as pneumonia and hospitalized him for treatment, or, at least ordered testing, specifically a chest X-ray. The experts agreed that treatment for the disease, antibiotics and cough medication, would not necessarily have been different, except perhaps in dosage, had a proper diagnosis been made. To deliver the two schools of thought instruction without elaboration under these circumstances was error.

This lack of explanation also becomes important with regard to the general principle argued by appellee that the charge may only be considered in its entirety, that a single erroneous or misleading instruction does not justify a new trial. See Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). Despite appellee’s argument to the contrary, it was in fact possible that the jury found no liability on appellee’s part merely because two experts concurred with his management of the case. See Morganstein, supra. As our supreme court has stated:

In determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instruction might have been responsible for the verdict, a new trial is mandatory: Reisberg v. Pittsburgh & Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962). (Emphasis supplied).

Jones v. Montefiore Hospital, 494 Pa. 410, 418-20, 431 A.2d 920, 925 (1981).

We therefore find that relief is warranted.

Appellants have presented us with two further issues. They contend that the trial court erred in failing to sustain an objection to defense counsel’s closing argument, which, it is alleged, misrepresented, and contradicted the evidence. Specifically, defense counsel referred to his experts’ reliance‘on certain medical data contained in Georgie’s death certificate, and in the deposition of the pathologist who performed the post mortem examination. Appellants claim that trial evidence demonstrates the experts’ lack of familiarity with these documents such that a new trial is warranted.

The grant of a new trial for improper remarks is within the discretion of the trial judge. Stevenson v. Pennsylvania Sports and Enterprise, Inc., 372 Pa. 157, 93 A.2d 236 (1952). Further, an appellate court’s “review of the grant of a new trial is limited to cases of gross abuse of discretion by the trial judge or the application of erroneous rules of law by the trial court.” Atene v. Lawrence, 456 Pa. 541, 545, 318 A.2d 695, 697 (1974). (Emphasis added).

Harvey v. Hassinger, 315 Pa.Super. 97, 106, 461 A.2d 814, 819 (1983).

Herein, the standard for reversal has not been reached. The ignorance of which appellants complain the defense experts are guilty is belied by the record. In the case of one expert a reference to the content of the deposition testimony indicates knowledge of the document’s contents, and in the other, direct testimony that he had reviewed the transcript, albeit somewhat undercut later on, provides the same demonstration. Insofar as the death certificate is concerned, appellants assume that because there is no reference to it, defense experts were unaware of its contents. The only pieces of information contained on the certificate which might be considered medically critical are the following; Immediate cause of death is given as “Cardiopulmonary arrest” as the consequence of “pneumonia”. The interval between onset and death is listed as “days.” None of these items is revelatory since the same information is included in the autopsy report, and there is no dispute as to the experts’ examination of the post mortem findings. As a result, even assuming that the experts were unaware of the death certificate per se, they were aware of its contents, and a reference to it by defense counsel, if error, is de minimis. In neither of the instances cited by appellants can the trial court’s decision be termed a gross abuse of discretion.

Appellants’ final claim is that a new trial should have been forthcoming because the evidence was against the weight of the evidence. The standard for determining the propriety of a trial judge’s decision in refusing to grant a new trial on this basis is much the same as the narrow standard to be applied where it is claimed that improper remarks have been made.

[T]he grant or denial of a new trial will not be reversed on appeal absent either an error of law which controlled the outcome of the case, Anzelone v. Jesperson, 436 Pa. 28, 30, 258 A.2d 510, 510 (1969); Allison v. Smiling & Snelling, Inc., 425 Pa. 519, 521, 229 A.2d 861, 862 (1967), or a palpable abuse of discretion where the ruling turns on the weight of the evidence. Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 367-68, 263 A.2d 432, 436 (1970).

Martin v. Johns-Manville Corp., 508 Pa. 154, 163, 494 A.2d 1088, 1093 (1985), on remand 349 Pa.Super. 46, 502 A.2d 1264, appeal granted 510 Pa. 574, 510 A.2d 1389, rev’d., 515 Pa. 377, 528 A.2d 947.

We have already determined that the jury’s view of the evidence may have been affected by the erroneous charge on the two schools of thought doctrine. Because it is possible that the court’s reading of the evidence was correspondingly affected by this same reasoning, and because relief has already been granted, we decline to address the weight question.

Reversed and remanded for a new trial. Jurisdiction is relinquished.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

While I agree with the majority’s disposition as to appellant’s first argument, I do so for different reasons. Both in the trial court and on appeal, appellants contend that the trial court’s instruction, as given, on the “two schools of thought” doctrine was incorrect because it did not accurately state the law in Pennsylvania. Appellant maintains the charge given did not limit the application of the “two schools of thought” doctrine to cases involving schools of thought followed by a considerable number of physicians. Remley v. Plummer, 79 Pa.Super. 117 (1922). Thus, appellant argues, instead of weighing the testimony of plaintiffs’ and defendants’ experts to determine whether Dr. Zakuto had met the required standard of care, the jury could well have believed they could not hold Dr. Zakuto negligent as long as he had produced “reasonable medical experts” to testify on his behalf. I agree.

Plaintiffs’ and defendants’ experts presented differing opinions concerning the standard of care required of Dr. Zakuto in this case. Consequently, the trial court charged the jury on the “two schools of thought” doctrine applicable in medical malpractice cases, stating as follows:

A physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought. Even though the school that he follows is a minority one, he will not be deemed to be negligent or practicing improperly so long as it is reputable and respected by reasonable medical experts.

(N.T. 7/_/86 at 681) (emphasis added).

The “two schools of thought” doctrine was first recognized in Remley v. Plummer, 79 Pa.Super. 117 (1922). In that case, the Superior Court stated:

[W]here competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed the course of treatment advocated by a considerable number of his professional brethren in good standing in his community.

79 Pa.Super. at 122 (emphases added). In Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935), our Supreme Court reaffirmed the “two schools of thought” doctrine and defined the doctrine In exactly the same terms as this Court did in Remley. See Duckworth v. Bennett, supra, 320 Pa. at 51, 181 A. at 559.

The key language in Remley and Duckworth is the phrase “advocated by a considerable number of his professional brethren.” This language defines and limits the scope of the “two schools of thought” doctrine as it is applied in Pennsylvania. The doctrine applies only to a school of thought advocated by “a considerable number” of reputable, and respected physicians. See Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980).

Instantly, the trial court charged that Dr. Zakuto could not be deemed negligent so long as his conduct conformed to a school of thought which was “reputable and respected by reasonable medical experts.” As such, the charge as given was insufficient because it failed to include the language “advocated by a considerable number of Ms professional brethren” and thus did not accurately reflect the law in Pennsylvania as it relates to the “two schools of thought” doctrine. As a result, the jury may very well have found Dr. Zakuto acted appropriately because his conduct was condoned at trial by defendants’ expert witnesses rather than weighing all the testimony to determine whether Dr. Zakuto had met the required standard of care. Therefore, I would reverse and remand for a new trial.


author: BECK, Judge:

text:
    556 A.2d 436
    Anne Marie VASKIE, Appellee, v. WEST AMERICAN INSURANCE COMPANY, Appellant. Anne Marie VASKIE, Appellant, v. WEST AMERICAN INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed March 29, 1989.

      Edward A. Monsky, Scranton, for West American Ins. Co.
    Gerald J. Butler, Scranton, for Anne Marie Vaskie.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   BECK, Judge:

This is an appeal from a grant of summary judgment in favor of plaintiff-appellee Anne Marie Vaskie in her breach of contract action against defendant-appellant West American Insurance Company.

On January 1, 1985, Ms. Vaskie was involved in an automobile accident with a vehicle owned and operated by persons who were insured by West American. Ms. Vaskie retained Harold Murnane, Esquire, to represent her in connection with obtaining recovery for the personal injuries she sustained as a result of this accident. At some point prior to December 1986 Mr. Murnane and West American began negotiations aimed at settling Ms. Vaskie’s claim. The parties’ correspondence reveals that as of November 1986, West American had offered $26,000. Apparently after continuing negotiations by telephone, on December 1, 1986 West American addressed a letter to Mr. Mumane which concluded by stating that West American had carefully reviewed Ms. Vaskie’s claim and that West American’s “offer will remain $25,000.” This letter did not specify a date on which the offer would terminate. On January 9, 1987, Mr. Murnane sent a mailgram to West American in which he, on behalf of Ms. Vaskie, unconditionally accepted West American’s $25,000 offer.

West American refused to pay, arguing that there was no contract between the parties because the statute of limitations on Ms. Vaskie’s personal injury claim had run on January 1, 1987, eight days before she accepted West American’s offer.

Ms. Vaskie then instituted this suit for breach of the alleged settlement agreement. Both parties filed motions for summary judgment. The trial court granted Ms. Vaskie’s motion, awarding her $25,000, and denied West American’s motion.

West American appealed, arguing alternatively that either judgment should have been entered in its favor or that at a minimum factual disputes requiring resolution by a jury should have prevented the entry of summary judgment for Ms. Vaskie. Ms. Vaskie cross-appealed solely on the ground that the trial court erred in failing to award her pre-judgment interest and costs.

On review of a grant of summary judgment, we must remain mindful that summary judgment is appropriate only where, viewing all the facts in the light most favorable to the non-moving party and resolving all doubts as to the existence of issues of material fact against the moving party, the moving party is nevertheless entitled to judgment as a matter of law. Mariscotti v. Tinari, 335 Pa.Super. 599, 485 A.2d 56 (1984).

The central question to be decided is whether the parties entered into an enforceable contract for the payment of $25,000 to Ms. Vaskie in exchange for her relinquishment of her claim for damages for personal injuries. On their face, the facts reveal just such an agreement. West American made a written unconditional offer to pay $25,000 to settle Ms. Vaskie’s claim and Ms. Vaskie responded with a written unconditional acceptance, thereby indicating her willingness to accept $25,000 in exchange for her surrender of her claim and forbearance from suing thereon.

However, West American offers several possible impediments to enforcing this apparent agreement. First, West American argues that no agreement was formed by Ms. Vaskie’s acceptance because the offer had lapsed as a matter of law when the statute of limitations on personal injury claims, i.e. two years, had expired. As a variation on this theme, West American argues that there is at least a factual issue as to whether the offer had lapsed by the time of Ms. Vaskie’s acceptance. Since the offer itself did not specify an expiration date, West American argues that the offer is legally deemed to expire within a reasonable time and what is a reasonable time is a factual question. Finally, West American argues that even if there was a valid offer and acceptance, there is a factual question as to whether Ms. Yaskie actually forbore suit in response to West American’s outstanding offer and, therefore, whether any resulting agreement was supported by consideration. West American contends that Ms. Yaskie had actually rejected West American’s offer by counter-demanding $85,000 and forbore suit while attempting to achieve a settlement for this higher amount.

There is no doubt on this record that West American made an offer of $25,000 to settle Ms. Vaskie’s claim in a letter dated December 1, 1986. There is also no doubt that this offer did not contain any express expiration date. Moreover, there were no further oral or written communications between the parties in which any expiration date was set, nor was the offer ever withdrawn. Under such circumstances, i.e. where an offer does not specify an expiration date or otherwise limit the allowable time for acceptance, it is both hornbook law and well established in Pennsylvania that the offer is deemed to be outstanding for a reasonable period of time. Textron, Inc. v. Froelich, 223 Pa.Super. 506, 302 A.2d 426 (1973); Boyd v. Merchants and Farmers Peanut Co., 25 Pa.Super. 199 (1904); Murray, Murray on Contracts 60-1 (2d ed. 1974); Restatement (Second) Contracts § 41 (1981). What is a reasonable time is ordinarily a question of fact to be decided by the jury and is dependent upon the numerous circumstances surrounding the transaction. Textron, supra; Boyd, supra; Murray on Contracts, at 61; Restatement, § 41 comment b. Such circumstances as the nature of the contract, the relationship or situation of the parties and their course of dealing, and usages of the particular business are all relevant. Id.

However, there are situations where the question of what is a reasonable time for acceptance may be decided by the court as a matter of law. As stated in Boyd, supra:

What is a reasonable time for acceptance is a question of law for the court in such commercial transactions as happen in the same way, day after day, and present the question upon the same data in continually recurring instances; and where the time taken is so clearly reasonable or unreasonable that there can be no question of doubt as to the proper answer to the question. Where the answer to the question is one dependent on many different circumstances, which do not continually recur in other cases of like character, and with respect to which no certain rule of law could be laid down, the question is one of fact for the jury.

Boyd, 25 Pa.Super. at 205.

The trial court in the instant matter decided that this was a case where the issue of reasonableness could be decided as a matter of law and found that Ms. Vaskie’s acceptance on January 9, 1988 was tendered within a reasonable time.

We reject West American’s contention that its offer of December 1, 1986 lapsed as a matter of law two years after Ms. Vaskie suffered her injuries. However, we do agree with West American insofar as it argues that the trial court erred in deciding as a matter of law that Ms. Vaskie’s acceptance was tendered within a reasonable time. We find that under the circumstances of this case, the question of reasonableness is a disputed material issue of fact that should not have been resolved as a matter of law on summary judgment.

There is no merit in the argument that offers of settlement of personal injury claims automatically terminate two years after the injuries were sustained. West American has offered no precedent that so holds, we have located none and the reasons for the dirth of authority supporting such an argument are clear. First, the argument is based on the incorrect assumption that in every personal injury case the statute of limitations will run precisely two years from the date of the accident. In fact, the statute may be tolled due to the inability of the plaintiff to discover his or her injuries or their cause, Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 86, 468 A.2d 468, 471 (1983), or due to fraud or concealment of material information by the defendant. Molineux v. Reed, 516 Pa. 398, 532 A.2d 792, 794 (1987). Thus, in each particular case the date on which the statute would be deemed to have run may vary. Given this variation, we cannot fashion a rule that creates an implied-in-law termination date, fixed on the expiration of the statute of limitations, in all settlement offers. To do so would leave the plaintiff-offeree in the untenable position of having to predict and, for purposes of settlement negotiations, accept the defendant-offeror’s view of when the statute should be deemed to have run.

Moreover, to hold that every such offer contains an implied-in-law termination date would be to dictate a term of such offers which the parties themselves can and should decide upon. If an offering defendant wishes to limit the duration of his offer to a certain time, whether a date two years from the accident or otherwise, he need only so state in the offer itself. He is the master of Ms offer. There is no need for us to provide such a term where, as here, the defendant has not done so.

This is not to say, however, that the passing of the statute of limitations is irrelevant to a determination of whether an offer of settlement of a personal injury claim has been accepted within a reasonable time. The reasonableness of the time an offeree takes to accept an offer is measured from the perspective of the offeree. As the explanatory comment to the pertinent section of the Restatement (Second) of Contracts states:

In general, the question is what time would be thought satisfactory to the offeror by a reasonable man in the position of the offeree....

Restatement (Second) of Contracts, § 41 comment b (1981).

The fact that the statute of limitations may already have run by the time Ms. Vaskie accepted is unquestionably relevant to a determination of the reasonableness of her conduct in waiting until January 9,1987 to accept. Further, this is only one of many circumstances surrounding the parties’ negotiations and the status of Ms. Vaskie’s claim that may be relevant to a determination of reasonableness. This is certainly not a case such as that described above in Boyd where the reasonableness question can be decided as a matter of law. It is not a commercial transaction continually occurring in like manner day after day. The course and nature of settlement negotiations varies greatly from case to case. This is very unlike the situation of a merchant who offers goods for sale on a daily basis at a price that changes daily, where it is clear beyond cavil that an offer made at one day’s price is not intended to continue to the next day. In settlement negotiations the reasonable duration of an offer is not fixed at a particular time because of clear and uniform courses of dealing and usages of the trade that invariably arise from the very nature of the transaction.

Thus, we conclude that the trial court erred in holding that Ms. Vaskie’s January 9th acceptance was tendered within a time that was reasonable as a matter of law. Therefore, the entry of summary judgment in Ms. Vaskie’s favor was in error on this ground.

West American also contends that a factual dispute arises as to whether Ms. Vaskie actually forbore filing suit as a result of West American’s offer. The dispute allegedly arises from two affidavits filed in connection with the parties’ summary judgment motions. West American first filed for summary judgment via a motion and supporting brief. No affidavits were attached to this motion. Ms. Vaskie responded by filing her own motion for summary judgment, with an affidavit of her prior counsel, Mr. Murnane. This affidavit was later supplemented with a one-paragraph addendum in which Mr. Murnane stated that

As a result of the receipt of the letter of December 1, 1986, the Plaintiff, Ann Marie Vaskie, by and through Harold B. Murnane, III, forbore pursuit of filing a personal injury suit on or before January 1, 1987, since the Plaintiff had elected to accept the offer of the Defendant, West American.

This supplement was filed on May 3, 1988. The record contains no response by West American. On June 7, 1988, the court granted Ms. Vaskie’s motion. On July 1, 1988, West American filed a motion for reconsideration to which was attached an affidavit of the West American claims agent who had handled the negotiations regarding Ms. Vaskie’s claim. In this affidavit, the agent states that Ms. Vaskie did not forbear filing suit as a result of West American’s outstanding $25,000 offer because Ms. Vaskie’s counsel had demanded $85,000 during a phone conversation with the agent on the same day that the written $25,000 offer was mailed, is. December 1,1986. Thus, West American argues, Ms. Yaskie did not forbear suit because of her reliance on West American’s offer but rather forbore because she was attempting to obtain $85,000, and in fact had rejected the $25,000 offer.

This alleged factual dispute was raised by West American at too late a point to warrant our consideration. If West American wished to raise the argument that there was no consideration supporting the alleged agreement because Ms. Yaskie did not forbear in reliance on West American’s offer, but rather had rejected that offer because she wished to hold out for more money, it could and should have done so in response to Ms. Vaskie’s motion and the supplemental affidavit. See Pa.R.C.P. 1085(d). We also note that there is no mention in any of West American’s pleadings of such an alleged rejection, nor does this argument appear in West American’s own Motion for Summary Judgment.

The judgment is reversed. Jurisdiction is relinquished.

      . In addition to the two major arguments dealt with in text, West American also argues that the trial court erred in refusing to hold that Ms. Vaskie’s action was barred by the two year statute of limitations applicable to personal injury claims, 42 Pa.Cons.Stat.Ann. § 5524(2) (1982), in granting Ms. Vaskie’s motion for summary judgment solely in reliance on the affidavit of Ms. Vaskie’s prior counsel which was attached thereto, and in failing to find that the alleged agreement was not supported by consideration because forfeiture of a claim barred by the statute of limitations is not consideration for a compromise agreement.
      We reject these arguments without extensive discussion. As to the first, Ms. Vaskie’s present action is a contract action and is not governed by the two year statute of limitations found in 42 Pa.Cons. Stat.Ann. § 5524(2). As to the second and third arguments, we find that they have been waived. The argument concerning the trial court’s reliance on Mr. Murnane’s affidavit was never presented in the court below, despite ample opportunity for West American to do so. Pa.R.A.P. 302. The argument concerning lack of consideration based on the fact that Ms. Vaskie’s claim was allegedly barred by the statute of limitations when she accepted West American’s offer is not presented in West American’s Statement of Questions Involved in its brief to this court. Pa.R.A.P. 2116(a).

      . This resolution obviates the need for us to consider Ms. Vaskie’s cross-appeal in which she requests remand for the addition of prejudgment interest and costs to the §25,000 judgment the trial court entered in her favor. Resolution of this question must abide the determination on remand of whether judgment should again be entered for Ms. Vaskie after all material factual issues are resolved.


text:
    556 A.2d 441
    William LOUGH and Margaret Lough, Appellants, v. Kathryn SPRING, Appellee. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed March 31, 1989.

      Philip M. Kruger, Fort Washington, for appellants.
    Jeffery P. Lewis, West Chester, for appellee.

      Before ROWLEY, WIEAND, and BECK, JJ.
   BECK, Judge:

Appellants, William and Margaret Lough, appeal from an order quashing their appeal from a compulsory arbitration award to the court of common pleas and refusing to allow the filing of the appeal nunc pro tunc.

The issues before the court are (1) whether a motion to strike a compulsory arbitration award can be deemed to initiate an appeal for a trial de novo in the court of common pleas; and (2) whether a stay of an arbitration award by the court of common pleas will extend the time for filing an appeal from the award.

We conclude that appellants’ motion to strike was not in compliance with the rules governing an appeal from a compulsory arbitration award and that the Court of Common Pleas could not properly stay the running of the appeal period. In light of these conclusions, we rule that appellants failed to file a timely appeal from the award and affirm the orders of the trial court quashing the appeal and denying the petition for an appeal nunc pro tunc.

Appellants brought an action in trespass against appellee, Kathryn Spring, as a result of an automobile collision between the parties. The dispute was subject to compulsory arbitration. On December 27,1984, the arbitration panel found each party fifty percent negligent and gave appellants no award. On December 28, 1984, an award in the amount of no dollars was docketed.

On January 7, 1985, appellants filed with the court of common pleas a motion to strike the arbitration award. The intent of appellants’ motion was to have a new arbitration panel hear the case. On January 10, 1985, the court entered a rule to show cause why the motion to strike should not be granted. As part of that rale, the court ordered all proceedings stayed, including the time for appeal. On March 8, 1985, the motion to strike was denied and the stay dissolved as the court of common pleas con-eluded that an appeal for a trial de novo before the court of common pleas was the sole remedy available to challenge an arbitration award.

On April 8, 1985, appellants filed an appeal for a trial de novo from the award of the arbitration panel. The appeal was quashed as untimely. The court of common pleas ruled that the first ten days of the thirty day appeal period ran from the date of the arbitration decision until the day appellants filed their motion to strike, that the stay had the effect of excluding from the appeal period all the time after the filing of the motion to strike up to the time of the dissolution of the stay, and that the appeal period renewed after the dissolution of the stay. Thus, the court of common pleas found that appellants’ appeal of April 8th was filed twenty nine days after the dissolution of the stay and thirty nine days after the beginning of the period for appeal.

Motion to strike

Appellants first assert that their appeal from the decision of the arbitration panel is not untimely because they filed a motion to strike the arbitration award within ten days of that decision. Appellants argue that the motion to strike should be considered to have initiated the appeal process because it represents only a technical noncompliance with the rules of procedure, appellee would not be prejudiced, appellants acted in good faith in filing the motion and the interests of justice would be best served by allowing the appeal to go forward. We disagree;

The procedure for taking an appeal from a compulsory arbitration award is clear. A party to a compulsory arbitration may take an appeal from the award by seeking a trial de novo in the Court of Common Pleas. 42 Pa.Cons. Stat.Ann. § 7361(d). Rule of Civil Procedure 1308(a) provides that an appeal from an arbitration award must be taken “not later than thirty days after the entry of the award on the docket....” The Explanatory Note to Pa.R.C.P. 1307 states:

These Rules contemplate that the board will disperse after rendering the award, not to reconvene and not to hear any motions or applications to amend modify or change the award. If any party is dissatisfied with any aspect of the award, the sole remedy is an appeal for a trial de novo, (emphasis added)

The rules provide only one exception to this procedure. Subsection (d) of Rule 1307 provides that the court of common pleas may mold an award where the record discloses obvious errors in either the mathematics or language of the award. The court’s power to mold is specifically limited to correction of such patent errors and is the same as the power of a trial court to mold a jury verdict. Pa.R.C.P. 1307(d). The rule is aimed at the corrections of formal errors that do not go to the substance and merits of the award. Albert v. Denito, 336 Pa.Super. 284, 485 A.2d 806 (1984).

It is clear that appellants’ motion to strike was not in compliance with established procedures for seeking relief from a compulsory arbitration award. Appellants’ motion was neither an appeal for a trial de novo nor an application to mold for correction of a patent mathematical or linguistic error.

Appellants argue, however, that this court has previously held that technical non-prejudicial errors in taking an arbitration appeal that do not affect substantial rights will not bar an appeal from the award, so long as there has been substantial compliance with the appeal requirements. Briga v. Ken-Tuck Signs, Inc., 279 Pa.Super. 537, 421 A.2d 329 (1980); Pullium v. Laurel School District, 316 Pa.Super. 339, 462 A.2d 1380 (1983). These cases reflect the sentiment of Pa.R.C.P. 126 that calls for a liberal construction and application of the rules of civil procedure and provides “[t]hat the court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

Thus, this court would not quash an arbitration appeal where a party failed to follow local rules and attach a superfluous copy of the original complaint when filing the appeal, Briga v. Ken-Tuck Signs, Inc., supra; where the errors on appeal amounted to typographical mistakes in the filing, Menarde v. Southeastern Pennsylvania Transportation Authority, 224 Pa.Super. 536, 309 A.2d 160 (1973) (court noted interests of justice); and where there was only an error in the amount paid as a filing fee, Pullium v. Laurel School District, supra.

In the present action, appellants filed a motion to strike the award of the arbitration panel for the purpose of seeking a new arbitration award from a different panel of arbitrators. Only when the motion was denied did they seek a de novo review of the award in the Court of Common Pleas as required by statute and rule. This procedure is not in substantial compliance with proper procedure and represents much more of a deviation therefrom than is found in the cases noted above where relief from that procedure has been granted. Appellants’ motion to strike was an attempt to secure a second arbitration of the same matter, thereby avoiding the necessity of a trial de novo in the court of common pleas. Thus, appellants elected an impermissible procedural means to reach an improper end.

We find that appellants’ motion to strike was not simply a technical error or a minor procedural deviation coupled with otherwise substantial compliance with the rules of civil procedure. Therefore, we will refuse to overlook this procedural error and we hold that appellants’ filing of a motion to strike the arbitrators’ award did not constitute substantial compliance with the procedures applicable to the filing of an appeal from such an award.

Stay of appeal period

Appellants second claim is that the filing of an appeal for a trial de novo twenty-nine days after the dissolution of the court order staying the appeal period constituted a timely filing under the thirty day requirement of Pa.R.C.P. 1808(a). We are thus presented with the issues of whether the court of common pleas could stay the period for filing a de novo appeal to that court and whether the dissolution of that stay could start the appeal period running anew. Since we determine that the court of common pleas does not have the power to stay the appeal period while the court considers a motion to strike the award, we necessarily conclude that the dissolution of such a stay does not start the appeal period running anew or, indeed, affect it in any way.

The timeliness of an appeal, whether it is to an appellate court or is for a d@ novo trial in the court of common pleas, is a jurisdictional matter. Thus, the court of common pleas does not have jurisdiction to hear an arbitration appeal for a trial de novo unless that appeal is timely filed. See Gallardy v. Ashcraft, 288 Pa.Super. 87, 430 A.2d 1201 (1981); Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 208 (1981).

As timeliness is a jurisdictional matter, the court to which the appeal is taken may not enlarge the time for taking an appeal. In the context of appeals to appellate courts, this limitation is specifically provided in Pennsylvania Rule of Appellate Procedure 105(b). In the same vein, time limitations for filing appeals are strictly construed, Commonwealth v. Hoskins, 329 Pa.Super. 226, 478 A.2d 45 (1984), and “the time for taking an appeal cannot be extended as a matter of mere indulgence.” In re In the Interest of C.K., 369 Pa.Super. 445, 448, 535 A.2d 634, 636 (1987). Thus, this court has held that:

once a final order or judgment is entered, an appeal must be filed within thirty days or, the trial court must expressly grant reconsideration within thirty days. If either of these two events do not occur, the judgment is final and except for “extraordinary cause” is not subject to collateral attack by virtue of a petition to open or strike.

Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987) (en banc), appeal denied 518 Pa. 626, 541 A.2d 1138 (1988); see also Note, Pa.R.A.P. 1701 (once appeal has been taken only a grant of reconsideration will affect the appeal period; an order staying all proceedings has no tolling effect).

In the context of an appeal from an arbitration award, the rules of procedure are equally clear. As stated above, upon the rendering of the award, the panel of arbitrators must disperse and they have no authority to reconsider or modify the award. See Explanatory Note, Pa.R.C.P. 1307. Unlike in the case of a trial court which can halt the running of an appeal period by expressly granting reconsideration of its order within the thirty day appeal period, or can thereafter entertain a petition to open or strike for extraordinary cause, a board of arbitrators has no power over its own award once the award is entered. Only the court of common pleas can then act on the award and its powers are clearly limited by the rules of civil procedure. As is outlined above, the court of common pleas can act in two ways. First, it can conduct a trial de novo upon the filing of a timely appeal. Second, it can act pursuant to Rule 1307(d), which allows the court of common pleas to entertain an application to mold the award to correct an “obvious and unambiguous error in the award in mathematics or language ...” Pa.R.C.P. 1807(d). Importantly, it is only in the context of an application to mold that the rules provide for a stay of the appeal period. Rule 1807(d) specifically provides that the filing of an application to mold will “stay all proceedings including the running of the thirty day period for appeal until disposition of the application by the court.” The rules do not otherwise grant the court of common pleas any power to hold the appeal period in abeyance.

We can only conclude, therefore, that the powers of the court of common pleas as to arbitration awards and appeals therefrom are strictly limited to either conducting a de novo trial of the matter upon the filing of a timely appeal, or to entertaining an application to mold, which automatically stays the appeal period. We find no authority in the court of common pleas otherwise to stay the running of the appeal period and, therefore, enlarge its own jurisdiction to act on an arbitration award.

In light of this conclusion, we find that the stay entered by the Court of Common Pleas had no effect on the time for filing an appeal. Therefore, appellants’ filing of an appeal for a trial de novo on April 8, 1985 exceeded the thirty day appeal period that began with the arbitration award of December 28, 1984. As we find that the stay had no effect, we need not address the issue of what effect the stay would have had on the calculation of the appeal period.

Nunc pro tunc appeal

Appellants finally assert that they should be allowed to appeal nunc pro tunc under the nonnegligent failure to file exception to the requirement of a timely filed appeal. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979); In re In the Interest of C.K., supra. We find no abuse of discretion in the court of common pleas’ refusal to grant appellants leave to file their appeal nunc pro tunc. Under the circumstances of this case, where appellants’ own act in avoiding the clear procedural requirements for seeking relief from an arbitration award was the initial cause of all their difficulties, and where even after the court of common pleas lifted its improper stay the appellants waited an additional month before filing their- appeal, there are no grounds for granting appellants the extraordinary relief provided for in Bass.

For all of the foregoing reasons, we affirm the orders of the Court of Common Pleas quashing the appeal as untimely and denying the petition for an appeal nunc pro tunc.

Orders affirmed.

      . The thirty day period for appeal prescribed in Rule 1308(a) is in accordance with the general thirty day time limitation on bringing an appeal as set forth in 42 Pa.Cons.Stat.Ann. § 5571(b). Explanatory Note, Pa.R.C.P. 1308.

      . In interpreting the rules of procedure in light of Rule 126, we also remain mindful of Pa.R.C.P. 127(b), which states "[w]hen the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Thus, although the rules are to be liberally construed, a party seeking redress cannot substantially deviate from the clear mandates of the rules for filing an appeal from an arbitration award.

      . Although appellants correctly cite Wilk v. Girard Bank, 342 Pa.Super. 488, 493 A.2d 695 (1985), as a case in which this court permitted a deviation from accepted procedures for appealing an arbitration award, that case involved circumstances readily distinguishable from those presented here. The Wilk opinion also underscores the proposition that there must be substantial compliance with appellate procedure and as stated therein cannot be read as “condoning general noncompliance with the rules of civil procedure governing compulsory arbitration." Id., 342 Pa.Superior Ct. at 494 n. 3, 493 A.2d at 698 n. 3.

      . Of course, we do not insinuate that the court of common pleas is without power to grant leave to file an appeal from an arbitration award nunc pro tunc, under appropriate circumstances. See, e.g., Gallardy v. Ashcraft, supra.


author: WIEAND, Judge: McEWEN, Judge,

text:
    556 A.2d 445
    COMMONWEALTH of Pennsylvania v. Gerald HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1989.
    Filed March 27, 1989.

      Chris R. Eyster, Assistant Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WIEAND, McEWEN and CERCONE, JJ.
   WIEAND, Judge:

Gerald Harris was tried by jury and was found guilty of robbery and criminal conspiracy as a result of an incident occurring September 8, 1987, on Smithfield Street, Pittsburgh, in which Harris and two other males allegedly accosted a pedestrian and removed eighteen ($18.00) dollars from his pocket. On direct appeal from the judgment of sentence, Harris argues that the trial court erroneously prevented jury argument regarding a prior inconsistent statement by a Commonwealth witness.

Mark Getz, an eyewitness to the incident, implicated Harris in the removal of money from the victim’s pockets. In rebuttal of this testimony, defense counsel called as a witness the attorney who had represented appellant at the preliminary hearing. She said that at the preliminary hearing Getz had testified that Harris “never touched the victim” and “was just standing there.” During closing argument to the jury, defense counsel argued, without objection, that Getz’s prior inconsistent testimony at the preliminary hearing was a factor to be considered in determining the credibility and weight of his testimony at trial. Later, defense counsel argued that if appellant had been merely standing there, as Getz testified at the preliminary hearing, then appellant was entitled to be acquitted. To this argument the trial court sustained an objection by the prosecution. The record reveals the following argument by defense counsel and objection by the attorney for the Commonwealth:

The inconsistencies of Mr. Getz show that there is doubt as to the position of the individuals and their involvement in this episode. And if Mr. Harris was just standing there, as Mr. Getz said at the Preliminary Hearing, then we would submit he is not a conspirator under the law, and that he is not guilty of robbery and conspiracy.
MRS. VINCLER: Your Honor, I’m sorry, I’m going to have to object at this point because I don't think it was ever established that Mr. Getz said the defendant was just standing there, even at the Preliminary Hearing.
THE COURT: I'll sustain the objection.

During the earlier argument, defense counsel relied upon Getz's prior statement to impeach the testimony which he had given at trial. During the later argument, defense counsel sought to use Getz's testimony at the preliminary hearing as substantive evidence. This was proper. In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the Supreme Court held that prior inconsistent statements of a non-party witness may be used as substantive evidence where the witness testifies at trial and is available for cross-examination. In the instant case, the prior testimony of Mark Getz had not only been given at a point closer in time to the event described, but it had been given under oath at a time when the witness had been subjected to cross-examination. Moreover, at trial he was cross-examined extensively about the testimony which he had given at the preliminary hearing. Under these circumstances, the testimony given by Getz at the preliminary hearing was admissible as substantive evidence and tended to show, if believed, that appellant had not participated in the robbery.

The prosecuting attorney objected on the grounds that there was no evidence that Getz had earlier testified that appellant “was just standing there.” This objection, however, was factually incorrect. Leslie Perlow, Esquire, who had represented appellant at the preliminary hearing, testified as follows:

Q. Do you remember a Mark Getz testifying?
A. Yes, I do.
Q. Do you remember the District Attorney asking him, “Do you recall which of the two men you saw going into his pocket?”
A. Yes, I do.
Q. Does this refresh your recollection of what was said by Mr. Getz, by the D.A., down here?
A. Yes, it does,
Q. And what was his response?
A. He also replied that it was the two taller gentlemen and not Mr. Harris.
Q. And does the transcript embody what he said?
A. Yes, it does. He said, “Yes, the two taller men.”
Q. Do you remember asking Mr. Getz a question, “At any time did you see this gentleman take anything?”
A. Yes, I do.
Q. And is that question embodied in this transcript?
A. Yes, it is.
Q. Do you remember what his response was?
A. He said that he was just standing there in the middle.
Q. Now, this gentleman that you mentioned in the question, who was that?
A. I was referring to my client, who was Mr. Harris.
Q. How did you refer to him?
A. I pointed to him, because throughout all the testimony we were discussing-~They were talking about the two taller gentlemen, and they pointed to Mr. Harris because we referred to Mm as the shorter, the shortest of the three.
Q. Do you remember asking Mr. Getz a question, “At any time did you see Mm touch the victim?”
A. Yes, I do.
Q. Do you remember what his response was?
A. He said that he was just standing there, that he didn’t do anything.
Q. And does this transcript reflect the words of Mr. Getz as said at the Preliminary Hearing?
A. Yes, it does.

This testimony by the witness regarding Getz’s prior testimony was repeated during cross-examination, when she was asked and confirmed that at the preliminary hearing Getz “had completely cleared [appellant] of any wrongdoing,” and had testified that “[appellant] never touched the victim.”

We are constrained to conclude, therefore, that the objection to defense counsel’s jury argument was not well taken and that the trial court’s ruling thereon was erroneous. The Commonwealth argues that the error was nevertheless harmless because defense counsel had previously argued Getz’s prior inconsistent testimony to the jury. We are unable to accept this argument. Defense counsel’s prior argument, to which no objection was offered, referred to Getz’s prior inconsistent statement for the purpose of impeaching the witness’s in-court testimony. The objection later made and sustained, however, precluded defense counsel from arguing that the jury could acquit appellant on the basis of the witness’s prior testimony that appellant had “just been standing there” and had not participated in the robbery. Because of this ruling by the trial court, appellant was deprived of the right to present to the jury a significant substantive argument.

Contrary to the Commonwealth’s argument, the erroneous ruling was not corrected during the trial court’s jury instructions. Indeed, the trial court compounded the error when it told the jury that the testimony of Leslie Perlow regarding Getz’s prior statement “may be considered by you for one purpose and one purpose alone, and that is to help you to judge the credibility and the weight of the testimony given by Mr. Getz as a witness in this trial.”

Because the trial court’s ruling on the Commonwealth’s objection to a defense jury argument was prejudicial error, a new trial must be granted.

Reversed and remanded for a new trial. Jurisdiction is not retained.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

The author of the majority view has, as usual, provided a careful analysis and so insightful an expression of view that I am hesitant to differ in the least. I am, nonetheless, compelled to state that, while I am satisfied to remand the case for a new trial, I do not agree that the unfounded objection by the prosecutor during the jury argument of defense counsel, as well as the ruling thereon, compose such error that appellant is entitled to a new trial. The assertion expressed by the prosecutor in the objection, and ruling thereon, reflect but a difference in the recollection of the evidence, a constant characteristic of the trial forum. It was, in short, a disagreement about the facts which, of course, the jury was, pursuant to its assigned role, required to resolve.

However, the instruction of the court that the prior statement of witness Getz was relevant only to the credibility and weight of the testimony of Mr. Getz, and not of substantive probative value, fell short of the Brady mandate that prior inconsistent statements of a non-party witness may be used as substantive evidence under the circumstances already noted by the majority. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). The trial judge is not to be faulted, of course, since it has not heretofore been established with certainty that the accused, as well as the prosecution, is entitled to the benefit of Brady. In any event, the jury could not, under the instruction presented, have been aware of the quite meaningful value to the cause of appellant of the inconsistent testimony. Since, without the testimony of the witness Getz, the evidence of the participation and guilt of appellant is not so overwhelming as to render the misinstruction harmless beyond a reasonable doubt, appellant is entitled to a new trial. See: Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).


author: DEL SOLE, Judge:

text:
    556 A.2d 448
    William Paul McNAMARA, Jr. by his Guardian, Mildred McNamara, and Mildred McNAMARA, in her Own Right, Appellant, v. SCHLEIFER AMBULANCE SERVICE, INC., a Pennsylvania Corporation and Braddock General Hospital, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1988.
    Filed March 31, 1989.
    Reargument Denied April 26, 1989.

      James D. Belliveau, Pittsburgh, for appellant.
    Maria Zulick, Philadelphia, for Schleifer Ambulance, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting a motion for summary judgment on the basis of statutory immunity. We reverse.

Appellant suffered a fractured skull when he jumped through rear doors of the moving ambulance that was transporting him from Braddock General Hospital to Wood-ville State Hospital. He had been seated in a rear seat of the vehicle with his seat belt fastened; another patient, restrained on a stretcher, and an ambulance attendant were also in the rear section of the vehicle. The attendant’s deposition testimony was that Appellant had unfastened his seat belt in order to make it possible for the attendant to re-position himself near the other patient who was experiencing some distress. Before the attendant was able to block his efforts, Appellant slid along the side bench seat, unlocked the rear doors and jumped from the ambulance. Appellant was being transferred to Woodville for court-ordered involuntary treatment pursuant to The Mental Health Procedures Act (MHPA), 50 Pa. S.A. § 7304. Section 7804 provides that application for such court-ordered treatment may be made for a person who is severely mentally disabled and in need of treatment. In order to be subject to treatment under this section, a determination must be made that the patient presents a clear and present danger , of serious bodily harm to others, inability to care for himself, creating a danger of death or serious harm to himself, attempted suicide, or self-mutilation.

Appellee/Ambulance Service filed a motion for summary judgment which was granted on the basis of immunity from liability under § 7114 of the MHPA. Appellee argues that the trial court properly granted the motion for summary judgment because one of the conditions which makes it possible to obtain immunity (participating in the decision to reduce the restraints on the person being treated under the MHPA) was satisfied in the present factual setting. Section 7114(a) of the MHPA states:

In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.

Appellee contends that the ambulance attendants were “authorized persons” who come within the ambit of the statute. We disagree. While there is a dearth of case law on the issue of immunity under § 7114, the cases which we have found, in conjunction with the language of the statute itself, convince us that immunity from liability for an ambulance service was not within the contemplation of the legislature when it enacted § 7114 of the statute.

Section 7102 of the MHPA discusses the policy and purpose of the Act. This policy is to “seek to assure the availability of adequate treatment to persons who are mentally ill ...” The purpose of the Act is “to establish procedures whereby this policy can be effected.” Section 7103 sets forth the scope of the Act and states that the Act establishes rights and procedures for all involuntary treatment and voluntary inpatient treatment of mentally ill persons. The same section states that inpatient treatment is that which requires residence in a facility; a facility is a mental health establishment which provides for the diagnosis, treatment, care or rehabilitation of mentally ill persons.

It is clear from these sections that the legislature contemplated the decision-making process under § 7114 as one which would take place within the context of treatment, care, diagnosis or rehabilitation. It is equally clear that the individuals who would participate in those decisions would be trained in the field of mental health. We reach this conclusion based on § 1922(1) of the Statutory Construction Act, 1 Pa.C.S.A. In ascertaining the intention of the General Assembly in the enactment of a statute, § 1922(1) provides that it may be presumed that an unreasonable result was not intended. To read the MHPA as extending immunity to untrained individuals would be an unreasonable result. This is especially true where the individuals in question have been entrusted with a responsibility traditionally viewed in the law as requiring the highest degree of care. Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974).

At the time of the incident resulting in Appellant’s injuries, neither of the ambulance attendants had received any type of medical training, much less training in the care of patients who are under court-ordered involuntary emergency treatment, as was Appellant. Further, and more critical for purposes of determining the applicability of § 7114 immunity, neither was participating in the patient’s treatment. If Appellee’s position were accepted, the grant of immunity would logically apply to any individual who transported a patient being treated under the MHPA and who decided not to restrain the patient; while it is not conceivable that a taxi-driver would be engaged to transport such a patient, we see no significant difference between the role of a taxi-driver and that of an untrained ambulance attendant. Neither is within the purview of the legislature in enacting this statute.

We are further persuaded by the manner in which the issue of § 7114 immunity has been treated in previous cases. In Farago v. Sacred Heart General Hospital, 365 Pa.Super. 1, 528 A.2d 986 (1987), immunity attached to conduct which the patient alleged was negligent. The entitlement to immunity was based on a determination that the decision to treat the patient in an open ward with few restraints was a “treatment decision.” Similarly, in Werner v. Dept. of Public Welfare, 109 Pa.Cmwlth 134, 530 A.2d 1004 (1987), § 7114 was found to apply where the defendant was part of the “health care entity.” As these cases point out, immunity under § 7114 is granted in the context of treatment decisions made by those within the health care entity; neither condition is met by Appellee.

We find that Appellee was not clothed with immunity under the MHPA; consequently, the grant of Appellee’s motion for summary judgment was improper.

Order reversed. Jurisdiction relinquished.