author: TAMILIA, Judge: KELLY, Judge,

text:
    562 A.2d 364
    Bradford MERICLE, Appellant, v. John G. WOLF and Marianne Wolf, his Wife and Sacred Heart Hospital.
    Superior Court of Pennsylvania.
    Submitted May 4, 1989.
    Filed July 17, 1989.

      John J. Robinson, Upper Darby, for appellant.
    Gary C. Bender, Media, for Wolf, appellee.
    Murray S. Eckell, Media, for Sacred Heart, appellee.
    Before CAVANAUGH, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

Appellant Bradford Mercile appeals partial summary judgment granted to appellees John G. Wolf and his wife Marianne Wolf and Sacred Heart Hospital (Sacred Heart) by an Order entered September 12, 1988 which declared the transfer of certain real estate by gift from the Wolfs to Sacred Heart did not trigger appellant’s right of first refusal.

Appellant leased space for his store from the Wolfs on the first floor of a building which they owned. On December 3, 1987, appellant brought a complaint alleging that his lease with the Wolfs contained a provision that they would give him first refusal to purchase the property if the property was to be sold, and that on October 26,1987 Wolfs had transferred the real estate to Sacred Heart without affording him first refusal, despite his request to exercise that right. His complaint sought to set aside the transfer, money damages, and other relief. The Wolfs filed an answer alleging the transfer was by way of gift and not by sale, so that the right of first refusal was not triggered. The appellees’ motion for partial summary judgment was granted and appellant appealed on October 11, 1988.

On appeal appellant contends the pleadings and an affidavit filed by him show there are numerous unanswered questions, particularly attempts by the Wolfs to sell the real estate to other parties prior to the gift to Sacred Heart. Also, he argues that even if the transfer to Sacred Heart was a gift, his right of first refusal was still violated by the transfer because the clause in the lease as to first refusal was vague and ambiguous and the surrounding circumstances must be considered. He urges the purpose of the right of first refusal clause was the protection and continuation of his business, and the transfer of the property, whether by sale or gift, defeated that purpose.

Our standard of review of cases involving the grant of summary judgment was recently outlined in Ackler v. Raymark Industries, Inc., 380 Pa.Super. 183, 551 A.2d 291 (1988).

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admission on file, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Summary judgment may be entered only in cases •that are clear and free from doubt. In addition, we must examine the record in the light most favorable to the non-moving party and accept as true all well pleaded facts in the non-moving party’s pleadings, and give the non-mover the benefit of all reasonable inferences to be drawn therefrom.
A trial court’s grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion.

Id., 380 Pa.Superior Ct. at 185, 551 A.2d at 292 (citations omitted).

Initially, we address appellant’s contention that a genuine issue of material fact exists in this case, as presented in an affidavit by appellant attached to his reply memorandum of law in opposition to defendants’ motion for partial summary judgment. Because appellees had sought to sell the leased property prior to the transfer to Sacred Heart, he argues it can be inferred therefrom that the appellees deliberately attempted to defeat his right of first refusal. We do not find this issue to be material even if the issue were resolved in appellant’s favor, as he would be denied relief if we conclude the transfer to Sacred Heart did not trigger operation of his right of refusal. See Pierce v. Commonwealth, Pennsylvania Board of Probation and Parole, 46 Pa. Commw. 507, 406 A.2d 1186 (1979).

Next, we find no error in the trial court’s conclusion that the transfer to Sacred Heart was a gift. This is evidenced by a record copy of the deed indicating consideration of $1.00 for the transfer, a copy of the settlement sheet reflecting the same, an affidavit executed by appellee-wife stating that the intent of the conveyance was to make a charitable gift and no further consideration was received for the transfer, and an affidavit of the vice-president of financial affairs of Sacred Heart stating that the transfer had been made. For an inter vivos gift of realty to be valid, there must coincide:

(1) a donative intent upon the part of the grantor, i.e., an intent to make a gift to the grantee then and there, when the deed was executed; [and] (2) a delivery of the deed to the grantee, either actual or constructive, which divested the donor of all dominion over the property and invested the donee therewith.

Loutzenhiser v. Doddo, 436 Pa. 512, 516-17, 260 A.2d 745, 747 (1970) (citations omitted). Thus, all of the elements required to have a valid gift occur were present; i.e., donative intent, delivery, and acceptance. In re Estate of Soupcoff, 329 Pa.Super. 130, 477 A.2d 1388 (1984).

As the trial court found in this matter, there is no Pennsylvania appellate case law directly dealing with the question of whether a transfer by gift triggers a right of first refusal based upon language contemplating a sale of the leased property. Thus, the case sub judice is a case of first impression in this state. Our Supreme Court in its decision in Amoco Oil Co. v. Snyder, 505 Pa. 214, 478 A.2d 795 (1984), stated that a lease is in the nature of a contract, and is controlled by principles of contract law. The Court further reviewed the following guidelines regarding the interpretation and construction of contracts:

[W]here language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended.
“[T]his Court long ago emphasized that ‘[t]he parties [have] the right to make their own contract, and it is not the function of this Court to re-write it, or to give it a construction in conflict with ... the accepted and plain meaning of the language used.’ “ ‘It is not the province of the court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly.’ [13 C.J. § 485, p. 524]”

Id., 505 Pa. at 220-21, 478 A.2d at 798 (citations omitted).

In the instant matter, we reject appellant’s contention that the lease provision is vague and ambiguous, and that surrounding circumstances must be taken into account. The lease rider clearly provides, as was acknowledged by the trial court, that lessor agrees “To give lessee first refusal at buyer’s price if property is to be sold.” (Complaint, Exhibit A, emphasis added.) We agree with the trial court’s conclusion that this language demonstrates an intent on the part of the parties that the right of first refusal would come into play upon the exchange of consideration at buyer’s price, and, consequently, since the transfer here was by way of a gift, the right of first refusal never came into effect.

In the only Pennsylvania appellate court case on point, the facts are clearly distinguishable from those sub judice, and therefore it is not controlling. In Warden v. Taylor, 460 Pa. 577, 333 A.2d 922 (1975), the Supreme Court accepted the trial court holding that a conveyance to the owner’s grandson and his wife for a consideration of “natural love and affection” was a breach of contract for repurchase by the former owner, and ordered a remand for purpose of requiring the trial court to enter a decree of specific performance. In that case, the right of first refusal to repurchase the land was stated as follows:

“If the said parties of the second part [Taylor and his now-deceased wife] decide to sell and convey the same farm and premises upon which the said log cabin is erected during their respective life times, the said John B. Warden shall have the first right and privilege to purchase said farm at and for the price of Four Thousand Dollars ($4,000); and the premises upon which the log cabin aforesaid is erected, at and for the price of Five Thousand Dollars ($5,000).”

Id., 460 Pa. at 578, 333 A.2d at 923. The trial court holding, that appellant’s right of first refusal under a contractual agreement with appellee was triggered when appellee conveyed a gift of real estate to a third party, was not contested by post-trial motion or at the appellate level:

The only question before us for decision is whether the trial court erred in failing to decree specific performance. We take as settled the determination that appellant’s right of first refusal is valid and enforceable, that Taylor’s conveyance was in derogation of appellant’s rights, and that Taylor’s transferees’ possession is wrongful as to appellant.

Id., 460 Pa. at 579, 333 A.2d at 923. Relying, therefore, on the trial court’s holding, the Supreme Court found the trial court erred in failing to enter a decree compelling Taylor to perform his promise.

This case differs from Warden in certain critical respects. First, the trial court here held that the contract contemplated only a sale of the property and not a conveyance. A sale contemplates a vendor and a buyer and the transfer involves payment or a promise to pay a certain price in money or its equivalent. See Black’s Law Dictionary, 5th Edition. A conveyance in its most common usage is a transfer of title to land from one person, or class of persons, to another by deed. The term may also include assignment, lease, mortgage or encumbrance of land. Black’s defines several forms of conveyances, and while transfer is essential to the term, neither purchaser, sale nor buyer are necessary to a conveyance. In the case before us, as we stated above, the contract explicitly required a sale and a buyer, not a mere conveyance, before the first right of purchase was required. In Warden, a conveyance alone would trigger the first right of purchase, and an agreed payment was included upon repurchase. Thus, Warden does not apply here.

The law of other jurisdictions is in accord with our decision. In Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981), the Supreme Court of Appeals of West Virginia held that the right of first refusal of the appellees contained in a deed previously conveyed to the appellant therein by the appellees was not called into operation by appellant’s conveyance of the property to his children by way of a gift. This was so despite assertions by appellees that the children may have given consideration of love, affection and other support to appellant and that the recital provided for one dollar valuable consideration, thus arguably converting the gratuitous transaction into a sale. The language of the refusal clause in Bennett was, “desires to sell”, and the West Virginia Court concluded, as we do here, that “sell” is “commonly and ordinarily understood to mean an act of giving up property for money that the buyer either pays or promises to pay in the future.” Id. at 774-75, 277 S.E.2d at 619. Likewise, in Isaacson v. First Security Bank, 95 Idaho 452, 511 P.2d 269 (1973), the Supreme Court of Idaho concluded that a transfer of property by one of the appellees therein to his son was in the nature of a gift, although resembling a sale, and that there had been, therefore, no sale within the meaning of the first refusal provision of the lease involved in that case. The Isaacson court opined, “[w]here the lessor has indicated his desire to give and not to sell the property subject to the right of first refusal, it cannot be said that the condition precedent to the ripening of the right of refusal has been fulfilled.” Id. at 455, 511 P.2d at 272 (footnote omitted).

We believe the reasoning of these cases is sound, and we similarly conclude that in the matter before us, where the lease clause provided for the first refusal right if the property were to be sold, “sold” was to be given its ordinary meaning, and, therefore, the appellees’ transfer by way of a gift did not activate the refusal right. Partial summary judgment was, therefore, properly granted.

Order affirmed.

KELLY, J., dissents.

KELLY, Judge,

dissenting:

I respectfully dissent to the majority’s determination that summary judgment was properly entered. I agree that appellee’s “gift” of the property to Sacred Heart Hospital did not trigger appellant’s first right of refusal. See Annotation, Landlord and Tenant: What Amounts to “Sale” of Property for Purposes of Provision Giving Tenant Right of First Refusal if Landlord Desires to Sell, 70 ALR3d 203, 203-213 (1976 and 1988 supp.). Nonetheless, I find that a genuine issue of material fact remained.

Our scope of review in an appeal from an order granting summary judgment is well established:

Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). In passing upon a motion for summary judgment, a court most examine the record in the light most favorable to the nonmoving party. It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party.

Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 373-74, 528 A.2d 203, 205 (1987) citing Melmed v. Motts, 341 Pa.Super. 427, 429-30, 491 A.2d 892, 893 (1985) (citations omitted).

Instantly, appellant’s pleading and affidavits alleged, inter alia, that appellee-Wolf had engaged in prior attempts and negotiations to sell the property. The trial court failed to address these allegations, and I find this to be error. If in fact there were attempts to sell the property before it was transferred by gift to Sacred Heart Hospital, such offers of sale may have triggered appellants’ first right of refusal. Thus, appellant would then have been entitled to the opportunity of purchasing the property on the terms under which it was offered for sale.

At this juncture a material question of fact remains. If there were one or more prior offers of sale, the right of first refusal should be given specific performance. If there were not, or if the right is declined on the terms of such prior offers (if any), then the gift to Sacred Heart Hospital should be deemed valid.

Hence, I respectfully dissent.

      . Husband was deceased at the time the affidavit was made.

      . The clause read “In the event [lessor] desires to sell property included in this lease.” See Isaacson at n. 2, 511 P.2d 269 at n. 2.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    562 A.2d 369
    COMMONWEALTH of Pennsylvania, Appellee, v. Peter J. McFARLAND, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 15, 1989.
    Filed July 26, 1989.
    Richard E. Johnson, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is a direct appeal from a judgment of sentence. The appeal was submitted to this court without oral argument. In his brief on appeal appellant Peter J. McFarland’s attorney simply recounts the history of the case and a summary of the facts leading up to McFarland’s arrest. This is followed by a statement that after a thorough review of the record, counsel concluded that an appeal would be wholly frivolous and without arguable merit, citing Commonwealth v. McGeth, 347 Pa.Super. 333, 500 A.2d 860 (1985) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel concludes with a request for permission to withdraw as counsel. Appellant had private counsel at trial and through the post-trial motion proceeding, but is represented on appeal by new, appointed counsel.

We first observe that this is a direct appeal and we need not involve ourselves with the issue of the application of Anders, supra, to collateral proceedings. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Under the present circumstances, we find that the requirements alluded to in Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200 (1986) must be met in order to satisfy the requirements of Anders: (1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, it has been determined that the appeal would be frivolous; (2) file a brief referring to anything in the record that might arguably support the appeal, but which does not resemble a no-merit letter or amicus curiae brief; and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court’s attention.

While counsel has filed a separate petition in this court to withdraw, it is apparent from our review of the record that he has not fully complied with the requirements set forth in (2) or (3) above. The brief which we have summarized above does not refer to anything in the record which might arguably support the appeal nor does it state that appellant has been duly notified in accordance with requirement (3). In a letter to this court counsel advises only that at the time his brief was filed with this court, the appellant was notified. In addition, this court has received a communication from Mr. McFarland who is confined to the S.C.I. at Greens-burg, PA, that he had not known that attorney Johnson was appointed until November 25, 1988 when he received a brief letter from him enclosing a copy of the appellate brief. McFarland asserts that at no time prior thereto did counsel contact him or discuss his appeal.

Further examination of the appellate history of this case discloses that in acting on counsel’s application to withdraw filed in this court, the following order was entered:

“AND NOW, this 31st day of January, 1989, the petition of Richard S. Johnson, Esq. to withdraw as counsel is DENIED without prejudice to file a petition to withdraw which fulfills the requirements of Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1986) [ (1967) ] (brief containing all issues which might be raised and basis for conclusion that appeal is frivilous [sic]; notice to client of his right to file a pro se brief or to retain new counsel) or to file an advocate’s brief.”

Counsel’s letter to this court, which contended that the brief already filed on appeal fulfilled the requirements of Anders, was filed in response to this order. As outlined above, it is clear that the brief is not in compliance with Anders.

Finally, the appellate record discloses that appellant, stating his dissatisfaction with counsel’s services, petitioned this court to remove attorney Johnson as his counsel. This request was denied.

We conclude that counsel’s failure to comply with the requirements of Anders and the directive of this court, is fatally defective and that we are, by reason thereof, unable to make an independent judgment whether the appeal is frivolous. Commonwealth v. Thomas, supra. We believe that under all the circumstances, the application of present counsel to withdraw should be granted. In view of counsel’s failure to file an appropriate brief on appeal and his disregard of a specific direction by this court, we would recommend that no counsel fee be awarded in this matter. We make the following order:

Upon consideration of the present appeal, it is ordered that the matter be remanded to the trial court for the appointment of new counsel. The Court Administrator of the Court of Common Pleas of Philadelphia shall appoint substitute counsel to serve in connection with this appeal and shall immediately notify the Prothonotary of the Superior Court of such appointment. The Prothonotary of this court shall establish a new briefing schedule commencing ten days from the appointment of substitute counsel.

Case remanded. Jurisdiction not retained.


author: OLSZEWSKI, Judge:

text:
    562 A.2d 370
    ESTATE OF Clarence W. REIFSNEIDER, Deceased. Appeal of Carol I. SAUL and Sharen Greth, Attorneys-in-Fact for Audrey E. Reifsneider.
    Superior Court of Pennsylvania.
    Argued April 25, 1989.
    Filed Aug. 1, 1989.

      Jeffrey C. Karver, Boyertown, for appellant.
    J. Brooke Aker, Norristown, for Reifsneider, Participating Party.
    Before McEWEN, OLSZEWSKI and MELINSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order entered by the Court of Common Pleas of Montgomery County denying appellants’ request for permission to take against the will of Clarence Reifsneider as attorneys-in-fact pursuant to a durable power-of-attomey executed by their mother, Audrey Reifsneider.

The facts as found by the trial court are as follows: Clarence W. Reifsneider died on October 22, 1987, survived by his wife, Audrey E. Reifsneider. His will, dated December 19, 1986, was admitted to probate by the Register of Wills of Montgomery County on November 5, 1987. On April 20, 1988, Audrey Reifsneider’s daughters, Carol I. Saul and Sharen Greth, filed a notice of election to take against the will of Clarence Reifsneider as attomeys-in-fact under a durable power-of-attomey executed by their mother on April 28, 1986. On May 13, 1988, Carol Saul and Sharen Greth filed a petition seeking court approval to make the election in which they indicated their mother’s illness and hospitalization had necessitated their actions.

Stauffer B. Reifsneider, executor under the will of Clarence W. Reifsneider, filed both a petition to strike the election and an answer to the petition for court approval to file same. In these pleadings the executor contended, inter alia, the power-of-attomey did not authorize the filing of an election; the election was not timely filed and was therefore barred; and/or the right to elect was barred by an antenuptial agreement between Mr. and Mrs. Reifsneider dated June 28, 1977. The responsive pleadings filed by the attorneys-in-fact contained denials of these contentions and claimed the aforementioned antenuptial agreement was invalid.

On June 24, 1988, the executor filed a motion for judgment on the pleadings seeking dismissal of the election to take against the will. After argument, the court granted the motion by order dated August 30, 1988, from which the attomeys-in-fact now appeal.

On appeal, the attomeys-in-fact contend that: (1) the power-of-attomey executed by Audrey E. Reifsneider contained the language enabling them to file an election to take against the will of Clarence Reifsneider; and (2) they timely filed the petition seeking court approval of said election.

Initially, the attorneys-in-fact contest that the power-of-attorney executed by Audrey E. Reifsneider provided them with the authority to claim an elective share of the estate of Clarence Reifsneider. In support, they argue that although the power-of-attorney does not specifically address the right to claim such an elective share, the general language contained within the document which empowers them “to do all other acts, deeds, matters and things whatsoever” and “to have the full power, right and authority to do, perform and cause to be done and performed all acts, deeds, matters and things in connection with my property and estate,” impliedly empowers them to claim said elective share. Prior to the enactment of 20 Pa.C.S. § 5602 in 1982, we would have agreed with their assertions.

In a 1932 case, Celenza’s Estate, 308 Pa. 186, 162 A. 456 (1932), the Supreme Court of Pennsylvania authorized an attomey-in-fact to exercise a widow’s election to take against her husband’s will despite the absence of language in the power-of-attorney specifically authorizing her attorney to perform the same. In doing so, the Court held that the existence of general language which authorized the attorney to act in the principal’s behalf in matters pertaining to her husband’s estate served to authorize the attorney to make such an election. At the time of this decision, statutory authority addressing powers-of-attorney was nonexistent. Accordingly, despite the factual parallels between Celenza and the instant case, a different result may be warranted in light of the existence of subsequently enacted statutory authority regarding powers-of-attorney.

In 1974, Pennsylvania enacted its first statutes governing powers-of-attorney. In short, these statutes discussed the power-of-attorney as affected by disability and the revocation of or termination of the power-of-attorney by death, disability, or incompetence. Subsequently, in 1982 a new statute, specifically addressing potential powers with which to provide an attorney-in-fact, was enacted. In pertinent part, this statute provides:

(a) SPECIFICATION OF POWERS. A principal may, by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal, empower his attomey-in-fact to do any or all of the following, each of which is defined in section 5603 (relating to implementation of power of attorney):
(4) “To claim an elective share of the estate of my deceased spouse.”

20 Pa.C.S. § 5602.

Thus far, the enactment of this statute has not ruffled any judicial feathers of precedential authority. Accordingly, this Court is now presented with an issue of first impression. Additionally, there is no legislative history with which to guide our decision, nor is there any judicial precedent indicating a controversy for which this statute was enacted to alleviate.

Seemingly, this indicates that our decision will be based on a raw, untouched interpretation of this statute. Due to the existence of a 1986 trial court opinion which addressed a similar issue, however, this statement is not all together true. In Brenner et al. v. Manmiller, 6 Fiduc.Rep.2d 307, 78 Berks 310 (1986), the trial court determined that pursuant to 20 Pa.C.S. § 5602, an attorney-in-fact is not empowered to make gifts unless the power-of-attorney specifically authorizes him to do the same. As such, the court held that general language authorizing an attorney-in-fact to “make disbursements of monies belonging to me, in such manner, at such times and for such purposes as my said attorney may, in her sole unrestricted discretion” for the benefit and welfare of the principal and her property, did not authorize the attorney to make gifts.

In making this determination, the trial court ascertained legislative intent as desiring to provide the courts with a more effective and efficient means through which to discover a decedent’s intent. We agree. Clearly, this statute was enacted for a reason. If we were to determine that specific language was not needed to authorize an attorney-in-fact to perform those functions as described in § 5602, we would be ignoring the existence of the statute.

The Pennsylvania Supreme Court has continually advanced the principle that powers-of-attorney are to be strictly construed, and that special powers given are not to be enlarged unless clearly so intended. Schenker v. Indemnity Insurance Company of North America, 340 Pa. 81, 16 A.2d 304 (1940); Nuzum v. Spriggs, 357 Pa. 531, 55 A.2d 402 (1947); Fierst v. Commonwealth Land Title Insurance Company, 499 Pa. 68, 451 A.2d 674 (1982). The harshness of this mandate was subsequently tamed by the judicial amendment which held that strict construction of powers-of-attorney should not impede the very purpose for which the agency relationship was created. Nuzum, supra. In sum, it appears that Pennsylvania case law advocates a strict, but not unduly harsh, interpretation of powers-of-attorney.

When examined in light of § 5602, it seems as though this statute fortifies the previously described judicial principles. In sum, the statute maintains that to empower an attorney-in-fact with the ability to perform certain functions listed therein, the power-of-attorney must include the specific language provided in the statute or language encompassing a similar intent. For language to constitute a similar intent, it must specifically refer to the function in question, but need not contain the exact language provided by the statute. As such, general language will not serve to empower an attorney-in-fact with the tools needed to perform a specific function listed in § 5602.

When applied to the instant case, it is clear that the general language of the power-of-attorney is inadequate to empower the attorneys-in-fact to claim an elective share of the estate of Clarence Reifsneider. Accordingly, we affirm the trial court’s decision with regard to this issue.

Next, the attorneys-in-fact argue that the trial court erred in determining that their election to take against the decedent’s will was untimely filed where the attorneys-in-fact timely filed the original notice of election, but untimely sought to obtain the requisite court approval. Due to our disposition of the foregoing issue, however, this claim need not be addressed.

Accordingly, we affirm the decision of the trial court. Order affirmed.

      . Brenner v. Manmiller, 78 Berks 320 (Pa.C.P.1986), aff'd mem., No. 2767 Philadelphia 1987 (Pa.Super. March 3, 1989), petition for allowance of appeal filed, No. 292 E.D. Allocatur Docket 1989 (Pa. March 28, 1989).


author: TAMILIA, Judge:

text:
    562 A.2d 373
    COMMONWEALTH of Pennsylvania v. Marla A. WALKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Aug. 9, 1989.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant was tried by the court without a jury on May 20,1988 and found guilty of robbery as a felony of the first degree, firearms violations, theft, conspiracy, recklessly endangering another person, terroristic threats and simple assault. She was sentenced to the mandatory five years imprisonment under 42 Pa.C.S. § 9712, Sentences for offenses committed with firearms. On appeal she claims the trial court erred in applying this statute to her as she was only an accomplice and never actually “visibly possessed” the weapon. She further argues the evidence was conflicting as to whether the gun was used during the commission of the offense or merely confiscated from the victim during the robbery.

The incident occurred in the early morning hours of July 30, 1986 when Mr. Logue, complainant, saw appellant at Bostas Pizza Shop requesting a ride from various patrons. The owner asked Logue to give her a ride and he agreed to do so. After making two phone calls, appellant asked Logue to take her to 46th and Market Streets where friends would pick her up. Logue, a retired police detective, carried a gun holstered to his waistband and kept his cash in two separate pants pockets.

Logue drove appellant to the desired location and pulled the car off the road for appellant to get out. When she opened the passenger door, however, a male voice outside the car by her door yelled, “Don’t move m[-]-f[-], or I’ll blow your brains out!” (T.T. 5/20/88, p. 40.) It was too dark outside for Logue to see the man who had yelled. Logue was then told to hand over all his money, so he pulled cash from one of his pockets and handed it to * appellant who in turn handed it to the man outside. Appellant then said, “He’s got more f[-] money than that,” and “He’s got a gun.” (T.T. at 43-44.) Appellant took the gun and gave it to the man. At that point the man outside the car reached in with Logue’s gun, cocked it and pointed it at Logue’s face, demanding he get out of the car and put his hands on the door. Logue did so and someone came behind him and took the rest of his money out of his pockets. Appellant and another woman who had been with the man then fled down the street with the man following behind but watching Logue to see if he would turn to look at them. Logue did turn around when he heard their footsteps running away and the man fired a shot at him.

Appellant first tries to argue that the gun taken from Logue was not used to accomplish the robbery but was simply “proceeds” from the robbery. This is without merit because Logue’s testimony was unequivocal that after his gun was taken by appellant, her cohort put the gun in Logue’s face and ordered him out of the car so they could take the rest of the money out of his pockets (T.T. at 45).

Appellant’s main argument, however, is she should not have been sentenced under section 9712 because she was an unarmed accomplice and the statute applies only to those who “visibly possess a firearm during the commission of the offense.” Appellant admits her argument flies in the face of this Court’s decision in Commonwealth v. Williams, 353 Pa.Super. 312, 509 A.2d 1292 (1986), wherein we found an unarmed accomplice may be sentenced under section 9712(a) if the unarmed accomplice had knowledge the firearm was visibly possessed by his co-felon in the commission of the crime. The argument of appellant is this interpretation of the statute is too broad as the language of the statute provides a mandatory penalty only for those who personally possess the firearm. Even though the statute makes no mention of accomplices, we found accomplices should also be subject to that penalty since, “[i]t would be anomalous to sentence the armed felon in accordanee with the minimum sentence, while not similarly punishing an accomplice who is otherwise legally accountable for the actions of the armed felon.” Id., 353 Pa.Superior Ct. at 318, 509 A.2d at 1295.

Appellant is correct in her argument that penal provisions are to be strictly construed and any ambiguities in the language of a statute should be interpreted in a light most favorable to the accused. “While strict construction of penal statutes is required, however, courts are not required to give words of a criminal statute their narrowest meaning or disregard evident legislative intent.” Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 880 (1988). We continue to adhere to our construction of section 9712 as enunciated in Williams, supra, and reject appellant’s argument.

Finally, appellant claims there is a vital distinction between the instant case and Williams — the accomplice in Williams knew, prior to the start of the robbery, that his co-felon was armed and intended to use the gun during the robbery. This argument is ingenuous when it is clear that appellant set up the victim and as indicated above, informed her accomplice that the victim had a gun, which the appellant took from his waist band, handing it to her accomplice outside the automobile (T.T. 5/20/88, p. 44). In Williams we did not state an accomplice must have knowledge of the gun prior to the start of the robbery, we stated simply the unarmed accomplice was subject to the mandatory sentence if he had knowledge the firearm was visibly possessed by his co-felon in the commission of the crime. Because appellant had the requisite knowledge, she was properly sentenced to the mandatory term under section 9712(a).

Judgment of sentence affirmed.

      . (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of ... robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), ... or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

      . We note appellant’s reliance on Commonwealth v. Grimmitt, 354 Pa.Super. 463, 512 A.2d 43 (1986) to question the validity of our holding in Williams. The panel in Grimmitt, however, was bound to and did follow Williams as Williams is currently good law in Pennsylvania.


author: HOFFMAN, Judge:

text:
    562 A.2d 375
    COMMONWEALTH of Pennsylvania v. Mark FREEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 4, 1989.
    Decided June 27, 1989.
    Reargument Denied Aug. 22, 1989.
    John Packel, Asst. Public Defender, Philadelphia, for appellant.

      Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BROSKY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for aggravated assault and conspiracy. Appellant contends that the trial court erred in permitting the prosecutor, in his cross-examination of appellant, to make reference to appellant’s post-arrest silence. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

Appellant was arrested and charged with robbery, aggravated assault, conspiracy, and violation of the Uniform Firearms Act. On June 3, 1988, following a jury trial, appellant was acquitted of the robbery charge, but found guilty of the remaining charges. Timely post-trial motions were filed. On September 20, 1988, the trial court arrested judgment on the firearms charge, and denied post-trial motions in all other respects. The court then sentenced appellant to an aggregate term of six-to-fifteen-years imprisonment. This timely appeal followed.

Conflicting evidence was introduced at trial. The complainant, Arthur Klein, testified that, on December 3, 1987, he was in his business office in Philadelphia. Appellant and his co-defendant, James Swinton, entered the office, claiming that the co-defendant wanted to rent an apartment. Klein stated that, as he was walking to the back of his office, appellant grabbed him from behind and pressed a gun against his head. A struggle ensued. During the course of the struggle, Klein was able to hold off both defendants, draw his own gun, and shoot both men.

Appellant testified in his own behalf. He stated that, at the time of the incident in question, he had been out of work and began to deliver cocaine in order to make money. One of the people he delivered to was Arthur Klein. Appellant admitted that on one occasion prior to December 3, 1987, he sold a package that had been intended for Klein. On December 3, he went to Klein’s office in an attempt to make amends. When he arrived at the office, the co-defendant, whom he did not know, was already there, talking to Klein. Klein let appellant in, and an argument and fight followed. During the fight, appellant saw Klein pull a .25 caliber pistol. As they struggled over that weapon, appellant was shot with a second gun, a .38 caliber revolver. Appellant never saw the second gun. After he was shot, appellant blacked out and did not see the altercation between his co-defendant and Klein.

At the end of appellant’s testimony on direct examination, the following exchange occurred between appellant and his counsel:

Q. Now, were you in any condition to give the police your version of what was going on when the police got there?
A. No.
Q. When did you ultimately come to?
A. Three days later.
Q. Where were you?
A. In the hospital.

N.T. June 2, 1988 at 203 (emphasis supplied). Despite the fact that counsel specifically limited his question to the time when the police arrived on the scene, the prosecutor cross-examined appellant as follows:

Q. Did you ever give the police your version of what happened, or try to give them your version?
[APPELLANT’S COUNSEL]: Objection.
THE COURT: Overruled.
[APPELLANT’S COUNSEL]: Objection, objection, and objection.
THE COURT: Overruled, because you asked that question.
BY [THE PROSECUTOR]: What’s your answer?
A. No.

Id. at 204 (emphasis supplied).

Appellant contends that the trial court erred in permitting the prosecutor to thus question him concerning his post-arrest silence. We agree. In Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), our Supreme Court ordered a new trial for a defendant who had been convicted of voluntary manslaughter. At trial, the defendant testified that he believed he was being shot at, and thus he shot the deceased in self-defense. On cross-examination, the prosecutor asked the defendant “Did you ever tell the police that somebody was shooting at you?” Id., 499 Pa. at 581, 454 A.2d at 538. The trial court sustained the objection, and gave a cautionary instruction to the jury, but denied the defendant’s motion for a mistrial. The Supreme Court held that this was reversible error, reasoning that:

The prejudice to the defendant resulting from reference to his silence is substantial. While it is efficacious for the Commonwealth to attempt to uncover a fabricated version of events, in light of the “insolubly ambiguous” nature of silence on the part of the accused, Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91, 97 (1976), we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant allowance of any reference at trial to the silence. Accordingly, the Commonwealth must seek to impeach a defendant’s relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to police at the time of arrest when in fact he remained silent. Doyle v. Ohio, Id., at 619, n. 11, 96 S.Ct. at 2245, n. 11, 49 L.Ed.2d at 98, n. 11. Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

499 Pa. at 583, 454 A.2d at 539-40 (emphasis supplied); see also Commonwealth v. Sanders, 324 Pa.Super. 372, 471 A.2d 885 (1984) (trial court asked defendant single question which alerted jury to defendant’s failure to protest his innocence at the time of arrest; new trial granted).

We have examined appellant’s trial testimony and we find no indication that appellant ever asserted that he told his version of the incident to police at the time of his arrest. As we have noted above, appellant’s testimony on direct examination was limited to an explanation of the reason for his silence when the police arrived. Because appellant made no claim that he related his version at the time of arrest, appellant’s post-arrest silence is not “factually inconsistent” with his testimony at trial, and the trial court should not have permitted inquiry in this area. See Commonwealth v. Turner, supra; Commonwealth v. Sanders, supra.

The Commonwealth suggests, however, that appellant was under arrest when the police arrived. The Commonwealth thus argues that appellant’s testimony on direct referred to his post-arrest silence, and opened the door to further inquiry into the matter. Our Supreme Court has defined an arrest as “any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.” Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982), cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). Here, there is no evidence that the police officers who arrived on the scene placed appellant in custody. The officers did not testify that they placed any physical or verbal restraints upon appellant, or gave appellant the Miranda warnings. See Commonwealth v. Monahan, 378 Pa.Super. 623, 629, 549 A.2d 231, 234 (1988). Instead, the officers testified that their primary concern was to arrange for emergency medical treatment for appellant and his co-defendant. See N.T. June 2, 1988, at 107-08 (testimony of Officer Eugene Clarke); id. at 128-29 (testimony of Lieutenant Vincent Lombardy). Indeed, Lieutenant Lombardy noted that appellant was bleeding profusely and “looked as though he was going into shock.” Id. at 128. The police immediately summoned the fire rescue squad. When the rescue squad arrived, appellant was placed in a “trauma suit” and taken to the hospital. See id. at 111, 129. In light of this undisputed testimony, we must reject the Commonwealth’s argument that appellant was under arrest when the police arrived at the scene of the shooting.

In summary, we conclude that the prosecutor should not have been permitted to refer to appellant’s post-arrest silence because that silence was not factually inconsistent with his trial testimony. In addition, we conclude that appellant’s testimony on direct examination was limited to his pre-arrest silence, and thus appellant did not open the door to inquiry into his post-arrest silence. Accordingly, we hold that the trial court erred in allowing the Commonwealth to refer to appellant’s post-arrest silence, and a new trial must be granted. See Commonwealth v. Turner, supra; Commonwealth v. Sanders, supra

Judgment of sentence is vacated, and the case is remanded for a new trial. Jurisdiction is relinquished.

      . In light of our disposition of this issue, it is unnecessary to reach the other two issues raised by appellant: (1) whether the court erred in allowing certain rebuttal testimony; and (2) whether the court erred in determining that appellant failed to make a prima facie showing of racial discrimination in the prosecution’s exercise of its peremptory challenges during the selection of the jury.

      . We note that it is unclear exactly when appellant was arrested. See discussion infra. Because the prosecutor asked appellant if he ever gave the police his version, however, the question clearly referred to post-arrest, as well as pre-arrest, silence. Compare Commonwealth v. Turner, 499 Pa. 579, 581, 454 A.2d 537, 538 (1982).

      . As a matter of federal constitutional law, reference to an accused’s post-arrest silence is permissible if the silence occurred prior to the giving of Miranda warnings. See Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The Turner Court recognized that its "position is more restrictive than that taken by the United States Supreme Court.” 499 Pa. at 584, 454 A.2d at 540. The Turner holding was based on Article 1, § 9 of the Pennsylvania Constitution. Id., 499 Pa. at 583-84, 454 A.2d at 540.

      . The Commonwealth also argues that appellant’s testimony concerning his pre-arrest silence was designed to create the misleading impression that “but for his medical condition, he would have told the police his version of events." Commonwealth’s Letter Brief at 4. The Commonwealth suggests that appellant’s testimony opened the door for an inquiry into post-arrest silence, as a manner of rebutting this misleading impression. We disagree. It is settled that reference may be made to an accused’s pre-arrest silence. See Commonwealth v. Monahan, supra; Commonwealth v. Hassine, 340 Pa.Super. 318, 341-42, 490 A.2d 438, 450 (1985). Apparently recognizing this, appellant’s counsel merely tried to forestall permissible prosecutorial inquiry into appellant’s pre-arrest silence, by asking appellant on direct examination the reason for his pre-arrest silence. We fail to see how counsel's inquiry into this legitimate area can open the door to an inquiry into a constitutionally prohibited area.

      . Although we recognize that the prosecutor made but a single reference to appellant’s post-arrest silence, it is nevertheless clear that the error was not harmless. See Commonwealth v. Turner, supra; Commonwealth v. Sanders, supra.


text:
    562 A.2d 378
    Dorothy M. WHITE, Executrix of the Estate of Alfred S. White, Deceased, Appellant, v. Roger D. WEINER, M.D., Robb S. Seto, M.D., Gerard Voci, M.D., Episcopal Hospital, Eli Lilly and Company, Walter H. Beadling, Jr. and Dr. Baruch.
    Superior Court of Pennsylvania.
    Argued April 4, 1989.
    Decided July 10, 1989.

      John M. Sheridan, Media, for appellant.
    James M. Beck, Philadelphia, for Eli Lilly, appellees.

      Before BROSKY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order granting appellee’s renewed motion for summary judgment. Appellant contends that the lower court erred in entering its order. For the reasons that follow, we affirm the order below.

Appellant’s husband died on August 14, 1982, allegedly from complications resulting from triple bypass surgery. On August 2, 1984, appellant instituted this action by writ of summons. Thereafter, on October 31, 1984, appellant filed a complaint alleging negligence on the part of several health care providers and negligence and strict liability of appellee, Eli Lilly and Company. This appeal concerns only the claims that appellant is pursuing against Eli Lilly.

According to appellant, appellee, a bulk supplier of pharmaceutical chemicals, had failed to provide an adequate warning on the packaging of the component chemical, bulk protamine sulfate, that it supplied to The Upjohn Company. Upjohn had manufactured the prescription drug protamine sulfate that was administered to appellant’s decedent and to which he allegedly had an adverse reaction. Appellee filed its answer and new matter on March 6, 1985. On July 28, 1987, appellee filed a motion for summary judgment, and on September 9, the court below denied the motion without prejudice.

After engaging in discovery, appellee renewed its motion for summary judgment, raising the following issues:

A. Lilly Is Entitled To Summary Judgment Because Plaintiffs Warning Claim Is Contrary To The Governing Federal Regulations.
B. Lilly Is Entitled To Summary Judgment Because Pennsylvania Law Does Not Impose A Duty To Warn End Users On A Supplier Of Bulk Component Chemicals.
C. Lilly Is Entitled To Summary Judgment Because Upjohn Would Not Have Changed Its Warnings In Response To Information From Lilly.
D. Lilly Is Entitled To Summary Judgment Because Dr. Seto Would Not Have Changed The Decedent’s Treatment In Response To A Warning From Upjohn.

Memorandum of Law of Defendant Eli Lilly and Company in Support of Its Renewed Motion for Summary Judgment, May 25, 1988 at 8, 13, 18, 21. Appellant responded to appellee’s motion, and on July 20, 1988, the court below entered an order granting the motion and dismissing appellant’s complaint with prejudice. In the opinion accompanying its order, the lower court stated as follows:

As a matter of law Eli Lilly and Company as a bulk supplier of chemicals used in the making of prescription drugs had no duty to warn Plaintiff, Plaintiff’s doctors or the manufacturer of the administered prescription drug of the allergic reaction that post vasectomized patients may have to Protamine Sulfate.
According to federal law all prescription drugs must be labeled according to Food, Drug and Cosmetic Act requirements, 21 U.S.C.S. § 825.
Suppliers of bulk drugs are specifically exempted from these labeling requirements of the Food, Drug and Cosmetic Act, 21 U.S.C. 353(a) (1982) provides in pertinent part.

The secretary is directed to promulgate regulations exempting from any labeling or packaging requirements of this chapter drugs ... which are, in accordance with the practice of the trade, to be processed, labeled or repacked in substantial quantities at establishments other than those where originally processed or packed.

As directed 21 C.F.R. § 201.122 (1982) specifically exempts from labeling requirements.

A drug in a bulk package, except tablets, capsules, or other dosage unit forms, intended for processing repacking, or use in the manufacture of another drug shall be exempt from Section 502(f)(1) of the act [if its label (sic)] bears the statement “caution: (sic) For manufacturing, processing or repacking.”

Lilly sold Protamine Sulfate to Upjohn in bulk packages not in tablet, capsule or dosage form. The packaging of the bulk Protamine Sulfate contained the warning required. Therefore, the Protamine Sulfate when supplied to the Upjohn [Company] by Lilly fell squarely in the exemption of 21 C.F.R. § 201.122 (1982). The duty of care owed by Lilly is to comply with the congressional statute and the Regulations of Food and Drug Administration. Eli Lilly and Company met this duty, and their renewed Motion for Summary Judgment must be granted.

Lower Court Opinion at 4-5. This timely appeal followed.

A.

Appellant contends that in granting appellee’s renewed motion for summary judgment, the lower court erred

in holding that the Defendant’s compliance with the bulk product labeling requirements of the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. and the regulations promulgated thereunder at 21 C.F.R. § 201.122 is conclusive as a matter of law on the issue of whether its pharmaceutical product is unreasonably dangerous and therefore defective under the restatement (2d) of Tortes [sic] § 402A.

Plaintiff’s Statement of Matters Complained of on Appeal. Appellant seemingly argues that satisfaction of federal labeling requirements does not insulate a bulk supplier from complying with the common law duty to warn, even though the manufacturer of the finished prescription drug has a federally-imposed duty to warn of the dangers of its product. Expanding on this theme, appellant claims that “at no time whatsoever did Eli Lilly and Company warn any party whatsoever of the known dangerous propensities of its drug. It did not warn the medical community; it did not warn the Food and Drug Administration and it did not warn the Upjohn Company.” Brief for Appellant at 14.

As we interpret appellant’s argument, she would have this Court impose a rather expansive duty on appellee. Appellant, however, stops short of seeking a separate warning from the bulk manufacturer to the ultimate consumer. As a preliminary matter, we observe that it is not within the province of this Court to impose additional requirements on appellee vis á vis the FDA. Our task, therefore, is to determine whether, as a matter of Pennsylvania law, appellee had a duty to warn Upjohn and the medical community of the risks associated with bulk protamine sulfate.

At the outset, we note that an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. See Ackler v. Raymark Indus., Inc., 380 Pa.Super. 183, 185-86, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 323, 528 A.2d 177, 179 (1987), allocatur denied, 518 Pa. 613, 540 A.2d 535 (1988); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1986). Further, the law on summary judgment is well-established. See Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 535, 369 A.2d 754, 756 (1976).

‘Summary judgment is made available by Pa.R.Civ.P. 1035, 12 P.S. Appendix, when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment.’ Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975). Thus, we need only determine whether there is a genuine issue of triable fact.

Id.; see also Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986), allocatur denied, 513 Pa. 633, 520 A.2d 1384 (1987); Curry v. Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984).

B.

It is axiomatic that the existence of a federal statute, such as that governing the manufacture, distribution, and sale of prescription drugs, see Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392 (1982) (hereinafter “the Federal Act”), does not necessarily preempt state action in that field, see Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.S. § 780-101 to 780-144 (hereinafter “the Commonwealth Act”). In Whitehall Laboratories Division of American Home Products Corp. v. Wilbar, 397 Pa. 223, 154 A.2d 596 (1959), our Supreme Court specifically concluded that the Federal Act did not preempt this Commonwealth’s Dangerous Drug Act of 1955, a predecessor statute to the current Commonwealth Act:

In determining whether the ‘Dangerous Drug Act of 1955’ and the regulations promulgated thereunder have been suspended by the ‘Federal Food, Drug and Cosmetic Act’ resort must be had to the language of the federal legislation for the purpose of ascertaining, if possible, the intent of Congress. An examination of the federal statute reveals neither an express or implicit exposition of any Congressional intent to preclude state action in the field of regulation of the sale and dispensing of drugs; there is, within the statute, ‘no scheme of regulation’ so ‘pervasive’ as to lead to the inference that the federal government by the passage of this legislation intended to pre-empt the field. The mere fact that Congress has taken action in this field does not justify the assumption that the federal system was thus intended to dominate that field.

Id., 397 Pa. at 231, 154 A.2d at 601. Hence, because the field of drug regulation is not exclusively within the federal domain, this Commonwealth may enter that field so long as its laws and regulations do not conflict with the federal provisions. Id., 397 Pa. at 234, 154 A.2d at 602.

The Commonwealth Act is a criminal statute, see 35 Pa.S. § 780-113 to 780-120 (prohibited acts, penalties), and does not establish a private right of action. Compare 21 U.S.C. §§ 331-337 (establishing penalties, providing that all actions shall be made in the name of the United States). The act, nevertheless, is instructive insofar as it is an expression of the legislature’s policy on drug regulation, and it provides in pertinent part:

§ 780-108. Misbranding

A controlled substance, other drug or device or cosmetic shall be deemed to be misbranded:

(6) Unless its labeling bears (i) adequate directions for use, and (ii) such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health or against unsafe dosage or methods or duration of administration or application in such manner and form as are necessary for the protection of users: Provided, That where any requirement of subclause (i) of this clause as applied to any drug, device or cosmetic is not necessary for the protection of the public health, regulations shall be promulgated exempting such drug, device or cosmetic from such requirements.

35 Pa.S. § 780-108(6) (emphasis added).

With respect to the adequacy of the warning included on a label, the misbranding provision must be read in conjunction with the following section of the act:

§ 780-133. Conformity with federal law
No controlled substance, other drug, device or cosmetic shall be deemed to be adultered or misbranded under this act if it complies with the applicable Federal act and/or regulations and interpretations issued pursuant thereto, unless the secretary, after consultation with and upon the recommendation of the board, shall have previously promulgated a regulation stating that the applicable provision of the Federal act and/or regulations and interpretations thereof would not be followed.

35 Pa.S. § 780-133 (emphasis added).

As we read these sections, compliance with federal labeling requirements normally is sufficient to preclude criminal prosecution by the Commonwealth for misbranding. Id. Certainly the foregoing provisions do not control our disposition of appellant’s claim in this civil action; they, nevertheless, do embody a legislative intent that we cannot ignore. Our legislature unequivocally has expressed a policy of deference to the federal scheme in the area of drug labeling, id., and we can ascertain no reason not to extend that policy to civil cases raising misbranding claims.

C.

The Federal Act requires pharmaceutical manufacturers to submit detailed drug applications, which include “full reports of investigations which have been made to show whether or not such drug is safe for use and whether such drug is effective in use.” 21 U.S.C. § 355(b)(1)(A); see also 21 C.F.R. §§ 312.1 to 312.6. Additionally, after receiving approval, a manufacturer regularly must update its application with

data or information, received or otherwise obtained by such applicant with respect to such drug, as the Secretary may by general regulation, or by order with respect to such application, prescribe on the basis of a finding that such records and reports are necessary in order to enable the Secretary to determine, or facilitate a determination whether there is or may be ground for invoking subsection (e)[] of this section.

21 U.S.C. § 355(j)(l) (renumbered to 21 U.S.C. § 355(k)(l) by 1984 amendment).

Moreover, under federal law, the prescription drug manufacturer, packer, or distributor has the duty to label the prescription drugs that it respectively has manufactured, packed, or distributed. See 21 U.S.C. § 352(b); 21 C.F.R. § 201.100. In fact, “no person other than the manufacturer, packer or distributor may be identified on the label of a drug or drug product.” 21 C.F.R. § 201.1(h)(1); see also id. § 201.1(a). The label must bear the following information: “description, clinical pharmacology, indications and usage, contraindications, warnings, precautions, adverse reactions, drug abuse and dependence, overdosage, dosage and administration, how supplied.” 21 C.F.R. § 201.56. According to the Federal Act, similar to the Commonwealth Act, a prescription drug is misbranded if its labeling fails to include,

such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users.

21 U.S.C. § 352(f). Compare 35 Pa.S. § 780-108(6)(ii).

D.

There is no question that manufacturers of potentially dangerous drugs are held to a high degree of care. As this Court said in Henderson v. National Drug Company, 343 Pa. 601, 610, 23 A.2d 743, 748 (1942), ‘... the public interest requires the holding of companies which make and sell drugs and medicine for use in the human body to a high degree of responsibility under both the criminal and civil law for any failure to exercise vigilance commensurate with the harm which would be likely to result from relaxing it.’

Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 219 (1971). Despite our imposition on manufacturers of finished prescription drugs of this enhanced duty of care, we have circumscribed the scope of their duty to warn. A manufacturer will be held liable “only if he fails to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous.” Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 (1984); see also Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 596, 523 A.2d 374, 378 (1987); Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 432, 307 A.2d 449, 457 (1973) (equally divided court) (opinion in support of affirmance). In a line of cases beginning with Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), our courts consistently have stated that a drug manufacturer’s duty to warn extends only to the prescribing physician, and not to the ultimate consumer. See id., 444 Pa. at 288, 282 A.2d at 220; Baldino, 505 Pa. at 244, 478 A.2d at 810; Makripodis, 361 Pa.Super. at 596, 523 A.2d at 378; Leibowitz, 224 Pa.Super. at 431, 307 A.2d at 457 (opinion in support of affirmance).

On only two prior occasions has this Court evaluated the issue of the duty to warn with respect to entities other than the final manufacturer within the chain of distribution of a prescription drug. In both Coyle v. Richardson-Merrell, Inc., 372 Pa.Super. 118, 538 A.2d 1379 (1988), allocatur granted, 520 Pa. 588, 551 A.2d 215 (1988), and Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 523 A.2d 374 (1987), we considered whether a pharmacist had a duty to furnish a warning with the drugs he or she dispensed, and we found no such duty. Coyle, 372 Pa.Super. at 121-22, 538 A.2d at 1381; Makripodis, 361 Pa.Super. at 597, 523 A.2d at 378. This general reluctance to expand tort liability within the distribution chain is consistent with our position that

[i]t is illusory to believe the public does not pay for tort recoveries, or that resources for such are limitless. As it is with everything, a balance must be struck — certain limits drawn____ A sound and viable tort system — generally what we now have — is a valuable incident of our free society, but we must protect it from excess lest it becomes unworkable.

Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 522, 517 A.2d 1348, 1357 (1986) (en banc), aff'd without opinion, 518 Pa. 57, 540 A.2d 266 (1988).

E.

In this case, we decline to impose on a bulk supplier of pharmaceutical chemicals the additional duties to warn suggested by appellant. The rigorous testing and reporting required of final manufacturers by federal law, see, e.g., 21 U.S.C. § 355(b)(1)(A), (k)(l), renders superfluous detailed warning by bulk suppliers to those same manufacturers. In a recent case the Washington Supreme Court addressed a similar issue of vertical liability:

We agree with Lilly that there should be no vertical liability in DES cases. DES is not inherently harmful, and is still prescribed today____ Furthermore, the United States [Food and] Drug Administration requires the tablet manufacturers ... to account for and warn of a drug’s properties. 21 U.S.C. § 355. It would therefore be anomalous to require the raw manufacturer to conduct separate tests to determine the adverse effects of the drug when by federal statute, the tablet manufacturer bears this responsibility.

George v. Parke-Davis, 107 Wash.2d 584, 599-600, 733 P.2d 507, 515 (1987) (emphasis added). We agree with the conclusion reached by the George court and decline to impose an additional common law duty to warn extending from a bulk supplier to a final manufacturer. Accordingly, we hold that beyond compliance with the labeling requirements of 21 U.S.C. § 353(a) and 21 C.F.R. § 201.122, appellee had no duty to provide a warning to Upjohn.

Like the testing requirements, the federal labeling requirements are extensive, see, e.g., 21 U.S.C. § 352(f); 21 C.F.R. § 201.56. Again, the onus is on the manufacturer to provide the labeling, see, e.g., 21 U.S.C. § 352, that reaches “those for whose use the article is supplied,” namely the prescribing physician. Baldino, 505 Pa. at 244, 478 A.2d at 810. In light of federal law, we conclude that a separate warning from a bulk supplier to the medical community would be duplicative. We, therefore, hold that appellee had no duty to warn the prescribing physician of appellant’s decedent.

We find further support for the foregoing conclusions in Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), and its progeny, in which our courts declined to require separate warnings extending from prescription drug manufacturers and druggists to the general public. In Incollingo our Supreme Court concluded that the duty to warn the patient-consumer was one exclusively borne by the prescribing physician. Id., 444 Pa. at 288, 282 A.2d at 220. See also Baldino, 505 Pa. at 244-45, 478 A.2d at 810; Makripodis, 361 Pa.Super. at 596, 523 A.2d at 378. The rationale for this rule is obvious: It is the physician who has the superior knowledge in the circumstances because he or she is able to balance the risks associated with the prescription drug against its utility “in light of his [or her] personal knowledge of the patient’s medical history.” Leibowitz, 224 Pa.Super. at 431, 307 A.2d at 457 (opinion in support of affirmance); see also Makripodis, 361 Pa.Super. at 596, 523 A.2d at 378 (“the warnings which are required to be given by the manufacturer must be directed to the physician, not the patient-consumer. This is so because it is the duty of the prescribing physician to be fully aware of (1) the characteristics of the drug he is prescribing, (2) the amount of the drug which can be safely administered, and (3) the different medications the patient is taking. It is also the duty of the prescribing physician to advise the patient of any dangers or side effects associated with the use of the drug as well as how and when to take the drug.”). Here, appellant does not argue that bulk suppliers of pharmaceutical chemicals should be required to warn consumers, but rather that bulk suppliers have a duty to warn final manufacturers and the medical community. It is the final manufacturer and the medical community, however, who are in a better position to assess the risks associated with the administration of the prescription drug. As this Court noted in Wenrick v. Schloemann-Siemag Aktiengesellschaft, 361 Pa.Super. 137, 522 A.2d 52 (1987), allocatur granted, 518 Pa. 643, 542 A.2d 1371 (1988), “[a] component part manufacturer should not be burdened with the heavy duty of inquiring into every possible use of their part and warning of every possible danger that might be associated with the integration of their part into the completed product.” Id., 361 Pa.Superior Ct. at 149 n. 1, 522 A.2d at 57-58 n. 1. Thus, our holding here, like that of our Supreme Court in Incollingo, places the duty on the party that is best able to ascertain and balance the risks associated with the final prescription drug. Hence, imposition of an additional common law duty to warn as between entities higher in the chain of distribution, would be in derogation of the policy considerations underlying the decisions in Incollingo and its progeny.

Accordingly, because appellee satisfied the federal labeling requirements imposed on a bulk supplier, 21 C.F.R. § 201.122, we conclude that the court below did not abuse its discretion in granting appellee’s renewed motion for summary judgment. See Ackler, 380 Pa.Super. at 183, 551 A.2d at 292. For the foregoing reasons, we affirm the order below.

Order affirmed.

      . The Upjohn Company is not a party in this case. Appellant, however, did file suit in federal court against Upjohn; the district court granted Upjohn's motion for summary judgment on the basis that the Pennsylvania two-year statute of limitations barred appellant’s claims. See Renewed Motion of Defendant Eli Lilly and Company for Summary Judgment, May 25, 1988, at Exhibit C (White v. Upjohn Co., No. 86-2600, 1987 WL 6696 (E.D.Pa. Feb. 12, 1987) (memorandum and order by O’NEILL, J.)).

      . More specifically, appellant states that her husband "died from complications caused by an anaphylactoid reaction to protamine sulfate." Brief for Appellant at 3. The decedent had been vasectomized approximately ten years prior to his bypass operation. Because protamine sulfate is derived from the reproductive fluids of the male salmon, appellant contends that it carries a risk of allergic reaction in vasectomized men who, following the vasectomy, may develop antibodies to sperm.

      . This appeal concerns a bulk supplier’s duty to warn only within the context of strict liability, as appellant did not raise in her statement of matters complained of on appeal or argue in her brief other theories of liability. See Pa.R.A.P. 1925(b).

      . It is settled law that the duty to warn the general public of the dangerous propensities of a prescription drug is one that is imposed on the prescribing physician. See Baldino v. Castagna, 505 Pa. 239, 244-45, 478 A.2d 807, 810 (1984); Incollingo v. Ewing, 444 Pa. 263, 286-88, 282 A.2d 206, 220 (1971); Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 596, 523 A.2d 374, 378 (1987).

      . All references hereinafter to the United States Code and to the Code of Federal Regulations are to the 1982 versions.

      . 35 Pa.S. §§ 935.1 to 935.10, repealed by Drug, Device and Cosmetic Act, Pub.L. 1664, § 31 (1961) (codified at 35 Pa.S. § 780-1 to 780-31). The Drag, Device and Cosmetic Act was repealed by the Controlled Substance, Drag, Device, and Cosmetic Act, Pub.L. 233, No. 64, § 43 (1972) (codified at 35 Pa.S. § 780-101 to 780.144).

      . A violation of the foregoing provision constitutes a misdemeanor. See id. § 780-113(b).

      . The adoption of a criminal standard to define a civil duty is not unprecedented in this Commonwealth. In Congini ex rel Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), our Supreme Court concluded that a social host was negligent per se for serving alcohol to a minor. The Court premised its conclusion on the 'legislative judgment” that minors are “incompetent to handle the effects of alcohol,” as embodied in section 6308 of the crimes code. Id., 504 Pa. at 163, 470 A.2d at 517. Section 6308 establishes that
      a person ‘less than 21 years of age’ commits a summary offense if he ‘attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.’ Furthermore, under Section 306 of the Crimes Code, 18 Pa.C.S.A. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.

        Id., 504 Pa. at 161, 470 A.2d at 517 (quoting 18 Pa.C.S.A. § 6308).
      Moreover, in reaching its conclusion, our Supreme Court relied on Section 286 of the Restatement of Torts Second, which provides that a
      court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
      (a) to protect a class of persons which includes the one whose interest is invaded, and
      (b) to protect the particular interest which is invaded, and
      (c) to protect that interest against the kind of harm that has resulted, and
      (d) to protect that interest against the particular hazard from which the harm results.

        Congini, 504 Pa. at 162, 470 A.2d at 517-18 (quoting Restatement (Second) of Torts § 286). The comments to section 286 include a specific discussion of the effect of a criminal statute on a civil negligence case:

        d. Where no provision for civil liability. The enactment or regulation may, however, provide only for criminal liability and not for civil liability; or in rare instances it may merely prohibit certain conduct, and contain no provision for liability at all. In such cases the initial question is whether the legislation or regulation is to be given any effect in a civil suit. Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.
      On the other hand, the court is free, in making its own judicial rules, to adopt and apply to the negligence action the standard of conduct provided by such criminal enactment or regulation. This it may do even though the provision is for some reason entirely ineffective for its initial purposes, as where a traffic signal is set up under an ordinance which never has been properly published and so for the purposes of a criminal prosecution is entirely void. The decision to adopt the standard is purely a judicial one, for the court to make. When the court does adopt the legislative standard, it is acting to further the general purposes which it finds in the legislation, and not because it is in any way required to do so.
      Restatement (Second) of Torts § 286 comment d.

      . Subsection (e) pertains to the withdrawal of approval of a drug. 21 U.S.C. § 355(e).

      . The term “manufacturer” is defined by the federal regulations as "the person who performs all of the following operations that are required to produce the product: (1) mixing, (2) granulating, (3) milling, (4) molding, (5) lyophilizing, (6) tableting, (7) encapsulating, (8) coating, (9) sterilizing, and (10) filling sterile aerosol or gaseous drugs into dispensing containers.” 21 C.F.R. § 201.1(b). Appellant has not contended that appellee satisfies the definition of manufacturer.

      . Although the term "manufacturer” in this context has not been judicially defined, it has been legislatively defined as a person who “manufactures a controlled substance, other drug or device." 35 Pa.S. § 780-102(b) para. 29. The Commonwealth Act defines “manufacture” as the
      production, preparation, propagation, compounding, conversion or processing of a controlled substance, other drug or device or packaging or repackaging of such substance or article, or the labeling or relabeling of the commercial container of such substance or article, but does not include the activities of a practitioner who, as an incident to his administration or dispensing such substance or article in the course of his professional practice, prepares compounds, packages or labels such substance or article.

        Id.


author: MELINSON, Judge:

text:
    562 A.2d 830
    Samuel FEINGOLD and Sylvia Feingold, Appellants, v. WIN-VENT, INC., and Charles G. Noska Company, Inc., Appellees, v. YELLOW FREIGHT SYSTEMS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1989.
    Filed June 28, 1989.
    Reargument Denied Aug. 25, 1989.

      Allen L. Feingold, Philadelphia, for appellants.
    Richard L. Strouse, Philadelphia, for Win-Vent, appellee.
    Janet W. Mason, Philadelphia, for Yellow Freight, appellee.
    Before WIEAND, MELINSON and HOFFMAN, JJ.
   MELINSON, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County granting the motion for judgment on the pleadings filed by Win-Vent, Inc., the appellee at bar. We affirm.

Samuel and Sylvia Feingold, the appellants at bar, entered into an agreement for the purchase from and installation of windows and frames by Charles Noska, who was acting as an agent for Win-Vent. The Feingolds claim that Yellow Freight delivered the windows in June or July of 1981 in a damaged condition. The Feingolds did not accept delivery of the windows. A repaired shipment of windows was delivered by Yellow Freight in September or October of 1981. Again, the Feingolds did not accept delivery of this shipment. The Feingolds filed a civil complaint for breach of contract against Noska and Win-Vent on September 22, 1986.

Subsequently, Win-Vent brought a motion for judgment on the pleadings, contending that there were no issues of material fact because the Statute of Limitations and the Statute of Frauds barred the Feingolds’ claim. Judge Nicholas D’Alessandro agreed with Win-Vent that the Statute of Limitations had expired prior to the filing of the Feingolds’ complaint; accordingly, on July 7, 1988, Judge D’Alessandro granted Win-Vent’s motion for judgment on the pleadings. This appeal followed.

On appeal, the Feingolds set forth one issue for our review: whether the trial court erred when it dismissed the Feingolds’ cause of action based upon the expiration of a four-year statute of limitations period. The Feingolds contend that a twelve-year statute of limitations period is applicable to this case because the windows at issue are not goods, as found by the trial court, but fixtures. Specifically, they contend that “the windows [sic] does not become a fixture only after it has been installed. A window becomes a fixture where there is an intent to install the window____ A window has no existence independent of its installation in a building or other structure.” Brief for Appellant at 5.

In the alternative, the Feingolds claim that a six-year statute of limitations period should be applied here because this case involved a written contract. Finally, the Feingolds claim that even if the four-year limitations period is applicable, their claim was timely filed. Here, the Feingolds allege that false and misleading representations by Win-Vent tolled the limitations period. The Feingolds’ arguments are unpersuasive.

The Uniform Commercial Code [hereinafter “UCC”] has been adopted by the Commonwealth of Pennsylvania. See 13 Pa.Cons.Stat.Ann. Section 1101. The UCC applies to all contracts for the sale of goods. See 13 Pa.Cons.Stat. Ann. Section 2102. The UCC defines “goods” as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities ... and things in action.” 13 Pa. Cons.Stat.Ann. Section 2105(a). As interpreted by this court, the term “goods” generally “has a very extensive meaning and embraces every species of property which is not real estate, choses in action, or investment securities or the like.” Duffee v. Judson, 251 Pa.Super. 406, 412, 380 A.2d 843, 846 (1977).

In Duffee, the appellee delivered a mobile home to the appellants pursuant to an oral contract for sale. This court reasoned that because the home was delivered from the buyer to the seller after the contract for sale, it was clearly movable at the time of its identification to the contract. The court noted that the buyer had not bought a mobile home that was affixed to a foundation in a permanent way, but, instead, he bought the mobile home from a retail seller who was able to transport the home to the buyer. Duffee, 251 Pa.Super. at 412, 380 A.2d 843. Accordingly, the court held that the mobile home was a “good” under the UCC and that the UCC governed the transaction. See also Frank B. Bozzo, Inc. v. Elec. Weld Div., 345 Pa.Super. 423, 498 A.2d 895 (1985) (The court held that steel mesh for use in road paving were goods under UCC); Belmont Industries, Inc. v. Bechtel Corp., 425 F.Supp. 524 (E.D.Pa.1976).

Fixtures, on the other hand, are statutorily defined in Pennsylvania as the following: “Goods are ‘fixtures’ when they become so related to particular real estate that an interest in them arises under real estate law.” 13 Pa.Cons. Stat.Ann. Section 9313. Recent Pennsylvania case law has defined a fixture as “an article of personal property which by reason of physical annexation to a building becomes in legal contemplation a part of the real estate.” Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 485 n. 4, 489 A.2d 262, 265 n. 4 (1985) (emphasis added); see also P.L.E. Fixtures Section 1 (1959 and Supp.1982).

In Catanzaro, a laborer at a high school sought to recover damages for injuries he sustained when he fell through a skydome at the school. The court held that the skydome, which had been installed in the roof of the building, was a fixture. In coming to its conclusion, the court analogized the skydome to a window, stating “windows have historically been held to be fixtures.” Catanzaro, 339 Pa.Super. at 485, 489 A.2d 262. In support of this proposition, the Catanzaro court cited 35 Am.Jur.2d, Fixtures, Section 93 (1967). Section 93 specifically refers to windows which have already been installed in or attached to realty, not windows which have been purchased but not installed. Section 5 of the same authority, however states that windows do not acquire the status of a fixture until they have been attached or affixed to property. 35 Am.Jur.2d, Fixtures, Section 35 (1967). Accordingly, windows may be either goods or fixtures, depending upon whether they are movable objects not attached to real estate, or because by their physical annexation to real estate they have become, in legal contemplation, part of the real estate.

In the case at bar, the Feingolds contracted for windows to be installed in their home. Upon delivery of the windows, the Feingolds found the windows unacceptable and refused to receive them. A second delivery was then attempted. Again, the Feingolds did not accept delivery. The windows were never installed in the Feingolds’ home. Thus, they never became fixtures. Furthermore, even though the windows were intended for permanent use on the Feingolds’ home, they were movable at the time of their identification to the contract. Accordingly, we find that the windows were goods, not fixtures, and the UCC is applicable to the transaction at bar.

Under the UCC, the statute of limitations applicable to claims for breach of contract for the sale of goods is four years. 13 Pa.Cons.Stat.Ann. Section 2725(a). A cause of action accrues under the UCC when the breach occurs, regardless of the aggrieved party’s lack of knowledge of breach. 13 Pa.Cons.Stat.Ann. Section 2725(b).

In the case at bar, the windows were delivered in June or July of 1981. They were not accepted by the Feingolds because they were allegedly defective. The second delivery, in September or October of 1981, was also refused because of alleged defects. Based on these facts, it is clear that the alleged breach occurred, at the very latest, in October of 1981. The Feingolds failed to file suit until September of 1986. Accordingly, they failed to institute their lawsuit within the prescribed four-year statutory period, and the trial court correctly held that their breach of contract claim was barred by the statute of limitations.

In the alternative, the Feingolds argue that their claim is based upon a written agreement. The Feingolds cite 42 Pa.Cons.Stat.Ann. Section 5527 to support their allegation that a cause of action based upon a writing has a six-year limitations period. The Feingolds note that in 1982 the limitations period for written contract actions was reduced to four years; however, they argue that the reduction in the limitations period is not applicable to their cause of action because their action accrued before the effective date of the statutory amendment. This argument is flawed.

The six-year statute of limitations provision cited by the Feingolds is inapplicable to this case. 42 Pa.Cons.Stat.Ann. Section 5527 states, in pertinent part:

The following actions and proceedings must be commenced within six years:
(2) An action upon a contract, obligation or other liability founded upon a bond, note or other instrument in writing, except an action subject to another limitation specified in this subchapter____
(5) Any civil action or proceeding which is neither subject to another limitation specified in this sub-chapter nor excluded from the application of a period of limitation by section 5531 ...

42 Pa.Cons.Stat.Ann. Section 5527 (emphasis added).

Included in the subchapter which contains 42 Pa.Cons. Stat.Ann. Section 5527 is Pa.Cons.Stat.Ann. Section 5525. Section 5525, in effect at the time that Section 5527 was promulgated, lists actions with a four-year statute of limitations period. Incorporated therein is “any action subject to 13 Pa.C.S. Section 2725 (relating to statute of limitations in contracts for sale).” Pa.Cons.Stat.Ann. Section 5525(2). As we have already noted, the contract at bar is a sale of goods that fits within Section 2725. Clearly, the six-year limitation provision that the Feingolds cite is, in fact, “subject to another limitation specified” in the subchapter pertaining to limitation periods. Accordingly, a six-year statute of limitations period is not applicable to the case at bar.

Finally, the Feingolds argue that if a four-year statute of limitations period is applicable, it was tolled by the representations of Win-Vent and Noska that a third shipment of windows would be delivered. The Feingolds, however, fail to note where in the record there is support for this claim. After a thorough review of the record, we are also unable to find any evidence in the record to substantiate this allegation. A bald assertion by counsel in an appellate brief, without support in the record, cannot uphold a claim on review. See Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983).

Order affirmed.

      . Win-Vent subsequently filed suit against Yellow Freight as an additional defendant. This complaint sought contribution or indemnity from Yellow Freight in the event that Win-Vent was found liable on the Feingolds’ cause of action. Because we affirm the Order of the trial court dismissing the Feingolds’ action, it is unnecessary to address the issue of contribution or indemnity.

      . We note that the "statement of the case” in the Feingolds’ brief contains an imbalanced version of the facts of the case and a substantial amount of argument, case law, and legal conclusions. See Brief for Appellant at pp. 4-10. Rule 2117(b) of the Pennsylvania Rules of Appellate Procedure specifically prohibits this conduct: “The statement of the case shall not contain any argument. It is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties.” Even though appellants’ counsel has repeatedly violated this rule in previous briefs to this court, we shall review the merits of his clients’ claims. We do, however, once again admonish counsel to comply with the rules of this court.