author: ROWLEY, Judge:

text:
    480 A.2d 1245
    COMMONWEALTH of Pennsylvania, Appellant, v. Clifton F. BEST, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed Aug. 24, 1984.
    Petition for Allowance of Appeal Denied March 21, 1985.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Charles A. Cunningham, Philadelphia, for appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   ROWLEY, Judge:

On July 10, 1981, appellee was charged with attempted murder, criminal conspiracy, simple and aggravated assault, possession of an instrument of crime and recklessly endangering another person, as a result of a vicious assault on an innocent victim that led to extensive personal injuries, some visible, some permanent. Appellee entered a counseled plea of guilty on January 7, 1982. Appellee was initially sentenced on March 17, 1982 to two consecutive five-to-ten year periods of incarceration for attempted murder and criminal conspiracy, and to a consecutive term of two and one-half to five years for possession of an instrument of crime. Upon reconsideration of sentence on April 14, 1982, the sentences for attempted murder and possession of an instrument of crime were vacated. The sentence for criminal conspiracy was allowed to stand and appellee was also sentenced to a consecutive five-to-ten year period of incarceration for aggravated assault. Appellee then presented a motion to withdraw his guilty plea on May 14, 1982, on the ground that the on-the-record colloquy was defective for failure to adequately address the presumption of innocence. The motion to withdraw the guilty plea was granted on July 7, 1982, and the Commonwealth has filed this direct appeal.

The Commonwealth argues that the guilty plea colloquy was not defective and that the lower court erred in allowing its post-sentence withdrawal merely because appellee’s counsel did not use the words “presumption of innocence” in the plea colloquy. The Commonwealth maintains that the defendant failed to present evidence demonstrating a manifest injustice, the standard for post-sentence plea withdrawal. An examination of the comprehensive colloquy and the following relevant information conveyed to appellee regarding the presumption of innocence reveals that appellee’s plea was knowing, voluntary and intelligent. Appellee’s counsel advised appellee of the following:

MR. CUNNINGHAM: Now you would not have to present any evidence whatsoever during your trial. The burden of proof would be on the Commonwealth, and the Commonwealth alone. Do you understand that?
THE DEFENDANT: Yes.
MR. CUNNINGHAM: And, that the Commonwealth would have to prove your guilt to each and every one of those twelve jurors beyond a reasonable doubt. Do you understand that?
THE DEFENDANT: Yes.
MR. CUNNINGHAM: So that if just one of those jurors did not believe that you were guilty, you could not be found guilty. Do you understand that?
* * * * if! *
MR. CUNNINGHAM: Do you also understand that each and every one of those twelve jurors would have to be convinced of every element of each and every crime that you were charged with before they could find you guilty?
THE DEFENDANT: Yes.
MR. CUNNINGHAM: Do you understand that?
THE DEFENDANT: Yes.
MR. CUNNINGHAM: So that if there was an element of a crime that was not proved beyond a reasonable doubt by the Commonwealth, the jury would be instructed that they could not find you guilty of that crime. Do you understand that?
THE DEFENDANT: Yes.

(Notes of Testimony, January 7, 1982, pp. 18-20.)

The Assistant District Attorney also questioned appellee in the following manner:

MR. LEVIN: Do you understand that if you gave up your right to be tried by a jury you could also choose to be tried by Judge Katz sitting alone. And all the rules of the trial would be exactly the same. The only difference would be that Judge Katz alone would make the decision whether or not he was convinced beyond a reasonable doubt that you were guilty of the offenses charged, and the difference being if you had a jury, twelve people would have to be picked.
If there was a jury there could be a disagreement, and if there was a disagreement you couldn’t be acquitted, and you couldn’t be found guilty, a hung jury. Then the Commonwealth would have the duty to come back and retry you. Do you understand that?
THE DEFENDANT: Yes, sir.
MR. LEVIN: Do you understand, sir, that no matter how you chose to be tried, if you went to trial the Commonwealth would have to find you guilty beyond a reasonable doubt. And, beyond a reasonable doubt is what they call a word of art. The case law defines what it is. I have to define what a reasonable doubt is before you can plead guilty. A reasonable doubt has been defined variously as that type of doubt which would cause a prudent person, meaning somebody with some sense, to stop and hesitate or restrain themselves in some manner of utmost importance in their life. It doesn’t mean which shirt to wear when they wake up in the morning, a matter of utmost importance, signing in the army, should I get married, should I buy a house. Somebody considering that type of decision. If after hearing the evidence they stopped and hesitated, that would be what’s called a reasonable doubt. Do you understand that, sir?
THE DEFENDANT: Yes, sir.

(Notes of Testimony, January 7, 1982, pp. 32-34.)

After reviewing the entire record, we hold that the mere failure of defendant’s counsel to use the words “presumption of innocence” in the instant case does not render the colloquy defective and that the appellee has not demonstrated any manifest injustice.

It is well established that the proper standard required to withdraw a guilty plea submitted to a trial court after sentencing is “a showing of prejudice on the order of manifest injustice.” Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982); Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). This standard was imposed in order to avoid the use of the plea proceeding as a sentence-testing device. In Shaffer, Justice Flaherty aptly pointed out that the defendant must demonstrate that the “plea was not voluntary or that the plea was entered without knowledge of the charge such that refusing to allow the petitioner to withdraw his plea would amount to a manifest injustice.” Commonwealth v. Shaffer, 498 Pa. at 347, 446 A.2d at 593. Here, as in Shaffer, appellee has not established or argued that his plea was involuntary or without knowledge of the charges against him. Instead, appellee maintains that his plea was invalid because he was not informed that he was “presumed innocent” until proven guilty. The trial court determined that this, by itself, was an adequate reason to allow appellee to withdraw his plea. We cannot agree.

The trial judge relied on Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), wherein, the Supreme Court reversed the defendant’s conviction because he had not been informed during the guilty plea colloquy of the presumption of innocence. The Supreme Court observed that the Comments to Rule 319(a) of the Pennsylvania Rules of Criminal Procedure recommend that certain questions be asked during a colloquy in order to protect the defendant’s rights. These questions include an inquiry into the defendant’s understanding that he is presumed innocent until proven guilty. The Court stated that the failure to satisfy the minimal requirements outlined in the Comments to Rule 319(a) would result in reversal. See also, Moore v. Commonwealth, 477 Pa. 512, 384 A.2d 1206 (1978).

Initially, we note that the Comments to Rule 319(a) state that “[i]t is difficult to formulate a comprehensive list of questions a judge must ask of a defendant in determining whether a judge should accept the plea of guilty ... at a minimum, the judge should ask questions to elicit the following information ...” (emphasis added.) In Commonwealth v. Seibert, 305 Pa.Super. 321, 451 A.2d 552 (1982), (cited with approval by the Supreme Court in Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), our court held that the failure of the trial court to specifically advise appellant that he was presumed innocent did not render the plea colloquy defective where the “essential ingredients” of the presumption of innocence were explained to the defendant. The court distinguished Willis on the ground that the colloquy in that case did not address the concept of proof beyond a reasonable doubt or the presumption of innocence. The court stated:

In the instant case, the “essential ingredients” of the presumption of innocence were explained to Appellant. By informing him that the verdict must be unanimous “before a jury could find you guilty”, Appellant was advised that the jury would not even have the power to find him guilty until the condition of unanimity had been fulfilled. Since a person is innocent until he has been found guilty, the foregoing phrase in the instant case conveyed the “essential ingredients” of the concept, presumption of innocence.

Id. 305 Pa.Super. at 326-327, 451 A.2d at 554. In Commonwealth v. Shaffer, supra, the Supreme Court held that the failure to explain the elements of a crime to the defendant did not render the colloquy defective. The Court examined the totality of the circumstances surrounding the plea and determined that appellant had failed to establish prejudice on the order of manifest injustice. The Court observed that sanctioning automatic reversal upon a determination that the elements of the crimes were not recited during the colloquy “would depart from reason in this case, by ignoring the circumstances of the entry of the plea, the obvious motives of the defendant, and the prejudice to the Commonwealth; blind adherence to a per se rule would not, in this case, comport with any notion of remedying a ‘manifest injustice’.” 498 Pa. at 349, 446 A.2d at 594. See also, Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982) (applying totality of circumstances test, the court determined that the failure to inform defendant of requirement of unanimous jury verdict did not constitute manifest injustice and did not affect validity of plea).

More recently, in Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982), affirmed 504 Pa. 551, 475 A.2d 1303 (1984) this court determined that the omission of a unanimity statement from the colloquy was not a per se defect, and thus, the trial court’s denial of a pre-sentence motion to withdraw a guilty plea was upheld. In that case, the court stated:

t is far more reasonable and sound to declare that while such an omission sounds in neglect, it does not, without more — specifically, prejudice — create a per se defect. It is only when appellate scrutiny of the entire record results in the conclusion that prejudice has occurred, that such an omission can rise to a defect and the voidable should become void.

Id. 307 Pa.Super. at 320, 453 A.2d at 604.

Applying the above principles to the facts in this case, we conclude that the “essential ingredients” of the presumption of innocence were explained to appellee and that the record is devoid of any showing of prejudice on the order of manifest injustice. The comprehensive colloquy herein clearly conveyed the presumption of innocence concept to the appellee. As in Commonwealth v. Seibert, supra, appellee was informed that all twelve jurors would have to be convinced beyond a reasonable doubt of every element of each crime before he could be found guilty. Appellee was likewise advised that the Commonwealth had the burden of proof and that if any of the jurors disagree, he would not be found guilty. When appellee was informed that the members of the jury had to agree “before they could find [him] guilty” he was, in effect, informed that he was innocent until proven guilty. Indeed, appellee was questioned concerning his understanding of the concepts of guilt beyond a reasonable doubt and unanimity of the jury in open court by his own counsel, and then the assistant district attorney repeated that inquiry in greater detail. The record of the colloquy reveals that appellee’s plea was voluntarily, knowingly, and intelligently tendered and there has been no showing that the absence of the words “presumed innocent” affected the validity of his plea. Appellee openly and freely admitted his guilt when he entered a valid guilty plea. Additionally, the presumption of innocence had been recently explained to him at a guilty plea colloquy attendant to prosecution on other charges unrelated to the case at bar. In light of the circumstances in this case, we conclude that the trial court erred in granting appellee’s motion to withdraw his guilty plea.

For the foregoing reasons, the Order of the trial court granting appellee’s motion to withdraw his guilty plea is reversed.

Jurisdiction relinquished.

      . Reconsideration of the sentence was granted on the ground that more than one conviction for offenses designed to culminate in a single crime is prohibited by 18 Pa.C.S.A. § 906.

      . The comments to Pa.R.Crim.P. Rule 319(a), 42 Pa.C.S.A., state in part:
      At a minimum the judge should ask questions to elicit the following information:
      (1) Does the defendant understand the nature of the charges to which he is pleading guilty?
      (2) Is there a factual basis for the plea?
      (3) Does the defendant understand that he has the right to trial by jury?
      (4) Does the defendant understand that he is presumed innocent until he is found guilty?
      (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
      (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    480 A.2d 1249
    Gerard CAPONE, Jr., Gerard Capone and Maria Capone, his wife, Appellants, v. J. Arnold DONOVAN, Jr., M.D. and M.J. Stackowski, M.D.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed Aug. 24, 1984.

      Ambrose R. Campana, Williamsport, for appellants.
    Paul A. Barrett, Scranton, for Donovan, appellee.
    Diane L. Anderson, Philadelphia, for Stackowski, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

If a plaintiff’s football injury has been misdiagnosed and mistreated successively by several physicians so as to result in a permanent injury, does settlement with one physician bar an action against the other physicians? The trial court held that a second action was barred and entered summary judgment in favor of the physicians. We reverse.

Gerard Capone, Jr., sustained a broken arm during football scrimmage at Bucknell University on September 13, 1977. He was treated the same day by Doctors J. Arnold Donovan, Jr., and M.J. Stackowski, who took x-rays and applied a long-arm cast. During succeeding weeks, while he continued to be treated by Doctors Donovan and Stackowski, Capone’s arm failed to heal properly. On October 7, 1977, Capone went to see Dr. Anthony J. Pérsico, a physician who practiced in the vicinity of Capone’s home in New Jersey. Pérsico took additional x-rays and applied a splint wrapped in an ace bandage. Capone saw Dr. Pérsico three or four times but discomfort resulted from the continued failure of the arm to heal. Finally, when in July, 1978 the arm still had not healed, Capone visited Dr. Francis P. Milone. Milone performed surgery to correct the injury. He told Capone that, because of the nature of the fracture, surgery should have been performed immediately after the injury was sustained.

Capone and his parents commenced an action in the courts of New Jersey to recover damages attributable to Dr. Persico’s failure to make a correct diagnosis and render proper treatment. That case was settled for the sum of $25,000. A release was executed as follows:

KNOW ALL MEN BY THESE PRESENTS:
That MARIA CAPONE hereinafter designated as the Releasor, for and in consideration of the sum of Twenty-Five Thousand and no/100__________
($25,000.00) Dollars lawful Money of the United States of America, to the Releasor in hand paid by ANTHONY J. PERSICO, M.D. hereinafter designated as the Releasee, the receipt whereof is hereby acknowledged, has remised, released and forever discharged, and by these Presents does remise, release and forever discharge the said Releasee of and from all debts, obligations, reckonings, promises, covenants, agreements, contracts, endorsements, bonds, specialties, controversies, suits, actions, causes of actions, trespasses, variances, judgments, extents, executions, damages, claims or demands, in law or in equity, which against the said Releasee, the Releasor ever had, now has or hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these Presents.
More particularly from any and all claims arising out of a lawsuit instituted in the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6350578MM.

Capone and his parents also commenced the instant malpractice action against Doctors Donovan and Stackowski in which the trial court entered summary judgment in favor of the physicians. In an appeal from that judgment, Capone argues that the physicians were not joint tortfeasors and that, in any event, the trial court erred in entering summary judgment.

If the tortious conduct of two or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently. Restatement (Second) of Torts § 879 (1977). See: Pratt v. Stein, 298 Pa.Super. 92, 150, 444 A.2d 674, 704-705 (1982); Voyles v. Corwin, 295 Pa.Super. 126, 130, 441 A.2d 381, 383 (1982); Lasprogata v. Qualls, 263 Pa.Super. 174, 179 n. 4, 397 A.2d 803, 805 n. 4 (1979). If two or more causes combine to produce a single harm which is incapable of being divided on a logical, reasonable, or practical basis, and each cause is a substantial factor in bringing about the harm, an arbitrary apportionment should not be made. Restatement (Second) of Torts § 433A Comment i (1977); Prosser, Law of Torts § 47, p. 330 (1941). Whether harm is capable of apportionment is a question of law for the court. Voyles v. Corwin, supra; Lasprogata v. Qualls, supra, 263 Pa.Superior Ct. at 181, 397 A.2d at 806; Restatement (Second) of Torts § 434(l)(b) (1977). Most personal injuries are by their very nature incapable of division. Restatement (Second) of Torts § 433A, Comment i (1977). In the instant case, the harm allegedly caused to appellants-plaintiffs by the failure of three physicians to diagnose and/or treat properly the broken arm sustained by Gerard Capone, Jr., was incapable of division among the physicians on a “logical, reasonable, or practical basis.”

It is appellants’ contention that Doctors Donovan, Stackowski and Pérsico misinterpreted x-rays and, therefore, failed to diagnose Capone’s injury as a Monteggia fracture of the arm. As a consequence, they failed to treat the injury properly and thus caused a permanent, partial loss of motion of the elbow. In addition to a diminished future earning capacity, it is alleged, the failure to treat the injury properly caused unnecessary pain and suffering to Capone and a loss of services to his parents. Appellants did not allege that Dr. Pérsico, who treated Capone after Doctors Donovan and Stackowski, had aggravated an existing condition. They contended, rather, that Pérsico had failed to correct a deteriorating condition of the elbow and that the alleged malpractice of all treating physicians combined to produce a permanent injury.

Under these circumstances, Capone’s permanent injury was not susceptible of a logical apportionment among the treating physicians; any attempt to do so would necessarily result in an arbitrary division. The duty of care owed by each physician was the same; the alleged negligence of each was the same; and the harm caused as a result of their combined negligence was single and indivisible. The physicians, therefore, were joint tortfeasors. See: Pratt v. Stein, supra; Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 473-474, 424 A.2d 902, 906-907 (1981).

It does not follow that the release given to Dr. Pérsico effected a release of Doctors Donovan and Stackowski. By statute it is provided in Pennsylvania that,

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.

42 Pa.C.S. § 8326.

The law is clear, therefore, that the release executed by plaintiffs to Dr. Persico was ineffective to release Doctors Donovan and Stackowski unless the release so provided. See: Sochanski v. Sears, Roebuck Co., 689 F.2d 45, 48 n. 2 (3d Cir.1982); Brown v. Pittsburgh, 409 Pa. 357, 362, 186 A.2d 399, 402 (1962). Cf. Lasprogata v. Qualls, supra. The release executed upon settlement of the New Jersey action against Dr. Pérsico purported to release Dr. Pérsico alone. Such a release did not effect a release of Doctors Donovan and Stackowski. The only effect of the release was to require a reduction in any verdict recovered against them by the sum of $25,000 already paid in settlement of the New Jersey action against Dr. Persico. See: Sochanski v. Sears, Roebuck Co., supra; Pilosky v. Dougherty, 179 F.Supp. 148, 150 (E.D.Pa.1959); Daugherty v. Hershberger, 386 Pa. 367, 126 A.2d 730 (1956).

The plaintiffs are entitled to only one satisfaction for the harm which they have sustained. See: Brown v. Pittsburgh, supra; Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959); Lasprogata v. Qualls, supra. Whether the sum of $25,000 recovered from Dr. Persico represented recovery in full will be an issue of fact for the jury. The present state of the record does not permit a court to determine as a matter of law that plaintiffs have already recovered in full for the harm caused by the alleged mistreatment of the football injury sustained by Gerard Capone, Jr. When the trial court attempted to determine summarily that a full recovery had been achieved, it fell into error.

Reversed and remanded for further proceedings.

      . This action was initially commenced in the United States District Court for New Jersey, was subsequently transferred to the Pennsylvania Arbitration for Health Care Panel, and came to rest finally in the Court of Common Pleas of Union County.

      . We recognize that Capone may have a separate claim against the appellee physicians for unnecessary pain, if any, caused by a failure to treat the arm properly before treatment by Dr. Pérsico began.


author: ROBERTS, Judge:

text:
    480 A.2d 1252
    COMMONWEALTH of Pennsylvania v. Bernard CARTER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Aug. 31, 1984.

      Scott L. Kelley, Hanover, for appellant.
    Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   ROBERTS, Judge:

Appellant was found guilty by a jury of rape, involuntary deviate sexual intercourse, and simple assault in connection with an incident at the York County Prison. After the denial of post-verdict motions but prior to sentencing, appellant filed a petition for relief under the Post-Conviction Hearing Act, in which appellant challenged the effectiveness of his trial counsel.

On May 3, 1982, after an evidentiary hearing, the Court of Common Pleas of York County denied the petition. Appellant took the present appeal, No. 190 Harrisburg, 1982, from the denial of relief under the PCHA.

Appellant was sentenced on June 21, 1982, to a term of imprisonment of five to ten years on the count of rape, and sentence was suspended on the remaining counts. Another appeal, No. 259 Harrisburg, 1982, was taken from the judgment of sentence so imposed, although that appeal is not now before this Court.

The present appeal from the denial of relief under the PCHA, taken as it was from an order entered prior to the imposition of a final judgment of sentence, may not be considered, any more than could be considered an appeal from the order disposing of appellant’s initial post-verdict motions. See, e.g., Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977). The appeal is, therefore, dismissed.

Appeal dismissed.


author: HOFFMAN, Judge:

text:
    481 A.2d 319
    Matthew J. AUGUSTINE and Michael H. Augustine, minors, By their parents and natural guardians, Henry D. AUGUSTINE and Joanne C. Augustine, and Henry D. Augustine and Joanne C. Augustine, in their own right, Appellants, v. Juan F. DELGADO, M.D., John Pagana, M.D., and Sunbury Community Hospital.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed July 13, 1984.
    Reargument Denied Sept. 21, 1984!
    Petition for Allowance of Appeal Denied Feb. 21, 1985.

      Richard C. Angino, Harrisburg, for appellants.
    Christian S. Erb, Jr., Harrisburg, for appellees.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in (1) permitting the testimony of Dr. Naeye, one of appellees’ expert witnesses; (2) excluding a significant part of the deposition of Dr. Perkins, one of appellants’ experts; and (3) allowing defense counsel to aver an “unfavorable inference” from appellants’ failure to call certain expert witnesses. Upon thorough review of the record and complete exploration of appellants’ claims, we conclude that there was no error and, accordingly, affirm.

The record reveals the following facts: On October 1, 1975, appellant Joanne Augustine gave birth to twin boys at the Sunbury Community Hospital in Sunbury, Pennsylvania. Appellee Dr. Juan Delgado, an obstetrician/gynecologist, cared for Mrs. Augustine during the course of her pregnancy. Following the twins’ birth, Dr. John Pagana, a pediatrician, assumed care of the children. In March, 1977, after the twins were diagnosed as suffering from cerebal palsy and mental retardation, appellants, Mrs. Augustine and her husband, brought suit on their own behalf and on behalf of their sons, alleging that the negligence of Sun-bury Hospital, and Drs. Delgado and Pagana caused the twins’ abnormalities. After lengthy pre-trial discovery and several continuances over a period of approximately two- and-one-half years, the jury trial ultimately commenced on June 15, 1981 and ended a month later. The jury, given a series of special interrogatories by the lower court, concluded that neither Dr. Delgado nor the Sunbury Community Hospital had committed negligence that was a substantial factor in the resulting injury. The jury found Dr. Pagana not negligent. Appellants’ post-trial motion, which was denied, and this appeal are limited to Dr. Delgado’s negligence, “the other defendants having bought their peace.” (Lower Court Opinion at 2).

The crux of appellants’ major contention, that the lower court erroneously permitted the testimony of Dr. John Naeye, concerns our interpretation of Pa.R.Civ.P. 4003.5, Discovery of Expert Testimony. This rule provides for the “[djiscovery of facts known and opinions held by an expert ... acquired or developed in anticipation of litigation or for trial----”, Pa.R.Civ.P. 4003.5(a) and, in pertinent part, states:

(1) A party may through interrogatories require
(a) Any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.
(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions or matters on which he has not been interrogated in the discovery proceedings.

Appellants, in emphasizing their specific allegations concerning Dr. Naeye’s testimony, cite the Explanatory Note following Rule 4003.5.

(6) To prevent incomplete or “fudging” of reports which would fail to reveal fully the facts and opinions of the expert or his grounds therefor, subdivision (c) provides that an expert’s direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony as set forth in his deposition and answer to interrogatories, separate report or supplements thereto. However, he may testify to anything regarding matters in which he was never questioned in the discovery proceedings. This is a new provision not expressly found in the Federal rule. It is implicit in the Federal rule. Where the full scope of the expert’s testimony is presented in the answer to interrogatories or the separate report, as provided in subdivisions (a)(1) and (2), this will fix the permissible limits of his testimony at the trial. But, if the inquirer limits his inquiry to one or more specific issues only, the expert is free to testify at trial as to any other relevant issues not included in the discovery. Therefore, what happens at trial may depend upon the manner in which the expert is interrogated. The inquirer may be well adviised to conduct his discovery broadly by paraphrasing the language at 4003.5(a), which will require the expert to state all his opinions and grounds, thus preventing surprise testimony at trial concerning grounds never raised during discovery.

Pa.R.Civ.P. 4003.5 Explanatory Note.

Appellants argue first, and we agree, that Pa.R. Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise. See Goodrich-Amram 2d § 4003.5:2 (“The outcome of litigation may be controlled by, or depend to a great extent on, the opinion of an expert, and simple fairness seems reason enough to allow the party against whom that opinion is to be used sufficient time after discovery to develop his case in light of that opinion.”). What constitutes surprise and prejudice, however, depends upon the pre-trial particulars of each case. In other words, sufficient time and opportunities to prepare for and counter expert testimony in one case may prove inadequate in another case. New Pennsylvania appellate court cases have addressed Rule 4003.5 because of its relatively recent promulgation. Allegheny County Rule 212, similar in relevant part to Pa.R.Civ.P. 4003.5, has been construed upon multiple occasions and offers guidance in solving the maze of expert witness discovery. Rule 212 provides, in pertinent part, that:

A. Plaintiff, on or before the date set forth in the notice accompanying the publication of the trial list;
(1) shall serve upon all parties a written statement containing:
(d) The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusions of the expert.

Allegheny County Local Rule 212. In Sindler v. Goldman, 309 Pa.Superior Ct. 7, 454 A.2d 1054 (1982), decided under Rule 212 and upon which appellants rely, the court noted:

The purpose of the discovery rules is to prevent surprise and unfairness and to allow a trial on the merits. When expert testimony is involved, it is even more crucial that surprise be prevented, since the attorneys will not have the requisite knowledge of the subject which would effectively rebut unexpected testimony. By allowing for early identification of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of expertise on the spot. Thus, the rule serves as more than a procedural technicality; it provides a shield to prevent the unfair advantage of having a surprise witness testify.

Id., 309 Pa.Superior Ct. at 12, 454 A.2d at 1056. In Sindler, the defendant, a physician, did not offer expert opinions when he was deposed; he merely testified as a party. The plaintiffs requested a new trial, however, challenging the part of the defendant’s testimony that was expert-in nature. This Court concluded that the plaintiffs’ ignorance of this proposed expert testimony, coupled with the lost opportunity for an effective rebuttal (because the plaintiffs’ witnesses had been previously videotaped), thwarted any opportunity for a fair trial. The Sindler court relied upon Gill v. McGraw Electric Co., 264 Pa.Superior Ct. 368, 399 A.2d 1095 (1979), wherein we outlined the following factors necessary to a determination of whether surprise, arising from alleged inadequate pre-trial discovery, resulted in unfair prejudice:

(1) the prejudice or surprise in fact of the party against whom the excluded witness would have testified;
(2) the ability of that party to cure the prejudice;
(3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in the court; and
(4) bad faith or willfullness in failing to comply with the court’s order.

Id., 264 Pa.Superior Ct. at 382, 399 A.2d at 1102. In Gill, the plaintiffs claimed that, contrary to a pre-trial order, they were not informed of two expert witnesses. The court concluded that the defendant’s conduct was prejudicial and “put [the plaintiffs] in the position of being unable to offer effective rebuttal — or any rebuttal — of [the defendant’s] experts.” Id., 264 Pa.Superior Ct. at 383, 399 A.2d at 1103. In Gill, as in Sindler, the prejudice inured from the plaintiffs not being informed prior to trial of the existence of the expert witnesses who subsequently testified.

Prejudice was also found to result from gaps in pretrial discovery, albeit in a different manner, in Starr v. Allegheny General Hospital, 305 Pa.Superior Ct. 215, 451 A.2d 499 (1982), and Bell v. Western Pennsylvania Hospital, 293 Pa.Superior Ct. 37, 437 A.2d 978 (1981). In Bell, again decided under Allegheny County Rule 212, a defense expert’s report submitted to the plaintiff summarily stated that the expert had reviewed the plaintiff’s records, could see no negligence on the defendant’s part and therefore would appear for the defense. The court determined that, because the report failed to include adequate findings and conclusions, the plaintiff was prejudiced by the expert’s trial testimony. In Starr, on the other hand, the appellant-plaintiff argued that the expert’s reports stated only that her medical condition did not result from the appellee-defendant’s negligence, and did not contain theories as to an alternative cause. The expert then testified at trial that the plaintiff’s condition was due to her initial injury and not to the defendant’s subsequent care. The court stated:

Although the reports do not specifically contain assertions to the effect that appellant’s condition was caused by the initial injury, there is no question that counsel for appellant [plaintiff] was fully aware of the event and, necessarily, in preparing the case, had to take into consideration the possibility that such injury was the cause precipitating her condition. Obviously, appellant was fully informed as to the incident, and certainly could not claim surprise at trial.

Id., 305 Pa.Superior Ct., at 229, 451 A.2d at 505. See also Nowosielski v. Kryzosiak, 480 Pa.Superior Ct. 243, 421 A.2d 703 (1980); Saks v. Jeanes Hospital, 268 Pa.Superior Ct. 578, 408 A.2d 1153 (1979).

More recently, our Court has had the opportunity to address specifically the questions of possible prejudice and appropriate sanctions under Pa.R.Civ.P. 4003.5. In Royster v. McGowen Ford, Inc., 294 Pa.Superior Ct. 160, 439 A.2d 799 (1982), the lower court granted a non pros after the plaintiff failed to answer expert interrogatories. We reversed and remanded for a determination of prejudice pursuant to the Gill factors, stating that

assuming that a party has not acted in bad faith and has not misrepresented the existence of all experts expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as the result of a dilatory disclosure.

Id., 294 Pa.Superior Ct. at 169, 439 A.2d at 804. Royster, however, involved the problem of the total non-disclosure of one expert. More on point is Kemp v. Qualls, 326 Pa.Superior Ct. 319, 473 A.2d 1369 (1984), where one issue on appeal was the late disclosure of an expert witness’s identity. In Kemp, opposing counsel was not informed of the existence of that witness until three days before trial and did not receive the expert’s qualifications until the day he testified. The court, relying upon Gill v. McGraw Electric Co., supra, wherein the Court emphasized the drastic nature of precluding expert testimony, noted that such preclusion must be decided under the facts of each case. The Kemp Court concluded:

In this case, it is apparent that the appellant has not demonstrated any real prejudice flowing from the Appellee Quail’s untimely disclosures of [the expert’s] identity and qualifications. The appellant had thirteen days in which to investigate the reputation and purported expertise of the witness prior to his testimony. Moreover, the lower court expressly offered to accommodate any difficulty caused to Appellant’s counsel by the late disclosures concerning [the expert].

Id., 326 Pa.Superior Ct. at 330, 473 A.2d at 1374.

Finally, in Klyman v. Southeastern Pennsylvania Transportation Authority, (J. 2484/83, filed April 19, 1984), our Court specifically applied Pa.R.Civ.P. 4003.5 in the context of the lower court’s refusal to permit an expert’s testimony. In Klyman, the plaintiff was involved in a collision with a bus. The plaintiff’s response to expert interrogatories was a letter, sent two months later, containing the curriculum vitae of the expert, Dimitry Sergay, and the following:

Mr. Sergay will testify to his calculations based on the thirty-two feet of skid marks and other evidence in the police report relating to the speed and control of the bus.

Id., slip op. at 5. Opposing counsel immediately requested further summary of the expert’s intended testimony. Because that was never provided, the lower court precluded Mr. Sergay’s testimony at trial. Our Court agreed, finding “[w]ithout question [that] appellant failed to comply with the requirements of Rule 4003.5.” Id., slip op. at 6.

The course of pre-trial discovery in the instant case has been well-summarized by the lower court:

[0]n May 19, 1981 ... defendant Sunbury Community Hospital’s counsel forwarded to all counsel a copy of a report from Richard L. Naeye, M.D., and indicated that Dr. Naeye would be called as a witness at trial, he had first been mentioned by another of the experts in a report of April 23, 1981.
On May 21, 1981, Sunbury’s counsel forwarded to all counsel a copy of Dr. Naeye’s curriculum vitae, and on May 22, 1981, all counsel received four 5" by 7" prints of slides taken by Dr. Naeye of placental tissue. On June 4, 1981 defendant Sunbury filed supplemental answers to plaintiffs’ first set of interrogatories listing witnesses and experts, including Dr. Naeye. On June 5, 1981, plaintiffs’ counsel wrote to defendant Sunbury’s counsel indicating opposition to Dr. Naeye testifying and stating that “if Judge Dowling permits him to testify, I intend to call Eugene Perrin, M.D., as a rebuttal witness.” Dr. Perrin was not called. On June 8, 1981, defendant Sunbury’s counsel provided Dr. Naeye’s written response to sixteen questions and requests for other detailed information submitted by plaintiff’s attorney in a letter dated May 29, 1981.
On June 9, 1981, defendant Sunbury’s counsel forwarded to [the] Augustines’ attorney a report of Dr. Naeye dated June 8, 1981, which contained the doctor’s interpretation of data derived from the United States Collaborative Perinatal Project. On June 10, 1981, a pre-trial conference was held at which time plaintiffs’ counsel asked that Dr. Naeye be prohibited from testifying... In order to allow the plaintiff further discovery, it was ordered that defendants produce Dr. Naeye for deposition at a time when plaintiffs’ counsel could have his expert pathologist present____ On the second day of trial, June 16, 1981, in the evening [plaintiffs’ counsel] took the discovery deposition of Dr. Naeye at the Hershey Medical Center.

(Lower Court Opinion at 2-3).

Appellants’ basic claim is that although they were aware of Dr. Naeye, they were, during the weeks prior to trial and throughout his actual testimony, subjected to and surprised by deviations in his theories and changes in his expert opinion. We have carefully reviewed the record, particularly focusing upon the period of time from appellants’ counsel’s awareness of Dr. Naeye through appellants’ rebuttal of Dr. Naeye’s testimony. Contrary to appellants’ assertions, we are unable to conclude that Dr. Naeye’s testimony unfairly prejudiced the preparation or presentation of appellants’ case.

According to the lower court, Dr. Naeye testified during the last week of a four-week trial, approximately 50 days after appellants were first informed of his possible participation in the case. From May 21, 1981 through June 8, 1981, appellants were supplied with reports and slides from Dr. Naeye, as well as answers to sixteen questions specifically submitted by appellants’ counsel. In addition, on June 9, 1981, appellees’ counsel forwarded a third report containing Dr. Naeye’s interpretation of data found in the U.S. Collaborative Perinatal Project. Although appellants’ counsel preserved his continuing objection to Dr. Naeye’s proposed testimony at this juncture, he failed to request a continuance to have additional time to study and develop a strategy to refute the testimony. The lower court then provided appellants with the opportunity to depose Dr. Naeye, albeit two days into the trial. Depositions or other discovery techniques are permitted pursuant to Pa.R.Civ.P. 4003.5(a)(2), which provides:

(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.

We read the rather clear language of this subsection to indicate that the trial judge is (1) not required to permit additional discovery and (2) may only permit it, if at all, upon a showing of good cause. Accordingly, appellants’ opportunity to depose Dr. Naeye is not to be considered routinely granted. Rather, in granting appellants this extremely beneficial opportunity to explore further Dr. Naeye’s proposed testimony the lower court sought to protect appellants from unfair surprise and prejudice.

Continuing our review, we come next to Dr. Naeye’s direct testimony, again, well-summarized by the court below:

On direct examination, Dr. Naeye testified basically as to three matters. The first was that of water intoxification. This was a subject which was developed in detail by the plaintiffs’ expert pathologist, Douglas R. Shanklin, M.D., who was on the stand over a three-day period. In essence, Dr. Naeye’s testimony on this subject was in rebuttal to the testimony of Dr. Shanklin. The second category of Dr. Naeye’s testimony concerned the effects of oxytocin and its potential for brain damage. This also had been discussed in detail by Dr. Shanklin and was a rebuttal of his conclusions. The third was a description of what he saw on the placental slides taken from the placenta in the birth of the Augustine twins. There were no surprises in this testimony as this matter had been fully revealed to plaintiffs’ counsel in the information previously supplied in Dr. Naeye’s deposition. Dr. Naeye was not asked, and did not express, an opinion as to the cause of the cerebral palsy in the twins.

(Lower Court Opinion at 4). Although appellants object to Dr. Naeye’s being permitted to testify at all, their primary objection is to Dr. Naeye’s response to a line of questioning on cross-examination where appellant’s counsel and Dr. Naeye maintained the following dialogue:

Q Mr. Rettig [appellees’ counsel] never asked you the question I am sure all of us would like to ask you. That is, some hypoxia does not mean the villous edema caused the brain damage that these babies have?
A No. But I feel that we certainly know what caused the brain damage.
Q You feel you certainly know?
A Uh-hum.
Q All right.

(N.T. July 13, 1981 at 86). Appellants’ counsel then specifically asked Dr. Naeye to “tell us if you certainly know [what caused the brain damage],” (N.T. July 13, 1981 at 86), and Dr. Naeye explained his theory that Mrs. Augustine’s low blood pressure was the primary cause of the twins’ brain damage. (Id.) Appellants now claim prejudice and surprise arising from the fact that Dr. Naeye had testified in his deposition that he did not know the cause of the placental swelling (villous edema). We agree with the lower court’s observations, however, that, in asking Dr. Naeye about the cause of the brain damage, appellants’ counsel ventured into “matters on which [Dr. Naeye] ha[d] not been interrogated in the discovery proceedings,” Pa.R. Civ.P. 4003.5(c), and therefore should have been prepared for the response. Appellants’ counsel may not, upon hindsight, aver that his question to Dr. Naeye at the deposition inferentially referred to the brain damage and not just to the cause of the edema.

Following the conclusion of Dr. Naeye’s cross-examination, which appellants characterize as “trial by ambush”, appellants again failed to request a continuance. The lower court did, however, permit appellants to present rebuttal testimony and granted appellants a weekend to prepare. To rebut Dr. Naeye’s theory, appellants called Dr. Emanuel Friedman, whose videotaped testimony had been presented as part of appellants’ case-in-chief. Appellants assert that this rebuttal was “too little, too late.” We disagree. There are many instances in the record where Dr. Friedman directly rebutted Dr. Naeye’s blood pressure theory. For example, after examining Dr. Friedman’s credentials as a result of his years of study in the area of blood pressure and pregnancy, and his extensive work on the United States Perinatal Collaborative Project, appellants’ counsel queried as follows:

Q Did you reach a conclusion that fluctuation or variation of blood pressure do not mean anything?
A That is entirely correct, sir.
Q So that if Dr. Naeye comes in there and he says that the drop in her blood pressure caused the brain damage, what is your opinion of that?

A There is no evidence to support that conclusion, sir. (N.T. July 13, 1981 at 834) (emphasis added).

At another point in Dr. Friedman’s rebuttal, the following occurred:

Q And Doctor, with regard to your book that you have in front of you, could we take just a few moments now to explain all of the different types of ramifications of blood pressure that you explored to find out whether sudden drops or sudden rises or consistently [sic] highs or drops for two weeks or drops for three months have any bearing at all?
A Yes sir.
Q In fact, would a sudden drop be an unusual phenomenon even of twenty points?
A Not at all.

{Id. at 841-42). See also N.T. July 13, 1981 at 853 (Dr. Friedman testifies that the literature does not support a finding that edema in the placenta is related to the health of the fetus); N.T. July 13, 1981 at 865 (Dr. Friedman states that Dr. Naeye’s conclusion that the problem occurred when Mrs. Augustine’s pressure dropped “is not based on factual material”.). Based on these segments of the rebuttal testimony and read in the context of Dr. Friedman’s entire testimony, appellants clearly had the opportunity to, and did, in fact, rebut Dr. Naeye’s testimony. Hence, we concur in the trial court’s determination that appellants had an excellent chance to cure any earlier prejudice.

In consideration of the appellate court cases discussed above, we conclude that the alleged prejudice in the instant case differs substantially from that demonstrated in the majority of those cases. Here, unlike the situations in Sindler, Gill and Royster, appellants commenced trial with full knowledge of Dr. Naeye’s participation. Further, unlike the situations in Bell and Starr, appellants were given adequate reports, slides and an opportunity to depose orally the expert, Dr. Naeye. As in Kemp, appellant had time to investigate Dr. Naeye’s theory and qualifications and the lower court accommodated appellants by ordering the deposition. Moreover, in the instant case, appellants could have sought a continuance at several stages of the trial and did not. Finally, in analyzing the events according to the factors detailed in Gill, we conclude that appellants had the ability and opportunity to cure any prejudice or surprise and that appellees did not demonstrate such bad faith as to require the drastic sanction of precluding Dr. Naeye’s testimony.

Appellants contend also that the lower court erred in excluding a portion of the deposition of one of their experts for trial. Specifically, appellants object to the lower court’s refusal to permit the verbatim reading of Dr. Perkin’s report. Upon appellees’ objections, the lower court concluded that portions of the letter were irrelevant and prejudicial. Evidentiary rulings are clearly within the discretion of the trial court. Here, we find that the lower court did not abuse its discretion in concluding that portions of Dr. Perkins’ letter were hearsay and in allowing only the relevant, informative portions of the letter to be read to the jury. See Ulansey v. Juniata Park Medical Center, Inc., 406 Pa. 389, 178 A.2d 547 (1962).

Lastly, appellants challenge the lower court’s allowing appellees’ counsel to draw an adverse inference from appellants’ failure to call two pediatric neurologists who had been involved with the twins’ diagnosis and care. It is well-settled that “[s]o long as no liberties are taken with the evidence, a lawyer is free to draw such inferences as he wishes from the testimony and to present his case in the light most suited to advance his cause and win a verdict in the jury box.” Contractors Lumber and Supply Co. v. Quinette, 386 Pa. 517, 522, 126 A.2d 442, 444 (1956). The record here reveals that both neurologists were actively involved in the twins’ care prior to the lawsuit. Therefore, we agree with appellees that “it was certainly proper argument to point out the obvious fact that, although in an advantageous position to do so, (being pediatric neurologists) neither physician had presented any liability testimony in support of plaintiffs’ theory.” (Appellee’s Brief at 41). Accordingly, we conclude that appellees’ counsel, in pointing out this omission to the jury, did not take liberties with the evidence but instead, made an appropriate comment in his closing argument.

Based upon the above analysis and disposition of appellants’ claims, we affirm the lower court’s denial of appellants’ post-trial motion.

Affirmed.

      . Pa.RXiv.P. 4003.5 is substantially based on Fed.R.Civ.P. 26(b)(4), 28 U.S.C., which reads in pertinent part:
      (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

      . The Klyman court noted:
      Even without reliance on the Pennsylvania Rules of Civil Procedure, appellate decisions have addressed the trial court’s authority to control the admission of expert testimony. It is well established that the admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion. Laubach v. Haugh, [Haigh], 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, 287 Pa.Superior Ct. 28, 429 A.2d 703 (1981).

        Klyman v. Southeastern Pennsylvania Transportation Authority, (J. 2494/83, filed April 19, 1984), slip op. at 5.

      . Notwithstanding appellants’ lengthy discussion of events from the filing of the complaint in March, 1977, to the spring of 1981, we believe it is unnecessary to address what occurred during that time, finding that any alleged surprise and prejudice to the preparation of appellants’ case would have occurred since May, 1981.

      . Appellants note that Dr. Naeye refused to let his unpublished scientific papers be reviewed. While this fact is somewhat disconcerting, in light of Dr. Emanuel Friedman’s obvious expertise in this area, and his ability to effectively rebut Dr. Naeye’s testimony, see opinion at 327-328, infra, and the amount of time appellants had to investigate Dr. Naeye’s background and theory, we cannot find this fact alone — or even coupled with other allegations of prejudice — sufficient to require a new trial.

      . The use of the term "appellees’ counsel” throughout this opinion is a reference to the different counsel for the several defendants. As noted in the text, defendant Delgado is the only actual appellee in the instant appeal.

      . Appellants rely in part on Pa.R.Civ.P. 4007.4’s requirement that a party has an obligation not only to supplement a discovery response as to the identity of an expert expected to testify, and the substance of his testimony, but also to amend seasonably a response if an initial answer is no longer true. Upon review of the pre-trial discovery relating to Dr. Naeye’s subsequent testimony, we find that appellees’ counsel acted properly and did not violate this rule.

      . Issues not objected to in the lower court are usually considered waived on appeal. Pa.R.A.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Although appellants’ counsel did not specifically object below to Dr. Naeye’s answer on cross-exam-¡nation that appellants consider to be inconsistent with his deposition testimony, we will address the issue because appellants’ counsel preserved his objection to Dr. Naeye’s entire testimony throughout the trial and because the issue has been sufficiently briefed by both sides.


author: WICKERSHAM, Judge: WIEAND, Judge,

text:
    481 A.2d 328
    James H. WILSON and Louella Hynson v. Ricardo BENJAMIN, Individually and as President of American Federation of Government Employees, Lodge No. 1350 and American Federation of Government Employees, Lodge No. 1350, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1983.
    Filed July 27, 1984.

      James A. Lynch, III, Havertown, for appellants.
    David C. Harrison, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WICKERSHAM, Judge:

This appeal involves a defamation action brought by plaintiffs-appellees James Wilson and Louella Hynson seeking damages from defendants-appellants Ricardo Benjamin, individually and in his capacity as President of the American Federation of Government Employees, Lodge No. 1350, and the Lodge itself, for injuries sustained when Benjamin caused certain articles to be printed and distributed which the appellees allege were libelous in nature.

Both appellees and appellant Benjamin were employees at the United States Naval Hospital in Philadelphia. In November of 1976 appellee James Wilson applied for a promotion to the position of foreman in the food management division of the hospital. The application was made pursuant to a notice that two such positions were open. A rating panel was convened and, after reviewing Wilson’s application, the panel rated him as “qualified.” Three other applicants were rated “highly qualified;” two of these “highly qualified” applicants were awarded the positions. .

Since Mr. Wilson had previously been rated “highly qualified” when he applied for the same position, and because he felt that he had been unfairly rated by the most recent panel, he filed an informal grievance and asked appellee Louella Hynson to act as his representative. Eventually, Wilson retained counsel and filed a formal grievance, which was sustained. Despite the affirmative response to his formal grievance, Wilson was still unable to obtain the desired promotion since the position had already been filled.

In the meantime, while the appellees were involved in the grievance procedure, appellant Ricardo Benjamin, who was president of the appellant union, caused two (2) newsletters to be published which appellees allege to be libelous in nature. One of the newsletters was posted on the bulletin board; the other was distributed directly to union members.

These newsletters referred to the informal grievance filed by appellees. Mr. Wilson had submitted the informal grievance in the form of a letter written by Mrs. Hynson as his representative. In that letter, the appellees questioned the composition of the rating panel in that one of the members of the panel was quite friendly with one of the applicants (who was rated “highly qualified” and was ultimately selected for the position) and that another applicant (who was also rated “highly qualified”) was a subordinate of one of the panel members. Appellant Benjamin argues that he subsequently wrote the newsletters solely to defend a member of the rating panel whom he felt was being attacked by the appellees’ letter and to criticize the conduct of a third party, Thomas Marshall, for his attempt to resort to the “buddy system” to determine who would be promoted. Benjamin testified that the newsletters criticized Marshall’s conduct and were not defamatory as to Wilson or Hynson.

The Honorable Ethan Allen Doty, sitting without a jury, found, however, that the newsletters were libelous in nature and that, when read as a whole, they clearly referred to appellees. The court further concluded that, after their co-workers learned of the contents of the newsletters, appellees’ ability to perform in their respective positions was affected. The court entered a verdict in favor of James Wilson in the amount of $2,500.00 and in favor of Louella Hynson in the amount of $2,500.00 and against appellant Ricardo Benjamin, individually and as president of the American Federation of Government Employees, Lodge No. 1350 and against appellant union. Punitive damages were denied because, while appellees proved legal malice, actual malice was not established. Appellants filed exceptions to the verdict, which were denied on March 5, 1982. This appeal timely followed.

In Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983), we reiterated our scope of review in cases decided by a judge sitting without a jury:

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Cos., 284 Pa.Super. 260, 263, 425 A.2d 803, 804 (1981). When an appellate court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all the evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Brenna v. Nationwide Insurance Co., supra 294 Pa.Super. at 567-68, 440 A.2d at 611; Courts v. Campbell, 245 Pa.Super. 326, 331, 369 A.2d 425, 428 (1976).

Id., 312 Pa.Superior Ct. at 196, 197, 458 A.2d at 582.

With these standards in mind, we now turn to the first issue presented by appellants for our consideration:

Did the lower court have jurisdiction of the libel suit involving a union of federal employees?

Brief for Appellants at 4.

Appellants cite 5 U.S.C.A. § 185(c) for the proposition that the jurisdiction of all actions by and against federal labor organizations rests in the United States District Courts. Brief for Appellants at 11. We note that no such statute exists; title 5 of the United States Code does not contain a section 185. We assume, as did the appellees, that appellants are referring to 29 U.S.C. § 185(c), part of the National Labor-Management Relations Act, which provides:

§ 185. (c) Jurisdiction.
For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or
(2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.

While this section defines in which district court a specific suit against a labor union may be brought, it does not give exclusive jurisdiction of such cases to the federal courts. Thus, if appellants wanted the suit to be litigated in a federal court, they should have removed the case to the appropriate district court.

Furthermore, it is clear from the definition section of the National Labor-Management Relations Act, 29 U.S.C. § 152, that labor unions representing federal employees are not covered by the Act. Thus, the Act is inapplicable to the instant case, and even were it applicable, it does not grant exclusive jurisdiction of cases by or against labor unions to the federal courts.

Appellants point out that Community Medical Services of Clearfield, Inc. v. Local 2665, AFSCME, 292 Pa.Super. 238, 437 A.2d 23 (1981) held that the National Labor-Management Relations Act, 29 U.S.C. § 141, et. seq., preempts the power of state courts to award state remedies in labor dispute defamation cases unless the plaintiff pleads and proves both “actual malice” and damages, even if the alleged defamatory language would be actionable per se under state tort law. Brief for Appellants at 11. Appellants would have us decide that the lower court could not award damages since it found that “actual malice” had not been established. However, the lower court found, and we agree, that this case did not involve a union dispute. Appellee Wilson was not a member of the union and his private grievance did not involve the union. Therefore, the defamatory statements made by the union president (Benjamin) cannot be construed to have been made in the context of a labor dispute. Thus, Community Medical Services is inapplicable to the instant case.

Appellants’ next two arguments assert that the defamatory statements were privileged or otherwise fell into the realm of constitutionally protected free speech:

Were the alleged libelous publications privileged either absolutely, conditioned or qualifiedly?
Did the [Appellants’] publication fall within the realm of constitutionally protected free speech?

Brief for Appellants at 4.

Appellants argue that the defamatory statements made by appellants were privileged because they were made upon a proper occasion, from a proper motive, and were based upon reasonable or probable cause. See Morgan v. Bulletin Co., 369 Pa. 349, 352-354, 85 A.2d 869, 872 (1952). In support of their averments, appellants cite a number of cases which held that communications made in the course of grievance procedures in labor matters are conditionally or qualifiedly privileged. Brief for Appellants at 13-17. Appellants argue that the defamatory statements involved a matter of mutual interest to all members of the union and all parties concerned. Thus, discussion of the matter in the newsletters was both proper and privileged.

The lower court, however, found that the defamatory statements were not privileged.

[This] was not a matter of general interest to the union. The only people having any real interest were those in the rating panel, only one or two of which were union members, and possibly the applicants for the positions themselves. [Appellees] made no general attack on the union or Mr. Benjamin. See, General Motors v. Mendicki, 367 F.2d 66 (10th Cir.1966). The above case concerned defamatory statements made as part of and in the course of a grievance proceeding. The specific defamation in the instant case ... was clearly made to outsiders of the grievance proceeding, whose statements were not part of the proceeding. Therefore, this matter was not within the concern of the union president to try to resolve by bringing it out in the open.

Lower ct. op. at 5.

We find no error in the lower court’s analysis. Wilson’s grievance did not involve the union. He did not attack the union or charge it with any wrongdoing. The grievance concerned only Wilson and his chosen representative, Louella Hynson, the members of the rating panel, and those with whom the grievance was filed. The union had no interest in the grievance filed by appellees; therefore, the defamatory statements published by appellant Benjamin were neither conditionally nor absolutely privileged.

Appellants next rely on Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962) for the proposition that the statements published by appellant Benjamin were constitutionally protected free speech. Basically, Bogash held that the question of whether the language used in an allegedly defamatory article is indeed libelous is in the first instance a matter of law for the court. Id., 405 Pa. at 438-440, 176 A.2d at 678. The court held that under the facts of that case, although the plaintiff may have had his feelings hurt, he had not been defamed. Instantly, the factual situation is quite different. The lower court found that the statements were libelous in nature and that the appellees had suffered injury because of the defamatory statements. Furthermore, as already discussed, the matter did not concern the union; thus, the statements cannot be excused as involving the “rough and tumble affairs of labor unions.” See Brief for Appellants at 20. The statements made in the newsletters were not constitutionally protected free speech.

Appellants state their next issue as follows:

Was there any specific defamatory or libelous reference made about the individual [Appellees]?

Brief for Appellants at 4.

The lower court found that “[w]hen the articles are read as a whole, it is clear that these statements refer to the plaintiffs.” Lower ct. op. at 4. At page six of its opinion, the lower court cited specific examples of defamatory references to the appellees made in the newsletters; we need not go into further detail here. The court did not abuse its discretion in finding that the newsletters contained defamatory allegations that referred to appellees.

Appellants’ next issue is:

Was the [Appellant] BENJAMIN actuated by actual malice toward the [Appellees]?

Brief for Appellants at 4.

We admit to having difficulty in following appellants’ argument with regard to this issue. The lower court specifically held, and we agree, that the appellees failed to establish that appellants’ conduct was motivated by actual malice. Thus, the court refused to award punitive damages.

Appellants seem to argue that the statements were not libelous on their face and that the court should not read actual malice into the publication in order to prove that the statements were defamatory. The lower court found, however, that the statements were indeed libelous on their face and that legal malice had been established.

As previously noted, the statements were false and made without just cause, justification or privilege; [appellants] have accused [appellees] of disruptive activities, and fraud in Wilson’s attempt to gain a rightful rating. It certainly was done intentionally. The union had no interest in a routine grievance in which the union[’]s conduct was at no time challenged, and in which the union was not even asked to be a representative. Therefore, there was ‘legal malice.’

Lower ct. op. at 7.

Given this finding of legal malice, the award of compensatory damages was proper despite appellees’ failure to establish actual malice.

Appellants state the next issue for our consideration as follows:

Were the statements contained in the alleged publication true or justified?

Brief for Appellants at 5.

Appellants’ argument as to this issue goes to the credibility of the witnesses and the weight to be given the evidence. Viewing the evidence in the light most favorable to the appellees as verdict winners, see Mancini v. Morrow, supra, we find that the lower court did not abuse its discretion in finding that the defamatory statements were neither true nor justified.

Appellants’ final issue is:

Did the [Appellees] suffer any damages as a result of the publication?

Brief for Appellants at 5.

The lower court held that the defamatory statements made by appellants were libelous per se; that is, they were injurious on their face without the aid of extrinsic proof. Specifically, the newsletters, inter alia, falsely accused Wilson of misrepresenting his qualifications for the position sought; accused Hynson of defaming the integrity of a member of the rating panel; and made allegations of breaking and entering and stealing against both appellees. Since the statements were libelous per se, appellees did not have to establish special harm. See Restatement (Second) of Torts § 569. The court, therefore, awarded general damages.

It is a law of this state that in a defamation action one can be compensated for those injuries which normally flow from the defamation. These include damages for loss of employment, diminished wages, injury to business and reputation, and emotional distress. Morgan v. The Bulletin Co., 369 Pa. 349 [85 A.2d 869] (1952). In this case, plaintiffs have testified to the loss of their reputation by their associates, as well as to their emotional stress which they suffered. Thus, they have proved compensable damages.

Lower ct. op. at 8.

It is true that appellants presented evidence which tended to show that appellees suffered no damages as a result of the defamation. Nevertheless, the weight to be given the evidence and the credibility of the witnesses are questions that are to be decided by the fact finder. There is sufficient evidence to support the lower court’s finding that the appellees were injured by the defamatory statements published by appellant Benjamin.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. After analyzing the union newsletters written by Ricardo Benjamin, I am constrained to conclude that they are not capable of a defamatory meaning as to appellees. Therefore, I would reverse the judgment entered in appellees’ favor and direct that judgment be entered for appellants.

James Wilson and Louella Hynson were employees of the Philadelphia Naval Hospital. When a rating panel rated Wilson “qualified” but not “highly qualified” for the position of foreman in food management, he filed a grievance. Louella Hynson acted as his representative. While the grievance was pending, Ricardo Benjamin authored and distributed several issues of a union newsletter which Wilson and Hynson contend was defamatory. The learned trial judge, sitting without a jury, found that the newsletters were libelous per se. Although special damages were not proved, he awarded damages to each plaintiff of $2,500.00.

“A man’s good name is as much his possession as his physical property. It is more than property, it is his guardian angel of safety and security; it is his lifesaver in the sea of adversity, it is his parachute when he falls out of the sky of good fortune, it is his plank of rescue in the quicksands of personal disaster.” Musmanno, J., in Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 173, 191 A.2d 662, 665 (1963). A communication is defamatory of another’s good name if it “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ Procedurally, it is the function of the court in the first instance to determine whether the communication complained of is capable of a defamatory meaning. The test is the effect the statement would fairly produce, or the impression it would naturally engender, ‘in the minds of the average persons among whom it is intended to circulate.’ ” Rybas v. Wapner, 311 Pa.Super. 50, 54-55, 457 A.2d 108, 110 (1983), quoting Corabi v. Curtis Publishing Co., 441 Pa. 432, 441 & 447, 273 A.2d 899, 904 & 907 (1971). The meaning of an allegedly defamatory communication must be ascertained by reading the communication as a whole and in context. Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 482 n.3, 448 A.2d 6, 10 n.3 (1982). “Defamatory words, in order to be actionable, must refer to some ascertained or ascertainable person, and that person must be the plaintiff.” Schonek v. W.J.A. C., Inc., 436 Pa. 78, 82-83, 258 A.2d 504, 507 (1969), quoting 22 P.L.E. Libel and Slander § 17.

The majority says that statements made in the union’s newsletters were libelous per se as to both appellees because they “falsely accused Wilson of misrepresenting his qualifications for the position sought; accused Hynson of defaming the integrity of a member of the rating panel; and made allegations of breaking and entering and stealing against both appellees.” (At 333.) A careful analysis of the newsletters, I suggest, discloses that there are no statements which are capable of such a defamatory meaning.

The following excerpted passages are pertinent to the statements regarding Wilson’s qualifications:

“[Mr. Wilson’s] claim of being a Snapper for 17 years: there is no official record to substantiate such claim[.]”

(Plaintiffs’ Exhibit #4).

“The panel then was fooled by Wilson[’s] claim of 17 years as a snapper, they not being fully informed[,] accepted the 17 years as years of actual work as foreman or supervisor. A snapper is not a supervisor.”

(Plaintiffs’ Exhibit #5). I am unable to interpret these statements as “allegations” that Wilson lied or falsely misrepresented his qualifications. The writer of the newsletter did no more than comment that experience as a “snapper” did not qualify as “supervisory experience.” He also commented that proof of Wilson’s experience was lacking. Such statements, in my opinion, cannot be said to engender naturally a belief that Wilson willfully lied so as to lower him in the estimation of his fellow workers. Because there was no defamatory meaning to be drawn from these words, I would hold that the trial court erred when it based an award of damages thereon.

Benjamin also wrote:

“We believe there was [sic] malicious willful attempts made to continue the buddy system by ratings given some applicants^] ratings which we believe no employee in the Federal Service can honestly justify as deserving.
“We know and is [sic] a party to predetermination in that management officials and us [sic] had so acted in favor of Wilson.”

(Plaintiffs’ Exhibit #4).

“We can honestly say that our thinking was colored by the high esteem in which Wilson was held and that is borne out in the supervisor evaluation which we believe was an caculative [sic] attempt to carry on the buddy type of promotions. There is no doubt in our minds that had Wilson rated in the top group regardless of where, he would of [sic] been selected and all kind of justification would of [sic] been written by his immedeate [sic] supervisor.”

(Plaintiffs’ Exhibit #5). These were references to the fact that Wilson had been rated “highly qualified” by prior rating panels. I have read and re-read these statements but am unable to find therein a meaning defamatory of Wilson. At worst, they can be interpreted as a suggestion that Wilson’s prior ratings and the high esteem in which he had been held were attributable to high ratings given by a friendly supervisor. To suggest that a person’s high ratings were attributable to friendly connections may be offensive to the thin-skinned, but it cannot truly be said to be defamatory. It suggests a reality which is part of the politics of the workplace. There was a very real dispute which existed in this workplace, and there were bound to be differences of opinion and perhaps angry words spoken in support of one side and in derogation of the other. However, “[statements which represent differences of opinion or are annoying or embarrassing, are, without more, not libelous.” Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677, 679 (1962).

The reference in the newsletter to breaking and entering and stealing, when taken in context, cannot be interpreted as an accusation of a crime. It referred to the taking and copying of a letter which had been posted on a bulletin board. Moreover, the charge was made so generally that it cannot reasonably be interpreted as an accusation against any specific person. The newsletter stated, cryptically, as follows:

“This is a Union with a heart, if not the most serious of charges for breaking and entering and in essence stealing would be filed against those whom open [sic] the locked Union Bullitin [sic] board and took pictures of the letter there in [sic].”

(Plaintiffs’ Exhibit #5). This was a general accusation that someone had opened a locked, glass bulletin board in the workplace in order to make a copy of a letter which had been posted thereon. In reality, this was not an accusation that anyone had committed a crime. Even if it could be so construed, moreover, it cannot reasonably be interpreted as an accusation directed against either Wilson or Hynson. A careful reading suggests that the author of the newsletter was unaware of the person or persons who had committed this “terrible” deed. A continued reading of the remaining paragraph discloses a suggestion that if employees wished copies of notices, the union would make them available upon request.

Mrs. Hynson, according to the newsletter, had made a charge against an individual who served on the rating panel “that tends to defame or mar that person [sic] character, dignity, integrity, honesty, or principles and implies conduct unbecoming to society____” An accusation made by Mrs. Hynson against Mrs. Pauline Elliott, a panel member, was said to be “willful, malicious, slanderious [sic], unwarranted and tends to defame and mar the lady [sic] principles.” “We are very disturbed,” the writer said, “by the attack on [a] specific member of the Panel____ To us the attack on Mrs. Pauline Elliott is malicious, premeditated, willful and intended to defame and destroy Mrs. Elliott’s integrity, dignity, principles and dedication to serve. It question [sic] the honor of the board member selected by this Union and there-by is an attack on the Union as well.” (Plaintiffs’ Exhibit #5). Also

“The charges against Mrs. Pauline Elliot [sic] is [sic] willful and unwarranted[,] malicious[,] slanderious [sic] and tends to defame and mar: They are allegations made by a third party whom [sic] was not an applicant or whom [sic] did not act in any certified official capacity.”

(Plaintiffs’ Exhibit #4). A close examination discloses that these are expressions of opinion. They contain no facts. The charges which Mrs. Hynson was alleged to have made against Mrs. Elliott are nowhere recited or disclosed. Instead, the writer appears to have assumed that the specific charges were known to his readers. He added nothing factually, not expressly nor by necessary implication, to the reader’s knowledge. He merely characterized the charges allegedly made by Mrs. Hynson according to his own expression of opinion. He did no more than express a judgment upon known or assumed facts. For such an expression of opinion, an action of defamation cannot be sustained. Restatement (Second) of Torts § 566, comment d. “A certain amount of vulgar name-calling is frequently resorted to by angry people without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more.” Restatement (Second) of Torts § 566, comment e.

I would reverse and direct that judgment be entered in favor of appellants.

      . See Brief for Appellees at 8.

      . Basically, 29 U.S.C. § 152 provides that a "labor organization” under the Act is an organization made up of "employees;” “employees” are people employed by an “employer;” and the definition of an "employer” specifically excludes the United States Government and its agencies.

      . An analysis is made difficult by what, in charity, might be termed the rambling and disjointed writing style of the author of the newsletters.