author: BECK, Judge: WIEAND, Judge,

text:
    516 A.2d 47
    Thomas R. MURPHY, Appellant, v. PUBLICKER INDUSTRIES, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 29, 1986.
    Filed Oct. 6, 1986.

      David C. Harrison, Philadelphia, for appellant.
    Harry Lore, Philadelphia, for appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   BECK, Judge:

Appellant Thomas R. Murphy (“Murphy”) was employed by appellee Publicker Industries, Inc. (“Publicker”) from September 1951 until his dismissal in April 1979. In March, 1981, Murphy instituted suit for wrongful dismissal against Publicker, alleging that Publicker dismissed him without cause and in breach of Murphy’s alleged lifetime employment contract with Publicker. After a jury trial conducted before the Honorable Leon Katz, the jury returned a verdict for Murphy and awarded him $94,000 in damages. On September 9, 1985, Judge Katz granted Publicker’s motion for a new trial on the ground that the court’s instructions to the jury had not accurately and completely reflected the law of Pennsylvania concerning lifetime employment contracts. This appeal followed.

The issues before us are whether jury instructions that equate the concepts of “lifetime” employment contracts and employment contracts for a “definite” period of time are in error and, if they are, whether that error is harmless.

We hold that a contract for employment for life does not, without more, constitute an enforceable contract for employment for a specific, definite duration and, therefore, instructions that direct the jury to equate these concepts are in error. We further hold that such error was sufficiently prejudicial to Publicker to justify the trial court’s grant of a new trial. We affirm the order of the common pleas court.

Approximately three years after Murphy began work at Publicker, Publicker’s New York district supervisor offered Murphy a promotion. Acceptance of the new position would require Murphy to move his young family to Philadelphia from the New York metropolitan area where they had recently purchased a home and had friends and family. Murphy alleges that the supervisor assured Murphy that if he accepted the new position, he “would be working for the company forever.” Allegedly in reliance on this assurance, Murphy accepted the promotion and moved to Philadelphia where he continued in Publicker’s employ until his dismissal in 1979.

Murphy contends that this course of events gave rise to an enforceable employment contract pursuant to which Publicker agreed to employ Murphy for life, presumably unless he gave them just cause to fire him by not performing in accordance with the requirements of his position. Although Publicker contends that they did have such cause to fire, the jury apparently believed Murphy’s allegation that Publicker fired him without cause. However, Publicker further contends that even if there was no cause to fire, they nevertheless had the legal right to discharge Murphy at any time and for any or no reason because he was an at-will employee with no contract for employment for any definite period of time. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891).

This case is another in a now long series of cases in which the courts of this Commonwealth have recently been called upon to award a discharged employee with no written employment contract relief based on a wider theory of what constitutes an enforceable agreement between an employer and an employee under which the employee has a right to continued employment. Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986); Banas v. Matthews International Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985).

In reviewing the trial court’s grant of a new trial, we must affirm unless the trial court abused its discretion or committed a clear error of law. Simmons v. St. Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984). In this case, application of this standard of review requires us to analyze Pennsylvania law regarding oral “lifetime” employment contracts to determine whether the trial court committed a clear error of law in deciding that it had improperly charged the jury as to that issue.

In other words, the issue here is not whether the trial court abused its discretion, but whether the sole and exclusive reason that the trial court assigned for its grant of a new trial has legal merit. Keefer v. Byers, 398 Pa. 447, 159 A.2d 477 (1960). If the trial court did deliver a fundamentally erroneous charge that was prejudicial to Publicker, the grant of a new trial must be affirmed. Pavorsky v. Engels, 410 Pa. 100, 188 A.2d 731 (1963) (erroneous jury charge merits award of new trial); Eldridge v. Melcher, 226 Pa.Super. 381, 388, 313 A.2d 750, 754 (1973). We note that “[i]n determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory [citation omitted].” Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965). If the charge is erroneous in a basic sense and the extent to which it might have been prejudicial to the complaining party cannot be determined, the grant of a new trial is proper. Kelly v. Crawford, 137 Pa.Super. 197, 205, 8 A.2d 449, 452 (1939).

The pertinent sections of the charge that give rise to this inquiry are as follows:

The plaintiff contends that the evidence establishes, by a fair preponderance of the evidence, that the defendant agreed to employ him for the rest of his life. That’s what he testified to. I think he called it lifetime. The defendant doesn’t buy that concept. They disagree with the plaintiff’s version, in that the Publicker corporation says that there was no definite time period for the agreement. That’s an important phrase in the case, that it was a contract for employment or promotion, but there wasn’t any definite time. Now, you have a conflict there. Now, contracts may be either in writing or they may be oral and they are just as effective whether they are writing or oral. Where an oral contract is claimed, as in this case, you must determine, since you don't have anything in writing to look at, you must determine from the spoken language of the parties to the contract and the surrounding circumstances at the time of the alleged contract to determine whether the parties had a binding agreement concerning the duration of the employment

contract. Now, what do I mean by surrounding circumstances? Certain things were testified to by the plaintiff. ... [H]e testified that he lived in Bergen County. I think he said he had an office in the Empire State Building and he had two or three children, I think, and his wife was pregnant at the time and that, as part of this discussion he had with Mr. Foy [the supervisor], he moved into the Philadelphia area, relocated.

An agreement, is the meeting of the two minds, if there are two people, as there are here, to the same thing. When a contract does not state, does not state a definite term for the duration of the employment relationship, the law presumes that either party can end the employment at any time for any reason.
Therefore, if you find that the contract involved in this case was not for a definite term then your verdict must be for the defendant. For the plaintiff to be successful in this case he must prove to you that his employment contract was for a definite term. Now, if you believe that at the time the contract was created the parties intended that the plaintiffs employment would continue for a definite term, in this case, lifetime, then plaintiff has proven that his employment was not based on an at will contract.
When a contract is for a definite term an employer cannot discharge an employee before the end of that term without a legitimate reason____ Therefore, if you find that the plaintiff was hired for any definite term and the defendant discharged him without justifiable cause then your verdict should be for the plaintiff____

(N.T. 188-91).

In reviewing a grant of a new trial based on an allegedly erroneous jury charge, we must read the charge in its entire context. Keba v. Pickett, 434 Pa. 148, 252 A.2d 675 (1969). In this case, such a reading reveals that at several points, the trial judge communicated the concept that if the jury found that Publicker had agreed to employ Murphy for his lifetime, that alone would establish that Murphy had an employment contract for a definite period which, if breached, gave rise to a right to relief.

This misleading concept was first conveyed to the jury when the trial court contrasted Murphy’s and Publicker’s views of the case by stating that Murphy alleged he had a lifetime contract, whereas Publicker contended “that there was no definite time period for the agreement.” (N.T. 188). This clearly suggests that a lifetime contract is a definite one. The trial court reiterated this misconception of the law later in the charge when it told the jury that they should find that Murphy had proven he was not an at-will employee if they found that “the parties intended that the plaintiff’s [Murphy’s] employment would continue for a definite term, in this case, lifetime____” (N.T. 190).

Further, in instructing the jury as to the importance of appraising the “surrounding circumstances” of the alleged oral contract, the trial judge stated that the surrounding circumstances were pertinent to whether the parties had reached an agreement and what its terms were. In the instant case, where the plaintiff is attempting to remove himself from the at-will-employment presumption and establish a lifetime contract, the trial judge should also have specifically instructed the jury to consider the surrounding circumstances as they relate to that issue. Luchacher v. Kerson, 158 Pa.Super. 437, 440-2, 45 A.2d 245, 247-48, aff'd, 355 Pa. 79, 48 A.2d 857 (1946). See also Solomon v. Luria, 45 D & C2d 291 (1967), aff'd on opinion of trial court, 213 Pa.Super. 87, 246 A.2d 435 (1968).

The Lucacher court held that where an employee contends that he had a permanent employment contract and proves that the employer did promise to employ him for life and that the employee gave the employer substantial consideration for that promise in addition to the employee’s services, i.e. relocating to accept the new position, he can succeed in thereby rebutting the presumption of at-will employment. Id., 158 Pa.Superior Ct. at 440-2, 45 A.2d at 247-48. Thus, the surrounding circumstance of the employee’s relocation is of particular importance in such a case. Of course, whether an employee has given such additional consideration as will rebut the presumption is a question of fact for the jury.

As we opined in Darlington, generally an employment contract for a broad, unspecified duration does not overcome the presumption of at-will employment. Darlington, 350 Pa.Super. at 195, 504 A.2d at 312 (citing Forman v. BRI Corp., 532 F.Supp. 49, 51 (E.D.Pa.1982)). Likewise, several federal courts sitting in Pennsylvania have concluded that under Pennsylvania law, a contract for “permanent employment” does not overcome the presumption. Id. (citing, inter alia, Rogers v. International Business Machines Corp., 500 F.Supp. 867 (W.D.Pa.1980)). In other words, even if the employee can prove that the employer orally promised to employ the employee for life or permanently, the employee cannot recover if he is discharged without cause. The agreement is not sufficiently definite as to the duration of the employment, “for life” and “permanently” being inherently indefinite periods of time. “Definiteness is required to overcome the at-will presumption.” Darlington, 350 Pa.Super. at 196, 504 A.2d at 312.

Lucacher presents one exception to the foregoing general rule. As noted, Lucacher stands for the proposition that where the employee can prove both that the employer agreed to employ the employee for life or permanently and that the employee gave the employer sufficient additional consideration for this promise, over and above the employee’s services, then the employee can succeed in bringing himself out of the at-will presumption. As we explained in Darlington:

The term ‘consideration’ is not used here in the usual contractual context to signify a validation device. The term is used, rather, more as an interpretation device. When ‘sufficient additional consideration’ is present, courts infer that the parties intended that the contract will not be terminable at will.

Id., 350 Pa.Superior Ct. at 199, 504 A.2d at 314.

Of course, if this inference can be rebutted by specific evidence of the parties’ intent to create an at-will relationship, the discharge without cause will be upheld. Id.

The foregoing discussion illustrates that the trial court in this case correctly perceived an error in its charge to the jury. The court’s instructions clearly could have left the jury with the impression that if they found that Publicker had agreed to employ Murphy for life, then they had found that a definite and enforceable contract for lifetime employment existed and they could proceed directly to a determination of whether it was breached and, if so, to a calculation of damages. In fact, at trial, just prior to the court’s delivery of the charge, counsel for appellant-Murphy expressed a fear that the verdict sheet proposed to be submitted to the jury contained a confusing usage of the words “permanent”, “definite” and “lifetime”. (N.T. at 175-6). Although counsel quickly withdrew his objection, he did so only because the court instructed him that “The law says there has to be a definite term. Lifetime is a definite term.” (N.T. 175). Thus, the court had not correctly assessed Pennsylvania law regarding lifetime and definite contracts of employment at the time of the charge.

We note that it is not at all surprising to us that the trial court misapprehended the law relating to employment contracts as it did. This is an area that is not free from confusion in the law of this Commonwealth and it is entirely understandable that a trial court, involved as it is in the “battlefield” atmosphere of a trial, might err at the time of trial. Judge Katz is to be highly commended for his willingness to correct his view of the law after he had ample opportunity to reflect thereon and forthrightly to admit to the error in his charge.

In this case, the facts are somewhat parallel to those presented in Lucacher. Although we have previously recognized that an employee can establish rights beyond at-will employment by means other than the additional consideration rule, Darlington, 350 Pa.Super. at 210-13, 504 A.2d at 320-1 (Beck, J., concurring), in this case the employee did not attempt to avail himself of any of those other means. There is no claim that there was an employment manual or handbook that gave Murphy a right to dismissal only for cause or to employment for any specific duration. Thus, Murphy’s contention that Publicker agreed to employ him for life and that he gave sufficient additional consideration in return for that promise is crucial to Murphy’s removal from the at-will doctrine. The trial court’s erroneous charge could hardly be seen to have constituted harmless error under these circumstances. The errors in the charge went to the heart of Murphy’s case and could have been sufficiently prejudicial to Publicker to warrant the grant of a new trial. As previously noted, we need not find that the verdict in fact resulted from the erroneous instructions, but only that it might have. Vaughn; Kelly.

Accordingly, the order of the trial court granting Publicker’s motion for a new trial is affirmed and the case is remanded for further proceedings consistent with this opinion.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring statement:

I join the majority’s excellent discussion pertaining to the error in the trial court’s jury instructions which equated a lifetime employment contract with a contract of employment for a specific period. I also agree that the error was not harmless. In reaching this conclusion, however, I find it unnecessary to decide whether an employee can rely upon an employment manual or handbook to establish rights greater than those which would otherwise attach to an employment at will.

      . Contrary to Murphy’s suggestion in his brief, Publicker did properly preserve its objection to the jury charge for purposes of relying on that objection to obtain a new trial. Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967) (error in jury charge can be the basis for a new trial only where counsel seeking new trial makes a timely objection to the charge or directs the trial court’s attention to what counsel perceives as being erroneous in the charge). At trial, counsel for Publicker timely objected to the court’s charge. Counsel specifically objected to the charge insofar as it equated lifetime and definite employment contracts. (N.T. 199-200). Further, Publicker’s counsel excepted to the trial court’s refusal of his proposed supplemental point for charge which requested an instruction that lifetime employment contracts are unenforceable because they are for broad, unspecified durations and do not overcome the at-will presumption. (N.T. 178).

      . As the trial court correctly stated in its opinion in support of its grant of a new trial, there are Pennsylvania cases which suggest that even proof of additional consideration will not suffice to rebut the at-will presumption where a permanent or lifetime contract is alleged. See, e.g., Lightcap v. Keaggy, 128 Pa.Super. 348, 194 A. 347 (1937). Upon consideration of those cases, however, we are of the opinion that they do not reflect the law of Pennsylvania insofar as they suggest that a "permanent” employment contract can never be enforceable. In fact, such cases presented factual situations distinguishable from those presented by the instant case. For example, in Lightcap, the court found that the employer had cause to fire the plaintiff-employee and, thus, reversed the judgment of the trial court in favor of plaintiff. Moreover, the impact of any additional consideration given by the employee in Lightcap was not specifically considered by the court, which focused its analysis on the generally indefinite nature of the oral employment agreement at issue there. Id., 128 Pa.Superior Ct. at 356-61, 194 A. at 350-52. See also Moorhouse v. Boeing Company, 501 F.Supp. 390 (E.D.Pa), aff’d mem., 639 F.2d 774 (3d Cir.1980) (Court found that plaintiff had not proven facts sufficient to justify conclusion that employer had agreed to employ plaintiff permanently; thus, additional consideration required to support such an agreement not relevant); Wood v. Burlington Industries, Inc., 536 F.Supp. 56 (E.D.Pa. 1981) (Court found there was insufficient evidence of a permanent employment contract and there was just cause to fire).

      . Darlington specifically addressed employment contracts for a "reasonable” length of time, as distinguished from permanent or lifetime employment contracts such as that involved in the case at bar. The Darlington court held that the employee there had failed to prove that an implied agreement for employment for a reasonable time had been formed. Darlington, 350 Pa.Super. at 192-204, 504 A.2d at 311-16. The court also specifically found that the employee had not provided sufficient additional consideration to bring him within the Lucacher rule. Id.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    516 A.2d 53
    Mary Ann GROOVER and August T. Groover, Appellants, v. RIDDLE MEMORIAL HOSPITAL and Dr. Robert C. Lecher, Appellees.
    Superior Court of Pennsylvania.
    Argued May 15, 1986.
    Filed Oct. 9, 1986.

      Joseph McFadden, Media, for appellants.
    Malcolm L. Lazin, Philadelphia, for appellees.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   CAVANAUGH, Judge:

Mary Ann Groover and her husband, August T. Groover, appeal from an order of the Court of Common Pleas of Delaware County entered on September 20, 1985 which granted the defendants’ motion for summary judgment. We affirm.

Sometime between March 25 and April 3, 1979 while appellant Mary Ann Groover was a patient at the Riddle Memorial Hospital, she received a very painful injection. From the time of the injection, appellant began to suffer pain and loss of control in her right leg. Appellant saw various doctors over the next several years in an attempt to ascertain the problem with her leg. In June of 1983, Dr. Pierre LeRoy determined that the pain in her right leg was a sciatic nerve injury and linked it to the injection she received while in the hospital. Appellants filed suit against appellee on September 3, 1983. Appellees contend that the lower court did not abuse its discretion in granting the motion for summary judgment because suit was filed beyond the two year statute of limitations period. Appellants argue that because of the “discovery rule”, the statute did not begin to run until June of 1983 when Dr. LeRoy informed appellant of the type of injury she suffered and its cause, and therefore the suit was timely filed. We agree with the appellee and affirm the lower court’s order granting the motion for summary judgment.

Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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 addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court’s function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party____ We also note that ‘ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury’____ Specifically, the question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question____ ‘Whether the statute has run on a claim is usually a question of law for the judge____’ This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, ... or admits facts sufficient to admit the limitations defense____ or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial, Pa.R.C.P. No. 1035(d), or where the evidence relied upon by the plaintiff is inherently incredible____

Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981) (citation omitted).

Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 135-37, 471 A.2d 493, 500 (1984) discussed the “discovery rule”, which serves to ameliorate the harsh effects of the statute of limitations.

Pennsylvania’s statute of limitations for personal injury cases is two years. Evidently in an effort to ameliorate the sometimes-harsh effects of the statute, Pennsylvania courts have adopted what has come to be known as the “discovery rule.” Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury---- The discovery rule was recently applied by a panel of our Court in Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982). In Staiano, the panel approved a variation of the discovery rule which was articulated in Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290. Under this “Volpe test,” three independent phases of knowledge must be known or knowable to a plaintiff before the statute of limitations begins to run: (1) knowledge of the injury, (2) knowledge of the operative cause of the injury, and (3) knowledge of the causative relationship between the injury and the operative conduct. Although the Volpe test has a nice “ring” to it, it unnecessarily complicates the question of when the statute begins to run. For instance, what does “operative” in “operative cause” mean, and can it be possible for a plaintiff to know the “operative cause” of his injury yet not know the relationship between the “operative conduct” and the injury? The discovery rule has been stated in an understandable manner by our Supreme Court, and we see no reason to complicate the law by adopting a modified version of the rule for cases involving diseases contracted from exposure to hazardous substances. We find that the statute of limitations begins to run in “creeping disease” cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Stating the test in this manner will result in conformity with various other jurisdictions which have addressed this same problem.

(Footnotes omitted.)

We agree with Cathcart’s analysis and believe that its rational simplification of the Volpe test commends its adoption in all “discovery rule” cases, not just “creeping disease” cases. Under the facts of this case, the end result achieved by both tests would be the same, but the use of the Cathcart test would allow for more understandable analysis. However, because the Cathcart test has not as yet been applied to medical malpractice cases, we will not go so far as to hold that the two are interchangeable in all cases.

In the instant case, we find as a matter of law that in the spring of 1979 appellant knew or reasonably should have known 1) that she was injured, and 2) the operative cause of her injury, and 3) the causative relationship between the injury and the operative conduct.

That appellant knew that she was injured in the spring of 1979 is evidenced by her answers to two interrogatories:

2. If you claim a permanent injury resulting from the treatment, surgery or examination upon which this action is based, describe such injury fully and in detail.
ANSWER: The Plaintiff suffers permanent sciatic neuritis, right, neuropathy right L5-S1 and reflex sympathetic distrophy.
The Plaintiff suffers permanent and constant pain shooting downwards from her right hip through the back of her right leg to the outside of her right calf and into her foot. Depending upon her physical exertion, said pain can turn into a severe, hot burning sensation and a severe charley horse type cramping. This severity of pain occurs to the Plaintiff anywhere from a daily basis to a couple of times a week. Also, depending upon her activity, the Plaintiffs right leg gives away from underneath her approximately once a week which at times will cause her to injure another part of her body upon falling. Plaintiff also suffers emotional distress and anxiety due to the inconsistent and unannounced pain or loss of control of her right leg. She experiences this permanent feeling of instability which has severely limited her activities and family responsibilities.

In interrogatory 18, appellant was asked to state the specific facts upon which she based each claim of negligence or malpractice alleged in this action. She answered:

The Plaintiff repeatedly received improper and careless mechanical injections ... following her surgery of 3/25/79. The plaintiff experienced severe pain and demanded that said injections be discontinued. All injuries described in interrogatory # 2 began at the time of said injections. The Plaintiff never experienced these symptoms prior to the injections.

(Emphasis added.)

In answers at her deposition, appellant further indicated that she knew she was injured by the spring of 1979.

Q. As I understand your testimony, you had an injection that was of some excruciating pain to you, causing a sensation down your leg. The very same day, you complained about that injection to your attending physician. You instructed the next nurse that you saw that you would have no more injections in the hospital.
A. Uh-huh.
Q. Did you at any time between that date on which that injection occurred and your visit to Dr. DiStefano ever say to yourself, “I wonder whether the problem that I’m experiencing in my right leg resulted from the injection that I received in the hospital that was so excruciatingly painful”?
A. I probably did, because I could feel the spot back here and I kept asking—I can remember asking Gus to look to see if there was anything there.
Q. When you’re referring in your answer to that spot, can I assume that you meant by that spot, the spot where you were injected?
A. I never said to myself—
Q. Please just answer my question.
A. All right. That spot.
Q. You’re referring to the spot where you were injected?
A. Right, but I wasn’t able to say to me, okay, look, this is what it is and this is why it is. I never said that to me, because I didn’t know. I really didn’t know.
Q. When you went to see these various Doctors over the course of the two years leading up to your ultimate examination by Dr. DiStefano, did you tell these Doctors about the injection?
A. I told them that it started to hurt here, and I’m pointing to that spot where I got the injection, and where it radiated from that point. I told them—then they would ask questions and in the course of my answers, the fact that I received an injection would come out.

Furthermore, appellant knew or reasonably should have known in the spring of 1979 that her injury was caused by the conduct of another, (that is, she knew the “operative cause”). In her answer to interrogatory number 18 (set forth in pertinent part, supra), appellant stated that her injuries began at the time of the injections during her stay in the hospital from March 25 to April 8, 1979. The lower court opinion sets forth the following details about the painful injection appellant received.

“Mrs. Groover’s memory of the particular injection is vivid and explicit. She described it as follows:
I received an injection into the right buttock that was so painful, I felt it all the way down to my right foot. It felt like someone had taken a hot needle or branding iron or something and rammed it down the length of me from the site of the injection into my right foot. I remember breaking out in a sweat, turning cold and feeling nauseated at the same time.
Mrs. Groover goes on to state that she ‘never experienced anything like that in [her] entire life.’____ Immediately thereafter, Mrs. Groover began to complain to, and seek advice from, the medical personnel around her regarding the injection. Immediately after receiving the injection, Mrs. Groover told the administering nurse ‘No more injections. It’s too painful. No more injections. And [she] refused any further injections after that.’---- Mrs. Groover also explained to other nurses and the attending physician that she wanted no more injections because they were too painful____ Since receiving the shot, Mrs. Groover claims she has been in constant pain.”

The facts in this case clearly indicate that in the spring of 1979 appellant either knew or reasonably should have known that the injection, administered at the appellee hospital, was the cause of her injury.

Therefore, since the two year statute of limitations began to run in the spring of 1979, and appellants did not file suit until September, 1983, appellant’s claim is barred.

Appellant maintains that the discovery rule delayed the running of the statute. She argues that from the time she received the painful injection in the spring of 1979 until June of 1983, she continuously sought help concerning the pain in her right leg, and that she attempted to determine the type of injury she suffered and the cause of that injury. She contends that she saw numerous doctors who did not know what was wrong with her leg.

Appellant need not have known the precise medical cause of the injury in order to commence the running of the statute of limitations. She need only to have known was that she was injured. “An injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). The act which heralded a possible tort in this case was the painful injection administered to appellant in the spring of 1979. The physically objective and ascertainable damage inflicted by the injection was the pain and loss of control of appellant’s right leg. We recently wrote in Held v. Neft, 352 Pa.Super. 195, 507 A.2d 839 (1986) that: “A lay person is not reasonably expected to know the precise medical cause of such an injury even though he knows that the injury was occassioned by a discrete medical procedure.” 352 Pa.Superior Ct. at 200, 507 A.2d at 841.

Appellant alleges that the physicians with whom she consulted told her that they did not know what the problem was. Reading appellant’s allegations in a common sense fashion, we believe that appellant knew or reasonably should have known that the cause of her problem was the painful injection and sought relief from various physicians in an effort to alleviate the pain. The statements by the physicians should not be read to mean that they did not know, or suspect that the injection caused the injury. Rather, common sense suggests that the statements should be read to mean that the physicians were not medically certain as to the precise medical reason that the injection triggered the problems, and that they were unsure as to how they should be treated. Appellant stated in her deposition that she told the physicians with whom she consulted about the injection. “I told them that it started to hurt here, and I’m pointing to that spot where I got the injection, and where it radiated from that point.”

In her counter-affidavit to appellee’s motion for summary judgment, appellant alleged that all of the doctors she saw did not know the cause of her injury until one doctor, in December of 1982, began to suspect that the cause may be related to the injections. This does not alter our holding. From the facts related, supra, at the very least, appellant reasonably should have known that her problems were caused by the injection. One need only know (or reasonably should know) that he is injured and that the injury was caused by the conduct of another. See Cathcart, supra. As to the second prong of the Cathcart test, it is only essential that the injured party know or reasonably should know that the conduct of another has caused the injury. It is not necessary that he know, or reasonably should know, that the conduct of another was negligent. DeMartino v. Albert Einstein Medical Ctr. N.D., 313 Pa.Super. 492, 460 A.2d 295 (1983).

In DeMartino, we summed up the principles governing this area of the law.

Thus, once the patient is aware or should reasonably have become aware that medical treatment is causing him personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: “an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.” Keating v. Zemel, 281 Pa.Superior Ct. 129, 134 n. 4, 421 A.2d 1181, 1184 n. 4 (1980). It is during this two year period that the medical malpractice plaintiff, like any other plaintiff pursuing any other legal claim, makes the decision whether or not to pursue any legal rights he may possess.

Id., 313 Pa.Superior Ct. at 502, 460 A.2d at 300.

The law allowed the appellant two full years from the spring of 1979 to investigate and bring an action. More than four years passed before suit was filed. We must insist that those who assert claims of negligence be vigilant in bringing legal action based thereon. The statute of limitations demands nothing less.

As our Supreme Court has stated:

“The ‘discovery rule’ ... arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause— [I]n a case of medical malpractice involving the failure of a surgeon to remove an implement of surgery, it is the inability of the plaintiff to ascertain the presence of the offending implement which prevents the commencement of the running of the statute, for ‘[cjertainly he could not open his abdomen like a door and look in; certainly he would need to have medical advice and counsel.’ Ayers v. Morgan, 397 Pa. 282, 289, 154 A.2d 788, 792 (1959). The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury.”

Pocono Intern. Raceway v. Pocono Produce, 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). “[E]ven though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time.” Id.

In the instant case while appellant may be said to have exercised diligence in seeking medical care, she did not exercise diligence in seeking legal relief. The two are not synonymous.

We hold that because appellant here has not exercised sufficient vigilance in asserting her claim, her claim is necessarily barred.

Judgment affirmed.

      . In answer to an interrogatory, appellant referred to more than one injection given to her from March 25 to April 3, 1979 as causing her injury. On appeal, she focuses on the one, painful, injection as the cause.

      . While the Volpe test has a third prong to it, we need not delve into an analysis of it because it adds nothing to the first two tests we have already discussed. Under the facts of this case, the Volpe and Cathcart tests are interchangeable and would lead to identical results. It will be left to future panels to decide if the two tests are interchangeable in all cases.


author:
ROWLEY, Judge:
      McEWEN, Judge,

text:
    516 A.2d 59
    In re Brian Andrew BENNER and Colleen Elizabeth Benner by their mother and natural guardian Mary Ann CASSIDY.
    Superior Court of Pennsylvania.
    Argued June 9, 1986.
    Filed Oct. 10, 1986.

      Miriam M. Reimel, Bristol, for appellant.
    Before ROWLEY, McEWEN, and OLSZEWSKI, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order of court dismissing appellant’s post-trial motion.

The parties to this appeal are the divorced parents of two minor children who have been in the custody of appellant-mother since 1978. On May 5, 1985, appellant filed a petition seeking to change the surname of the children from Benner to Cassidy-Benner, pursuant to the Judicial Change of Name Act, Act of December 16, 1982, P.L. 1309, No. 295, 54 Pa.C.S. §§ 701-05. Appellant filed the petition because of her desire to have “her parentage recognized.” A hearing on the petition was subsequently held, during which appellee-father testified in opposition to the proposed name change. Expressing the view that the children themselves should be permitted to decide upon their surname later in their lives without the influence of either parent, the trial court, by an opinion and order dated August 15, 1985, denied the petition without prejudice to renew the request for a name change “at a subsequent proper time.” Appellant filed a motion for post-trial relief which was denied on December 4, 1985, and this appeal followed six days later. Appellant raises a number of constitutional challenges, but we do not reach the merits of these issues for the following reasons.

Appellant took this appeal from an order denying a post-trial motion. The Judicial Change of Name Act (the Act) does not enunciate the procedure which applicants must follow. Similarly, case law concerning petitions filed under the Act has not to date addressed the propriety of the procedures followed by petitioners in those cases. The dearth of case law in this area reveals that direct appeals have consistently been taken from the ruling on the petition for change of name; post-trial motions have not been filed in these cases. Appellant’s procedural deviation in the instant case presents us with an issue of first impression: must post-trial motions be filed to preserve issues for appellate review of an order ruling on a petition for change of name?

The Act provides, in part,

§ 701. Court approval required for change of name
(a) General rule.—It shall be unlawful for any person to assume a name different from the name by which such person is and has been known, unless such change in name is made pursuant to proceedings in court as provided by this chapter.
(b) Informal change of name.—Notwithstanding subsection (a), a person may at any time adopt and use any name if such name is used consistently, nonfraudulently and exclusively.
§ 702. Change by order of court.
The court of common pleas of any county may by order change the name of any person resident in the county.

The statute contains no provision setting forth the procedure to be followed by petitioners wishing to change their name. Because the Act fails to illuminate the procedural question before us, we look to the Rules of Civil Procedure.

Rule of Civil Procedure 227.1 provides for the filing of post-trial motions. The Rule provides in part,

(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the the case of jury trial; or
(2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial.

Subsection (1), pertaining to jury trials, is clearly inapplicable to the case at bar. Subsection (2), pertaining to non-jury or equity trials, is also inapplicable: the hearing held on the petition to change the children’s name was not, by any definition, a trial.

In the absence of a rule mandating the filing of post-trial motions to an order issued after a hearing; in the absence of a provision in the act governing change of names; and in the absence of any case law condoning, either explicitly or implicitly, the filing of post-trial motions to a ruling on a petition for change of name, we must conclude that the appellant’s post-trial motion was unnecessary. By waiting until the motion was disposed of, however, and then appealing from the order denying the motion, appellant failed to file her notice of appeal within 30 days of the proper order—the order denying her petition for change of name. We are therefore without jurisdiction to decide the case. Pa.R.A.P. 903(a).

Appeal quashed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

Since I experience severe anxiety when my view differs from that of such esteemed and respected colleagues as those that compose the majority of this panel, I am compelled to speak succinctly before beating a quick, albeit most respectful retreat.

Thus, but two statements compose this dissent. First, since the precise procedure which the majority holds counsel for appellant should have followed, was so uncertain as to present to this appellate tribunal an issue of first impression, I am unable to join in the decision to quash the appeal by reason of counsel’s failure to have complied. Second, I would affirm the order of the hearing court which denied the petition of the mother to alter the surname of these children, now ages thirteen and eleven, so as “to allow the children to make their own decisions at some point later in time when they know more clearly which name they desire and when they are not in the position of being unduly influenced by either parent”.


author: WIEAND, Judge:

text:
    516 A.2d 61
    John B. BOWSER and Barbara L. Bowser, Appellants, v. The HERSHEY BASEBALL ASSOCIATION, Appellee, v. Chris O’NEILL, Appellee.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Oct. 9, 1986.

      Clyde W. McIntyre, Harrisburg, for appellants.
    Charles W. Rubendall, II, Harrisburg, for Hershey, appellee.
    Richard B. Swartz and James Clippinger, Harrisburg, for O’Neill, appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

May a plaintiff who was struck by a batted baseball during team tryouts conducted under the auspices of an unincorporated, non-profit association recover damages against the association of which he was a member and on whose behalf he was conducting the tryouts? The trial court held there could be no recovery and entered a compulsory nonsuit which it subsequently refused to remove. The plaintiff appealed.

The Hershey Baseball Association is an unincorporated, non-profit association organized to provide a summer baseball program for youths and adults in Derry Township, Dauphin County. John B. Bowser, the plaintiff and now appellant, was a former baseball player and coach. He became a member of the association’s board of directors in 1979, and in 1981 he became commissioner of the association’s “teener” league for children between the ages of thirteen and fifteen. As commissioner, Bowser assisted with sign-ups, making up team rosters, representing the association at league games and interpreting the rules. In 1983, for the first time, it was determined that the association should field a “teener” team which would compete in a larger league. Pursuant thereto, tryouts were to be held so that all youngsters would have an opportunity to make the team. Bowser asked for assistance in conducting the tryouts, and several members offered to help.

The tryouts were held on April 9, 1983. Bowser and four other members of the association conducted them. During batting practice, the batters positioned themselves behind home plate and approximately five feet from the backstop so as to eliminate the need for a catcher. Except for the pitcher, the batter and the “on-deck batter,” the candidates for the team were scattered about the infield and outfield to field the balls hit by the batter. Most of the adults who were serving as coaches and evaluators were standing along the right side of the diamond, near the players’ bench, in order to observe the batters and the fielders.

Bowser testified that he had not been the person who suggested that tryouts be performed in this manner, although he did not object to the procedure. He stated that his duties were to ensure that each player was evaluated. For this purpose, Bowser kept track of the roster and called players in from the field to bat. During most of the tryouts, he had been located behind the backstop. After about two hours, however, he moved to the vicinity of the players’ bench, where the group of coaches and evaluators were standing. After standing in that area for a minute or so, Bowser turned toward the outfield to call in two more players. As he turned back toward the batter, he was struck in the eye by a batted ball.

At the completion of the plaintiffs’ testimony on liability, the court granted the association's motion for a compulsory nonsuit on the grounds that (1) Bowser could not maintain a suit against the unincorporated association of which he was a participating member; (2) as a matter of law Bowser had assumed the risk of being struck by a batted ball; and (3) neither the association nor the additional defendant had violated a duty of care owed to Bowser.

In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiff[ ] and give [him] the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349-350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

Brouse v. Hauck, 330 Pa.Super. 58, 60, 478 A.2d 1348, 1350 (1984). On the facts presented in the instant case, however, we think it clear that Bowser was not entitled to recover against the association for his injuries. Therefore, we affirm the order of the trial court.

In DeVillars v. Hessler, 363 Pa. 498, 70 A.2d 333 (1950), the plaintiff had been a member and secretary of an unincorporated fraternal association which operated a concession for the sale of food at a county fair. The plaintiff, who was engaged in preparing and dispensing food, was injured when a propane gas steam table exploded while plaintiff was attempting to light the burners. The plaintiff commenced an action against the association, its officers and several of its members, but the trial court entered judgment on the pleadings for the defendants. On appeal, the Supreme Court reviewed the decided cases and concluded:

The real question in the case therefore resolves itself into whether this action can be maintained against the association on the ground that the members who allegedly committed the tort were acting on its behalf and for its benefit. The weakness of plaintiffs’ case, from the legal standpoint, arises from the fact that not only was the wife plaintiff an active participant in the general conduct of the concession at the fair but she voluntarily assumed a participating role in the operation of the steam table. Being thus cooperatively engaged with those who were allegedly guilty of negligence she became subject to the legal principle that where persons join in the prosecution of a common enterprise there is thereby created a mutual relationship of agency among them, with the result that the negligence of any of them is imputed to each and all of them. Since, therefore, the negligence of which she complains is legally imputed to herself, she cannot recover from the association or from any of its members, other than, as already stated, the individuals who actually committed the tort which caused her injuries.

Id., 363 Pa. at 500-501, 70 A.2d at 335 (emphasis in original). See also: Roschmann v. Sanborn, 315 Pa. 188, 172 A. 657 (1934).

Bowser argues, however, that in the instant case the association had undertaken the task of running the tryouts for him and that he, in effect, had been a client or customer and, therefore, a business invitee at the time of the accident. As such, he argues, the association had a duty to protect him from foreseeable harm. We are unable to agree with appellant’s analysis. The record clearly discloses that Bowser was not a client, customer or invitee of the association. Instead, he was one of the members of the association and was actively engaged in organizing and conducting tryouts for teenagers who wished to be a part of the association’s baseball program. Thus, he was one of the joint entrepreneurs who were in possession of the ballfield and actively engaged in conducting the very activity which caused his injury. If the activity were conducted negligently by allowing the batter to hit from a spot in front of the backstop, as appellant contends, that negligence must also be imputed to him. We agree with the trial court, therefore, that the action cannot be maintained.

There is an additional reason why Bowser cannot recover. When he agreed to participate on the field during the baseball tryouts, he voluntarily exposed himself to the risks inherent in baseball. One of the risks inherent in baseball is being hit by a batted ball. See: Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978). Having voluntarily exposed himself to the risk of being hit by a batted ball, Bowser cannot recover from the sponsor of the baseball event for injuries caused by this very risk.

Earlier decisions which reached this result relied upon the doctrine of voluntary assumption of the risk. These decisions held that by attending a baseball game, a plaintiff knowingly accepted and assumed the reasonable risks inherent in the game. See: Iervolino v. Pittsburgh Athletic Co., 212 Pa.Super. 330, 243 A.2d 490 (1968); Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). More recently, the rationale adopted by the courts for this rule is that persons conducting the activity have no duty to warn or protect participants against risks which are common, frequent, expected and inherent in the activity itself. See: Jones v. Three Rivers Management Corp., supra, 483 Pa. at 85, 394 A.2d at 551. Thus, persons conducting an event are not negligent for failing to warn or protect a participant against risks which are inherent in the activity.

It is beyond cavil that those who position themselves on or near the field of play while a baseball event is in progress are charged with anticipating, as inherent to the sport of baseball, the risk of being struck by a batted ball. See: Jones v. Three Rivers Management Corp., supra; Iervolino v. Pittsburgh Athletic Co., supra, 212 Pa.Super. at 333-334, 243 A.2d at 492; Schentzel v. Philadelphia National League Club, supra, 173 Pa.Super. at 188-191, 96 A.2d at 186-187. Bowser argues, however, that baseball tryouts are different than a baseball game and that the risk of being struck by a batted ball is not inherent therein. We reject this argument. Hitting is an essential element of baseball; batting practice is as common as the game itself; and the risk of being struck by a batted ball is even greater than in a regulation game, for during batting practice more than one ball is frequently in use. These facts are matters of common knowledge. When appellant participated on the field during tryouts which involved batting practice, he was aware of and accepted the risk of being struck by a batted ball. There was no requirement that warnings be given or that special precautions be taken to protect him from batted balls. The rule was not altered in any way because there was no catcher and the batter was standing behind home plate and immediately in front of a stationary backstop.

Order affirmed.


text:
    516 A.2d 64
    COMMONWEALTH of Pennsylvania, Appellee, v. Patrick FRANK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Oct. 9, 1986.

      Arthur L. Goldberg, Harrisburg, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

Dr. Patrick J. Frank was tried by jury and was found guilty on three counts of unlawfully dispensing a controlled substance. On direct appeal from the judgment of sentence, he argues (1) that he was entrapped as a matter of law and (2) that the trial court should have suppressed electronic recordings of conversations between him and the undercover agent to whom the drugs were dispensed. These arguments are lacking in merit; therefore, we affirm the judgment of sentence.

On July 20, 1984, Jeanne R. Berlin, an undercover agent employed by the Bureau of Narcotic Investigation and Drug Control, arrived at the office of Dr. Frank pursuant to appointment. Using the name Diane Winters, she told Dr. Frank that she wanted to lose weight. After conducting a physical examination, Dr. Frank dispensed medication. One type was to be used during the day and another type was intended for use at night.

On August 24, 1984, Agent Berlin again went to Dr. Frank’s office. She told Dr. Frank that she had not been taking the nighttime medicine because she had not needed it. She said that her boyfriend had taken this medication and liked it. Berlin asked Dr. Frank for a supply of medication for her boyfriend. Dr. Frank responded that he could not lawfully prescribe medication for her boyfriend without examining him physically, but that he could prescribe medication for her and she could give it to her boyfriend. He then gave her additional medication.

On September 14, 1984, Agent Berlin again went to Dr. Frank’s office. This time she was wearing an electronic device which enabled her conversation with Dr. Frank to be recorded. Once again she told Dr. Frank that she was not using the nighttime medicine but that her boyfriend was continuing to take it. Dr. Frank again responded that he could get into trouble if he dispensed medication for his patient’s boyfriend, but that he would continue to provide medication for her and she could give it to her boyfriend. He gave her additional medicine.

Again, on October 2, 1984, Berlin went to Dr. Frank’s office while wearing a recording device. She told Dr. Frank that she wanted more of the nighttime medication for her boyfriend and asked him if he could make the medication stronger. Dr. Frank responded that he would not give the medication to her boyfriend but he would give it to her and she could give it to anyone she wanted to give it to. He gave her a different kind of medication.

On October 12, 1984, still posing as Diane Winters, Agent Berlin went to Dr. Frank’s office for the last time. She told Dr. Frank that she had not come to discuss weight control, but only to get more nighttime medication for her boyfriend. Again Dr. Frank suggested that he could get into trouble if he gave her more medication for her boyfriend. He asked her to have her boyfriend make an appointment so that he could give the boyfriend a physical examination and find a reason for the medication. Nevertheless, he gave Berlin a small amount of the nighttime medication and instructed her that if she were questioned by anyone, she should say that she had lost the medication previously given to her and that she had been given a physical examination before receiving the medication. This conversation was also recorded.

Appellant was charged in four complaints with having unlawfully dispensed controlled substances, i.e., Sodium Pentobarbital and Butabarbital, in violation of the Controlled Substance, Drug, Device and Cosmetic Act of 1972, P.L. 233, § 13(14), 35 P.S. § 780-113(14). He defended on grounds that he had been entrapped. The issue of entrapment was submitted to the jury with instructions which the defendant has not challenged. The jury decided the issue of entrapment against Dr. Frank and found him guilty on three of the four charges.

The defense of entrapment is defined at 18 Pa.C.S. § 313 as follows:

(a) General rule.—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof.—Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.

“The test for entrapment in Pennsylvania under section 313 is an objective one which ‘focus[es] on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit the crime.’ ” Commonwealth v. Thompson, 335 Pa.Super. 332, 340, 484 A.2d 159, 163 (1984), quoting Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976). See also: Commonwealth v. Clapps, 355 Pa.Super. 80, 90-91, 512 A.2d 1219, 1224-1225 (1986).

In its effort to deter governmental conduct which “induces or encourages” citizens to commit crimes, the Legislature has defined improper conduct in two ways. Should law enforcement agents misrepresent the nature of the conduct encouraged, such that civilians are induced to believe that the encouraged behavior is lawful, an entrapment will have been perpetrated for purposes of § 313(a)(1)....
Entrapment is also defined as the use of “methods of persuasion or inducement which create a substantial risk, that such an offense will be committed by persons other than those who are ready to commit it.” § 313(a)(2). Again, a particular defendant’s attitude is not relevant; he need not prove that he was not “ready to commit” the crime. Rather, he must establish by a preponderance of the evidence that the methods of persuasion directed toward him, if utilized again, present a substantial risk that otherwise honest, law-abiding citizens may at some time be ensnared.
As the statutory definitions reveal, then, Pennsylvania’s entrapment statute addresses the concern over “unconventional” investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant.

Commonwealth v. McGuire, 339 Pa.Super. 320, 328, 488 A.2d 1144, 1148-1149 (1985) (footnote omitted) (emphasis in original). “[T]he case law has been consistent in Pennsylvania in holding that the determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes entrapment as a matter of law.” Commonwealth v. Thompson, supra, 335 Pa.Super. at 340-341, 484 A.2d at 164. Unless the evidence enables but one conclusion, namely, that the police induced the commission of the crimes by improper means, as defined by the statute, the question of whether entrapment occurred must be submitted to the jury. Commonwealth v. Clapps, supra, 355 Pa.Superior Ct. at 91, 512 A.2d at 1225.

In the instant case, the evidence did not establish entrapment as a matter of law, and the trial court properly submitted the issue to the jury for determination. Appellant’s reliance upon Commonwealth v. Thompson, supra, where entrapment was found as a matter of law, is misplaced. There, a male, middle aged police officer had been induced to obtain and supply controlled substances by a young, attractive, female undercover agent following a dating relationship and gestures of endearment which had continued over a ten month period. A panel of the Superior Court observed:

[T]he use of a young, blond female to coax a middle aged male after months of kissing and socializing, into committing a minor crime is not police conduct which presents the “mere opportunity” to commit a crime. As this case clearly shows, opportunity and inducement are two separate consequences of police activity. The latter occurred here.

Id. 335 Pa.Super. at 344, 484 A.2d at 166. In the instant case, the conduct of Agent Berlin was not as egregious. She did not “coax” appellant into unlawfully dispensing a controlled substance. There is no evidence that she established or promised, expressly or by implication, any relationship other than that of patient and physician. By posing as a patient who wished to control her weight, she did no more than provide appellant with an opportunity to dispense medication. When, without prodding or persuasion, she told him that she did not need and was not using the nighttime medication but that her boyfriend was using it, she provided appellant with an opportunity to commit an illegal act.

Police use of artifice and stratagem to provide a person with an opportunity to commit a criminal act, without improper persuasion or inducement, does not amount to entrapment. See: Commonwealth v. Thompson, supra 335 Pa.Super. at 344, 484 A.2d at 166; Commonwealth v. Lee, 262 Pa.Super. 218, 221, 396 A.2d 724, 725 (1978). Here, there was nothing more than the establishment of an artificial relationship of patient and physician. Appellant was not otherwise persuaded or induced to dispense drugs illegally. Therefore, Berlin’s conduct did not amount to entrapment as a matter of law. The issue was properly submitted to the jury, and the jury found that appellant had not been entrapped. Our review of the record discloses no basis for interfering with that finding.

Appellant’s contention that conversations between physicians and their patients were privileged and could not properly be recorded has misconceived the nature of the doctor-patient privilege. This statutorily created privilege serves only to prevent physicians from disclosing certain information acquired while attending patients, without patient consent, in civil actions. See: 42 Pa.C.S. § 5929. See also: Commonwealth ex rel. Romanowicz v. Romanowicz, 213 Pa.Super. 382, 385, 248 A.2d 238, 240 (1968). The privilege was not intended to benefit or protect the physician but the patient. Therefore, the privilege does not prevent a patient from disclosing conversations with his or her physician. Moreover, it does not preclude the patient’s giving consent to an electronic recording of conversations between physician and patient.

Electronic interception of oral conversations is lawful when accompanied by the consent of one of the parties to the conversation. 18 Pa.C.S. § 5704(2)(ii). The statutory allowance of such interceptions does not violate the Fourth Amendment of the United States Constitution or Article I, section 8 of the Pennsylvania Constitution. See: Commonwealth v. Harvey, 348 Pa.Super. 544, 550-56, 502 A.2d 679, 682-684 (1985); Commonwealth v. Hassine, 340 Pa.Super. 318, 355-357, 490 A.2d 438, 457-459 (1985). Appellant’s argument that his right of privacy was violated and required the suppression of the electronically recorded conversations is without merit.

The judgment of sentence is affirmed.

      . Dr. Frank was sentenced to pay fines in the total amount of $4,500.00 and was placed on probation for twenty-three months. He was also directed to make restitution in the amount of $123.37 and perform one hundred (100) hours of community service.

      . The Bureau is a part of and is operated from the Office of the Attorney General of Pennsylvania.


author: OLSZEWSKI, Judge:

text:
    516 A.2d 68
    COMMONWEALTH of Pennsylvania, Appellee, v. Elmer C. McCLUCAS, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1986.
    Filed Oct. 14, 1986.

      Joshua D. Lock, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before OLSZEWSKI, CERCONE and HESTER, JJ.
   OLSZEWSKI, Judge:

This matter comes before this Court on appeal from a judgment of sentence. Appellant, Elmer C. McClucas, Sr., was convicted of rape (3 counts), statutory rape (3 counts), incest, simple assault (2 counts), corruption of minors, and endangering the welfare of children. These offenses were allegedly committed against appellant’s minor child on or about March 1979 through April 1984. Various pre-trial motions challenging, inter alia, the factual allegations contained in the informations and the rise of certain offenses which occurred outside the statute of limitations period were filed and denied. In addition, the court denied a defense request to exclude all testimony relating to any offenses which occurred outside the statutory period. Following his conviction, appellant was sentenced to a cumulative term of five-to-ten years imprisonment. Appellant now contends that: (1) trial counsel was ineffective in failing to seek a dismissal of certain counts of the information charging incidents of rape, statutory rape, and corruption of minors which occurred outside of the period allowed for prosecutions; (2) trial counsel was ineffective in failing to seek an arrest of judgment where the remaining charges were supported by insufficient evidence; (3) the informations should have been dismissed inasmuch as they violated Pa.R.Crim.P. 225(b) by alleging criminal violations outside the period of the statute of limitations; (4) the informations charging appellant with rape, statutory rape, and incest were insufficient and thus denied him the opportunity to defend himself; and (5) testimony regarding criminal acts committed by appellant outside of the statute of limitations period was improperly admitted into evidence. We will address these arguments seriatim.

After a careful review of the record, we note appellant’s trial counsel attempted, although unsuccessfully, via pre-trial motions to challenge the informations on the basis that certain offenses contained therein were time-barred. In addition, trial counsel filed a supplemental omnibus pretrial motion that included a motion to dismiss the information due to a lack of specificity and the expiration of the statute of limitations and argued these motions prior to trial. Premised on the concerted efforts of appellant’s trial counsel, we cannot say that appellant was denied the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We similarly find with respect to appellant’s second argument asserting similar deprivations, that appellant’s trial counsel did raise the insufficiency of the evidence argument in a motion for a new trial and in arrest of judgment. Consequently, appellant’s claim of ineffective assistance of counsel must fail.

Nor are we persuaded by appellant’s third argument that the informations filed against appellant should have been dismissed inasmuch as they violated Pa.R.Crim.P. 225(b) by containing offenses which occurred beyond the statute of limitations. It is well established that a reviewing court will only reverse a decision granting or denying a motion to quash when the lower court clearly has abused its discretion. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). See also Commonwealth v. Hackney, 117 Pa.Super. 519, 178 A. 417 (1935).

The Pennsylvania Rules of Criminal Procedure, in pertinent part, provide that in order for an information to be valid, it must contain, inter alia:

The date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient ...

Pa.R.Crim.P. 225(b)(3).

A review of the informations filed in the instant case indicate that the offenses occurred on or about March 1979 through April 1984. We are aware that a five year period of limitations governs the acts of rape, statutory rape, and incest, 42 Pa.C.S.A. Sec. 5552(b), and that a two year period of limitations covers the remaining offenses not described in the latter section, 42 Pa.C.S.A. Sec. 5552(a). Thus, under a strict application of this rule, appellant’s argument seems to have merit. Nevertheless, we are inclined to find an exception.

Commencing at the tender age of ten and one-half years, the victim was repeatedly sexually abused by her father and forced to have sexual intercourse with him from June 1979 until June 1980 on a weekly basis. In addition to the sexual assaults, evidence further revealed that appellant intimidated the child and instructed her not to disclose these events to anyone. As a result the victim testified that she was afraid to tell anyone about the incidents until approximately June of 1980 when she revealed these facts to her mother. Following a brief separation, the abuse again continued in November of 1982. Although the informations were not filed until May 1985, we do note that the complaint and summons were issued on February 25, 1985, less than five years after the incidents were first reported. Since the latter period is determinative of the timeliness of the information, we must conclude that the lower court did not abuse its discretion in failing to dismiss the information. See Commonwealth v. Kimble, 323 Pa.Super. 499, 470 A.2d 1369 (1984) (Commonwealth commenced defendant’s prosecution in a timely fashion where complaint and summons were issued within the limitations period although the indictment was not issued until after the expiration of the limitations period.)

Nor do we find merit in appellant’s next contention that the informations charging him with rape, statutory rape, and incest were not sufficiently specific to apprise him of the notice of the charges against him. In particular, appellant argues that the “lack of chronological specificity” prevented appellant from adequately defending himself. We disagree.

In Commonwealth v. Niemetz, wherein the appellant was convicted of similar offenses (i.e., rape, involuntary deviate sexual intercourse, indecent assault, and corruption of minors), this Court noted:

Since time is not of the essence in the crimes for which appellant was charged and convicted, see Commonwealth v. Yon, 235 Pa.Super. 232, 341 A.2d 169 (1975); Commonwealth v. Rouse, 207 Pa.Super. 418, 218 A.2d 100 (1966), the pertinent allegation contained in the information appears to fit precisely Rule 225’s proviso that an allegation that an offense was committed “on or about any date within the period fixed by the statute of limitations shall be sufficient” when (1) time is not of the essence and (2) a precise date is unknown____ Moreover, we do not believe that it would serve the ends of justice to permit a person to rape and otherwise sexually abuse his child with impunity simply because the child failed to record in a daily diary the unfortunate details of her childhood. Since the facts of the instant case preclude a definitive enumeration of events and because the record belies any assertion that the Commonwealth sought to abuse the flexibility of Rule 225, we hold that it was not an abuse of discretion to deny the motions. (Footnote omitted). (Emphasis in original).

282 Pa.Super. at 439-440, 422 A.2d at 1373.

Nevertheless, appellant contends that the present situation is similar to the circumstances in Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975), wherein our Supreme Court held that the defendant was denied due process when he was required to defend the charge that he committed sodomy on some date within a fourteen-month period. It is noteworthy, however, that notwithstanding that judgment, the Court indicated that the “Commonwealth may not be required to prove the single specific date of a crime in every instance,” instead, “any leeway permissible would vary with the nature of the crime and the age and condition of the victim balanced against the rights of the accused.” Id., 460 Pa. at 516, 333 A.2d at 892.

In light of Devlin and progeny, we must necessarily conclude that the offenses in the instant case, were not susceptible to being dated within a “reasonable degree of certainty.” Inasmuch as the crimes, in toto, occurred over a period of time, we are not prepared to say that the lack of chronological specificity seriously encroached upon appellant’s ability to defend himself. See Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). Thus, the trial court did not abuse its discretion in denying appellant’s motion to dismiss the informations.

Lastly, appellant argues that certain testimony regarding criminal acts allegedly committed by appellant beyond the applicable period of limitations was improperly admitted into evidence. Since we have already concluded that certain offenses charged in the informations, although committed outside of the limitations period, were properly raised, we need not address the merits of this argument. Had we decided to dismiss those offenses from the informations, we would nevertheless deny appellant’s argument predicated on Commonwealth v. Bell, 116 Pa. 405, 31 A. 123 (1895) and progeny. See Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979). It is our interpretation that the questioned offenses were part of a series of acts indicating the continuity of illicit relations. Particularly noteworthy is the following comment made by former President Judge Spaeth indicating some hornbook law on this subject:

Evidence of prior criminal acts is admissible if “to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime at trial.” McCormick on Evidence, Sec. 190 at 449. (Cleary ed. 1979) (footnote omitted).

Id., 271 Pa.Superior Ct. at 320, 413 A.2d at 425.

Judgment of sentence affirmed.

      . Following appellant’s trial, the court merged one count of indecent assault with the other offenses and dismissed that charge.

      . Appellant’s omnibus pre-trial motion to suppress evidence, inter alia, was filed on June 6, 1985.

      . Appellant’s supplemental omnibus pre-trial motion to suppress evidence, inter alia, was filed on June 27, 1985.


author: HOFFMAN, Judge:

text:
    516 A.2d 71
    Frank M. SNYDER, Jr. and Christine Snyder v. QUEEN CUTLERY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 14, 1986.
    Filed Oct. 6, 1986.

      Frank L. Kroto, Jr., Erie, for appellant.
    Bruce W. Bernard, Erie, for appellees.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from an order of the trial court compelling appellant, Queen Cutlery, to permit appellees, Frank and Christine Snyder, entry into appellant’s premises for the express and limited purpose of inspecting, testing, photographing and measuring or video-taping appellant’s blade polishing machine. Appellant contends that (1) the lower court erred in ordering the inspection of appellant’s premises and (2) appellee’s claim is barred by the doctrine of laches. Appellant’s arguments are without merit and we, therefore, affirm the order of the lower court.

In 1974 one of the appellees, Frank Snyder, suffered injuries to both his hands through the use of a blade polishing machine while in the employ of appellant. Appellees’ counsel advised them that their sole remedy was to proceed against his employer through the Workman’s Compensation Act, 77 P.S. §§ 1-1601. Appellees did so and recovered. Eleven years later, appellees were advised that at the time of the injuries they also had a possible product’s liability action against the manufacturer of the blade polishing machine. Appellees retained present counsel for the purpose of pursuing a legal malpractice claim against their former attorney for failure to investigate and inform appellees of possible product’s liability and loss of consortium claims. After filing such a claim against their former attorney, appellees filed the instant complaint in equity pursuant to Pa.R.Civ.P. 4009(c) seeking an order forbidding appellant from removing, destroying or altering the blade polishing machine in question and permitting appellees access to appellant’s plant to inspect the machinery and conduct other discovery relevant to the underlying legal malpractice claim.

The lower court entered the following order:

Plaintiffs will be given permission to enter Queen’s plant at 507 Chestnut Street, Titusville, Pennsylvania, for a period not to exceed three hours to inspect, test, photograph, measure or videotape Defendant Queen’s blade polishing machine which was used by the Plaintiff, Frank Snyder, when injured. If said exact machine cannot be precisely identified, then said inspection may be made of a substantially similar machine. Plaintiffs’ attorney, an expert, Plaintiff Frank Snyder and a photographer will be allowed to be present during said inspection. Entry into said plant shall be at a reasonable time of day.
This Order is entered without prejudice to the right of the Plaintiffs to petition for additional limited discovery after entry into said plant and inspection, if conditions so warrant.

Order of December 23, 1985. Appellant filed exceptions which were denied. This appeal followed.

Appellant first contends that the lower court erred in ordering the inspection of its premises because it is not a party to the underlying claim, the machine for which the inspection is sought is no longer in existence, any action against it is barred by the statute of limitations, and the inspection will be unduly burdensome. We disagree.

The standard of review in the consideration of an appeal from a final decree in an equity action is well established. A chancellor’s findings of fact, approved by a court en banc, are entitled to the weight of a jury verdict and will not be disturbed on appeal if supported by adequate evidence. See McDole v. Duquesne Co., 281 Pa.Superior Ct. 78, 83, 421 A.2d 1155, 1158 (1980). This principle is equally applicable in situations, as here, in which a single judge, as opposed to a court en banc, reviews the case and reaches a decision. See Silo Realty v. Redevelopment Authority, 289 Pa.Superior Ct. 67, 70, 432 A.2d 1053, 1055 (1981). Such findings are controlling and the court’s decree should not be reversed on appeal unless it appears either that the court abused its discretion, its findings lacked evidentiary support, or that the court capriciously disbelieved the evidence. See Davis v. Buckham, 280 Pa.Superior Ct. 106, 110, 421 A.2d 427, 429 (1980).

Appellant argues that the lower court erred in ordering the inspection because it is not a party to the underlying action. This argument is without merit. Pa.R.Civ.P. § 4009(c) specifically provides for an independent action in equity against a non-party for the purpose of discovery. Here, appellees’ action against appellant was filed for that purpose. Thus, it is irrelevant that appellant is not a party to appellees’ underlying cause of action.

Appellant next argues that the lower court erred in ordering an inspection of its property because the machine in question no longer exists. We disagree. Here, the lower court order allows for discovery of a substantially similar machine with the aid of appellees’ expert. The purpose of the discovery is to determine evidence in pursuit of the underlying malpractice action. If the machine in question, or a substantially similar one, does not exist, that in itself will aid appellees in determining the feasibility of pursuing their legal malpractice claim.

Appellant also argues that the lower court erred in ordering the inspection because the statute of limitations has run against the manufacturer of the blade polishing machine. Such an argument is not relevant to this claim in equity. Appellees have filed no action against the manufacturer. Rather, their claim is against their former attorney for malpractice. They seek discovery not to file a claim against the manufacturer, but to determine whether their former attorney committed malpractice in failing to investigate and advise them of such a claim.

Appellant also argues that the inspection will be unduly burdensome. We disagree. The lower court fashioned a fair and equitable order, limiting the inspection to three hours and specifically stating the item(s) to be inspected. We recognize that the lower court is in a better position to weigh the equities of the situation, and we will not disturb its findings on appeal.

Appellant last argues that appellees’ action is barred by the doctrine of laches. We disagree. Laches is an equitable doctrine which provides that when a complaining party in equity is guilty of failing to exercise due diligence in prosecuting a claim to the other party’s detriment, the complaining party will be precluded from proceeding with his or her claim. See Siegal v. Engstrom, 427 Pa. 381, 385, 235 A.2d 365, 367 (1969); Hankin v. Mintz, 276 Pa.Superior Ct. 538, 542, 419 A.2d 588, 590 (1980).

Here, appellant has shown no detriment or prejudice to its rights sufficient to preclude the discovery request. Accordingly, appellees’ action for inspection of appellant’s premises is not precluded by the doctrine of laches.

For the above stated reasons, we affirm the lower court’s order.

Affirmed.

      . Pa.R.Civ.P. 4009(c) states in relevant part:
      (a) Any party may serve on any other party a request (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspecting and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rules 4003.1 ... 4003.5 inclusive.
      (c) This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

      . On March 14, 1986, the Superior Court entered an order directing appellant to file a Praecipe to enter the order of January 10, 1986, which denied appellant post-trial relief, as a final decree. The order further denied the appellees’ motion to quash pursuant to Pa.R.A.P. 905(a).


author: ROWLEY, Judge:

text:
    516 A.2d 352
    COMMONWEALTH of Pennsylvania v. John WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 26, 1986.
    Filed Aug. 26, 1986.
    Reargument Denied Oct. 21, 1986.

      Dennis I. Turner, Pittsburgh, for appellant.
    Annette M. Hutchinson, Assistant District Attorney, New Castle, for Com., appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an Order denying appellant’s Motion for Judgment of Acquittal. Appellant sought acquittal on the ground that the evidence presented at his first two trials, each of which ended in a hung jury, was insufficient. He asserts that we have jurisdiction of his appeal by virtue of Pa.R.A.P. 311(a)(5) because the denial of his motion to acquit “is tantamount to the grant of a new trial for the Commonwealth.”

Appellant presents two issues for review:

1. Did the trial court err in denying his motion for judgment of acquittal?
2. Does the double jeopardy clause prohibit the Commonwealth from trying appellant a third time?

The record, as certified to us, reveals the following relevant facts. Appellant was charged with rape, burglary, robbery, involuntary deviate sexual intercourse and terroristic threats. He proceeded to a trial by jury. After 8V2 hours of deliberations, the jury was unable to reach a verdict and, on March 4, 1985, a mistrial was declared. Appellant was tried a second time before a jury and on May 23, 1985, when the jury was again unable to agree, a mistrial was declared. The trial court’s opinion states that both mistrials were declared for manifest necessity. Following the second mistrial, the Commonwealth made clear its intention to proceed to a third trial.

Appellant filed an Omnibus Pre-Trial Motion which alleged, in reference to the first trial only, that the trial court “acted hastily in declaring a mistrial” and that “the double jeopardy clause of the Fifth Amendment of the U.S. Constitution requires dismissal of the instant charges as a mistrial way [sic] declared without manifest necessity.” The Omnibus Motion was heard by Judge Sweet. A review of Judge Sweet’s order of June 17, 1985 reveals that appellant also sought to present an admittedly untimely Motion for Judgment of Acquittal. By his June 17th order Judge Sweet made two rulings relevant to the present appeal. First, he denied appellant’s motion for dismissal on double jeopardy grounds. Second, he determined that because it was obvious that trial counsel “would be found inadequate” for failing to timely file a Motion for Judgment of Acquittal that appellant “be granted ten days to present a proper motion for a directed judgment of acquittal solely because of two successive hung juries.”

Appellant next filed a Motion for Judgment of Acquittal, pursuant to Pa.R.Crim.P. 1124(a)(3), in which he alleged that the failure of both juries to reach a verdict demonstrated that the evidence was insufficient to support a conviction. The motion was heard and denied by Judge Caiazza on June 21, 1985. Appellant filed the present appeal from Judge Caiazza’s order only.

Before we may consider the merits of appellant’s appeal we must first determine whether it is properly before us. Although the Commonwealth does not challenge the appealability of the present order, questions of jurisdiction must be raised by the Court sua sponte. Rohr v. Keystone Insurance Co., 294 Pa.Super. 179, 439 A.2d 809 (1982). The jurisdictional question presented is whether an order denying a Motion for Judgment of Acquittal, on the ground of insufficient evidence, is the subject of an interlocutory appeal as of right under Pa.R.A.P. 311(a)(5).

The rule provides that:

(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(5) New trials. An order ... in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge____

The note following the rule states that sub-section (a)(5) is based on Commonwealth v. Gabor, 209 Pa. 201, 58 A. 278 (1904) in which the defendant appealed from an order granting a new trial. The Commonwealth sought to quash the appeal because there was no final judgment. The Supreme Court rejected this argument, stating that: “as the appellant claims to be entitled on the record to an absolute discharge, the order for another trial is so far in the nature of a final judgment that we think it best to consider and determine the appeal on its merits.” Id., 209 Pa. at 203, 58 A. 278. Similarly, in Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977) the Supreme Court permitted defendant to appeal a post-verdict order granting a new trial but denying a motion in arrest of judgment. The Court rejected the Commonwealth’s argument that defendant’s appeal should be quashed as interlocutory, finding that Pa.R.A.P. 311(b) (which contained language similar to the present rule) permitted such an appeal and that “[t]o require such a defendant to stand trial again, if the already completed trial demonstrates his innocence, is a needless hardship.” Id., 209 Pa. at 527 n. 2, 370 A.2d at 731 n. 2 (quoting comment d to § 1.3 of the A.B.A. Standards on Criminal Appeals [Approved Draft, 1970]).

In the present case, appellant’s motion to acquit seeks his absolute discharge. In light of the rationale of sub-section (a)(5), as set forth in Gabor and IAddick, we see no reason to distinguish between a trial court order denying a Motion for Judgment of Acquittal and an order awarding a new trial. Both orders have the same effect: they place the defendant in a pre-trial setting. Therefore, we conclude that the appeal is properly before us.

Turning to the merits of appellant’s appeal, we note that the appellant has failed to provide us with an adequate trial record to review. Even though there have been two trials in this case, the record, as certified to us, does not contain the notes of the testimony from either trial. It is the appellant’s responsibility to provide a complete and comprehensive record to the reviewing court for the purposes of appeal. See: Chapter 19—Preparation and Transmission of Record and Related Matters. Pa. Rules of Appellate Procedure. Since appellant has failed to provide a complete record in this case, we cannot undertake a meaningful review of his claims. Absent such a record, there is no support for appellant’s argument concerning the sufficiency of the evidence presented at his two trials. Therefore, we are unable to say that the trial court erred in denying appellant’s Motion for Judgment of Acquittal.

As to appellant’s second argument, we note that his notice of appeal recites that the present appeal is taken from the order of June 21, 1985 which denied his Motion for Judgment of Acquittal. At oral argument, counsel for appellant stated that the present appeal was taken only from that order and not from the order denying his motion for discharge on double jeopardy grounds. Accordingly, we need not address the double jeopardy claim.

Order affirmed.

      . Thus the present case is distinguishable from Commonwealth v. Laudenslager, 260 Pa.Super. 395, 394 A.2d 985 (1978) in which the defendant’s appeal from an order granting a new trial on the ground of after discovered evidence was quashed because his claim to an absolute discharge was barred by a prior, unappealed order that denied his post-trial motion for arrest of judgment.

      . Although we express no opinion as to the merits of appellant’s double jeopardy claim, we note that in Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) the Supreme Court held that an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous.