author: WIEAND, Judge.

text:
    641 A.2d 321
    COMMONWEALTH of Pennsylvania v. Tyrone WALLACE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1994.
    Filed May 5, 1994.

      Wayne Sachs, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge.

Tyrone Wallace was tried by jury and was found guilty of two counts of aggravated assault and single counts of burglary and possession of an instrument of crime. Post-trial and supplemental post-trial motions were denied, and Wallace was sentenced to serve an aggregate term of imprisonment for not less than eleven (11) years nor more than thirty-two (32) years, to be followed consecutively by a five (5) year period of probation. A direct appeal was taken to the Superior Court, but this was subsequently dismissed for failure to file an appellate brief. Wallace then filed a petition under the Post Conviction Relief Act, and, pursuant thereto, was granted the right to file a direct appeal nunc pro tunc. In his nunc pro tunc appeal, Wallace, who represents that he is legally deaf, argues that the trial court erred by failing to appoint a sign language interpreter under 42 Pa.C.S. § 8701(b). He contends also that his trial counsel was ineffective for failing to request the appointment of an interpreter. His post-verdict counsel was also ineffective, he argues, for failing to raise and preserve this issue for appellate review.

The factual scenario underlying appellant’s convictions was briefly summarized in the opinion of the trial court as follows:

[0]n the evening of July 12, 1988, at about 7:30 P.M., Jose Diaz and his live-in girlfriend Carmen Delgado were in the dining room of their home — he on the telephone, she seated nearby — when defendant kicked in the front storm door. Distracted by the noise, Mr. Diaz faced the intruder. The defendant was four feet away when he opened fire [with a handgun]; the victims took cover behind the refrigerator. Ms. Delgado’s daughter was outside the home on a neighbor’s stoop when she saw the defendant kick in the storm door and enter the house. She ran to the house, coming face to face with the defendant as he left the house and got into a car. Mr. Diaz and Ms. Delgado testified that as soon as defendant entered, they recognized him as being the same person they had jousted with a half-hour before when they found him urinating in their back yard. All three of the above named identified defendant as the intruder. The defense was one of alibi.

On appeal, appellant contends that, because he is deaf, the trial court was required under 42 Pa.C.S. § 8701(b) to appoint an interpreter to assist him in understanding the proceedings. He argues that the trial court’s failure to appoint an interpreter resulted in the denial of his constitutional rights to due process and to confront his accusers. According to appellant, he is totally deaf in one ear, has limited hearing in his other ear and can read lips only when the pace of the conversation is slow. At his trial, he argues, the pace of conversation was increased so that he could not follow what was being said without the aid of a sign language interpreter. The Commonwealth maintains that, because appellant admits to having some hearing and being able to read Kps, he does not meet the requirements for appointment of an interpreter under 42 Pa.C.S. § 8701. The Commonwealth argues further that appellant never made a request for an interpreter during his trial and did not otherwise attempt to apprise the trial court that he was having difficulty understanding the proceedings. Finally, the Commonwealth contends, the record discloses that appellant was able to communicate with counsel and the court during trial. Therefore, the Commonwealth argues, the trial court did not abuse its discretion by failing sua sponte to appoint an interpreter to assist appellant at trial.

The provisions of 42 Pa.C.S. § 8701, in pertinent part, are as follows:

§ 8701. Interpreters for the deaf
(b) Criminal proceedings. — In any criminal proceeding in which a defendant is deaf the court shall appoint an interpreter to assist the defendant throughout the proceeding.
(d) Definitions. — As used in this section the following words shall have the meanings given to them in this subsection:
“Deaf.” Persons who are deaf or whose hearing is so impaired that they are unable to understand or communicate the spoken English language.
“Interpreter.” A person qualified and trained to translate for or communicate with deaf persons. Any person certified by the National or Local Registry of Interpreters for the Deaf or similar registry shall be considered qualified for the purposes of this section.

42 Pa.C.S. § 8701(b) and (d).

Webster’s Third New International Dictionary (1965) defines “deaf’ as “lacking or deprived of the sense of hearing either wholly or in part: unable to perceive sounds: having a sense of hearing that is inadequate for the purposes of daily living.” Id. at 580. Similarly, Black’s Law Dictionary (5th ed. 1979) defines a “deaf person” as “[a]ny person whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken in a normal conversational tone.” Id. at 359. Therefore, we reject the Commonwealth’s initial suggestion that a person who has a limited ability to hear, or who has some ability to read lips, is automatically excluded from the purview of section 8701. The basic inquiry must focus upon whether a defendant with a hearing impairment requires an interpreter in order to receive a trial which is fundamentally fair. See: United States v. Gallegos-Torres, 841 F.2d 240, 242 (8th Cir.1988); State v. Hernandez, 120 Idaho 785, 788, 820 P.2d 380, 383 (1991).

As a general rule, “the determination of whether an interpreter is warranted in a particular case is within the sound discretion of the [trial] court.” 23A C.J.S., Criminal Law, § 1152, at p. 12. See: Commonwealth v. Riley, 354 Pa.Super. 422, 424, 512 A.2d 22, 23 (1986); Commonwealth v. Carillo, 319 Pa.Super. 115, 127, 465 A.2d 1256, 1262 (1983). See also: United States v. Markarian, 967 F.2d 1098, 1104 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1344, 122 L.Ed.2d 726 (1993); Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.1989); United States v. Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir.1985), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985); United States v. Martinez, 616 F.2d 185, 188 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981). The discretion of the trial court, however, “is to determine the factual question of whether an interpreter is needed; a trial court does not have discretion to decide whether a defendant who needs an interpreter has a legal entitlement to one.” State v. Neave, 117 Wis.2d 359, 364, 344 N.W.2d 181, 183 (1984). Thus,

where the court is put on notice that a defendant has difficulty understanding or speaking the English language, it must “make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be.” Where, on the other hand, no request for an interpreter has been made and the defendant appears to comprehend the nature of the proceedings and the charges against him, the trial court does not abuse its discretion by proceeding without appointing an interpreter.

People v. Navarro, 134 A.D.2d 460, 461, 521 N.Y.S.2d 82, 83 (1987) (citations omitted). See also: Luna v. Black, 772 F.2d 448, 451 (8th Cir.1985); United States v. Carrion, 488 F.2d 12, 14-15 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974); United States ex rel. Negron v. State of New York, 434 F.2d 386, 390-391 (2d Cir.1970); Chao v. State, 604 A.2d 1351, 1362 (Del.1992); State v. Neave, supra at 373-77, 344 N.W.2d at 188-189; People v. Atsilis, 60 Mich. App. 738, 739, 231 N.W.2d 534, 535 (1975). “[A] defendant does not necessarily lose his right to an interpreter by not asserting it. It depends on the facts in each case as to whether the trial court was effectively alerted to the need for an interpreter.” State v. Neave, supra at 368, 344 N.W.2d at 185. Compare: State v. Natividad, 111 Ariz. 191, 194, 526 P.2d 730, 733 (1974) and People v. Sepulveda, 412 Mich. 889, 313 N.W.2d 283 (1981) with People v. Ramos, 26 N.Y.2d 272, 309 N.Y.S.2d 906, 258 N.E.2d 197 (1970) and State v. Woo Won Choi, 55 Wash.App. 895, 900-04, 781 P.2d 505, 508-509 (1989).

Although we have found no Pennsylvania appellate court decisions which have examined the right of a deaf person to an interpreter under section 8701(b), the Pennsylvania Supreme Court, in Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976), addressed the analogous situation of a defendant’s right to an interpreter because of difficulty in understanding or speaking the English language. There, the Supreme Court spoke as follows:

A defendant’s ability to use an interpreter encompasses numerous fundamental rights. The failure to understand the proceedings may deny him his right to confront witnesses against him, his right to consult with his attorney, or his right to be present at his own trial. See United States ex rel. Negron v. State of New York, 434 F.2d 386 (2d Cir.1970); United States ex rel. Navarro v. Johnson, 365 F.Supp. 676, 681 n. 3 (E.D.Pa.1973); see generally Annotation, Right of Accused to Have Evidence or Court Proceedings Interpreted (hereinafter “Annotation”), 36 A.L.R.3d 276 (1971). The use of an interpreter may also be necessary to protect appellant’s right to testify in his own behalf. See United States v. Carrion, 488 F.2d 12 (1st Cir.1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974). As the Court of Appeals stated in Carrion:
“If the defendant takes the stand in his own behalf, but has an imperfect command of English, there exists the ... danger that he will either misunderstand crucial questions or that the jury will misconstrue crucial responses.”
488 F.2d at 14.
The decision to use an interpreter rests in the sound discretion of the trial judge. See United States v. Carrion, supra; United States ex rel. Negron v. State of New York, supra; Annotation § 7, 36 A.L.R.2d at 293 (1971). This is necessary because numerous factors such as the complexity of issues and testimony and the language ability of defendant must be taken into consideration. United States v. Carrion, supra. However, in view of the important rights involved, the trial court must consider all relevant factors in its initial determination of need. If it becomes apparent that an interpreter is necessary during the trial, the court should, on its own motion or on motion of a party, make an interpreter available. See United States ex rel. Negron v. State of New York, supra.

Commonwealth v. Pana, supra at 48-49, 364 A.2d at 898. See also: United States v. Mosquera, 816 F.Supp. 168, 172-173 (E.D.N.Y.1993); People v. Avila, 797 P.2d 804, 805-806 (Colo. Ct.App.1990); Martinez Chavez v. State, 534 N.E.2d 731, 736-737 (Ind.1989); State v. Kounelis, 258 N.J.Super. 420, 426-29, 609 A.2d 1310, 1313-1314 (1992); State v. Linares, 192 N.J.Super. 391, 393, 470 A.2d 39, 40 (1983); Application of Murga, 631 P.2d 735, 736-737 (Okl.1981); Baltierra v. State, 586 S.W.2d 553, 556-559 (Tex.Crim.App.1979)(en banc).

In State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661 (1992), the Supreme Court of Ohio observed:

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * The confrontation clause requires that a defendant be given the opportunity to be physically present at trial, that the defendant be competent to assist in his own defense, and that the defendant understand the language of the forum. LaFave & Israel, Criminal Procedure (1985) 874, Section 23.2(c). A defendant who cannot hear is analogous to a defendant who cannot understand English, and a severely hearing-impaired defendant cannot be tried without adopting reasonable measures to accommodate his or her disability. Ferrell v. Estelle (C.A.5, 1978), 568 F.2d 1128, 1132 (vacated as moot due to the prisoner’s death, 573 F.2d 867); People v. Rivera (1984), 125 Misc.2d 516, 527-528, 480 N.Y.S.2d 426, 433-434.

Id. at 64, 600 N.E.2d at 671-672. See: 21A Am.Jur.2d, Criminal Law, § 958. See also: Turner v. State, 429 So.2d 645, 646 (Ala.Crim.App.1982); People v. Guillory, 178 Cal.App.2d 854, 860-62, 3 Cal.Rptr. 415, 420-421 (1960); People ex rel. Myers v. Briggs, 46 Ill.2d 281, 287, 263 N.E.2d 109, 113 (1970). The Court of Appeals of Louisiana, in interpreting a statute similar to 42 Pa.C.S. § 8701, stated:

These provisions recognize that the Constitution requires that a defendant sufficiently understand the proceedings against him to be able to assist in his own defense. Clearly, a defendant who has a severe hearing impairment, without an interpreter, cannot understand the testimony of witnesses against him so as to be able to assist in his own defense.

State v. Barber, 617 So.2d 974, 976 (La.App. 4th Cir.1993). See also: Adams v. State, 749 S.W.2d 635 (Tex.Ct.App.—Houston 1988); Ex parte Tijerina, 571 S.W.2d 910, 912 (Tex.Crim.App.1978).

Our review of the record of appellant’s trial discloses that neither appellant nor his counsel ever made a request for an interpreter or otherwise attempted to call to the trial court’s attention that appellant was having difficulty understanding the proceedings. There was no mention of appellant’s hearing impairment until two witnesses called by the defense testified that appellant was legally deaf and that he had a prominent scar on the left side of his face. When the defense thereafter rested, the trial court engaged appellant in a colloquy to determine whether he had knowingly and voluntarily waived his right to testify in his own behalf. During this colloquy, appellant answered responsively the court’s questions and appeared to understand and follow what was being said. During the course of this colloquy, however, the following references were made to appellant’s hearing impairment:

THE COURT: Understand that under the law nobody can compel you to testify. Do you understand that? He doesn’t read my lips either?
MR. MASCIANTONIO [Defense counsel]: Repeat the question. I’m sorry.
THE COURT: You understand that under the law no one can compel you to testify?
THE DEFENDANT: Yes.
THE COURT: ... You are not arguing to the jury he can’t hear. You are not allowed to do that. That is not the reason he is not taking the stand?
MR. MASCIANTONIO: No.
THE COURT: The decision—
MR. MASCIANTONIO: I can mention it with respect to the evidence, his turning around.
THE COURT: I don’t know if that was proper evidence but there was no objection to it, and that is a minimum type of appeal for the jury because it has nothing to do—
MR. MASCIANTONIO: It could.
THE COURT: He can’t hear. I don’t know what effect that had on the evidence.
MR. KENNEDY [Assistant District Attorney]: I sure should have objected.
THE COURT: The scar, I would say everybody saw it. It is visible. I don’t see it.
MR. MASCIANTONIO: Your Honor, I think the hearing is relevant.
THE COURT: That’s relevant. That’s relevant. Take five minutes. We find that the defendant made an intelligent choice and is not being deprived of his rights.

Appellant asserts that the above quoted portions of the colloquy demonstrated the trial court’s awareness of his inability to follow the proceedings, thereby triggering the court’s duty to appoint an interpreter under section 8701. The Commonwealth, on the other hand, suggests that appellant’s ability to answer responsively the court’s questions during the colloquy conclusively establishes that he understood what was occurring at his trial and was able to communicate with counsel and assist in his own defense.

Although it is clear from the record that, by the end of trial, the court was aware that appellant had some type of hearing impairment, there is absolutely nothing in the record to indicate that the trial court was aware, or should have been aware, that appellant, because of a hearing impairment, was unable to comprehend the nature of the proceedings, to hear the testimony of witnesses, or to assist in his own defense. From the record which is before this Court, we can make no determination of the extent of appellant’s hearing impairment or the effect which it may have had on the fairness of appellant’s trial. Therefore, we are unable to conclude that the trial court abused its discretion by failing sua sponte to appoint a sign language interpreter to assist appellant in following the trial. No request for an interpreter was ever made, and a necessity for an interpreter was not so readily apparent that the trial court was required to appoint one sua sponte.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992); Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984). Therefore, it is necessary that a defendant asserting a claim of ineffective assistance of counsel make an offer of proof “alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981); Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). In order to prevail on a claim of ineffectiveness, moreover, appellant must demonstrate that: “(1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him.” Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992). See also: Commonwealth v. Carpenter, 533 Pa. 40, 45, 617 A.2d 1263, 1265 (1992); Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990). However, “ ‘[w]hen an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.’ ” Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990), quoting Commonwealth v. Petras, supra. See also: Commonwealth v. Edmiston, 535 Pa. 210, 237, 634 A.2d 1078, 1092 (1993); Commonwealth v. Thuy, 424 Pa.Super. 482, 498, 623 A.2d 327, 335-336 (1993).

In State v. Staples, 121 N.H. 959, 437 A.2d 266 (1981), the Supreme Court of New Hampshire reversed the defendant’s conviction and awarded a new trial on grounds that trial counsel had been ineffective for failing to take action to compensate for the defendant’s inability to hear testimony during his trial. At a post-trial evidentiary hearing, the defendant had presented medical evidence indicating that his hearing impairment was such as to have made it very difficult for him to have heard the testimony of witnesses and questions directed at him during trial. In holding that the defendant had been denied the effective assistance of counsel, the Supreme Court of New Hampshire reasoned as follows:

The ABA Standards for the Defense Function admonish defense attorneys to “inform the accused of his rights ... and take all necessary action to vindicate such rights.” ABA Standards for Criminal Justice § 4-3.6, at 4.45 (2d ed. 1980). The authors caution that counsel must often take “special steps” to protect the accused, id., commentary to § 4-3.6 at 4.46, which may include ordering medical examinations of the accused. Id. In this case, no steps were taken prior to trial, and those that were taken during trial were inadequate.
In Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975), the United States Supreme Court held that a person whose mental condition prevented him from understanding the nature and object of the proceedings against him, from consulting with counsel, and from assisting in the preparation of his defense, could not get a fair trial. Though the defendant in this case was not mentally deficient, his hearing impairment presents us with an analogous and equally serious problem. He, like the defendant in Drope, was unable to assist effectively in the preparation of his defense. Unlike Drope, however, remedial measures could have been taken to enable Staples to assist in his own defense, had his trial lawyer only initiated them prior to trial. We find that, in this respect, the defendant was ineffectively represented as a matter of law.

State v. Staples, supra, 121 N.H. at 962-63, 437 A.2d at 268.

Similarly, in Peeler v. State, 750 S.W.2d 687 (Mo.Ct.App.1988), the Missouri Court of Appeals reversed an order denying a petition for post-conviction relief and granted a hearing impaired defendant a new trial on grounds that his trial counsel had been constitutionally ineffective for failing to request the services of an interpreter at the defendant’s trial. In so holding, the Court set forth the following rationale:

Our research has revealed no Missouri cases that address this issue. However, this situation is not unlike cases that involve a defendant who is unable to speak English. In Negron v. State of New York, 434 F.2d 386 (2d Cir.1970) a Spanish speaking defendant was convicted of second degree murder. The only interpreter present at trial was one employed by the prosecutor to translate witness testimony from Spanish to English. The defendant was able to learn of the proceedings only by way of summaries given to him during breaks by the state’s interpreter. The court found the conviction violated principals of fundamental fairness as well as Negron’s Sixth Amendment guarantee of a right to confront and cross examine adverse witnesses. Id. at 389. By subjecting Negron to proceedings that he did not understand, the court in effect denied Negron the right to be present at his own trial. If the right to be present is to have meaning, every criminal defendant must have a reasonable degree of rational understanding and the ability to consult with his lawyer. Id.; Holmes v. State, 494 So.2d 230 (Fla.Dist.Ct.App.1986).
After a review of the trial transcript it appears that Samuel Peeler was able to adequately understand the questions asked of him on direct and cross-examination. However, this fact alone does not mean that he had a rational understanding of the rest of the proceeding. The testimony given by Dr. Peak at the evidentiary hearing makes it clear that Samuel was probably unable to understand what was being said at trial. The state offered no contrary evidence, in fact, its own witness acknowledged that Samuel likely did not understand what was being said to him at sentencing. We find that the failure of counsel to request an interpreter constituted ineffective assistance of counsel and resulted in a conviction that is constitutionally infirm and that the finding of the hearing court in this respect was clearly erroneous. We reverse the conviction of Samuel Peeler and remand the cause for a new trial.

Peeler v. State, supra at 690-691. See also: Annotation, Ineffective Assistance Of Counsel: Use Or Nonuse Of Interpreter At Prosecution Of Hearing-Impaired Defendant, 86 A.L.R. 4th 698 (1991).

After careful review, we are satisfied that there is arguable merit in appellant’s contention that his trial counsel was ineffective for failing to request that the trial court appoint a sign language interpreter pursuant to 42 Pa.C.S. § 8701(b) and that his post-verdict counsel was ineffective for failing to raise the issue of trial counsel’s effectiveness in this regard. Appellant has alleged that he had a serious hearing impairment which prevented his being able to follow much of the trial. He also may have been unable to communicate adequately with his counsel. He has further alleged that he would have been able to understand and communicate at his trial if a sign language interpreter had been appointed. Review of the record discloses that trial counsel was aware of appellant’s hearing impairment, but made no request of the trial court to appoint an interpreter. Under these circumstances, we deem it necessary to remand this case for an evidentiary hearing at which appellant will be able to present evidence in support of his claim, and the Commonwealth will have the opportunity to rebut it.

We emphasize, however, that at the evidentiary hearing the burden of proof will rest squarely on appellant. He must prove that his hearing was so impaired at the time of trial that the absence of an interpreter denied him a fair trial. Trial counsel will then have an opportunity to explain the reasons, if any, for his failure to request that an interpreter be appointed. Appellant will be entitled to relief only if he proves that there was no reasonable basis for trial counsel’s failure to request appointment of an interpreter and that he, the appellant, was prejudiced by counsel’s omission.

The judgment of sentence is vacated, at least for the time being, and the case is remanded for an evidentiary hearing to determine whether trial counsel and post-trial counsel were ineffective with respect to appellant’s claim that a request for the appointment of a sign language interpreter should have been made at his trial. If counsel are found to have been ineffective, a new trial must be granted. If counsel were not ineffective, however, the judgment of sentence may be reimposed. Jurisdiction is not retained.

      . The statute being interpreted was described by the Louisiana appellate court as follows:
      La.R.S. 15:270(A) provides that "[i]n all criminal prosecutions, where the accused is deaf or severely hearing-impaired, he shall have the proceedings of the trial interpreted to him in a language that he can understand by a qualified interpreter appointed by the court.” (Emphasis ours) La.R.S. 15:270(B)(1) continues by stating that ‘‘[i]n any case where an interpreter is required to be appointed by the court under this section, the court shall not commence proceedings until the appointed interpreter is in court.” (Emphasis ours) Clearly, the language of these sections is mandatory.

        State v. Barber, supra.

      . In closing argument, appellant’s trial counsel referred to this evidence in an attempt to impugn the identification testimony given by the victims.

      . Although appellant’s trial counsel did not request the appointment of an interpreter at the time of trial, counsel did assert in post-trial motions that '‘[t]he trial court did err in failing to arrange [] a sign language interpreter for the defendant, the defendant being deaf; violating the defendant’s constitutional right to due process in denying said defendant the opportunity to confront accusers and assist counsel in his defense....” This issue, however, was not pursued in the supplemental post-trial motions filed by appellant’s post-verdict counsel. Nor was any argument made by post-verdict counsel that appellant’s trial counsel had been ineffective for having failed to request the appointment of an interpreter.


source: Caselaw Access Project

author: TAMILIA, Judge.

license: Public Domain

text:
    641 A.2d 329
    Fayette INMAN and Wesley Inman, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY and Nationwide Mutual Fire Insurance Company and M.R. Smith, Agent, Nationwide Mutual Fire Insurance Company and Thomas J. Mielcarek, t/a Mielcarek’s Flower and Gift Shoppe and Edna Mielcarek, h/w.
    Superior Court of Pennsylvania.
    Argued April 13, 1994.
    Filed May 9, 1994.

      Hans E. Solum, Jr., Ridley Park, for appellants.
    J. Joseph Herring, Jr., Media, for Nationwide and Smith, appellees.
    Before TAMILIA, SAYLOR and HOFFMAN, JJ.
   TAMILIA, Judge.

Fayette and Wesley Inman appeal from the October 7, 1993 Decree making final the decree nisi which held the general liability policy issued by appellee Nationwide Insurance Company to Mrs. Inman’s employer, Mielcarek’s Flower and Gift Shoppe (Mielcarek’s), was unavailable to plaintiffs for recovery of damages sustained by wife when she fell on employer’s property, injuring her index finger.

In 1988, plaintiffs filed a declaratory judgment action asking the court to declare the general liability policy held by intervenors Mielcarek’s and Thomas J. and Edna Mielcarek was available to compensate them for injuries wife incurred while in scope of her employment, because employer failed to carry workers’ compensation coverage. The trial court found, based on the exclusionary language contained in the Mielcareks’ general liability policy set forth below, coverage was not available to the appellants. The clause in question read:

This insurance does not apply to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of the damage arising out of such injury.

It is appellant’s position, by failing to carry workers’ compensation coverage, appellees have waived their privilege to assert the exclusive remedy shield provided by the Act, and have thereby exposed themselves and their general liability carrier, Nationwide, to private claims for damages. In support of their argument, appellants rely on Harleysville v. Wozniak, 347 Pa.Super. 356, 500 A.2d 872 (1985), section 71 of the Act, Agreement, composition or release of damages as bar to claim for damages, and section 501 of the Act, which allows an employee to pursue a suit for damages at law if the employer doesn’t carry workers’ compensation coverage.

We begin with a discussion of Harleysville, supra, a summary judgment action wherein it was held that if an employer does not supply workers’ compensation coverage, an injured employee may submit a claim to his employer’s no-fault insurer in accordance with subsection 204(a)(1) of the No-Fault Act, which, the court found, provided the applicable security for payment of basic loss benefits. The significant fact in Harleysville was that the employee was injured while driving a vehicle owned by the employer. In this unique situation, the court dealt with priorities between workers’ compensation coverage and no-fault coverage. Workmen’s compensation would have been the exclusive coverage if available, and in its absence, the no-fault coverage, which included employees not covered by workmen’s compensation, was the next alternative available, the final remedy being direct suit against the employer. The factual circumstances of this case are clearly distinguishable from those in Harleysville. Also, in addition to not addressing the applicability of a general liability policy such as that which is at issue here, the Harleysville discussion did not include nor address the effect an exclusionary clause would have had on the court’s Order affirming the denial of summary judgment. Moreover, via footnote 7, the Harleysville court indicated its decision to limit its holding therein to the factual situation with which it was presented. For these reasons, we find appellant’s reliance on Harleysville to be misplaced. It hardly requires discussion to demonstrate the substantial differences in the legal effect of a no-fault automobile insurance policy strictly governed by statute for the unique circumstances relating to automobile usage and a general liability policy which relates to various business and proprietary concerns. It is unreasonable if not irrational to equate the two as is attempted by appellant.

Appellant’s reliance on section 71 of the Act is likewise inappropriate. Section 71 prohibits, as against public policy, an employer from agreeing with his employee to hold employer harmless for any future injury the employee may suffer. This section is inapplicable to the matter before us as no such agreement was entered and appellants are seeking to recover for an injury which has already occurred. Further, we take no issue with this section and indeed find to allow the formation of such an agreement between employer and employee would clearly violate the intent and spirit of the Act. A contract of insurance to cover general liability of the insured cannot be construed, because of a clause which excludes employees’ work-related injuries, to violate the Act, which voids any agreements to insulate an employer for future damages arising out of the employment. Neither the exclusion clause of the general liability contract nor section 71 prevents appellants from seeking damages directly from intervenors/employer. Accordingly, contrary to appellants’ argument, the exclusionary language contained in employer’s general liability policy is not void as against public policy, nor is it exemplary of that type of agreement which section 71 was drafted to avoid.

Having found appellants’ arguments devoid of merit, we affirm the October 7, 1993 Order finding employer’s liability policy unavailable to appellants. To find otherwise would encourage employers to ignore their obligation to obtain workers’ compensation insurance and rely on their general liability policy, which in turn necessarily would require a higher premium schedule reflecting the additional risk. Such a result would create an imbalance in procurement of insurance and compound confusion and enforceability of the comprehensive and basic social policy enunciated by the Act. This decision does not preclude appellants from seeking damages directly from the employer/intervenors and places the risk and payment for damages where it belongs.

Decree affirmed.

      . 77 P.S. § 1 et seq., The Pennsylvania Workmen’s Compensation Act.

      . Appellants also cite, unconvincingly, to Luko v. Lloyd’s London, 393 Pa.Super. 165, 573 A.2d 1139 (1990), wherein a liability policy had been amended by special endorsement to include employees injured as "persons insured”. The policy in question here contained no such endorsement/amendment. The factual scenario and holding of the Court in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982), is also distinguishable from the matter before this Court.

      . § 71. Agreement, composition or release of damages as bar to claim for damages
      No agreement, composition, or release of damages made before the date of any injury shall be valid or shall bar a claim for damages resulting therefrom; and any such agreement is declared to be against the public policy of this Commonwealth. The receipt of benefits from any association, society, or fund shall not bar the recovery of damages by action at law, nor the recovery of compensation under article three thereof; and any release executed in considcration of such benefits shall be void: Provided, however, That if the employe receives unemployment compensation benefits, such amount or amounts so received shall be credited as against the amount of the award made under the provisions of section 108.

      . Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1.009, repealed.

      . Because the litigation presented an issue of first impression, the interlocutory appeal was certified for immediate appellate review in accordance with 42 Pa.C.S. § 702(b).


author: DEL SOLE, Judge:

text:
    641 A.2d 592
    Hiram H. MILLER and Martha Miller, Appellees, v. Virginia B. HELLMAN and John O. Stein, II, Co-Executors of the Estate of Sarah E. Stettler, Appellees. Appeal of Virginia B. HELLMAN and John O. Stein, II, Appellants. Hiram H. and Martha MILLER, Husband and Wife, Appellants, v. Virginia B. HELLMAN and John O. Stein, II, Co-Executors of the Estate of Sarah E. Stettler, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1993.
    Filed April 8, 1994.
    Reargument or Reconsideration Denied June 8, 1994.

      Karl R. Hildabrand, Pittsburgh, for appellants (at 438) and appellees (at 484).
    David L. Lutz, Harrisburg, for appellants (at 484) and appellees (at 438).
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal by Hiram and Martha Miller from an Order denying their petition for delay damages under Rule 238 of the Rules of Civil Procedure. We reverse and remand for an evidentiary hearing.

On December 24, 1987, Hiram Miller and Sarah E. Stettler were in a motor vehicle accident on Routes 11 and 15 in Penn Township, Perry County, Pennsylvania. As a result of the accident, Ms. Stettler died and Mr. Miller sustained serious injuries. Appellants retained counsel who sent a number of letters to the Stettler liability insurer, Prudential Property Casualty & Insurance Company, requesting tender of the policy limits. Appellants filed their complaint on May 3, 1988. Prudential, on behalf of the estate of Sarah Stettler, sent a letter dated May 13, 1988, confirming its May 11, 1988 offer of the $100,000 policy limit and appellants’ May 12, 1988 rejection. Following trial a jury awarded appellants $2,500,000. Appellants requested that the trial court assess delay damages, but the court held that tender of the policy limit within the time period set forth in Rule 238 precluded the imposition of delay damages against the insured. It is from this order that appellants have appealed.

Appellants have framed the issue on appeal as whether the offer of insurance policy limits, where the insured is not indigent, precludes the imposition of Rule 238 damages. Appellants take exception to the trial court’s statements that they were not pursuing the assets of the estate, and that they were seeking delay damages “... on the basis that Prudential’s tender of the policy limits was untimely.” (Trial court op. 7-13-93 at 2). Appellants argue that there are only three circumstances in which a court may deny a petition for delay damages: where there is an offer within 125% of the verdict, where the plaintiff is at fault for the delay of trial or where the defendant is indigent. It is appellants’ position that the indigent defense to delay damages is applicable to situations only where the defendants have offered all of their assets. Furthermore, the delay damages should be calculated based upon the size of the verdict and not the policy limits; and, to toll the running of delay damages, the insurer should pay the policy limits into court.

Amended Pennsylvania Rule of Civil Procedure 238 provides in pertinent part as follows:

(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.
(2) Damages for delay shall be awarded for the period of time
(i) in an action commenced before August 1, 1989, from the date the plaintiff first filed complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision;
(3) Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.
(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of
(i) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsibility entity, and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or

(2) during which the plaintiff caused delay of the trial. Pa.R.C.P. 238, 42 Pa.C.S.A.

The awarding of delay damages is justified for two reasons: “1) alleviating delay in the courts and 2) encouraging defendants to settle meritorious claims as soon as reasonably possible.” Jazbinsek v. Chang 416 Pa.Super. 300, 611 A.2d 227 (1992), citing Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). Prior to the 1988 amendments to Rule 238, delay damages were awarded automatically if the defendant failed to make an appropriate offer of settlement. See Explanatory Comment to Rule 238. In the case of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), our supreme court introduced the element of fault to be considered when awarding damages for delay.

In order to avoid delay damages, the defendant must offer to settle the case for an amount within 125% of the verdict, Rule 238(b)(1), or the period of delay may be reduced by the time which is attributable to the plaintiffs, Rule 238(b)(2). Another exception to the delay damages rule was announced in Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986), which is still applicable under the amended Rule 238. In Berry, we were asked to determine whether delay damages should be assessed against everyone, regardless of their ability to pay. We held that:

a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 238 after the date of the defendant’s offer when the court determines that, because of the defendant’s indigency, the offer was the full amount available for payment of the plaintiff’s claim and it was impossible for the defendant to have offered more.

Id., Pa.Cmwlth. 410, 502 A.2d at 722.

It is clear that Prudential offered its policy limits of $100,-000 to appellants eight days after they filed a complaint. Appellants rejected this offer on May 12, 1988, and Prudential confirmed the offer and rejection in a writing dated May 13, 1988. Appellants, nevertheless, assert that the only procedure available for Prudential to escape the payment of delay damage is to pay its policy limits into court with the filing of a complaint in equity for interpleader and the filing of proof that the defendant was indigent and not able to pay more than the policy limits. Moreover, appellants suggest that this court hold that prejudgment interest is owed by a liability carrier that fails to pay its policy limits into court and that the insurer’s exposure is not controlled by policy liability limits. Appellants rely on Shellhamer v. Grey, 359 Pa.Super. 499, 519 A.2d 462 (1986), allocatur denied, 515 Pa. 594, 528 A.2d 603 (1987), (Shellhamer I), Shellhamer v. Grey, 390 Pa.Super. 122, 568 A.2d 224 (1989), (Shellhamer II), and Krysmalski by Krysmalski v. Tarasovich (en banc), 424 Pa.Super. 121, 622 A.2d 298 (1993), as the basis for this contention. We disagree with appellants.

Rather, we hold that where an insurer offers its policy limits within the time period of Rule 238 that excludes imposition of delay damages, it is not responsible for those damages following a verdict. This does not foreclose the determination of the insured’s solvency, and if solvent, the insured’s responsibility for delay damages where appropriate. We recognize that the purpose of the rule would not be served by imposing delay damages on the insurer when it has timely offered its policy limits. We do not reach, nor do we need to discuss, whether the insurer is liable for delay damages under Rule 238 if it offers the policy limits during the time period when delay damages begin to run. We will decide whether the insurance carrier will be liable for delay damages on a case by case basis. Further, a tender is sufficient, there need not be a payment into court to satisfy Rule 238.

However, that does not end our review. Here, it is apparent that the defendant has assets which were not tendered to settle the claim. The analysis in Krysmalski, supra, is applicable and delay damages should have been determined and imposed.

In Krysmalski, we commented that Berry stands for the proposition that a defendant must offer all of the assets available to avoid delay damages being assessed, and, therefore, prior to seeking Berry’s shelter, a defendant must offer, at minimum, all available liability insurance coverage. This statement was made in reference to the fact that the parties in Krysmalski were arguing whether the defendant’s insurer offered, during negotiations with the plaintiffs, the full policy limits of defendant’s insurance. The insurance company was not a party to the action and it later petitioned the court to deposit the insurance monies into court. Thus, our focus was on whether defendant had offered all of his assets, and, since he did not, he could not claim Berry’s shelter.

Instantly, Prudential offered the limits of its insurance policy and this was confirmed in a letter ten days after the complaint was filed. Rule 238 requires that “damages for delay shall be awarded for the period of time, in an action commenced before August 1, 1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.” R.C.P. 238(a)(2)(i). Clarifying this language, in Krichten and Krichten v. Wolpert, 431 Pa.Super. 194, 636 A.2d 196 (1949 Phl.1993, filed January 13, 1994), we stated that “under Rule 238 appellee had a grace period of one year in which to make her offer. Rule 238 provides a grace period to defendants so that they may have an opportunity to investigate and evaluate an action before the damages for delay begin to run, thereby increasing the chances of an appropriate settlement. Explanatory Note, Pa.R.C.P. 238, 42 Pa.C.S.A.” (slip opinion at 4). The date one year after the accrual of the cause of action, December 24, 1988, is later than the date on which the complaint was filed (May 3, 1988). The period of time for which delay damages will be awarded excludes the time after which the defendant has made a written offer of settlement. Pa.R.C.P. 238(b)(1)®. Since Prudential’s offer was made well before the period when delay damages would begin to run in this case, Prudential will not be hable for delay damages.

However, we find it necessary to remand this case for an evidentiary hearing to determine whether appellee’s estate could have made an offer in addition to appellee’s insurance policy. To be considered indigent, at minimum, the insurance policy limits must be offered. Where a defendant has more than insurance that could be offered to the injured plaintiff, a reasonable offer including the additional assets must be made. The trial court here concluded that from the time of the accident until the case went to trial, appellants were not pursuing the assets of appellee’s estate. Regardless whether appellant’s were “pursuing” the assets of appellee’s estate, the executors of appellee’s estate should have offered whatever was available for payment of damages. If the insurance proceeds were the full amount available for the payment of appellants’ claim, delay damages should not be assessed against the estate; but, if estate assets were available, appellee’s estate may be liable pursuant to Rule 238.

Appellees challenge the constitutionality of amended Rule 238 and have notified the Attorney General. Since appellees question the constitutionality of a rule, they should have given notice to the Court Administrator of Pennsylvania pursuant to Pa.R.A.P., Rule 522, 42 Pa.C.S.A. The Attorney General must be notified of a challenge to the constitutionality of a statute according to Pa.R.A.P., Rule 521, 42 Pa.C.S.A. Nevertheless, even if appellees had notified the proper party, we would find that such challenges to the constitutionality of Rule 238 already have been disposed of by this court and our supreme court.

The appellees argue that the rule is unconstitutional since it assesses “fault-neutral” delay against the defendant and imposes a penal interest rate against the defendant who chooses to defend a suit rather than settle. In Krysmalski, supra, the defendant raised issues very similar to the constitutional challenges presented here, i.e. amended Rule 238 violates the Equal Protection and excessive fines clauses of the United States and Pennsylvania Constitutions. We concluded that:

he raises no constitutional claim that has not been fully addressed by the Supreme Court and our Court. Laudenberger, supra [v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981) ] (original Rule 238 does not violate due process or equal protection clauses); Craig, supra [v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) ] (constitutional rationale of Laudenberger has continuing vitality); Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990). Until we are presented with a claim that raises a novel argument regarding Rule 238’s constitutionality, we will continue to find discussion of these claims unnecessary and, as we have written, “spurious.” Dietrich, supra, 491, 568 A.2d at 1280 (quoting Shellhamer v. Grey, 390 Pa.Super. 122, 129, 568 A.2d 224, 228 (1989)).

Krysmalski, 424 Pa.Super. 121, 145, 622 A.2d 298, 311.

See also Costa v. Lauderdale Beach Hotel, 534 Pa. 154, 626 A.2d 566 (1993) (Delay damages do not prevent defendants from exercising their right to defend themselves in court by penalizing defendants that choose to go to court but, rather, they simply do not permit defendants to profit from holding money that belongs to plaintiff, by requiring defendants to compensate plaintiff for loss of use of that money during time defendants held it; and we must conclude that the rule is not unconstitutional where we find, as we do in this case, that it is substantially and rationally related to a legitimate goal); Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 589 A.2d 1103 (1991) (Delay damages may be assessed even if defendant is free from fault in delay of trial).

Furthermore, in Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991), the defendant asserted that any award of delay damages is unconstitutional without a finding that the defendant is at fault for the delay, and delay damages are inapplicable to that portion of the jury’s award attributable to the plaintiffs future injuries. Relying on Dietrich, supra, we affirmed the trial court’s grant of delay damages holding that such damages are not unconstitutional absent a finding of fault on the part of defendant nor inapplicable to future injuries. We also noted that in Dietrich, we stated “it would be inappropriate for this court to find a rule promulgated by our supreme court to be constitutionally infirm ... any such determination must emanate from the Pennsylvania Supreme court itself.” (Citations omitted). Lilley v. JohnsManville, 408 Pa.Super. at 102, 596 A.2d 203. Therefore, appellee’s challenge to the constitutionality of Rule 238 must fail.

Accordingly, the order denying delay damages is reversed and the matter remanded for proceedings consistent with this decision.


author: JOHNSON, Judge:

text:
    641 A.2d 596
    Joan M. SAVOY v. Marcus J. SAVOY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1994.
    Filed May 6, 1994.

      Dudley N. Anderson, Williamsport, for appellant.
    Pamela L. Shipman, Williamsport, for appellee.
    Before OLSZEWSKI, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal of a parental support order, we are asked to determine whether a person is indigent, within the meaning of Section 3 of the Support Law of 1937 (Support Law), 62 P.S. § 1973, when her reasonable living expenses exceed her Social Security benefits, her sole source of income. We are also asked to determine whether the classification of relatives liable for support of indigent persons in Section 1973(a) of the Support Law has been repealed by the 1976 Amendments to the Public Welfare Code of 1967, 62 P.S. § 432.6, the classification of legally responsible relatives of public assistance applicants. With respect to the former, we apply the common law definition of indigent to Section 1973 and conclude that a person is indigent if her reasonable living expenses exceed her Social Security benefits, her sole source of income. With respect to the latter, this Court answered that question in Verna v. Verna, 288 Pa.Super. 511, 432 A.2d 630 (1981), and we now reaffirm our determination that Section 432.6 did not repeal the classification of relatives liable for the support of indigent persons in Section 1973(a). Accordingly, we affirm the order directing Marcus J. Savoy (Son) to pay $125 per month directly to the medical care providers of Joan M. Savoy (Mother) for her past medical care expenses.

Prior to 1986, Mother had been financially independent and regularly employed. In early 1986, Mother initially became unemployed to undergo and to recover from neck surgery. When she returned to work, Mother slipped and fell, sustaining soft tissue injuries to her head, neck, and back, and a broken right ankle. Since her fall, Mother has been unemployed due to her continuing medical difficulties. Mother received periodic payments through Workmen’s Compensation, which were later commuted to a lump sum payment of $25,000, all of which has been exhausted. Mother receives Social Security disability benefits in the amount of $362 per month, and Supplemental Security Income benefits in the amount of $76.40 per month, for a total monthly income of $438.40. Mother’s monthly expenses are $940. Although Mother presently has medical insurance for her continuing medical difficulties, she has unpaid medical expenses in excess of $10,000, which neither Workmen’s Compensation nor any other insurance covered.

Son is an officer, shareholder, and manager in the family-owned furniture manufacturing business. Son, who has no dependents, has a net monthly income of $2,327 per month. Son’s reported net monthly expenses are $2,583 per month, an amount in excess of his income.

In September 1989, Mother filed a Complaint for Support, pursuant to 62 P.S. § 1973, against Son. Son filed Preliminary Objections in the nature of a demurrer challenging the statutory basis of the support request and alleging that Mother lacked standing to bring the support action. The trial court denied Son’s Preliminary Objections and ordered that a hearing be scheduled before a Master. The Master conducted hearings on April 3, April 25, and May 30, 1990. On June 26, 1990, the Master filed a proposed order directing Son to financially assist Mother by paying $125 per month to her medical care providers for past medical care expenses. Son filed exceptions to the Master’s proposed order, and Mother filed cross-exceptions which she later withdrew. The parties requested that the trial court delay its decision on the exceptions to permit the negotiation of a settlement. The parties were unsuccessful in their attempt to negotiate a settlement, and after a significant lapse of time, Mother asked the trial court to enter its decision on the exceptions. On June 18, 1993, the trial court issued an order denying Son’s exceptions and affirmed the Master’s proposed order. Son appeals.

Preliminarily, we note that Son has failed to provide a separate Statement of the Questions Involved as required by Pa.R.A.P, Rules 2111 and 2116. However, Son raises two issues in the Argument section of his brief which suggest that these are the specific issues we are asked to review: (1) is a child required to pay support for his/her parent, and (2) if yes, is Mother indigent within the meaning of 62 P.S. § 1973. Since Son’s failure to comply with our Rules of Appellate Procedure does not impede our ability to review the issues, we will address the merits of this appeal.

Our standard of review in support matters is well settled; “absent an abuse of discretion, we will not disturb on appeal a properly entered support order.” Depp v. Holland, 431 Pa.Super. 209, 211, 636 A.2d 204, 205 (1994); see also Commonwealth ex reí. Pnce v. Campbell, 180 Pa.Super. 518, 520, 119 A.2d 816, 817 (1956). In the present case, the trial court ordered Son to make payments of $125 per month to Mother’s medical care providers for her past medical care expenses. This support order was issued pursuant to 62 P.S. § 1973(a), which provides, in pertinent part:

§ 1973. Relatives liable for the support of indigent person; procedure to enforce support
(a) The husband, wife, child, ... father and mother of every indigent person, whether a public charge or not, shall, if of sufficient financial ability, care for and maintain, or financially assist, such indigent person at such rate as the court of the county, where such indigent person resides shall order or direct____

Thus, this support statute expressly grants the trial court the authority to order the child of an indigent person to care for, maintain or financially assist the indigent person provided the child is financially able to do so. The duty of parental support is created by statute, for “[a]t common-law, an adult child has no duty or obligation to contribute to the support of his parents.” Albert Einstein Medical Center v. Forman, 212 Pa.Super. 450, 454, 243 A.2d 181, 183 (1968).

In the present case, Son claims that 62 P.S. § 1973, insofar as it identifies relatives liable for support of an indigent person, was repealed by 62 P.S. § 432.6. We disagree. Section 432.6 relates to support from legally responsible relatives against whom the Commonwealth may file suit for non-support of an applicant for public assistance, and it repealed Section 1973 only to the extent that it is inconsistent therewith. See Verna, 288 Pa.Super. at 516, 432 A.2d at 633. Section 432.6 limits legally responsible relatives to “spouses and the parent for an unemancipated minor child.” 62 P.S. § 432.6(d). Section 1973 identifies persons who are liable for the support of an indigent person, i.e., husband, wife, child, mother and father, without regard to whether the indigent person receives public assistance. In Verna, swpra, we stated that Sections 432.6 and 1973 do not necessarily relate to the same persons or class of persons, and that “the two provisions are best understood independently, with ‘legally responsible relatives’ being those against whom the Commonwealth can take action on behalf of an ‘assistance’ applicant.” Verna, supra, at 517, 432 A.2d at 633. We find no inconsistencies between the two sections. Consequently, the trial court properly determined that the identification of the class of persons who are liable for the support of an indigent person, as set forth in Section 1973(a), is legally viable.

Son also argues that in finding a duty of parental support, the trial court inappropriately relied on Verna, a case involving the claim of support of an adult child for continued support from her father. Again, we disagree. The trial court found the duty of parental support in Section 1973(a), and it cited Verna to support its determination that section 432.6 had not repealed Section 1973, on the issue of relatives liable for the support of an indigent person. Opinion and Order, dated June 18, 1993, at 1 n. 1. Thus, Son’s claim that the trial court improperly relied on Verna to find a duty of parental support lacks merit.

Son’s final argument is that even if the trial court found that a child owes a duty of parental support, Son owed no duty to Mother because Mother was not indigent, as required by the statute. Section 1973 does not provide a definition of indigent. Son suggests that we should borrow the definition of indigent from the public assistance guidelines. We cannot agree that the public assistance guidelines are an appropriate measure of indigency within the meaning of Section 1973, because support for an indigent person may be ordered “whether [the indigent person is] a public charge or not____” 62 P.S. § 1973(a). Therefore, we reject Son’s suggestion that we use the public assistance guidelines to define indigent.

Rather, in determining whether a person is indigent within the meaning of Section 1973, when her reasonable living expenses exceed her Social Security benefits, her sole source of income, we find it more appropriate to apply the common law definition of indigent:

This [C]ourt has stated ... that though “indigent” is not defined in The Support Law [62 P.S. § 1971 et seq.], the Act indicates that the indigent person need not be helpless and in extreme want, so completely destitute of property, as to require assistance from the public. Indigent persons are those who do not have sufficient means to pay for their own care and maintenance. “Indigent” includes, but is not limited to, those who are completely destitute and helpless. It also encompasses those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support.

Verna, 288 Pa.Super. at 518, 432 A.2d at 633 (citations omitted).

When we apply the above-stated definition of indigent to the facts of this case, we are constrained to conclude that Mother is indigent. Our determination of Mother’s indigency rests upon the inadequacy of her Social Security benefits to meet her reasonable care and maintenance, as well as her past medical expenses, which are in excess of $10,000. Mother’s monthly income is $438.40, and her monthly expenses are $940. The trial court determined that Mother’s expenses were reasonable, and we observe nothing in the record to indicate otherwise. The trial court adopted the Master’s conclusion that Son has the ability to financially assist Mother. We agree with this determination. In view of the disparity between Mother’s income and expenses, as well as her' continuing medical difficulties, and in view of Son’s sufficient financial ability to assist her, we find no abuse of discretion in the trial court issuing an order directing Son to pay $125 per month to Mother’s medical care providers for her past medical care expenses.

Accordingly, we affirm the parental support order.

Order affirmed.


text:
    641 A.2d 600
    Irene M. GREEN and Martin Green, Appellants, v. Richard L. DOLSKY, M.D. and Collagen Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1994.
    Filed May 10, 1994.

      Lindley M. Cowperthwait, Jr., Norristown, for appellants.
    Reeder R. Fox, Philadelphia, for Collagen.
    Before CIRILLO, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

In this case of first impression, we are asked to determine whether the Medical Device Amendments of 1976 (MDA), 21 U.S.C. §§ 360c et seq., 360k, to the Federal Food, Drug, and Cosmetic Act of 1938 (FDCA), 21 U.S.C. §§ 513 et seq., 521(a), preempt state tort law claims involving Class III medical devices. Irene M. Green and Martin Green, her husband, appeal from the grant of summary judgment by the Court of Common Pleas of Montgomery County, in favor of Richard L. Dolsky, M.D., and Collagen Corporation (Collagen). Because we find no error of law in the trial court’s grant of summary judgment on the basis of federal preemption, we affirm.

Irene Green developed an auto-immune disease after being treated with Zyderm Collagen Implant (Zyderm). Zyderm, which is manufactured by Collagen, is administered by subcutaneous injections to improve soft tissue deficiencies, and it is regulated under the MDA. The Federal Food and Drug Administration (FDA) has classified Zyderm as a Class III medical device that must be approved by the FDA prior to marketing. In July 1981, the FDA issued an order granting Collagen permission to market Zyderm. In 1992, the FDA reaffirmed that order.

Green filed suit against Collagen upon the theories of negligence, strict liability, breach of warranty, and fraud in obtaining FDA approval to market Zyderm. Green also sought punitive damages from Collagen. In addition, Green sued Dr. Dolsky upon the theories of negligence, failure to warn and failure to obtain informed consent. Green’s husband joined the action seeking damages from both Collagen and Dr. Dolsky for loss of consortium.

Collagen filed a motion for summary judgment on the basis that the MDA expressly preempt all of the Greens’ state tort law claims. Following oral arguments, the trial court granted Collagen’s motion for summary judgment. The Greens now appeal.

The sole issue on appeal is whether the trial court erred in granting summary judgment in favor of Collagen on the basis that the MDA preempted the Greens’ state tort law claims.

We review a trial court’s grant of summary judgment under the following standard:

Summary judgment shall be entered:

... 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). “The record must be viewed in the light most favorable to the. nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, [135], 589 A.2d 205, 206 (1991). Summary judgment may be entered only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989).

Hayward v. Medical Center, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). See also Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 320, 634 A.2d 622, 625 (1993). A trial court’s grant of summary judgment will only be reversed for an error of law or a clear abuse of discretion. Myszkowski, at 320, 634 A.2d at 625.

Preliminarily, we note that neither our supreme court, nor this Court, nor the Third Circuit Court of Appeals, has addressed the issue of federal preemption of state tort law claims involving Class III medical devices which have received pre-market approval by the FDA. Recently, however, the United States District Court for the Eastern District of Pennsylvania addressed this issue, and held that the MDA wholly preempt a plaintiff’s state tort law claims in cases involving Class III medical devices which have received pre-market approval. Michael v. Shiley, Inc., et al, No. 93-1729, 1994 WL 59349 (E.D.Pa. February 25, 1994). “While decisions of the lower federal courts have a persuasive authority, they are not binding on Pennsylvania courts even where they concern federal questions.” Commonwealth v. Giffin, 407 Pa.Super. 15, 26, 595 A.2d 101, 107 (1991), citing Hangelias v. Dawson, 158 Pa.Super. 370, 374, 45 A.2d 392, 394 (1946). However, because we find the reasoning of the district court in Michael to be persuasive, we find no error of law in the trial court’s grant of summary judgment on the basis of federal preemption.

Under the supremacy clause of the United States Constitution, federal law is “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. As a result, all conflicts between federal and state laws must be resolved in favor of federal law. Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir.1992). In determining whether a conflict between state and federal law exists, a court looks to congressional intent. FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990), appeal after remand, 932 F.2d 959 (1991).

Generally, preemption may be express or implied, and it is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. 498 U.S. at 56-57, 111 S.Ct. at 407, 112 L.Ed.2d at 363. “Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.” Cipollone v. Liggett Group, Inc., — U.S. -, -, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407, 423 (1992) (holding that the Federal Cigarette Labeling and Advertising Act of 1965 and its amendment preempted some but not all of a lung cancer victim’s state law tort claims). When Congress is silent on the matter, state law will be preempted by federal law “when (a) compliance with both state and federal law is impossible or, (b) when state law stands as an impediment to a federal purpose.” Hunsaker v. Surgidev Corp., 818 F.Supp. 744, 747 (M.D.Pa.1992).

Pursuant to the MDA, the FDA classifies all medical devices into one of three categories. 21 U.S.C. § 360c. Class I devices, such as tongue depressors, present little or no threat to public health and are thus subject to only general controls on manufacturing. 21 U.S.C. § 360c(a)(1)(A); see also Stamps v. Collagen Corp., 984 F.2d 1416, 1418 (5th Cir.1993), cert. denied, — U.S. ——, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993). Class II devices, such as tampons and oxygen masks used in anesthesiology, pose more of a threat to public health and thus, are subject to more stringent controls. 21 U.S.C. § 360c(a)(1)(B); Stamps, 984 F.2d at 1418. Finally, Class III devices, such as Zyderm, are subject to the most extensive controls “to provide reasonable assurance of ... safety and effectiveness.” 21 U.S.C. § 360c(a)(1)(C); Stamps, 984 F.2d at 1419. Class III devices must obtain pre-market approval from the FDA because they “present a potential unreasonable risk of illness or injury.” 21 U.S.C. § 360c(a)(l)(C)(ii)(II).

Section 360e of the MDA sets forth the procedures for premarket approval, and provides, in pertinent part:

§ 360e. Premarket approval
(a) General requirement
A class III device—
(1) which is subject to a regulation promulgated under subsection (b) of this section; or
(2) which is a class III device ... is required to have ... an approval under this section of an application for premarket approval.
sji # # }*< ‡
(c) Application for premarket approval
(1) Any person may file with the Secretary an application for premarket approval for a class III device. Such an application for a device shall contain—
(A) full reports of all information, published or known to or which should reasonably be known to the applicant, concerning investigations which have been made to show whether or not such device is safe and effective;
(B) a full statement of the components, ingredients, and properties and of the principle or principles of operation, of such device;
(C) a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device;
(D) an identifying reference to any performance standard under section 360d of this title which would be applicable to any aspect of such device if it were a class II device, and either adequate information to show that such aspect of such device fully meets such performance standard or adequate information to justify any deviation from such standard;
(E) such samples of such device and of components thereof as the Secretary may reasonably require, except that where the submission of such samples is impracticable or unduly burdensome, the requirement of this subparagraph may be met by the submission of complete information concerning the location of one or more such devices readily available for examination and testing;
(F) specimens of the labeling proposed to be used for such device; and
(G) such other information relevant to the subject matter of the application as the Secretary, with the concurrence of the appropriate panel under section 360c of this title, may require.

21 U.S.C. § 360e(c)(1)(A)-(G).

Thus, the extensive pre-market approval process requires a manufacturer to submit a detailed application to the FDA, including information pertaining to product specifications, intended use, manufacturing methods, and proposed labeling. An appointed panel of experts conducts a comprehensive review of the application and prepares a report and recommendation. 21 U.S.C. § 360e(c)(2). Within six months of receipt of the application, the FDA must either approve the device for sale, or reject it for additional information or testing. 21 U.S.C. § 360e(d). The MDA also impose extensive post-approval regulations to keep the FDA apprised of any new information or safety findings relating to Class III devices. 21 U.S.C. § 360e(e) and § 360i(a). The FDA may withdraw approval of the product permanently, or suspend its approval temporarily if it determines that the device has become unsafe or its labeling inadequate. 21 U.S.C. § 360e(e).

In enacting the MDA, Congress was not only interested in protecting the individual user, but it was also interested in encouraging research and development and allowing new and improved medical devices to be marketed without delay. King v. Collagen Corp., 983 F.2d 1130, 1138 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993). In the MDA, Congress included an express preemption provision, 21 U.S.C. § 360k, which provides in pertinent part:

§ 360k. State and local requirements respecting devices
(a) General rule
Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

21 U.S.C. § 360k(a).

FDA regulations instruct us that a state requirement within the meaning of section 360k(a) may arise from any requirement established by a state including statutes, regulations, court decisions or ordinances. 21 C.F.R. § 808.1(b). State requirements which, in effect, establish new substantive requirements for a medical device in a regulated area, such as labeling, are preempted. 21 C.F.R. § 808.1(d)(6)(ii). Since Congress has provided an express preemption provision in the MDA, we must determine whether the Greens’ state law tort claims fall within the scope of that provision by imposing requirements in addition to or different from those mandated by the FDA.

As previously stated, we find the reasoning of the United States District Court for the Eastern District of Pennsylvania in Michael v. Shiley, No. 93-1729, 1994 WL 59349 (E.D.Pa. February 25, 1994), to be persuasive. In deciding Michael, the district court found convincing the well-reasoned analyses of the United States Court of Appeals for the First and Fifth Circuits, in King v. Collagen Corp., supra, and Stamps v. Collagen Corp., supra, respectively. These Courts of Appeal addressed the issue of whether section 360k of the MDA preempts state tort law claims involving Class III medical devices and both courts answered in the affirmative.

In Michael, the plaintiff, Nina Michael, underwent surgery to remove a Bjork-Shiley heart valve prosthesis that had been implanted ten years earlier. Although the prosthesis was functioning properly at the time of explantation, Michael claimed that the removal was necessary because of fear for her safety after hearing reports of incidents of alleged failure or malfunction of Shiley heart valves. Michael sued Shiley, Inc., Hospital Products Group, Inc., and Pfizer, Inc., in the Philadelphia Court of Common Pleas alleging negligence, intentional infliction of emotional distress, strict products liability, breach of express warranty, breach of implied warranty of merchantability, breach of warranty of fitness for a particular purpose, fraud, respondeat superior liability, alter ego liability, and civil conspiracy. Pursuant to 28 U.S.C. § 1446, on the basis of diversity of citizenship, the defendants removed the action to the local federal district court.

The defendants filed a motion for summary judgment on all of the above claims. In addition, on the basis of federal preemption pursuant to § 360k(a) of the MDA, the defendants filed a motion for partial summary judgment on Michael’s claims of negligence, intentional infliction of emotional distress, strict products liability, breach of implied warranty of merchantability, and fraud. Guided by the analysis in King, supra, and Stamps, supra, the district court held that the MDA wholly preempt Michael’s alleged state law tort claims involving a Class III medical device. Michael, supra, slip op. at 36. See also Hunsaker v. Surgidev, supra, 818 F.Supp. at 744 (a plaintiff’s Pennsylvania tort claims involving intraocular lenses were preempted by the FDCA, the MDA, and the investigational device exemption from the safety and effectiveness requirements of the FDCA and the MDA, 21 C.F.R. §§ 813.1 and 813.5).

In King v. Collagen Corp., supra, the plaintiff, Jane King, contracted an auto-immune disease after receiving a test dose of Zyderm. King filed suit against Collagen, the manufacturer, alleging strict liability, breach of warranty of merchantability, negligence, failure to warn, product misbranding/mislabeling, fraudulent misrepresentation, and fraud in obtaining FDA approval. Collagen filed a motion for summary judgment on the basis that the MDA preempted King’s claims. The United States District Court for the District of Massachusetts' agreed and granted summary judgment.

The First Circuit Court of Appeals affirmed after finding that (1) the extensive pre-market approval process and the similarly extensive post-approval regulations were indications that the FDA had established specific “requirements” within the meaning of § 360k of the MDA and 21 C.F.R. § 808.1(d) of the FDA’s regulations, and (2) King’s state law tort claims would impose additional or different requirements than those mandated by the FDA, in contravention of § 360k. King, 983 F.2d at 1131-32. The court distinguished its result from that reached in Cipollone v. Liggett Group, Inc., supra, on the basis that the MDA imposed considerably more extensive regulation on Class III medical devices than the statute requiring cigarette manufacturers to include a brief health warning in their advertisements. King, 983 F.2d at 1135.

In Stamps v. Collagen Corp., supra, the Fifth Circuit Court of Appeals reached the same result as the First Circuit Court of Appeals in King. Jennifer Stamps alleged that she contracted an auto-immune disease after being injected with Zyderm and Zyplast. Stamps, 984 F.2d at 1419. Stamps filed suit in a Texas state court against the manufacturer, Collagen, alleging defective design, inadequate warnings and negligent failure to warn. Id. at 1418. Collagen removed the action to the local federal district court and filed a motion for summary judgment, which the district court granted on the basis that federal law preempted all of Stamps’ state law claims. Id. Guided by the express language of § 360k(a), the Fifth Circuit Court of Appeals determined that Stamps’ claims were preempted by federal law because first, the state tort law claims would constitute requirements in addition to or different from the MDA, and, second, these requirements would relate to either the safety or effectiveness of Zyderm and Zyplast. Id. at 1422. “State tort causes of action — to the extent they relate to safety, effectiveness, or other MDA requirements — constitute requirements ‘different from, or in addition to’ the Class III process; they are, therefore, preempted.” Id. at 1424 (footnote omitted).

In the present case, the Greens claim that the district court erred in granting summary judgment on the basis that the MDA preempted their state tort law claims. Here, we are constrained to agree with the rationale in Michael, King, and Stamps, and we conclude that a finding in favor of the Greens on any of their alleged state tort law claims would impose additional or different requirements on Collagen, whose product, Zyderm, has already received FDA approval. Such requirements are in conflict with the MDA and thus, the Greens’ state law claims are therefore preempted.

In spite of the clear force of preemption in this case, the Greens raise six disparate arguments seeking to overcome federal preemption. We find none of the six arguments persuasive. First, the Greens claim that in the absence of specific MDA/FDA regulations or requirements applicable to Zyderm as a particular device, there is no preemption of state tort law claims. In support of this claim, the Greens cite to 43 Fed.Reg. 18,662 (May 2, 1978). Appellants’ Brief at 8. In their brief, the Greens quote a portion of that regulation as follows: “[t]hus from a plain reading of [sjection [360k] of the Act, it is clear that the scope of preemption is limited to instances where there are specific FDA requirements applicable to a particular device or class of devices.... ” Id. (emphasis added). In this case, the FDA has classified Zyderm as a Class III medical device, which is subject to extensive regulation. Thus, the Greens’ claim that there are no specific MDA/FDA regulations pertaining to Zyderm is without merit.

The Greens also maintain that a 1984 FDA advisory opinion letter construing the preemption provision supports their position and should be determinative. An “agency’s interpretation of its own statute is controlling so long as [it is] not contrary to Congress’ intent.” King, 988 F.2d at 1134, citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). One purpose of the preemption provision is to encourage manufacturers to engage in research and development of new and improved medical devices and to permit these devices to be marketed with little delay. Id. at 1138. Because of the potential chilling effect the FDA advisory opinion letter may have on future research and development, in contravention to Congress’ intent, we view the FDA opinion letter as merely advisory and not dispositive.

The Greens also assert that in the absence of divergent state tort law requirements, there is no preemption of state law claims. The court in Stamps addressed this issue and rejected the conclusion that the absence of a direct conflict between state and federal regulations compels a finding of no preemption. Stamps, 984 F.2d at 1424. The court found support for this result in Morales v. Trans World Airlines, — U.S. -, -, 112 S.Ct. 2031, 2038,119 L.Ed.2d 157,169 (1992), which rejected the contention that express preemption is inappropriate where state and federal law is consistent. Id. The Morales Court reasoned that such a strained reading of the preemptive provision would create an irrational loophole, and “there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute.” Id. We read Stamps and Morales as rejecting the proposition that the absence of divergent state law compels a finding of no preemption.

Next, the Greens allege that their state tort law claims are exempt from preemption by express provisions of the MDA. The MDA have an express preemption provision for Pennsylvania which relates to hearing aids; nowhere in that provision are state tort law claims relating to Zyderm even mentioned. 21 C.F.R. § 808.88. State tort law claims involving FDA approved medical devices which are not expressly exempt from preemption are preempted if they impose additional or different requirements.

The Greens also contend that their mislabeling, misbranding and adulterated product claims involve alleged violations of the MDA and are not preempted by the MDA. These claims relate directly to the labeling and packaging of Zyderm, which is regulated by the FDA. See 21 U.S.C. § 360e(c)(1)(F); King, 983 F.2d at 1136. Because a finding against Collagen would require Collagen to make changes in its FDA approved packaging, we conclude that these claims are preempted.

Finally, the Greens argue that because of the reasoning underlying the result in Cipollone v. Liggett Group, Inc., supra, their claims for fraud, misrepresentation and breach of warranty are not preempted. For the following reasons, we disagree:

[T]he warnings at issue in Cipollone were different than those here. In Cipollone, the statute required cigarette manufacturers to include a brief health warning in their advertisements; this warning did not affect cigarette advertisements in any other way. The manufacturers were free to make any claims they wished, including express warranties. Here, however, the MDA has imposed much more extensive regulation upon class III device manufacturers. The FDA retains rigid control over the entirety of the labeling and packaging of class III products, largely displacing the ability of manufacturers to make additional claims. This high level of control contrasts with the low level of control in Cipollone, and ensures that manufacturers will not be held liable for packaging and labeling imposed by the FDA.

King, 983 F.2d at 1135. Based on the foregoing, we conclude that the MDA preempt the Greens’ claims for fraud, misrepresentation and breach of warranty.

Viewing all of the evidence in the light most favorable to the Greens, we are unable to conclude that the trial court committed any error of law in granting summary judgment in favor of Collagen on the basis of federal preemption. Accordingly, we affirm the order entered on September 3, 1993.

Order affirmed.


author: ROWLEY, President Judge:

text:
    641 A.2d 607
    Frank J. PARANO, Appellant, v. James F. O’CONNOR, 21st Century Health Corporation-USA, Inc. A/K/A 21 USA and/or 21 PA, Daryl Nerl and the Pottsville Republican.
    Superior Court of Pennsylvania.
    Argued Dee. 8, 1993.
    Filed May 11, 1994.

      Peter G. Loftus, Scranton, for appellant.
    David L. Zicherman, Philadelphia, for appellees.
    Before ROWLEY, President Judge, and WIEAND and BROSKY, JJ.
   ROWLEY, President Judge:

Frank J. Parano, plaintiff in the trial court, appeals from the order sustaining preliminary objections, in the nature of a demurrer, filed by the defendants in the trial court. On appeal, Parano challenges the trial court’s dismissal of all four counts in his complaint, and argues that the trial court erred in not allowing him to amend his pleadings. Upon review, we affirm.

This action arose after statements regarding appellant, Frank Parano, were allegedly made by James F. O’Connor (“O’Connor”), a vice president of 21st Century Health Corporation-USA, Inc. (“21 USA”), and published in the Pottsville Republican in an August 21, 1991 news article written by Daryl Nerl. The offending statements pertained to the conduct of appellant, in his capacity as the administrator of Coledale State General Hospital, toward 21 USA which was attempting to acquire the hospital. The article quoted O’Con-nor as stating:

i) “It was made pretty clear right from the beginning that [appellant] was going to be less than helpful in anything [21-USA] put together.”
ii) Appellant “would not return 21-USA’s telephone calls and was uncooperative in providing information the firm needed to formulate a proposal.”
iii) “We were very disappointed that [appellant] took an adversarial role with us.”

Appellant also complains of statements later made by O’Con-nor at a December 9, 1991 meeting, to wit: “[Appellant] chose to be our adversary, chose not to share information with us.”

On July 13, 1992, appellant filed a complaint against the above-named defendants/appellees, asserting claims of defamation, invasion of privacy (false light), intentional infliction of emotional distress, and interference with contractual relations. As stated above, this appeal is from the dismissal of these claims against each of the appellees.

On review, we must determine whether the complaint’s factual allegations, if proven, would be sufficient to entitle appellant to relief. Gordon v. Lancaster Osteopathic Hospital Assoc., 340 Pa.Super. 253, 260, 489 A.2d 1364, 1368 (1985). In making this determination, we accept as true all well-pleaded facts and the reasonable inferences to be drawn therefrom. Id. We have considered each of the four dismissed claims, and affirm because it is clear that the law does not permit appellant’s recovery. Id.

First, with respect to the defamation claim, appellant was required to plead, and to ultimately prove, the defamatory character of the statements made. 42 Pa.C.S.A. § 8343(a)(1); Thomas Merton Center v. Rockwell Int’l Corp., 497 Pa. 460, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). A communication is defamatory if it tends to deter third persons from associating with the subject of the communication or to harm his reputation by lowering him in the estimation of the community. Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 591, 581 A.2d 619, 621 (1990), appeal denied, 527 Pa. 648, 593 A.2d 421 (1991). Only after the trial court has determined as a matter of law that the communication is capable of a defamatory meaning does the jury consider the defamatory nature of the communication. Id.

The trial court determined, and we agree, that the statements made and published about appellant were not capable of a defamatory meaning, in part because they were “far less offensive than other characterizations that Courts in Pennsylvania ... have found to be non-defamatory.” Opinion of Trial Court at 4 (citing case examples where individuals were referred to as “racist” and “anti-semitic”). The court also correctly reasoned that the statements might have been annoying or embarrassing to appellant, but that “[p]ersonal annoyance and embarrassment ... are not the sorts of injury that will support a defamation claim.” Id. at 3.

The court also dismissed the defamation claim on the ground that the statements allegedly made by O’Connor were expressions of his opinion, which are not actionable unless they imply undisclosed, false and defamatory facts. Id. at 5 (citing Mathias v. Carpenter, 402 Pa.Super. 358, 362-63, 587 A.2d 1, 3 (1991), appeal denied, 529 Pa. 650, 602 A.2d 860 (1992)). O’Connor allegedly commented that appellant was adversarial, less than helpful, and uncooperative. These statements only revealed O’Connor’s subjective interpretation, or opinion, of appellant’s response to 21 USA’s efforts to purchase Coledale Hospital. In addition, the facts upon which O’Connor based his opinion, i.e., that appellant would not return phone calls and would not provide information necessary to facilitate the purchase, were disclosed; therefore, the opinion did not imply undisclosed false facts. Because we agree that the statements were not defamatory and were only an expression of opinion, appellant’s defamation claim was properly dismissed.

Second, to state a cause of action for invasion of privacy (false light), i) the publicity must place another “before the public in a false light” which would be “highly offensive to a reasonable person,” and ii) the one who gave publicity to the matter must have “had knowledge of or acted in reckless disregard as to ... the false light in which the other would be placed.” Neish, 398 Pa.Super. at 598, 581 A.2d at 624. The trial court concluded, in part, that the publicity in this case would not be highly offensive to a reasonable person. See Restatement of Torts 2d, Invasion of Privacy § 652E, comm, b (publicity must be highly objectionable, unreasonable, and a major misrepresentation). We agree that referring to a person as “adversarial,” “uncooperative,” and “less than helpful,” cannot be considered “highly offensive.”

With respect to 21-USA’s attempted acquisition of the state hospital — an acquisition which concerned the public’s interest, the parties should have expected that through their dealings with one another, each would form an opinion of the other’s behavior and that these opinions might be disclosed to the public. Neither party can be held liable for forming and expressing these opinions, unless the alleged behavior upon which the opinion was based did not actually occur, or the opinion was far out of proportion with the facts. Cf. Curran v. Children’s Service Center, 396 Pa.Super. 29, 578 A.2d 8 (1990), appeal denied, 526 Pa. 648, 585 A.2d 468 (1990) (publicity not highly offensive when employee’s performance is examined and evaluated by supervisor, which is to be expected). Considering that the trial court correctly classified appellant as a public figure with respect to his administration of the hospital, appellant was precluded from complaining that his activities as an administrator had been scrutinized and evaluated. See Neish, 398 Pa.Super. 588, 598, 581 A.2d 619, 624-25 (public figure relinquished insulation from scrutiny of his public affairs). Therefore, appellant’s claim that the publicity placed him in a false light was properly dismissed.

Third, with respect to the claim for interference with contractual relations, appellant did not plead, as required, an existing or prospective contract with which appellees interfered. Appellant alleged the following in his complaint:

30. The Defendants ... caused the false accusations and allegations to be circulated in the community and to be transmitted to potential employers.
31. The Defendants acted intentionally to harm any potential contractual relationships that the Plaintiff may have had with future employers----
32. The conduct of the Defendants ... was such that they knew or should have known that they would prevent the Plaintiff from finding alternate employment within the area____

Complaint at 7-8. An existing contract is not at issue, nor is the speculation of potential employment enough to satisfy the requirement for a prospective contract. As the trial court notes, the averments must be sufficient to allege a “reasonable likelihood or probability that an anticipated business arrangement would have been consummated.” Cloverleaf Develop. v. Horizon Financial, 347 Pa.Super. 75, 82, 500 A.2d 163, 167 (1985). Therefore, the claim of intentional interference with contractual relations was properly dismissed.

Last, the trial court dismissted appellant’s claim of intentional infliction of emotional distress based on its accurate determination that “[t]he publication of an article describing a public official’s conduct as ‘less than helpful,’ ‘uncooperative,’ and ‘adversarial’ does not rise to the requisite level of outrageous conduct” essential for an actionable claim. Opinion of Trial Court at 8-9. We therefore agree that appellant has failed, as a matter of law, to state a claim for intentional infliction of emotional distress, and conclude that the claim was properly dismissed.

Appellant also argues that the trial court erred in not allowing him to amend his pleadings. It is true that a motion to amend the complaint can be made at any stage in the case. However, appellant has not suggested how he would amend his complaint in order to alleviate its deficiencies and successfully state the causes of action now dismissed. For the foregoing reasons, we affirm the order of the court.

Order affirmed. Jurisdiction relinquished.

      . The issue of whether appellant should amend his complaint was raised by appellee O’Connor and not by appellant. O'Connor included in his preliminary objections a motion for a more specific pleading on the defamation claim in the event his demurrer was overruled. The trial court overruled O’Connor’s motion for a more specific pleading as moot because his demurrer was sustained and all of the claims were dismissed.

      . Appellant does not include in his brief a statement of jurisdiction, a statement of the questions involved, and a short conclusion stating the precise relief sought, as required by Pa.R.A.P. 2111. Although the failure to comply with the requirements of the rule can result in the suppression of the brief or quashing of the appeal, we find that the noncompliance was not so egregious as to inhibit effective appellate review. We caution appellant to abide by the rule in the future, however.