author: OPINION PER CURIAM: KELLY, Judge, WIEAND, Judge, DEL SOLE, Judge, TAMILIA, Judge,

text:
    617 A.2d 1302
    John ALTIERE, Appellee v. FIBREBOARD CORPORATION, PACOR, Inc., Southern Textile Corp., J.P. Stevens Co., Eagle Picher Industries, Garlock, Inc., UNARCO Industries, Inc., Keene Corp., Owens-Illinois Glass, GAF Corp., Raybestos-Manhattan, Celotex Corp., Johns-Manville Corp. Appeal of FIBREBOARD CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 1, 1992.
    Filed Dec. 16, 1992.

      R.T. Wentley, Pittsburgh, for appellant.
    Steven J. Cooperstein, Philadelphia, for Altiere, appellee.
    Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   OPINION PER CURIAM:

John Altiere, in a “reverse bifurcated” trial, was awarded damages in the amount of three hundred fifty thousand ($350,-000) dollars for pleural thickening, pulmonary asbestosis, with consequent exertional dyspnea (shortness of breath), and the risk of future asbestos related diseases, including cancer, against various manufacturers of asbestos products. Although the claim was thereafter settled by most manufacturer defendants, Fibreboard Corporation proceeded to trial on the issue of liability. The jury thereafter found that Fibreboard and twelve (12) other non-bankrupt defendants had contributed to Altiere’s asbestos related injuries. Post-trial motions were denied, and judgment was entered in favor of Altiere and against Fibreboard in the amount of $43,265.00. Fibreboard appealed.

The Altiere case was tried jointly with a claim which had been made by Elmer Ottavio, and this Court, in the Ottavio case, has already reviewed a contention by Fibreboard as to the alleged insufficiency of the evidence to support the jury’s finding that Fibreboard’s asbestos products were a substantial factor in causing asbestos related injury to Altiere and Ottavio. This Court has also reviewed and found to be without merit claims that the trial court erred by (1) allowing the trial to be completed before a jury of less than eight (8) jurors, and (2) refusing to allow liability to be apportioned among defendant manufacturers who were in bankruptcy and did not participate in the trial.

Altiere’s claim was for a disease which was no longer asymptomatic. On the contrary, he was already experiencing pulmonary asbestosis and consequent shortness of breath. Altiere, however, was a heavy smoker. Therefore, Fibreboard defended the Altiere claim on grounds that any damages for the fear and/or risk of future cancer could be and should be apportioned between his smoking habit and his job-related exposure to asbestos. The trial court refused to permit the jury to make such an apportionment. Fibreboard argues on appeal that this was error. It contends that with respect to the fear of future cancer and the risk of future cancer, the evidence was sufficient to allow the jury to make an apportionment between appellant’s smoking of cigarettes and his exposure to asbestos.

Preliminarily, it has been suggested that our recent adoption of the separate disease rule for asbestos actions in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), has changed the basis of recovery in asbestos cases. Claims for the “risk of future cancer” or “fear of cancer” would no longer form the basis of recovery in asbestos cases where cancer was not present. It has also been suggested, on the basis of Marinari, that any discussion of apportionment is unnecessary. It may well be.

However, these suggestions do not change the past. Here, Fibreboard defended against such charges by raising an appropriate apportionment defense, just as they were entitled to do at the time of trial, in February, 1990. On appeal, Fibreboard charges that (1) the statistical evidence given by Dr. Auerbach was sufficient to warrant an apportionment instruction, and, (2) the trial court’s error in refusing such apportionment instruction could have significantly affected the size of the verdict. Fibreboard is entitled to a review of these issues on the merits notwithstanding that asbestos litigation in this Commonwealth may follow a different course now that the two disease rule in Marinari has been adopted.

We now turn to the issue raised in this appeal. Section 433A of the Restatement (Second) of Torts provides:

§ 433A. Apportionment of Harm to Causes
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.

In Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987), the Supreme Court of Pennsylvania adopted § 433A of the Restatement and held that a trial court had erred when it permitted a jury to apportion damages without evidence to establish a reasonable basis on which to make an apportionment between asbestosis and emphysema. The Martin court reasoned:

The jury, although presented with a great deal of testimony concerning appellant’s history and physical condition, was provided no guidance in determining the relative contributions of asbestos exposure and cigarette smoking to appellant’s disability. In fact, two experts testified that such a determination was not possible. A situation analagous [sic] to the instant case arose in Offensend v. Atlantic Refining Co., supra [322 Pa. 399, 185 A. 745 (1936) ]. There, a jury award of damages for aggravation of an existing tubercular condition was modified (reduced), because the expert testimony did not address the duration of the aggravation. “If the doctors were not in a position to make an estimate of the extent of the aggravation in point of time, the jury should not have been allowed to hazard a guess beyond the period shown with reasonable certainty.” Id., 322 Pa. at 404, 185 A. 745. Here, as in Offensend, the jury cannot be expected to draw conclusions which medical experts, relying on the same evidence, could not draw. The causes of disability in this case do not lend themselves to separation by lay-persons on any reasonable basis. Thus, common sense and common experience possessed by a jury do not serve as substitutes for expert guidance, and it follows that any apportionment by the jury in this case was a result of speculation and conjecture and hence, improper. “Rough approximation” is no substitute for justice.

Id. at 515 Pa. 384-385, 528 A.2d at 950 (footnotes omitted). See also: Taylor v. Celotex Corp., 393 Pa.Super. 566, 591, 574 A.2d 1084, 1097 (1990).

In the present case, when Altiere’s expert, Dr. Donald Auerbach, was asked about the increased risk of lung cancer following occupational exposure to asbestos, Dr. Auerbach responded by postulating a baseline risk in the population. Dr. Auerbach then proceeded from this hypothetical baseline to establish various multiples of this same hypothetical baseline as the risk factors, submitting that: (1) in a group of people exposed to neither cigarette smoke nor asbestos, the incidence of cancer each year would be eleven (11) persons in a population of 100,000; (2) in a group exposed to cigarette smoke and not asbestos the incidence of cancer each year would be 120 persons in a population of 100,000; (3) in a group exposed to asbestos and not cigarette smoke the incidence of cancer each year would be 55 persons in a group of 100,000; and finally, (4) in a group exposed to both asbestos and cigarette smoke, as was Altiere, the incidence of cancer each year would be 600 persons in a population of 100,000. N.T., 2/13/90 at 20-22.

We are not persuaded that this testimony sufficed to allow the jury to consider the apportionment of damages for a fear and/or likelihood of a future asbestos related cancer, since we are reluctant to conclude, without more, that this constitutes reliable statistical evidence which would support a Section 433A “apportionment of harm” charge to the jury.

Furthermore, we must observe, as did the trial court, that Fibreboard made no attempt to offer its own apportionment testimony, but instead relied upon Dr. Auerbach, the appellees’ witness to do the job for them. The trial court noted that “[s]ince Dr. Auerbach did not apportion causation” himself, his evidence was insufficient to support an apportionment charge. Trial Court Opinion, dated October 31, 1991, at 8. The jury cannot be permitted to draw conclusions which medical experts could not draw if they relied upon the same evidence.

Concluding that the present record provides no basis upon which to instruct the jury that damages could be apportioned for the fear and/or risk of cancer between Altiere’s employment-related asbestos exposure and cigarette smoking, we find the trial court to have properly refused to give the jury the apportionment instruction requested by Fibreboard. Finding no other error, the judgment must be, as it is,

Affirmed.

KELLY, J., files a concurring statement.

WIEAND, DEL SOLE and TAMILIA, JJ., file a dissenting opinions.

KELLY, Judge,

concurring:

Although I join the majority’s opinion in its entirety, I write separately to further analyze the issue of whether it is possible to apportion the harm arising from the combined effect of asbestos exposure and cigarette smoking.

After reviewing the relevant medical literature, I believe that the medical community is unable to provide a reasonable basis upon which a jury can determine how to apportion damages when a plaintiff has been exposed to both asbestos and cigarette smoke. My review of this literature reveals that the medical community agrees that the impact of both carcinogens on the human body is synergistic. Philip J. Landrigan, The Recognition and Control of Occupational Disease, 266 JAMA 676-80 (1991); A Physician’s Guide to Asbestos-Related Diseases, 252 JAMA 2593-97 (1984) [hereinafter Physician’s Guide ]; Arnold E. Reif, Synergism in Carcinogenesis, 73 J. Nat’l Cancer Inst. 25-39 (1984) [hereinafter Synergism ]. That is, the risk of harm from exposure to both carcinogens is greater than the sum of the risk from exposure to the individual carcinogens. Synergism. What is unclear from the literature is how this synergism occurs. See J. Hobson, Direct Enhancement by Cigarette Smoke of Asbestos Fiber Pen etration and Asbestos-Induced Epithelial Proliferation in Rat Tracheal Explants, 80 J.Nat’l Cancer Inst. 518-21 (1988) (cigarette smoke increases asbestos fiber penetration which in turn appears to enhance the penetration and retention of carcinogens in the covering of the trachea); Physician’s Guide (a carcinogen in its own right, asbestos appears to act as a cocarcinogen with cigarette smoke in the genesis of lung cancer). Thus, I believe that it is not yet possible to apportion damages in cases where there is a synergistic relationship between carcinogens.

Although this is the first time that this Court has been asked to determine whether the statistical evidence set forth in Part IV to the majority’s opinion, provides a reasonable basis to apportion harm between a plaintiffs cigarette smoking and his exposure to asbestos, the United States Court of Appeals for the Third Circuit recently addressed this same issue in Borman v. Raymark Industries, Inc., 960 F.2d 327 (3rd Cir.1992). In Borman, the Court of Appeals was asked to determine whether, under Pennsylvania law, the evidence was sufficient to require the trial court to charge the jury on apportionment of damages between asbestos exposure and tobacco consumption.

There, the plaintiffs expert testified that asbestos was a substantial contributing factors to both Mr. Borman’s asbestosis and lung cancer. Id. at 330. Plaintiffs expert also testified that Mr. Borman’s cigarette smoking was a substantial contributing factor to the development of his lung cancer. Id. In addition, the plaintiffs expert provided statistical data comparable to that provided here by Dr. Auerbach. Id. However, the expert was unable to assign a percentage of contribution to each cause. Id.

Despite the expert’s inability to determine what percentage of the plaintiffs injury was due to asbestos and what percentage was due to cigarette smoking, the defendant argued that the evidence presented at trial, in particular the statistical evidence, provided a reasonable basis for apportioning damages. The court of appeals found that under Pennsylvania law, such evidence does not provide a reasonable basis for apportionment because such “evidence speaks to the likelihood that either cigarette smoking, asbestos exposure or both will cause cancer, rather than to the apportionment of damages between two causes.” Borman, supra at 335. This, I believe, is the proper interpretation of the aforementioned statistical data.

WIEAND, Judge,

dissenting:

I respectfully dissent. John Altiere, the plaintiff, did not have cancer and did not claim damages for cancer. His claim, rather, was for the risk or fear of getting cancer in the future because of prior exposure to asbestos. His own medical expert, Dr. Donald Auerbach, testified to the statistical risk of cancer among persons who indulged in smoking and/or were exposed to asbestos dust. He said that: (1) in a group of people exposed to neither cigarette smoke nor asbestos, the incidence of cancer each year would be eleven (11) persons in a population of 100,000; (2) in a group exposed to cigarette smoke and not asbestos, the incidence of cancer each year would be 120 persons in a population of 100,000; (3) in a group exposed to asbestos and not cigarette smoke, the incidence of cancer each year would be 55 persons in a group of 100,000; and (4) in a group exposed to both asbestos and cigarette smoke, as was Altiere, the incidence of cancer each year was 600 persons in a population of 100,000. This evidence, in my judgment, was relevant to assist a jury in evaluating Altiere’s claim for the risk of future cancer because of his prior exposure to asbestos. Not only was it relevant but, in my judgment, the evidence was sufficient to permit a jury to apportion damages for the “risk” of possible, future cancer between smoking and exposure to asbestos. To hold, in the face of such evidence, that either exposure to asbestos or cigarette smoking, without apportionment, was wholly responsible for Altiere’s risk of future cancer flies in the teeth of both medical science and public knowledge.

Section 433A of the Restatement (Second) of Torts provides as follows:

§ 433A. Apportionment of Harm to Causes

(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.

In Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987), the Supreme Court of Pennsylvania adopted § 433A of the Restatement and held that a trial court had erred when it permitted a jury to apportion damages without evidence to establish a reasonable basis on which to make an apportionment between asbestosis and emphysema. The Martin court reasoned:

The jury, although presented with a great deal of testimony concerning appellant’s history and physical condition, was provided no guidance in determining the relative contributions of asbestos exposure and cigarette smoking to appellant’s disability. In fact, two experts testified that such a determination was not possible. A situation analagous [sic] to the instant case arose in Offensend v. Atlantic Refining Co., supra [322 Pa. 399, 185 A. 745 (1936) ]. There, a jury award of damages for aggravation of an existing tubercular condition was modified (reduced), because the expert testimony did not address the duration of the aggravation. “If the doctors were not in a position to make an estimate of the extent of the aggravation in point of time, the jury should not have been allowed to hazard a guess beyond the period shown with reasonable certainty.” Id., 322 Pa. at 404, 185 A. 745. Here, as in Offensend, the jury cannot be expected to draw conclusions which medical experts, relying on the same evidence, could not draw. The causes of disability in this case do not lend themselves to separation by lay-persons on any reasonable basis. Thus, common sense and common experience possessed by a jury do not serve as substitutes for expert guidance, and it follows that any apportionment by the jury in this case was a result of speculation and conjecture and hence, improper. “Rough approximation” is no substitute for justice.

Id. at 515 Pa. 384-385, 528 A.2d at 950 (footnotes omitted). See also: Taylor v. Celotex Corp., 393 Pa.Super. 566, 591, 574 A.2d 1084, 1097 (1990).

In the instant case, however, the basis for making an apportionment between the causes for a risk of future cancer is persuasive. Altiere’s claim that he fears a future incidence of cancer is, by its very nature, speculative. No one can predict with medical certainty whether he will be afflicted by cancer in the future. The best we can do is look to the statistical evidence. If we can rely upon this evidence— without it, there is only speculation—to assess the value of Altiere’s claim that he may get cancer in the future, I am at a loss to understand why the same statistical evidence will not form a basis for apportioning responsibility for such risk between the asbestos to which Altiere has been exposed and the smoking of cigarettes in which he continues to indulge.

I would hold that it was error for the trial court in this case to refuse to allow the jury to apportion responsibility for the “risk” of future cancer between smoking and exposure to asbestos. Therefore, I dissent. I would reverse and remand for a new trial.

DEL SOLE, Judge,

dissenting:

I cannot agree with the decision of this court affirming the judgement. At the time of trial, the defendant, Fibreboard, sought a jury instruction that would have limited recovery to those diseases that had been manifested. This request was denied by the trial court and was the reason for our reversal in the consolidated companion case of Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992). Also, we previously determined in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) ... “that in an action for exposure to asbestos, a plaintiffs claim may encompass only the harm caused by the disease or diseases which have become manifest and that a later separate action may be pursued if and when a separate disease occurs”. Ottavio, supra at 296, 617 A.2d 1302.

To me, this means that claims for “risk of future cancer” and “fear of cancer” no longer form the basis of recovery in cases where cancer is not nor has not been present. By this analysis, there is no reason for a discussion and determination of the issue of apportionment. That issue is only valid if the plaintiff is entitled to recover for “fear” or “risk” of future cancer. Since the trial court charged the jury that those items could be considered in determining the plaintiffs damages, a new trial is necessary.

Contrary to the Majority’s claim of waiver, I believe that the issue of recovery for “fear” or “risk” of cancer was properly preserved by requesting the “two disease charge.” The trial court’s refusal to so charge, required the appellant to defend on the question of apportionment. However, since we have determined that the trial court erred in refusing to so charge the jury, inherent in that finding must be a consideration of what damages would be recoverable if the charge had been given. To hold otherwise would be inconsistent and contravene the purposes which are the foundations for the adoption of the “two disease” position by this court.

TAMILIA, Judge,

dissenting:

I respectfully dissent and would reverse and remand for a new trial on the basis of our recent holding in Marinari v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992).

      . See: Ottavio v. Fibreboard Corp., et al., 421 Pa.Super. 284, 617 A.2d 1296 (1992).

      . Fibreboard has not argued on appeal that it was error for the trial court to refuse to instruct the jury that Altiere had a right to bring a second action if he developed future asbestos related injury; and, therefore, that issue is not before this Court in this appeal.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    617 A.2d 1308
    Carole A. TRUNKWALTER, Appellant, v. Joseph TRUNKWALTER, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1992.
    Filed Dec. 17, 1992.
    Craig A. Smith, Newton, for appellant.
    Joseph T. Simon, Philadelphia, for appellee.

      Before CAVANAUGH, McEWEN and KELLY, JJ.
   CAVANAUGH, Judge:

Carole A. Trunkwalter appeals from an order of the Bucks County Court which terminated a support order in favor of the party’s son, Stephen, effective as of his eighteenth birthday. The basis for this termination order was “estrangement”. The parties divorced in 1985 and, thereafter, executed property settlement agreements including an agreement by Husband as follows:

“Husband agrees that should his child(ren) qualify for formal education or vocational training beyond high school, he shall pay, if financially able, the costs and expenses for his (child)ren so that they may obtain such further education or training.”

It is agreed that father is financially able to afford the cost of Stephen’s post-high school education, and the trial court found, on sufficient evidence, that Stephen has the desire and ability to pursue post-secondary education. Thus, the issue focuses on the propriety of the court’s determination that father was excused from his duty of support on the basis of son’s estrangement from his father.

We must first observe that the imposition of post-high school support obligations has now been eliminated. On November 13, 1992 our supreme court in Blue v. Blue, 616 A.2d 628 (Pa.1992) decided that there is no longer any judicially imposed requirement that a parent provide educational support for a child no longer considered a minor and who has completed high school. Thus, estrangement or not, there is no duty in a case such as presently before us to provide educational support. Crucial to the Blue decision is the supreme court’s statement that its only previous articulation on the subject (of higher educational support) was that set forth in Emrick v. Emrick, 445 Pa. 428, 284 A.2d 682 (1971). The Blue court, which did not overrule Emrick, pointed out that in that case the father’s higher education support obligation grew out of an agreement with the mother. In declining to adopt a judicially imposed legal duty to require educational support, we can only assume that the court meant to preserve the Emrick rule that an agreement to assume the duty to provide educational support is enforceable at law. This leaves us with the question of whether estrangement by the child is sufficient to set aside an agreement to provide educational support. In a similar situation, a panel of this court recently opined:

Since Father agreed, in writing, to pay Elizabeth’s college expenses, the trial court did not judicially impose an obligation on Father. Rather, the court merely enforced an obligation that Father has already assumed. The agreement specifically imposes Father’s obligation and is enforceable as written. The agreement is between Mother and Father. Elizabeth is a third-party beneficiary. As we cannot presume to know what concessions were made in the formation of the separation agreement, or what rights Mother may have relinquished in return for Father’s promise to pay college expenses, we will not look beyond the written agreement. If the parties had intended Father’s obligation to provide college support to be contingent on a continuing relationship with Elizabeth, the qualifier presumably would have been included in the agreement. Accordingly, whether Father and Elizabeth were estranged does not affect Father’s duty under the agreement with Mother.

Cook v. Covey, 415 Pa.Super. 353, 358, 609 A.2d 560, 563 (1992).

We conclude that the trial court erred when it failed to find father’s agreement to support enforceable, see Emrick and Blue, even in the face of evidence of estrangement on the part of the child, see Cook.

Termination order vacated. Remanded for further proceedings. Jurisdiction is relinquished.


author: CIRILLO, Judge: KELLY, Judge,

text:
    617 A.2d 1309
    COMMONWEALTH of Pennsylvania v. Wayne Edward SOBOLESKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Dec. 17, 1992.

      Jay Stillman, Asst. Public Defender, Williamsport, for appellant.
    Robert W. Ferrell, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before CIRILLO, KELLY and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County. We affirm.

Appellant Wayne Edward Soboleski was charged with driving while operating privilege is suspended or revoked in violation of section 1543(a) of the Motor Vehicle Code. Following a summary trial before a district justice, Soboleski was found guilty. Because Soboleski had two prior section 1543(a) violations, he was sentenced to thirty days imprisonment and a $500.00 fine pursuant to 75 Pa.C.S. § 6503.

Soboleski appealed. After a de novo trial, the Court of Common Pleas of Lycoming County issued an order finding Soboleski guilty of violating section 1543. Thereafter, Soboleski was sentenced to thirty days imprisonment and a fine of $541.50. On appeal to this court, Soboleski contends that his due process rights were violated because he was sentenced for his violation of section 1543 as a habitual offender under section 6503 without having been charged under section 6503. The argument Soboleski presents is that section 6503 is a distinct statute, a separately chargeable offense, and, as such, the Commonwealth was required to charge him with a section 6503 offense before he could be sentenced under section 6503. We disagree.

Having reviewed the relevant provisions of the Motor Vehicle Code and this court’s en banc decision in Commonwealth v. Sperry, 395 Pa.Super. 400, 577 A.2d 603 (1990), we find that section 6503 of the Motor Vehicle Code is not a separately chargeable offense. A thorough inspection of Chapter 65 of the Motor Vehicle Code, the rules of statutory construction, 1 Pa.C.S. '§§ 1901 et seq., and the relevant case law, leads us to the conclusion that section 6503 is a penalty enhancement provision for which no prior notice need be given. See Commonwealth v. Lyons, 395 Pa.Super. 184, 576 A.2d 1105 (1990) (en banc); see also Commonwealth v. Bernal, 411 Pa.Super. 44, 600 A.2d 993 (1992). We, therefore, affirm appellant Soboleski’s judgment of sentence.

Soboleski would have us reach the determination that a person charged with a violation of section 1543 (driving while license is suspended or revoked) cannot be sentenced under section 6503 (penalty enhancement provision for recidivism of certain offenses, namely section 1543) unless the Commonwealth charges under section 6503, alleging the prior section 1543 violation and conviction in the complaint. In support of his argument, Soboleski relies upon the following language in Sperry: “to sustain a charge under section 6503, it was necessary for the Commonwealth to allege in the complaint under the enhancement section, the prior violation and conviction under section 1543.” Sperry, 395 Pa.Super. at 405, 577 A.2d at 606. For the following reasons, we have determined that Soboleski’s reliance on this statement is neither persuasive nor applicable in this context.

Initially, we note that we may infer from the title of Chapter 65 of the Motor Vehicle Code, “Penalties and Disposition Fines,” that the legislature intended the chapter as a penalty provision, and not as a provision for the enumeration of additional offenses. See 1 Pa.C.S, § 1924 (“The headings prefixed to ... chapters may be used to aid in the construction thereof.”); see also Commonwealth v. Magwood, 503 Pa. 169, 469 A.2d 115 (1983). The titles and provisions of the various sections in this chapter are consistent with this construction. Section 6501 defines the term “conviction” for the purpose of determining whether the enhancement provision applies.

Especially significant, as discussed in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985) (en banc) and Commonwealth v. Bernal, 411 Pa.Super. 44, 600 A.2d 993 (1992), is section 6502 of the Motor Vehicle Code. Section 6502(a) provides that any violation of Title 75 is a summary offense “unless' the violation is by this title or other statute of this Commonwealth declared to be a misdemeanor or a felony.” 75 Pa.C.S. § 6502(a). The underlying offense here, a section 1543 violation, is a summary offense. See 75 Pa.C.S. § 6502(a); see also 75 Pa.C.S. § 1543(a) (defining offense of driving while operating privilege is suspended or revoked as a summary offense). Section 6502(c) specifically provides that the classification section of the Crimes Code (relating to grading of offenses), see 18 Pa.C.S. § 106(c), is inapplicable insofar as it relates to fines and imprisonment for convictions of summary offenses. Thus, despite the fact that the sentence is enhanced, the nature and grade of the underlying offense, enumerated in section 1543, remains the same—it is a summary offense notwithstanding the enlarged penalty. See Bernal, supra; see also Lyons, supra (a second offense of driving while operating privileges are under suspension was intended by the legislature to be a summary offense rather than a misdemeanor).

In Sperry, the appellant argued that his guilty plea was invalid because he was not notified of his right to a jury trial. At the time of Sperry’s offense, section 6503 provided for a maximum sentence of up to one year imprisonment. 75 Pa.C.S. § 6503, P.L. 544, No. 96, § 3. The statute was amended in 1986, and now provides for a maximum prison term of six months. Significant to the holding in Sperry is the fact that the sentence enhancement in section 6503, prior to 1986, upgraded the offense from a summary offense to a misdemeanor. Cfi Commonwealth v. Lyons, supra (a second violation of 75 Pa.C.S. § 1543(a) is a summary offense). The Sperry court specifically noted the distinction between that case and Lyons, stating: “Lyons may be distinguished from this case in that section 6503 as construed there, involved the amendment of 1986, which reduced the penalty from one year imprisonment to six months and therefore meets the test for proceeding without a jury ...” 395 Pa.Super. at 406 n. 5, 577 A.2d at 606 n. 5. The statute construed in Sperry was the original of section 6503, not the 1986 amended statute. Additionally, we point out that the Sperry court’s statement that “it was necessary for the Commonwealth to allege in the complaint under the enhancement section, the prior violation and conviction under section 1543” is merely a reiteration of the appellant’s argument; it is not the court’s holding.

In Reagan, supra, this court was presented with the question of whether the Commonwealth must allege prior convictions in its information in order to subject the defendant to the recidivist provisions of 75 Pa.C.S. § 3731 (pertaining to driving under the influence). The court distinguished a long line of cases which held that the Commonwealth was required to allege prior convictions in the information applying recidivist penalties under a variety of statutes. See, e.g., Rauch v. Commonwealth, 78 Pa. 490 (1875); Commonwealth v. Payne, 242 Pa. 394, 89 A. 559 (1913); Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970); Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979); Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980). The Reagan court stated:

[I]n each of these cases, the recidivist statute under which the defendant was sentenced provided for an increased maximum sentence or an “enlarged” sentence, and it was for this reason that the Courts concluded that prior convictions had to be alleged in the Information or Indictment. The Court held that the increased maximum sentence, or change in grade of offense, made a subsequent offense different in kind and character than a first offense.

348 Pa.Super. at 595, 502 A.2d at 705 (emphasis in original). Here, section 6503 provides for an enlarged sentence; it does not, however, “make a subsequent offense different in kind and character than a first offense.” Id. A subsequent violation of section 1543(a), although it carries with it the possibility of an enhanced penalty, remains a summary offense.

Section 6503 provides in pertinent part:

§ 6503. Subsequent convictions of certain offenses.

Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both:
* H« * * *
Section 1543 (relating to driving while operating privilege is suspended or revoked).

75 Pa.C.S. § 6503. In addition to its reference to section 1543, the section under which Soboleski was charged, section 6503 also refers to other motor vehicle violations. Section 6503 does not exist on its own; it is a recidivist or enhancement provision for one who has been convicted two or more times of certain enumerated offenses.

The Reagan court supported its holding by reasoning that Pennsylvania Rule of Criminal Procedure 225 does not “require that a prior conviction be averred in the information.” Reagan, 348 Pa.Super. at 594, 502 A.2d at 704.

[UJnless the prior conviction is an “essential element” of the crime and required to be averred in the Information by Rule 225(b)(5), it is not necessary to include the averment of a prior conviction in the Information. Our review of the applicable statutes and relevant case law compels us to conclude that prior convictions are not an element of the crime of drunken driving and therefore need not be alleged in the Information.

Id. Clearly, here, a prior conviction is not an element of driving while operating privileges are suspended or revoked. 75 Pa.C.S. § 1543(a). More significantly, a prior conviction does not alter the guilt or innocence of the person charged; a prior conviction is relevant only to the determination of sentence following an adjudication of guilt.

The purpose of the information or citation is to inform the accused of the crimes charged—to give sufficient notice of the charges so as to provide him or her with the opportunity to prepare a defense, and to define the issues for trial. See Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978); Commonwealth v. Stauffer, 309 Pa.Super. 176, 454 A.2d 1140 (1982). See also Pa.R.Crim.P. 53(a)(6) and 225. It is crucial to recognize this purpose before adhering to a requirement which neither furthers this purpose nor conforms with the current law. See Bernal, supra (a section 6502(a) offense remains a summary offense, notwithstanding the penalty enhancement); Lyons, supra (“Although section 6503 establishes a more severe penalty to be imposed than does section 1543(a), it makes no attempt to classify a second offense as a misdemeanor”); Reagan, supra (“Nowhere does the rule [Pa. R.Crim.P. 225, setting forth the required contents of a criminal information] require that a prior conviction be averred in the information ... unless the prior conviction is an ‘essential element’ of the crime[.]”) See also Commonwealth v. Heath, 528 Pa. 316, 597 A.2d 1135 (1991) (a defendant convicted of involuntary deviate sexual intercourse with a victim under the age of sixteen did not have the right to notice of the Commonwealth’s intent to seek mandatory minimum sentence under 42 Pa.C.S. § 9718); Commonwealth v. Scheinert, 359 Pa.Super. 423, 519 A.2d 422 (1986), alloc. denied, 517 Pa. 606, 536 A.2d 1330 (1987) (due process does not require that the prosecution notify defendant of intent to seek enhanced recidivist penalty under section 3731 (pertaining to DUI) in criminal complaint); Commonwealth v. Kornicki, 357 Pa.Super. 182, 515 A.2d 925 (1986) (while notice of prior DUI conviction and Commonwealth’s intention to seek sentence under recidivist penalties of sentencing statute need not be given prior to conviction thereunder, defendant must be provided notice before sentencing occurs; Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986) (Commonwealth was not required to allege in information that driver accepted placement in Accelerated Rehabilitative Disposition (ARD) program following her first driving under the influence (DUI) arrest in order for trial court to impose mandatory minimum sentence of 30 days following second offense); Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986) (where imposition of recidivist penalty does not alter the nature or grade of the offense and where recidivism is not an element of the underlying offense, amendment of the information to allege a prior conviction is unnecessary); Commonwealth v. Hess, 348 Pa.Super. 600, 502 A.2d 707 (1985) (Commonwealth was not required to aver prior DUI convictions in criminal information in order to seek sentencing for defendant under recidivist provision of drunk driving law [75 Pa.C.S. § 3731(e) ] upon defendant’s voluntary plea of guilty to DUI).

Furthermore, the Reagan court acknowledged in its decision that section 6503 was a recidivist provision:

Knowledge of the higher mandatory minimum sentence for repeat offenders may affect the defendant’s decision to plead guilty even though knowledge of the recidivist penalty would not affect a defendant’s defense for the crime charged. Therefore, although notice of the recidivist penalty is not required prior to trial, it is required prior to a guilty plea.

Reagan, 348 Pa.Super. at 599, 502 A.2d at 707 (emphasis added). Both Reagan and Sperry addressed the notice required prior to entry of a guilty plea. Soboleski’s reliance upon Sperry is, therefore, misplaced. Soboleski did not enter a guilty plea, but rather was tried before a magistrate and then tried de novo before the court of common pleas. We conclude, therefore, that Sperry is not applicable in this context and that the Commonwealth’s failure to cite section 6503 in its citation did not violate Soboleski’s due process rights.

In order to clarify the language in Sperry and provide consistency in the interpretation and application of the law pertaining to recidivist provisions, we must view section 6503 for what it is—a penalty provision. Failure to avert a prior conviction in a citation or information does not preclude the sentencing court from sentencing a defendant to an enhanced penalty under this recidivist provision.

Judgment of sentence affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

Notwithstanding the majority’s cogent reasoning that section 6503 is merely a sentencing enhancement and not a separate offense, I must dissent. Whatever the wisdom of Commonwealth v. Sperry, 395 Pa.Super. 400, 577 A.2d 603 (1990) (en banc), which held that charges under section 6503 are “unsupportable because to sustain a charge under section 6503, it was necessary for the Commonwealth to allege in the complaint under the enhancement section, the prior violation and conviction under section 1543,” id. (citations omitted), I, as a member of a three judge panel, believe that I must follow the Sperry en banc decision until an en banc Superior Court or the Supreme Court overrules it. See Jones v. Rudenstein, 401 Pa.Super. 400, 585 A.2d 520 (1991) (Olszewski, J., concurring).

      . A violation of section 1543(a) is a summary offense punishable by a fine of $200. 75 Pa.C.S. § 1543(a). If sentenced under the recidivist provision, section 6503, the sentencing possibilities are enlarged—"a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both.” 75 Pa.C.S. § 6503. Pursuant to section 106(c) of the Crimes Code, a fine of up to $1000 and/or imprisonment of up to six months alters the grade of the offense, from a summary offense to a misdemeanor of the third degree. See 18 Pa.C.S. § 106(c) and (e). However, as stated above, section 6502(c) specifically states that this classification "as it relates to fines and imprisonment for convictions of summary offenses, is not applicable to [Title 75].” 75 Pa.C.S. § 6502(c). Consequently, the offense remains a summary offense.

      . Section 6503 provides that a person convicted of a second or subsequent violation of section 1543 "shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both ..." 75 Pa.C.S. § 6503. A person charged with violating section 1543(a) as a first offense, "shall, upon conviction, be sentenced to pay a fine of $200.” 75 Pa.C.S. § 1543(a).

      . Section 1501(a) (relating to drivers required to be licensed); section 3367 (relating to racing on the highways); section 3733 (relating to fleeing or attempting to elude police officers); section 3734 (relating to driving without lights to avoid identification or arrest); and section 3748 (relating to false reports).


author: ROWLEY, President Judge:

text:
    617 A.2d 1314
    COMMONWEALTH of Pennsylvania v. Abdel SALAMEH, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1992.
    Filed Dec. 18, 1992.

      Stanley W. Greenfield, Pittsburgh, for appellant.
    Andrea F. McKenna, Deputy Atty., Harrisburg, for Com., appellee.
    Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
   ROWLEY, President Judge:

Abdel Salameh, M.D., appeals from the judgment of sentence entered following his conviction for one violation of the Controlled Substance, Drug, Device and Cosmetic Act (“Drug Act”), 35 P.S. § 780-113(a)(14), and one violation of the Public Welfare Code, Fraud and Abuse Control—Provider Prohibited Acts (“Welfare Code”), 62 P.S. § 1407(a)(2). Both violations were committed in connection with appellant’s medical practice.

Appellant Salameh raises five issues on appeal: i) whether the jury instructions regarding the Commonwealth’s burden of proof for a conviction under the Drug Act were erroneous and prejudicial such as to warrant a new trial; ii) whether the evidence was sufficient to support appellant’s conviction under the Drug Act; iii) whether the trial court erroneously permitted a witness to testify to his belief that his agreement with appellant, which violated the Welfare Code, was illegal; iv) whether the trial court erred in denying appellant’s demurrer as to the Welfare Code violation; and v) whether the trial court erred in denying appellant’s request for an individual voir dire. Having reviewed the record, the parties’ briefs, and the opinion of the trial court, we vacate the judgment of sentence for the conviction under the Drug Act and remand for a new trial. We affirm the judgment of sentence for the conviction under the Welfare Code.

We vacate appellant’s conviction under the Drug Act in accordance with his first issue which is one of first impression. We agree that the jury instructions regarding the Commonwealth’s burden of proof were erroneous and prejudicial, thus warranting a new trial. The Commonwealth was required to prove beyond a reasonable doubt that appellant was writing prescriptions in a manner which violated one or more of the three standards found in 35 P.S. § 780-113(a)(14). Commonwealth v. West, 270 Pa.Super. 301, 306-07, 411 A.2d 537, 540 (1979). The trial court’s instruction concerning the third standard inaccurately stated the Commonwealth’s burden of proof.

The portions of the statute relevant to the third standard read as follows:

(a) The following acts ... are hereby prohibited:
(14) The ... prescription of any controlled substance by . any practitioner ... unless done
(iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.

In sum, the act of prescribing a controlled substance is not prohibited if the first two standards are met and the act is accepted by “a” responsible segment of the profession. In order for the jury to find that this standard was violated, it must find, inter alia, beyond a reasonable doubt, that “no” responsible segment of the medical profession exists which approves of appellant’s treatment principles for the prescription of drugs; for, if any responsible segment exists which approves of appellant’s methods, appellant cannot be convicted under § 780-113(a)(14), provided the first two standards are also met.

With this construction of the statute in mind, it follows that the burden for the Commonwealth is to prove, inter alia, that i) “no” responsible segment of the medical profession exists which accepts appellant’s methods. The trial court, however, instructed the jury on this issue as follows:

Then you must find one of the following three: That the dispensing, delivery or the prescribing of the medication for [sic] the controlled substance was not done in accord with the treatment principles accepted by a responsible segment of the medical profession, or,....

N.T. at 716. This part of the instruction did not directly implicate the Commonwealth’s burden of proof and is an accurate statement of the law. Next, the trial court instructed:

Or, the Commonwealth must prove, beyond a reasonable doubt, that the defendant in prescribing or dispensing the controlled substance did not do so in accordance with -treatment principles accepted by a responsible segment of the medical profession.

N.T. at 721. This statement is also accurate. The court then proceeded to erroneously explain how the jurors could find that the Commonwealth had proven what it was required to prove:

In order for you to find that the government has successfully met its burden, you must find that the evidence which is presented demonstrates beyond a reasonable doubt that a responsible segment of the medical profession would find that the defendant’s prescribing of controlled substances to the patients involved in this case medically unacceptable.

N.T. at 722. This is an inaccurate statement of the law and instructs the jury to convict under the wrong circumstances.

It is not true that only a responsible segment of the profession must find appellant’s practices unacceptable; rather, all responsible segments must find his practices unacceptable, for only then is it possible that a segment does not exist which approves of his practices. This burden for the Commonwealth is much weightier than the burden described to the jurors.

The trial court continued with the following instruction which was likewise an inaccurate statement of the law:

If the evidence in the case leaves you with a reasonable doubt as to whether a responsible segment of the medical profession would accept as reasonable the treatment given by the defendant to the patients involved, then you must find that the government has failed to establish this element of the case....

Id. The doubt of the jurors which would prevent conviction under this statute is a doubt that no responsible segment of the profession would accept the treatment methods, or that all responsible segments of the profession reject those methods. The trial court erred by requiring a finding that the Commonwealth had failed to establish an element if the jury doubted the proof of something which would have relieved appellant of guilt, i.e., whether a segment of the profession would accept appellant’s practices.

As we have done, we must view the jury instructions as a whole and evaluate their prejudicial effect from that standpoint. Commonwealth v. Waller, 322 Pa.Super. 11, 14, 468 A.2d 1134, 1135 (1983). The trial court has broad discretion in phrasing its instructions so long as they “clearly, adequately, and accurately” present the law. Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990) (emphasis added). When the trial court has made an instructional error, an appellant is entitled to a new trial if the error was clearly prejudicial to him and no remedial instructions were given. Commonwealth v. Tharp, 373 Pa.Super. 285, 288-89, 541 A.2d 14, 16 (1988).

In appellant’s case, no instructions were given to remedy the error even though remedial instructions were essentially requested by appellant. In addition, the error was clearly prejudicial to him. The issue of the Commonwealth’s burden of proof is fundamental to our legal system which presumes innocence until proof of guilt. Errors which at best obfuscate the jury’s responsibilities for assessing guilt are unacceptable absent some attempt at correction by the trial court. Consequently, we find that appellant was prejudiced by the error and grant appellant a new trial because the error respected a fundamental issue and because “the incorrect instructions remained unaltered.” Commonwealth v. Wortham, 471 Pa. 243, 247, 369 A.2d 1287, 1289 (1977).

We will not consider appellant’s second issue because it also asks us to vacate appellant’s conviction under the Drug Act, which we have already done in accordance with his first issue. We incorporate the trial court’s opinion by reference as correctly and adequately disposing of appellant’s fourth and fifth issues. We do the same for appellant’s third issue but with some clarification.

Appellant was convicted under the Welfare Code for receiving kickbacks through a disguised referral agreement with the Kiski Valley Clinical Laboratory. A witness who had executed the agreement on behalf of Kiski testified on cross-examination that he believed their agreement was legal at its execution. Appellant objects to the witness’ testimony on redirect that he later learned the agreement was not legal. Appellant claims this testimony was irrelevant and prejudicial.

First, it is not clear whether the witness’ belief regarding the agreement’s legality upon its execution was even relevant, for it was not this witness who was on trial. Second, because the issue regarding what this witness believed when he executed the agreement was not itself clearly relevant, his testimony acted primarily to create the following unfair inference: because the witness believed the agreement was legal at its execution, it was in fact legal. The trial court was correct to permit testimony on redirect which would counter this unfair and improper inference. See Commonwealth v. Dreibelbis, 493 Pa. 466, 479, 426 A.2d 1111, 1117 (1981). Accordingly, because neither the third, fourth, nor fifth issue is a basis for relief, appellant’s conviction under the Welfare Code is affirmed.

Judgment of sentence pursuant to conviction under 35 P.S. § 780-113(a)(14) vacated and remanded for new trial. Jurisdiction relinquished. Judgment of sentence pursuant to conviction under 62 P.S. § 1407(a)(2) affirmed. Case remanded. Jurisdiction relinquished.

      . The following acts and the causing thereof within the Commonwealth are hereby prohibited:
      The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner ... unless done
      (i) in good faith in the course of his professional practice;
      (ii) within the scope of the patient relationship;
      (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.
      35 P.S. § 780-113(a)(14).

      . It shall be unlawful for any person to:
      Solicit or receive or to offer or pay any remuneration, including any kickback, bribe or rebate, directly or indirectly, in cash or in kind from or to any person in connection with the furnishing of services or merchandise for which payment may be in whole or in part under the medical assistance program or in connection with referring an individual to a person for the furnishing or arranging for the furnishing of any services or merchandise for which payment may be made in whole or in part under the medical assistance program.
      62 P.S. § 1407(a)(2).

      . We caution appellant to comply in the future with Pa.R.A.P. 2116. The rule requires an appellant to state the questions involved "in the briefest and most general terms, without names, dates, amounts or particulars of any kind." The questions involved portion of a brief is not an opportunity to provide argument, but rather is a mechanism by which the appellate court can readily grasp the issues, then proceed with a proper frame of reference.

      . ‘ During a discussion of proposed jury instructions after trial, appellant’s attorney objected to the erroneous instruction which the trial court intended to give. At that time, the trial court noted an exception to appellant, but still refused to adopt appellant's proposed instructions. N.T. at 625-29.
      After the jury instructions were given, a discussion took place at side bar where appellant reminded the trial court that it had noted him an exception regarding the error. Appellant also reexplained to the court how he believed the instruction should have been read and why he objected to the instruction that was given. N.T. at 726-27.

      . Appellant frames his fourth issue in terms of whether the trial court erred in denying his demurrer. This issue is generally not available for appellate review. Once trial has proceeded to presentation of defense evidence, the proper challenge on appeal is to the sufficiency of the evidence. Commonwealth v. Hammock, 319 Pa.Super. 497, 466 A.2d 653 (1983). Even so, because appellant’s fourth issue also includes a statement that the evidence was insufficient to support the verdict, we have disposed of it here.

      . The agreement was drafted as a rental agreement. Appellant received $1,110 per month for allegedly renting office space to Kiski for the storage of a centrifuge and a chair. The space in appellant’s office necessary to store these “supplies” and operate this “equipment” was approximately three by five feet. Trial Court Opinion at 5. Appellant referred his tests exclusively to Kiski “for patients whose payments were received from the Medical Assistance Program.” Id. Appellant was convicted through a finding that the “rental” payments were actually kickbacks for appellant’s continued referral of tests to Kiski.


author: TAMILIA, Judge:

text:
    617 A.2d 1318
    Alva COVINGTON v. Mattie Jean COVINGTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1992.
    Filed Dec. 9, 1992.

      Francis E. Corbett, Pittsburgh, for appellant.
    Louis R. Salamon, Pittsburgh, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

Mattie Jean Covington (hereinafter wife) appeals from the Order entered January 2, 1992 dismissing her exceptions to the recommendations of the hearing officer and affirming the Order entered September 24, 1990 finding wife in contempt for failing to pay alimony pendente lite (APL) to Alva Covington (hereinafter husband) as ordered.

The parties were aware that prior to their marriage, each had been married to another person. Wife was divorced on May 18, 1971. On May 24, 1971, an uncontested divorce hearing which husband did not attend was conducted with regard to husband’s previous marriage. Believing in good faith they were divorced from their prior spouses, the parties on that same day applied for a marriage license and on May 29, 1971, were married. It was not until June 11, 1971, however, that a decree was entered divorcing husband from his previous wife. With the exception of a short separation in 1978, the parties lived together as husband and wife until September 15, 1989, when wife filed a divorce action against husband, who counterclaimed for support and APL. On April 11,1990, the trial court entered an Order directing wife to pay husband APL in the amount of $125 per month and arrearages of $407.50. On June 6, 1990, husband served wife with a notice of intent to enter judgment for failing to pay APL and on July 28, 1990, the trial court issued a petition for civil contempt against wife for failing to comply with the support Order. The petitions were consolidated and reviewed during a hearing, wherein wife argued the marriage between the parties was void since it was entered into thirteen days prior to the date of husband’s actual divorce. In finding the removal of an unknown impediment made the parties’ marriage valid, the court relied upon 23 Pa.C.S. § 1702(a), which states as follows:

§ 1702. Marriage during existence of former marriage

(a) General rule.—If a married person, during the lifetime of the other person with whom the marriage is in force, enters into a subsequent marriage pursuant to the requirements of this part and the parties to the marriage live together thereafter as husband and wife, and the subsequent marriage was entered into by one or both of the parties in good faith in the full belief that the former spouse was dead or that the former marriage has been annulled or terminated by a divorce, or without knowledge of the former marriage, they shall, after the impediment to their marriage has been removed by the death of the other party to the former marriage or by annulment or divorce, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and immediately after the date of death or the date of the decree of annulment or divorce.

Wife argues the court erred in finding the marriage was valid. She contends 23 Pa.C.S. § 3304 controls and confirmation of the marriage under section 3304 requires an understanding the impediment had been in place but was now removed. Since the parties took no affirmative steps to confirm the marriage after the removal of the impediment, wife concludes the marriage was void. We disagree with wife’s argument and reasoning and, therefore, affirm the trial court’s Order.

In support of her position, wife cites In Re Estate of Garges, 474 Pa. 237, 378 A.2d 307 (1977), where the parties cohabitated and subsequently confirmed their marriage when the man gave the woman a ring and showed her final divorce papers from his previous marriage. The court held there was a presumption the parties continued to live together unmarried even after the impediment had been removed which could only have been rebutted and in this case was rebutted by clear and convincing evidence of a change of status. From this holding, wife argues the parties needed to take affirmative steps to confirm their marriage after learning the impediment had been removed. Section 3304(a) General rule, simply assures that the putative spouse statute, section 1702, is read into the annulment section of the Divorce Code and is not nullified by it. The single controlling factor pursuant to sections 1702 and 3304(a) that needs to be clear from the record, once a good faith ceremonial marriage is established, is continued cohabitation in good faith after the removal of the impediment of the prior marriage.

Wife’s reliance upon Garges is misplaced because the parties’ marriage in that case was not entered into pursuant to the Divorce Code, licensing and a marriage ceremony registered in the Marriage License Bureau, but instead was a common law marriage. Therefore, the curative statute, section 1702, was not applicable to a marriage which was not entered into pursuant to the statutory requirements of the Commonwealth. Here we are presented with a ceremonial marriage performed when both parties believed they were divorced from previous spouses. The requirement of cohabitation was fully met in this case and there was no need to reconfirm the marriage, as in Garges, as a common law marriage has no validity in the face of an existing marriage and cannot be salvaged as can a ceremonial marriage by section 1702. Commonwealth ex rel. Wenz v. Wenz, 195 Pa.Super. 593, 171 A.2d 529 (1961).

We find, since section 1702(a) is directly applicable, the parties were legally married on June 11, 1971, the date husband’s divorce became effective. The trial court concisely yet cogently set forth the rationale for such a finding.

As the record indicates in this case, the parties in good faith believed that they were entering into a valid marital relationship. Wife admitted that they conducted themselves as husband and wife. To permit Wife to now deny the existence of this marriage after eighteen years solely because the divorce decree for [husband and his prior wife] was entered on June 11,1971, and not May 24,1971, and the fact that Wife was not aware of this would be contrary to the purposes of the statute and public policy.[]

(Slip Op., Baldwin, J., 5/13/92, pp. 5-6.)

Next, wife argues section 3304 of the Divorce Code requires an understanding by the parties, not present here, that the impediment had been in place prior to confirming the marriage by cohabitation following its removal. We disagree with wife and find knowledge of an impediment and its removal is not required under section 3304 to make an otherwise void marriage valid. Where, as here, the parties entered into the marriage in good faith and cohabitated for over eighteen years following the entry of the divorce between husband and his previous wife, the requirement under section 3304 of confirmation by cohabitation following the removal of an impediment was adequately fulfilled.

Order affirmed.

      . 23 Pa.C.S. § 3304 states in relevant part:
      § 3304. Grounds for annulment of void marriages
      . (a) General’ rule.—Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of a person shall be deemed void in the following cases:
      (1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce except where that party had obtained a decree of presumed death of the former spouse.

      . The trial court is averring that the wife is estopped from denying the validity of her marriage after participating in the illegal ceremony but continuing to retain the benefits that the status of marriage confers until it no longer suits her convenience. Because we have an available statutory remedy to the issue in this case, it is unnecessary to look to the equitable doctrine of estoppel to properly resolve this issue. It is a viable doctrine in the event the legislature had not supplied a remedy.


text:
    617 A.2d 1320
    ROMEO & SONS, INC., Appellant, v. P.C. YEZBAK & SON, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed Dec. 9, 1992.

      Michael D. Frick, Uniontown, for appellant.
    Susan Key, Washington, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

Plaintiff Romeo & Sons, Inc., appeals from the January 3, 1992 Order granting defendant’s motion for summary judgment and dismissing appellant’s complaint alleging breach of contract and breach of warranty.

On August 13, 1979, the parties entered a contract whereby appellee was to build a warehouse/office building for the appellant. The project was completed in July, 1980, and two months later, in September, 1980, appellant alleges it began noticing structural defects in the building’s floor, ceiling, gutters and downspouts. The record reflects appellee did attempt to remedy the alleged defects as late as October, 1984, after which time it declined to do so. Consequently, on May 30, 1986, appellant filed suit for alleged breach of implied warranty of suitability for specific purpose, express warranty of quality of workmanship and breach of contract. The court granted appellee’s motion for summary judgment without discussion of the factual issues presented, reasoning the suit was barred by the four-year statute of limitations, 42 Pa.C.S. § 5525. This appeal followed.

Appellant argues the court erred by not applying the six-year statute of limitations set forth in 42 Pa.C.S. § 5527, the running of which, appellant contends, was tolled by the doctrines of estoppel and repair. Also, appellant contends the language of the contract which allegedly limited appellee’s responsibility for defects to a period of one year is subject to conflicting interpretations thereby presenting a genuine issue of material fact precluding summary judgment.

A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or an abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). The application of the appropriate statute of limitations governing an action is a matter of law to be determined by the court. For the reasons set forth infra, we find section 5527 to be the applicable statute of limitations and, therefore, reverse the Order granting summary judgment in favor of defendant and remand to the trial court for proceedings in accordance with this Opinion.

To date, there has been no Superior Court case which specifically addressed the question of which of the two relevant statutes is applicable to the construction of a home and/or commercial building. Further, the cases relied upon by appellee in support of a four-year time bar, Luden’s Inc. v. Irwin & Leighton, Inc., 28 D. & C.3d 565 (1983), and Francabandera v. Indian Mountain Lake Development Corp., 48 D. & C.3d 246 (1988), affirmed, 393 Pa.Super. 643, 564 A.2d 1010 (1989), are not controlling. Accordingly, we find this issue to be a matter of first impression to be resolved by this Court.

The general stated purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time and to suppress stale or fraudulent claims. The two statute of limitations sections being considered by this Court are set forth in pertinent part below:

§ 5525. Four year limitation

The following actions and proceedings must be commenced within four years:

(1) An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.

42 Pa.C.S. § 5525.

§ 5527. Six year limitation

Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.
As amended 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days.

42 Pa.C.S. § 5527. We find the very language of section 5525 referring to contracts for the “sale, construction or furnishing of tangible personal property” precludes its applicability to the matter before us wherein the warehouse/office building being constructed was, by definition, real estate. See West’s Legal Thesaurus/Dictionary, 1985. (Real estate is defined as land and anything permanently affixed to the land.) Moreover, beginning almost twenty years ago, this Court distinguished contracts for the construction of homes and/or commercial structures from contracts for the sale of goods, finding the former to be governed by the six-year statute of limitations and the latter, which is governed by the Uniform Commercial Code, to be subject to the four-year statute of limitations. See DeMatteo v. White, 233 Pa.Super. 339, 336 A.2d 355 (1975).

Acknowledging the identification of structural defects in a seasonable fashion is oftentimes difficult, the Superior Court continued this course embracing a more realistic and reasonable time bar statute when five years later it again ruled the six-year statute of limitations applicable to a case factually similar to the case before us. See A.J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980). In Aberman the defendant/contractor had repeatedly attempted to repair the leaking roof of the shopping center it had constructed for the plaintiff. However, after two years defendant refused to make further repairs, relying on the clause of the contract limiting its liability to one year from date of completion, and plaintiff was forced to engage a roofing company to make the needed repairs, culminating in the installation of a new roof when a latent defect was discovered. Although plaintiff did not recover, its affirmative defense of estoppel/repair doctrine having been rejected, the court did apply the six-year statute of limitations in rendering its decision. Although the application of the six-year statute of limitations is arguably dicta (see footnote 1), the Superior Court has continued its movement toward the uniform application of a six-year statute of limitations relating to construction contracts and contracts in general. (See Ragnar Benson Inc. v. Bethel Mart Assoc., 308 Pa.Super. 405, 454 A.2d 599 (1982). (In an action for a breach of a shopping center construction contract, the court found the matter was governed by the six-year statute of limitations, 42 Pa.C.S. § 5527(2).) Cf. Murray v. University of PA Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985). (Plaintiff/patient’s suit against doctor and hospital for damages arising out of an express warranty given in connection with a tubal ligation (breach of contract) was controlled by the six-year statute of limitations.)

In the interest of fair play and in light of the expected long-term life span of a house and/or commercial structure and the builder’s attendant ethical and legal responsibilities to its customer, we find the purchaser and his investment must be afforded the six years of protection provided by section 5527, To find otherwise would be grossly unfair to the buyer, who routinely expends large sums of money in the hope of securing a structurally and financially sound investment. Therefore, we find the statute of limitations applicable to the construction contract controversy with which we are faced is section 5527. Accordingly, the court erred by entering summary judgment in favor of appellee. Having so ruled, we find the issue of contract language ambiguity is not properly before this Court but rather is a matter which may be considered upon remand to the trial court.

Order reversed and case remanded to the trial court for proceedings in accordance with this Opinion.

Jurisdiction relinquished.

      . We note a recent Superior Court case, Amodeo v. Ryan Homes, Inc., 407 Pa.Super. 448, 595 A.2d 1232 (1991), wherein it stated the appropriate limitations period for a claim of breach of implied warranty of habitability was four years. However, because the stated claims in Amodeo were not the same as those claimed here and the issue of the appropriate statute of limitations was not before the Court, we find the language to be dicta and not binding with regard to the disposition of this appeal.

      . The six-year statute of limitations section 5527(2) cited and relied upon by appellant, which specifically addressed “[a]n action upon a contract”, was deleted by the 1982 amendment which condensed section 5527 into the one-paragraph “catch-all” section set forth above. Because plaintifFappellant did not file suit until 1986, after appellee ceased its attempts to correct the alleged defects, the 1982 statute, as amended, is the applicable law.
      For reference purposes, the relevant sections of section 5527 prior to its 1982 amendment stated:
      The following actions and proceedings must be commenced within six years:
      (2) An action upon a contract, obligation or liability founded upon a bond, note or other instrument in writing, except an action subject to another limitation specified in this subchapter....
      (6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).

      . See footnote 2.

      . Furthermore, after considering appellant’s repair doctrine/estoppel tolling arguments, although arguably waived by appellant's failure to raise them as affirmative defenses, we find even if the four-year statute of limitations was the applicable statute, the repairs made by appellee as late as 1984 had effectively tolled the statute of limitations and the suit filed two years later, in 1986, was not time barred. See A.J. Aberman Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980).


author: WIEAND, Judge:

text:
    617 A.2d 1323
    MERITOR MORTGAGE CORP.—EAST v. Emma B. HENDERSON and Occupants Appeal of: Claude HENDERSON.
    Superior Court of Pennsylvania.
    Argued Aug. 13, 1992.
    Filed Dec. 24, 1992.

      Paul A. Brooks, Philadelphia, for appellant.
    Gary E. McCafferty, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the failure to give notice of foreclosure proceedings to an heir in possession of real estate mortgaged by a predecessor in title, now deceased, can be raised, in defense of an action in ejectment to recover possession by the mortgagee who purchased the real estate at sheriffs sale. The trial court deemed the heir’s defense a collateral attack on the foreclosure action and disallowed the defense. Therefore, it entered summary judgment in favor of the mortgagee-purchaser. After careful review, we reverse.

In 1982, Emma B. Henderson executed a mortgage on premises 614 North Moss Street, Philadelphia, in favor of Pennsylvania Savings Fund Society, the predecessor in interest of Meritor Mortgage Corporation East (Meritor). Mrs. Henderson died intestate in August, 1988, but it appears that no estate was ever raised. Following her death, Claude Henderson, a son, moved into and occupied the residence. He made several payments on the mortgage, which were accepted by Meritor, but eventually the mortgage went into default. Henderson asserts that he notified Meritor that his mother had died, that he was an heir and that he had taken possession of the property.

Foreclosure proceedings were instituted in September, 1989. Meritor instructed the sheriff to serve Emma B. Henderson, the mortgagor, at her last known address. Pursuant thereto, the sheriff delivered a copy of the complaint to a niece, who lived elsewhere than in the mortgaged premises. The sheriff noted on the return of service that Emma B. Henderson was deceased. Service was not made on Claude Henderson, the heir in possession of the premises, and it does not appear that service was made upon any resident of the mortgaged premises or that the premises were posted. When no answer was filed to the complaint, Meritor caused a default judgment to be entered in the action of mortgage foreclosure; and, in January, 1990, Meritor purchased the property at sheriffs sale. The present action in ejectment was then brought against Claude Henderson when he refused to vacate the premises.

The service attempted by Meritor in the action of mortgage foreclosure was defective. It failed to comply with Pa.R.C.P. 410(b)(1), which provides as follows:

If in an action involving an interest in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in possession of the property. The sheriff shall note the service in the return.

As we have observed, the complaint in the action of mortgage foreclosure was not made on the party in possession of the property. This defect prevented the court from acquiring jurisdiction to act in the foreclosure proceedings. It was not corrected or rendered harmless by the fact that Meritor had previously sent to the mortgagor, at the mortgaged premises, a notice that it intended to commence a foreclosure action.

Pa.R.C.P. 1144(a)(2) directs also that “plaintiff shall name as defendants the personal representative, heir or devisee of a deceased mortgager, if known.” Whether Meritor had knowledge that the mortgagor was deceased and that appellant was an heir may be an issue of fact for future resolution. For purposes of reviewing the entry of summary judgment, however, we accept appellant’s assertion, confirmed by affidavit, that he made several mortgage payments personally and that he notified Meritor that his mother was deceased, that he was an heir, and that he was living in the mortgaged property. Grimes v. Prudential Ins. Co. of America, 401 Pa.Super. 245, 248, 585 A.2d 29, 31 (1991) (on motion for summary judgment, dispute in evidence must be resolved against moving party).

On the present state of the record there is no explanation for Meritor’s failure to serve its complaint in mortgage foreclosure in the manner required by the Rules of Civil Procedure. These rules are intended to guarantee the most fundamental due process consideration which holds that a party is entitled to notice and an opportunity to be heard.

There remains to be considered the trial court’s belief that the failure to make adequate service in the action of mortgage foreclosure could not be raised collaterally in the action of ejectment. In Vichosky v. Boucher, 162 Pa.Super. 598, 60 A.2d 381 (1948), a judgment had been entered against the defendant by a magistrate before the defendant received notice by service of the summons against him. When the plaintiff commenced proceedings to revive the judgment, the defendant responded that the original judgment was void and that its invalidity was apparent on the face of the magistrate’s transcript. In holding the original judgment void, the Court said:

This in itself [the lack of notice to the defendant] was a denial of due process, which invalidates the judgment. In discussing the principle that judicial process is indispensable to jurisdiction, it is well said in Spoturno v. Woods, 8 W.W.Harr., Del., 378, 192 A. 689, 693: [(1937)] “Due process of law means law in accordance with the fundamental principles of justice, and its essence is notice and an opportunity to be heard before judgment.” (Emphasis added.) .... This rule of law has expression also In re Komara’s Estates, 311 Pa. 135, 166 A. 577, 579, [ (1933) ] in this language: “But the conclusive character of a judgment or decree depends not only upon the statutory grant of jurisdiction to the court pronouncing it, but upon actual jurisdiction over the persons whose rights are the subject of the investigation. Unless the court has the parties before it, by appearance or service of process, it is obvious that it cannot bind them by its adjudications.”

Id. at 601, 60 A.2d at 382 (emphasis added). See also: In re Galli’s Estate, 340 Pa. 561, 570, 17 A.2d 899, 903 (1941) (“notice was indispensably necessary to give jurisdiction, and, without such notice and an opportunity to appellant to be heard, the decrees of the court were absolutely void.”); Brokans v. Melnick, 391 Pa.Super. 21, 27, 569 A.2d 1373, 1376 (1989), allocatur denied, 526 Pa. 626, 584 A.2d 310 (1990) (collateral attack on decree permitted “since a void decree can be attacked at any time, in any court.”); Green Ridge Bank v. Edwards, 2A1 Pa.Super. 231, 239-240, 372 A.2d 23, 26-27 (1977) (citing rule set forth in Vichosky); Mancine v. Concord-Liberty Savings & Loan Assoc., 299 Pa.Super. 260, 276 n. 9, 445 A.2d 744, 752 n. 9 (1982) (Price, J., concurring) (“where the purpose of the proceedings is to obtain a judgment affecting interests in things, notice in some form must be given to the persons whose interests are affected, and they must be given an opportunity to protect their interests. Otherwise the judgment is void as to such persons.” (citing Restatement, Judgments, § 6, Comment g)); Cf. Commonwealth, Department of Public Welfare v. Alessi, 119 Pa. Cmwlth. 160, 164 n. 3, 546 A.2d 157, 159 n. 3 (1988), allocatur denied, 524 Pa. 623, 571 A.2d 385 (1989) (where trial court directed that DPW pay for commitment of patient but DPW had not been party to underlying proceedings, DPW was denied “due process which requires at a minimum adequate notice and an opportunity to be heard before a judgment is reached”).

If adequate notice of the foreclosure action was not given, the court lacked jurisdiction to enter judgment. “It is never too late to attack a judgment for want of jurisdiction of either the subject matter or the person....” Vichosky v. Boucher, supra 162 Pa.Super. at 600, 60 A.2d at 382, citing Mintz v. Mintz, 83 Pa.Super. 85, 89 (1924). ‘When there is no jurisdiction there is no authority to pronounce judgment.” Vichosky v. Boucher, supra 162 Pa.Super. at 600, 60 A.2d at 382, quoting Mamlin v. Tener, 146 Pa.Super. 593, 596, 23 A.2d 90, 92 (1941). See: Simpson’s Estate, 253 Pa. 217, 225, 98 A. 35, 38 (1916).

The appellant has alleged and has filed affidavits to support his defense that the mortgage foreclosure judgment was void for lack of jurisdiction. If this is correct, then the judgment entered in the mortgage foreclosure action can be attacked collaterally in the mortgagee’s action in ejectment to recover possession of the mortgaged premises from an heir who, with permission from the remaining heirs, was and remains in possession of the mortgaged premises. When the trial court held that such a defense could not be raised in the ejectment action, it committed legal error.

The decision of the Superior Court in Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969), does not support the summary judgment entered by the trial court. The Court there held that a default judgment entered on a complaint which was not self-sufficient was voidable only and could not be made the basis for a collateral attack on the judgment. The Court conceded, however, that a judgment which is void for lack of jurisdiction is not governed by the same rule but, on the contrary, may be raised at any time.

Judgment reversed; case remanded for further proceedings. Jurisdiction is not retained.

CAVANAUGH, J., concurs in the result.

      . In Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 469, 487 A.2d 1372, 1377 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986), the Superior Court said:
      Notice, the most basic requirement of due process, must “be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections. The form of the notice required depends on what is reasonable, considering the interests at stake and the burdens of providing notice.” Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 452-453, 370 A.2d 685, 692-693 (1977). See also: Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314-315, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950); Stateside Machinery Co. v. Alperin, 591 F.2d 234, 241 (3d Cir.1979); Celane v. Common

        wealth, Insurance Commissioner, 51 Pa.Cmwlth. 633, 635, 415 A.2d 130, 132 (1980).


author: BECK, Judge:

text:
    617 A.2d 1326
    Ronald L. WILKINSON and Ellen U. Wilkinson v. Keith REITNAUER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Dec. 29, 1992.

      Craig S. Boyd, Boyertown, for appellant.
    Henry T. Crocker, Pottstown, for appellees.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge:

The issue is whether appellees’ transfer of $8900 to appellant was in the form of a non-refundable purchase of corporate stock or a loan which appellant must return to appellees.

The following facts were established during a bench trial. Appellant Keith Reitnauer was the sole shareholder of stock in R.W. Optics, Inc., a Pennsylvania corporation. On or about December 30, 1982, appellees Ronald and Ellen Wilkinson lent $3000 to Reitnauer. The loan was memorialized in a note, handwritten by Reitnauer and signed by all three parties, in which Reitnauer agreed “to pay Ronald + Ellen Wilkinson three thousand (3000) dollars at an annual rate of 11%.”

Later, the parties orally agreed upon a new arrangement, whereby the Wilkinsons would provide Reitnauer a total of $8900, as either a loan or a purchase of equity shares in R.W. Optics, Inc. On or about February 16, 1983, the Wilkinsons paid

Reitnauer an additional $1000 towards the total of $8900, and their new agreement was memorialized in a second handwritten note, signed by all parties:

I, Keith Reitnauer acknowledge payment of a total of $4000.00 from Ronald + Ellen Wilkinson. This $4000.00 is to be deducted from his total due of $8900.00, leaving a balance of $4900.00 due for the 49% of the shares of R.W. Optics, Inc. If this purchase should not take place, it is understood by all parties that the $1-000 will become a loan payable by Keith Reitnauer at an interest rate of 11%, calculated from the time the oral purchase agreement is cancelled.

(Emphasis added).

The Wilkinsons eventually paid Reitnauer another $4900, although it is not clear from the record exactly when and how this took place. However, Wilkinson and Reitnauer both testified that the total of $8900 had already changed hands when they executed a third document. This “Agreement for the Sale of Stock,” dated March 14, 1983, provides, in pertinent part, as follows:

^ * Hi H« H*
3. Reitnauer hereby agrees to sell, and Wilkinson agrees to purchase upon the terms and conditions set forth herein, four hundred thirty-six (436) shares of the common stock [in R.W.Optics] held by Reitnauer, upon payment from Wilkinson to Reitnauer of the sum of Eight Thousand Nine Hundred Dollars ($8900).
4. Upon the sale of said four hundred thirty-six (436) shares of common stock to Wilkinson, Reitnauer will be the owner of approximately fifty-one per cent (51%) of the issued and outstanding shares of stock of R.W.Optics, Inc., and Wilkinson will be the owner of approximately forty-nine per cent (49%) of the issued and outstanding shares of R.W.Optics, Inc.

Wilkinson also agreed to assume equal responsibility with Reitnauer for the payment of certain debts of the corporation. The Agreement of March 14,1983 does not set forth a specific effective date for the purchase of shares, nor does it include a requirement that the stock certificates physically be given to Wilkinson. Testimony established that Wilkinson never obtained physical possession of the shares.

By this time, Ronald Wilkinson was employed by R.W. Optics, Inc., and he received a salary. He also began to hold himself out to customers and relatives as the vice-president of the corporation. In addition, Wilkinson signed a written statement on R.W. Optics letterhead in which he averred that he “accepted and purchased forty-nine percent (49%) of the stock in the corporation.” Wilkinson signed the statement as the corporation’s vice-president, and indicated that he was a “partner” with Keith Reitnauer.

Unfortunately, despite Wilkinson’s high hopes for his business opportunity with R.W. Optics, the company did not flourish. In a letter dated June 11, 1984 addressed to Reitnauer, Wilkinson resigned from R.W. Optics. In the letter, Wilkinson demanded that “the total investment of Eight Thousand Nine Hundred Dollars ($8900.00) will be refunded to Mrs. Ellen U. Wilkinson within two weeks from receipt of this letter.” (Emphasis added.)

On June 18, 1984, Wilkinson wrote a second letter to Reitnauer, reminding him that “there is one week remaining to pay me and my wife’s Investment!Loan of $8900.00 ... back in accordance to our agreement dated February 16, 1983, written in your handwriting, and signed by all parties concerned.” Wilkinson further stated his belief that the conditional stock purchase agreement never was finalized, and that the money paid to Reitnauer merely was a loan that Reitnauer must repay:

Due to the fact that since February 16, 1983 to June 11, 1984 we could not come to an agreement, a considerable amount of time was wasted and an undue financial burden put on my family. Therefore, this agreement should be honored by you, as we did, and payment is expected to begin next week so further action will not have to be taken....

When no payment was forthcoming from Reitnauer, the Wilkinsons commenced this action. Reitnauer then wrote to Wilkinson, confirming that the parties had entered into an Agreement for the Sale of Stock on March 14, 1983, and that they had also executed an additional “buy-sell agreement,” which agreements “void any previous loan-note agreement and prove to you that you had made a purchase and not a loan.” After trial, the court found that any agreement between the parties for a purchase of shares was executory, that the condition of a transfer of shares never took place, and that the payment of $8900 was in the form of a loan which must be returned to the Wilkinsons. The trial court also found that the “corporation was never really born____ There’s no evidence that there was any incorporation meeting. There’s no evidence that there was a shareholders meeting at which stock was authorized and issued. There’s no evidence that the agreement to sell the stock for $8900 to Mr. Wilkinson on the terms set forth in the agreement was approved by the corporation. There’s no evidence that there were any certificates of stock prepared, signed by the necessary officers, and tendered, or offered, to Mr. Reitnauer.” N.T. 7/19/91 at 80-81. The court concluded that because the executory agreement of sale of stock never became final within a reasonable time, the Wilkinsons had a right to rescind it and demand their money back. Reitnauer filed a post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. The court entered judgment on its verdict in favor of the Wilkinsons in the total amount of $13,062.47. This timely appeal followed.

We first note our scope of review on this appeal from the djenial of a motion for post-trial relief. We must view the record in the light most favorable to the verdict winner, granting the Wilkinsons the benefit of every favorable inference, and decide whether there was sufficient evidence to support the trial court’s verdict. Wenrick v. Schloemann Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989). The factual findings of a trial judge sitting without a jury carry the same weight as a jury verdict and will not be disturbed absent an abuse of discretion or error of law. Arcadia Co. v. Peles, 395 Pa.Super. 203, 576 A.2d 1114 (1990). Because we find that there was insufficient evidence in the record to support the trial court’s verdict, we reverse.

The evidence in this case, even when viewed in the light most favorable to the Wilkinsons, compels the conclusion that they intended to purchase an equity interest in R.W. Optics, Inc. The fact that the corporation failed, and that the investment was unsuccessful, does not change the parties’ manifest intent.

Of course, it is clear from the documentary evidence and the parties’ testimony that the first transfer of $3000, effected on or about December 20, 1982, was intended to be a loan. With the second transfer, which took place on or about February 16, 1983, the transaction was considered to be either a loan or a non-refundable investment for the purchase of shares, conditioned upon the parties’ reaching an agreement for such purchase.

Wilkinson and Reitnauer executed a written Agreement for the Sale of Stock on or about March 14, 1983. By that time, Wilkinson had transferred $8900 to Reitnauer, and Wilkinson admitted that this money was “supposed to be purchasing stock.” Moreover, Wilkinson began holding himself out to the community as vice-president of the corporation, and considered himself to be a “partner” of Reitnauer.

Although Wilkinson never received physical possession of the certificates of stock he purchased, he acknowledged in a signed statement that he had “accepted and purchased” them. There is no evidence that the shares were intentionally withheld from Wilkinson, nor is there any evidence that he made any attempt to obtain them, other than simply asking Reitnauer for them. Wilkinson’s complaint that he never gained physical possession of the stock certificates seems merely an afterthought which has been used to buttress his attempt to get his money back. Issuance of a stock certificate is not a prerequisite to the formation of a shareholder relationship. See Krosnar v. Schmidt Krosnar McNaughton Garret Co., 282 Pa.Super. 526, 423 A.2d 370, 375 (1980); Keystone Wrapping Machine Co. v. Bromeier, 42 Pa.Super. 333 (1910). See also In re I. D. Craig Service Corp., 125 B.R. 453 (W.D.Pa.1991).

Nonetheless, the trial court decided that because “R.W.Optics, Inc. was incorporated but never organized, that no stock was ever issued, no officers ever elected and no meetings ever held,” and because Wilkinson never received his 436 shares of stock, the parties’ “attempt to convert the loan into an equity investment in the stock of the corporation failed.” Tr. Ct. Opinion at 2-3. However, the trial court’s findings regarding the organization of the corporation, even if correct, do not change the effect of the parties’ intent here. The informality with which R.W. Optics was managed is not conclusive:

[Shareholder status is difficult to determine in this case because of the lax method employed by [the parties] in maintaining the corporation. It is uncertain whether certificates for the original shares, by which transferral could be evidenced, were ever issued, and furthermore, a stockbook was not maintained by the corporation to record the owners of stock. The stock certificate is, however, only evidence of shareholder status and issuance is not a prerequisite to the formation of the relationship. Moreover, the corporation need not issue a certificate unless it is demanded by the shareholder, and a shareholder may transfer shares without having a certificate.

Krosnar, 282 Pa.Super. at 536, 423 A.2d at 375 (citations omitted).

The trial court’s holding that Reitnauer “did not carry out the Agreement [for the Sale of Stock] within a reasonable period of time, that [the Wilkinsons] rescinded it and were not bound by it” is unsupported by the record. The agreement for the purchase of stock envisioned by the parties’ February 16, 1982 conditional contract actually was executed; Wilkinson testified that he reached a “final agreement with respect to the purchase of the stock,” and that as of the March 14, 1983 Agreement, he intended that “all of the $8900 would become investment.” N.T. 7/19/91 at 36-38. In addition, Wilkinson apparently thought of himself as a “partner” and shareholder of R.W. Optics for over a year, despite the fact that he never received actual possession of stock certificates. Therefore, the trial court erred in denying Reitnauer’s motion for judgment notwithstanding the verdict.

Judgment vacated and case remanded with instructions to enter judgment in favor of appellant. Jurisdiction relinquished.

      . Reitnauer testified that it was his understanding that all of the share certificates, including his own, had been prepared and were kept in his lawyer’s office. Although Reitnauer admitted that he never actually gave shares of stock to Wilkinson, Reitnauer testified that the certificates were available to Wilkinson if he wished to obtain possession of them. Wilkinson testified that he had asked Reitnauer for the stock certificates, but he never took any action to compel their transfer.

      . The Statement provided:
      I, Ronald L. Wilkinson, wish to make the following statement concerning my bankruptcy.... My bankruptcy was caused mainly to a cash flow problem. I was able to keep the business going for three (3) years but during that time the state of the economy was very low. In January 1983 I was asked by Keith Reitnauer to become a partner in his wholesale business (R & W Optics). Because of my fast growing family of five (5) children, my dream to become successful in business, and all my responsibilities, I accepted and purchased forty-nine percent (49%) of the stock in the corporation. With my determination and confidence in myself as well as Keith Reitnauer, this business will not fail. I have learned many valuable lessons from my last business. Experience is your best teacher. Therefore, I am hopeful that my bankruptcy, that happened in 1980, will have no ill effect on your decision for the corporation’s future. Thank you for your time and consideration in this matter.
      /s/ Ronald L. Wilkinson
      Ronald L. Wilkinson, Vice-President
      Marketing/Production
      (Emphasis added). Wilkinson testified that he did not recall the purpose of the statement, although he admitted reviewing and signing it.

      . A copy of this alleged buy-sell agreement is not included in the record, and there was no testimony at trial about it.

      . This amount includes interest.

      . This is clear from the signed Statement issued by Wilkinson on R.W.Optics letterhead. In addition, Wilkinson testified that when he went out to get business "on the marketing end, I present myself as vice president." (N.T. 7/19/91 at 51).