author: BROSKY, Judge.

text:
    653 A.2d 1237
    Catherine M. LILES & Robert E. Liles, Appellants, v. Paul W. BALMER, Jr. & Mary Balmer.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Dec. 30, 1994.
    Reargument Denied March 1, 1995.

      John S. Hollister, Jr., Troy, for appellants.
    W. Marshall Dawsey, Towanda, for appellees.
    Before BECK, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the trial court which denied appellant’s motion for removal of a compulsory nonsuit entered against her.

Appellant presents the following issues for our review: (1) whether the trial court erred in granting appellees’ motion for compulsory nonsuit; (2) whether the trial court utilized an erroneous standard in excluding appellant’s testimony where her recollection of the accident was elicited while under sodium pentothal/hypnosis and she had no independent recall of the details of the accident prior to the sodium pentothal/hypnosis; (3) whether the trial court erred in refusing to apply a more liberal standard in this case rather than the evidentiary standard for admitting hypnotically elicited recollections which is used in criminal cases; and (4) whether the trial court fostered prejudicial delay and impeded due process. For the reasons set forth below, we affirm.

Before addressing appellant’s claims, we will recount the pertinent facts and procedural history of this case. Appellant, Catherine Liles, was riding her motorized pedalcycle (“moped”) during the afternoon hours of May 5, 1985. As she passed the home of appellees, Paul Balmer, Jr. and his wife, Mary Balmer, appellant apparently lost control of her moped and fell, thereby sustaining various injuries to her head. Other than Mrs. Liles, there were no eyewitnesses to the incident.

Appellant believed that her accident was caused by the Balmers’ dog chasing her moped and accordingly instituted suit against the Balmers in April, 1987. During the discovery and deposition phase of the proceedings, appellant was unable to remember any of the details of the accident. As a result, appellees filed a motion for summary judgment which was granted. Appellant thereafter appealed to this court. See Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691 (1989).

On appeal, this court determined that the police accident report and the hospital records were inadmissible to prove the manner in which the accident occurred. Id., 389 Pa.Super. at 455-456, 567 A.2d at 693. We further found that appellant could not prove her cause of action by showing that on prior occasions the dog was unrestrained and chased passing vehicles or that the Balmers habitually allowed their dog to run free to chase passing vehicles. Id., 389 Pa.Super. at 456, 567 A.2d at 693. We nevertheless reversed the trial court’s grant of summary judgment because the record did not disclose that, notwithstanding Mrs. Liles’ inability to' personally recall the details of the accident, she would be unable to produce evidence at trial to support the averments of her complaint. Id., 389 Pa.Super. at 456-457, 567 A.2d at 693.

In February of 1990, Mrs. Liles underwent a sodium pentothal/hypnotic interview conducted by her psychiatrist, Dr. Wigert. The interview was conducted for the purpose of enabling her to remember the details of the accident. During a pre-trial conference, a question arose regarding the admissibility of the taped statement of Mrs. Liles’ sodium pentothal/hypnotic interview. See Balmers’ Pre-Trial Memorandum, filed 9/27/91 at paragraph 11; Trial Court Order, filed 10/4/91 (indicating that a pre-trial conference was held and directing the parties to file briefs regarding the admissibility of plaintiffs taped statement of her sodium pentothal interview). By orders entered in January and February 1992, the trial court ruled that Mrs. Liles would not be permitted to introduce into evidence tapes of her sodium pentothal interview. This issue was subsequently revisited during a second pre-trial conference following which the trial court directed the parties to file a brief regarding the admissibility of Dr. Wigert’s testimony as to the statements made by Mrs. Liles during the sodium pentothal interview. Trial Court Order, filed 2/19/92. The trial court further ordered the parties to address the issue of whether Mrs. Liles’ current recollection of the accident, which arose following the treatment, would be admissible. Id.

By order dated June 23, 1992, the trial court determined that Mrs. Liles was precluded from presenting both the statements she made to Dr. Wigert during the sodium pentothal interview and any testimony involving her sodium pentothal-enhanced recollection of the events which led to her accident. Trial thereafter commenced on the same date, i.e., June 23, 1992. Before Mrs. Liles was called to the stand, an offer of proof was requested. In response, Mrs. Liles’ counsel indicated for the first time that Mrs. Liles had an independent recollection of the accident when she recovered in the hospital but that she had suppressed her memory thereof due to her head injuries and ensuing depression. N.T. 6/23/92 at 69 and 73-74. Because there was no proof that Mrs. Liles actually had a recollection independent of the sodium pentothal interview, the trial court ruled that she was not legally competent to testify as to the circumstances surrounding the cause of the accident. Id. at 84. In response to the trial court’s decision, plaintiffs counsel indicated that the evidentiary ruling effectively precluded him from proceeding further with his case. Id. at 87. At this point, defense counsel formally moved for a compulsory nonsuit and the motion was granted by the trial court. Id. at 87-88.

Within ten days after entry of the compulsory non-suit, Mrs. Liles filed a document that was captioned “Motion for Reconsideration.” While this document was pending before the court, Mrs. Liles filed an appeal from the entry of the nonsuit. See Liles v. Balmer, docket No. 00440 Harrisburg 1992. Appellees filed a motion to quash the appeal. This court granted appellees’ request as the appeal was interlocutory. See Order of the Superior Court, filed 9/2/92.

Despite the dismissal of her appeal, Mrs. Liles took no action until April of 1993, at which time she moved for argument on her motion. Argument was held in June, 1993 following which the trial court entered a final order refusing to remove the nonsuit. Mrs. Liles thereafter instituted this timely appeal therefrom. Consequently, this appeal is now properly before us for review. See Miller v. Hurst, 302 Pa.Super. 235, 241, 448 A.2d 614, 617 (1982) (en banc) (holding that an order refusing to remove a compulsory nonsuit is final and appealable).

Appellant’s first three claims pertain to the trial court’s grant of appellees’ request for a compulsory nonsuit and the evidentiary rulings upon which the nonsuit was based. With regard to these matters, we first observe that the trial court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. Pa.R.C.P., Rule 230.1, 42 Pa.C.S.A. In evaluating the trial court’s grant of a nonsuit, “we must view the evidence adduced on behalf of the [plaintiff] as true, reading it in the light most favorable to [her]; giving [her] the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in [her] favor.” Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993). Accord Taliferro v. Johns-Manville Corp., 421 Pa.Super. 204, 208, 617 A.2d 796, 799 (1992). Additionally,

a compulsory nonsuit may be entered only in cases where it is clear that the plaintiff has not established a cause of action____ When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action____

Taliferro v. Johns-Manville Corp., 421 Pa.Super. at 208, 617 A.2d at 799. With respect to the trial court’s evidentiary rulings, “[questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant.” Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 125, 586 A.2d 416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860 (1992). We will examine the trial court’s determinations in accordance with the above principles.

Because the trial court’s decision regarding the admissibility of Mrs. Liles’ testimony led to the entry of the nonsuit, we must first consider whether the trial court’s evidentiary ruling thereon was proper. On the subject of hypnotically refreshed testimony, our Supreme Court has deemed such testimony to be inadmissible as evidence. Commonwealth v. Smoyer, 505 Pa. 83, 87, 476 A.2d 1304, 1306 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 111, 436 A.2d 170, 178 (1981). The fact that a witness has undergone such treatment nevertheless does not result in the per se exclusion of all of his or her testimony. Instead, the appellate courts have held that a witness who has been hypnotized can testify to information not derived from the hypnotic session, subject to certain guidelines which include, inter alia, that the party offering the witness must show that the testimony to be presented at trial was established and existed previous to any hypnotic process. Commonwealth v. Smoyer, 505 Pa. at 89-90, 476 A.2d at 1308, quoted in Commonwealth v. Romanelli, 522 Pa. 222, 226, 560 A.2d 1384, 1386 (1989). Accord Commonwealth v. Galloway, 433 Pa.Super. 222, 226 n. 3, 640 A.2d 454, 456 n. 3, allocatur denied, 538 Pa. 666, 649 A.2d 668 (1994); Commonwealth v. DiNicola, 348 Pa.Super. 405, 413-415, 502 A.2d 606, 610-611 (1985), allocatur denied, 516 Pa. 616, 531 A.2d 1118 (1987), cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 768 (1988). However, before a hypnotically refreshed witness can testify to his or her pre-hypnotic recollection, the witness’ pre-hypnotic recollection must be verified by clear and convincing evidence. Commonwealth v. DiNicola, 348 Pa.Super. at 416, 502 A.2d at 612. Appellant has not met this requirement.

At no time prior to her sodium pentothal treatment was appellant able to recall any of the details of her accident. Consequently, there are no written statements or other similar documentation evidencing appellant’s recollection of the accident other than the information contained in the police report and hospital records. However, this court previously held that the information contained in these sources was inadmissible because it was untrustworthy. See Liles v. Balmer, 389 Pa.Super. at 456, 567 A.2d at 693. See also Commonwealth v. DiNicola, 348 Pa.Super. at 417, 502 A.2d at 612 (witness’ pre-hypnotic statements to police did not satisfy Smoyer where police reports were not shown to be accurate). Nor was there any other reliable evidence suggesting that appellant ever had a memory of the accident which was based on her own personal knowledge and perception.

Appellant nonetheless contends that she could have satisfied the Smoyer/DiNicola requirement through the testimony of various friends and relatives with whom she purportedly spoke after the accident. Appellant’s Brief at 16-17. According to appellant, these witnesses would testify that appellant did in fact have a memory of the accident shortly after it occurred, as evidenced by her alleged statements relating to the purported cause of the accident. Id. Appellant’s statements to these witnesses, if offered to prove the cause of the accident, is nothing more than inadmissible hearsay, and appellant has failed to establish that the proffered evidence falls within a recognizable exception to the hearsay rule. See, e.g., Heddings v. Steele, 514 Pa. 569, 573-574, 526 A.2d 349, 351 (1987) (defining hearsay as an out-of-court statement offered to prove the truth of the matter asserted; a proponent of hearsay evidence must point to a reliable hearsay exception before •such testimony will be admitted).

Mrs. Liles’ statements to her friends and relatives would not be considered hearsay if they were offered to show that she did in fact have a recollection of the accident prior to her loss of memory and hypnotic treatment. See, e.g., Matter of Cunningham, 517 Pa. 417, 438-439, 538 A.2d 473, 484, appeal dismissed, 488 U.S. 805, 109 S.Ct. 36, 102 L.Ed.2d 16 (1988) (explanatory words are not hearsay when under the substantive law the pertinent inquiry is directed only to objective manifestations rather than to the actual intent or other state of mind of the actor); Smith v. Brooks, 394 Pa.Super. 327, 337-338, 575 A.2d 926, 931 (1990), allocatur denied, 527 Pa. 621, 625, 592 A.2d 42, 45 (1991) (statements regarding the status of a traffic signal were not hearsay where they were used, not to prove the truth of the matter asserted therein, but to show the defendant’s reliance upon and actions in response thereto) L. Packel & A. Poulin, Pennsylvania Evidence, § 801.3 at 546 (1987) (statements are not hearsay when offered to prove the speaker’s knowledge or state of mind). However, the testimony offered by these witnesses did not establish that appellant’s memory of the accident was the product of her own personal knowledge and perception. Rather, Mrs. Liles’ deposition testimony disclosed that any memory of the accident which she may have had at this time was derived from information conveyed to her by neighbors and relatives. See Deposition of Catherine Liles, 3/3/88 at 40-41 (indicating that after the accident Mrs. Liles had people come over and tell her what happened; Mrs. Liles’ neighbors also told her that they had seen the Balmers’ dog running loose earlier in the day). Under these circumstances, we conclude that appellant’s untrustworthy and hearsay sources evidencing her alleged pre-hypnotic recollection of the incident falls far short of the clear and convincing evidence needed to satisfy Smoyer/DiNicola. Because appellant has failed to demonstrate that her proposed testimony was established and existed prior to the hypnotic process, the trial court did not err in concluding that appellant was incompetent to testify as to the details of the accident.

Although appellant asserts that the above standards governing the admissibility of hypnotically refreshed testimony in criminal cases has been met, she suggests that a more liberal standard of admissibility ought to be applied in civil cases due to the differing constitutional concerns and burdens of proof. We disagree. The reliability problems underlying hypnotically refreshed testimony have been discussed in detail in Commonwealth v. Romanelli, 522 Pa. at 226-227, 560 A.2d at 1386-1387 and Commonwealth v. Nazarovitch, 496 Pa. at 104-105, 436 A.2d at 174-175 and need not be reiterated here. Suffice it to say that the same concerns which led our Supreme Court to reject the admissibility of hypnotically refreshed testimony in a criminal proceeding are no less present simply because the action is civil in nature.

“Where the Supreme Court has spoken on a particular subject, it is our obligation, as an intermediate appellate court to follow and apply that decision.... In the absence of legally relevant distinction ... we are obliged to follow the dictates of the Supreme Court’s decision.... ” Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 421, 538 A.2d 509, 513 (1988) (en banc). Because the reliability problems inherent in hypnotically refreshed testimony are the same regardless of the nature of the proceeding, there is neither a logical nor compelling reason to apply a different standard for admitting such evidence in a civil case. We therefore decline to adopt a more liberal standard governing the admission of hypnotically-enhanced testimony here.

Having concluded that the trial court’s evidentiary rulings were correct, we must next examine the propriety of the compulsory nonsuit. Appellant contends that the entry of the nonsuit was improper because it occurred prior to the close of her case and before all of her evidence was admitted. While appellant is technically correct, her argument ignores the fact that she had no remaining competent and relevant evidence to present on the issues of negligence and causation. In fact, appellant’s own counsel admitted that the trial court’s competency determination effectively precluded appellant from proceeding with her case. See N.T. 6/23/92 at 87. Because appellant’s case was essentially complete prior to the entry of the nonsuit and because appellant wholly failed to present any evidence indicating that the Balmers violated the Dog Law and that their negligence was the proximate cause of her injuries, appellant clearly was not entitled to any relief. See, e.g., Harvilla v. Delcamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989) (in negligence cases, the fundamental rule of law is that the plaintiff must prove by a preponderance of the evidence that the defendant was negligent and that his negligence was the proximate cause of the accident); Miller v. Hurst, 302 Pa.Super. at 245, 448 A.2d at 619 (violation of the Dog Law is negligence per se, but liability does not attach unless the violation is a substantial factor in bringing about the injuries sustained). The trial court’s entry of the compulsory nonsuit was therefore proper. See Sinclair by Sinclair v. Block, and Taliferro v. Johns-Manville Corp., supra, 421 Pa.Super. 204, 617 A.2d 796.

Appellant’s remaining allegation of error relates to the trial court’s alleged inordinate delay with respect to this appeal. The record reveals that the compulsory nonsuit was entered on June 23, 1992. Appellant promptly filed a motion for removal of the nonsuit, which she mislabelled as a motion for reconsideration, on July 2, 1992. Notwithstanding the pendency of her motion, appellant filed an interlocutory appeal from the entry of the nonsuit six days later on July 8, 1992. Upon motion of appellees, this court subsequently quashed the premature appeal on September 2, 1992. After this matter was remanded to the trial court, appellant took no action until April of 1993, at which time she moved to place her motion for argument. Following argument in June of 1993, the trial court promptly disposed of appellant’s mqtion and appellant timely appealed therefrom.

The trial court thereafter directed appellant to file a concise statement of matters complained of in accordance with Pa. R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant complied with this directive. The trial court thereafter did not issue an opinion, believing its previously filed opinions regarding the admissibility of Mrs. Liles’ testimony to be sufficient. See Trial Court Opinion, filed 10/17/94 at 1 and 20. The lower court clerk did not transmit the record within the requisite forty (40) day time period mandated by Pa.R.A.P., Rule 1931(a), 42 Pa.C.S.A. According to the trial court, the clerk’s noncompliance was attributable to her erroneous assumption that a further opinion would be issued by the trial judge. Id. at 20-21. The trial court was subsequently directed to transmit the certified record to this court. The lower court complied with this directive and this court received the record in June, 1994. A supplemental record containing the trial court’s additional opinion was thereafter forwarded to this court.

Contrary to appellant’s assessment, nearly half of the delay in this case was attributable to appellant. Initial delay was caused by the premature appeal which appellant hastily filed without according the trial court sufficient opportunity to consider, let alone rule on, her pending motion. Appellant also caused additional delay by failing to promptly move the case for argument following the dismissal of her appeal. The remaining period of detention appears to have been primarily attributable to the court clerk rather than the trial judge. With respect to the trial court’s failure to issue an opinion, we note that Rule 1925 does not require a trial judge to issue an opinion in all cases. Instead, a statement is only necessary where the reasons for the order do not already appear of record. In this case, the trial judge’s rationale was apparent from both his prior opinions and the record. The trial judge nonetheless issued an additional opinion which was submitted to this court.

While the delay associated with the clerk’s retention of the record and the issuance of the trial judge’s supplemental opinion was unfortunate, if was not unduly excessive in comparison to other similar appeals. Although it may be said that “justice delayed is justice denied,” the delay in this instance has not deprived appellant of her due process rights nor has it resulted in any prejudice to appellant. In any event, the trial court’s delay in submitting the certified record and its opinion, standing alone, does not entitle appellant to the grant of a new trial where her claims are devoid of merit and it is obvious that she is unable to prove a prima facie case of negligence against appellee through legally admissible, competent and reliable evidence. Finding no error or abuse of discretion warranting the grant of any relief, we affirm the order of the trial court.

Order affirmed. Appeal of Robert Liles is dismissed.

      . Mrs. Liles' husband, Robert, is also identified as a party-appellant in the caption of this appeal. However, Mr. Liles does not appear to be a proper party-appellant. The underlying action was commenced by writ of summons in 1987 and identified both Mrs. and Mr. Liles as the plaintiffs. The Balmers thereafter entered an appearance and directed the prothonotary to enter a rule upon the plaintiffs to file a complaint within twenty days in accordance with Pa.R.C.P., Rule 1037(a), 42 Pa.C.S.A. Although a complaint was filed, Mr. Liles was not named therein as a plaintiff. Moreover, the complaint did not assert a cause of action or make any request for relief on behalf of Mr. Liles. Mr. Liles also was not a direct participant in any of the proceedings before the trial court. The record additionally reflects that Mr. Liles did not seek permission to intervene as a party at any time during the lower court proceedings. Nor was the complaint ever amended to include Mr. Liles as a plaintiff. Instead, Mr. Liles’ name appears to have been added to the caption of appellant's motion for reconsideration filed in July of 1992. Because Mr. Liles was not identified as a party in the caption of the complaint, did not seek any relief from the defendants and was not otherwise a participant in the proceedings giving rise to this appeal, he cannot be considered a party to the underlying action. See 42 Pa.C.S.A. § 102 (defining a party as a person who commences or against whom relief is sought in a matter); Pa.R.C.P., Rule 1018, 42 Pa.C.S.A. (requiring the caption of the complaint to set forth, inter alia, the names of all parties); Silver Spring Township v. Pennsy Supply, Inc., 149 Pa. Commw. 314, 319-320, 613 A.2d 108, 110-111 (1992) (everyone whose name appears in the caption of a praecipe for writ of summons is hot necessarily a party to the action; parties to an action are those who are named as such in the record and are properly served with process or enter an appearance. One who is not a named party to an action cannot become a party by the simple expedient of filing his or her appearance); Walker v. Walker, 362 Pa.Super. 75, 78-79, 523 A.2d 782, 783 (1987) (although not named as a party, the daughter-appellant was deemed to have standing to appeal because she participated in the trial court action and relief was sought against her). Since Mr. Liles was not a party to the action, he was not aggrieved by the trial court’s order, and thus, he has no standing to appeal. See Pa.R.A.P., Rule 501, 42 Pa.C.S.A. (providing that any party who is aggrieved by an appealable order may appeal therefrom); Silver Spring Township v. Pennsy Supply, Inc., 149 Pa.Commw. at 320, 613 A.2d at 111 (person who is not a party to an action is not aggrieved by the trial court’s order); Newberg by Newberg v. Board of Public Education, 330 Pa.Super. 65, 68-69, 478 A.2d 1352, 1354 (1984) (one who was not a party to a proceeding in the trial court has no standing to appeal). To the extent Mr. Liles is attempting to appeal from the trial court’s order, his appeal is dismissed and he is stricken as a party-appellant. See Silver Spring Township, supra (dismissing individual who was not a party); Newberg, supra (quashing appeal by individual who was not a party). Because Mrs. Liles is a proper party, her appeal remains viable and her claims will be considered. See Silver Spring Township, supra.

        . At a deposition taken in March of 1988, Mrs. Liles specifically stated that she could not remember the events which transpired after she had beeped her horn at a neighbor’s residence. Deposition of Catherine Liles, 3/3/88 at 37-40. Mrs. Liles next remembered waking up in the hospital the following morning. Id. at 39-40.

      . During the interview, Mrs. Liles indicated that the Balmers' dog had chased her and had come right up to her moped. See Defendants' Brief in Opposition to Plaintiff's Motion for Reconsideration of the entry of Compulsory Non-suit Against the Plaintiff, Exhibit B (Transcript of Sodium Pentothal Interview conducted 2/25/90) at 9. Mrs. Liles hollered at the dog to “get back” and took one of her feet off of the moped. Id. Mrs. Liles was unable to remember anything after that point until the time she regained consciousness in the hospital the next day. Id. at 10.

      . Mrs. Liles was again deposed after her sodium pentothal/hypnotic interview. During her deposition, Mrs. Liles indicated that she was now able to recollect, due to the sodium pentothal treatment, that she was chased by the Balmers’ dog. Deposition of Catherine Liles, 3/22/91 at 23-25. However, Mrs. Liles was still unable to recall either what happened after the dog chased her or what caused her to fall. Id. at 21-22.

      . We recognize that a motion for reconsideration is not the functional equivalent of a post-trial motion. See Moore v. Moore, 535 Pa. 18, 25, 634 A.2d 163, 166 (1993) (distinguishing between motions for reconsideration and post-trial motions). However, it is the contents of the motion and not its caption which is controlling. Cohen v. Jenkintown Cab Co., 300 Pa.Super. 528, 538 n. 8, 446 A.2d 1284, 1289 n. 8 (1982) (specific terms of a petition control over an erroneous use of nomenclature in the caption). As applied here, review of the contents of the motion discloses that Mrs. Liles sought removal of the nonsuit rather than reconsideration of the order. Moreover, this court treated Mrs. Liles’ request as a post-trial motion seeking removal of the nonsuit rather than a motion for reconsideration when we quashed her previously filed interlocutory appeal from the entry of the nonsuit. See Order of the Superior Court, filed 9/2/92, at docket no. 00440 Harrisburg 1992 (quashing Mrs. Liles’ appeal from order entering compulsory nonsuit; the appeal was deemed interlocutory because an order refusing to remove the nonsuit had not been entered by the trial court and the motion requesting removal of the nonsuit was pending). We accordingly consider this document to be in the nature of a post-trial motion for the removal of a nonsuit pursuant to Pa.R.C.P., Rule 227.1(a)(3), 42 Pa.C.S.A. rather than the type of motion for reconsideration which implicates the provisions of Pa.R.A.P., Rule 1701, 42 Pa. C.S.A.

      . Although appellant does not expressly challenge the trial court's other rulings regarding the admissibility of her taped interview or Dr. Wigert’s testimony as to Mrs. Liles’ statements made during the interview, this evidence was likewise properly excluded. See Commonwealth v. Reed, 400 Pa.Super. 207, 227, 583 A.2d 459, 469 (1990), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991) (affirming trial court’s exclusion of videotape of defendant’s hypnotic interview and of the psychiatrist’s testimony as to the defendant's statements made while trader hypnosis).

      . The decisions cited by appellant in support of this proposition are wholly inapposite as the admissibility of hypnotically refreshed testimony was neither at issue nor addressed therein. These cases instead involved the question of whether the plaintiffs' evidence was sufficient to establish a prima facie case of negligence. See Rumsey v. Great Atlantic & Pacific Tea Co., 408 F.2d 89, 90-91 (3d Cir.1969); Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 136, 153 A.2d 477, 479 (1959). Accordingly, Rumsey and Smith do not support the view that hypnotically refreshed testimony is subject to a different admissibility standard in a civil case.

      . Throughout much of the brief, appellant’s counsel has attempted to impugn the integrity and impartiality of the trial court. We have reviewed the trial court’s rulings in light of the certified record as well as the explanation of the history of this case provided by the trial court in its supplemental opinion. Notwithstanding counsel’s beliefs to the contrary, we find nothing in the record which remotely supports his insinuations. We do not condone counsel's behavior and caution him that unfounded criticism of the trial court is not an adequate substitute for proper legal argument and preparation.

      . Appellant’s statement can hardly be deemed "concise.” She asserted twenty-one separate allegations of error which spanned three and one-half pages.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    653 A.2d 1245
    CITIZENS NATIONAL BANK OF EVANS CITY v. Dennis D. GOLD and Bonny L. Gold, His Wife and Individuals, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed Jan. 5, 1995.

      P. William Bercik, Trafford, for appellants.
    Christopher Passodelis, Jr., Pittsburgh, for appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   JOHNSON, Judge:

This appeal presents an issue of first impression in this Commonwealth: We are asked to determine whether the six-month statute of limitations set forth in 42 Pa.C.S. § 8103 relating to deficiency judgments is extended by 11 U.S.C. § 108 of the Bankruptcy Code, where the debtor petitions for bankruptcy prior to the sale of property. The trial court, following a review of decisions from other jurisdictions, concluded that 11 U.S.C. § 108 does extend the statute of limitations. We agree, and, accordingly, affirm.

In 1988, Dennis D. Gold and Bonny L. Gold (the Golds) executed and delivered to Citizens National Bank (CNB) a mortgage note guaranteeing repayment of $109,000 to CNB. Commensurate with the execution of the mortgage note and as security for its repayment, the Golds executed and delivered to CNB a mortgage on real property (the property).

In April, 1989, the Golds defaulted on their obligation to repay CNB in accordance with the conditions established in the mortgage note. Pursuant to the terms of the mortgage note, CNB initiated foreclosure proceedings by filing a Complaint in Confession of Judgment against the Golds in the amount of $120,376.57. CNB then filed a Praecipe to Issue Writ of Execution. Thereafter, the property was scheduled for sheriffs sale on September 29, 1989. However, on September 28,1989, one day prior to the scheduled sale, the Golds filed a Petition in Bankruptcy pursuant to Chapter 13 of the Bankruptcy Code, thereby staying commencement or continuation of all actions and proceedings. See 11 U.S.C. § 362.

On April 18, 1990, approximately seven months after the Golds filed for bankruptcy, the United States Bankruptcy Court for the Western District of Pennsylvania entered an order permitting abandonment of the property because its fair market value was substantially less than the aggregate value of the liens on it. In June, 1990, the Prothonotary of Butler County reissued the writ of execution, which rescheduled the sheriffs sale of the property for July 27, 1990. CNB purchased the property at the sheriffs sale. The Golds did not object to the sale of the property or allege a violation of the automatic stay provisions of the Bankruptcy Code. To the contrary, the Golds, through their counsel, consented to and were present at the sale.

On February 22, 1992, the bankruptcy court dismissed the Golds’ bankruptcy claim with prejudice. In March, 1992, upon notification of the dismissal, CNB filed a Petition to Fix Fair Market Value of Real Property in Accordance With 42 Pa.C.S. § 8103. In addition to their answer to CNB’s petition, the Golds filed a petition to mark judgment satisfied, which was denied. After a hearing, the court entered an order which fixed the fair market value of the property at $59,000. This appeal followed.

The Golds raise the following four issues on appeal:

1. Whether CNB’s Petition to Fix Fair Market Value is barred by the statute of limitations.
2. Whether CNB is estopped from arguing that the automatic stay provided for under the Bankruptcy Code stayed its right to claim a deficiency where CNB’s execution sale was in violation of the stay.
3. Whether ... Dennis Gold’s testimony concerning an alleged contract between CNB and the Golds was improperly excluded as hearsay where the testimony was offered to prove what was said rather than the truth of what was said.
4. Whether the value of the personal property obtained by CNB from the Golds should have been considered in determining the value of the deficiency.

First, the Golds argue that CNB’s petition to fix fair market value of the property was not timely filed. Pursuant to 42 Pa.C.S. § 8103(a), whenever real property is sold to a judgment creditor in execution proceedings, and the selling price is not sufficient to satisfy the judgment, the judgment creditor shall petition the court to fix the fair market value of the real property sold. This petition “shall be filed as a supplementary proceeding in the matter in which the judgment was entered.” 42 Pa.C.S. § 8103(a). If the judgment creditor does not present a petition to fix the fair market value within six months of the sale of the property, § 8103(d) allows the debtor to file a petition to mark the judgment satisfied.

The Golds contend that CNB’s petition to fix fair market value should have been denied because CNB did not file it within six months of the sheriffs sale. CNB counters that it was prevented from filing the petition within six months of the sheriffs sale because of the automatic stay imposed by the bankruptcy court under 11 U.S.C. § 362. CNB further asserts that, under 11 U.S.C. § 108(c), it had 30 days from the dismissal of the bankruptcy case in which to file its petition. Thus, CNB argues that the filing was timely because the petition to fix fair market value was filed on March 12, 1992, within 30 days of the dismissal of the bankruptcy case.

Initially, we note that we do not determine whether the sheriff’s sale violated the automatic stay provided for under 11 U.S.C. § 362. Rather, our review is limited to whether CNB filed its petition to fix fair market value in a timely manner.

Section 362(a)(1) states:

§ 362. Automatic stay
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title....

11 U.S.C. § 362(a)(1). Accordingly, we must first determine whether the petition to fix fair market value constitutes the commencement or continuation.of a judicial action against the debtor that was commenced or could have been commenced before the commencement of the bankruptcy case.

Pursuant to 42 Pa.C.S; § 8103(a), a “petition [to fix fair market value] shall be filed as a supplementary proceeding in the matter in which the judgment was’ entered.” (Emphasis added). Thus, § 8103(a) mandates that a petition seeking a deficiency judgment be brought as a supplementary proceeding in a mortgage foreclosure action. Accordingly, we find that the petition to fix fair market value constituted a continuation of the judicial proceeding against the Golds, namely the foreclosure proceeding, which was commenced before they filed for bankruptcy. Therefore, the petition to fix fair market value was stayed under 11 U.S.C. § 362(a)(1).

The bankruptcy stay protecting the debtor’s property remains in force until the case is closed or dismissed, or a discharge is granted or denied. 11 U.S.C. § 362(c)(2); see also Hickman v. First State Bank (In re Motley), 10 B.R. 141 (Bankr.M.D.Ga.1981). In the present case, the stay remained in force until February 22,1992, when the bankruptcy petition was dismissed. Accordingly, because of the stay, CNB could not seek a deficiency judgment within six months of the sheriffs sale, as required by 42 Pa.C.S. § 8103. Therefore, we must consider whether the statute of limitations provided for under the Deficiency Judgment Act was extended. In pertinent part, 11 U.S.C. § 108(c) provides:

§ 108. Extension of time
* * * * * *
(c) [i]f applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... then such period does not expire until the latter of—
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay under section 362....

Here, applicable nonbankruptcy law, relating to deficiency judgments, fixed a six-month time period for filing a petition to fix fair market value. Hence, under § 108(c)(2), that six-month period did not expire until 30 days after notice that the automatic stay had terminated. See Northeastern Bank of Pa. v. Wilkins (In re Wilkins), 150 B.R. 127 (Bankr.M.D.Pa.1992) (11 U.S.C. § 108(c) specifically extends the six-month period applying to deficiency judgments). CNB filed its petition within this time period. Therefore, we find no error in the trial court’s determination that CNB’s petition was timely filed.

Next, the Golds contend that CNB is estopped from arguing that the automatic stay precluded it from seeking a deficiency judgment where CNB’s action in executing on the property was itself a violation of the stay. The Golds, however, have raised this defense for the first time on appeal. It is well-settled that a new theory of relief cannot be advanced for the first time on appeal. See, McCrery v. Scioli, 336 Pa.Super. 455, 485 A.2d 1170 (1984). Therefore, we find that this issue was waived.

In their third issue, the Golds assert that portions of Mr. Gold’s testimony were improperly excluded as hearsay. Matters relating to the admissibility of evidence are within the trial court’s discretion, and an appellate court will not reverse the trial court’s rulings absent a clear abuse of discretion. Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603, cert. denied, — U.S. -, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). Hearsay evidence is defined as “a statement made out of court, the statement being offered to show the truth of the matter asserted therein, and thus resting for its value on the credibility of the out-of-court asserter.” Com. ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 218, 447 A.2d 617, 620 (1984) (citations omitted).

During the hearing to determine fair market value, the Golds alleged that CNB had agreed to restructure their mortgage securing the property that was later sold, and that CNB was estopped from claiming a deficiency because of a breach of that agreement. To prove these allegations, Mr. Gold testified regarding comments that the president of CNB had made to him during one discussion. Counsel for CNB objected on hearsay grounds. The trial court sustained the objection and instructed Mr. Gold that he was not permitted to testify about what anyone told him. Mr. Gold later attempted to testify regarding a statement made by one of CNB’s attorneys. Again, counsel for CNB lodged a hearsay objection, which was sustained. The Golds maintain that these out-of-court statements were not hearsay because “the testimony was not an attempt to prove the truth of what was said. Rather, the testimony was given to prove what was said.” Appellants’ Brief at 18. However, the Golds have not proffered an alternative purpose for which the statements should have been introduced, other than for their truth, and we are unable to discern one. Accordingly, we find no abuse of discretion in the exclusion of these statements.

Finally, the Golds assert that the value of the personal property which CNB obtained through its acquisition of the real property should have been considered in determining the amount of the deficiency judgment. This Court’s scope of review in a deficiency judgment proceeding is limited to a determination of whether there is sufficient evidence to sustain the holding of the hearing judge as to the fair market value of the property sold, or whether the court committed a reversible error of law. First Pa. Bank N.A. v. Pace Valley Lakeside Community and Agric Trust, Inc., 329 Pa.Super. 218, 478 A.2d 42 (1984).

Contrary to the Golds’ assertions, 42 Pa.C.S. § 8103 does not require a judgment creditor to take into consideration the value of the debtor’s personal property remaining on the property. Rather, it requires only that the court determine the fair market value of the “real property sold.” 42 Pa.C.S. § 8103(a). In fact, the Golds concede in their brief filed with this Court that “[t]here is no provision in Pennsylvania law that indicates the appropriate procedure for determining the value of personal property obtained by a secured creditor who executes against realty.” Appellants’ Brief at 20.

Our supreme court has held that, when determining the fair market value of a given piece of property, proper factors to consider include: (1) recent sales of realty of comparable location and description; (2) uses to which the realty is adapted and might be reasonably applied; (3) demand for the realty and income produced by it; and, (4) all elements which might affect its actual value. Union Nat’l Bank v. Crump, 349 Pa. 339, 37 A.2d 733 (1944). In the present case, both parties submitted briefs on the issue of fair market value and presented expert testimony in the form of professional appraisals. Further, the trial court allowed Mr. Gold to testify as to the value of the personal property that remained on the premises. In light of all of the evidence, the trial court determined that the fair market value of the property was $59,000. After reviewing the record, we find no abuse of discretion or error of law in this determination.

Based on the foregoing, we affirm the order of the trial court, which fixed the fair market value of the property at $59,000.

Order affirmed.


author: HIJDOCK, Judge:

text:
    653 A.2d 1249
    Patricia A. ALLEN and Robert C. Allen, H/W, Appellees, v. Robert J. KAPLAN, D.P.M., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1993.
    Filed Jan. 31, 1995.

      Alan S. Gold, Elkins Park, for appellant.
    Yale F. Edeiken, Allentown, for appellees.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   HIJDOCK, Judge:

This is an appeal from the order granting Appellees a new trial on the basis of negligence and informed consent. This matter was before us previously on appeal from an order disposing of post-trial motions. We remanded to the trial court for a complete disposition of post-trial motions which were only partially ruled upon prior to the earlier appeal, 433 Pa.Super. 647, 639 A.2d 835. The trial court has subsequently granted the new trial and denied Appellant’s exceptions. We affirm.

This action for negligence and lack of informed consent was brought by Appellees following treatment provided to Mrs. Allen for bunions. Initial surgery was performed by Appellant, and two subsequent surgeries were performed by other physicians. Mrs. Allen alleged that the surgery performed by Appellant was done negligently, and Appellant failed to obtain informed consent before performing the surgery. A jury trial was held and, at the conclusion, the jury returned a verdict in favor of Appellant, finding no negligence. The trial court then entered the verdict. Appellees filed post-trial motions which were granted, giving rise to the order for a new trial. The court then stated that its order would become final unless exceptions were filed within twenty days. Appellant filed exceptions, and, following a hearing on the exceptions, the court entered the order granting Appellees a new trial.

Appellant raises the following issues in his appeal:

1. Does a plaintiff preserve his objection that an expert’s report constitutes inadmissible hearsay when the plaintiffs counsel makes a specific objection on another ground never mentioning hearsay?
2. Should a new trial be granted when an expert reads into evidence the report of a non-testifying expert upon which the testifying expert relied in reaching his opinion?
3. Is a party entitled to a new trial based upon the admission into evidence of a report of a non-testifying expert that constituted hearsay when the party failed to show that the hearsay affected the outcome of the trial?
4. Can a new trial be granted based upon the alleged misconduct of defense counsel concerning the availability of an expert to testify when it had no affect on the admissibility of the report or the verdict of the jury and when the evidence failed to show misconduct?
5. Did the trial court err in granting a new trial on the issue of informed consent?

Appellant’s Brief at p. 3.

Our standard of review for the grant of a new trial requires us to examine the reasoning of the court: absent manifest abuse of discretion or an error of law, we will not disturb the decision of the lower court.

Carlson Mining Co. v. Titan Coal Co., Inc., 343 Pa.Super. 364, 366, 494 A.2d 1127, 1128 (1985) (citation omitted).

Appellant’s first four issues concern the admission of testimony by Dr. Kieran T. Mahan. We will address them together. Dr. Mahan was called as an expert witness by the defense. Dr. Mahan testified on direct examination that he relied upon various reports prepared by other experts involved in the case. He stated that he did not agree with a number of those reports, and testified to the areas of those reports with which he disagreed. At one point during his testimony, he indicated that he reviewed two reports prepared by Dr. Vernick, an orthopedic surgeon. Dr. Mahan testified that he reviewed an initial report of Dr. Vernick. Dr. Vernick also prepared another report shortly before trial. Dr. Vernick’s second report referred to the conclusions originally drawn by Dr. Mahan in response to Dr. Vernick’s first report. Dr. Mahan stated that Appellant’s conduct had not fallen below the standard of care required in this case. At trial, when Dr. Mahan was asked which reports he relied upon in forming his opinion testimony, he read into the record the contents' of Dr. Vernick’s second report. It is the only place in the record to which we have been guided which quotes from an expert’s report. We also note that Dr. Mahan was not a treating physician, but, rather, was employed by Appellant for purposes of providing expert testimony.

The law in Pennsylvania is well-settled that a medical witness may “express opinion testimony on medical matters based, in the expert customarily relies upon in the practice of his profession.” Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971). In providing expert testimony, however, the expert witness may not act “as a mere conduit or transmitter of the content of an extrajudicial source.” Primavera v. Celotex Corp., 415 Pa.Super. 41, 52, 608 A.2d 515, 521 (1992), alloc. den., 533 Pa. 641, 622 A.2d 1374 (1993).

In our case, Dr. Mahan testified at trial, relying upon numerous reports of treating physicians and plaintiffs’ expert witnesses, including the two reports of Dr. Vernick.

After listing the reports upon which Dr. Mahan based his opinion, he stated with regard to the two reports by Dr. Vernick:

[DR. MAHAN]: It’s a very brief report. Basically it says that, quote, “I believe that the patient’s present complaints are secondary to excision of the second metatarsal head, with resultant deformity. My feeling is that the course of treatment, as rendered by Dr. Kaplan, was satisfactory. I’m in agreement with Dr. Kieran T. Mahan, in regard to his explanation pertaining to the functional impairment that the patient has in reference to her right foot.” I think the significance is that this is an orthopedist, who is a member of an Orthopedic — of the Orthopedic Foot and Ankle Society, who is stating that there’s not a deviation from the standard of care.

N.T., Direct Examination, Dr. Mahan, pp. 32-33. Shortly after he read the contents of Dr. Vernick’s report, Dr. Mahan testified as follows:

[DR. MAHAN]: Well, in reviewing the — one of the reasons that I elected to take this case and review, was because I was so concerned with the types of reports that I saw. For example, a report by Dr. Shane, who is a pathologist, in my judgment, came to conclusions about foot surgery that he was not only inaccurate about, but really not qualified to be making those kinds of conclusions. Some of them also were factual errors regarding, for example, Dr. Flanigan’s report where he indicated that the patient was not immobilized in a surgical shoe, when, in fact she was. Which would be the standard of care both for the hallux valgus surgery, the bunion surgery, and for the metatarsal surgery.

N.T., Direct Examination, Dr. Mahan, p. 36. It is clear when Dr. Mahan’s testimony is read as a whole that a large portion of his testimony disagreed with and criticized the reports of the other doctors involved. Dr. Mahan’s reading of Dr. Vernick’s second report essentially bolsters Dr. Mahan’s credibility because Dr. Vernick’s report agreed with Dr. Mahan’s findings. As we stated in Cooper v. Burns, 376 Pa.Super. 276, 289, 545 A.2d 935, 941 (1988), alloc. den., 522 Pa. 619, 563 A.2d 888 (1989), “[b]y stating that [the reporting, non-testifying doctor] had confirmed [the testifying doctor’s] diagnosis, [the testifying doctor] was permitted to corroborate his own medical opinion by improper hearsay. [The reporting doctor] was not subjected to cross-examination concerning his diagnosis, and the jury was not able to assess his credibility or his qualifications.” We find that our present case is akin to Cooper because Dr. Mahan should not have been permitted to read into evidence that portion of Dr. Vernick’s report which corroborated his opinion. Therefore, the trial court properly granted Appellees’ motion for a new trial based on the improper admission of hearsay testimony not subject to an exception.

Finally, we address Appellant’s fifth issue, whether the trial court erred in granting Appellees a new trial on the informed consent issue. Appellant contends that Appellees have failed to claim any error in their post-trial motions to support granting a new trial on the informed consent issue. The record reveals that Appellees’ post-trial motion, in item three (3), does raise the issue of error by the trial court in its ruling on the motion in limine concerning whether they would be permitted to examine Appellant on his conviction for writing improper prescriptions for controlled substances. In this issue, Appellees claim that Appellant’s credibility was at issue on whether or not he properly obtained an informed consent from Mrs. Allen. Similarly, they claimed that whether Appellant had a substance abuse problem, with subsequent conviction, directly impacted on his ability to remember and testify completely about his business practices and records.. Appellees further claimed that, without the ability to cross-examine Appellant on this conviction and the fact that he had surrendered his license to practice in New Jersey and Pennsylvania, the jury was left with the improper impression that Appellant was still a licensed podiatrist.

Essentially, the issue raised here is whether the conviction for a violation of 35 Pa.S. § 780-113(a)(13) constitutes crimen falsi and is, therefore, admissible against Appellant as impeachment of his credibility. The rule of law in Pennsylvania concerning the admission of prior convictions as impeachment evidence in criminal cases is

... evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). In Russell v. Hubicz, 425 Pa.Super. 120, 624 A.2d 175 (1993), alloc. den., 535 Pa. 670, 634 A.2d 1117, our Court held that the same rule applies to civil cases. The trial court in our present case determined that the conviction here was not a crime involving dishonesty or false statement, but held that, in balancing the probative value against the prejudicial effect, the conviction was “far more inflammatory than probative.” Trial Court Opinion, March 9, 1994, at p. 4. Consequently, the trial court reaffirmed its decision to grant Appellant’s motion in limine and to exclude any reference to the conviction.

We disagree that the conviction here was not a crime involving dishonesty or false statement.

Pennsylvania courts have indicated that perjury, bribery, burglary, criminal trespass, larceny, theft, retail theft, unauthorized use of a motor vehicle, and theft by receiving stolen property are crimes involving dishonesty or false statement. Conversely, statutory rape, aggravated assault, disorderly conduct, driving while under suspension, resisting arrest, fornication, pandering, prostitution, corrupting the morals of a minor, deviate sexual intercourse, and assault with intent to kill and murder do not constitute crimes of dishonesty or false statement.

Leonard Packel and Anne Poulin, Pennsylvania Evidence § 609 (1987 and Supp.1994) (footnotes omitted). This summary does not contain drug violations in either category, and the decisions pertaining to whether an offense is crimen falsi are few in number. In 1981 our Court held in Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981), that the offense involved was not crimen falsi We are unable to determine from the opinion precisely what the offense was, but the appellant therein admitted to having been convicted on a marijuana charge. Candía has been generally cited for the proposition that drug convictions are not crimen falsi See Commonwealth v. Rhodes, 405 Pa.Super. 570, 592 A.2d 1360 (1991); Commonwealth v. Hayes, 314 Pa.Super. 112, 460 A.2d 791 (1983) (dissenting opinion, Spaeth, J.); Commonwealth v. Vickers, 260 Pa.Super. 479, 394 A.2d 1027 (1978). When taken on their particular facts, however, they are of little assistance under our present facts, because the crimes there involved the possession or sale of drugs.

In a federal decision of the Second Circuit Court of Appeals, United States v. Hayes, 553 F.2d 824 (1977), cert. den., 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143, the court held that importation of cocaine was not clearly crimen falsi, but could be if the particular facts demonstrated that the importation involved false written or oral statements on customs forms. Id. at 827-828. In weighing the effect on credibility of various drug violations, the court held that smuggling “ranks relatively high on the scale of veracity-related crimes,” Id. at 828, but that mere narcotics possession would be less highly ranked on that same scale. Id. The court also held that the sale of narcotics might fall between the two. Id. at n. 8. In the Second Circuit’s analysis of Federal Rule of Evidence 609(a)(2) (use of conviction involving dishonesty or false statement), the court held that, because the use of crimen falsi convictions, was not discretionary, “Congress would define narrowly the words ‘dishonesty or false statement,’ which, taken at their broadest, involve activities that are part of nearly all crimes. Hence Congress emphasized that the second prong was meant to refer to convictions ‘peculiarly probative of credibility,’ such as those for ‘perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.’ Conf.Rep. No. 93-1597, 93d Cong., 2d Sess. 9, reprinted in [1974] U.S.Code Cong. & Ad.News 7098, 7103.” Id. at 827 (footnote omitted).

The list of crimes contained above bears some distinct resemblance to the list of crimes which Pennsylvania has also determined to be crimen falsi Given this analytical background, we turn now to the crime involved in the present case. Appellant was convicted, essentially, of writing prescriptions for a controlled substance to himself, knowing he had a chemical dependency problem. The crime itself involves making a false statement because it necessarily involves the falsification of a prescription by a practitioner representing that it is not for a person who is chemically dependent. Because of the very nature of the offense committed, we must find that the crime is crimen falsi and, because the conviction is admitted to have occurred within ten (10) years of the matter involved, evidence concerning it should have been admitted at trial. It was error, therefore, for the trial court to have excluded the evidence. Likewise, it was error, under Russell v. Hubicz, supra, and Commonwealth v. Randall, supra, for the court to have found that the crime was not crimen falsi and to have therefore performed a balance between probative value and prejudicial effect. The evidence was automatically admissible. Furthermore, because the testimony of Appellant concerning both his course of treatment under the negligence claim, and his business practices regarding whether or not he obtained a valid informed consent from Mrs. Allen, bear on the credibility of Appellant, the grant of a new trial must extend to both the issue of informed consent and negligence, permitting introduction of the permissible evidence concerning Appellant’s prior conviction.

Order affirmed and case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.

      . Appellant asserts that Appellees failed to preserve their claim by an appropriate objection at trial. After reviewing the relevant portions of the transcript, we disagree. It is clear that the court was concerned, at the time the testimony regarding Dr. Vernick’s report was raised, that Dr. Vernick’s presence as a witness was at issue. It was Appellant's counsel's representations that he expected Dr. Vernick to testify that prompted the trial court to permit the testimony.
      After it became apparent that Dr. Vernick would not testify, the court, in its discretion, found that the testimony given by Dr. Mahan, with reference to Dr. Vernick’s report, unfairly prejudiced the verdict and, therefore, granted the motion for a new trial. We agree with this assessment because the credibility of the experts was crucial to the outcome of this case, given their conflicting testimony.
      While we do not condone the actions of Appellant’s counsel with regard to the whereabouts of Dr. Vernick, we express no opinion about whether Appellant’s attorney committed misconduct in his representations before the court, as that does not effect our ultimate decision that the trial court permitted inadmissible hearsay.

      . This section reads as follows:
      (13) The sale, dispensing, distribution, prescription or gift by any practitioner otherwise authorized by law so to do of any controlled substance to any person known to such practitioner to be or whom such practitioner has reason to know is a drug dependent person, unless said drug is prescribed, administered, dispensed or given, for the cure or treatment of some malady other than drug dependency, except that the council, in accordance with Federal narcotic and food and drug laws, shall allocate the responsibility for approving and designating certain clinics, and shall provide or allocate the responsibility for providing regulations for such clinics at which controlled substances, including but not limited to methadone, may be prescribed, administered or dispensed for the treatment of drug dependency. This clause shall not prohibit any practitioner from prescribing, distributing or dispensing any controlled substance for a period of time not to exceed fourteen days pending confirmed admission of the patient to a hospital or rehabilitation center.
      35 P.S. § 780-113(a)(13).

      . We note that in Russell, the court expressly adopted the Randall rule but, in dicta, attempted to apply Federal Rule of Evidence 609, which permits the use of non crimen falsi crimes after the court balances the probative value against the prejudicial effect. We are not bound to follow this dicta and adhere to our Supreme Court's holding that only crimen falsi convictions may be admitted to impeach a witness’ credibility.

      . Furthermore, as we stated above, because there was no dispute about the conviction being less than ten years old, the court should not have performed a balancing of interests here.

      . Although we recognize that decisions of the circuit courts are not binding precedent, and the Hayes decisipn is based upon the federal rules of evidence, the analysis is well-reasoned and helpful to our analysis.

      . We note, however, that
      evidence of a prior conviction, if introduced solely to impeach a defendant’s credibility, should "... be limited to the name, time and place and punishment received in the prior offense, in order to minimize the potential prejudice and distraction of issues already inherent in the mention of prior offenses.” Commonwealth v. Albright, 226 Pa.Super. 506, 510, 313 A.2d 284, 286 (1973).

        Commonwealth v. Jones, 250 Pa.Super. 98, 108, 378 A.2d 471, 477 (1977). See also Commonwealth v. Oglesby, 274 Pa.Super. 586, 591, 418 A.2d 561, 564 (1980).


author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    653 A.2d 1254
    In re PETITION TO RELEASE ADOPTION RECORDS PURSUANT TO 23 PA.C.S. 2905. Appeal of Jo Ann KASPAREK.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1994.
    Filed Jan. 31, 1995.

      L. Abraham Smith, Greensburg, for appellant.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In this appeal from an order furnishing limited information to an adoptee pursuant to 23 Pa.C.S. § 2905(b), we are asked to decide whether additional information could have been disclosed without endangering the anonymity of the biological parents.

Joann Lehman, having been born on January 25, 1958, was adopted by Robert and Marjorie Lehman by decree entered April 4, 1962, in the Orphans’ Court of Westmoreland County. When she subsequently was married, she took the name of her husband and became known as Jo Ann Kasparek.

On February 11, 1994, Jo Ann Kasparek filed a petition requesting that the Court release all information regarding her adoption which would not reveal the identity of her birth parents. The court made an in camera review of the record in the adoption case and, by order dated February 11, 1994, divulged the following information:

1. That the Petitioner’s natural mother was twenty-one (21) years old at the time of the adoption and was a member of the Catholic church; and
2. That the Petitioner’s natural father was over the age of twenty-one at the time of the adoption and was a member of the Presbyterian church.

To disclose any further information, the court held, would endanger the anonymity of the biological parents. Kasparek appealed. She contends that additional information can be released without endangering the anonymity of her biological parents.

“Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court.” Foflygen v. R. Zemel, M.D. (PC), 420 Pa.Super. 18, 28, 615 A.2d 1345, 1350 (1992), allocatur denied, 535 Pa. 619, 629 A.2d 1380 (1993). See also: Jenkins v. Hospital of Medical College of Pennsylvania, 535 Pa. 252, 259, 634 A.2d 1099, 1102 (1993); Adoption of G.M., 484 Pa. 24, 27, 398 A.2d 642, 643 (1979); Appeal of Gannon, 428 Pa.Super. 349, 360, 631 A.2d 176, 181 (1993). “A final order is one which ends the litigation or, alternatively, disposes of the entire case.” Schwartz v. Schwartz, 411 Pa.Super. 282, 284, 601 A.2d 349, 351 (1992). See also: Jenkins v. Hospital of Medical College of Pennsylvania, supra at 259, 634 A.2d at 1102; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977); In Interest of K.B., 432 Pa.Super. 586, 589, 639 A.2d 798, 800 (1994). The appealability of an order goes to the jurisdiction of the court and may be raised by the court sua sponte. See: Weir v. Weir, 428 Pa.Super. 515, 519-520, 631 A.2d 650, 652 (1993); Fetter v. Schwartz, 412 Pa.Super. 152, 153-154, 602 A.2d 1354, 1355 (1992); Drohan v. Sorbus, Inc., 401 Pa.Super. 29, 34, 584 A.2d 964, 966 (1990); Jonas v. Wiesmeth Const. Co., 360 Pa.Super. 173, 176, 520 A.2d 40, 41 (1987). The trial court’s order disclosing limited information regarding appellant’s adoption effectively ended the litigation in the trial court with respect to appellant’s petition and prevented the disclosure of further information. We conclude, therefore, that the order was final for purposes of appeal.

The Pennsylvania Adoption Act, 23 Pa.C.S. § 2101 et seq., provides generally that adoption records shall be “withheld from inspection except on an order of court granted upon cause shown”. 23 Pa.C.S. § 2905(a). On December 12, 1984, Section 2905 of the Act was amended to provide, in part, as follows:

(b) Petition to court for limited information. — Upon petition by any adoptee at least 18 years of age or, if less than 18, his adoptive parent or legal guardian to the court in the judicial district in which the permanent records relating to the adoption have been impounded, the court shall furnish to the adoptee as much information concerning the adoptee’s natural parents as will not endanger the anonymity of the natural parents. The information shall first be reviewed, in camera, by the court to insure that no information is revealed which would endanger the anonymity of the natural parents. The court shall, upon motion of the adoptee, examine the entire record to determine if any additional information can safely be revealed without endangering the anonymity of the natural parents.

23 Pa.C.S. § 2905(b).

“The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). See also: Cherry v. Pa. Higher Educ. Assistance, 537 Pa. 186, 189, 642 A.2d 463, 465 (1994); Hatfield v. Continental Imports, Inc., 530 Pa. 551, 560-561, 610 A.2d 446, 450-451 (1992); Gutman v. Worldwide Ins. Co., 428 Pa.Super. 309, 313, 630 A.2d 1263, 1265 (1993); Bankers Trust Co. v. Foust, 424 Pa.Super. 89, 96, 621 A.2d 1054, 1058 (1993), allocatur denied, 535 Pa. 635, 631 A.2d 1007 (1993). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). See also: Walker v. Fennell, 426 Pa.Super. 469, 472, 627 A.2d 771, 773 (1993); Coy v. Ford Motor Credit Co., 422 Pa.Super. 76, 80, 618 A.2d 1024, 1026 (1993); Commonwealth v. Reeb, 406 Pa.Super. 28, 32, 593 A.2d 853, 855 (1991), allocatur denied, 530 Pa. 665, 610 A.2d 45 (1992); Cooke v. Travelers Ins. Co., 350 Pa.Super. 467, 470, 504 A.2d 935, 936 (1986).

Adoption records were initially sealed to protect the best interests of the adoptee. At least during the adoptee’s childhood, sealed records are generally considered by most authorities to be in the best interests of the adoptee. Some courts have found that the birth parents also have a constitutionally based privacy interest in keeping adoption records sealed. See: Mills v. Atlantic City Dept. of Vital Statistics, 148 N.J.Super. 302, 372 A.2d 646 (1977). Then, too, adoptive parents have an interest in keeping the record sealed, for after raising the child, they do not wish to lose their place in his or her life. Finally, the state has an interest in keeping adoption records sealed. It seeks to accomplish three goals: (1) to protect the welfare of the child; (2) to protect the adoptive family which the state has created; and (3) to ensure the integrity of the adoption process. See: Comment, “Severed Roots: The Sealed Adoption Records Controversy,” by Arndt, 6 Northern Illinois University Law Review, 103 et seq. (1986).

In more recent years, there has been increased movement to open adoption records in whole or in part as more adoptees, whether for health or psychological reasons, seek to learn more about their biological parents. See: Axelrod v. Laurino, 145 Misc.2d 818, 548 N.Y.S.2d 405 (1989). It was in response to these concerns that the legislature enacted 23 Pa.C.S. § 2905(b). The general terms of the statute, however, leave much for interpretation by the courts, and it is readily apparent that information which can be safely disclosed will have to be developed on a case by case basis.

In New York, the Public Health Law attempts to identify information which can safely be disclosed in the following manner:

“For the purposes of this section, the term ‘non-identifying information’ shall only include the following information, if known, concerning the parents of an adoptee:
(a) Age of the parents in years, at birth of such adoptee.
(b) Heritage of the parents, which shall include nationality, ethnic background and race.
(c) Education, which shall be the number of years of school completed by the parents at the time pf birth of such adoptee.
(d) General physical appearance of the parents at the time of the birth of such adoptee, which shall include height, weight, color of hair, eyes, skin .and other information of similar nature.
(e) Religion of parents.
(f) Occupation of parents.
(g) Health history of parents.
(h) Talents, hobbies and special interests of parents.
(i) Facts and circumstances relating the nature and cause of the adoption.
(j) Name of the authorized agency involved in such adoption.

Public Health Law § 4138-c, subd. 3(a) — (j)- Similarly, a South Carolina statute provides as follows:

As used in this subsection “nonidentifying information” includes but is not limited to the following:
1. the health and medical histories of the biological parents;
2. the health and medical history of the adoptee;
3. the adoptee’s general family background without name references or geographical designations; and
4. the length of time the adoptee has been in the care and custody of the adoptive parent.

Code 1976, § 20-7-1780(D). Finally, in Illinois, provision is made for the release of the following information to an adoptee who is at least 18 years of age:

(i) age of biological parents; (ii) their race, religion and ethnic background; (in) general physical appearance of biological parents; (iv) their education, occupation, hobbies, interests and talents; (v) existence of any other children born to the biological parents; (vi) information about biological grandparents; reason for emigrating into the United States, if applicable, and country of origin; (vii) relationship between biological parents; and (viii) detailed medical and mental health histories of the child, the biological parents, and their immediate relatives. However, no information provided under this subsection shall disclose the name or last known address of the biological parents, grandparents, the siblings of the biological parents, or any other relative of the adopted.

750 ILCS § 50/18.4.

These statutes, obviously, have no controlling effect on the information to be divulged by a Pennsylvania court in response to a petition under the Pennsylvania statute. Because the issue in this appeal is one of first impression, however, and because the Pennsylvania statute offers so very little assistance to courts called upon to make these difficult decisions, this Court has looked to the New York, South Carolina and Illinois statutes for some guidance.

After making an independent review of the record in the adoption case, which record the hearing court properly impounded, we are able to make the following observations. First, the trial court has already disclosed the ages of appellant’s biological parents insofar as such ages were disclosed at the adoption hearing. The religious persuasions of the biological parents, however, were incorrectly stated by the trial court. The record reveals that the biological mother was Presbyterian; and, although the father’s religion was found by the adoption court to be unknown, in at least one document his religion was alleged to be Catholic.

Secondly, we observe that the record of the adoption proceedings fails to contain a history of the health, education and occupation of the birth parents or of their personal characteristics, talents, hobbies or special interests.

Finally, there is additional information which, after careful consideration, we have determined to be subject to disclosure without endangering the continued anonymity of appellant’s biological parents. This information includes the race of the birth parents, the general health of appellant at the time of her adoption, the general circumstances relating to the relationship between the biological parents and the reasons for the adoption and, finally, the length of time appellant was in the custody of the adoptive parents prior to adoption.

In view of the foregoing, we will vacate the order of the trial court and remand for the release of additional information as hereinbefore recited. With respect to the circumstances relating to the cause of the adoption, it is important that only general information be disclosed. Such general information, we believe, can be disclosed to appellant without any danger whatsoever to the continued anonymity of the birth parents.

The order of the trial court is vacated and the case is remanded to permit the trial court to disclose to appellant information appearing in the records of her adoption regarding the race of the birth parents, the general health of appellant at the time of her adoption, the general circumstances relating to the relationship between the biological parents and the reasons assigned for the adoption and, finally, the length of time appellant was in the custody of her adoptive parents prior to adoption. Jurisdiction is not retained.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring.

We respectfully concur. The majority correctly holds that the Pennsylvania Adoption Act mandates the court to furnish the adoptee with all information about the natural parents save for that which would endanger their anonymity. The limited and erroneous information the Orphans’ Court released falls short of living up to the spirit or the letter of the Act.

We write separately, however, to emphasize that we should not reverse a decision of the Orphans’ Court without finding an abuse of discretion. In re Estate of Braun, 437 Pa.Super. 372, 650 A.2d 73 (1994); In re Benson, 419 Pa.Super. 582, 615 A.2d 792 (1992). Our standard of review bears repeating:

Our standard of review from a final order of the Orphans’ Court Division requires that we accord the findings of an Orphans’ Court, sitting without a jury, the same weight and effect as the verdict of a jury; we will not disturb those findings absent manifest error; as an appellate court we can modify an Orphans’ Court decree only if the findings upon which the decree rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent evidence.

Id. at 584, 615 A.2d at 793 (citations omitted). The majority, in its legitimate concern to dispense justice in a delicate area of first impression, has overlooked just how stringent is this standard. Accordingly, we would not remand this case to the Orphans’ Court with instructions as specific as the majority here sets forth.

First, if our legislature wanted to have guidelines as categorical as those in the statutes of our sister states, it would have included them in the Adoption Act. It did not. The Orphans’ Court judge, therefore, as the trier of fact, is to be given as much leeway in applying his discretion as possible. Quoting a statute as fully particularized as New York’s may give the erroneous impression that our courts, when deciding what information should be released to an adoptee, should always take into account the laundry list of items specified in the majority’s opinion. While this may not be the majority’s intent, we write separately to clarify any confusion today’s opinion may engender.

The majority writes that “because the Pennsylvania statute offers so very little assistance to courts called upon to make these difficult decisions, this Court has looked to the New York, South Carolina, and Illinois statutes for some guidance.” Majority opinion at 7. On the contrary, the legislature has clearly spoken on this issue. The courts should release as much information as does not infringe upon the anonymity of the natural parents. What information that may specifically be is a determination within the sound discretion of the Orphans’ Court.

Secondly, by itemizing the information the court should have released to appellant, we not only come perilously close to re-writing the Adoption Act, we also usurp some of the discretionary powers of the court below. An abuse of discretion is never simply a matter of an error in judgment, nor is it determined by merely our re-weighing of the evidence. See P.L.E. Appeals § 411. The Orphans’ Court judge, as trier of fact, sits closer than we do to the parties involved and to the community from which the controversy arises, and can better determine what information might impermissibly reveal the identities of the natural parents.

Nevertheless, the Orphans’ Court was exceedingly stingy, and inaccurate, in the information it did release. For these reasons, we would correct the erroneous information and remand for further consideration, but we would not cite a litany of particulars to be divulged to appellant unless the Orphans’ Court failed, once again, to adequately support its reasons for not revealing to appellant any additional accurate information.