author: CERCONE, Judge:

text:
    603 A.2d 1064
    Richard P. FENNELL and Frances Fennell, His Wife, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Thomas Rossman.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed Feb. 28, 1992.

      Darrell L. Kadunce, Butler, for appellants.
    Michale J. Kearney, Jr., Pittsburgh, for appellees.

      Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge:

Richard P. and Frances Fennell, appellants, appeal the order of the Court of Common Pleas of Butler County which granted a motion for summary judgment in favor of appellees, Nationwide Mutual Fire Insurance Company (Nationwide) and Thomas Rossman. We affirm.

The basic facts of this case are not in dispute. On March 5, 1985, appellants purchased from Nationwide a fire and other hazards insurance coverage package known as the “Elite II Home Owner’s Policy.” Thomas Rossman, Nationwide’s agent, recommended the package to appellants. The policy provided the following insurance coverage for loss of appellant’s property: (1) up to one hundred eleven thousand, three hundred dollars ($111,300) for their home; (2) up to eleven thousand, one hundred thirty dollars ($11,130) for other structures on the property; (3) up to seventy-seven thousand, nine hundred ten dollars ($77,910) for their personal property; and (4) 100% coverage for loss of the use of their home.

The policy provided that in the event of a loss, appellants would be entitled to the replacement cost of their residential dwelling without deduction for depreciation, subject to the following two conditions:

(1) When the cost to repair or replace the damage is more than $1,000 or more than 5 percent of the amount of insurance in this policy on the building, whichever is less, we will pay no more than the actual cash value of the damage until repair or replacement is made.
(2) You may claim loss or damage to buildings on an actual cash value basis. You may make claim within 180 days after loss for any added loss on a replacement cost basis.

Policy, at 9. In addition, the policy also included the following limitation:

Suit Against Us. No action can be brought unless there has been compliance with the policy provisions and the action is started within one year after the date of loss or damage.

Id.

On May 31, 1985, devastating tornados swept across Pennsylvania destroying appellants’ home, swimming pool, and all outbuildings on their premises. Nationwide received appellants’ claim for loss on June 1, 1985. On June 12, 1985, Nationwide issued appellants a check for one hundred eleven thousand, three hundred dollars ($111,300.00) for their residential dwelling claim, plus an additional five thousand dollars ($5,000) for debris removal. In April, 1986, appellants purchased a new home at a different location. Finally, on July 31,1986, Nationwide paid appellants eighty-two thousand, nine hundred ten dollars ($82,910.00) to compensate appellants for damage to their personal property.

On August 13, 1987, appellants commenced this action to: (1) recover the costs of additional living expenses incurred as a result of the loss of their property; (2) recover the full replacement value of their home; and (3) recover damages for the emotional distress purportedly caused by Nationwide’s agent, Thomas Rossman. Appellees filed a counterclaim seeking compensation for unjust enrichment of appellants through an overpayment of their insurance claim, and through appellants’ breach of the Elite II insurance contract. Appellees filed a motion for summary judgment as to appellants’ claims arguing that appellants’ cause of action is barred by the policy’s one-year limitation on the filing of lawsuits. Appellees’ motion for summary judgment did not include their counter-claims. The lower court granted appellees’ motion for summary judgment based upon the one-year limitation set forth in the policy. This timely appeal followed.

Appellants raise the following issues for our review:

1. Did the Lower Court err in granting summary judgment to the defendant, Thomas Rossman?
2. Did the Lower Court err in failing to consider emotional distress damages as to the Defendant, Thomas Rossman?
3. Did the Lower Court err in granting summary judgment based on Plaintiffs’ alleged failure to file suit within one year of loss?

We will address these issues in order.

Appellants first argue that the trial court erred in granting summary judgment in favor of appellee, Thomás Ross-man. We note that when reviewing an entry of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a clear abuse of discretion. Green v. K & K Insurance Co., 389 Pa.Super. 73, 74, 566 A.2d 622, 623 (1989). In deciding a motion for summary judgment, the trial court must examine the record in a light most favorable to the non-moving party, and in doing so accept as true all well-pleaded facts relevant to issues in the non-moving party’s pleadings giving him the benefit of all reasonable inferences to be drawn therefrom. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989).

Summary judgment shall be granted where the pleadings, depositions, answers to interrogatories and admissions on file, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rosenberg v. Nicholson, 408 Pa.Super. 502, 503, 597 A.2d 145, 146 (1991); McCain v. Pennbank, 379 Pa.Super. 313, 317-18, 549 A.2d 1311, 1313 (1988); Gabovitz v. State Auto Insurance Association, 362 Pa.Super. 17, 22, 523 A.2d 403, 405 (1987), allocatur denied, 516 Pa. 634, 533 A.2d 92 (1987). A party is not required to present his or her entire case in opposing a motion for summary judgment. Brecher v. Cutler, 396 Pa.Super. 211, 216, 578 A.2d 481, 483 (1990). However, appellants must present depositions, affidavits, or other acceptable documents demonstrating that there is a genuine issue of material fact to be submitted to the fact-finder. Id. “Bold unsupported assertions of conclusory accusations cannot create genuine issue of material fact.” McCain v. Pennbank, 379 Pa.Super. at 318, 549 A.2d at 1313-14.

Appellants contend that the insurance policy’s one-year limitation on lawsuits does not apply to their negligence claim against Rossman. We agree. However, we affirm the order of the trial court on other grounds. After scrupulously reviewing the record, we cannot conclude that appellants have asserted a genuine issue of material fact as to Rossman’s negligence.

The basic elements of a cause of action founded upon negligence are:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
2. A failure on his part to conform to the standard required.
3. A reasonably close causal connection between the conduct and the resulting injury____
4. Actual loss or damage resulting to the interests of another.

Prosser, Law of Torts, § 30 at 143 (4th ed. 1971) Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606, 612 (1985), allocatur denied 516 Pa. 638, 533 A.2d 710 (1987) (quoting Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432, 434 (1980). Count III of appellánts’ complaint sets forth the following charges:

30. The Plaintiffs, in purchasing the policy with Defendant Nationwide, relied upon the representations, information and advice of Defendant Rossman in determining the proper type and amount of insurance that they should purchase to insure their home, out buildings, and contents from natural disaster.
31. Defendant Rossman personally appeared on the premises owned by the Plaintiffs which were covered by the policy ... and inspected said premises and was aware of their type, construction, style and approximate worth.
32. The Plaintiffs established the policy limits which they purchased from Defendant based upon the advice and counsel of Defendant Rossman.
33. Plaintiffs have not been compensated under the terms of the policy sold to them by Defendant Ross-man for the value of their home, out buildings, swimming pool, and contents and to the contrary believe that they were underinsured in the approximate amount of $125,000.00.
34. As a result of the improper advice, counsel and representations of Defendant Rossman the Plaintiffs have incurred a loss of approximately $125,000.00 to the best of their information, knowledge and belief at this time.

Appellants Complaint, at 7-8 (emphasis omitted). However, the record is void of any evidence supporting appellants’ complaint. Appellants merely present unsupported accusations that Rossman offered improper advice, and that appellants were underinsured as a result of this advice. Appellants offer no evidence supporting their assertion that Ross-man breached his alleged duty of care, or that this breach caused appellants damage. Because appellants’ assertions are unsupported by any evidence in the record, we affirm the granting of summary judgment on this issue.

Appellants next argue that the trial court erred in failing to consider their claim for emotional distress damages caused by appellee Rossman. In D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), the Pennsylvania Supreme Court expressly refused to allow recovery in a claim for emotional distress damages based upon an insurer’s bad faith conduct. In D’Ambrosio, our supreme court disallowed a claim for emotional distress damages concluding that the Unfair Insurance Practices Act adequately covered the area of concern in such cases. Id., 494 Pa. at 508, 431 A.2d at 970. Although the D’Ambrosio case involved the alleged bad faith action of an insurance company, we hold the rationale equally applicable to the actions of the insurance agent in this case.

The Unfair Insurance Practices Act (act) provides that “[n]o person shall engage in this state in any trade practice which is defined or determined to be an unfair method of competition or an unfair deceptive act or practice in the business of insurance pursuant to this act.” 40 P.S. § 1171.4. Under the act, the Insurance Commissioner of Pennsylvania is empowered to investigate persons involved in the business of insurance. If after a hearing, the commissioner finds a violation, he may impose sanctions which include a cease-and-desist order, suspension or revocation of license, or even a judicial imposition of a civil penalty. 40 P.S. §§ 1171.9 and 1171.11.

In D’Ambrosio, the supreme court concluded that:

[T]he Unfair Insurance Practices Act ... applies not only to appellant’s attempt to recover punitive damages but also to his attempt to recover damages for “emotional distress.” An award of punitive damages unquestionably is a deterrent device, see Restatement (Second) of Torts § 908 (1965); Restatement (Second) of Contracts § 369 (Tent. Draft No. 14, March 1, 1979); one which is unnecessary in view of the present legislatively-created regulatory scheme. And in the vast majority of cases an award of emotional distress damages would accomplish no more than is already accomplished by the Unfair Insurance Practices Act.

Id., 494 Pa. at 508, 431 A.2d at 970 (emphasis in original). Later, this court determined that any form of judicial interference by the creation of a new cause of action would be unwarranted. Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 214, 529 A.2d 471, 475 (1987). We note that in D’Ambrosio, the supreme court suggested that emotional distress damages may be recoverable on a contract where “the breach is of such a kind that serious emotional disturbance was a particularly likely result.” D’Ambrosio, supra, 494 Pa. 501, 509 n. 5, 431 A.2d 966, 970 n. 5. However, this theory has not been adopted by Pennsylvania courts to date. Rodgers v. Nationwide Mutual Insurance Co., 344 Pa.Super. 311, 315, 496 A.2d 811, 815 (1985). Furthermore, we do not believe, according to the facts in this case, that the agent acted so wantonly or recklessly as to warrant recovery for emotional distress.

Finally, appellants argue that the trial court erred in granting summary judgment to Nationwide. Specifically, appellants allege that the policy’s one-year limitation on lawsuits is contrary to public policy. It would seem that appellants ignore the unbroken line of authorities upholding the limitations clause prescribed by statute. See General State Authority v. Planet Insurance Company, 464 Pa. 162, 165, 346 A.2d 265, 267 (1975) (policy provision setting twelve-month time limit on commencing suits to recover under insurance policy is valid and will be sustained); World of Tires, Inc. v. American Insurance Co., 360 Pa.Super. 514, 521, 520 A.2d 1388, 1391 (1987), allocatur denied, 516 Pa. 623, 532 A.2d 20 (1987) (twelve-month time limit is applicable absent actions by insurer which lead insured to believe that provision will not be enforced); Petraglia v. American Motorists Insurance Co., 284 Pa.Super. 1, 4-5, 424 A.2d 1360, 1362 (1981), aff'd, 498 Pa. 32, 444 A.2d 653 (1982) (one-year limitation on actions arising under insurance policy is valid and enforceable); Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super. 287, 294, 361 A.2d 375, 378 (1976) (insured not entitled to recovery where suit was brought after expiration of the twelve-month limitations period). There is no dispute that appellants commenced this action beyond the policy’s limitation period, “a period which runs from the date of the occurrence of the destructive event or casualty insured against.” Petraglia v. American Motorists Insurance Co., 284 Pa.Super. at 5, 424 A.2d at 1362.

Pennsylvania case law warrants judgment for appellees on this count unless the insurer led the insured to believe that the provision would not be enforced. World of Tires, Inc. v. American Insurance Co., 360 Pa.Super. at 521, 520 A.2d at 1391. Although appellants allege that the actions of Nationwide and Rossman induced them to delay bringing suit, we are constrained to agree with the trial court that appellants failed to produce any evidence supporting their assertion. Brecher v. Cutler, supra, 396 Pa.Super. at 215, 578 A.2d at 483. Therefore, the trial court properly granted appellees’ motion for summary judgment on this issue.

The order of the trial court granting summary judgment in favor of appellees is affirmed. The case is remanded for disposition of appellees’ counterclaims. Jurisdiction is relinquished.

      . Pursuant to 40 P.S. § 636, fire insurance policies are required to include the following language:
      "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.” Id. at § 636(2).

      . As an appellate court, we may affirm the decision of the lower court by reasoning different than that used by the lower court. McKenna v. Mooney, 388 Pa.Super. 298, 300, 565 A.2d 495, 496 (1989); Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354, 357 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987).

      . Act of July 22, 1974, P.L. 589, 40 P.S. § 1171.1-.15.

      . The Restatement of Contracts § 341 (1932) provides that:
      In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm and where it was the wanton or reckless breach of a contract to render a performance of such a character that the defendant had reason to know when the contract was made that the breach would cause mental suffering for reasons other than mere pecuniary loss.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    603 A.2d 1069
    Frank ADAMSKY and Laura Adamsky, His Wife v. Mack PICKNICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1992.
    Filed March 3, 1992.

      Thomas J. Graham, Washington, for appellant.
    David S. Posner, Washington, for appellees.
    Before TAMILIA, HUDOCK and BROSKY, JJ.
   TAMILIA, Judge:

Appellant/landlord, Mack Picknick, takes this appeal from the May 2, 1991 judgment awarding appellees/tenants $780, an amount equal to double their security deposit.

In June, 1988, appellees, Frank and Laura Adamsky, agreed to rent an apartment from appellant pursuant to an oral month-to-month lease. In October, 1988, after failing in several attempts to get in touch with appellant to request repairs, appellees installed a dead bolt lock on the front door of the apartment because the door would not adequately latch. They also installed a latch on the kitchen door leading to the garage. On November 1, 1988, appellees notified appellant by way of a certified letter that they would be vacating the premises on or about December 15, 1988. Appellees provided appellant with a forwarding address on the envelope of the letter. On December 9, 1988, appellees moved all of their belongings from the apartment and, on December 11, 1988, when appellant came to the vacated premises to inspect it, appellees attempted to turn over their keys to him and requested the return of their $390 security deposit. Appellant refused to accept the keys or return the security deposit, stating appellees had to produce paid utility bills for December. On December 29, 1988, appellant accepted appellees’ return of the keys but still did not return their security deposit. Instead, on January 26, 1989, appellant sent appellees a letter listing damages totalling $529.84, a sum of $139.84 in excess of the security deposit. The principal item was $490 to replace both the front and kitchen doors. Appellant’s foremost reason necessitating the change of doors was that the dead bolt on the front door was not in harmony with the doors in his other units and thus was not aesthetically pleasing.

Because their security deposit was never returned to them, appellees commenced proceedings against appellant and following awards for appellees by both a district justice and an arbitration board, appellant appealed. After a non-jury trial, the trial court awarded appellees damages worth double their security deposit. The court found appellant’s list of damages was untimely since appellees vacated the premises on December 9, 1988, and appellant failed to sustain his burden of proof as to the damages appellees caused to the apartment. The court also dismissed appellant’s counterclaim for actual damages. Following denial of post-trial motions and entry of judgment, this appeal was filed.

The Landlord and Tenant Act, 68 P.S. § 250.512, Recovery of improperly held escrow funds, is subject of appellant’s claims and states in relevant part:

(a) Every landlord shall within thirty days of termination of a lease or upon surrender and acceptance of the leasehold premises, whichever first occurs, provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable.
(b) Any landlord who fails to provide a written list within thirty days as required in subsection (a), above, shall forfeit all rights to withhold any portion of sums held in escrow, including any unpaid interest thereon, or to bring suit against the tenant for damages to the leasehold premises.
(c) If the landlord fails to pay the tenant the difference between the sum deposited, including any unpaid interest thereon, and the actual damages to the leasehold premises caused by the tenant within thirty days after termination of the lease or surrender and acceptance of the leasehold premises, the landlord shall be liable in assumpsit to double the amount by which the sum deposited in escrow, including any unpaid interest thereon, exceeds the actual damages to the leasehold premises caused by the tenant as determined by any court of record or court not of record having jurisdiction in civil actions at law. The burden of proof of actual damages caused by the tenant to the leasehold premises shall be on the landlord.
(e) Failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shad relieve the landlord from any liability under this section.

The primary issue before us is whether the trial court erred in rejecting appellant’s claims for damages to the leased premises, that is, did appellant have any legally valid reason to withhold the security deposit from appellees? We agree with the trial court appellant failed in his burden to prove any actual damages to the apartment. Appellant contends appellees damaged the aesthetic appearance of the property because of the unapproved addition of the deadbolt lock to the front door and the latch to the kitchen door. Because appellant wants all of his apartments to look exactly alike, he argues the charge to appellees of $490 for replacing the doors was justified.

Since the locks installed by appellees did not affect the operation of the doors and only changed their appearance slightly, appellees caused no actual damage to the doors. We hold the landlord improperly withheld the tenants’ security deposit under the facts of this case in which the only minor changes to the premises did not cause any damage but instead simply disturbed the subjective aesthetic sensitivities of the landlord. This is particularly true in this instance whereby appellees complained to appellant about the failure of the doors to latch securely, and appellant did nothing to rectify the situation causing appellees to install a deadbolt and latch for security purposes. We also note the doors had not been changed at the time of trial, almost two years after appellees vacated the premises. This brings into question the sincerity of the alleged affront to appellant’s aesthetic sensibilities requiring replacement of the two doors.

Next, appellant contends he should have been discharged from returning the security deposit because appellees never provided him with their new address in writing pursuant to section 250.512(e) of the Landlord and Tenant Act, supra. We do not dispute the trial court’s finding the appellees provided appellant with their new address on the envelope of the November 1, 1988 letter to appellant. Further, appellant’s statement to appellees on December 29, 1988, when he said he would get in touch with appellees within thirty days about the security deposit, evidences his knowledge of appellees’ new address. In addition, we find the lack of notice argument is tenuous at best since appellant’s reason for withholding the deposit was not because he did not have appellees’ new address, rather, he withheld it because he maintained there were damages for which he should be compensated.

Finally, appellant argues the trial court’s award was improper because surrender of the leasehold occurred December 29,1988, when appellees returned the keys to the premises to appellant, and, therefore, the list of damages mailed to appellees on January 26, 1989 was timely. We agree with the trial court’s determination the premises were surrendered December 9, 1988 because on that date the apartment was vacant and two days later the keys, although not accepted, were tendered. Therefore, the January 26, 1989 letter was untimely and appellant forfeited his right under the Landlord and Tenant Act, 68 P.S. § 250.-512(a) and (b), to withhold the security deposit or to sue appellees for damages. Even if we find appellees surrendered the premises on December 11, when the keys were tendered and refused, appellant’s written list of damages was still provided over two weeks beyond the thirty-day deadline. Nonetheless, this argument is moot because even if the list was properly provided within the thirty-day period of surrender, appellant still failed to show actual damages, which would justify retainer of the security deposit.

Accordingly, we affirm the trial court’s judgment in favor of appellees for $780 plus interest and all costs.

Judgment affirmed.

      . Appellant also argues the trial court neglected to take into account the costs of $26.50 for carpet cleaning and $3.37 for plumbing. We may not consider this contention as appellant failed to specifically raise the issue of these damages in his post-trial motions, and the trial court, in the best position to evaluate such a factual dispute, was never given a chance to resolve this claim. Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa.Super. 275, 556 A.2d 904 (1989); Pa.R.C.P. 227.1(1b).


author: WIEAND, Judge:

text:
    603 A.2d 1072
    COMMONWEALTH of Pennsylvania v. Derrick SINGLETON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 3, 1991.
    Filed March 3, 1992.

      Jeffry S. Pearson, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Derrick Singleton was tried non-jury and was found guilty of possession of cocaine and possession of cocaine with intent to deliver. Post-trial motions were denied, and Singleton was sentenced to serve a term of imprisonment for not less than three (3) years nor more than six (6) years and to pay a fine in the amount of fifteen thousand ($15,-000.00) dollars. On direct appeal from the judgment of sentence, Singleton argues that the trial court erred by refusing to suppress the cocaine and drug paraphernalia which had been seized by police from his apartment. More specifically, he contends that the warrant which authorized police to search his home was not supported by probable cause. Because we are satisfied that the search warrant was properly issued upon a showing of probable cause, we affirm thj judgment of sentence.

The courts in this Commonwealth employ a “totality of the circumstances” test, as enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for determining the existence of probable cause for the issuance of a search warrant. See: Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). See also: Commonwealth v. Johnston, 515 Pa. 454, 468, 530 A.2d 74, 80-81 (1987); Commonwealth v. Flaherty, 400 Pa.Super. 397, 401-402, 583 A.2d 1175, 1177 (1990); Commonwealth v. Echevarria, 394 Pa.Super. 261, 265, 575 A.2d 620, 622 (1990); Commonwealth v. Silverman, 373 Pa.Super. 274, 277, 541 A.2d 9, 10 (1988), appeal dismissed, 522 Pa. 510, 564 A.2d 160 (1989). This test was summarized by the Superior Court in Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985), affirmed, 517 Pa. 36, 534 A.2d 469 (1987), in the following manner:

The magistrate’s determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 547 (1983); Commonwealth v. Corleto, 328 Pa.Super. 522, 528, 477 A.2d 863, 866 (1984). “[A] magistrate is not required to find a prima facie showing of criminal activity but rather the probability of criminal activity. While the inquiry is restricted to the four corners of the affidavit, the affidavit is to be interpreted in a common-sense and realistic fashion.” Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983) (citations omitted). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Miller, 334 Pa.Super. 374, 382, 483 A.2d 498, 501-502 (1984), quoting Illinois v. Gates, supra 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also: Commonwealth v. Gray, supra 322 Pa.Super. at 46-47, 469 A.2d at 173.

Id. at 100, 501 A.2d at 666.

On appeal, “[t]he duty of a reviewing court is to ensure that the magistrate had a ‘substantial basis for concluding that probable cause existed.’ ” Commonwealth v. Fromal, 392 Pa.Super. 100, 114, 572 A.2d 711, 718 (1990), quoting Illinois v. Gates, supra, 462 U.S. at 288-289, 103 S.Ct. at 2332-2333, 76 L.Ed.2d at 548. See also: Commonwealth v. Gray, supra, 509 Pa. at 484, 503 A.2d at 925. “[A] trial court’s determination of probable cause is accorded the utmost deference on appeal.” Commonwealth v. Potter, 350 Pa.Super. 61, 67, 504 A.2d 243, 246 (1986).

In determining whether the warrant to search appellant’s apartment was issued upon a showing of probable cause, we must confine our inquiry to the information recited within the four corners of the affidavit submitted in support thereof. See: Pa.R.Crim.P. 2008; Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 891 (1991). Instantly, the affidavit of probable cause recited that Philadelphia Police Officer Karen Alba, the affiant, had received information from an office employee in the management office of the Southwark housing project to the effect that tenants had complained that a black male, who was known as “Fly,” was selling cocaine from 1000 South 4th Street, Apartment 1003. The affidavit further recited that Officer Alba had received information from a reliable informant, who had provided information during the prior two months which had led to two narcotics arrests, that Fly, identified as Derrick Singleton, was selling top quality cocaine and would be hosting a drug party on December 31, 1988 at his apartment. Finally, the affidavit stated that Officer Alba, while conducting surveillance of the 1000 building of the Southwark project on December 30, 1988, had stopped and questioned three men in the lobby of the building. Knowing that the three males did not reside in the building, Alba had asked them where they were going. One of the males, Keith Arthur, had replied that he was going to visit Fly. Alba then had asked him if he was going to purchase drugs. Arthur had replied affirmatively, and asked Officer Alba what she was going to do about it.

Based upon the above information, as set forth in the affidavit of probable cause, a search warrant was issued on December 31, 1988 for Apartment 1003, 1000 South 4th Street, in the Southwark housing project in South Philadelphia. Upon executing the warrant, police seized two plastic bags containing 24.6 grams of cocaine, seventeen vials containing crack cocaine, numerous items of drug paraphernalia and three hundred and six dollars in cash.

Appellant’s contention that the affidavit upon which the search warrant was issued had failed to establish probable cause was premised upon an averment that the information contained in the affidavit was hearsay and double hearsay, without any showing of the basis of knowledge of the various hearsay declarants. However, “[the law] is well settled that an affidavit may be based on hearsay and need not reflect direct personal observation of the affiant.” Commonwealth v. Klimkowicz, 331 Pa.Super. 75, 80, 479 A.2d 1086, 1088 (1984). Indeed, “an affidavit which contains hearsay upon hearsay need not be categorically rejected. Rather, ‘double hearsay’ must be evaluated in conjunction with the other information in the affidavit to determine whether the information is reliable.” Commonwealth v. Klinedinst, 403 Pa.Super. 605, 612, 589 A.2d 1119, 1123 (1991). See also: Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 454-455, 445 A.2d 1214, 1218 (1982); Commonwealth v. Kaschik, 235 Pa.Super. 388, 394, 344 A.2d 519, 523 (1975). “ ‘[A] “tip” from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant’s credibility.’ ” Commonwealth v. Carlisle, supra, 348 Pa.Super. at 100, 501 A.2d at 666, quoting Commonwealth v. Miller, 334 Pa.Super. 374, 381, 483 A.2d 498, 501 (1984). Moreover, “[t]he credibility of an informant and the reliability of his or her information may ... be determined by independent corroboration of the tip.” Commonwealth v. Carlisle, supra, 348 Pa.Super. at 101, 501 A.2d at 666.

When information is supplied by an anonymous citizen, as opposed to a confidential informant, the credibility of the declarant and reliability of the information provided may be particularly difficult to ascertain. In this regard, the Pennsylvania Supreme Court has observed:

“Ordinary citizens, like ordinary witnesses, generally do not provide extensive recitations of the basis of their everyday observations. Likewise, ... the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable____ Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise “perfect crimes.” While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.”

Commonwealth v. Gray, supra, 509 Pa. 476, at 483-484, 503 A.2d at 925, quoting Illinois v. Gates, supra, 462 U.S. at 237-238, 103 S.Ct. at 2331-2332, 76 L.Ed.2d at 548 (citations omitted). See also: Commonwealth v. Price, 318 Pa.Super. 240, 250, 464 A.2d 1320, 1326 (1983). It is also true that “the reliability of an informant may be established by the corroboration of another source, such as an additional informant.” Commonwealth v. Weidenmoyer, 518 Pa. 2, 10, 539 A.2d 1291, 1295 (1988). See also: Commonwealth v. Jones, 506 Pa. 262, 271, 484 A.2d 1383, 1388 (1984); Commonwealth v. Reel, 499 Pa. 381, 387, 453 A.2d 923, 925 (1982); Commonwealth v. Edwards, 493 Pa. 281, 290, 426 A.2d 550, 554 (1981). Thus,

“[w]hen two independent informants both supply the same information about a particular crime to the police, each source tends inherently to bolster the reliability of the other. Although the information supplied by one questionable source may be insufficient, the probability is extremely small that a second independent source would supply identical information if it were not probably accurate.”

Commonwealth v. Sudler, 496 Pa. 295, 306, 436 A.2d 1376, 1381 (1981), quoting Commonwealth v. Mamon, 449 Pa. 249, 259, 297 A.2d 471, 477 (1972). See also: Common wealth v. Bruner, 388 Pa.Super. 82, 94-95, 564 A.2d 1277, 1283 (1989). Such corroboration by independent sources “produces the necessary reliability to establish probable cause.” Commonwealth v. Kams, 389 Pa.Super. 58, 62, 566 A.2d 615, 617 (1989).

In the instant case, the double hearsay complaints by other tenants that appellant was selling cocaine from his apartment were corroborated by information provided to Officer Alba by a confidential informant. Further corroboration was provided when Officer Alba stopped Keith Arthur, who was on his way to visit appellant and who admitted to the officer that he was going there to purchase drugs. The fact that this statement was against Arthur’s penal interest also supports the reliability thereof. See: Commonwealth v. Ceriani, 411 Pa.Super. 96, -, 600 A.2d 1282, 1285 (1991). See also: Commonwealth v. Covert, 322 Pa.Super. 192, 194, 469 A.2d 248, 249 (1983); Commonwealth v. Mazzochetti, supra, 299 Pa.Super. at 455, 445 A.2d at 1218.

In holding that probable cause was established, the trial court here reasoned that “[w]hile the information supplied by the undisclosed manager of the building complex emanated from [ ] tenants and in and of itself would be insufficient, this coupled with the information supplied by the informant and the individual that Officer Alba confronted in the apartment lobby on December 30, 1988, ... was sufficient under the totality of the circumstances test [to] warrant the [Bail] Commissioner in issuing the search warrant.” We agree. When the affidavit is viewed in a common sense, nontechnical and realistic manner, as we are required to do, it seems clear that probable cause was established. Therefore, the trial court did not err when it denied a defense motion to suppress evidence seized by police during the search of appellant's apartment.

The judgment of sentence is affirmed.

      . Officer Alba was assigned to the Southwark mini station, but the affidavit does not otherwise disclose whether she was in uniform at the time when she spoke with Keith Arthur.


author: TAMILIA, Judge: BECK, Judge,

text:
    604 A.2d 253
    Perry A. EAGLE, M.D. v. Welby O. SNYDER, Jr., and Betty E. Snyder, Appellants. BUTLER & PAUL ASSOCIATES v. Welby O. SNYDER, Jr., and Betty E. Snyder, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1991.
    Filed Jan. 21, 1992.
    Reargument Denied March 30, 1992.

      Robert J. Brown, York, for appellants.
    Charles B. Calkins, York, for Eagle, appellee.
    Douglas P. France, York, for Butler & Associates, appellee.
    Before OLSZEWSKI, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This consolidated appeal is based on the claims of appellee physicians for fees for professional services resulting from surgery performed on Welby O. Snyder, Jr. The claims were first presented to arbitrators who found in favor of each appellee physician. The arbitration awards were appealed and pursuant to a petition for consolidation the cases were heard by the trial court as a consolidated action without a jury. Following a decision in favor of appellees and denial of post-trial motions, appeals were taken to this Court.

This case arose out of a surgical procedure performed on February 20, 1986 by Dr. Ivan Butler, a neurosurgeon, and Dr. Perry A. Eagle, an orthopedic surgeon, who together performed an anterior cervical diskectomy with cervical fusion on the neck of Mr. Snyder. There had been no prior discussion or agreement concerning the charges for the surgery. This procedure was successful and subsequently both Dr. Eagle and Dr. Butler of Butler & Paul Associates, submitted bills to Mr. Snyder who, in turn, submitted them to his employer, Caterpillar Tractor Company, which is self-insured, for payment of hospital and medical expenses.

Butler & Paul Associates’ bill was in the amount of $2,915 and it indicated that Dr. Butler had performed a procedure classified under the Physicians Current Procedural Terminology (C.P.T.) as “22555,” defined as “anterior cervical diskectomy and fusion.” Shortly thereafter, Dr. Eagle submitted a bill for $2,000 for a procedure designated as “22615” under the C.P.T., defined as “anterior cervical fusion C-4,5 using allografts.” It was determined by Caterpillar that Dr. Butler had billed for the wrong procedure and should have billed for a C.P.T. procedure “63075”, defined as a “diskectomy, cervical, anterior single space without fusion.” Caterpillar then paid Butler & Paul Associates the sum of $1,995 and Dr. Eagle $950.

The central issue proposed by the appellant is the failure of the court to give weight to appellant’s expert Dr. Heartenstein concerning the probative value of his testimony. The court gave Dr. Heartenstein’s testimony no weight as it concluded his evaluation of the reasonableness of medical fees was based on what was customary and reasonable in other areas, that is the fees charged for similar operations in up to 90 areas throughout the country. The court determined that the correct statement of Pennsylvania law, as espoused in Husik v. Lever, 95 Pa.Super. 258 (1928), is what the services are ordinarily worth in the community. While this is a correct statement of the law it must also be interpreted in relation to the realities of medical practice in the 1980’s and 90’s, which are extremely different than in 1928 when Husik was decided. Additionally, it appears appellees are the sole source for performance of this procedure in York County, thereby severely limiting a reasonable appraisal of a fair price to charge for the procedure.

Two modern realities exist that require a broader consideration than a mere community standard in determining reasonable fees. The first is medical insurance and private and governmental providers which have entered the market place and which to some degree regulate medical costs which have grown faster than prices in any other area of our economy. A vehicle to provide standardization of procedures and the concomitant prices charged for them is the C.P.T. While the trial court ignored this coding, both Drs. Butler and Eagle used the code in billing appellants for their services. The trial court ignores the importance of the code and determines billing duplication or errors in coding is irrelevant to the outcome of this case. This cannot be so when insurance carriers such as Blue Cross, Blue Shield and government providers such as Medicare rely on these pricing standards to provide payment for their insureds.

The second reality in recent times is the dispersal of surgical and diagnostic services. Insured persons now select their doctor or hospital according to expertise, reputation and specialities developed in different areas. It is now routine for people to seek treatment outside the community or area in which they live or receive insurance coverage. The community standard in the place of residence where coverage was obtained cannot be applied if the service is provided in a different location. To acknowledge that pricing and reimbursement may occur at different locations is to require a broader pricing concept than community standards moving toward a more uniform regional or national standard. For this reason, C.P.T. standards should be admissible here.

The record establishes Dr. Butler's group is the only group in York County which furnishes neurological medical services. It is, therefore, arguable that its charges alone should not be the base upon which community standards are established, since, in a sense, the price is dictated under those circumstances by monopolistic forces. Caterpillar, which insures appellant as a self-insured employer, has two thousand employees in the York Plant. As such, its Medical Director of Group Insurance for Caterpillar, Dr. Heartenstein, supervises payment for medical and hospital expenses to 60,000 Caterpillar employees, nationwide, including the employees in York. His testimony is relevant as to the going rate for this surgery in the York area as well as other areas throughout the country. The error was in permitting Drs. Butler and Eagle’s billings to establish the community worth by their own billing, without requiring them to establish billings in the immediate surrounding areas. Billing by the doctors’ clerks cannot establish the community rate, which was what occurred here. If the billing was done in a metropolitan area such as Philadelphia (where Husilc was decided) or Allegheny County, there would, without question, be a broad enough base for determining a community standard existed without looking outside the community. In this situation, however, the area of York and surrounding counties would provide a more reliable and equitable base than York itself, where only one practice exists. Instead of looking to Baltimore, as appellees indicated, because of its distance and differing economic, geographic and demographic compositions which is not comparable to the “community” of York, a more reasonable approach would have been to look to Cumberland, Dauphin and Lancaster counties which border upon York and have similar demographics and economic bases, so that the market would be more compatible with that of York. The testimony of Dr. Heartenstein was not irrelevant as it applied to area standards and it established the fees charged by Drs. Butler and Eagle were the highest fees charged in any area in the country by more than 30 per cent and the practice of “bundling” or double billing in this case was partly responsible for the excessive charge. Ignoring the C.P.T. coding, as did the trial court, also permitted critical evidence of miscoding by Dr. Butler to be ignored. Dr. Henderson, whose testimony also was ignored by the trial court, testified the procedure employed by Dr. Butler should have been designated a “63075” (cervical diskectomy) instead of a “22555” procedure which was coded on the bill by his clerk. Dr. Butler conceded his billing was in error but the fee of $2,990 would have been and should have been the same. Dr. Butler also stated he does not know what other physicians charge as the usual and customary fees for those services in York County. Dr. Eagle billed $2,200 for a “22555” procedure. In essence, both doctors billed for a fusion procedure. Once it was determined what part of the total surgery each doctor performed, payment according to area standards was disbursed. Caterpillar allowed Dr. Butler $1,995 and Dr. Eagle $950. According to established guidelines under C.P.T. coding and to avoid bundling (separate billing on a single operation which divides the operation into different parts and charges separately for the two) the coding provides for modifiers. A modifier is a number “62” in this case, to indicate a second surgeon is involved in the surgical procedure as a result of which the second surgeon’s fee is billed at either 50 per cent or 75 per cent.

For the above reasons this case cannot be resolved simply on the basis of “community worth” when the practice of medicine, particularly surgical procedures, spills over arbitrarily established community boundaries. This is particularly true when the number of practitioners of a particular procedure have no peers in the immediate community to establish other than a monopolist price. See McKeehan Estate, 358 Pa. 548, 57 A.2d 907 (1948), and Fougeray v. Pflieger, 314 Pa. 65, 170 A. 257 (1934). Under these circumstances a fair price cannot be the market price as there is no market price in York for this service other than that supplied by appellees. The approach suggested by appellants to establish an area price in the absence of a community worth has great logic and credibility and the expert testimony provided by appellants should have been given proper weight for the probative value it contained. While the trial court in fact permitted Dr. Heartenstein’s testimony to be placed on the record, by ignoring the testimony and giving it no weight, the effect was the same as not to admit it at all. Refusing to admit expert testimony which is proper and essential to a party’s case is error which requires a new trial. Bob Wark’s Arco, Inc. v. Commonwealth of Pennsylvania, et al., 71 Pa.Cmwlth.Court 644, 455 A.2d 770 (1983).

While Husik remains the law, it cannot be so narrowly construed to a county locale and such a limited practice in light of today’s standards as is done by the trial court.

While it may be argued that Pfeiffer v. Dyer, 295 Pa. 306, 145 A. 284 (1929), in the past has allowed flexibility in billing to permit doctors to exercise discretion in charging higher fees to those who are wealthier to counterbalance free services or diminished payment from those who do not have the financial resources to pay the full fee, it has little application to this case or modern practice. Because of the advent of medical insurance and Medicare as mentioned above, and also due to the different perception of doctors concerning the practice of medicine, the rationale employed in Pfeiffer is far more difficult to sustain. The specific facts of Pfeiffer show it is not applicable here. The court there justified the doctor’s fee on humanitarian considerations after making the following observation:

Pressed on cross-examination to state his customary fee for such an operation as that here involved, he said that in over twenty years’ experience in surgery he had performed the operation six times, three times for nothing, and in explanation added that over half of his professional work was done for charity.

Id., 295 Pa. at 310, 145 A. at 285. No facts were developed in this case to show compensatory adjustments were made in the fees claimed to account for charity by Drs. Butler and Eagle.

A major crisis exists in medical care in our society because 30 per cent of our population cannot afford it and, therefore, cannot obtain even minimal services. People are turned away from hospitals because they cannot afford treatment and provisions for payment must be made in advance, in most cases, before doctors will provide treatment. The fees charged in this case are not subject to any humanitarian credit as appellants are not wealthy and the self-insured employer is committed to reasonable standardized payments even if appellees had established a charitable basis for the higher fees.

In view of our holding on the issue relating to the admission of Dr. Heartenstein’s expert testimony, the other issues proposed by appellants need not be discussed. The judgment is, therefore, vacated and the case remanded for the purpose of having the trial court give proper weight to appellant’s expert witness testimony and to rule accordingly thereafter.

Jurisdiction relinquished.

BECK, J., files dissenting opinion.

BECK, Judge,

dissenting.

In this consolidated appeal, we must decide whether amounts charged by two doctors for a surgical procedure are reasonable and may, therefore, be recovered in an action for those amounts. In so deciding, we must apply and clarify the standards of Pennsylvania law for determining what is a reasonable fee for a specific medical procedure. I dissent because the majority does not apply the law of Pennsylvania, by which we are bound, but rather remakes the law based on the majority's generalized perceptions concerning the practice of medicine in this country, for which there is no evidentiary support in this record.

This case arises out of a surgical procedure performed on appellant, Welby O. Snyder, Jr., on February 20, 1986. Mr. Snyder was experiencing neck and back problems and was referred by his family physician to Dr. Butler, a neurosurgeon, for treatment. Dr. Butler practices in York County in association with appellee Butler & Paul Associates, P.C.. After examining Mr. Snyder, Dr. Butler recommended that a procedure called an “anterior cervical discectomy with cervical fusion” be performed. Dr. Butler explained the procedure to Mr. Snyder, who agreed that it should be done. Dr. Butler also informed Mr. Snyder that the procedure would be performed by two surgeons, Dr. Butler and coappellee Dr. Eagle, an orthopedic surgeon practicing in York County. Mr. Snyder was also examined by and con-suited with Dr. Eagle prior to surgery. The cost of the procedure was not discussed with either doctor.

The operation was performed and was completely successful. The doctors then billed Mr. Snyder for their services. Dr. Butler charged $2,915.00 and Dr. Eagle charged $2,200.00. Since Mr. Snyder is employed by Caterpillar Tractor Company, which maintains its own insurance program for payment of hospital and medical expenses, Mr. Snyder submitted these bills for payment to Caterpillar. Caterpillar adjudged the charges by both doctors to be excessive and refused to make full payment. Caterpillar paid only $1,995.00 to Dr. Butler and $950 to Dr. Eagle.

The doctors then instituted separate lawsuits against Mr. Snyder for the balances due. Caterpillar undertook the defense of the actions for Mr. Snyder. Both actions were initially resolved in the doctors’ favor through compulsory judicial arbitration. Caterpillar appealed on Mr. Snyder’s behalf, the actions were consolidated and a trial de novo without a jury was conducted.

The evidence presented at trial in support of Dr. Eagle’s claim consisted of testimony by Dr. Eagle and by Dr. Cohen, another orthopedic surgeon practicing in York County. Dr. Eagle described in detail the portion of the procedure he had performed on Mr. Snyder, which basically consisted of a bone fusion in Mr. Snyder’s neck to replace bone that had been removed by Dr. Butler. He also testified that he had performed this procedure countless times, including 42 such operations in 1986 alone, and that his fee for the same procedure done on other patients was the same as the fee charged to Mr. Snyder. As to the manner of setting this fee, Dr. Eagle stated that he indicates the procedure done and fee to be charged on a card he prepares after surgery and gives the card to his billing clerk, who then prepares the bill. Dr. Eagle further testified that he was familiar with the fees charged by other orthopedic surgeons in York County for this procedure and that his fee was in harmony with those charged by the other orthopedic specialists. Lastly, Dr. Eagle testified that it was advisable for two doctors, one orthopedic surgeon and one neurosurgeon, to perform the surgery in question, as he and Dr. Butler had done, instead of one doctor performing both portions of the operation. He testified that this afforded a better opportunity to deal with certain complications that might arise in the course of the procedure.

Dr. Cohen, who was qualified as an expert, testified that he was familiar with fees charged for this procedure by other York County orthopedic surgeons and that Dr. Eagle’s fee was usual and customary for this procedure in that area. He also testified that this procedure was customarily done in the York county area by two doctors, a neurosurgeon and an orthopedic surgeon, and that the use of two surgeons was advisable.

The evidence presented in support of Dr. Butler’s claim consisted of the testimony of Dr. Butler and of his billing clerk. Dr. Butler testified as to the procedure he had performed and as to the manner in which he arrived at his fee. He stated that his fee schedule was initially created as a result of consultation with other physicians practicing in the Baltimore area near York County, and that the fees were then periodically adjusted upwards to account for increased malpractice insurance rates and other rising costs. The doctor also stated that some of the riskier procedures performed were billed at a higher rate. He further testified that he and the other two neurosurgeons with whom he practiced were the only neurosurgeons in York County and they all charged the same amount as that charged Mr. Snyder for the same surgical procedure.

Dr. Butler’s billing clerk then testified that she prepared the bill to be sent to Mr. Snyder. She prepared it by referring to a card given to her by Dr. Butler on which was indicated the procedure done on Mr. Snyder. She testified that the base fee charged for the procedure was $2,400 and that $450 was added to that amount in this case because there was the added complication of a bone spur which had to be removed from Mr. Snyder’s neck.

At the close of Dr. Butler’s case, Caterpillar moved for a compulsory nonsuit, which was refused. Caterpillar then put on its case, consisting of the testimony of two witnesses, Dr. Henderson and Dr. Heartenstein. Dr. Henderson, a neurosurgeon, was called not to address the reasonableness of the doctors’ fees, but rather to testify to what he considered to be adequate physician billing procedures. He was qualified as an expert on that subject. The import of his testimony was basically that Drs. Eagle and Butler had used inappropriate code numbers to identify the procedures they had done on Mr. Snyder on the bills they sent him. The code numbers referred to are numbers assigned to a variety of medical procedures in a manual called the Physician’s Current Procedural Terminology (the “CPT”). The CPT is apparently used by many medical insurers to distinguish between and identify various medical procedures. Such insurers require that bills submitted to them bear an identifying code from the manual. However, as Dr. Henderson testified, there is no requirement of law or even by any physician’s association, such as the American Medical Association, that physicians use the CPT codes on their bills or for any purpose. Dr. Henderson specifically stated that he was completely unfamiliar with what might be the customary billing procedures used by doctors practicing in York County and, therefore, with whether or how these codes were used for billing purposes in that area.

Dr. Henderson further testified that in his view, it was reasonable medical procedure for only one doctor to perform the entire procedure done on Mr. Snyder. Finally, he concluded that although Drs. Eagle and Butler had each only performed part of the procedure, the code numbers they used on their bills appeared to reflect that each was charging for having done the entire procedure.

The final testimony offered was elicited from Dr. Heartenstein, a general surgeon who since 1981 had been employed by Caterpillar as their Medical Director of Group Insurance. Dr. Heartenstein was qualified as an expert to address the reasonableness of the fees charged Mr. Snyder, subject to the trial court’s exercise of discretion in determining the weight to be accorded that testimony.

Dr. Heartenstein testified that he had no familiarity with amounts charged by other doctors in 1986 in York County or in the general south central portion of Pennsylvania for the procedure performed on Mr. Snyder. He did testify, however, that based on broad experience with fees charged for such a procedure in other areas across the country, the fees charged in this case were excessive. He also stated that for purposes of deciding what amount of a medical bill Caterpillar would pay under its self-insurance plan, Caterpillar would look to what other doctors in the same county charged. If there were no other doctors, they looked to what doctors charged for that procedure across the country. On further questioning by the trial court, Dr. Heartenstein specifically stated that his opinion that the fees charged by Drs. Butler and Eagle were excessive was arrived at by comparing them to fees charged for the same procedure nationwide, and not with reference to fees charged in York County or the south central Pennsylvania area.

The trial court entered a verdict for the full balance due each doctor, denied post-trial motions and entered judgment. This timely appeal followed.

Appellants raise the following issues:

1. Did Appellants’ experts qualify to testify concerning whether or not Appellees’ fees were reasonable and customary?
2. Were Appellants’ experts entitled to consider evidence of fees charged outside of York County in determining the reasonableness of fees charged by Appellees?
3. Did the Appellees present sufficient evidence of customary and reasonable services?
4. Were fees charged by Appellees reasonable? Although appellants’ statement of the first two issues

makes it appear that appellants’ expert, Dr. Heartenstein, was not qualified as an expert and was not permitted to testify, in fact Dr. Heartenstein was qualified and did testify at length. The substance of his testimony is set forth above. What actually occurred was that the trial court allowed Dr. Heartenstein’s testimony without limitation, but reserved the right to determine the weight to be accorded the testimony. Ultimately the court decided that Dr. Heartenstein’s testimony was to be accorded no weight in determining the reasonableness of the fees at issue. Appellants are correct in their statement that the standard for qualification as an expert in Pennsylvania is a liberal one, allowing a witness to testify as an expert if he has any reasonable pretension to specialized knowledge on the subject under investigation, In Re Glosser Bros., 382 Pa.Super. 177, 555 A.2d 129 (1989). However, I find that this principle was adhered to in this case inasmuch as Dr. Heartenstein was qualified as an expert.

The real issue is whether the trial court erred in ultimately deciding that no weight should be accorded Dr. Hearten-stein’s testimony. The trial court opined that this testimony was not relevant because Dr. Heartenstein was unable to opine on the unreasonableness of the doctors’ fees in relation to other fees charged in the pertinent geographic area. The trial court found that his testimony concerning fees charged in other areas of the country was not probative of the unreasonableness of the fees charged in York County. We must decide whether the trial court erred in exercising its discretion as to how much weight the expert testimony should have been accorded.

The finder of fact is always entitled to evaluate expert testimony and may disregard it entirely. As the Supreme Court has repeatedly indicated, the weight to be accorded expert testimony is to be determined by the jury, or the judge sitting without a jury, according to the fact finder’s evaluation of the expert’s qualifications and the reasons and facts on which he or she based the opinion expressed. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). In the instant case, the trial court’s decision to accord no weight to Dr. Heartenstein’s testimony was based on the court’s perception of the legal standard for determining the reasonableness of a. doctor’s fee. The court opined that the determination of reasonableness must be made, at least in part, by comparing the fee charged to the usual and customary fee for the same service in the geographic area where the particular doctor practices. The court found that the reasonableness of the fee charged was not to be determined by comparing the fee to fees charged in the country as a whole. If this is a correct statement of Pennsylvania law, then the trial court did not err in its assessment of the evidence.

There is surprisingly little Pennsylvania precedent on this question. The most complete statement of principle is found in an old decision by this court in Husik v. Lever, 95 Pa.Super. 258 (1928), where the court set forth the law as follows:

In the absence of an express agreement as to amount, the law implies a promise to pay for a physician’s services as much as they are reasonably worth. Professional services are worth what they are rated at on the professional market. The physician has his services to sell, the patient agrees to buy them and pay for them the customary price. When the services are properly rendered the patient has received what he has contracted for and has necessarily received legal benefit. Even when the agreement is completely the creation of the law the implied promise is to pay for the services what they are ordinarily worth in the community.

Id. at 260.

This statement by the Husik court establishes several key principles. The first principle is that a doctor and patient enter into a contractual relationship as to payment of a fee for professional services rendered. In a case such as this, and as in Husik, one term of that contract is missing. That term is the price term. The parties simply failed to establish the price at the time they entered into their contract. Since they thereafter became involved in a dispute as to the amount owed, the law must supply the missing term. The law does so by implying that the patient sub silentio agreed to pay what the medical services are reasonably worth and the doctor sub silentio agreed to accept that amount in full payment. This is presumed to be the intent of both parties. In any event, such a dispute over price is a contractual one and is not to be decided with reference to tort principles regarding determinations of reasonableness.

The second principle established by Husik is that the determination of what is reasonable is made by ascertaining the value of the services on the professional market. The relevant market is deemed to be the market for such services in the community. The latter presumably refers to the geographic area where the services are performed, since it is presumed that both parties have intended that the price term will be determined with reference to that area. Neither is presuiped to have intended that he or she would either pay or receive what might be paid or received at some unspecified distant location. This reasoning assumes a competitive market. So where there are several doctors performing the same service in the immediate geographic area, the reasonableness of the fees will be evaluated on the basis of fees charged in the immediate geographic area. Usually, where only one physician or one group of related physicians perform the service in the immediate geographic area, the reasonableness of the fee charged may be evaluated on the basis of a broader geographic area.

Other cases addressing this subject have also established certain principles that are relevant to our inquiry. Of central importance is the fact that the determination of reasonableness lies well within the discretion of the trial court and we must reverse only for an abuse of that discretion. McKeehan Estate, 358 Pa. 548, 57 A.2d 907 (1948). McKeehan also instructs us that although the testimony of expert witnesses, i.e. the opinions of other physicians, may well be relevant, they are “... not so conclusive as to take the place of the judgment of the court whose duty it is to pass on the question of the value of the services.” Id,., 358 Pa. at 553, 57 A.2d 907.

Lastly, we must remain cognizant that the customary charge in the community is not the only criterion of reasonableness. In Pfeiffer v. Dyer, 295 Pa. 306, 145 A. 284 (1929), the Supreme Court emphasized that there must be some flexibility in the fee that will be determined to be reasonable depending on the ability of the particular patient to pay. The Court emphasized the social benefit of allowing a doctor to charge more to a patient who can pay more, so as to enable him or her to render medical assistance and charge less to those less able to pay.

Applying these principles to the case before us, it is clear that the trial court did not commit reversible error in according no weight to Dr. Heartenstein’s testimony concerning the issue of reasonableness. As the trial court stated, Dr. Heartenstein did not base his opinion that these fees were excessive on any data concerning fees charged in York County or south central Pennsylvania. He made no attempt to contact other doctors in that locality to ascertain what they would have charged in 1986 for the same services to a patient in the position of Mr. Snyder. Rather, Dr. Heartenstein was only able to testify that his opinion was based on nationwide data concerning the fee to be charged for this procedure. This factual basis for Dr. Hearten-stein’s opinion completely undermined the value of his opinion because the legal standard established by the foregoing cases requires that reasonableness be determined by reference to what is usual and customary in the community, and not on the basis of what is usual and customary in the nation as a whole. If Dr. Heartenstein had been able to testify as to the fees charged for similar procedures in the counties surrounding York County, then, as the majority states, this evidence would have been clearly relevant. Unfortunately for appellants, their expert was simply not able to provide the trial court with this information.

Despite the majority’s lengthy discussion of what it perceives as a recent revolution in the practice of medicine, there was no evidence in the instant case indicating that there has been any modification of the manner in which physicians set the fees for their services so as to call upon us to reconsider the standard of reasonableness under existing case law. There is nothing in this record that suggests that there are nationwide fee schedules to which doctors are bound, or that there are not still wide variations in the amounts that may be charged in one locale as opposed to another. In sum, the legal standard is clear and we are aware of no policy argument in favor of modifying it. In any event, we are not free to disregard the mandate of Husik, which is a precedential decision of this court and is binding on this panel.

In the third issue posed, appellants argue that appellee Butler & Paul failed to present a prima facie case of reasonableness and, therefore, that the trial court improperly denied appellants’ motion for a compulsory nonsuit at the close of Butler & Paul’s case. I disagree. Butler & Paul presented the testimony of two witnesses in support of the fee charged. Dr. Butler testified as to what services he performed, the fee charged and the result obtained for the patient. He also described the manner in which he set his fees and confirmed that the fee charged in this case was the same as what he and the doctors with whom he practiced in York County charged other patients for the same services. Ms. Paul, Dr. Butler’s billing clerk, testified that normal billing procedures were employed in this case and also stated that the fee charged was Dr. Butler’s standard fee for this procedure, plus an additur to account for certain complications involving a bone spur in Mr. Snyder’s case.

I regard this testimony as being minimally sufficient to establish a prima facie case under the circumstances of this case. In drawing this conclusion, I remain mindful of the abuse of discretion standard that governs our review of this case and, unlike the majority, accord due deference to the exercise of that discretion by the trial court. The evidence established that this was the usual and customary fee of Dr. Butler and of his associates, all neurosurgeons practicing in York County. Of course, the quality of this evidence is not particularly high given the fact that Dr. Butler and his associates set their fees in unison and are the only neurosurgeons in York County. Thus, the fact that Dr. Butler’s associates both would charge the same fee is not particularly telling as to what would be a reasonable fee in this area. Dr. Butler’s case would clearly have been strengthened by evidence of fees charged in the geographic area surrounding York County or some other nearby community where other neurosurgeons are practicing.

Nevertheless, against the backdrop of the other evidence in this case, I do not find this to be fatal to Dr. Butler’s claim. Importantly, the testimony revealed that the procedure performed on Mr. Snyder was a delicate one, posing a variety of serious risks if not performed correctly and yet highly effective if performed successfully, as it was here. The expertise and abilities of Dr. Butler as a respected neurosurgeon also appear to be beyond question. In addition, as the trial court appeared to recognize, the $2,900 fee charged by Dr. Butler is not facially exorbitant in light of the nature of the services rendered. As I have indicated above, the determination of reasonableness is made upon consideration of many factors, only one of which is the comparison of the fee to other fees charged in the pertinent locale. Considering all of these factors in this case, I find that Butler & Paul did come forward with sufficient evidence to establish a prima facie case of reasonableness.

Appellants’ last claim of error is general in nature. They argue that on consideration of all the evidence, the fees charged here were demonstrably excessive. Thus, they contend the trial court abused its discretion. The gravamen of this argument is that both Dr. Eagle and Dr. Butler failed to follow the CPT coding system described above in identifying the services they performed on the bills submitted to Dr. Snyder and, consequently, failed to charge fees for those services in accordance with that coding system. As we have related above in summarizing the testimony at trial, Dr. Henderson and Dr. Heartenstein both testified that the CPT is a compendium of medical procedures to which code numbers are assigned. The CPT also includes certain modifier codes to be used to indicate how a certain procedure was performed, including codes to indicate that the procedure was performed with the assistance of another doctor. Dr. Heartenstein indicated that these modifiers were not used on the bills submitted by Drs. Eagle and Butler to Mr. Snyder and that this resulted in them each billing an amount that would actually have been appropriate only if they each had performed the entire procedure. Drs. Eagle and Butler denied that they had each inappropriately charged for the entire operation.

Unlike the majority, I am not at all persuaded that the failure of Drs. Eagle and Butler to employ the CPT codes and modifiers renders their fees unreasonably high. As the testimony revealed, physicians are neither required by law nor by the standards of any professional organization to use the CPT codes or to bill in accordance with those codes. The CPT is no more than a guide used by medical insurers to identify medical procedures and assign them a value which the insurer will then pay for each procedure. Caterpillar apparently follows this procedure in deciding how much it will reimburse an employee for a particular medical procedure under Caterpillar’s self-insurance program.

I do not see how the dictates of the CPT have any relevance to the reasonableness of the fees charged to Mr. Snyder in this case. It must be recalled that the contract in which we are implying a price term was not between these doctors and Caterpillar, the insurer, but rather between these doctors and Mr. Snyder, the patient. It is the understanding, intent and expectation of these parties that is pertinent to our determination of reasonableness, not the understanding, intent, expectation or coding system of Caterpillar. A review of the record reveals that the trial court was fully aware of this fact. This can be seen, for example, in the court’s questioning of Mr. Snyder, which proceeded as follows:

By the Court: Having been through it myself, Mr. Snyder, correct me if I’m wrong, I presume when you were talking to the doctors, you figured your insurance company would take care of any costs involved?
Mr. Snyder: That’s a hundred percent correct.
By the Court: So you weren’t considering the cost, you were considering fixing up your back?
Mr. Snyder: That’s very true.
By the Court: All right. Now, if Dr. Butler has said this is a delicate operation, you probably already realized that, and he said we better have another fellow standing there who can help me out and it is a very dangerous operation, I expect you would have said, have him there?
Mr. Snyder: That’s correct.
By the Court: And even on afterthought, I expect that’s your position?
Mr. Snyder: That’s very true.

T.R. at pp. 53-54.

This brief exchange demonstrates that the trial court recognized that it is not the intent or coding system or opinion of reasonableness of Caterpillar that must govern this case. This is a breach of contract action and the contracting parties are Drs. Eagle and Butler and the patient, Mr. Snyder. When these parties contracted for professional services, they all intended that the operation would be performed competently by two highly skilled specialists, which it was, that the operation would cure the patient’s medical problem, which it did, and that the patient would pay the reasonable value thereof. The patient did not question the doctors as to their fee, nor did he question their competent medical advice that two doctors should perform the procedure. Moreover, there is no evidence that any of the parties to this contract intended to be bound by a code system for medical billing used by medical insurers in determining the fees to be charged. Thus, although Caterpillar may use any procedure consistent with the law to determine how it will identify and classify the procedures performed on its insured and how much it will reimburse the insured for those procedures, this has no effect on the legal determination of the reasonableness of the fees charged by the doctors to their patient.

I find no error in the trial court’s handling of this case. Rather, I commend the trial court on its practical and principled approach to this matter.

The judgment of the trial court should be affirmed.

      . Although the McKeehan court did not specifically comment on the geographic area from which information concerning usual and customary fees is to be drawn, it is noteworthy that in McKeehan the services were rendered in the Harrisburg area and the expert witnesses who testified as to their reasonableness were doctors practicing in that area.

      . Although the majority appears to take no note of this fact, I emphasize that appellants do not even question whether Dr. Eagle presented a prima facie case of reasonableness. Dr. Eagle himself testified in support of his fee and Dr. Cohen, an independent orthopedic surgeon practicing in York County itself, was qualified as an expert and also testified that Dr. Eagle's fee was usual and customary in that area. This is clearly a sufficient showing of reasonableness to establish a prima facie case, which appellants failed to rebut.