author: FORD ELLIOTT, Judge: WIEAND, Judge,

text:
    630 A.2d 1
    Harry A. COOPER, D.O., Appellant, v. DELAWARE VALLEY MEDICAL CENTER, Bernard Amster.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed June 28, 1993.
    Reargument Denied Sept. 10, 1993.

      David L. Pennington, Philadelphia, for appellant.
    Brian M. Peters, Philadelphia, for Delaware Valley, appellee.

      Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the January 3, 1992 order of the Court of Common Pleas of Bucks County, granting the motions for summary judgment of the several defendants, with the exception of the motion of Dr. Bernard J. Amster. We reverse.

The long history giving rise to this appeal must be fully recounted to facilitate a detailed and complete resolution of the issues presently before this court. In faithful adherence to our standard of evidentiary review, we must examine the record in a light favorable to appellant, who is entitled to the benefit of all reasonable inferences.

In 1979, appellant, Harry Cooper, began a four-year residency in orthopedic surgery at Delaware Valley Medical Cen: ter (hereinafter “DVMC”). Appellant’s residency was performed under the training of Bernard Amster, D.O. It was appellant’s testimony that he accepted the residency with the understanding that at its completion, he would join Dr. Amster in his practice and be permitted to treat unassigned emergency room patients. For each year of his residency, appellant executed a contract. However, none of the contracts contain any reference that appellant was guaranteed the privilege of treating emergency room patients upon the completion of residency.

During the third year of appellant’s residency, internal problems developed among DVMC’s board of directors. A lawsuit was filed by half of the members of the board against Drs. Amster, Berman, and Glass alleging that they had created conflicts to prevent expansion of the hospital and admission to the staff of physicians who would compete in the same practice areas. Drs. Amster, Berman, and Glass consequently filed a countersuit. Both suits were marked settled, and eventually Dr. Amster’s faction gained control of the board.

As appellant entered his final year of residency, the new board, under the guidance of Dr. Amster, adopted new Rules and Regulations for the Division of Orthopedic Surgery. The major impact of the new rules was that, for the first time, DVMC established written eligibility criteria for orthopedists wishing to treat unassigned emergency room patients. Specifically, the new Rules and Regulations for the Division of Orthopedic Surgery, adopted July 30, 1982, established the following four requirements for a doctor seeking to treat unassigned emergency room patients:

(a) An AOA approved internship and an AOA residency;
(b) Be certified in orthopedic surgery by the American Osteopathic Academy of Orthopedics;
(c) Be an active staff physician for at least three years;
(d) He/she must admit to the orthopedic service at least fifty patients [per] year from his/her practice.

On June 30, 1983, appellant successfully completed his .residency at DVMC. The completion of appellant’s residency was certified by Dr. Amster. Two weeks prior to completing his residency, the DVMC Credentials Committee had recommended appellant for active staff privileges on a six-month probationary basis.

On October 2, 1984, appellant submitted a formal, written request to Dr. Amster to treat unassigned patients in the DVMC emergency room. Dr. Amster failed to respond to appellant’s request and thus remained the only orthopedic surgeon eligible to receive unassigned emergency room patients. In February of 1985, appellant sent a letter to the DVMC Medical Executive Committee requesting privileges to treat unassigned emergency room patients. In his letter to the Medical Executive Committee, appellant reaffirmed his position that he was told at the beginning of his residency he would have such privileges if he chose to practice at DVMC. The Medical Executive Committee held a hearing on this matter on March 28,1985, and subsequently denied appellant’s request to treat unassigned emergency room patients because he failed to meet the new criteria.

This series of events led appellant to file a federal lawsuit in 1985 alleging antitrust violations on the part of Dr. Amster and DVMC. The federal suit was ultimately dismissed when the Honorable J. William Ditter, Jr., determined the matter was not yet ripe for adjudication since appellant had not exhausted all his remedies within the DVMC appellate process. The Third Circuit Court of Appeals affirmed the dismissal of the federal action.

In February 1986, appellant also filed a saving action in state court against DVMC, Dr. Amster, Dr. Newman, Dr. Stepanuk, and Metropolitan Hospital-Parkview Division. The complaint was based on theories of tortious interference with prospective contractual relations, promissory estoppel, fraud, misrepresentation, and breach of implied contract. The state court action, like the federal action, centered around the refusal to grant appellant emergency room privileges at DVMC. After preliminary objections were filed, the trial court granted appellant leave to amend his complaint. The amended complaint named only Dr. Amster and DVMC as defendants.

Before the federal lawsuit had been dismissed, the time arose for appellant’s 1986 annual reappointment review for general staff privileges. Dr. Amster informed DVMC’s administration that he could not review appellant’s credentials because appellant had named him as a party defendant in a federal lawsuit. Consequently, DVMC retained an independent orthopedist, Dr. Keith Harvie, to perform the review. Dr. Harvie’s review included interviews with Drs. Amster and Stepanuk, both of whom were defendants in appellant’s lawsuits, and a full interview with appellant. On November 25, 1986, the DVMC Credentials Committee voted to limit appellant’s general staff privileges, in accord with Dr. Harvie’s September 22, 1986 report.

Appellant then proceeded to exhaust all of DVMC’s internal administrative remedies. However, the decision of the Credentials Committee remained unchanged. Accordingly, on March 18,1988, appellant instituted a civil action in the Court of Common Pleas of Philadelphia County against Dr. Amster, DVMC, and thirty-six others. This state court action alleged federal and state due process and equal protection violations, a violation of state anti-trust laws, tortious interference with business relationships, intentional infliction of mental and emotional distress, libel and slander, breach of contract, and a violation of the Health Care Facilities Act, 35 Pa.S.A. § 448. The counts alleging violations of state anti-trust laws and the Health Care Facilities Act were dismissed pursuant to an order sustaining DVMC’s preliminary objections.

On July 2, 1990, the 1988 Philadelphia County action was transferred to Bucks County and coordinated with the previously filed 1986 state saving action. The new coordinated action was listed with a 1990 Bucks County docket number and captioned accordingly.

In November 1991, DVMC and Dr. Amster filed separate Motions for Summary Judgment. In a single order, the Honorable Edward G. Biester, Jr., granted the motion of DVMC and the thirty individual defendants as to all causes of action in both of appellant’s state court complaints. The trial court concluded that it was precluded from engaging in a substantive review of the hospital’s staffing decisions by reason of this court’s holding in Rosenberg v. Holy Redeemer Hospital, 351 Pa.Super. 399, 506 A.2d 408 (1986). Furthermore, the trial court found that the thirty individual defendants were immune from liability pursuant to the provisions of the Pennsylvania Peer Review Protection Act, 63 P.S. § 425. With respect to Dr. Amster’s motion, the trial court granted summary judgment for Dr. Amster on appellant’s claims under the Fourteenth Amendment; for intentional infliction of emotional distress; and for defamation. Dr. Amster’s motion was denied with respect to all other claims. This timely appeal followed.

Appellant presently raises four issues for our consideration:

I. Whether the trial court erred in failing to recognize that the decision in Rosenberg v. Holy Redeemer Hospital is inconsistent with the intent of the Pennsylvania Legislature to preserve a private cause of action against those who abuse the Peer Review Process?
II. Whether Rosenberg v. Holy Redeemer Hospital precludes plaintiff from maintaining causes of action other than a violation of his due process and equal protection rights under the Fourteenth Amendment?
III. Whether the Pennsylvania Peer Review Protection Act protects parties from civil liability that act with malice and fail to exercise due care?
IV. Whether the facts, taken in the light most favorable to Dr. Cooper, support his causes of action and therefore should have precluded entry of summary judgment in favor of defendants?

Essentially, appellant’s four issues focus upon two primary areas of concern; an interpretation and application of Rosenberg v. Holy Redeemer Hospital, supra, and an interpretation and application of the immunity provisions of the Peer Review Protection Act.

THE APPLICATION OF ROSENBERG

V. HOLY REDEEMER HOSPITAL

Initially, we will consider the Rosenberg case and the extent to which it is presently applicable. The trial court relied upon Rosenberg in deciding that summary judgment was appropriate as to DVMC. There is a great difference of opinion between the parties as to the extent of Rosenberg's applicability. Appellees, echoing the analysis offered by the trial court, maintain that Rosenberg absolutely prohibits judicial interference in a private hospital’s staffing process regardless of the cause of action pursued. Conversely, appellant contends that the trial court erroneously interpreted Rosenberg too broadly. According to appellant, Rosenberg was never intended as a ban on any lawsuit evolving from a private hospital’s staffing review process. We find that the correct interpretation lies somewhere in the middle of these two extreme positions.

In order to assess the validity of these divergent arguments, it is first necessary to review Rosenberg, itself. In September 1980, Dr. Rosenberg applied for appointment to the active medical staff at Holy Redeemer Hospital. The Hospital’s Board of Directors subsequently notified Dr. Rosenberg of its decision to deny his application. Dr. Rosenberg exhausted the administrative appeal process, but to no avail. Ultimately, Dr. Rosenberg filed suit against the Hospital seeking injunctive relief from the decision to deny him staff privileges. Initially, Dr. Rosenberg prevailed on his summary judgment motion. He was able to successfully challenge the procedures utilized by the Hospital in considering his application for a staff appointment. The matter was remanded to the Hospital’s Appellate Review Committee with instruction that Dr. Rosenberg be afforded a de novo hearing. The Hospital complied with the remand order but still decided to deny Dr. Rosenberg’s application. Dr. Rosenberg then filed a Petition for Supplemental Injunctive Relief. The Hospital countered with a Motion for Summary Judgment, arguing that the trial court, as a matter of law, lacked authority to review the substance of a hospital staffing decision. The trial court agreed and granted the Hospital’s motion. Dr. Rosenberg appealed that decision to this court.

The Superior Court, in resolving the claims on appeal, adopted in large measure the opinion of the trial court, Judge Anita Brody. Characterizing Dr. Rosenberg’s claims as constitutional due process claims, the trial court had determined that it was without authority to review the substantive staffing decisions of a private hospital because the “due process clause ‘applies only to ‘state action’ and not to private conduct.’ ” Rosenberg at 405, 506 A.2d at 411. Judge Brody then analyzed whether Holy Redeemer met the test for a quasi-public hospital and determined it did not. “Since the test for quasipublicness has not been met, we as did the Superior Court in Miller [v. Indiana Hospital, 277 Pa.Super. 370, 419 A.2d 1191 (1980)] ‘decline to judge appellant’s claims of unfairness against the due process clause.’ ” Rosenberg at 406, 506 A.2d at 412. It was on the basis that a due process claim could not be made out that the trial court was without authority to act in Rosenberg and it is on this basis that its decision was affirmed.

As an additional rationale for denial of relief, the trial court opined as follows:

It should be noted additionally that there is no precedent in Pennsylvania case law for the substantive review of a private hospital’s hiring decisions. While several states have held that hospitals have a fiduciary duty to the public which permits some degree of judicial review of those institutions’ decisions, the majority of jurisdictions hold that staffing decisions are within the hospital’s discretion and are not subject to judicial review.
The view that private hospital’s hiring decisions should not be subject to judicial review remains sound. The administrative officers of a private institution are presumed to operate in the best interest of that institution. A court should be loathe to substitute its judgment on a matter as intrinsic to the hospital as is a staffing decision. Absent some legislative command to the contrary, the courts of this Commonwealth will not interfere with the substantive decisions of private hospitals, but will only ensure that such decisions are made pursuant to the proper procedures.
This Court, then, finds that as a matter of law it is without the authority to review the decision of Holy Redeemer Hospital to deny Dr. Rosenberg’s application on a substantive level.

Id. at 407, 506 A.2d at 412 (citations omitted).

It is on this statement of policy that appellees advocate a broad reading of Rosenberg so as to preclude any suit against a hospital which calls into question the substantive review of a staffing decision. However cogent the analysis in Rosenberg may be, as precedential authority it does not stand for the proposition which appellees espouse — that no action at law or equity may be brought resulting from the staffing decision of a private hospital. We agree with appellant that Rosenberg is limited to the context in which the issues were decided therein, and this court did nothing to enhance or expand upon Judge Brody’s analysis.

Instantly, appellant had alleged in Count I of his complaint that DVMC, as a quasi-public institution, had violated his due process and equal protection rights under the Fourteenth Amendment in the manner in which it restricted his staff privileges. Clearly, a review of Judge Biester’s opinion establishes that he granted summary judgment in favor of DVMC on the basis that the hospital was a private institution and therefore no state action was involved in its decisions. Additionally, he concluded that DVMC did not hold a monopoly in the area such that it could be characterized as quasi-public.

Hence, the trial court, in adherence to the mandate in Rosenberg, determined that he was without jurisdiction to review the actions of DVMC within the context of appellant’s due process claims. Appellant has not appealed the dismissal of Count I of his complaint. However, appellant argues that, to the extent the trial court granted summary judgment to DVMC on all remaining counts under the theory of Rosenberg, it acted too broadly. We agree.

In Rosenberg the plaintiff was seeking an injunction to have the actual staffing decision changed. Not only should a court be loathe to act to substitute its judgment in private corporation matters, but it generally lacks jurisdiction to do so. A physician aggrieved by the personnel or administrative decisions of a private hospital is in no different a position than an employee of a private corporation and cannot appeal to the courts to force reversal of those decisions. Accordingly, to that end, the holding from Rosenberg is undeniably sound. However, the legitimate concerns requiring the result in Rosenberg are not present in this case.

Unlike Rosenberg, the instant case is primarily an action at law, seeking damages under various tort and contract theories. Presently, appellant is seeking monetary damages for the harm caused to his medical reputation and business interests by the improper use of the proceedings. Rosenberg cannot be used as a shield to prohibit any and all lawsuits arising from the hospital staffing process. Rosenberg cannot be interpreted to prohibit a doctor from filing suit based on legitimate contract and tort theories. The thrust of appellant’s suit is to recover damages for alleged civil wrongs. The fact that they occurred in the peer review setting does not automatically preclude appellant from seeking redress. However, as will be addressed in our analysis of the application of the Pennsylvania Peer Review Act, there may be other fundamental limitations on the type of redress appellant, as an aggrieved physician, is entitled to pursue.

THE APPLICATION OF THE PEER REVIEW ACT

Following its grant of relief to DVMC on all counts on the authority of Rosenberg, the trial court then went on to grant summary judgment of all claims against the additional individual appellees on the basis of the immunity provisions of the Pennsylvania Peer Review Protection Act (hereinafter “The Act”).

There is little question, and appellant does not argue to the contrary, that the acts upon which liability is predicated against appellees all arise within the context of the Peer Review Process. We agree with appellee that an abuse of The Act does not create a separate cause of action. However, malicious acts committed in the context of peer review can abrogate a participant’s immunity and expose that person to liability pursuant to various other causes of action. Appellant has alleged that appellees abused this process and he suffered various tortious and contractual injuries as a result. Therefore, if appellant is to pursue his claims against the various appellees, he must pierce the immunity provided by The Act.

The Act was promulgated to serve the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public. The Act represents a determination by the Legislature that, because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities. One commentator has set out the need for such legislation generally.

It is beyond question that peer review committes [sic] play a critical role in the effort to maintain high professional standards in the medical practice. The function they serve in protecting patients and the general public from less than competent physicians is of exceeding importance as there is no doubt that an incompetent physician can make mistakes costing human lives. On the other hand, hospitals and their peer review committees are expected to honor the rights of the private physician. The suspension of a physician’s hospital staff privileges can have a devastating effect on his practice, particularly if there are no other hospitals which could conveniently serve the needs of the physician’s patients. In addition, the suspension of a physician’s staff privileges at one hospital may jeopardize his status at another hospital, making it difficult, if not impossible, to obtain staff privileges at a new hospital.
Thus, members of peer review committees are confronted with the task of reconciling the interests of the physician under review with the interests of the hospital and its patients. It is not an enviable position, especially when one considers that peer review participation often entails long hours of stressful review work, no compensation, no thanks, and frequent criticism.
The individual members of peer review committees are increasingly becoming the targets of legal activity directed against them by disgruntled doctors whose staff privileges have been suspended upon the recommendation of the committee. Although physician rights clearly need to be protected, the effectiveness of medical peer review committees could be seriously hampered if committee participants were subjected to a barrage of suits resulting from their committee evaluations.

Jorstad, The Legal Liability of Medical Peer Review Participants for Revocation of Hospital Staff Privileges, 28 Drake L.Rev. 692, 693 (1978-79) (footnotes omitted).

In an effort to foster peer review participation, the Legislature enacted the immunity and confidentiality provisions of The Act:

The Peer Review Protection Act, through grants of immunity from liability, see 63 P.S. § 425.3, and of confidentiality, see id. § 425.4, encourages ‘review organizations,’ engaged in ‘peer review,’ ‘to gather and review information relating to the care and treatment of patients for the purpose of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.’
Id. § 425.2; see also Robinson v. Magovern, 83 F.R.D. 79, 87 (W.D.Pa.1979). Through these immunity and confidentiality provisions, then, the Legislature has sought to foster free and frank discussion by review organizations. Id.

Steel v. Weisberg (I), 347 Pa.Super. 106, 110, 500 A.2d 428, 430 (1985).

However, while the Legislature recognized the need for free and frank discussion, it also recognized that such discussion must represent fair comment and be suited to the fulfillment of the purposes of The Act. Thus, while The Act provides protection from legal liability to those who participate in this peer review process, such protection is not absolute. See Steel v. Weisberg II, 368 Pa.Super. 590, 534 A.2d 814 (1987), appeal dismissed, 525 Pa. 503, 582 A.2d 648 (1990).

The grant of immunity in the Act is set forth in section 425.3, which states:

§ 425.3. Immunity from liability
(a) Notwithstanding any other provision of law, no person providing information to any review organization shall be held, by reason of having provided such information to have violated any criminal law, or to be civilly liable under any law, unless:
(1) such information is unrelated to the performance of the duties and functions of such review organization, or
(2) such information is false and the person providing such information knew, or had reason to believe, that such information was false.
(b) (1) No individual who, as a member or employee of any review organization or who furnishes professional counsel or services to such organization, shall be held by reason of the performance by him of any duty, function, or activity authorized or required of review organizations, to have violated any criminal law, or to be civilly liable under any law, provided he has exercised due care.
(2) The provisions of paragraph (1) of the subsection shall not apply with respect to any action taken by any individual if such individual, in taking such action, was motivated by malice toward any person affected by such action.

1974, July 20, P.L. 564, No. 193, § 3, imd. effective.

63 P.S. § 425.3 (emphasis added).

It is on Subsection (b)(2) that appellant seeks to abrogate appellees’ immunity under The Act.

Initially, we note that the immunity provision set out in (b)(1) and its exception set out in (b)(2) of The Act is limited by its terms to individuals who participate in the review process. The Definitions section of the Act, § 425.2, defines “Peer Review” to mean the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other health care providers. The Act then further defines “Professional health care providers” to include individuals or organizations.

‘Professional health care provider’ means individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
(1) A physician.
(2) A dentist.
(3) A podiatrist.
(4) A chiropractor.
(5) An optometrist.
(6) A psychologist.
(7) A pharmacist.
(8) A registered or practical nurse.
(9) A physical therapist.
(10) An administrator of a hospital, a nursing or convalescent home, or other health care facility.
(11) A corporation or other organization operating a hospital, a nursing or convalescent home or other health care facility.

63 P.S. § 425.2.

Clearly, the Legislature recognized that hospitals, as organizations, are involved in the Peer Review Process. However, by limiting the immunity to individuals, the Legislature appears to have specifically declined to grant the immunity protection of the Act to the organizational health care provider itself. Therefore, appellant’s claims as against DVMC are not precluded by The Act.

We now review the trial court’s grant of summary judgment with respect to the other individual appellees. The trial court, in granting summary judgment, specifically found that there was “no genuine issue of material fact which would support either a finding that any of these defendants] acted maliciously or failed to exercise due care with respect to any of the review procedures in question.” Trial court opinion, 4/8/92 at 19. On the record before this court, we cannot completely agree.

When considering a challenge to an order granting a summary judgment motion, our standard of review is well-settled:

Summary judgment is only proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The movant must demonstrate that no genuine factual issues exist and that he is entitled to judgment as a matter of law. An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. All doubts must be resolved against the movant, as summary judgment is only proper in the clearest case. Nonetheless, the grant of summary judgment will only be reversed for an error of law or clear abuse of discretion.

Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991).

In order for appellant to proceed on various causes of action against the individual appellees based on their participation in his. review process, appellant must be able to establish that their actions toward him were motivated by malice.

The Peer Review Protection Act does not, itself, provide a definition of “malice.” However, other jurisdictions which have similar immunity provisions in peer review statutes have defined this term. We turn to one such jurisdiction for guidance. The Arizona Court of Appeals, in Scappatura v. Baptist Hospital, 120 Ariz. 204, 584 P.2d 1195 (1978), defined “malice,” in the context of peer review activities, as “ ‘a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.’ ... ‘[MJalice’ and ‘bad faith’ should, therefore, in this context mean a primary purpose other than the safeguarding of patients.” Id., 584 P.2d at 1201. We find this definition appropriate to our purposes and consistent with the general language of the Pennsylvania Act. Section 425.3(b)(2) of The Act affords immunity to individuals involved in peer review because such freedom from liability promotes the candor and cooperation of the participants in the process. Such an atmosphere serves the fundamental purposes of The Act, the safeguarding of patients and improving the quality and cost of medical care. The definition of malice proffered by the Scap patum court embraces those very concerns. It allows for the potential liability of participants in peer review only when their actions toward another are motivated by concerns other than patient safety and quality of care. Accordingly, the definition of malice established in Scappatura is consonant with the overall purposes of the Pennsylvania Act and with the limited culpability which the Legislature envisioned in drafting the provision of 425.3. However, we emphasize that this definition of malice is relevant only to the abrogation of immunity from suit and does not in itself form a basis for imposition of liability on an underlying claim.

Bearing this definition in mind, a review of the record demonstrates that genuine issues of fact existed as to whether the conduct of at least a limited number of appellees was motivated by such malice, and therefore, The Act’s protections would not apply. For example, in opposition to the summary judgment motion, appellant offered the deposition testimony of Gary Steinberg. Mr. Steinberg was the C.E.O. at Delaware Valley Medical Center from August 1983 through September 1985. During that period, Mr. Steinberg attended many committee meetings, including medical executive committee and credentials review committee meetings. Mr. Steinberg testified that the new rules and regulations adopted for the orthopedics department were not done in the best interest of the hospital, but more for the self-interest of the department members. Mr. Steinberg further testified that certain departments in the hospital, including orthopedics, were making staffing decisions based on self-interest concerns, rather than in the best interest of the hospital, and, in turn, ultimately the patients. Mr. Steinberg specifically identified several of the appellees as being motivated by concerns other than for the patients when making staffing decisions. He stated that the desire to limit competition motivated staffing decisions more often than the concerns of the patients and community.

Appellant also offered the deposition testimony of Dr. Jeffrey Lindenbaum. Dr. Lindenbaum has held staff privileges at DVMC since 1976 and has served in numerous administrative capacities as well. Dr. Lindenbaum has served on the Board of Directors; as a member of the Medical Executive Committee; as the Chairman of Quality Assurance; as Co-Chairman of the Intern and Resident Committee; and as Chairman of the General Practice Department.

When asked about committee meetings involving staffing decisions concerning assignment of Emergency Room patients, Dr. Lindenbaum testified that several of the appellees discussed changing the criteria for Emergency Room call duties for the specific purpose of making it much more difficult for new doctors to qualify to receive unassigned Emergency Room patients. Dr. Lindenbaum further testified that the committee members advocating the changes were from departments where residents were completing training and going into practice in competition with the staff doctors. Dr. Lindenbaum identified the Department of Orthopedics as one such department.

Finally, appellant presented the deposition testimony of Dr. Leonard Smith, one of the founders of DVMC. Dr. Smith testified that it was his belief that appellant posed a real competitive threat to Dr. Amster. Furthermore, Dr. Smith stated that on at least one occasion he heard Dr. Berman [one of the appellees herein] state, in relation to appellant, “We worked too hard to get where we are today and we’re not going to share it with anybody.” (Smith Deposition at 19.)

Reviewing the deposition testimony of these three witnesses, and considering the record in a light most favorable to appellant, there are genuine issues of fact concerning whether the conduct of at least some of the remaining appellees, relative to appellant’s peer review, meets the definition of malice as set out above. We are equally well aware that this deposition evidence seems to indicate that it was a small group whose actions were so motivated. Yet, that group is not readily identifiable based on the record before this court. Therefore, in consideration of our standard of review and because the trial court granted blanket judgment as to all appellees on the same basis, we are constrained to vacate the grant of summary judgment as to all the individual appellees on appeal.

In light of the necessity of a remand, we are compelled to emphasize appellant’s burden. The Legislature’s clear purpose in enacting the Peer Review Act was to protect peer review participants not just from liability but also from becoming involved in litigation at all. This purpose would be defeated if mere bald allegations or speculations about malicious intent were sufficient to pierce the immunity of The Act. A party seeking to circumvent the bar of The Act must set out his cause with specificity. It is precisely this standard which will deny substantial relief to appellant on remand. In his amended complaint, appellant has included most of the individuals who participated at any level in the challenged review process. The averments regarding most of these participants named by appellant are non-specific and fall under a general conspiracy theory. Such vague allegations are insufficient as a matter of law to pierce the protection of immunity afforded by The Act.

Looking at appellant’s complaint, his underlying premise regarding malice is that the instituting of a new set of credentialing criteria by the hospital and its board of directors was done solely to enhance their own economic self-interest. Consequently, when these criteria were utilized in his peer review process to find him wanting, it was a malicious abuse of the peer review process. Clearly, appellant’s claim relates to specific individuals who had some input in the development of the new credentialing criteria. Therefore, we agree with the trial court that to the extent other participants in the peer review process merely utilized the adopted set of criteria to assess appellant’s credentials, they were engaging in proper and protected peer review activity. Such activity will, and should, remain immune from civil liability.

On remand, the trial court should re-consider the summary judgment motion, and hold additional hearings, to identify those defendants who should properly be removed from this case. Bearing in mind our stated definition of “malice,” the trial court is instructed to determine as to which specific defendants factual disputes concerning “malice” exist. We add that this opinion decides only the issue of immunity and does not preclude the court’s consideration of other defenses or privileges to appellant’s claims.

In the context of his argument concerning the proper interpretation of the Peer Review Protection Act, appellant notes that his attempts at building a case have been thwarted by stifling discovery orders of the trial court. Appellant maintains that the trial court has improperly relied upon the confidentiality provision, section 425.4, of the Act to preclude him from engaging in meaningful discovery. We disagree.

Unfortunately, appellant fails to refer us to any specific instances where he was improperly prevented from discovering relevant material. However, our independent, thorough review of the record reveals only three instances where the trial court issued orders concerning discovery. Instantly, we must note that it appears from the record that appellant was entitled to discover all material pertaining to his own peer review procedures. The material which is the subject of the protective orders is not directly related to appellant’s peer review activity. For instance, appellant filed a Motion to Compel several peer review members to answer two types of questions which they had uniformly refused to answer during their deposition. One type involved general inquiries as to whether any other doctor or resident at DVMC had had their privileges restricted during the period from 1983 to 1987. The second type of questions involved whether Dr. Amster had ever had his qualifications considered and/or restricted.

The trial court issued an order prohibiting such inquiries. We see no error in such a ruling. Issues surrounding the confidentiality provision of the Act have most often been raised with respect to medical malpractice cases. Plaintiffs in such cases often seek to discover peer review information concerning the defendant doctor. In addressing such issues, this court has consistently held that while a medical malpractice plaintiff is entitled to his own medical records, he is precluded from discovering hospital peer review matters not reasonably associated with his cause of action, including complaints against defendant doctor by other patients. See Sanderson v. Frank S. Bryan, M.D. Ltd., 361 Pa.Super. 491, 522 A.2d 1138 (1987). We see no reason to differentiate when the plaintiff is a doctor allegedly aggrieved by the peer review process. Appellant was not precluded from asking any questions or discovering any material concerning his own peer review activity. It was only when appellant sought to delve into the peer review activity of others that doctors being deposed refused to answer. Furthermore, the trial court’s protective order only prohibits such general inquiries and apparently has not hampered discovery in any other way. In order to preserve the integrity and confidentiality of the peer review process, we agree with the trial court in issuing such a ruling.

The third discovery order concerns a report issued by The Hunter Group, a hospital consulting company. The protective order prohibiting discovery of this report does not specifically refer to the confidentiality provision of the Act as a reason for issuing the order. Rather, the trial court concludes that the bulk of the report consists of opinions which are not discoverable. Again, we find no reason to dispute this conclusion. However, neither party has engaged in any argument concerning this issue, and thus it would be premature to engage in protracted analysis concerning the discoverability of this matter at this point.

In sum, however, we cannot agree that appellant’s discovery has been so limited as to preclude him from establishing issues of fact concerning malice being the motivating factor behind his peer review process. Obviously, based upon our resolution of this case we have concluded from the deposition testimony of record that there exists sufficient question of fact such that the grant of summary judgment as to all appellees was improper. It only remains for the trial court to conduct hearings to properly limit the case to those individual defendants who are truly at the heart of these factual questions.

Finally, appellees argue that the trial court’s decision must be affirmed since appellant failed to challenge the trial court’s ruling that appellees were entitled to immunity pursuant to the terms of the Hospital Medical Staff Bylaws. Again, we disagree. The trial court, in granting the summary judgment motion, only discussed the Rosenberg case and the immunity provisions of the Peer Review Protection Act as providing the basis for its decision. The immunity section of the Hospital Bylaws was only mentioned once in the trial court’s opinion, and then only in conjunction with the Peer Review Protection Act. No discussion was offered by the trial court on the Hospital Bylaws as providing the basis for granting summary judgment. Furthermore, the immunity provision in the Bylaws is identical to that in the Peer Review Protection Act, in that no immunity is provided for actions motivated by malice. Accordingly, the arguments presented by appellant as to the Peer Review Protection Act would apply equally well to the Hospital Bylaws’ immunity provision. Furthermore, our resolution of the Peer Review Protection Act issue also applies to the immunity provided for under the Hospital Bylaws. Thus, we do not agree with appellees that we must affirm the trial court because appellant failed to specifically address this issue.

Order and judgment reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the result. Although there may well be members of the peer review process, including the Delaware Valley Medical Center itself, who will eventually be entitled to summary judgment, the trial court’s present order is premature. Therefore, I agree that the case must be remanded for further proceedings.

In doing so, I find it unnecessary to advance an all-inclusive definition of “malice” as that term has been used in the Peer Review Protection Act of July 20, 1974, P.L. 564, as amended, 63 P.S. § 425.1 et seq. I also find it unnecessary, for purposes of deciding the present appeal, to hold that the Peer Review Protection Act provides no protection for hospitals which have installed and relied upon the peer review process. It is enough that on the record now before this Court it cannot be determined as a matter of law that one or more of the named defendants did not act to preserve the “turf” of Dr. Amster rather than in the best interests of the hospital and its patients.

      . Dr. Harvie’s selection was based on the following criteria: "[1] complete objectivity and lack of bias in assessing the plaintiff; [2] no prior personal or professional contact with the defendant hospital or its medical staff members; [3] experience in determining clinical privileges; [4] AOA Board Certification; and [5] teaching experience." (Trial court opinion, 4/8/92 at 8-9.) Dr. Harvie was chosen from a list prepared by the American Academy of Osteopathic Orthopedic Surgeons pursuant to these qualifications.

      . Originally, there were thirty-six individual defendants apart from DVMC and Dr. Amster. However, after several petitions for voluntary discontinuance, only thirty such defendants remained at the time summary judgment motions were filed.

      . In response to Judge Brody’s trial court opinion, Rosenberg argued that he would concede that Holy Redeemer was neither a public or quasi-public hospital but rather was a public fiduciary. This court rejected this additional theory of relief on the grounds that judicial review is precluded unless it can be established that the hospital exercised a monopoly position in a particular geographical area. The Rosenberg trial court also denied relief on a claim presented by Dr. Rosenberg which alleged a violation on the basis of Pennsylvania Department of Health Regulations.

      . Appellant’s 1988 Philadelphia County Complaint was filed as an equity action. However, the complaint primarily seeks monetary damages for the alleged tortious conduct of the various defendants. In the alternative, the 1988 complaint requests injunctive relief. However, the request for injunctive relief was denied by order of the Court of Common Pleas of Philadelphia County on December 16, 1988. Thus, by the time this action was coordinated with the 1986 action and transferred to Bucks County, only monetary relief was being sought. No equity issues have been raised before this court.

      . Contrast Pennsylvania’s Peer Review Protection Act with Michigan’s which specifically provides immunity to any person, organization or entity participating in peer review activity, and also provides that said immunity shall "not apply to a person, organization, or entity that acts with malice.” M.C.L. § 331.531; M.S.A. § 14.57(21) (emphasis added).

        . In numerous other jurisdictions having similar peer review protection statutes, civil suits have been successfully litigated under the same causes of action advanced by appellant in this case. See Jorstad, The Legal Liability of Medical Peer Review Participants for Revocation of Hospital Staff Privileges, 28 Drake L.Rev. 692 (1978-79); Oliverio, Hospital Liability for Defamation of Character During the Peer Review Process: Sticks and Stones May Break My Bones, but Words May Cost Me My Job, 92 West Virginia L.Rev. 739 (1990). In both of these articles, the authors provide numerous examples of lawsuits brought as a result of the peer review process. The Jorstad article subdivides the actions based upon causes pled into the following categories: defamation, antitrust, interference with practice of profession, breach of contract, tortious interference with contractual relations, and negligence. These are the same causes raised by appellant in the present action. Furthermore, other jurisdictions which have recognized such civil suits include: California, Michigan, New Jersey, Missouri, Tennessee, Alabama, Minnesota, Illinois, West Virginia, and numerous federal district courts. The prevailing theme in all these cases is that the mere existence of a peer review immunity statute does not preclude, as a matter of law, civil litigation against review committee members or the hospital. See, e.g., Ascherman v. San Francisco Medical Society, 39 Cal.App.3d 623, 114 Cal.Rptr. 681 (1974).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    630 A.2d 14
    Nathan HIGGINBOTHAM and Jean Higginbotham, H/W v. FIBREBOARD CORPORATION, Keene Corporation, Owens-Illinois, Inc., GAF Corporation and Armstrong World Industries, Inc. Appeal of FIBREBOARD CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 30, 1993.
    Filed July 15, 1993.
    Reargument Denied Sept. 23, 1993.

      Richard T. Wentley, Pittsburgh, for appellant.
    Suzanne Reilly, Philadelphia, for appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

Defendant Fibreboard appeals from the December 10, 1991 judgment entered in favor of the plaintiffs, Nathan and Jean Higginbotham, after a jury found Mr. Higginbotham was injured as a result of his exposure to asbestos-containing products manufactured by the appellant and Mrs. Higginbotham was entitled to money damages for loss of consortium.

Appellant argues, inter alia, the court erred by allowing the jury to award damages on the basis appellee/husband might suffer or fears he might suffer an asbestos-related disease in the future. In support of its position, appellant relied at oral argument on this Court’s en bane Opinion in Marinari v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), wherein the “separate disease rule” was recognized and adopted as controlling in asbestos exposure actions. This rule allows a cause of action for nonmalignant, asbestos-related lung pathology and a later separate cause of action for cancer. For the reasons which follow, we vacate the judgment entered in favor of the plaintiffs and remand for a new trial in accordance with this Opinion.

The appellees’ complaint alleged Mr. Higginbotham suffered from pleural asbestosis. Although expert testimony was introduced in support of this averment and we do not deny pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action, see Marinari, supra, the jury charge delivered on damages contained the following erroneous instruction which, in light of the holding in Marinari, precludes a judgment in favor of plaintiffs.

Members of the jury, I will now charge on the damages. Please do not conclude I feel or do not feel plaintiffs should recover. However, if you feel plaintiffs should recover you must have guidelines to find a fair and adequate amount of compensation.

In each case if you find plaintiff has a compensable asbestos-related disease or injury this will be his only day in court.

Doctors testified [plaintiff] ... Nathan Higginbotham, [has] an increased risk of developing asbestos-related mesothelioma. You must determine if an increased risk exists and what figure, if any, is an appropriate award.

If you find an increased risk exists, please do three things. One, decide upon a figure you believe appropriate if plaintiffs develop mesothelioma.

Two, decide upon a fair percentage for plaintiffs increased risk.

And three, multiply the figure by the percentage to calculate a dollar amount, reasonably reflecting each plaintiffs increased risk.

All plaintiffs may recover for fear of contracting asbestos-related lung cancer and mesothelioma, if you find their fears are factually reasonable, legitimate and real.

Plaintiffs must prove by competent testimony, one, their fears are sincerely felt.

And two, the lung cancer and mesothelioma they fear may reasonably develop from their current condition.

There is no cause of action for risk or fear of asbestosis.

[Plaintiff] Nathan Higginbotham ... may be fairly and adequately compensated for all past, present and future asbestos-related physical pain, mental anguish, discomfort, inconvenience and distress.

(N.T., 4/17/91, pp. 156, 159-162.) This instruction does not allow for an accurate allocation of damages between appellee’s alleged pleural thickening and any speculative future malignancy for which recovery is precluded. Accordingly, the judgment cannot stand.

This, of course, rules out an award of damages based upon the fear of developing asbestos-related lung cancer or mesothelioma no matter how reasonable the basis for such fear. By establishing the two disease rule for recovery and eliminating the bar of the statute of limitations preventing an action for a malignancy which developed after the onset of asbestosis or pleural thickening, the need to anticipate all possible consequences arising out of a single disease approach has been obviated. Just as all [“past, present and future asbestos related physical pain, mental anguish, discomfort, inconvenience and distress” (Jury Instruction, N.T., 4/17/91, pp. 162) ] arising out of asbestosis or pleural thickening injuries may be fairly compensated in the initial asbestosis action, the same factors are relevant in establishing damages for the malignancy at the time it becomes actionable. No recovery may be had merely for the emotion and anguish arising from the possibility of the development of a malignancy. While the appellant did not frame its statement of the questions involved in this appeal on the erroneous charge by the court to the jury, the statements of question had to do with, first, whether recovery may be had because cancer or mesothelioma might occur in the future as a result of defendant’s wrongful conduct, and second, whether recovery is permitted because defendant suffers a fear that he might contract cancer or mesothelioma as a result of defendant’s wrongful conduct, which substantially centered on the court’s erroneous charge. These statements were more than adequate to permit this Court to conduct appellate review of the trial court’s governance of the case and to rule accordingly without being implicated in a sua sponte entertainment of the issues.

Morrison v. Fibreboard, — Pa.Super.-,---, 630 A.2d 437-438 (1993).

Although the Marinari Court found juries must now base their verdicts not upon speculation but on physically objective evidence of present injury, should Mr. Higginbotham at a future date develop an asbestos-related malignancy, he is not precluded from instituting a second action.

In light of our holding on the first two issues in favor of appellant’s position, we need not decide the issues related to the wife’s right to consortium and the propriety of delay damages as these are rendered moot.

Based on the foregoing, we vacate the judgment entered in favor of plaintiffs and against defendant Fibreboard and remand the matter for a new trial as to only those injuries presently suffered by Mr. Higginbotham.

Judgment vacated and case remanded.

Jurisdiction relinquished.

      . Although plaintiffs’ complaint included a number of other defendants, only Fibreboard is party to this appeal.

      . The judgment appealed from included personal injury damages, loss of consortium and delay damages.

      . This Court's en banc decision in Giffear v. Johns-Manville Corp., et al., — Pa.Super.-, 632 A.2d 880 (1993), has specifically overruled this panel's holding, based on Marinari v. Asbestos Corp. Ltd.., 417 Pa.Super. 440, 612 A.2d 1021 (1992), that asymptomatic pleural thickening is an injury giving rise to a cause of action. The Giffear Court stated: "Without evidence that such a condition [asymptomatic pleural thickening] is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-compensable injury and, therefore, does not give rise to a cause of action____ Thus, [Higginbotham v. Fibreboard, — Pa.Super. -, 630 A.2d 14 (1993), and Morrison v. Fibreboard, — Pa.Super.-, 630 A.2d 436 (1993) ] are overruled only to the extent that they cite Marinari to stand for the principle treating asymptomatic pleural thickening as a legally cognizable injury.” Giffear, supra at-, 632 A.2d at 888.

      . The jury instruction given by the court on April 17, 1991 was in compliance with Pennsylvania law as it existed at that time. However, in light of this Court’s en banc decision in Marinari v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), which was decided after the jury charge was given and all appellate briefs in this matter were filed, the court’s instructions are no longer an accurate representation of Pennsylvania law.


author: KELLY, Judge.

text:
    630 A.2d 16
    Allen POWELL and John Mitchell, Appellees, v. Robert Franklin WALKER and Charter Risk Retention Group Insurance Company. Appeal of CHARTER RISK RETENTION GROUP INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1993.
    Filed Aug. 4, 1993.

      Lawrence M. Kelly, Philadelphia, for appellant.
    Richard Farber, Philadelphia, for appellees.
    Before BECK, KELLY and BROSKY, JJ.
   KELLY, Judge.

In this case we are called upon to determine, among other issues, whether an automobile liability insurer may rescind an automobile policy after sixty days from its inception to prevent a claim by a third party. Pursuant to recent Superior Court precedent, we hold that the insurer cannot so rescind. Therefore, we affirm the trial court’s order requiring the liability insurer to compensate the third parties for injuries caused by the insured.

The parties stipulated to the following facts:

1. Charter Risk Retention Group Insurance Company [appellant] issued to Lucky Duck/555 Valley Corporation a fleet automobile liability insurance policy for a period beginning prior to August 30, 1990 and ending after August 30,1990 which policy was in full force and effect at all times pertinent to the action.
2. The aforesaid policy covered the motor vehicle owned by Lucky Duck/555 Valley Corporation (hereinafter referred to as “Lucky Duck”) and driven by Robert Walker involved in the accident on August 30, 1990.
3. Robert Walker rented a motor vehicle from Lucky Duck.
4. Robert Walker had rented the motor vehicle from Lucky Duck with the intent to use the motor vehicle for his own personal purposes and for the purpose of using it as an unlicensed vehicle for hire i.e. taxi cab.
5. Robert Walker was operating the Lucky Duck rental vehicle on August 30, 1990 when he was involved in an automobile accident.
6. At the time of the accident, Robert Walker was using the Lucky Duck rental vehicle for his own non-business personal use.

The rental agreement between Lucky Duck and Walker provides: “In no event shall the vehicle be used, operated or driven (1) for transportation of person for hire, express or implied----” Rental Agreement, paragraph 1. The rental agreement also states:

Lessor shall provide an automobile liability insurance policy for the benefit of Lessee and others of age 21 or older driving with his prior consent, with limits of $100,000 for injury or death of any one person, $300,000 for injuries or death in any one accident and $25,000 in the case of a car and $50,000 in the case of a truck for property damage in any one accident. Lessee agrees to comply with and be bound by all the terms, conditions, limitations and restrictions of such policy as if here fully set forth, including any of the same not specifically mentioned herein. Such policy shall not apply ... (3) to any liability of Lessee or any driver, or any employer of either, arising while the vehicle is being used in violation of any of the limitations set forth in Paragraph 1, above....

Rental Agreement, paragraph 5.

As a result of the automobile accident, the occupants of the other vehicle, Allen Powell and John Mitchell (appellees), alleged personal injuries in a law suit against Robert Walker. Walker sought indemnity from appellant, the liability insurer. Appellant denied coverage, stating, inter alia, that the rental agreement, which provided insurance coverage, was void ab initio because Walker had made material misrepresentations when he signed the rental agreement.

Appellees then instituted a declaratory judgment action seeking a determination that appellant was liable for appellees’ injuries pursuant to the liability insurance portion of the rental agreement. Appellant answered and filed a New Matter, asserting that Walker was not a permissive user of the vehicle and that Walker had procured the rental vehicle through fraud and misrepresentation. The parties stipulated to the facts set forth above, and based upon the record, the court decided in appellees’ favor. Judgment was entered on the trial court’s order, and appellant timely appealed.

On appeal, appellant presents the following question for our review:

WHETHER THE LOWER COURT ERRED BY REQUIRING [APPELLANT] TO PROVIDE COVERAGE FOR INJURIES TO [APPELLEES] WHICH WERE ALLEGEDLY SUSTAINED AS THE RESULT OF AN AUTOMOBILE ACCIDENT BETWEEN ROBERT WALKER, THE LESSEE OF A RENTED CAR, AND [APPELLEES] WHEN THE CAR RENTAL AGREEMENT WHICH GAVE RISE TO THE COVERAGE WAS VOID AB INITIO BECAUSE ROBERT WALKER WAS NOT A PERMISSIVE USER OF THE AUTOMOBILE AND BECAUSE HE MISREPRESENTED A MATERIAL PROVISION IN THE CAR RENTAL AGREEMENT.

Appellant’s Brief at 3. Appellant contends that the trial court erred for three reasons. First, appellant argues that Walker was not a permissive user of the rental vehicle. Next, appellant argues that the insurance provision of the rental agreement was void ab initio because Walker had made material misrepresentations when applying for the rental car. Finally, appellant asserts that the language of the insurance portion of the rental agreement excludes coverage if the vehicle was used as vehicle for hire.

Relying upon Searfoss v. Avis Rent-A-Car Systems, Inc., 349 Pa.Super. 482, 503 A.2d 950 (1986), appellant first argues that Walker was not a permissive user of the rental vehicle which he was driving at the time of the accident. According to appellant, Walker did not have permission to drive the vehicle because when he rented it, he possessed a present intent to use the ear for both personal and business use. Appellant recognizes that the facts of record do not establish that appellant ever actually used the car for business purposes. Nonetheless, appellant maintains that Walker’s unpermissive intended use precludes coverage regardless of actual use. We disagree.

In Searfoss, supra, this Court was asked to review whether a car rental company had given implied or express consent for the lessee’s son, who was younger than twenty-one years old, to use the rented vehicle. One of the terms of the rental agreement provided that family members could drive the rented car but only if they were “... at least twenty-one years old — ” Id. at 485, 503 A.2d at 951. We enforced the unambiguous terms of the agreement and held that lessee’s son was not permitted to use the rental car. Therefore, the liability coverage provided by the rental company which applied only to permissive users, did not indemnify the son. Id. at 489, 503 A.2d at 953.

In the instant case, there was no unpermissive use. Walker was driving the car for personal use when the accident occurred. Moreover, the bare facts of record reveal no evidence that Walker had ever used the car in a way not permitted by the rental agreement.

The instant case differs from Searfoss, supra because in Searfoss, the car was being used in clear violation of the rental agreement. Instantly, at the time of the accident, the car was not being used in violation of the rental agreement. Therefore, we reject appellant’s argument which is based upon the assertion of an impermissible use by Walker.

Next, appellant argues that Walker’s statements of intended use amounted to a material misrepresentation because he harbored a present intent to use the car both for personal use and to carry passengers for hire. Due to this misrepresentation, appellant argues, the rental agreement was void ab initio. Appellant, therefore, concludes that neither Walker nor appellees could assert a claim under the insurance portion of the rental agreement. We disagree.

In Metropolitan Prop. & Liab. Ins. Co. v. Insurance Comm’r (Bonnie Beck), 517 Pa. 218, 535 A.2d 588 (1987) (plurality) [hereinafter “Bonnie Beck”], our Supreme Court held that an automobile insurer may not rescind an automobile insurance policy upon learning that the application for insurance contained material misrepresentations. In the Opinion Announcing the Judgment of the Court, Justice McDermott reasoned that the General Assembly intended to preempt the common law right of rescission by enacting a comprehensive process for insurance companies to cancel automobile insurance policies due to misrepresentations by an applicant. See 40 P.S. §§ 1008.1-1008.11. Justice McDermott’s plurality opinion explained that the legislature had amended the statute to provide for structured cancellation, even when

... the insured has concealed a material fact, or has made a material allegation contrary to fact, or has made a misrepresentation of a material fact and that such concealment, allegation or misrepresentation was material to the acceptance of the risk by the insurer.

40 P.S. § 1008.4(3). Therefore, according to the plurality, instead of having the right to rescind the insurance contract, an automobile insurer in Pennsylvania would only be able to cancel the policy, thereby remaining liable for injuries and damages incurred before the cancellation.

The Bonnie Beck plurality drew a concurrence, written by Chief Justice Nix and joined by Justices Flaherty and Papadakos, which agreed that the insurers in that case were not entitled to rescind, but opined that Justice McDermott’s opinion too broadly construed the legislation as preempting the common law right to rescission.- Chief Justice Nix and the two Justices who joined him found a misrepresentation as to driving record immaterial to property damage caused by vandalism.

The view of Chief Justice Nix, that the statutory scheme on cancellation did not preclude the right to rescind, prevailed, to a limited extent. In Klopp v. Keystone Ins. Co., 528 Pa. 1, 595 A.2d 1 (1991), our Supreme Court decided the issue of “whether the legislature intended to exclude recission altogether as a remedy by the passage of Act 78.” Id. at 6, 595 A.2d at 3. The court held that “Act 78 does not abrogate an automobile insurer’s common law right to rescind a policy for sixty days after the policy is written.” Id. Quoting a portion of the statute that provided: “Nothing in this act shall apply: ... (3) To any policy of automobile insurance which has been in effect less than sixty days____,” the Supreme Court held that the insurer was entitled to enforce all of its common law remedies until the statutory scheme applies. Id. at 6-7, 595 A.2d at 3, quoting 40 P.S. 1008.6(3).

The court in Klopp did not decide or opine whether the right to rescind applies beyond sixty days after the effective date of the policy. Nonetheless, a recent Superior Court decision holds that an automobile insurer has no right to rescind a policy after sixty days in order to deny a claim of an innocent third party:

The outcome of the instant case is not controlled by either Klopp or Shemory [v. Keystone Ins. Co., 420 Pa.Super. 405, 616 A.2d 1036 (1992) ], however. Royal sought neither cancellation nor rescission within the prescribed sixty day period. Although there is some dispute as to the effective date of the binder issue to Mr. Huffine, the certified record discloses that it was effective either on the 24th or 25th of April 1985. That the accident underlying the instant appeal occurred on June 20th, fifty-seven days into the binder period, is irrelevant. Royal did not attempt either to cancel the binder or seek rescission until July 28, 1985, well over sixty days after the binder’s April effective date. Within the parameters defined by Klopp and explicated by Shemory, Royal Insurance Company failed to act on a timely basis to protect its rights and is therefore ineligible to receive common law rescission.

Strickler v. Huffine, 421 Pa.Super. 463, 469-70, 618 A.2d 430, 433-34 (1992). Therefore, within sixty days, an automobile insurer can rescind an insurance policy for material misrepresentation. See Klopp, supra (first party); Shemory, supra (third party). However, after sixty days, in a contest between a third party and a defendant’s liability insurer, the insurer is limited to the cancellation process provided by the insurance statute. Strickler, supra. In accord, State Farm Mut. Auto. Ins. Co. v. Armstrong, et al., 949 F.2d 99 (3rd Cir.1991) (pursuant to Pennsylvania law, in suit involving several third-party claimants, where liability insurer attempted to rescind policy beyond sixty days after the policy’s inception, policy was not void ab initio ).

Our Supreme Court has opined that “[i]t is the custom of the insurance industry, and sound public policy, to provide on-the-spot temporary insurance coverage in the form of a binder until the application information can be verified and a formal policy issued.” Klopp, supra 528 Pa. at 7 n. 5, 595 A.2d at 4 n. 5. Pursuant to the sixty-day window in which the insurer may exercise the common law right of rescission, insurers can immediately underwrite risks via the issuance of binders and then verify the insured’s representations within sixty days to protect themselves from liability for a third-party suit against a dishonest insured. However, insurers are not given more than sixty days from the policy’s inception to conduct their investigation and conclude that the policy is of no legal significance, if the claim arises from a third party.

In the instant case, the parties stipulated that the fleet insurance policy was in effect prior to August 30, 1990, the date of the accident. The record reveals that an adjuster, on behalf of appellant, did not decline coverage until July 19, 1991. There is no indication that appellant rescinded as to Walker within sixty days of the policy’s inception.

Appellant did not have a right to rescind the policy as to appellee because it did not rescind within the sixty-day window. Strickler, supra. Therefore, appellant is not entitled to relief pursuant to Shemory, supra.

Appellant also relies upon exclusionary language in the rental agreement for its position that the policy provided no coverage to appellees. We disagree.

The exclusion states that lessor shall provide certain liability insurance, but, “... [s]uch policy shall not apply ... (3) To any liability of Lessee or driver; or any employer of either, arising while the vehicle is being used in violation of any of the limitations set forth in paragraph 1 above.” See Rental Agreement, paragraph 5. Therefore, liability insurance coverage is excluded only while the vehicle is being used in violation of the lease agreement’s paragraph 1, which, in relevant part, provides: “In no event shall the vehicle be used, operated or driven (1) for transportation of persons for hire, express or implied----” Rental Agreement, paragraph 1.

The stipulated facts provide that “Robert Walker was operating the Lucky Duck rental vehicle on August 30,1990 when he was involved in an auto accident. At the time of the accident, Robert Walker was using the Lucky Duck rental vehicle for his own non-business personal use.”

The exclusion does not preclude coverage in the instant case because appellees’ injuries did not arise while the vehicle was being used in violation of a lease term. Hence, appellant cannot properly disclaim coverage on the basis of this exclusion.

Walker was a permissive user, appellant cannot rescind the policy and there are no relevant exclusions precluding coverage. Therefore, we affirm the judgment entered.

Judgment affirmed.

BECK, J., concurs in the result.

      . We do not address whether Walker's misrepresentation was "material." Whether a misrepresentation in an insurance application is material, where the misrepresentation is not related to the one risk which eventually caused the loss or injury, is an issue which has been approached in conflicting ways. Compare Metropolitan Prop. & Liab.

        Ins. Co. v. Insurance Comm’r (Bonnie Beck), 517 Pa. 218, 233, 535 A.2d 588, 596 (1987) (Nix, C.J., concurring) ("Property damage by vandalism or theft of a vehicle and its contents has no relationship to the drivers’ misstatements as to their prior driving records.”), with Shafer v. John Hancock Mut. Life Ins. Co., 410 Pa. 394, 189 A.2d 234 (1963) (life insurer entitled to rescind policy because applicant lied about health on application, even though applicant’s death was a result of an automobile accident).
      Moreover, in the instant case, this issue is especially difficult. The lease agreement provides that the lessee should not use the leased auto to carry passengers for hire. The insurance portion of the lease agreement states that there will be no insurance coverage for losses or injuries arising out of an accident while the automobile was being used in violation of the lease agreement.
      Therefore, on the one hand, a present intention to use the leased car in the future for carrying passengers for a fee would seem to be material, insofar as the lessor would likely resist leasing the car for such purposes and the liability insurer would likely not underwrite such a risk or do so only for higher premiums. See A.G. Allebach, Inc. v. Hurley, 373 Pa.Super. 41, 52 540 A.2d 289, 295 (1988) ("Information is said to be material if knowledge or ignorance of it would naturally influence the judgment of the insurer in issuing the policy, in estimating the degree and character of the risk, or in fixing the premium rate.”). On the other hand, by expressly excluding coverage for injuries arising from an accident when the car was being used in violation of the lease agreement, the insurer may have intended to enter into a binding contract of insurance with the lessee, even if the car would sometimes be used to carry passengers for a fee. The insurer would thereby insulate itself from claims arising from an accident caused by the leased car while it was being used for carrying passengers for hire, while underwriting the risks of injuries or losses occurring while the leased car was being driven for personal use.
      While we recognize the troublesome issue in this case, i.e., whether lessee’s intention to use the car for personal use and to carry passengers for a fee constituted a material misrepresentation, this issue need not be decided. For the reasons discussed in the text, appellant cannot treat the insurance policy as void ab initio, at least as to appellees, even if lessee's statements constituted a material misrepresentation.

      . Justice Zappala joined the Opinion Announcing the Judgment of the Court. Chief Justice Nix wrote a concurrence which Justices Flaherty and Papadakos joined. Justice Larsen concurred in the result. Justice Hutchinson did not participate in the decision of the case.

      . Rescission of a contract and cancellation of a contract are two separate and distinct legal concepts. A rescission amounts to the unmaking of a contract and is not merely a termination of the rights and obligations of the parties towards each other, but is an abrogation of all rights and responsibilities of the parties towards each other from the inception of the contract. It is a form of retroactive relief. Cancellation is an act destroying the force and effectiveness of the contract, and is a form of prospective relief, affecting the future rights and obligations of the parties towards each other. The General Assembly is cognizant of the difference between these legal concepts.

        Klopp v. Keystone Ins. Co., 528 Pa. 1, 7 n. 6, 595 A.2d 1, 4 n. 6 (1991) (quotations omitted).

      . In Shemory, supra, this Court held that a party injured in an automobile accident cannot bring a direct action against an alleged tortfeasor's insurance carrier when the insurance policy was void ab initio for fraud in the application. The insurance policy in Shemory was void ab initio because the policy was procured through misrepresentation and the insurer rescinded it within sixty days of its issuance. The injured third party has moved for Supreme Court review of the case on December 6, 1992. As of the writing of this concurrence, the Supreme Court has neither granted nor denied the petition for allocatur.

      . The different positions taken by the Justices in the Bonnie Beck case establish no majority holding as to whether an automobile insurer retains the common law right to rescind an auto insurance policy as void ab inito beyond sixty days against an insured who has made a material misrepresentation. While Bonnie Beck involved first party claims, the insurers therein rescinded the policies within sixty days. See id. 517 Pa. at 221-22, 535 A.2d at 589-90. Strickler, supra; Shemory, supra; and Armstrong, supra each involved third party claimants. Klopp, supra, involved a claim by the insured against her liability insurer, and the insurer rescinded the policy within sixty days. Therefore, the insurer’s right to rescind an automobile insurance policy against the misrepresenting insured beyond sixty days after the policy's inception has not been held to be preempted by the cancellation provisions of the insurance statutes, 40 P.S. §§ 1008.1-1008.11. As that issue is not before us in this case, we offer no opinion as to its resolution.

      . We recognize that this Court recently addressed a similar, yet distinct exclusion in Ratush v. Nationwide Mut. Ins. Co., 422 Pa.Super. 389, 619 A.2d 733 (1992). The exclusionary language in Ratush stated that:
      "There is no coverage for use by any insured of any vehicle to carry persons or property for a fee.” See id. at 390 n. 1, 619 A.2d at 733 n. 1. The court noted that it would interpret that exclusion and a different one, which was arguably applicable in the case, the same way: that as long as the car was a taxi, the personal automobile policy which the taxi driver's wife had purchased did not provide coverage. In Ratush, the car was undeniably a "taxi” and the accident occurred while the taxi was unoccupied by passengers but when the driver was willing to pick up passengers. Therefore, in that case, the car was being used as a taxi. In the instant case, however, the parties have stipulated that lessee was using the car for his own personal use. The parties are bound to such stipulation. Light v. Miller, 303 Pa.Super. 527, 530, 450 A.2d 51, 53 (1982). Therefore, we give the instant exclusion its plain meaning and hold that it does not apply herein because, at the time of the accident, the car was not being used for transportation of persons for hire.


author: POPOVICH, Judge:

text:
    630 A.2d 22
    Norman K. YOUNG, Sr., v. Doug DART and Chrysler Corp., Appellees, v. RAM COUNTRY CHRYSLER, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Aug. 13, 1993.

      Henry W. Gent, III, Franklin, for appellant.
    Bruce T. Rosen, Oil City, for Doug Dart, appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Venango County denying appellant’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Herein, we are presented with questions pertaining to the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (“UTPCPL”) and the Automobile Lemon Law, 73 P.S. § 1951 et seq. Upon review, we affirm.

The facts as set forth by the trial court are as follows: [P]laintiff purchase[d] ... a 1989 Plymouth Reliant sedan, manufactured by Defendant, Chrysler Corp., from Defendant, Doug Dart, a new car dealer on March 11, 1989. Defendant, Doug Dart, had obtained the vehicle from another car dealer, [appellant], Ram Country Chrysler, Inc., on February 17, 1989. [Appellant], Ram Country Chrysler, Inc., had taken delivery of the vehicle from Defendant, Chrysler Corp., on January 6, 1989.
From March 22, 1989, to September 27, 1989, Plaintiff returned the vehicle with complaints about the vehicle’s operation and/or condition to either Defendant, Doug Dart, or to Wasko Motors, a Chrysler Dealer where the plaintiff resides, a total of nine (9) times. On one of the occasions, Plaintiff was advised by Wasko’s mechanic that portions of the rear body of the vehicle had been damaged and repaired. At that time, shattered glass was found under the hood of the vehicle indicating that some other part of the vehicle had also been damaged. After Plaintiff was dissatisfied with Chrysler’s consumer arbitration proposal (73 P.S. § 1959), Plaintiff thereafter filed suit against Defendants, Doug Dart and Chrysler Corp. The action contained two (2) counts, one under the Automobile Lemon Law, 73 P.S. § 1951, et seq., and a second pursuant to the Unfair Trade Practices and Consumer Protection Law 73 P.S. § 201-1, et seq., for representing that that vehicle was new. Defendant, Doug Dart, then filed a Complaint against [appellant], Ram Country Chrysler, Inc.
After trial, the jury answered interrogatories and returned a verdict in favor of Plaintiff and against Defendant, Chrysler Corp., on the [A]utomobile Lemon Law Claim. The jury found Plaintiff was entitled to recover the purchase price of the vehicle ($12,800.68), less 10 cents per mile for each mile put on the vehicle by Plaintiff prior to his first report of the defect to Chrysler or its authorized dealer (2,995 miles). The jury also found that the plaintiff sustained $400.00 in collateral damages. The jury also returned a verdict in favor of Plaintiff and against all defendants on the warranty claim. On this claim, the jury found Plaintiff was entitled to recover the cost of the vehicle ($12,800.68), less the value the plaintiff had received from its use ($4,858.20). The jury also found the plaintiff sustained $124.97 in incidental damages and $700.00 in consequential damages.
On motions of all counsel, the Court molded the jury’s verdict as a result of the jury’s findings and indemnity claims in this case. The Court molded the verdict as follows: (1) In favor of Plaintiff and against Defendant, Chrysler Corp., in the sum of $30,081.99. Plaintiff is entitled to all costs and interest at 6 percent, simple, on $11,920.61 from March 11, 1989. Plaintiff must return the vehicle to Chrysler in reasonably good condition by delivery of the vehicle to Doug Dart or other nearby dealer upon tender of the above sum by Chrysler Corp. (2) In favor of Plaintiff and against Defendant, Doug Dart, in the sum of $424.97 with interest thereon at 6 percent, simple, from March 11, 1989. (3) Indemnity claim in favor of Defendant, Chrysler Corp., and against Defendant, Doug Dart, in the sum of $9,863.48 with interest on $7,942.48 from March 11, 1989, at 6 percent, simple, plus two-thirds of all court costs. Defendant, Doug Dart, is entitled to the vehicle upon tender of the above sums to Chrysler Corp. (4) Indemnity claim in favor of Defendant, Doug Dart, and against [appellant], Ram Country Chrysler, Inc., in the sum of $9,863.48 (cost of vehicle less value of Plaintiffs use plus litigation expenses incurred and charged to Doug Dart), with interest to Doug Dart on $7,942.48 from March 11,1989, at 6 percent, simple, plus one-third of all court costs. [Appellant], Ram Country Chrysler, Inc., is entitled to the vehicle from Defendant, Doug Dart, upon payment of the above sum to Defendant, Doug Dart. [Appellant], Ram Country Chrysler, Inc., thereafter filed the present Motion for Judgment Notwithstanding the Verdict or, in the alternative, for new Trial,

Trial Court Opinion, pp. 1-3. The lower court denied appellant’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Judgment was entered in favor of appellee, and this appeal followed.

Appellant raises the following issues for our review:

I. WHETHER THE EVIDENCE IS SUFFICIENT TO ESTABLISH FACTS WHICH FURNISH A LEGAL BASIS FOR AN ASSESSMENT OF DAMAGES UNDER THE UNFAIR TRADE AND PRACTICES AND CONSUMER PROTECTION LAW.
II. IS A MOTOR VEHICLE DEALER LIABLE, EITHER DIRECTLY OF INDIRECTLY, FOR DAMAGES UNDER THE AUTOMOBILE LEMON LAW, EVEN IF A PORTION OF THE DAMAGES AWARDED ARE BASED UPON THE SECTION OF THE AUTOMOBILE LEMON LAW WHICH STATES THAT A VIOLATION THEREOF SHALL ALSO BE A VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW.

Appellant’s Brief, p. 3.

“Our standard of review of an order denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict.” Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 312, 605 A.2d 373, 375 (1992), alloc. denied, 532 Pa. 665, 616 A.2d 985 (1992), quoting, Wenrick v. Schlowmann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). “We must ... afford the verdict winner the benefit of every inference which may reasonably be drawn from the evidence, while rejecting all unfavorable testimony and inferences.” Pirozzi, 413 Pa.Super. at 312, 605 A.2d at 375, quoting, Ingrassia Construction Company, Inc, v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984).

“The standard of review for an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Pirozzi, 413 Pa.Super. at 312, 605 A.2d at 375, quoting, Stevenson v. General Motors Corp., 513 Pa. 411, 425, 521 A.2d 413, 420-421 (1987). “If support for the trial court’s decision is found in the record, the order must be affirmed.” Pirozzi, 413 Pa.Super. at 312-13, 605 A.2d at 375, quoting, Commonwealth ex rel. Meyers v. Stern, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985).

We begin our discussion by addressing the second issue posed above. Appellant maintains that the Automobile Lemon Law permits a recovery by a consumer only against a manufacturer of a motor vehicle. Appellant further contends that Dart’s indemnification claim against appellant is invalid because the Automobile Lemon Law does not allow for recovery against a motor vehicle dealer. Appellant structures that argument as follows:

The award to the Plaintiff as set forth in the molded verdict is against Chrysler and Chrysler’s only liability, as found by the jury, is under the Automobile Lemon Law. Although the violation of the Automobile Lemon Law by Chrysler does also justify an award against Chrysler under the Unfair Trade Practices and Consumer Protection Law (73 P.S. § 1961), Chrysler is not entitled to indemnification from Dart since Dart is a motor vehicle dealer and cannot be held liable, directly or indirectly for any damages awarded to [plaintiff] under the Automobile Lemon Law. Accordingly, if an indemnification claim against Dart is not justified, Dart has no basis for an indemnification claim against Ram Country.

Appellant’s Brief, pp. 6-7.

Appellant suggests that our court should be guided by the language of the Automobile Lemon Law in determining the validity of Dart’s indemnification claim against appellant. However, in order to properly analyze this issue, we apply principles of indemnity. “[T]he common law right of indemnity is ... a fault shifting mechanism, operable only when a defendant who has been held liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss.” Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 571, 506 A.2d 868 (1986) (emphasis added). See Oblon v. LudlowFourth Corp., 406 Pa.Super. 591, 595 A.2d 62 (1991), alloc. denied, 533 Pa. 600, 617 A.2d 1274 (one is entitled to indemnity if that person, although not at fault, becomes legally obligated to pay damages to a plaintiff who has suffered injury caused by a third party). “[A] court must look to whether the party seeking indemnity had any part in causing the injury.” Sirianni, 509 Pa. at 571, 506 A.2d at 871.

By operation of law, Chrysler Corp. was held liable under the Automobile Lemon Law. The Automobile Lemon Law imposes an absolute duty upon manufacturers of automobiles to “repair or correct, at no cost to the purchaser, a nonconformity ... which may occur within a period of one year following the actual delivery of the vehicle to the purchaser, within the first 12,000 miles of use or during the term of the warranty, whichever may first occur.” 73 P.S. § 1954(a). Further, “[i]f the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts,” it has a duty to either replace or refund the motor vehicle. 73 P.S. § 1955. Upon rendering its verdict, the jury answered “no” to the following question, “Did the defect which you find to have existed at the time of delivery of the Reliant to the Plaintiff exist at the time of the delivery of the Reliant by Chrysler to Ram Country Chrysler?” Jury Verdict re Warranty Claim 11/22/91, Q.6. In light of that finding of fact, we conclude that Chrysler Corp. had no part in causing the defect to plaintiffs automobile. Consequently, contrary to appellant’s contention, Chrysler’s indemnification claim against Dart is warranted. Cf. Mattia v. Sears, Roebuck & Co., 366 Pa.Super. 504, 508, 531 A.2d 789, 792 (1987), appeal denied, 519 Pa. 660, 546 A.2d 622 (retailer not entitled to indemnity against manufacturer where the jury made a specific determination that the product was not defective when it left the manufacturer’s control).

Appellant’s argument that Dart’s indemnification claim is invalid against appellant is derived from the assertion that Chrysler’s indemnification claim is invalid against Dart. However, as determined above, Chrysler is entitled to indemnity against Dart. Moreover, we note with importance, that the jury answered “yes” to the following question in reaching its verdict, “Did the defect that you find exist at the time the Reliant was delivered to the Defendant, Doug Dart by Ram Country Chrysler?” Jury Verdict re Warranty Claim 11/22/91, Q.3. We conclude that Dart’s indemnification claim against appellant is justified. Hence, we find the second issue raised by appellant lacks merit.

Directing our attention to the first issue posed by appellant, we find that there was sufficient evidence to support the jury’s determination of actual damages pursuant to the UTPCPL, and that the lower court did not commit an error of law in its assessment of those damages. Section 201-9.2(a) of the UTPCPL provides for recovery of actual damages as follows:

§ 201-9.2 Private actions
(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and provide such additional relief as it deems necessary or proper.

73 P.S. § 201-9.2(a).

In determining that sufficient evidence existed to support the jury’s verdict, the lower court found the testimony presented by plaintiff convincing.

It is obvious from the verdict that the jury exercised their right to believe the evidence presented by Plaintiff on this issue. Plaintiff testified to numerous problems and repairs with regard to his vehicle [Trial N.T., pp. 17-56]: dents on the vehicle; scratches on the windshield; rough idle; vehicle intermittently cuts out; headlamps needed to be adjusted; grinding noise under front end; water leakage in trunk; water leaking around driver’s door; gap in wheelwell; broken glass under hood of vehicle; new thermostat installed; rust inside driver’s door; exhaust leakage; paint on left and right rear quarter panels; tire wore unevenly and had to be replaced several times; replaced brake shoes. In addition, Robert Cinibulk, Plaintiffs expert witness, testified that the right rear quarter panel of Plaintiffs vehicle was previously damaged and repaired. [Trial N.T., pp. 108-113]. Another witness for the plaintiff, Gregory Foringer, an autobody repairman at Wasko Motors, testified that the plaintiffs vehicle had been wrecked, and mig welding was done to the rear quarter panel. This is a type of welding not usually done at a new car factory. [Trial N.T., pp. 189-192]....
The jury’s finding supports Plaintiffs contention that he is entitled to damages for the amount paid the defendants for the vehicle. By contending that Plaintiff had not presented any evidence regarding the actual damages suffered by him, the [appellant] disregards all of the evidence presented at trial by Plaintiff relative to his vehicle damage. [Appellant] also overlooks the fact that the actual damage claim by Plaintiff is the cost of the vehicle____ Therefore, we find there to be sufficient evidence to support the jury’s finding that Plaintiffs actual damages in this case were the cost of the vehicle, less the value Plaintiff received from its use, $124.97 in incidental damages and $700.00 in consequential damages.

Trial Court Opinion, pp. 7-9.

The UTPCPL does not set forth a formula for the assessment of actual damages. Appellant asserts that the lower court erred in not applying the measurement of damages provided under § 928 of the Restatement (Second) of Torts.

§ 928. Harm to Chattels
When one is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
(a) the difference between the value of the chattel before the harm and the value after the harm or, at his election in an appropriate case, the reasonable cost of repair or restoration, with due allowance for any difference between the original value and the value after repairs, and
(b) the loss of use.

Restatement (Second) of Torts § 928. Because the plaintiff did not present evidence to establish the fair market value of the motor vehicle as damaged or the cost of repairs of the motor vehicle, appellant contends that there was insufficient evidence to furnish a legal basis for an assessment of actual damages under the UTPCPL.

Instead of applying the aforesaid measurement of damages, the lower court assessed the plaintiffs actual damages as the cost of the vehicle ($12,800.68), less the value the plaintiff had received from its use ($4,858.20), $124.97 in incidental damages and $700.00 in consequential damages. Further, the court ordered the return of the motor vehicle by the plaintiff. Appellant contends that the court below essentially applied the formula prescribed by § 1955 of the Automobile Lemon Law for its measurement of actual damages pursuant to the UTPCPL. Section 1955 of the Automobile Lemon Law provides in relevant part:

If the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle with a comparable motor vehicle of equal value or accept return of the vehicle from the purchaser and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchaser’s use of the vehicle not exceeding 10 cents per mile driven or 10% of the purchase price of the vehicle, whichever is less____

73 P.S. § 1955. Although, the measurement of actual damages used by the court below resembles the remedy provided under § 1955 of the Automobile Lemon Law, we find that the lower court did not commit an error of law or abuse its discretion in its analysis of damages.

The jury found that the motor vehicle became defective when it was in the possession of appellant, and that the motor vehicle was defective when it was delivered to the plaintiff. Jury Verdict re Warranty Claim 11/22/91, Q.1, 3, 6. Under these particular circumstances, we are of the opinion that § 928 of the Restatement (Second) of Torts does not provide adequate guidance to an issue that is contractual in nature. The plaintiff bargained for a new 1989 Plymouth Reliant sedan. Indeed, the motor vehicle was represented to the plaintiff as being original and new. Instead, the automobile was damaged and reconditioned when it was in the control of appellant.

Generally speaking, the measure of damages applicable in a case of breach of contract is that the aggrieved party should be placed as nearly as possible in the same position he would have occupied had there been no breach. In other words, he is entitled to be reimbursed for the money actually paid out and for all reasonable and proper expenses incurred on the faith of the contract.

Harman v. Chambers, 358 Pa. 516, 57 A.2d 842 (1948). At the time the plaintiff purchased the motor vehicle for $12,800.68, the vehicle was already in defective condition. The lower court determined that the plaintiff was entitled to be reimbursed for the $12,800.68 he paid for the automobile. From that amount, the court below subtracted the value the plaintiff had received from the vehicle’s use ($4,858.20). The lower court may have reasoned that the subtraction was necessary in this case in order to conform to the expectations of the parties rather than to allow the plaintiff from being unjustly enriched. Nevertheless, we conclude that there was sufficient evidence to support the jury’s finding of actual damages under the UTPCPL, and that the lower court did not commit an error of law nor abuse its discretion in its measurement of those damages. Accordingly, we affirm the judgment.

Judgment affirmed.

WIEAND, J., concurs in the result.

      . In its order dated September 30, 1992, the lower court denied appellant's motion for judgment notwithstanding the verdict or, in the alternative for a new trial, and it directed the prothonotary to enter judgment in favor of the plaintiff in accordance with the molded verdict dated January 27, 1992.

      . Appellant contends that the figure, $4,858.20, "came out of thin air and was not presented into evidence by any party to these proceedings." Appellant's Brief, p. 12. "The determination of damages lies initially within the discretion of the jury, which weighs the evidence and assesses the credibility of the witnesses.” Glomb v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362 (1987), appeal denied, 517 Pa. 623, 538 A.2d 876. Here, the jury found that the plaintiff had received $4,858.20 from the use of the Reliant. Jury Verdict re Warranty Claim 11/22/91, Q.13a. The plaintiff purchased the Reliant on March 11, 1989 and was still in possession of it at the time of trial in November of 1991. Moreover, the car had been driven approximately 32,000 miles since the plaintiff purchased it. Trial N.T., p. 51. Although the record is devoid of the judge's instructions to the jury on how to determine the value which the plaintiff derived from using the vehicle, we find sufficient evidence warranting the amount determined by the jury. Thus, we are not inclined to disturb the jury’s finding.