author: BECK, Judge. DEL SOLE, Judge,

text:
    636 A.2d 172
    Nancy BLEAM, Appellant, v. GATEWAY PROFESSIONAL CENTER ASSOCIATES D/B/A and A/K/A Gateway Professional Center and Allen Nursery Products.
    Superior Court of Pennsylvania.
    Argued July 1, 1993.
    Filed Dec. 3, 1993.
    Reargument Denied Feb. 11, 1994.

      Joseph P. Maher, Allentown, for appellant.
    Gary A. Brienza, Allentown, for appellee Gateway Professional Center.
    Before DEL SOLE, BECK and HESTER, JJ.
   BECK, Judge.

In this case we decide that a lessor-possessor of land may be held liable to a lessee for injuries caused by a dangerous condition upon a part of the land over which the lessor has retained control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved, and made the condition safe. Because there were disputed material facts on this issue, we reverse the trial court’s order granting summary judgment in favor of the landowner.

Appellant Nancy Bleam slipped and fell in the parking lot of the building in which she leased office space. Appellee Gateway Professional Center Associates (“Gateway”) owned the building. Sometime after the “slip and fall” incident, Bleam filed a complaint against Gateway alleging that she was injured in the fall and demanding damages on account of Gateway’s negligent maintenance of the parking lot. Gateway moved for summary judgment which the trial court granted; this timely appeal ensued. We reverse.

The trial court set forth the relevant facts in its opinion: Sometime in the morning of December 30, 1987, plaintiff arrived at defendant’s property in order to conduct her business. As she drove onto the defendant’s parldng lot, she observed that, due to a freezing rainstorm earlier that morning, much if not all of the entire parking lot was covered with a sheet of ice. Moreover, there were certain patches of snow/ice from a previous snowstorm which had not been totally removed by the defendant. Although there were approximately 150 parking spaces for plaintiff to choose from, she selected one of the parking spots that had the old snow/ice remaining. Plaintiff then went into her office in the defendant’s building and sometime later departed for lunch with an acquaintance. As she got to the driver’s door of her car, after having taken two steps on this accumulation of old snow/ice, she fell injuring herself.

Trial court opinion at 2.

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P. 1035(b). See Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 608 A.2d 1061 (1992). In making this determination, we must view the record in a light most favorable to the non-moving party, accepting as true all well-pleaded facts and all reasonable inferences that can be drawn therefrom. Id. Any doubt regarding the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Id. See also Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 577 A.2d 894 (1990).

In support of its motion for summary judgment, Gateway filed a copy of the transcript of Bleam’s deposition testimony. The deposition unambiguously demonstrated that Bleam was aware of the icy condition of the space in which she parked. In opposition to Gateway’s motion, Bleam filed the transcript of a deposition taken of Dr. Robert Laurenzano, one of two general partners of Gateway. Dr. Laurenzano testified that Gateway has always been responsible for snow and ice removal in the parking lot, and that the tenants depend upon Gateway for that service. He additionally testified that he was aware of the icy condition of the lot on the day of Bleam’s fall and that the company with which Gateway had contracted for snow removal at that time did not perform the job to his satisfaction.

We must first determine the law of the Commonwealth that pertains to Gateway’s potential liability. Only then will we be able to review the trial court’s conclusion that there are no genuine issues of material fact and that Gateway is entitled to judgment as a matter of law.

Pennsylvania courts repeatedly have recognized the validity of the principles set forth in Restatement (Second) of Torts §§ 355-362 governing the liability of lessors to persons who enter upon that land. See Leary v. Lawrence Sales Corp., 442 Pa. 389, 275 A.2d 32 (1971); Deeter v. Dull, 420 Pa.Super. 576, 617 A.2d 336 (1992); Kobylinski v. Hipps, 359 Pa.Super. 549, 519 A.2d 488 (1986). Section 360 in particular responds to situations in which a person is injured in an area the control of which has been retained by the lessor.

§ 360. Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

Restatement (Second) of Torts § 360 (1965).

The trial court, however, relied instead upon sections 342, 343 and 343A of the Restatement, which govern the duty of possessors of land generally. The trial court’s application of §§ 342, 343 and 343A led to its conclusion that, regardless of her status as a licensee or invitee, Bleam’s admission that she was aware of the ice on the ground where she parked precluded recovery against Gateway. We find that reliance upon these sections was erroneous, given the more specific applicability of § 360.

While we find no precedential case that is directly on point with the facts of this appeal, we are guided by the principles espoused in Kobylinski, supra. There, plaintiff sued on behalf of the decedent, who died when he fell down an exterior stairwell upon arriving as a guest at defendant Hipps’s house. Hipps leased the house from its owner, co-defendant Schmidt. At trial, the jury rendered a verdict in favor of plaintiff, for which the lessor, Schmidt, was found to be 75% liable. Schmidt moved for judgment n.o.v. which was denied; following the entry of judgment against him, Schmidt appealed.

On appeal, lessor Schmidt claimed that the trial court erred by failing to fully instruct the jury with regard to a landlord’s duty to persons who enter upon his property. The trial court had told the jury that “[a] landlord may be liable for bodily harm sustained by a third party as a result of a defect or dangerous condition existing at the time of the lease.” Kobylinski, supra, 359 Pa.Super. at 553, 519 A.2d at 490. Schmidt contended, and a panel of this court agreed, that the instruction was insufficient and misleading. The Court noted that in fact, the general rule in Pennsylvania is that a landlord out of possession is not responsible for injuries suffered on the leased premises. Id. at 554, 519 A.2d at 491 (citing Pierce v. Philadelphia Housing Authority, 337 Pa.Super. 254, 257, 486 A.2d 1004, 1005 (1985)).

This court went on to explain that numerous exceptions to the general rule exist, in which liability does attach to a landlord out of possession. One such situation is where “the landlord has retained control over a portion of the property which is necessary to the safe use of the leased property; or, if the lessor shares with the lessee the right to possess any section of the property.” Kobylinski, supra (citing generally Restatement (Second) of Torts §§ 356-362). The Court con-eluded that judgment n.o.v. should have been granted in lessor Schmidt’s favor because the property was leased as a private dwelling and no part of it remained under Schmidt’s control.

Lessor Schmidt also contended that the trial court erred when it instructed the jury that Restatement (Second) of Torts § 343, governing a possessor’s duty to an invitee, provided the standard for determining both defendants’ duties to the decedent. This Court held that the trial court erred in relying upon § 343 for either defendant. First, with respect to Hipps (the lessee), decedent was a licensee, not an invitee, and therefore § 343 was inapplicable. Moreover, the court stated that Schmidt, as a landowner out of possession, could not be placed on the same legal footing as Hipps, the actual possessor of the land. Thus, analysis of Schmidt’s duty pursuant to § 343, as opposed to § 360, was inappropriate. Id. 359 Pa.Super. at 549, 519 A.2d at 493.

In accordance with Kobylinski, we find that the trial court erroneously looked to the general Restatement sections concerning possessors of land, rather than the specific provisions that outline the potential liability of a landowner-lessor to its tenant. Applying § 360 to the evidence presented by both parties in support of and opposition to Gateway’s motion for summary judgment, we find that Gateway could be liable to Bleam despite her recognition of the risk involved in parking near ice and snow.

Comment b following § 360 addresses this exact issue:

The rule stated in this Section may also apply even though the person injured, whether he be the lessee himself or a third person, has knowledge of the existence of the dangerous condition. His knowledge may put him in contributory faulty ... [b]ut unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use, or unless knowing the danger he fails to exercise that caution which a reasonable man would exercise under the same circumstances, the lessor remains liable to him notwithstanding his knowledge of the existence of the condition.

Restatement of Torts (Second) § 360, comment b.

We do not suggest that Bleam was entitled to summary judgment, but rather that there remain genuine issues of material fact which need to be resolved before a judgment in favor of either party properly can be rendered. Therefore, we find that the trial court erred as a matter of law.

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

DEL SOLE, J., files a Dissenting Statement.

DEL SOLE, Judge,

dissenting.

I believe that Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), is directly on point. It makes no sense to deny recovery to a business invitee who is not a tenant yet grant recovery to a tenant under the same facts. Unless the Supreme Court reverses Carrender, supra, it should be applied equally. Therefore, I dissent.

      . Bleam also testified that she parked on the lower part of an inclined portion of the lot because she was afraid that if she tried to drive up the icy slope she may have trouble trying to leave later. Although she testified that the entire lot was not covered with "snow/ice” patches, there was no testimony directly establishing that there were spaces in the lower part of the lot that, did not have such hazards.

      . These sections provide as follows:

        § 342 Dangerous Conditions Known to Possessor
      A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
      (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
      (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
      (c) the licensees do not know or have reason to know of the condition and the risk involved.
      § 343 Dangerous Conditions Known to or Discoverable by Possessor
      A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
      (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.
      § 343A Known or Obvious Dangers
      (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness....
      Restatement (Second) of Torts §§ 342, 343, and 343A. The term "invitee” or, more specifically, "business visitor” is defined as “a person who is invited to enter or remain on land for a purpose directly connected with business dealings with the possessor of land.” Id. at § 322(3). A "licensee” is "a person who is privileged to enter or remain in land only by virtue of the possessor’s consent.” § 330.

      . It is a well-accepted rule of construction that when two provisions concern the same or similar matters, if the more general provision is in conflict with the more specific one, the specific provision must prevail. See 1 Pa.Cons.Stat.Ann. § 1933 (Purdon's 1993). See also Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); Olshansky v. Montgomery County Election Bd., 488 Pa. 365, 412 A.2d 552 (1980); Com. v. Smith, 375 Pa.Super. 419, 544 A.2d 991 (1988).

      . We do not find Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), to be apposite. Plaintiff Ruth Carrender, a patient/invitee of the defendant-landowners, slipped and fell on a patch of ice in defendants’ chiropractic clinic parking lot. In Carrender, there was no lessor/lessee relationship between the plaintiff and the landowner, and therefore, § 360 of the Restatement was not involved. Instead, the supreme court correctly applied § 343A to hold that the possessors of land did not owe their patient, an invitee, a duty to warn or take precautions against the known or obvious danger of icy parking lot conditions. Section 343A is not applicable here.


source: Caselaw Access Project

author: POPOVICH, Judge. JOHNSON, Judge,

license: Public Domain

text:
    636 A.2d 176
    David and Sayde LADOV, Individually And As Administrators of the Estate of Baby Girl Ladov, Deceased, Appellants, v. Pamela SKRENTNER, M.D., John T. Bennett, M.D. & Montgomery Hospital Medical Center, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1993.
    Filed Jan. 7, 1994.

      David A. Yanoff, Philadelphia, for appellants.
    L. Rostaing Tharaud, Philadelphia, for Montgomery Hosp., appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge.

We are asked to review the August 16, 1991, order of the Court of Common Pleas of Montgomery County granting the preliminary objections in the nature of a demurrer against the plaintiffs/appellants, David & Sayde Ladov, Individually and as Administrator of the Estate of Baby Girl Ladov, Deceased. We reverse.

Where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer, an appellate court’s scope of review is limited. The standard of review was reiterated in Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458, 461 (1983):

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. [Citations omitted]

Viewing the record in this light, we find that a civil action was commenced on June 19, 1990, by the issuance of a summons upon the appellees/defendants, Pamela Skrentner, M.D., Montgomery Hospital Medical Center and John T. Bennett, M.D. A rule to file was followed by a six-count complaint alleging medical malpractice in the defendants’ failure to provide medical care preventing the premature birth (after 21 weeks gestation) of the plaintiffs’ Baby Girl Ladov, who “survived for several hours” prior to expiring in the defendant/Hospital’s nursery.

More specifically, Counts I and II consisted of survival and wrongful death actions, respectively, consisting of twenty-four allegations (subparagraphs (a)-(x)) of negligence on the part of the defendants resulting in the “decedent ... suffering] ... during ... her ... short lifetime” (Count I, Paragraph 30) and the “[Plaintiffs ... incurring] ... medical and administration expenses” (Count II, Paragraphs 35 & 36), as well as losing the pecuniary contribution and value of the decedent. Id.

Count III asserted the infliction of “severe emotional distress occasioned by defendant^’] outrageous conduct----” resulting in the plaintiff/Sayde Ladov’s loss of earnings. Count IV averred the identical twenty-four instances of negligence recited in Counts I & II as the basis for a claim sounding in medical malpractice resulting in emotional distress affecting numerous aspects of the plaintiff/Sayde Ladov’s life, e.g., loss of earnings and expenditure of money. Counts V & VI contended the loss of spousal and falial consortium, respectively, by the plaintiffs.

Preliminary objections were filed by the defendants, Doctors Skrentner and Bennett, in the nature of a Motion to Strike portions of Paragraphs 27, 33 & 35 for not complying with Pa.R.Civ.P. 1019(a) (not pleading with specificity), the complaint as a whole was “legally insufficient” and in the nature of a demurrer as to Counts III (for failing to state a cause of action for intentional and/or negligent infliction of emotional distress) & VI (loss of consortium of minor plaintiff).

Likewise, the defendant/Hospital filed preliminary objections in the nature of a demurrer as to Counts I & II on the strength of Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989), appeal granted, 525 Pa. 600, 575 A.2d 566 (1990), which held the non-recognition of wrongful death and survival actions in the case of a fetus, although born alive, concededly not viable at the time of birth. Demurrer and/or motion to strike were filed as to Counts III, IV & VI.

After oral argument and the submission of briefs, the court issued two orders dated August 16, 1991: The first granted the defendant/Hospital’s demurrer to Counts I, II, III (as to negligent infliction of emotional distress only) and VI; the second granted the defendants/Skrentner & Bennett’s demurrer to Counts III (as to negligent infliction only) & VI. This appeal followed and alleges that the court erred in granting the defendant/Hospital’s preliminary objections in the nature of a demurrer as to Counts I & II. See Appellant’s Brief at 4.

Preceding our inquiry into the merits of the claims raised, we need to decide whether the order appealed is interlocutory. In Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), this Court, sitting en banc, held:

As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.
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However, the general rule is not without exceptions. Certain orders which have not put a litigant literally “out of court” or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.
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Where separate and distinct causes of action have been joined under permissive joinder standards of Pa.R.C.P. 1020(a) or Pa.R.C.P. 1044(a), the appealability of a judgment entered on one or more but not all counts must be distinguished from the situation in which separate counts have been used to slate alternate theories for recovery on the same cause of action. In the former situation the [order] has terminated litigation upon a separate and distinct cause of action. In the latter, an order dismissing or entering judgment on one or more but not all counts of a complaint is interlocutory, for the plaintiff can, nevertheless, proceed to a determination on the underlying cause of action. * * * [I]t is procedurally preferable to delay appellate review until the entire action has been determined.

313 Pa.Super. at 336-39, 340-41, 459 A.2d at 1258-59, 1260 (Citations omitted).

More particular, as stated on this point by our Supreme Court in Sweener v. First Baptist Church of Emporium, Pa., 516 Pa. 534, 533 A.2d 998, 1000 (1987):

“The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” With regard to summary judgment[/preliminary objections], it is well established that an order denying a motion for summary judgment is interlocutory and therefore not normally appealable. It is equally clear, however, that an order granting a defendant’s motion for summary judgment [/preliminary objections] may in some cases not terminate litigation regarding recovery of other separate and distinct losses claimed against the same defendant ..., or as to claims asserted against other defendants....
A pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss. [Citations omitted; emphasis in original]

See also Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950, 954 (1985).

In the present case, the preliminary objections in favor of the defendanf/Hospital had the practical effect of terminating litigation regarding recovery of other losses claimed (“wrongful death and survival actions”) against the same defendant, but separate and distinct from the other claims/counts listed in the complaint. In short, the grant of the preliminary objections put the appellants “out of court” insofar as any possibility of recovering .against the defendant/Hospital for causes of action sounding in wrongful death and survival, notwithstanding the fact that the same two counts are extant as to the defendants/Drs. Skrentner & Bennett. See Sweener, supra; Dash, supra.

Accordingly, we hold that the appellants’ appeal of the August 16, 1991, order granting the defendant/Hospital’s preliminary objections is final. However, to the extent the defendants/Drs. Skrentner & Bennett attempt to piggy-back onto the Hospital’s presentment of preliminary objections as to Counts I & II, we find that the Doctors’ failure to file their own prehminary objections to Counts I & II renders the matter they seek to defend against before us waived for appeal purposes. See Pa.R.App.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

We next turn to the appellants’ argument that the court’s grant of the defendant/Hospital’s preliminary objections on the ground that Hudak, supra, precludes the allowance of a wrongful death and survival action (where a fetus is, albeit allegedly born alive, admittedly not viable at the time of birth) should not be followed as an “aberrational” decision, singularly holding to the contrary of the majority view. We do not agree but reverse for the reasons advanced by our Supreme Court in Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600, (1993).

Mrs. Hudak was found to be pregnant with triplets in late 1982. By April of 1983, she alerted her doctors that she was experiencing cramps. One of her doctors advised that she go to the hospital where her other physician was on duty. Upon arrival, her second physician administered medication to stop her contractions. With her condition under control, Hudak was transferred to another hospital where treatment was administered by doctors other than her own. The following day, Hudak gave birth by caesarean procedure. Two of the fetuses were supposedly born alive, but died within minutes of birth. The third, also allegedly born alive, died the next day.

Wrongful death and survival actions were filed, inter alia, against the doctors in unduly delaying in treating Hudak and that this caused the fetuses to die. The defendant/doctors sought dismissal on the basis that Pennsylvania did not recognize a cause of action for wrongful death and survival in the case of non-viable fetuses. Also, the parties stipulated that the fetuses were non-viable at the time of birth, i.e., incapable of living outside the womb because of immaturity.

At the outset, this Court noted no pronouncement of Pennsylvania law directly on point, finding that Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985) and Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960) dealt with full-term births and the Legislature, in its enactment of the Wrongful Death and Survival statutes, failed to elaborate on the meaning of the phrase “natural person” or “individual”. In conclusion, the Hudak Court wrote:

This summary of the pertinent decisions reveals that we are in uncharted seas. We have no expressions of legislative intent on which to rely, nor do we have guidance from the Supreme Court. Given the nature of the issue before us, we conclude that it is up to the legislature to create the cause of action. In the absence of any expression of intent for the legislature or any analysis by our Supreme Court, we cannot decide that fetuses born prior to attaining viability should now be accorded the same rights that children who have attained viability have been accorded under the Wrongful Death and Survival Acts. As Chief Justice Nix wrote in his dissent to Amadio:
It is a cardinal principle that fundamental public policy should be ascertained and articulated through legislative fíat and not through judicial edict. For illustration, the majority appears to assign this “new cause of action” based upon the viability of the fetus. This option in favor of viability as opposed to conception touches upon one of the most controversial questions of our day. Clearly, disputes of this nature cannot satisfactorily be resolved by court decisions.
Id. 509 Pa. at 235-36, 501 A.2d at 1104 (Nix, C.J., dissenting). See also Id. at 238, 501 A.2d at 1105 (Hutchinson, J., dissenting ( ... the majority incorrectly ventures into policy areas more properly left to the legislature.. ..); Toth v. Goree, 65 Mich.App. 296, 237 N.W.2d 297 (1975) (court refuses to extend wrongful death right of action to stillborn non-viable fetus on ground that to do so would be usurpation of legislative function).
We, therefore, affirm the trial court’s dismissal of appellants’ [/parents’] wrongful death and survival actions.

390 Pa.Super. at 20-21, 567 A.2d at 1098. Contrast McCaskill v. Philadelphia Housing Authority, 419 Pa.Super. 313, 615 A.2d 382 (1992) (A wrongful death and survival action cannot be maintained on behalf of a fetus which spontaneously aborted at seventeen weeks of gestational age); Coveleski v. Bubnis, 391 Pa.Super. 409, 571 A.2d 433 (1990), appeal granted, 525 Pa. 656, 582 A.2d 323 (1990) (No cause of action for wrongful death and survival for eight-week-old fetus aborted to avoid fetal damage because of vehicle accident involving mother); Askew v. Cruciani, 149 Pa.Cmwlth. 397, 613 A.2d 147 (1992) (No wrongful death and survival action could be filed on behalf of one of ten-week-old twin fetuses who died as a result of motor vehicle accident involving mother).

The appellants attempt to distinguish Hudak and Coveleski, arguing that the initial case dealt with the parties conceding non-viability and the second dealing with an admittedly nonviable fetus given its gestational age. Such being the case, the appellants argue that they do not “concede” non-viability nor is this impliedly evident in their complaint at paragraph 19, wherein it is averred that the fetus was approximately 21 weeks old at the time of the caesarean. The court below has seized upon this maturity date in concluding that:

The Superior Court has defined “viability” as that ‘stage of development at which the fetus would be capable of independent existence if removed from its mother’s womb, and it has often been noted that a fetus ordinarily becomes viable during the sixth or seventh month of its mother’s pregnancy.’
Coveleski v. Bubnis, [supra,] 391 Pa.Super. [at] 413, 571 A.2d [at] 435....
In the case at bar, no factual issue regarding viability exists, as plaintiffs have admitted in Paragraph 19 of their Complaint that the gestation period of their fetus was only 21 weeks, or approximately five months. In light of Hudak, plaintiffs have failed to state a cause of action for wrongful death and survival of their baby girl.

Opinion, 5/27/93 at 4. The appellants counter, but miss the mark in light of our Supreme Court’s decision in Hudak, supra, that:

Viability remains an amorphous concept, its quantitative definition subject to advances in medical science and technology and its application in the case of any particular fetus being dependent upon various factors, no one of which, including gestational age, can be considered dispositive.

See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 65, 96 S.Ct. 2831, 2839, 49 L.Ed.2d 788 (1976). Thus, while the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), opined that viability was usually placed at about 28 weeks ..., Id. [410 U.S. at 159], 93 S.Ct. at 730—more recent cases have cited a period of 23 to 24 weeks, again with an explicit recognition that it may occur earlier. Planned Parenthood v. Casey, — U.S. — [—], 112 S.Ct. 2791, 2811, 120 L.Ed.2d 674 (1992).

Indeed, numerous respected reference sources recognize “viability” at a point prior to that at which the Ladovs’ deceased daughter was born. See, e.g., Stedman’s Medical Dictionary, 5th Unabridged Lawyers’ Edition (Anderson Publishing Company 1982), defining viability as “capability of living; the state of being viable; usually connotes a fetus that has reached 500 g. in weight and 20 gestational weeks.” (emphasis added). The diverse views in the medical literature regarding the “point” of viability highlight the impossibility of including within any definition of the term a rigidly fixed component of gestational age. As noted in a standard obstetrical text:

The term “viable” is widely used to identify a reasonable potential for subsequent survival if the fetus were to be removed from the uterus. Termination of a pregnancy before term but after the fetus has achieved some potential for survival is referred to as premature delivery of a premature infant. The gestational age at which the fetus upon delivery ceases to be an abortus and becomes an infant is most difficult to define. In many states, a birth certificate is prepared for any pregnancy at 20 weeks gestational age or more, or for any fetus that weights 500 g. or more.

Williams Obstetrics, Ch. 23, p. 483 (J. Pritchard & P. McDonald, 15th Ed.1976) (emphasis added).

In sum, there is no consensus within the medical community as to the precise gestational age at which “viability” of a fetus occurs. Planned Parenthood Association v. Fitz patrick, 401 F.Supp. 544 [554], 570 (D.D.C.1975), affirmed, 428 U.S. 901, 96 S.Ct 3202, 49 L.Ed.2d 1203 [1205] (1976). It is for precisely this reason, and in recognition of the fact that “the time when viability is achieved may vary with each pregnancy” (Planned Parenthood of Central Missouri v. Danforth, supra., 428 U.S. at 64, 96 S.Ct. at 2839), that the authoritative legal definitions of the term “viability” have consistently refrained from espousing a precise quantitative delineation of term when medical science has been unable to do so. As recognized by the United States Supreme Court in Roe v. Wade:

When those trained in the respected disciplines of medicine, philosophy, and theology are unable to arrive at any consensus the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Id., 410 U.S. at 159, 93 S.Ct. at 730.

Appellants’ Brief at 43-45 (Emphasis in original).

Our Supreme Court’s recent pronouncement in Hudak, supra, holds that “viability” is not a “critical” element, save where there is not a live birth, in permitting the commencement of a wrongful death and survival action. Specifically, the Court wrote:

In Amadio, we did not eliminate a cause of action for wrongful death brought on behalf of an infant that only survives a moment. Indeed we stated, “[tjoday’s holding merely makes it clear that the recovery afforded the estate of a stillborn is no different than the recovery afforded the estate of a child that dies within seconds of its release from its mother’s womb.” Amadio v. Levin, 509 Pa. 199, 207, 501 A.2d 1085, 1089 (1985) (emphasis added). The Supreme Court, by couching the issue in terms of whether infants born alive “should now be accorded the same rights [as] children who have attained viability,” has turned our decision in Amadio on its head. The issue was not whether the viability standard should supplant live birth as the only relevant measure of when a fetus becomes a person, but whether a viable stillborn fetus should be treated the same as a child born alive. Therefore, Amadio did not affect the rale permitting a wrongful death action for a child that is born alive.
. Moreover, interjecting the concept of viability into a situation where a child born alive confuses the issue. Viability described the capacity of the unborn to survive outside the womb, and is not relevant when an infant survives birth. Not surprisingly, no jurisdiction accepts the ... assertion that a child must be viable at the time of birth in order to maintain an action in wrongful death. Indeed, the ... argument that viability rather than live birth is the dispositive consideration in determining the existence of an action for wrongful death has been rejected.
The ... argument that the immaturity of the Hudak triplets operates to bar recovery is also inconsistent with the Second Restatement of Torts. Section 869 provides: § 869 Harm to Unborn Child
(1) One who tortuously causes harm to an unborn child is subject to liability to the child for the harm if the child is bom alive.... (emphasis added).
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This case does not attempt to address the issue of whether there is a point in time, prior to birth, when a fetus becomes a person for purposes of our wrongful death and survival acts. See, Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993). Rather, today we are reaffirming the unremarkable proposition that an infant bom alive is, without qualification a person. Since live birth has always been and should remain a clear line of demarcation, an action for wrongful death and survival can be maintained on behalf of the Hudak triplets.

535 Pa. at 156 & n. 3, 634 A.2d at 603 & n. 3 (Emphasis added in part).

As is evident from the Hudak ruling, our Supreme Court made it clear that “viability” is not a prerequisite to a wrongful death and survival action. Rather, the cornerstone for permitting such a suit to persist is evidence (re: an “allegation” of birth where we are at the pleading stage) that the child was born “alive”, even though it may have survived but for a “moment” before expiring. The rationale being that, in a wrongful death and survival action, a suit may be brought on behalf of a child born alive because he/she is considered a “natural person”. And, we are not to be preoccupied with whether the infant is viable/non-viable at the time of death, except in those instances, which is not the case here, where the child is not born alive. See Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993).

Lastly, we would respond to those who might argue that the allowance of a suit such as the present (on behalf of a premature birth that is unable to survive outside the womb— either on its own or through artificial means) will open the flood-gates to medical malpractice suits rendering obstetric care less accessible than in the past for fear of liability on the part of the health-care provider, we would echo the remarks of Justice Montemuro, the author of the 4-2 decision in Hudak,' that such argument rings hollow upon examination; to-wit:

The Doctors assert that permitting recovery on behalf of “non-viable” children born alive will lead to limitless liability. Specifically, the Doctors argue that both physicians and parents would be potentially liable to the estate of an aborted fetus that is born alive. This argument is specious. Liability for wrongful death only attaches to injuries caused by the “wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S.A. § 8301. Certainly, a woman undertaking an act protected by the Constitution, or a physician performing a lawful act, would not come within the scope of liability.

535 Pa. at 156, 634 A.2d at 603.

Consistent with our Supreme Court’s ruling in Hudak, we hold that the court below erred in predicating its grant of the appellee’s preliminary objections on the fact that Baby Girl Ladov, although born alive and surviving several hours after birth, was not “viable”. Such a determination is in violation of Amadio, supra, which has been reaffirmed and clarified for those who believed, wrongly, that “viability” was the benchmark against which a wrongful death and survival action turned, despite the fact that a live birth had occurred but was short-lived. See Hudak, supra.

Thus, in accordance with the dictates of Hudak, we reverse the order of the court below and remand for this case to proceed to resolution.

Order reversed, case remanded, and jurisdiction is not retained.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring.

The sole issue on this appeal is whether the distinguished trial court, which adhered to our decision in Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989), must now be reversed following the filing of our supreme court’s decision in the same appeal on November 16, 1993. Id., 535 Pa. 152, 634 A.2d 600 (1993). In the appeal now before us, the Honorable Paul W. Tressler recognized and acknowledged, at the time of filing his trial court Opinion pursuant to Pa.R.A.P. 1925, that the Superior Court decision in Hudak was subject to reversal and that if so reversed, those portions of his decision and Opinion based upon this Court’s decision in Hudak would be in error.

A majority of our supreme court has now held that “a child that is born alive is a natural person for purposes of our wrongful death and survival acts even if the infant is considered non-viable at the time of its birth.” Id., at 155, 634 A.2d at 602.

Lacking the perspicacity of my esteemed colleagues, I can only agree that Judge Tressler’s order must be reversed, as that distinguished judge has already conceded, and the case remanded for further proceedings not inconsistent with the most recent pronouncements of our supreme court.

      . As discussed more fully infra, our Supreme Court has reversed this Court in Hudak, supra, at 535 Pa. 152, 634 A.2d 600 (1993).

      . As explained by the court in its opinion at page 5-7, a typographical error in the initial order inverted the Roman numerals so as to read that the defendant/Hospital’s demurrer as to Count IV had been granted, when in truth it was Count VI.

      . See note 1, supra.

      . Because the instant lawsuit commenced by writ of summons dated June 19, 1990, the amendments to Pa.R.App.P. 341 (effective July 6, 1992) have no impact in our resolution of whether the December 16, 1991, order is final for appeal purposes. See Bell v. State Farm Ins. Co., 430 Pa.Super. 435, 634 A.2d 1137 (1993).

      . Counts I & II (Wrongful death and survival actions) against the Hospital reflect separate statutory causes of action, the former is brought on behalf of the spouse, children or parents of the decedent (42 Pa.C.S.A. § 8302) while the latter is filed on behalf of the decedent's estate (Id. at § 8301). Therefore, the order dismissing Counts I & II was a final and appealable order since the damages sought were on different causes of action in contradistinction to separate counts being used to state alternate theories to support recoveiy on the same cause of action. See Cloverleaf Development, Inc. v. Horizon Financial FA, 347 Pa.Super. 75, 500 A.2d 163 (1985).

      . Affirmed at 535 Pa. 166, 634 A.2d 608 (1993) (viability is critical where there is not a live birth).

       The determination of viability becomes critical when there is not a live birth. Today in Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993), we determined that a wrongful death cause of action does not lie for the demise of an eight week old fetus. It could be argued that it is inconsistent to treat the "non-viable” triplets differently than a nonviable eight week fetus. However, any apparent inconsistency proceeds from the fallacy that a child bom alive can be described in terms of viability.

      . Justice Larsen did not participate in the decision of the case.


author: DEL SOLE, Judge: CIRILLO, Judge, JOHNSON, Judge,

text:
    636 A.2d 183
    COMMONWEALTH of Pennsylvania, Appellant, v. Tyrone WILLIAMS, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Dec. 30, 1993.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Stanley R. Krakower, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   DEL SOLE, Judge:

Through this appeal, the Commonwealth asks us to determine whether Appellee’s judgment of sentence is illegal because it violates the mandates of 18 Pa.C.S:A. § 7508(a)(3)® (Supp.1992), of the Crimes Code, entitled, “Drug trafficking sentencing and penalties”.

The facts of this case reveal that Appellee was charged with three drug trafficking offenses. The first offense took place on November 2, 1988, when Appellee was found in possession of 4.3 grams of cocaine. Thereafter, on May 21, 1991, Appellee was arrested for possessing another 6.14 grams of cocaine and on May 26, 1991, he committed his third drug trafficking offense which involved less than 2 grams of the substance. On August 14,1991, Appellee entered a guilty plea with regard to his third offense and on October 11, 1991, he pleaded guilty to the first and second offenses. The three cases were then consolidated for sentencing and on November 26, 1991, Appellee was sentenced. For his second offense, Appellee received a sentence of a minimum term of imprisonment of two to five years and was ordered to pay a fine of five thousand dollars. The trial court then imposed the same sentence, to run concurrent, for Appellee’s first offense.

The Commonwealth urges this court to vacate Appellee’s judgment of sentence, which was imposed in relation to his second offense. It claims that the sentence is illegal because the trial court, in determining the sentence, erred in failing to apply the mandatory minimum sentencing provision contained in 18 Pa.C.S.A. § 7508(a)(3)(i).

Appellee counters the Commonwealth’s argument by stating that because he had not been adjudicated guilty of any one of his offenses, prior to the commission of any subsequent offense(s), the section is wholly inapplicable. Appellee sets forth various arguments to support his position. First, Appellee directs our attention to the fact that 18 Pa.C.S.A. § 7508(a)(3)(i) was amended in December, 1990, after the date of the commission of his first offense. Appellee argues that under the pre-amendment version of the statute, his first offense could not have served to enhance his second offense because he had not been convicted and sentenced for the first offense at the time of the commission of his second offense. Ultimately, Appellee asks us to adopt the position that, “a preamendment case may not form the basis for enhancement of a post-amendment case.” (Appellee’s brief at 8). By advancing these arguments, however, Appellee ignores the express language of the statute.

18 Pa.C.S.A. § 7508(a)(3)® is a mandatory sentencing provision which specifically states that, “if at the time of sentencing the defendant has been convicted of another drug trafficking offense [emphasis added]”, a mandatory minimum sentence of three years is appropriate. This language clearly directs the sentencing court to determine, at the time of sentencing, whether the defendant has a previous conviction under the Controlled Substance, Drug, Device and Cosmetic Act, and if so, to impose the mandatory minimum sentence. We also direct Appellee’s attention to the fact that the legislature has specifically defined the term, “previous conviction”, as it is used throughout Section 7508.

(a.l) Previous conviction. — For purposes of this section, it shall be deemed that a defendant has been convicted of another drug trafficking offense when the defendant has been convicted of another offense under section 13(a)(14), (30) or (37) of the Controlled Substance, Drug, Device and Cosmetic Act, or of a similar offense under any statute of any state or the United States, whether or not judgment of sentence has been imposed concerning that offense.

As amended December 19, 1990, P.L. 1451, No. 219, § 4, 18 Pa.C.S.A. § 7508(a.l). [emphasis added].

With this language in mind, we turn to the facts of the present case. At the time of sentencing for Appellee’s second offense, which involved 6.1 grams of cocaine, Appellee had been previously convicted, as defined in Section 7508(a.l), of violating the Controlled Substance, Drug, Device and Cosmetic Act, (i.e. for the possession of 4.3 grams of cocaine). Therefore, in accordance with the express language of the statute, we find that the trial court erred in failing to impose upon Appellee, the mandatory minimum sentence.

In addition, we cannot adopt Appellee’s position that a pre-amendment offense cannot serve as an enhancer for a post-amendment offense. The focus in the present case is on Appellee’s record as it appeared at the time of sentencing for his second offense. At that time, the conviction that resulted from the commission of Appellee’s first offense, clearly fit within the definition of “previous conviction”. While it is true that the sentencing court could not have applied the post-amendment version of the statute in sentencing Appellee for his first offense, which occurred prior to the effective date of the amendment, it is also true that that is not the issue here. Appellee’s first offense was on record as another conviction that existed at the time of Appellee’s sentencing on the second offense and, under the amended statute, could properly be considered as a factor requiring sentencing enhancement for his second offense.

We also note that, as part of this argument, Appellee makes a passing reference that application of Section 7508(a)(3)(i) may deprive defendants of equal protection under the law. Appellee does not develop this theory and therefore, we can only state that we fail to see how application of the amended version of the statute would cause the result suggested by Appellee. It is clear that the provision is to be uniformly applied to all defendants subject to it at the time of sentencing.

Accordingly, we vacate Appellee’s judgment of sentence for his second offense at Bill No. 927, June Term 1991, and remand this matter to the trial court for the purposes of re-sentencing Appellee with respect to that charge.

Jurisdiction relinquished.

CIRILLO, J. files a concurring & dissenting Opinion.

JOHNSON, J. files a dissenting Opinion which KELLY, J. joins.

CIRILLO, Judge,

concurring and dissenting:

I do not dispute the majority’s interpretation of the language set forth in the recently amended 18 Pa.C.S.A. § 7508(a)(3)(i). Clearly, the 1990 version of this statute compels a mandatory minimum sentence of three years “if at the time of sentencing the defendant has been convicted of another drug trafficking offense.” 18 Pa.C.S.A. § 7508(a)(3)(i). I note my opposition, however, to the effect this amendment has on the result of this case and future enhanced penalty cases, as I believe such language has eroded the spirit of the recidivist philosophy.

I submit, instead, that we adhere to the following reasoning in determining whether or not to apply the enhancement provision found in section 7508(a):

It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone except the incorrigible one, who after being reproved, “still hardeneth his neck.” If the heavier penalty prescribed for the second violation ... is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Commonwealth v. Kane, 430 Pa.Super. 203, 204, 633 A.2d 1210, 1211 (1993) (en banc) (quoting Commonwealth v. Sutton, 125 Pa.Super. 407, 413, 189 A. 556, 558 (1937)); see also Commonwealth v. Tobin, 411 Pa.Super. 460, 463-464, 601 A.2d 1258, 1260 (1992), aff'd, 533 Pa. 322, 623 A.2d 814 (1993); Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), aff'd, 533 Pa. 294, 621 A.2d 990 (1993). This longstanding notion underlying habitual criminal legislation suggests that a prior conviction shall precede the date of the offense for which the increased punishment is sought to be imposed. In other words,

[l]egislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after once having been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.

Dickerson, 404 Pa.Super. at 259, 590 A.2d at 771 (quoting 39 Am.Jur.2d Habitual Criminals § 6).

While I recognize that the reasoning behind the recidivist philosophy has been borrowed from cases interpreting statutes different than the one at issue here, it is essential, in my opinion, that we remain consistent in our interpretation of penalty enhancement provisions. See Kane, supra (applying the pre-amendment section 7508, a defendant must be convicted of the prior offense before the commission of the subsequent offense for an enhanced sentence to attach); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), aff'd, 533 Pa. 322, 623 A.2d 814 (1993) (when determining penalty enhancement under 75 Pa.C.S. § 3731(e)(1), the sentencing court must utilize the date of the offense for which defendant is to be sentenced and determine the number of prior convictions as of that date); Tobin, supra (same); Commonwealth v. Eck, 411 Pa.Super. 465, 601 A.2d 1261 (1992) (en banc), alloc. denied, 533 Pa. 607, 618 A.2d 398 (1992) (same); Dickerson, supra (for prior conviction to serve as an enhancer under 42 Pa.C.S.A. § 9714, the conviction must precede the commission of a later offense); Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992) (pursuant to 42 Pa.C.S.A. § 2154, in order for a prior conviction to apply to the prior record score for sentencing purposes, one must have been previously convicted for a crime committed before the current offense, whether or not a sentence has been imposed on the prior offense).

The clear spirit of the recidivist philosophy, as evidenced by the foregoing authority, dictates that the new section 7508(a) be applied in the same fashion. The uniform application of recidivist provisions would undoubtedly serve to ensure continuity, efficiency, and stability in our judicial decision-making. Surely this.is a goal which would benefit both the judiciary and society as a whole.

Thus, in adhering to the underlying purpose of the recidivist philosophy as interpreted by the appellate courts of Pennsylvania, I would affirm Williams’ judgment of sentence, which does not include an enhanced penalty.

JOHNSON, Judge,

dissenting:

The defendant, Tyrone Williams, had pled guilty to other offenses committed by him within Philadelphia County, and he was sentenced on all the offenses at one time. I believe the Commonwealth’s attempt to increase the aggregate minimum sentence from two years’ to three years’ incarceration on this appeal does absolutely nothing to increase the protection of the public and, indeed, flies in the face of the clear spirit of Pennsylvania Rules of Criminal Procedure, Rule 1402.

Moreover, Williams was not found guilty, that is to say: convicted, of the prior offense until well after the commission of the subsequent offense. All three offenses were committed well before Williams entered his guilty plea to even the first offense. The recidivist enhancement provisions of 18 Pa.C.S. § 7508(a)(3)(i) may not, therefore, be applied. Commonwealth v. Kane, 430 Pa.Super. 203, 633 A.2d 1210 (1993). See and compare Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), affirmed 533 Pa. 294, 621 A.2d 990 (1993).

I would affirm the judgment of sentence on the well-reasoned Opinion of the Honorable Arnold L. New. Hence, this dissent.

KELLY, J., joins.

      . The subsection reads as follows:
      A person who is convicted of violating section 13(a)(14), (30), or (37) of the Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is cocoa leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecogine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
      (i) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000.00 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000.00 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;
      As amended December 19, 1990, P.L. 1451, No. 219, § 4, 18 Pa.C.S.A. § 7508(a)(3)(f) (Supp.1992).

      . We note that there is a discrepancy between the sentence reflected, for Appellee’s first offense, in the Sentencing Transcript and as written in the trial court’s Opinion and Order. For purposes of the discussion of the facts of this case, we have relied, as have both parties, on the trial court’s two to five year judgment of sentence which appears in its written Order. This endorsement appears on the back of the Information and is dated the same date as the sentencing hearing. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983), Commonwealth v. Fleming, 332 Pa.Super. 118, 480 A.2d 1214 (1984).

        In addition, we note that Appellee also received a sentence of one to two years for his third offense. This sentence, however, is not the subject of the present appeal.

      . The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(14), (30), (37).


author: McEWEN, Judge:

text:
    636 A.2d 187
    Edward J. MELLON, Administrator of the Estate of Deborah Mae Mellon, Deceased and Edward J. Mellon, in His own right and on Behalf of the Children Deborah Mae Mellon, Edward M. Mellon, A Minor and Sean M. Mellon, A Minor, Appellants, v. BARRE-NATIONAL DRUG CO., Bay Labs, Inc., Bell Pharmacal Corp., Halsey Drug Co., Inc., Carroll Chemical Co., Consolidated Midland Corp., Cumberland, Inc., Dixon-Shane, Inc., Humco Laboratory, Inc., Parmed Pharmaceuticals, Inc., Purepac Pharmaceutical Co., Rite Aid, Roxane Laboratories, Inc., Rugy Laboratories, Scherer Laboratories, Inc., Spencer-Mead, Inc., Veratex Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1993.
    Filed Dec. 30, 1993.

      Michael B.L. Hepps, Philadelphia, for appellants.
    Frank J. Eisenhart, Jr., York, for Roxane Laboratories, appellee.
    James M. Marsh, George J. Murphy, Hecker Brown Sherry and Johnson, Philadelphia, for Barre-National Drug Co.

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

Appellants, Edward Mellon and his children, Edward and Sean Mellon, instituted this products liability action by filing a twelve-count complaint seeking damages from the appellees, a group which appellants allege contains all known manufacturers of syrup of ipecac, a drug which the decedent, Deborah Mae Mellon, allegedly, as a result of an undiagnosed eating disorder known as bulemia, secretly and repeatedly ingested in an attempt to lose weight. Appellants contended that as a result of this misuse of syrup of ipecac by the decedent, the toxic component of syrup of ipecac, emetine, accumulated in her body and caused her death by cardio-respiratory arrest.

Appellants, Edward and Sean Mellon, the children of the decedent, were unable to rouse her from her bed on the morning of March 25, 1983. The boys called their father who, upon his arrival approximately forty minutes thereafter, summoned an ambulance. The decedent was subsequently pronounced dead by personnel at Lower Bucks Hospital at 8:30 a.m. that morning. An autopsy, performed under the auspices of the Bucks County Coroner’s Office, did not reveal a cause of death and toxicological studies were performed on samples of decedent’s blood, bile, eye fluids and stomach contents. The results of these studies, which were received three months after the death of the decedent, revealed the presence of emetine in the decedent’s blood, bile, and urine samples.

Dr. Frederic Rieders, the toxicologist, concluded that “in the absence of similarly or more competent causes, the findings provide a competent independent cause of death through emetine toxicity — probably from chronic use of ipecac syrup used as an emetic following meals to ‘lose weight’.”

Appellants filed a complaint in the court of common pleas alleging that they had named all manufacturers of syrup of ipecac as defendants in this action and should be permitted to proceed on a collective liability theory, subject to the production of expert testimony that, as a result of the decedent’s bulemia, it was probable that she had purchased syrup of ipecac from a large number of drug stores so as to avoid suspicion or detection. Appellants contend that as a result of this secretive behavior, there is a fair probability that the decedent purchased ipecac from a large number of retailers produced by different manufacturers.

Appellees filed a motion for summary judgment on March 3, 1987, contending that there was an insufficient basis, as a matter of law, upon which a jury could be permitted to find that the death of the decedent was, in fact, caused by ingestion of syrup of ipecac. Appellees also requested the entry of summary judgment due to the inability of the appellants to identify any manufacturer or distributor of the ipecac allegedly ingested by the decedent.

The eminent President Judge Isaac S. Garb, in granting, in part, the motion for summary judgment, held that there were:

material issues of fact with respect to the question of the cause of death. Certainly the testimony of Drs. Rosko and Rieders presents a sufficient factual basis upon which inferences may be drawn that the cause of death was the repeated ingestion of ipecac. The record adequately established that the warnings imprinted upon the containers did not necessarily communicate that danger to prospective users. Therefore, the motion for summary judgment on that basis will be denied.
The complaint purports to state nine separate causes of action as follows: Count 1. negligence; Count 2. strict liability; Count 3. misrepresentation; Count 4. lack of consent; Count 5. express warranty; Count 6. implied warranty; Count 7. fraud; Count 8. violation of federal law, negligence per se; and Count 9. conspiracy.
To take these in reverse order, we are satisfied that the record totally fails to sustain a cause of action for civil conspiracy. To state a cause of action for civil conspiracy the complaint must allege and the facts must reveal that two or more persons combined or entered into an agreement to commit an unlawful act or to do an otherwise lawful act by unlawful means. Slaybaugh v. Newman, 330 Pa.Super. 216, 479 A.2d 517 (1984). Proof of malice is an essential part of a cause of action for conspiracy. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The mere fact that two or more persons happen to do something which they have a right to do at the same time is not by itself an actionable conspiracy. Thompson Coal Company v. Pike Company, Id. and Morris v. Halford, 352 Pa. 138, 42 A.2d 411 (1945). On this record, there is no evidence whatsoever to reveal that any of the defendants acted in concert in any way or for any purpose. Therefore, summary judgment will be granted with respect to Count 9. With respect to Count 8, violation of a federal law, negligence per se, summary judgment will likewise be granted for all defendants. Under the federal decisions that have addressed this issue, it has uniformly been held that there are no private causes of action under the Food, Drug and Cosmetics Act, 21 U.S.C. §§ 301 et seq. See Griffin v. O’Neal, Jones and Feldman, Inc., 604 F.Supp. 717 (S.D.Ohio 1985); National Women’s Health Network, Inc. v. A.H. Robins Co., Inc., 345 [545] F.Supp. 1177 (D.Mass.1982); and Keil v. Eli Lilly & Co., 490 F.Supp. 479 (E.D.Michigan 1980). As for an assertion of negligence per se, the record in this case reveals that the warnings imprinted upon the containers of ipecac conformed with all federal regulations. Therefore, there is no basis upon which a finding of negligence per se can be made.
With respect to Count 7, fraud, we likewise determine that summary judgment must be granted in favor of the defendants. It has uniformly been held that a very high standard of proof is required to establish a fraud. The evidence in support of it must be clear, precise and indubitable. See Gerfin v. Colonial Smelting and Refining, Inc., 374 Pa. 66, 97 A.2d 71 (1953) and New York Life Insurance Company v. Brandwene, 316 Pa. 218, 172 Atlantic 669 (1934). In order to establish a fraud there must be a showing by such evidence of a misrepresentation, a fraudulent utterance thereof with an intention by the maker that the recipient will be induced to act together with justifiable reliance by the recipient upon the misrepresentation and resulting damage. See Newman [Neuman ] v. Corn Exchange National Bank and Trust Company, 356 Pa. 442, 51 A.2d 759 (1947) and Eden Roc Country Club v. Mulhauser, [Mullhauser ] 416 Pa. 61, 204 A.2d 465 (1964). Clearly, this record is devoid of any such evidence.
Counts 6, implied warranty, and 5, express warranty, must likewise fall. With respect to express warranty, the complaint alleges that the warranties extended to the drug’s use as an emetic were in some way false or misleading. However, the representations made on the containers regarding its use as an emetic for which it was sold, were accurate and not in any way false or misleading. There was no representation that they could be used for the purpose for which the decedent used them. Therefore, there is no evidence on this record to support the claim based upon express warranty
The same is likewise true with respect to Count 6 alleging implied warranties of merchantability. This is a warranty which is implied by law that goods sold are reasonably fit for the general purpose for which they are sold. Eimco Corp. v. Joseph Lombardi & Son, 193 Pa.Super. 1, 162 A.2d 263 (1960). The flaw in plaintiffs case in this regard is found in the fact that there is no demonstration that ipecac was not fit for the purpose for which it was sold, as an antidote or response to oral poisoning. There is no representation of its utility for the purpose for which decedent used it nor is there any misleading statement regarding that use. Therefore, summary judgment must likewise be granted with respect to Count 6.
Summary judgment will likewise be granted for the defendants with respect to Count 4, lack of consent. The doctrine of informed consent in Pennsylvania is limited in its application solely to those cases involving surgical or operative medical procedures. It is not extended to cases involving the administration of therapeutic drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985).
Summary judgment will also be granted on Count 3, misrepresentation. Misrepresentation under the Restatement (Second) of Torts Section 402B, like fraud, requires a showing of justifiable reliance by plaintiff upon the alleged misrepresentations of the defendant. See Klages v. General [Ordnance ] Ordinance Equipment Corp., 240 Pa.Super. 356, 367 A.2d 304 (1976); Wickes Corp. v. Newtown Savings Association, 322 Pa.Super. 453, 469 A.2d 1078 (1983), and Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976). Those elements are lacking in this case, there being no showing of any misrepresentation on the part of any manufacturers or distributors with respect to ipecac. Therefore, this count must likewise fall.
That leaves us with Count 1, which is common-law theory of negligence and Count 2 being strict liability in tort under the Restatement (Second) of Torts, Section 402A. In each of these instances, the defendants maintain that there can be no liability in Pennsylvania absent a showing of identification of a specific manufacturer or distributor of the specific substances ingested by the decedent. Plaintiffs advance three different theories upon which liability could be founded in Counts 1 and 2. Without belaboring these theories unduly, we believe it is sufficient to observe that they were all extensively analyzed in two recent cases of our Superior Court. See Cummins v. Firestone Tire & Rubber Company, 344 Pa.Super. 9, 495 A.2d 963 (1985), and Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). In each of these cases it is established that the concerted action theory does not apply to this case. That is a cause of action arising under Section 876 of the Restatement (Second) of Torts. In order for this cause of action to be viable there must be acts of tortious character pursuant to a common design or plan. See Cummins v. Firestone Tire & Rubber Company, supra. Clearly there is no evidence in this case to reveal such a common scheme or plan nor is there any evidence to show that a defendant rendered substantial assistance to another to accomplish a tortious act.
Plaintiff likewise cannot succeed on the alternative liability theory. This theory of liability is founded upon Section 433B(3) of the Restatement (Second) of Torts which provides as follows:
Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
This theory of liability was adopted in Pennsylvania by Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970), and Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974). Each of these cases and others where this theory has been applied, have determined that it can only be a basis for liability where there is a showing that there was group negligence on the part of several defendants but where it could not be established which of those defendants was personally responsible for the injuries incurred. As such, the theory would not apply in this case.
Industry-wide liability was enunciated by the United States District Court for the Eastern District of New York in Hall v. E.I. DuPont DeNemours Company, Inc., 345 F.Supp. 353 (E.D.N.Y.1972). While admittedly that theory would apply to this case, it was specifically spurned as the law of Pennsylvania in Cummins v. Firestone Tire & Rubber Co., Inc., supra.
Lastly, plaintiffs seek recovery based upon market-share liability as enunciated in Sindell v. Abbott Laboratories, et al., 26 Cal.3d 588 [163 Cal.Rptr. 132], 607 P.2d 924 (1980). Although there are no Pennsylvania cases specifically holding that this is a theory of liability recognized and accepted in Pennsylvania, neither Burnside v. Abbott Laboratories, supra, nor Cummins v. Firestone Tire & Rubber Co., Inc., supra, nor any other case that we know of has to this date rejected it. Therefore, on this basis we will deny summary judgment solely on this theory as applied to Counts 1 and 2 of the complaint.

Mellon v. Barre-National Drug Co., 53 Bucks Co.L.Rep. 23, 25-27 (1987) (emphasis supplied). Following the entry of summary judgment on Counts 3 through 9 of the complaint, discovery proceeded on the remaining theory of market share liability as set forth in counts one and two of the complaint. However, on January 21, 1993, appellees filed a motion for summary judgment, contending that market share liability had not been adopted in Pennsylvania. The trial court granted the motion and dismissed the complaint with prejudice. This timely appeal followed.

Our scope of review of an order granting summary judgment is plenary.

A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. See: Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989) (entire record before lower court must be examined and all doubts as to the existence of an issue of material fact are to be resolved against a grant of summary judgment). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance Co., 380 Pa.Super. 167, 551 A.2d 283 (1988). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Burman v. Golay & Co., Inc., 420 Pa.Super. 209, 212, 616 A.2d 657, 658 (1992), allo. denied, 533 Pa. 648, 624 A.2d 108 (1993). Accord: Fiffick v. GAF Corp., 412 Pa.Super. 261, 262-265, 603 A.2d 208, 209-210 (1992); Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 430-431, 597 A.2d 106, 109 (1991); Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-191, 544 A.2d 50, 52 (1988), allo. denied, 520 Pa. 605, 553 A.2d 968 (1988).

The issue presented for determination by this Court is whether appellants may utilize the theory of market share liability in lieu of evidence identifying the manufacturer(s) and supplier(s) of the syrup of ipecac allegedly ingested by the decedent.

The requisite elements of a cause of action in negligence are 1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff, 2) a failure by the defendant to so conform, and 3) a reasonably close causal connection between the defendant’s conduct and some resulting injury to the plaintiff. This last element is commonly known as proximate cause____

Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 16, 495 A.2d 963, 967 (1985).

Proof of causation is a necessary element in a products liability action as well as in a negligence action. “A plaintiff must establish that a particular product of a defendant manufacturer caused her injuries.” City of Philadelphia v. Lead Industries Asso., 994 F.2d 112, 123 (3rd Cir.1993), citing Lilley v. Johns-Manville, 408 Pa.Super. 83, 92, 596 A.2d 203, 207 (1991), allo. denied, 530 Pa. 644, 607 A.2d 254 (1992); Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-191, 544 A.2d 50, 52 (1988), allo. denied, 520 Pa. 605, 553 A.2d 968 (1988). In general, a defendant must be identified as the manufacturer, distributor, or seller of the offending product before the injuries suffered by the plaintiff may be found to be proximately caused by some negligent act or omission of the defendant. “Absent such identification, there can be no allegations of duty, breach of duty, or legal causation, and hence there can be no liability.” Id., 344 Pa.Super. at 18, 495 A.2d at 967-968.

Appellants contend that due to their inability to ascertain the identity of the manufacturers/distributors/retailers of the syrup of ipecac allegedly ingested by the decedent, they should be permitted to proceed utilizing market share liability in lieu of product identification evidence. We disagree.

Market share liability is a collective liability theory, developed by the California Supreme Court in a DES case, Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980), cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980), pursuant to which manufacturers, who produce a fungible and thus unidentifiable product that causes injuries, are held liable to a plaintiff in proportion to their respective market shares:

Thé Supreme Court of Pennsylvania has never embraced, rejected, or even discussed market share liability. The only Pennsylvania state court that has allowed a plaintiff to utilize market share liability instead of identifying the manufacturer who produced the defective, injury-causing product was a trial court. See: Erlich v. Abbott Lab., 5 Phila. 249 (C.P.1981). Erlich also was a DES case. There, the Court of Common Pleas found that market share liability is appropriate when: (1) all defendants are tortfeasors; (2) the allegedly harmful products are identical and share the same defective qualities; (3) plaintiff is unable to identify which defendant caused her injury through no fault of her own; and (4) the manufacturers of substantially all of the defective products in the relevant area and during the relevant time are named as defendants.
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Neither the Superior Court nor the Commonwealth Court, Pennsylvania’s intermediate appellate courts, has permitted a plaintiff to proceed using the theory of market share liability.
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After canvassing all relevant Pennsylvania law, we have found only a decade-old, trial court opinion that has permitted a plaintiff to proceed under a theory of market share liability. This lone decision is insufficient to establish market share liability as a recognized exception to the proximate cause requirement under Pennsylvania law. Nor has there been a clear authoritative signal that the Pennsylvania Supreme Court would adopt market share liability. No nationwide consensus that market share liability should be embraced exists, as evidenced by the split of authority among the highest state courts that have addressed this issue.

City of Philadelphia v. Lead Industries Asso., 994 F.2d 112, 124-125 (3rd Cir.1993) (footnotes omitted) (emphasis supplied).

We agree with the conclusion of the trial court that the appellants in this case cannot meet their burden of proof by utilizing the market share liability theory in lieu of evidence of the use of a particular defendant’s or defendants’ products by the decedent, Mrs. Mellon. We reach this conclusion, as did the trial court, on the basis of the inability of the appellants to establish two elements which we believe were essential to the development by the Sindell Court of the theory of market share liability — an inability on the part of a plaintiff — through no fault of his or her oum — to identify the product, and a substantial time lapse — such as that experienced by the children affected in útero by DES — between the use of the product and manifestation of the harm.

As for the element of identification, distribution and label-ling of syrup of ipecac is controlled by federal law and while the formula of all of the manufacturers is identical, the one ounce containers, which are available for purchase without prescription, are clearly marked with the name of the manufacturer and a warning that the drug is not to be used without first consulting a physician or poison control center. The inability of the appellants in the instant case to identify the manufacturer of the ipecac allegedly ingested by the decedent was not caused in any way by the appellees but rather was solely a result of the decedent’s conduct in purposefully and surreptitiously misusing the product. Thus, one of the essential elements of the Sindell analysis is missing.

A further element upon which the development of the market share liability theory was predicated is also absent: there is no substantial time lapse involved between ingestion of syrup of ipecac and manifestation of the effects of emetine poisoning. Thus it is that we are constrained to agree with the conclusion of the learned trial court that, even if market share liability had been adopted in this Commonwealth, application of the doctrine in this case would not be warranted. We, therefore, affirm the entry of summary judgment in favor of appellees.

Order affirmed.

      . Tissue samples requested by the toxicologist, which were not submitted for analysis, might have shown whether the presence of emetine in decedent’s circulating fluids was the result of ingesting one dose of syrup of ipecac or numerous, repeated doses over a period of time.

      . Appellants concede that no person ever observed the decedent purchase or ingest syrup of ipecac, that no container of ipecac or receipts for its purchase were ever found, and that the decedent never told anyone that she had ingested syrup of ipecac.

      . Due to our resolution of this issue, we do not reach the issue of whether market share liability should be adopted by Pennsylvania. However, as Judge Hester noted in Cummins v. Firestone Tire and Rubber Co., supra at 24-25 n. 6, 495 A.2d at 971 n. 6:
      " 'Extensive policy shifts of this magnitude should not be initiated by an intermediate appellate court. The appropriate tribunal to accomplish such drastic changes is either the Supreme Court or the Legislature.’ Namm v. Charles E. Frosst & Company, 178 N.J.Super. 19, 35, 427 A.2d 1121, 1129 (1981).”

      . The Code of Federal Regulations, 21 C.F.R. § 201.308, provides:
      (a) It is estimated that each year about 500,000 accidental poisonings occur in the United States and result in approximately 1,500 deaths, of which over 400 are children. In the emergency treatment of these poisonings, ipecac syrup is considered the emetic of choice. The immediate availability of this drug for use in such situations is critical, since rapid treatment may be the difference between life and death. The restriction of this drug to prescription sale limits its availability in emergencies. On the other hand, it is the consensus of informed medical opinion that ipecac syrup should be used only under medical supervision in the emergency treatment of poisonings. In view of these facts, the question of whether ipecac syrup labeled as an emergency treatment for use in poisonings should be available over the counter has been controversial, (emphasis supplied).
      (b) In connection with its study of this problem, the Food and Drug Administration has obtained the views of medical authorities. It is the unanimous recommendation of the American Academy of Pediatrics, the American Association of Poison Control Centers, the American Medical Association, and the Medical Advisory Board of the Food and Drug Administration that ipecac syrup in 1 fluid ounce containers be permitted to be sold without prescription so that it will be readily available in the household for emergency treatment of poisonings, under medical supervision, and that the drug be appropriately packaged and labeled for this purpose.
      (c) In view of the above recommendations, the Commissioner of Food and Drugs has determined that it is in the interest of the public health for ipecac syrup to be available for sale without prescription, provided that it is packaged in a quantity of 1 fluid ounce (30 milliliters), and its label bears, in addition to other required label information, the following, in a prominent and conspicuous manner:
      (1) A statement conspicuously boxed and in red letters, to the effect: "For emergency use to cause vomiting in poisoning. Before using, call physician, the Poison Control Center, or hospital emergency room immediately for advice.”
      (2) A warning to the effect: "Warning — Keep out of reach of children. Do not use in unconscious persons. Ordinarily, this drug should not be used if strychnine, corrosives such as alkalies (lye) and strong acids, or petroleum distillates such as kerosene, gasoline, coal oil, fuel oil, paint thinner, or cleaning fluid have been ingested.”
      (3) Usual dosage: 1 tablespoon (15 milliliters) in persons over 1 year of age.


author: OLSZEWSKI, Judge:

text:
    636 A.2d 193
    In re Richard GREIST, Appeal of Richard GREIST.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Jan. 14, 1994.

      Theodore Q. Thompson, Ambler, for appellant.
    Nicholas J. Casenta, Jr., Asst. Dist. Atty., West Chester, for Com. participating party.

      Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order involuntarily committing appellant, Richard Greist [“Greist”], to Norristown State Hospital [“Hospital” ]. For the reasons stated below, we quash this appeal as untimely.

Greist brutally slayed his wife and attempted to kill two other family members in 1978. After a bench trial, Greist was found not guilty by reason of insanity. The court thereafter ordered Greist to serve a one-year involuntary commitment for psychiatric treatment in Hospital pursuant to the Mental Health Procedures Act, 50 Pa.S.A. § 7304. Since the Act allows for involuntary commitments not in excess of one year in cases where a murder charge underlies the commitment, id. at § 7304(g)(2), Hospital and the Commonwealth have petitioned the court yearly to maintain Greist’s commitment, contending that his “condition continues to evidence a clear and present danger to himself and others.” Id. at § 7304(a)(2).

In their most recent petition, filed on May 2, 1991, Hospital and the Commonwealth again alleged that Greist’s condition poses serious danger to the community, and requested continued in-patient treatment. The trial court entered an order on September 4, 1991, granting the joint petition. On September 17, Greist filed a “Motion for Reconsideration,” contending that the evidence supporting the trial court’s order was insufficient under Commonwealth v. Helms, 352 Pa.Super. 65, 506 A.2d 1384 (1986), because it did not establish a “reasonable probability” that the activity for which Greist was originally prosecuted was likely to recur. On October 18, the trial court held a hearing, and entered an order denying the petition on November 4, 1991. On December 4, Greist filed a notice of appeal, challenging the propriety of the September 4 order.

The Commonwealth immediately filed a motion to quash this appeal. We denied the motion without prejudice, leaving the ultimate decision to the assigned panel. The issue is therefore ripe for disposition and we now address it. The Commonwealth contends that filing a motion for reconsideration does not toll the mandatory 30-day period within which a litigant must file a notice of appeal from a final order; thus, Greist’s attempt to appeal the September 4 order on December 4 was untimely. We agree.

In order to preserve the right to appeal from an order which finally adjudicates a dispute between litigants, it is beyond question that the appeal must be filed within 30 days of the date of the order. Pa.R.A.P. 903(a). The 30-day period must be construed strictly. Commonwealth v. Hottinger, 370 Pa.Super. 527, 537 A.2d 1 (1987), alloc. denied, 520 Pa. 614, 554 A.2d 507 (1988). This Court has no jurisdiction to excuse a failure to file a timely notice. Thermo-Guard v. Cochran, 408 Pa.Super. 54, 596 A.2d 188 (1991). Moreover, it is well-settled that while a trial court maintains jurisdiction to reconsider an order for up to 30 days even where an appeal has been filed, Pa.R.A.P., Rule 1701(b)(3), 42 Pa.C.S.A., merely filing a motion for reconsideration will not toll the appeal period. Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987) (en banc), alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1988); Justice v. Justice, 417 Pa.Super. 581, 612 A.2d 1354 (1992), alloc. denied, 533 Pa. 635, 621 A.2d 581 (1993); Valentine v. Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990), alloc. denied, 527 Pa. 650, 593 A.2d 422 (1991).

A comment to Pa.R.A.P. 1701 explains that although a notice of appeal will have no effect if reconsideration is eventually granted, it is necessary to preserve the right to appeal if reconsideration is denied:

Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process. The rule (1) permits the trial court [ ... ] to grant reconsideration if the action is taken during the applicable appeal period [ ...] and (2) eliminates the possibility that the power to grant reconsideration could be foreclosed by the taking of a “snap” appeal. The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit the trial court [ ... ] may deny the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period.

Pa.R.A.P. 1701, Explanatory Note (emphasis added).

This procedure was exemplified in Valentine v. Wroten, supra. There, appellant wished to challenge the trial court’s custody order, filing a notice of appeal and a motion for reconsideration. Although the trial judge did not rule on the motion within the 30-day period after the order, he did issue to appellee a rule to show cause why reconsideration should not be granted. This caused appellant to withdraw his notice of appeal. We held that the issuance of the rule to show cause was not a grant of reconsideration and thus did not toll the appeal period:

The fact that the trial court established a briefing schedule, hearing date and issued a rule to show cause did not amount to an agreement to reconsider. Rule 1701 is very clear. Even though an appeal has been filed, a trial court may, within thirty days of the final appealable order expressly grant reconsideration. If the trial court expressly grants reconsideration, it has extended the time for decision. As we said in Luckenbaugh:
A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment [order]. Pa.R.A.P. 1701, 42 Pa.C.S.A. See: Luckenbaugh, id., at 523 A.2d 401.

Valentine, 397 Pa.Super. at 528, 580 A.2d at 758 (brackets original). Since appellant withdrew the notice of appeal he filed within 30 days after the order, we were constrained to quash the appeal.

Here, we must reach the same result. Although the trial court scheduled a hearing for the motion to reconsider-— and subsequently addressed it — its failure to expressly grant reconsideration within 30 days rendered the commitment order final. Since Greist filed no "notice of appeal within this time, we must quash this appeal as untimely.

Both Greist and the trial court urge that Greist’s issues are preserved under authority of In re Wilson, 303 Pa.Super. 326, 449 A.2d 711 (1982). In Wilson, a panel of this Court held that a party who appeals an order requiring civil commitment must file exceptions to the trial court’s decision in order to preserve issues for review. Here, the question is not whether Greist preserved issues by properly raising them below, but whether he preserved his right to appeal in the first place. By filing a motion to reconsider which was denied, he did not.

Furthermore, we note that the trial court held that Greist’s “post-trial procedure is adequate to preserve his issues for appellate review,” trial court opinion at 3, n. 1, which indicates to us that the trial court may have intended to treat the “motion for reconsideration” as an untimely post-trial motion. We cannot condone this procedure. We have clearly stated that we will not review a trial court’s decision to address untimely post-trial motions on the merits if the opposing party has not objected. Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991), aff'd, 533 Pa. 410, 625 A.2d 641 (1993). Implicit in this policy, however, is a sense of fairness which must allow the opposing party an awareness that the aggrieved party is, in fact, asking the court to address post-trial motions. Here, it was Greist who chose to file, three days after the period within which he was required to file post-trial motions, a document explicitly titled a “motion for reconsideration.” By doing so and by failing to file a notice of appeal, Greist ran the risk, under well-established procedure, of losing his right to appeal if the motion was denied.

The appeal is quashed.

      . Hospital and the Commonwealth differed in certain aspects of the commitment which are not relevant here. Hospital felt that Greist’s condition, while serious, was in a degree of remission and warranting “off-ground” privileges, supervised by hospital personnel at a ratio of one supervisor for every ten patients. The trial court rejected this position in favor of the Commonwealth’s assertion that continued one-on-one supervision was necessary any time Greist left Hospital grounds.

      . Wilson was decided before post-trial practice was redefined by Pa. R.C.P., Rule 227.1, 42 Pa.C.S.A., in 1984. Rule 227.1 no longer requires litigants in non-jury trials to file exceptions to the trial court’s decision, but rather he or she must file a post-trial motion within 10 days of the order. We are confident that Wilson is still applicable law, requiring parties in civil commitment cases to follow the post-trial practice prescribed in Rule 227.1.

      . Although neither Greist nor the trial court elaborate, it appears that if the trial court properly treated the “motion for reconsideration’’ as an untimely post-trial motion, then the appeal period would have begun on the date of the denial of the motion, November 4, 1991, rendering the December 4 notice of appeal timely.


text:
    636 A.2d 196
    Michael S. KRICHTEN and Doris M. Krichten, Appellants, v. Melanie A. WOLPERT, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed Jan. 13, 1994.

      Thomas P. Lang, York, for appellants.
    Donald B. Hoyt, York, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

Michael and Doris Krichten appeal from the judgment of the lower court denying their petition for delay damages. We affirm.

On January 19, 1989, appellee Melanie Wolpert lost control of her car and struck Michael Krichten who was working in a pipeline ditch adjacent to the road. Krichten was severely injured in the accident. On March 21, 1989, appellants filed a negligence action against Wolpert. On November 13, 1989, following an evaluation of the Krichtens’ claims, Wolpert made a written offer of settlement equal to the policy limits of her automobile insurance coverage. Wolpert’s insurance policy limits were $15,000 per person/$30,000 per accident. Appellants rejected the settlement offer and, on December 2, 1992, the case went to trial. After a two-day trial, the jury returned a verdict in favor of appellants in the amount of $250,000. On December 10, 1992, appellants filed a timely petition for delay damages under Pa.R.C.P. 238. This petition was supplemented by a subsequent petition filed on March 12, 1993. On May 20, 1993, the trial court denied appellants’ petition.

The sole issue we need to consider is whether the trial court erred in denying appellants’ petition for delay damages. In Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986), this Court held that “a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 238 after the date of the defendant’s offer when the court determines that because of the defendant’s indigency, the offer was the full amount available for payment of the plaintiffs claim and it was impossible for the defendant to have offered more.” Id. at 627, 502 A.2d at 722. It is not disputed that within a year of the accident appellee made a written settlement offer of her policy limits. The trial court found that appellee was indigent and that she had no assets other than her insurance coverage. Consequently, the trial court ruled that, under Berry, delay damages could not be awarded against appellee even if her settlement offer was inadequate under Rule 238.

Appellants argue that the trial court erred in finding that appellee is indigent under Rule 238. They contend that appellee possesses a viable bad faith cause of action against her insurance carrier, based upon its conduct in the handling of this case. Appellants argue that the claim should have been treated as an asset because it could be assigned to appellants, or appellee could pursue it to judgment and thereby create a pool of funds from the claim. We find this contention meritless.

A trial court’s determination that a defendant is indigent under Rule 238 will not be reversed absent an abuse of discretion. Krysmalski by Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993). We find no abuse of discretion. Appellants were willing to stipulate to appellee’s indigency with the exception that they considered the bad faith claim an asset. Consequently, the only issue is whether the trial court should have considered the alleged bad faith claim an asset. First, it is pure speculation that appellee may have a bad faith claim against her insurance carrier. Whether appellee has a viable bad faith claim against her insurance carrier is a matter for another day, since the carrier is not a party to this lawsuit. See Id. at 139, 622 A.2d at 308; see also Hall v. Brown, 363 Pa.Super. 415, 420, 526 A.2d 413, 416 (1987) (“A finding that delay damages are due is fundamentally different from a determination that an insurer acted in bad faith.”). We refuse to assess delay damages against a defendant on the basis of mere speculation.

Moreover, we find that appellee acted within the spirit of Rule 238. There is no dispute that when appellee made her settlement offer, she offered all of her available assets. Even if appellee presently has a viable bad faith claim, it had not yet accrued at the time she made her offer. Clearly we cannot hold appellee responsible for not anticipating that a bad faith claim might accrue. Lastly, we note that our decision does not bar appellants from pursuing a bad faith claim, on an assignment from appellee, against appellee’s insurance carrier.

Appellants also argue that Berry should not apply to cases in which defendant or, in the context of automobile accidents, defendant’s insurance carrier, has not negotiated in good faith. We find it unnecessary, however, to decide whether such an exception should be carved from Berry. Assuming arguendo that such an exception should exist, we find that it would not apply here. Appellants have not demonstrated that appellee’s insurance carrier negotiated in bad faith. Appellants claim the insurance carrier negotiated in bad faith because the insurance carrier did not offer appellee’s policy limits until eight months after the accident. We note, however, that under Rule 238 appellee had a grace period of one year in which to make her offer. Rule 238 provides a grace period to defendants so that they may have an opportunity to investigate and evaluate an action before the damages for delay begin to run, thereby increasing the chances of an appropriate settlement. Explanatory Note, Pa.R.C.P. 238, 42 Pa.C.S.A. We refuse to find that a defendant’s decision to use this grace period constitutes bad faith, per se.

Judgment affirmed.

POPOVICH, J., concurs in the result.

      . We also note that appellants seek delay damages for the period of two and one-half years. Even if appellee’s eight-month delay in making her offer was due to bad faith, we would still not award delay damages for two and one-half years. At most, appellants would only be entitled to delay damages for the eight months of delay.