author: DEL SOLE, Judge:

text:
    606 A.2d 1207
    Barbara Ann Dewey PAVIE, Appellee, v. Albert H. PAVIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1991.
    Filed April 14, 1992.

      Sarah M. Ford, Blue Bell, for appellant.
    James P. McEvilly, Jr., Feasterville, for appellee.
    Before CIRILLO, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

This appeal follows a trial court decree divorcing the parties from the bonds of matrimony and ordering the distribution of marital property. Because our review of the record in this matter has uncovered critical procedural irregularities, we decline review of the ultimate issues on appeal and conclude that the matter of equitable distribution must be remanded to the trial court for a hearing and final order.

The equitable distribution claims in this case were originally presented before a Master in three days of hearings, following which he entered a Report and Recommendation. Among other matters, the Master made a recommendation concerning inheritance funds received by Appellant-husband. The Master acknowledged that these funds were placed in a joint account but elected to deduct from the account the base amount of the husband’s inheritance since it “was received close in time to the separation,” and since Appellee-wife had also received a substantial inheritance prior to the hearings which was never converted to marital property. After listing the other marital property, the Master made a recommendation on the division of savings funds, personal property, realty and two mortgages due the parties from their children.

Within ten days of the entry of this Report, Wife filed exceptions and the court issued an order scheduling a “hearing on the Exceptions to Equitable Distribution.” On December 10, 1990 a proceeding was held before the trial court, the nature of which cannot be clearly ascertained. A transcript of the proceeding evidences the parties’ confusion:

MR. MC EVILLY [APPELLEE’S COUNSEL]: I guess the threshold issue in this hearing, Your Honor, is what the hearing is all about.
The Conciliator issued his recommendations and the plaintiff is the only one who filed exceptions to the findings. It’s our position that the Court signed a order on June 26th saying the hearing on the exceptions of equitable distribution was scheduled in this matter.
Counsel and I have, I believe, cooperated and spoken as much as possible, and exchanged information ahead of time, and we seem to have a difference of opinion as to why we’re here this morning.
My position is that we’re here only on the issues raised in the exceptions. Counsel’s position seems to be that this is a hearing de novo, in which the whole matter can be relitigated.
N.T. 12-10-90 at 2-3.

In response to these remarks, Appellant’s counsel stated:

It’s very clear to me. First of all, Gordon Mair [The Master] said any exceptions filed will be a hearing de novo. It's Montgomery County policy to have a hearing de novo, because the Master’s hearing is not transcribed. Id. at 5.

Considering the arguments of counsel, the court ultimately stated: “I think it’s a de novo hearing.” Id. at 6. Although labeled a de novo “hearing,” no witnesses were sworn, nor was any testimony taken at the December 10th proceedings; the court only heard the arguments of counsel. Among the issues debated was the division of Husband’s inheritance funds and the rental value of the house Appellant occupied during separation. The court made no specific comments on these matters in its December 12th order in which it “affirmed and ratified” the Master’s “recommendations.” The court’s order, which was not labeled a “final” order, made one exception and altered the recommended equal distribution of the marital estate to award 53% to Wife and 47% to Husband.

After entry of the court’s order Wife filed a motion for post-trial relief. Therein Appellee repeated the issues raised in her exceptions including those concerning Husband’s inheritance and the rental value of the marital home occupied by Appellant. Wife also requested a new trial alleging that she was unable to present testimony at the de novo hearing and that the hearing was ended due to another court commitment.

On March 22, 1991 the court entered a “Decree and Order.” The court acknowledged receipt of argument on Wife’s post-trial motions and consideration of the briefs of counsel. The court then affirmed its December 12th order with four changes. Among those changes, it reversed the previous ruling and ordered that Husband’s inheritance totalling $105,345.86 be included in the marital estate and that Wife recover $54,472.91 from Husband representing the rental value of the marital home occupied by Husband. The March 22nd order also decreed that the parties were hereby divorced from the bonds of matrimony.

On April 6th, Wife filed a Petition to Modify the court’s most recent order alleging that a securities account had increased in value from the time of the Master’s report, and that she should be entitled to 53% of the increase. The court agreed with wife’s position and on April 19, 1991, within 30 days of its March 22nd order, the court entered an order awarding Wife an additional $12,529.97 to reflect her portion of the increase in the joint securities account.

Husband filed this appeal in which he maintains the trial court erred in considering wife’s Petition to Modify as a Motion for Reconsideration and entering an order thereon where Wife failed to raise the matter in her post-trial motions. He makes further claims regarding his inheritance, the rental value of the marital home, the court’s failure to consider his payment of income and personal property taxes and the absence of an accounting of liquid marital assets distributed in 1984.

It is impossible for this court to consider these claims with the record before us. No transcript was made of the hearing before the Master, and the proceeding labeled a “hearing” which took place before the trial court contains no testimony. It was only after the trial court considered both exceptions and post-trial motions filed by Wife that it altered, in a significant manner, the ultimate distribution scheme recommended, and the court took such action without consideration of a transcript of the testimony taken before the Master and without itself receiving such testimony. It is unclear from the record whether the trial court was able to consider the impact of these changes as they related to the distribution scheme.

As this court has previously identified, there are two alternative procedures governing economic claims under the Pennsylvania Divorce Code. See Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987). The rules provided that a trial court may hear testimony and decide a case, or “may appoint a master ... to hear the testimony and return the record and a transcript of the testimony to the court, together with a report and recommendation.” Pa. R.C.P., Rule 1920.51(a)(1), 42 Pa.C.S.A. A third approach, which is not specifically authorized by the Rules and which is apparently in place in Montgomery County, permits a party to demand a hearing de novo by the court following the filing of a master’s report. See Colagioia v. Colagioia, supra. In the later situation “[bjecause the hearing is de novo, the court’s decree is based upon its own review of the testimony instead of that of the master.” Id., 362 Pa.Superior Ct. at 218, 523 A.2d at 1160.

A critical distinction between the alternative means of determining economic matters concerns review of the decision regarding equitable distribution. Where the court initially considers the parties’ claims in a hearing and rules on the distribution scheme the parties are required to file post-trial motions in accordance with Pa.R.C.P. 227.1. See, Pa.R.C.P. 1920.52(a). As with all post-trial motions, the filing of such allows the trial court an opportunity to reexamine its decision in light of the alleged error and preserves the issue for purposes of appeal.

In instances where the claims are referred to a master, the provisions of Pa.R.C.P. 1920.55 govern. This rule requires that any objections to the master’s report, to evidentiary rulings, to findings or fact or conclusions of law or to any matters which occurred during the hearing, are to be included in exceptions filed within ten days after notice of the filing of the master’s report is mailed. When exceptions are filed, the court is to hear argument on the exceptions and enter an appropriate final decree. No motions for post-trial relief may be filed in response to the final decree; rather the 30 day appeal period begins. Pa.R.C.P. 1920.55.

In counties where the hybrid procedure is employed and the matter is first heard by a master followed by a de novo trial court hearing, the court will disregard the master’s report and also ignore the exceptions challenging the report. Colagioia v. Colagioia, supra. The court then issues an order based upon the testimony heard and information presented in the hearing. To achieve meaningful review of the trial court’s decision which was reached following the hearing, the aggrieved party has been required to raise its claims in post-trial motions. Id.; Taylor v. Taylor, 345 Pa.Super. 184, 497 A.2d 1365 (1985).

The hybrid procedure which is apparently in place in Montgomery county can be criticized for two reasons. First, it results in a waste of both the litigants’ and the court’s time and resources. Because this practice requires the court to hold a de novo hearing after the matter has been heard before a master, the initial hearing becomes a nullity, as does the master’s report. The hearing before the master and the report the master issues have no identifiable purpose and become merely useless tasks undertaken before review of the case by the court.

Secondly, the procedure is fraught with the danger that it will be misused, such as occurred in the instant case. Here the Master had a hearing and took testimony, yet the . directives of Pa.R.C.P. 1920.53 were not followed and the Master did not file a record and transcript of the testimony which was presented to him. The Master did file a report labeled a “Conciliator’s Recommendation Upon Equitable Distribution Alimony and Counsel Fees and Costs” to which Wife filed exceptions. The exceptions were not, however, treated as exceptions because the court announced that it was holding a de novo hearing. Despite this announcement no testimony was received and the court merely listened to arguments on the exceptions. Thereafter, the court issued its order, which did not provide reasons for the equitable distribution of the property as required by Pa.R.C.P. 1920.-52, but merely affirmed the Master’s report with one exception. To this order Wife filed post-trial motions and the court responded with further modifications in its final order and decree. As a result of this practice, wife was permitted to object twice to the distribution of the marital property, once in the form of exceptions and once in the form of post-trial motions. Even more egregious, the court was permitted to issue an order of equitable distribution without the benefit of either in-court testimony or a transcript of the record.

On appeal, Husband questions the actions of the court and contends that certain matters were not considered, yet we are unable to determine whether these matters were presented and rejected, or if they were never presented at all.

This case demonstrates why it is imperative for courts to follow those rules set forth in the Pennsylvania Rules of Civil Procedure. It is clear from an examination of the record and the trial court’s comments that neither the court nor the parties were sure of the proper procedure in this matter. As a result, a confusing procedure applying some, but not all, of the elements of both Rules 1920.52 and 1920.55 was utilized. A recurrence of this procedural irregularity will not occur if the parties and the court conduct themselves as directed by the rules. Where a master is utilized, the master shall conduct a hearing, and file a transcript and report, to which the parties may file exceptions. A de novo hearing is not to be held before the trial court, rather the court is to hear arguments on those matters raised in the exceptions. A final decree is then to be issued, and if an appeal is desired it should be taken within 30 days. No motions for post-trial relief should be entertained.

Where the trial court hears the case, without it first proceeding to a master, the court shall enter a decision and state its reasons in support of that decision. The parties are permitted to file post-trial motions in which they must raise any matters they wish to have considered on appeal.

23 Pa.C.S.A. § 3321 permits a case by case reference to a master for an unrecorded hearing. To the extent this practice is used, exceptions following a master’s hearing are not permitted but a de novo hearing on demand must occur if requested within 10 days after notice of the filing of the master’s report. A de novo hearing in the trial court must include an actual trial at which evidence is presented, witnesses heard, and the proceedings recorded.

Because of the complex procedural misrouting which this case undertook, we deem it appropriate for the entire matter of equitable distribution to be returned to the trial court for a full hearing. The parties and the court are to proceed as directed in Pa.R.C.P. 1920.52, and any grievances with the court’s decision are to be raised in timely filed post-trial motions.

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

      . We note that following this order, but within 30 days, the court entertained a further motion filed by wife and once again modified its order. Although husband contests the authority of the trial court to take such action, we make no comment regarding this claim because the manner in which the earlier proceedings were conducted was so procedurally flawed that it is necessary to remand this case to the trial court for a new hearing and order of equitable distribution.


source: Caselaw Access Project

author: MONTGOMERY, Judge: WIEAND, Judge,

license: Public Domain

text:
    606 A.2d 1211
    COMMONWEALTH of Pennsylvania, Appellee, v. Keith M. WILSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1992.
    Filed April 24, 1992.

      Scott D. Galloway, Media, for appellant.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellee.
    Before WIEAND, KELLY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellant, Keith M. Wilson, was convicted by a jury of possession of a controlled substance and possession of a controlled substance with the intent to deliver. Posttrial motions were filed and denied. Appellant was sentenced to four to ten years imprisonment. The present appeal followed. We affirm.

On appeal, appellant claims that the trial court erred by not suppressing evidence and by failing to grant a continuance during the course of the trial.

On April 18, 1989, Chester City police officers received a tip that drugs were being sold in the area of the William Penn projects. The drugs were allegedly being sold by a man wearing a purple shirt and a black jacket. Narcotics officers went to the projects to investigate. Officer Fox observed a black male wearing a purple shirt leaning out the window of 414 Deakyne Place. Officer Fox entered the project and went up the stairway. Appellant and two other people were standing on the landing. Officer Fox observed appellant place a black jacket on the bannister. Officer Fox identified himself and asked appellant if he owned the jacket. Appellant denied ownership and Officer Fox proceeded up the stairway to investigate. Officer Bireley followed Officer Fox into the building. The three people did not look at Officer Bireley but continued to look out the window. Officer Bireley asked if anyone owned the jacket and nobody answered. Officer Bireley picked up the jacket and found a brown paper bag, which contained heroin. Officer Fox came back down the steps and told Officer Bireley that he saw appellant holding the jacket and that he saw appellant place it on the bannister. Appellant was subsequently arrested.

Appellant claims that the trial court erred by not granting his pretrial motion to suppress. When reviewing an order denying a motion to suppress, we must determine whether the factual findings of the lower court are supported by the record. We consider only the prosecution’s evidence and as much of the defendant’s evidence which, when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984).

Appellant contends that the trial court erred by finding that appellant lacked standing to object to the search of the jacket. Appellant is correct in that a person charged with a possessory offense must be accorded automatic standing. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). However, once a person abandons an item, he does not retain standing to complain about the search and seizure. Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976); Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989). This principle also applies to cases where the defendant is charged with a possessory offense. Commonwealth v. Rodriquez, 385 Pa.Super. 1, 559 A.2d 947 (1989). Abandonment may occur when a person denies ownership in response to police questioning. Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276 (1992).

In the instant case, Officer Fox entered the building and observed appellant holding a black jacket. Officer Fox observed appellant place the jacket on the bannister. Officer Fox approached appellant and the two other people. Officer Fox identified himself as a police officer and asked appellant for identification. Officer Fox asked appellant if the jacket belonged to him. Appellant denied ownership. Officer Fox then proceeded to the next floor of the building. While Officer Fox was on the other floor, Officer Bireley entered the building. Officer Bireley observed the jacket on the bannister and asked appellant and the two other people who owned the jacket. Officer Bireley’s question went unanswered. In fact, appellant and the other people basically ignored Officer Bireley. By denying ownership of the jacket to Officer Fox and by failing to answer Officer Bireley’s question regarding ownership of the jacket, it is apparent that appellant voluntarily discarded the jacket and relinquished any interest in the jacket and could no longer retain a reasonable expectation of privacy. Commonwealth v. Windell, 365 Pa.Super. 392, 529 A.2d 1115 (1987). Therefore, the trial court did not err by finding that appellant did not have standing to object the seizure. Commonwealth v. Rodriquez, supra.

Appellant next contends that the officers lacked probable cause to arrest appellant. The test for probable cause to arrest is whether, at the time of the initial apprehension, there were facts available to justify a person of reasonable caution to believe that a crime had been committed and that the individual arrested was the probable perpetrator. Commonwealth v. Groff, 356 Pa.Super. 477, 514 A.2d 1382 (1986). Probable cause means only the probability and not a prima facie showing of criminal activity. Commonwealth v. Vessells, 273 Pa.Super. 100, 416 A.2d 1108 (1979). Probable cause is based on the facts and circumstances known at the moment of the arrest, Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974).

Presently, the officers had information that a person named Keith Wilson, wearing a purple shirt and carrying a black jacket, was selling heroin in the area of the William Penn projects. The officers walked around the projects and Officer Fox saw a black male, wearing a purple shirt, leaning out of a window. Officer Fox entered the project and observed appellant holding a black jacket and then placing the jacket on the bannister. Officer Bireley also entered the building and asked who owned the jacket. Because no one replied, Officer Bireley examined the jacket and found heroin. Given the fact that Officer Fox observed appellant hold the jacket and place it on the bannister, it was not unreasonable to believe that appellant possessed and was selling the heroin. Therefore, the arrest was based on probable cause and appellant’s claim is meritless.

Appellant next claims that the trial court erred by refusing to allow a continuance so that appellant could obtain more witnesses. Appellant wanted his mother, sister and other relatives to testify at trial. The grant or denial of a continuance is within the sound discretion of the trial court and will not be reversed absent an abuse of such discretion. Commonwealth v. Faraci, 319 Pa.Super. 416, 466 A.2d 228 (1983). The following factors are to be considered when determining whether to grant a continuance to obtain witnesses: (1) whether the absent witness is necessary to the defense; (2) the facts to which the witness would testify; (3) whether the defendant acted diligently in procuring the witness; and (4) the likelihood that the witness would be produced for the trial. Commonwealth v. Smallhoover, 389 Pa.Super. 575, 567 A.2d 1055 (1989).

The record indicates that before the trial appellant expressly stated that he did not want his mother or his sister to testify at trial. Apparently, appellant’s mother and sister had testified at his first trial. On the second day of the trial, appellant changed his mind and decided that he wanted his mother, sister and other relatives to testify. Appellant requested a continuance. The trial court complied with appellant’s request and adjourned early so that appellant could contact his witnesses. Trial counsel subpoenaed these witnesses but they did not comply with the subpoenas and were not present the next day. The trial court did not issue another continuance. The mother and sister would have testified that appellant’s birthday was the day before the arrest and that they gave appellant money as a birthday gift. Appellant has not stated what the testimony of the other witnesses would have been. The Commonwealth stipulated to the testimony from the mother and sister. Therefore, we fail to see how appellant was prejudiced when the trial court did not grant another continuance.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I join the majority’s decision to affirm the judgment of sentence. I write separately for the sole purpose of observing that an intent to abandon property lying next to a person cannot be found from his or her silence or failure to respond to a police officer’s questions regarding ownership of the property.

The Superior Court has recently held that abandonment may result where, in response to police questioning, a person denies ownership of property lying several feet away. See: Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276 (1992). The holding in Bennett, however, cannot be extended to a situation in which a person ignores and refuses to answer police questions regarding ownership. In this respect, I agree with Professor LaFave, who has said that a defendant’s denial of ownership should “be distinguished from mere silence in response to police questioning about ownership, which is not to be characterized in the same way. ‘To equate a passive failure to claim potentially incriminating evidence with an affirmative abandonment of property would be to twist both logic and experience in a most uncomfortable knot.’ ” 1 LaFave, Search and Seizure, § 2.6(b), at p. 469 n. 54 (2d ed. 1987), quoting State v. Joyner, 66 Hawaii 543, 544, 669 P.2d 152, 153 (1983).

Nevertheless, review of the testimony at the suppression hearing in this case is persuasive that appellant did, in fact, affirmatively abandon the jacket which was subsequently seized and searched by police. Officer Fox, who entered the building where appellant was reported to have been dealing drugs, observed appellant as he placed the jacket on the bannister at the second floor landing of the staircase. Fox approached appellant and the two persons with him, identified himself as a police officer and asked appellant for identification. After appellant had identified himself, Fox asked him if the jacket on the bannister belonged to him. Appellant, according to Fox, denied ownership. Fox then went to the next floor to make certain that it had been secured. Meantime, Officer Bireley, who had followed Fox into the building, arrived at the second floor, where he observed the jacket on the bannister. When he asked appellant and the two persons on the landing if the jacket belonged to any of them, no one answered. Bireley thereupon seized the jacket, reached into a pocket and found twenty-one (21) packets of heroin.

Under these circumstances, I agree with the majority that appellant had abandoned the jacket and surrendered any expectation of privacy with respect thereto. Not only had he denied ownership in response to Officer Fox’s question regarding the jacket, but he also had failed to claim ownership when given an opportunity to do so by Officer Bireley. Therefore, he cannot complain that the police seized the jacket and examined the contents of the pocket. He no longer had any right to assert a privacy interest therein. See: Commonwealth v. Bennett, supra.

Moreover, because the abandonment occurred on a landing of a public housing project building, where the public, including the police, had a right to be, it cannot be said that appellant was unlawfully coerced to surrender his privacy interest in the jacket. Therefore, I agree that appellant’s abandonment of the jacket was voluntary.

I also agree with the majority that the trial court did not commit an abuse of discretion when it denied a second request by appellant for a continuance of his trial.

      . Because appellant does not have standing to object to the search, we will not address appellant’s claim regarding the validity of the search.

      . The first trial resulted in a “hung jury”, which necessitated a mistrial.


author: HOFFMAN, Judge.

text:
    606 A.2d 1215
    Larry D’AMELIO, Individually and on Behalf of All Other Persons Similarly Situated, Appellants, v. BLUE CROSS OF LEHIGH VALLEY and St. Luke’s Hospital, Individually and on Behalf of All Other Hospitals Similarly Situated.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1992.
    Filed April 27, 1992.

      Margaret H. Poswistilo, Easton, for appellants.
    Oldrich Foucek, III, Allentown, for appellee Blue Cross.
    Annette P. Landes, Easton, for participating party Good Shepherd Rehabilitation Hosp.
    William J. O’Kane, Easton, for amicus curiae Easton Hosp.
    Wallace H. Bateman, Jr., Perkasie, for participating Grandview Hosp.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the order of August 6, 1990 denying appellant’s motion to amend his complaint. Appellant, Larry D’Amelio, individually, and on behalf of all other persons similarly situated, presents the following claims:

1. Did the lower court err in refusing to allow the class-representative plaintiff to amend the complaint by the naming of eighteen individual defendants who had been originally included in the law-suit as members of a proposed class of defendants not certified by the lower court, and, further, by the adding of individual counts in the complaint against each of the eighteen individual defendants?
2. Does the commencement of a class action against unnamed defendants suspend the statute of limitations until the certification issue is decided?
3. Is certification of a class of defendants a moot issue in this case?
4. Has the lower court decertified a large portion of the plaintiff class by its order of August 6, 1990?

Appellant’s Brief at 5.

On or about September 11,1981, Larry D’Amelio filed his original complaint in this action, naming Blue Cross of Lehigh Valley as the defendant. The suit was denominated a “class action” and was brought on D’Amelio’s individual behalf as well as on the behalf of all other persons alleged to be similarly situated.

D’Amelio originally sought to represent a class of persons who, while eligible for Blue Cross coverage, were admitted to hospitals having contracts with Blue Cross to provide hospital services to persons so covered. The complaint alleged that the proposed members of the class incurred medical expenses which were not paid because Blue Cross determined that the services provided were not medically necessary. The complaint also alleged that due to Blue Cross’ denial of coverage, the proposed members of the class were now personally required to pay their hospital expenses. Monetary and equitable relief was sought under claims of trespass and assumpsit.

D’Amelio claimed that Blue Cross breached its subscription agreement by retrospective denial of coverage. In the alternative, he argued that if the retrospective review and denial provisions were part of and authorized by the agreement, they were unconscionable and void as against public policy.

In an amended complaint filed on October 14, 1981, D’Amelio named St. Luke’s Hospital as a representative of a purported class of defendant-hospitals. In 1982, D’Amelio moved for class certification of the plaintiff class and defendant class. On May 6, 1983, the lower court denied and dismissed the motion. Appellant then filed a petition for reconsideration as to the denial of certification of the plaintiff class which was denied. On May 26, 1983, D’Amelio filed a notice of appeal to this court.

On October 11, 1985, this Court reversed the lower court and remanded the case for further findings as to the certification of the plaintiff class. 347 Pa.Super. 441, 500 A.2d 1137. The lower court subsequently entered an order granting the motion for certification of a plaintiff class. The court refused to reconsider the issue of certification of a defendant class. When the trial court certified the plaintiff class, in its order of July 18, 1989, it did so in the context of the unappealed order of May 6,1983, limiting the defendants strictly to Blue Cross and St. Luke’s.

Thereafter, on September 13, 1989 D’Amelio filed a motion to amend the complaint to name nineteen hospitals as individual defendants. The lower court denied D’Amelio’s motion to amend the complaint on August 6, 1990. This timely appeal followed.

First, appellant claims that the lower court erred in refusing to allow him to amend the complaint by the naming of eighteen individual defendants who had originally been included in the law-suit as members of a proposed class of defendants not certified. We disagree.

A party seeking judicial resolution of a controversy in this Commonwealth must establish that he has standing to maintain the action. “The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge.” William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). The requirement that a party must be “aggrieved” is also applicable to class actions. Nye v. Erie Insurance Exchange, 504 Pa. 3, 6, 470 A.2d 98, 100 (1985).

In the instant case, D’Amelio was aggrieved by the actions of Blue Cross of Lehigh Valley when it overruled St. Luke’s initial determination that his treatment was medically necessary. Therefore, it can be said that D’Amelio has standing to represent all persons who were aggrieved by similar rulings by Blue Cross with respect to any St. Luke’s. However, we cannot say that such standing extends to any other hospital with which Blue Cross has a contract. None of the other hospitals sought to be joined engaged in conduct which contributed to the injury he suffered from the controversy between St. Luke’s and Blue Cross of Lehigh Valley.

In the alternative, D’Amelio claims that the formation of subclasses would alleviate the problem of lack of standing because other aggrieved individuals have standing to be class, or subclass, representatives for an action against hospitals other than St. Luke’s. This argument is unpersuasive.

Pennsylvania Rules of Civil Procedure, Rule 1710, provides in relevant part:

(c) When appropriate, in certifying, refusing to certify or revoking a certification of a class action the court may order that:
(2) a class be divided into subclasses and each subclass treated as a class for purposes of certifying, refusing to certify or revoking a certification and that the provisions of these rules be applied accordingly.

Pa.R.Civ.P. Rule 1710(c)(2). The rule does not contemplate the formation of subclasses to cure problems of standing. Rather, the Pennsylvania Rules of Civil Procedure contemplate maintaining class action suits, or subclass action suits, only when such suits are a fair and efficient method of adjudication. See Pa.R.Civ.P. § 1702, § 1708. Accordingly, the formation of subclasses is not an appropriate cure for appellant’s standing deficiencies.

We conclude that the plaintiff has standing to represent all persons who have or will suffer injury as a result of billings from St. Luke’s which have or will be denied coverage by Blue Cross. However, D’Amelio has no standing to sue the other hospitals sought to be joined because he has not been adversely affected in any way by conduct of such hospitals.

Appellant next claims that the commencement of a class action against unnamed defendants suspends the statute of limitations until certification is decided. Because we find that appellant lacks standing as to the additional hospitals (other than St. Lukes) we need not reach this issue.

Appellant next claims that certification of a class of defendants is not a moot issue. D’Amelio suggests that this court may, at this time, examine the lower court’s decision to deny the defendant class certification. This claim is meritless.

The court below in its order and opinion of July 18, 1989 unequivocally stated that defendant class certification was denied. The denial of class certification is a final appeal-able order, McConnell v. Commonwealth, Department of Revenue, 503 Pa. 322, 325 n. 2, 469 A.2d 574, 576, n. 2 (1983), and on July 18, 1989, the thirty (30) day appeal period began to run against appellant. Appellant did not appeal the denial of defendant class certification within thirty (30) days and, therefore, appellant has waived this issue.

Lastly, appellant contends that the lower court has decertified a large portion of the plaintiff class by its order of August 6, 1990. We disagree.

The order in question stated that D’Amelio lacked standing as to the hospitals that he sought to join. The court noted that he continued to have standing to represent all persons who have or will suffer injury as a result of billings from St. Luke’s which have or will will be denied coverage by Blue Cross of Lehigh Valley. The plaintiff class is not decertified by the order. Accordingly, we affirm the order of August 6, 1990 in which the court denied appellant’s motion to amend his complaint to add eighteen hospitals as defendants.

Order affirmed.

      . Appellant did not seek reconsideration of the denial of certification of the defendant class.

      . When this court remanded for certification of the plaintiff class, the only named defendants were Blue Cross and St. Luke's Hospital.

      . Explanatory Note to Rule 1710 provides in relevant part that: Subdivision (c) follows the Federal Rule in permitting the court to limit the class action to particular issues or forms of relief, and to divide the proposed class into subclasses.


author:
      WIEAND, Judge:
      CAVANAUGH, Judge,

text:
    606 A.2d 1218
    Vincent McDONALD and Nancy McDonald, Appellants, v. ALIQUIPPA HOSPITAL, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed April 30, 1992.

      Thomas Kovalchick, Arnold, for appellants.
    Louis C. Long, Pittsburgh, for appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge:

In this action to recover damages for injuries caused to the husband-plaintiff’s right foot by the closing of automatic hospital doors while he was seated in a wheelchair being pushed by a nurse, the trial court entered a compulsory non-suit in favor of the hospital. When the court subsequently denied a motion to remove the non-suit, husband and wife plaintiffs appealed. After careful review, we find it necessary to reverse.

In April, 1983, Vincent McDonald, while a patient at Aliquippa Hospital, was being transported by wheelchair from the x-ray department to his room. Because the leg rest on the wheelchair did not function properly, McDonald’s right leg was protruding in a position parallel to the floor. When he was pushed through a set of automatic doors, the doors closed prematurely on and pinched his right foot. According to McDonald’s testimony, the nurse who was pushing the wheelchair did not immediately cause the doors to be reopened but attempted to pull his foot through the closed doors, thereby causing the doors to close more tightly on his foot. As a consequence, McDonald sustained injuries for which he and his wife, Nancy, sought damages from the hospital. They alleged that the doors had been improperly maintained and that the nurse had been negligent in failing to exercise due care for the safety of her patient.

The law pertaining to the entry of a compulsory non-suit was reviewed in Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289 (1988), aff'd, 528 Pa. 113, 595 A.2d 56 (1991), as follows:

The rules regarding a compulsory non suit are well established. A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together will [sic] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112 (1977).
However, it is also well settled that a jury can not be permitted to reach its verdict on the basis of speculation or conjecture, Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); and that a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Schofield v. King, 388 Pa. 132, 130 A.2d 93 (1957). See Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976); Dornon v. Johnston, 421 Pa. 58, 218 A.2d 808 (1966); Goater v. Klotz, 279 Pa. 392, 124 A. 83 (1924). In addition, it is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has met this burden. Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961).

Id. at 8-9, 545 A.2d at 292-293, quoting Morena v. South Hills Health System, 501 Pa. 634, 638-639, 462 A.2d 680, 682-683 (1983). See also: Bowser v. Lee Hospital, 399 Pa.Super. 332, 337, 582 A.2d 369, 371 (1990); Calhoun v. Jersey Shore Hospital, 250 Pa.Super. 567, 569, 378 A.2d 1294, 1295 (1977).

To establish a prima facie case of negligence against the hospital, plaintiffs were required to prove a duty of care on the part of the hospital and a breach thereof causing McDonald’s injury. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966); Williams v. Otis Elevator Co., 409 Pa.Super. 486, 598 A.2d 302 (1991); Zanine v. Gallagher, 345 Pa.Super. 119, 123, 497 A.2d 1332, 1334 (1985). A hospital has a duty to make its premises safe for patients, who are entitled to rely on the assumption that the hospital has exercised reasonable care for their safety while confined. See: Restatement (Second) of Torts, § 343.

The extent of care required to be exercised by an owner or possessor of land is at all times commensurate with the circumstances surrounding the use to which he has invited his property to be used. The comment to the above-quoted Section 343 of the Restatement of the Law of Torts, 2d, notes: “In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance. One who enters a private residence even for purposes connected with the owner’s business, is entitled to expect only such preparation as a reasonably prudent householder makes for the reception of such visitors. On the other hand, one entering a store, theater, office building, or hotel, is entitled to expect that his host will make far greater preparation to secure the safety of his patrons than a householder will make for his social or even his business visitors.” (emphasis supplied)

Starke v. Long, 221 Pa.Super. 338, 341-342, 292 A.2d 440, 443 (1972). Patients of hospitals are especially vulnerable to faulty doors and other equipment. Therefore, a hospital has a duty to inspect such equipment and maintain it in good operating order.

As a general rule, the mere happening of an accident does not establish that an injured person has been a victim of negligence. Hamil v. Bashline, supra; Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969); Mapp v. Wombucker, supra. However, negligence, in some instances, may be inferred from circumstances surrounding an accident. Gilbert v. Korvette’s, Inc., 457 Pa. 602, 327 A.2d 94 (1974); Noel v. Puckett, 427 Pa. 328, 336, 235 A.2d 380, 384 (1967); Williams v. Otis Elevator Co., supra; Schoenenberger v. Hayman, 77 Pa.Commw. 411, 416, 465 A.2d 1335, 1338 (1983); Calhoun v. Jersey Shore Hospital, supra. Section 328D of the Restatement (Second) of Torts, which was adopted by the Supreme Court of Pennsylvania in Gilbert v. Korvette’s, Inc., supra, permits a jury to infer

that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

“This principle has been applied in cases in which machinery has malfunctioned but where there is no evidence to identify the specific reason for such malfunction.” Williams v. Otis Elevator Co., supra, 409 Pa.Super. at 492, 598 A.2d at 305, citing McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 237-238, 420 A.2d 514, 518 (1980) and Carney v. Otis Elevator Co., 370 Pa.Super. 394, 536 A.2d 804 (1988).

In the instant case, the husband-plaintiff testified that the automatic doors in the hospital corridor were open as he approached in a wheelchair but that the doors unexpectedly closed on his right foot. The doors held his foot in a tight grip which was released only when the nurse manually forced the doors open. The failure of the doors to sense an object in their path and remain open until safe passage had been secured was a malfunction which would not ordinarily occur if the doors had been inspected and properly maintained. Cf. Carney v. Otis Elevator Co., supra (sudden closing of elevator doors and failure to automatically release trapped passenger was malfunction which would not ordinarily occur in absence of negligence); McGowan v. Devonshire Hall Apartments, supra (sudden movement of elevator and failure to properly level with hallway floor was malfunction which would not ordinarily occur absent negligence); Williams v. Eastern Elevator Co., 254 Pa.Super. 393, 386 A.2d 7 (1978) (sudden and severe shaking and jolting of moving elevator was circumstantial evidence of negligent maintenance); Johnson v. Otis Elevator Co., 225 Pa.Super. 500, 311 A.2d 656 (1973) (discharge of electricity from electric eye of automatic elevator door which injured boarding passenger was event not likely to occur in the absence of negligence).

Moreover, if the doors were not malfunctioning, then the nurse, who was an employee of the hospital and who had the husband-plaintiff in her charge, had a duty to be alert and to exercise care to move him through the doors without allowing them to close upon and do injury to the extended leg of her patient. Thus, even if the jury found that the automatic doors did not malfunction, it could nevertheless have inferred from the circumstances that a hospital employee had failed to exercise due care in moving the husband-appellant safely through the hospital doors. Where a relatively helpless patient is being moved through the corridors of a hospital by an employee of the hospital, a jury can infer that injuries caused to the patient by automatic doors were the result of hospital negligence.

To establish a prima facie case of negligence, it was not necessary that plaintiffs’ evidence exclude all other causes of the accident. As the Court observed in Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303 (1986),

It is not necessary that appellant exclude all other possible causes of the accident beyond a reasonable doubt. All that is required is that appellant present a case from which a jury may reasonably conclude that the negligence was, more probably than not, that of the defendant. Restatement (Second) of Torts § 328 D comment f.

Id., 357 Pa.Superior Ct. at 28, 515 A.2d at 305-306. McDonald’s description of the circumstances and events surrounding his injury provided a sufficient basis upon which a jury could infer, without speculation or conjecture, that the hospital had, more probably than not, been negligent in failing to move a patient safely through automatic doors in the hospital.

In addition, the testimony was that the nurse, when she saw what happened, momentarily panicked and attempted to pull the husband-plaintiff through the door instead of acting immediately to release the doors. This, according to the testimony, caused the doors to close more tightly upon plaintiffs foot. From this testimony, a jury could also find that this specific, momentary carelessness by the nurse, an employee of the hospital, had contributed causally to the injury sustained by the husband-plaintiff.

For these reasons, we are constrained to conclude that the entry of a compulsory non-suit was improper.

Reversed and remanded for a new trial. Jurisdiction is not retained.

CAVANAUGH, J., files a Dissenting Opinion.

7. The injuries hereinafter set forth were the direct and proximate result of the negligence, carelessness and recklessness of the defendant by and through its agents, servants and employees, while acting within the scope of their employment/agency in the following particulars:
d) In failing to maintain the doors in such a manner so that the doors would not close while someone was attempting to travel through the doorway;
e) In allowing the doors to make contact with plaintiff, Vincent McDonald’s foot.
In holding that the trial court erred in entering a compulsory non-suit, we have neither injected a new cause of action nor a new theory of recovery. We have held only that appellants can establish a prima facie case of appellee’s negligence by circumstantial evidence. In holding that a cause of action was made out circumstantially, we have given appellants the benefit of all favorable evidence and all reasonable inferences of fact to be drawn therefrom. When this is done, we conclude, a jury could have inferred that the husband-appellant’s injury was caused by negligence on the part of the hospital or one of its employees.
Admittedly, appellants have not supplied us with a carefully drafted brief. The argument section includes less than three pages. Counsel's failure to cite controlling authority, however, does not relieve this Court from reviewing the record carefully and deciding correctly and in accordance with established authority the issue preserved for appellate review, i.e., whether there was sufficient evidence from which a jury could infer that the husband-appellant’s injury was caused by appellee’s negligence.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the majority opinion. Appellant asserts on appeal three theories of responsibility under which appellee is allegedly liable for appellant’s injuries: (1) defective equipment that is, the leg rest of the wheelchair in which appellant was seated, was fixed in a position that made appellant’s leg stick out; (2) active negligence on the part of the nurse by pulling on the wheelchair and thereby causing the doors to close tighter of appellant’s foot instead of pushing the doors forward to free appellant’s foot; and (3) whether the nurse acted rationally in an emergency situation. Appellant’s brief at page 5.

The majority opinion, however, has applied a whole new theory of responsibility, res ipsa loquitur or exclusive control, which was not proffered by appellant below or on appeal as a basis for appellee’s liability. None of the cases cited by the majority are cited by appellant in his brief. Such sua sponte decision making by our Court exceeds our proper appellate function of deciding controversies presented to it by the parties. Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975). Commonwealth v. Karash, 513 Pa. 6, 8 n. 1, 518 A.2d 537, 538 n. 1 (1986). It is important to note, as pointed out in appellee’s brief, that appellant’s accident occurred in 1983 and the trial took place in 1991. Thus, the statute of limitations has run on any new cause of action. Appellee’s brief at page 2 n. 2, citing Del Turco v. Peoples Home Sav. Assoc., 329 Pa.Super. 258, 274-75, 478 A.2d 456, 464-65 (1984). See also, Haverstock by Haverstock v. T.I. Raleigh (USA), 384 Pa.Super. 106, 112, 557 A.2d 1068, 1070 (1989).

Further, the doctrine of res ipsa loquitur historically has been limited in its application by our courts to cases involving injuries to passengers from conveyances, such as railroads, elevators, and escalators or injuries to patrons of utilities. Ambrose v. Western Maryland Ry. Co., 368 Pa. 1, 11, 81 A.2d 895, 900 (1951). The majority’s application of the doctrine to the instant case, involving automatic doors, represents an unwarranted extension of the law not sought by appellant.

Finally, the majority opinion elevates hospital responsibility close to absolute liability when it states that “a hospital has a duty to inspect such- equipment and maintain it in good operating order.” Op. at 321. This deviates from the classical standard of reasonable care.

Accordingly, I would affirm the denial of appellant’s motion to remove the non-suit.

      . The author of the dissenting opinion suggests that we have injected sua sponte a cause of action not raised by appellants. This is not correct. The complaint contains an averment of negligence as follows:

      . The majority’s revised opinion containing footnote 1 causes me to reaffirm my position as, respectfully, it seems to me that the majority misconstrues the appellate function. It is not the duty of an appellate court to search out the pleadings in order to extract a basis for a theory of recovery which was not put forward at trial, on post-trial motions, or on appeal. Our courts have often said that it is not our duty to become the appellant’s attorney. Thus, our supreme court has opined:
      "... [w]hen a party chooses to appeal under our rules of civil procedure, they choose the issues, and what is not chosen is waived. We cannot and do not construe an appeal as a challenge to all possible issues; we confine ourselves to what the parties choose and only that.”

        Appeal of Municipality of Penn Hills, 519 Pa. 164, 172, 546 A.2d 50, 54 (1988). See also, Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-402, 551 A.2d 1112, 1114 (1988); Commonwealth v. Streater, No. 1124 PGH 1990, Slip Op. at 8, n. 7, 1992 WL 51191 (Pa.Super. March 19, 1992) (rearg. granted, May 29, 1992).


author: ROWLEY, President Judge:

text:
    606 A.2d 1380
    COMMONWEALTH of Pennsylvania v. Angelo NOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1991.
    Filed March 30, 1992.
    Reargument Denied May 28, 1992.

      Jeremy C. Gelb, Philadelphia, for appellant.
    Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and JOHNSON, JJ.
   ROWLEY, President Judge:

Appealing from the judgment of sentence entered February 6, 1991, in the Court of Common Pleas of Philadelphia County, Angelo Nock raises four issues, one of which we will address: whether trial counsel was ineffective for failing to investigate, interview, and call to testify an eyewitness to the murder for which appellant was convicted. After reviewing the record and carefully considering the parties’ arguments, we vacate the judgment of sentence and remand for a new trial.

In 1988, appellant and a co-defendant, Leroy Reed, were charged with the 1982 murder of Alexander Glenn. During the joint non-jury trial, an eyewitness, Odell Brown, testified to the following: On the day of the murder, Brown saw the decedent in a bar. While in the bar, the decedent, pretending to have a gun, robbed the bartender and then left the bar. Moments later, Brown heard gunshots. He exited the bar in order to investigate the gunshots and observed the decedent running down the street. Brown also saw a group of five or six men, including appellant and Reed, standing on the comer from which the shots were fired. Brown stated that some of the men had guns. Brown stated that Reed definitely had a gun, and appellant may have had a gun, but he was not sure. Brown also stated that he saw Reed fire his gun in the direction of the decedent.

Steven Moore also testified at appellant’s trial. Moore stated that the day after the murder, appellant and his co-defendant visited his house. According to Moore, appellant stated that Reed had shot the decedent in the back. Appellant also told Moore that he had pulled a gun on Brown. Both appellant and Reed showed guns to Moore.

On the basis of this testimony, appellant was convicted of first degree murder, conspiracy, and possessing an instrument of crime. After a penalty hearing, the trial court sentenced appellant to life imprisonment on the murder charge, a concurrent term of imprisonment of five to ten years on the conspiracy charge, and a concurrent term of imprisonment of two and one-half to five years on the possessing an instrument of crime charge. After trial counsel filed post-sentence motions, he was permitted to withdraw. Newly-appointed counsel filed supplemental post-se' -mce motions, alleging ineffectiveness of trial counsel. After hearings on the ineffectiveness claims were held, the trial court denied appellant’s motions. This timely appeal was then filed.

Appellant contends that trial counsel was ineffective for failing to investigate, interview, and call to testify an eyewitness to the murder, Leonard Rogers. In order to prevail on an ineffectiveness claim, appellant must show that

by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different____ To obtain relief on this claim[, that is, that counsel was ineffective for failing to interview or present a witness,] appellant is required to establish that: 1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial.

Commonwealth v. Petras, 368 Pa.Super. 372, 376-77, 534 A.2d 483, 485 (1987) (citations and footnote omitted). For the following reasons, we conclude that appellant has met this burden.

Both Rogers and appellant’s trial counsel testified at the post-sentence hearings. A review of the transcripts of these hearings reveals the following set of occurrences: On November 17, 1988, Rogers gave a statement to a Philadelphia detective. Rogers stated that he was a witness to the murder of Alexander Glenn. He stated that he saw appellant and Reed near an alley which was perpendicular to the street on which the decedent was shot. Rogers also stated that Reed jumped out from the alley and fired shots. Furthermore, he testified that he did not see appellant with a gun. He also told the detective that after the shooting appellant and Reed ran away together.

On November 23,1988, Rogers gave another statement to the police. This second statement contained substantially the same information as the November 17 statement except for the following differences: In the second statement, Rogers stated that appellant was sitting on some steps right next to the alley and that appellant got up off the steps when Reed came out of the alley. Again, he stated that the only person he saw with a gun was Reed.

On December 14, 1988, Rogers testified about the shooting before a grand jury. Rogers again testified as to his observations at the time of the shooting. As to appellant and Reed specifically, Rogers stated that Reed was standing next to the alley and that appellant “was sitting on the steps [approximately eight feet away from Reed] like he was going to nod off or something.” Grand Jury Transcript, 12/14/88, at 19-20. He also stated that it did not appear to him that appellant and Reed were together.

At the post-sentencing hearing, Rogers testified that appellant “was sitting on the step nodding, so once we heard the shots, he jumped up, shook his head, looked around and we just took off.” Hearing Transcript, 10/10/90, at 6-7. In addition, Rogers stated that had he been called to testify he probably would have done so and that his testimony would have been substantially similar to his testimony at the hearing. Rogers also discussed the statements he made to the police. Rogers stated that although he gave statements to the police, the statements were not completely accurate. He stated that the police added information to the information which he supplied to them. Specifically, he asserted that he never told the police that both Reed and appellant were standing next to the alley. He reaffirmed his statement that appellant was sitting on the steps, “nodding off.”

Appellant’s trial counsel also testified at the hearing. He stated that after he requested discovery from the Commonwealth, he received only the statement dated November 23. He stated that he did not receive the statement dated November 17. Trial counsel also stated that he reviewed the transcript of Rogers’ grand jury testimony when they were provided to him on either the day the trial started or the day before.

After considering the statement dated October 23 and the transcript of Rogers’ grand jury testimony, trial counsel decided not to call Rogers as a defense witness. Counsel based this decision on his belief that because Brown’s testimony, as well as Moore’s testimony, was so inconsistent and incredible, the Commonwealth did not have sufficient evidence to sustain a conviction. Trial counsel also stated that he “decided that [he] had done enough work to win the case.” Hearing Transcript, 9/10/90, at 18-19.

After reviewing this testimony, we conclude that trial counsel’s decision not to interview Rogers or call him as a witness was not reasonable. The outcome of this case hinged on the testimony of the Commonwealth’s eyewitness. “[W]hen the Commonwealth’s case is thus dependent upon the credibility of its witnesses, trial counsel must explore the testimony of any witness ... whose testimony might cast doubt on the testimony of the Commonwealth’s witnesses.” Commonwealth v. McCaskill, 321 Pa.Super. 266, 276, 468 A.2d 472, 477 (1983). Rogers was also an eyewitness to the shooting and he would have provided information which was exculpatory to appellant. As trial counsel asserted, the testimony of the Commonwealth’s witnesses was inconsistent; it was not incredible, however. In fact, trial counsel did not demur to the charges at the conclusion of the Commonwealth’s case, and he conceded during his closing argument that the evidence was sufficient to sustain a conviction. Nonetheless, counsel chose not to present exculpatory evidence on appellant’s behalf. This choice did not have a reasonable basis designed to effectuate his client’s interests.

Although counsel’s decision was not reasonable, we must also determine whether appellant was prejudiced by the decision. We disagree with the trial court’s conclusion that appellant was not prejudiced by counsel’s omission.

To prove prejudice in the context of an ineffectiveness claim, “[a]n appellant must show that the error was ‘so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.’ ” Commonwealth v. Morocco, 375 Pa.Super. 367, 371, 544 A.2d 965, 967 (1988) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984)), allocatur denied, 520 Pa. 615, 554 A.2d 508 (1989). We cannot say that, under the circumstances of this case, counsel’s failure to call Rogers did not deprive appellant of a fair trial. Brown’s various accounts of appellant’s role in the shooting were inconsistent and unclear. At different times, he stated that appellant did have a gun, that he did not know if appellant had a gun, that appellant was firing his gun, that Reed was the only person firing a gun. Rogers’ testimony that appellant did not have a gun could have provided the reasonable doubt necessary for a more favorable outcome to appellant.

This conclusion is not altered by the fact that the trial judge heard the evidence and adjudicated appellant’s guilt in this case. The same judge presided over the post-sentencing hearing and heard Rogers’ testimony as well as the testimony concerning the statements he made to the police. After hearing this testimony, the trial judge concluded that “there is no reasonable possibility that the result of the trial would have been different had Rogers been called to testify.” Trial Court Opinion, 3/28/91, at 5. To the extent that this was a determination that appellant was not prejudiced by counsel’s failure to call the witness, we have already discussed our disagreement.

The Commonwealth sets forth an additional argument in support of its contention that because the fact-finder, i.e., the trial judge, determined that there is no reasonable probability of a different outcome, appellant was not prejudiced by counsel’s failure to present Rogers as a witness. The Commonwealth argues that “by permitting Rodgers to testify, Judge Savitt, in effect, reopened the trial and admitted additional evidence for the defense. He concluded, however, that Rodgers’ testimony did not create a reasonable doubt as to defendant’s guilt.” Commonwealth’s Brief at 11. For the following reasons, we disagree.

First, the reasonable probability standard is applied to determine whether a defendant is entitled to a new trial, at which the fact-finder must consider whether guilt has been proven beyond a reasonable doubt. A defendant’s burden of proving that there is a reasonable probability that a missing witness’s testimony would have changed the outcome of the trial cannot be equated with, or substituted for, the Commonwealth’s burden of proving the defendant’s guilt beyond a reasonable doubt. If this testimony had been admitted at trial, the judge, as fact-finder, would have had to determine whether it cast a reasonable doubt on appellant’s guilt. At the post-trial hearing, the judge had to determine whether a reasonable probability existed that the outcome of the case would have been different. These inquiries are not interchangeable.

Furthermore, a judge’s role during a non-jury trial is not equivalent to his or her role with respect to post-trial motions. During trial,

the province of a trial judge sitting without a jury is to do what the jury is required to do, namely, consider all the evidence; reconcile contradictions and discrepancies in the testimony, if possible; dismiss what is incredible; and, from all that is presented, assemble a logical, continuous account which rings with verisimilitude, appeals to reason and convinces the judgment that the controverted event occurred in that and in no other manner.

Commonwealth v. Lemons, 404 Pa. 263, 268, 171 A.2d 785, 788 (1961). With respect to post-trial motions, however, the trial judge’s role is to consider and rectify, if necessary, alleged trial errors. See Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (en banc); Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1980). Similar to the burdens of proof discussed above, the roles of the trial judge at these different stages are not interchangeable.

Additionally, while we have found no case directly on point, the courts of this state have held that Pa.R.Crim.P. 1102(a) “restricts the trial judge’s authority over the verdict in a nonjury trial to one which is no greater than his or her authority over a jury verdict____” Commonwealth v. Stark, 526 Pa. 1, 5, 584 A.2d 289, 290 (1990) (citing Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977)). This rule has been applied in cases where the trial judge has entered a guilty verdict, but changed the verdict to not guilty during the post-trial stage. Because “the authority of a trial judge over a jury verdict is limited to consideration of postverdict motions in arrest of judgment or the granting of a new trial[,]” id., 526 Pa. at 5, 584 A.2d at 290, the trial court cannot “alter[ ] the verdict[ ] based upon a redetermination of credibility or a re-evaluation of evidence.” Commonwealth v. Parker, 305 Pa.Super. 516, 524, 451 A.2d 767, 771 (1982).

Similarly, a trial judge cannot, during a post-sentence hearing, reopen the trial and admit additional evidence for the defense. If this had been a jury trial, it is beyond question that the trial judge could not have recalled the jury so that it could hear Roger’s testimony and, with the benefit of the additional testimony, re-adjudicate appellant’s guilt. This procedure would be just as improper where the trial judge, rather than a jury, serves as the fact-finder. This conclusion finds further support in the principle that the fact-finder is required to listen with an open mind to all evidence presented, and only after all evidence is presented should the fact-finder consider the defendant’s guilt, or lack thereof. The fact-finder should not reach the conclusion that the defendant is guilty, and then decide if additional information changes this conclusion. Such a process would undermine the fundamental tenet of our criminal justice system, namely, that a criminal defendant is innocent until proven guilty.

For these reasons, we conclude that appellant was denied a fair trial due to trial counsel’s ineffectiveness. Accordingly, we vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.

      . Rule 1102. Procedure When Jury Trial is Waived
      (a) When a defendant waives a jury trial, the trial judge shall determine all questions of law and fact and render a verdict which shall have the same force and effect as a verdict of a jury.
      Pa.R.Crim.P. 1102(a).


author: CIRILLO, Judge: DEL SOLE, Judge,

text:
    606 A.2d 1384
    Michael JACKSON, Appellant, v. TRAVELERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1991.
    Filed April 7, 1992.
    Reargument Denied June 8, 1992.

      William Goldstein, Bensalem, for appellant.
    Thomas P. Kelly, Philadelphia, for appellee.
    Before CIRILLO, DEL SOLE and MONTEMURO, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County. On March 3, 1989, plaintiff/appellant Michael Jackson (Jackson) and his wife, Dorothy Lee Jackson, were walking together across Allegheny Avenue at the intersection of Allegheny Avenue and 16th Street in Philadelphia. Dorothy Lee Jackson was struck and killed by an automobile owned and operated by George Madison. Mr. Jackson witnessed his wife’s death.

At the time of the accident, Madison’s vehicle was not insured. Mr. and Mrs. Jackson did not own an automobile, and neither were insured under any automobile insurance policy.

Jackson filed an application for uninsured motorist benefits with the Pennsylvania Assigned Claims Plan (the Plan) as a result of the automobile accident. Pursuant to the Plan, the matter was assigned to defendant/appellee Travelers Insurance Company (Travelers). Travelers denied the claim and the matter was submitted to arbitration. The panel found in favor of Jackson. Travelers appealed to the Court of Common Pleas of Philadelphia County for a de novo trial and the case was heard before the Honorable G. Craig Lord on a stipulated record. Judge Lord overturned the arbitration panel’s decision and entered judgment in favor of Travelers. Jackson appealed to this court, raising one issue for our review:

Does the Assigned Claims Plan provide uninsured motorist coverage for emotional trauma suffered by a husband who witnesses his wife’s fatal auto accident?

Subchapter E of The Motor Vehicle Financial Responsibility Law (MVFRL), entitled the Assigned Claims Plan, distributes financial responsibility among insurers for the assessment of costs for certain eligible claimants who are not otherwise entitled to recovery of benefits. 75 Pa.C.S. § 1751. A person is eligible to recover under the Plan if he or she meets the eligibility requirements set forth in section 1752 of the MVFRL. A person is an eligible claimant if he or she:

(1) Is a resident of this Commonwealth.
(2) Is injured as the result of a motor vehicle accident occurring in this Commonwealth.
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).
(4) Is not the operator or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments or authorities.
(5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage.
(6) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.
(7) Is not the operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle or motorized pedalcycle or other like type vehicle required to be registered under this title and involved in the accident.

75 Pa.C.S. § 1752(a) (emphasis added). Jackson claims that he is an eligible claimant under section 1752(a), and that he is entitled to recover under section 1754. Section 1754, entitled “Additional coverage,” provides that an eligible claimant

who has no other source of applicable uninsured motorist coverage and is otherwise entitled to recover in an action in tort against a party who has failed to comply with this chapter may recover for losses or damages suffered as a result of the injury up to $15,000 subject to an aggregate limit for all claims arising out of any one motor vehicle accident of $30,000. If a claimant recovers medical benefits under section 1753 (relating to benefits available), the amount of medical benefits recovered or recoverable up to $5,000 shall be set off against any amounts recoverable in this section.

75 Pa.C.S. § 1754 (emphasis added). The point of discrepancy with respect to Jackson’s eligibility is the construction of the term “injury.” Jackson contends that this term includes the emotional trauma or distress he suffered as a result of having witnessed his wife’s death. We disagree.

The trial court recognized that under Pennsylvania law a plaintiff may recover damages against a tortfeasor for negligent infliction of emotional distress. See Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). The court aptly noted, however, that this is not the question in this case. Our focus is limited to the coverage encompassed in the MVFRL.

The definitional section of the MVFRL defines the term “injury” as “[accidentally sustained bodily harm to an individual and that individual’s illness, disease or death resulting therefrom.” 75 Pa.C.S. § 1702 (emphasis added). Jackson’s emotional trauma does not fall within the statutory requirement that an eligible claimant suffer bodily harm as a result of the motor vehicle accident. 75 Pa.C.S. § 1702.

The No-Fault Motor Vehicle Insurance Act (the No-Fault Act), repealed effective October 1, 1984, by Act of February 12, 1984, P.L. 26, No. 11 § 8(a), which preceded the MVFRL, also defined “injury” as “accidentally sustained bodily harm” 40 P.S. § 1009.103 (emphasis added). This court’s decision in Needleman v. Liberty Mutual Fire Insurance Co., 352 Pa.Super. 288, 507 A.2d 1233 (1986), interpreting this language under the No-Fault Act is helpful in our analysis of this issue. See 1 Pa.C.S. § 1922(4) (“when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.”)

In that case, Marvin Needleman, his wife Eydis Needle-man, and their daughter Melissa (the Needlemans) sought benefits under the No-Fault Act for psychological and psychiatric care and costs as a result of witnessing a family member’s accidental death. Rachael Needleman, aged 4, was struck and killed by a passing motor vehicle while crossing the street in front of her home. Mr. and Mrs. Needleman witnessed their daughter’s death, as did the child’s sister, Melissa. 352 Pa.Super. at 289-90, 507 A.2d at 1234. The Needlemans’ automobile insurer, Liberty Mutual, denied coverage on the basis that the claims for psychiatric and psychological care and costs were not compensable under the No-Fault Act. On appeal, this court agreed and held that negligently inflicted mental trauma was not “bodily injury” under the No-Fault Act. Id., 352 Pa.Superior Ct. at 292-94, 507 A.2d at 1236. There, we stated:

It is a basic rule of statutory construction that words are to be construed “according to their common and approved usage.” 1 Pa.C.S. § 1903(a)____ It is clear that the common and approved usage of “bodily” injury connotes a physical, and not mental, injury____ “[0]ur legislature did not have in mind that every conceivable injury ... would result in no-fault benefits under the Act.”

Id. (citing Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 194, 463 A.2d 1148, 1151 (1983)). We see no reason to dispense with the reasoning in Needleman, nor do we find reason to to reach outside the statute to define the term injury. See 1 Pa.C.S. §§ 1921, 1922; see also Snyder v. Commonwealth Department of Transportation, 64 Pa.Cmwlth. 599, 441 A.2d 494 (1982) (sections of a statute must be construed with reference to the entire statute and not apart from their context); In Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981) (in construing a statute, sections of statute must be construed with reference to entire statute and not alone).

Additionally, we are not persuaded by Jackson’s arguments that the Needleman analysis is inapplicable because it did not construe the MVFRL. See Royal Indemnity Co. v. Adams, 309 Pa.Super. 233, 455 A.2d 135 (1983) (in determining intent of General Assembly, court must consider similar legislation). Like the prior No-Fault Act, the MVFRL is replete with exceptions, exclusions, and eligibility requirements which restrict coverage to those situations which our General Assembly perceives as fair and essential. In a recent decision interpreting the No-Fault Act, our supreme court stated: “The purpose of the No-Fault Act was to establish ‘a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims____’ 40 P.S. § 1009.102(b).” Drake v. Pennsylvania National Mutual Casualty Insurance Co., 529 Pa. 44, -, 601 A.2d 797, 800-01 (1992), (emphasis added). In enacting the No-Fault Act and the MVFRL, the General Assembly did not intend to extend coverage for every foreseeable type of emotional or mental injury. Otherwise, it would not have specifically retained the No-Fault Act’s definition, “bodily injury,” to define injury in the MVFRL. See 1 Pa.C.S. § 1922(4); see also 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”); Platts v. Government Employees Insurance Co., 301 Pa.Super. 379, 447 A.2d 1017 (1982) (superior court is not permitted to disregard the clear and unambiguous language of the No-Fault Act on the pretext that its literal interpretation will frustrate its spirit).

Jackson directs us to this court’s decision in Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986) to support his claim. In Pirches, this court was presented with the question of whether a loss of consortium claim was cognizable under the terms of the claimants’ insurance policy or under the Uninsured Motorist Act (repealed). .

General Accident Insurance Company [General Accident] issued Sherry and George Pirches, husband and wife, an automobile insurance policy. While in Florida and riding as a passenger in a car owned and operated by her mother, Mrs. Foy, Sherry Pirches was injured when a taxicab collided with her mother’s car. Sherry Pirches brought a claim against the cab company and the driver of the taxi. In addition, Sherry Pirches brought a claim under Mrs. Foy’s underinsured motorist policy. Thereafter, both Sherry and George Pirches brought a claim against General Accident pursuant to the uninsured motorist provision of their Pennsylvania policy.

The case proceeded to arbitration and, following a hearing, the arbitration panel awarded Sherry Pirches $37,500, reduced by $15,000 which she had received from her two prior claims. The panel also awarded George Pirches $2,500 on his loss of consortium claim. The arbitration awards were confirmed by the Philadelphia County Court of Common Pleas. General Accident appealed to this court and argued that the arbitration panel and the court of common pleas had erred in awarding George Pirches $2,500 for loss of consortium.

On appeal, this court determined that the claim was not precluded by either the terms of the policy or the by the Uninsured Motorist Act. The Pirches court determined that the victim of the accident, Sherry Pirches, was a “covered person” who suffered “bodily injury” under the policy, and that her husband, George Pirches, as a named insured, was also a “covered person” under the policy. In concluding that George Pirches could recover for a loss of consortium claim, the court reasoned that

as a named insured, George Pirches is a “covered person.” The policy provides damages that “a” covered person may be legally entitled to recover from the uninsured driver if “a” covered person suffers bodily injury. There is no question that Sherry Pirches, “a covered person,” suffered bodily injury. The policy does not limit payments to damages that the injured covered person may collect. If it did, it would state that it would pay damages for injuries that a covered person may collect for injuries to that covered person. It is not so limited.

354 Pa.Super. at 313, 511 A.2d at 1354-55 (emphasis in original). The court then addressed whether the Uninsured Motorist Act prohibited recovery. The Pirches court held:

Nothing in the Uninsured Motorist Act or in Pennsylvania law prohibits ... recovery. The Act requires coverage for ... persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom ...’ Remembering that the Act is to be liberally construed in favor of coverage, we hold that this language encompasses a consortium claim.

Id., 354 Pa.Superior Ct. at 314, 511 A.2d at 1355.

The dissent reasons that if a consortium claim falls within the definition, then emotional harm must also fall within the definition of injury. The dissent's logic is based upon the following syllogism:

1. A consortium claim is equal to bodily injury;
2. A consortium claim is equal to emotional or mental injury (Dissenting Opinion at 2);
3. Therefore, bodily injury equals emotional or mental injury.

This argument, however, is not sound because the second premise is flawed. A consortium claim is not a claim for emotional or mental trauma. Rather a claim of consortium is defined as “conjugal fellowship of husband and wife, and the right to the companionship, society, co-operation, and the aid of the other in every conjugal relation.” Black’s Law Dictionary 280 (5th ed.1979). A consortium claim is grounded on the loss of a spouse’s services after injury. Burns v. Pepsi-Cola Metro. Bottling Co., 353 Pa.Super. 571, 510 A.2d 810 (1986).

Furthermore, the Pirches decision was supported by prior case law that held that a consortium claim falls within the definition of injury (and hence bodily injury) so as to permit a tort action for non-eeonomic detriment under the No-. Fault Act. Zagari v. Gralka, 264 Pa.Super. 239, 399 A.2d 755 (1979). In reaching this result, the Zagari court recognized that the Florida courts have found that a consortium claim is expressed “in terms of ‘accidental bodily injury’ .. [and] the Supreme Court of New York ... held that the husband’s action for services, society, and companionship of his wife was an adjunct to his wife’s action for ‘personal injuries.’” Zagari v. Gralka, 264 Pa.Super. at 247, 399 A.2d at 760 (citations omitted). In addition, this court has recognized that “a consortium claim is inextricably intertwined with the underlying action for personal injury.” Novelli v. Johns-Manville Corp., 395 Pa.Super. 144, 151, 576 A.2d 1085, 1088 (1990).

Thus, in our view Pirches is distinguishable. At least at one time, under Pirches, it was plausible to define injury liberally to encompass a consortium claim. Given our determination in Needleman it is implausible to define injury or bodily injury to encompass mental or emotional harm. Given also the express language in the MVFRL, we find the Assigned Claims Plan is limited to extending coverage to “eligible” claimants, to wit, claimants who are injured, i.e., suffer bodily injury as a result of a motor vehicle accident. 75 Pa.C.S. §§ 1702, 1752(a)(2).

We conclude, therefore, that it is beyond the scope of the Assigned Claims Plan to extend coverage to individuals who have not suffered a “bodily injury” as provided for in the statute. See 75 Pa.C.S. §§ 1702, 1754; see also Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976) (statutes are not presumed to make changes in rules and principles of common law or prior existing law beyond what is expressly declared in their provisions); Royal Indemnity Co. v. Adams, 309 Pa.Super. 233, 455 A.2d 135 (1983) (in determining intent of General Assembly, court must consider similar legislation).

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I must dissent from the majority’s holding that the Assigned Claims Plan [Plan] of the Motor Vehicle Financial Responsibility Act [MVFRL] 75 Pa.C.S.A. § 1701 et seq., does not provide coverage for emotional trauma suffered by a husband who witnesses his wife’s fatal auto accident.

The majority relies on section 1752 of the MVFRL which states that a person is eligible to recover benefits from the Plan if that person is injured as a result of a motor vehicle accident. Then the majority points to section 1702 in which injury is defined as “accidently sustained bodily harm to an individual and that individual’s illness, disease or death resulting therefrom.” Finally, the majority, relying on Needleman, supra, which holds that the No-Fault Act precludes coverage for emotional trauma because bodily harm does not include psychological or emotional harm suffered because of a motor vehicle accident, concluded that Appellant is not a person who can recover under the Plan. For a variety of reasons I disagree with this analysis.

Initially, I would note that the MVFRL combined first party benefits, uninsured motorist benefits and assigned claims benefits in the same legislation. Subchapter C of the MVFRL, pertaining to uninsured motorist benefits states in pertinent part that, “uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles.” (42 Pa.C.S.A. § 1731(b)) (emphasis added).

We held in Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986), in construing a former version of the Uninsured Motorist Act now found in the MVFRL, and which contained similar language to the MVFRL, that the phrase “legally entitled to recover” is ambiguous, requiring it to be construed in a manner most favorable to the insured, so as to effect its object and promote justice. We stated that unless there are present, strong legal or equitable considerations to the contrary, we are required to construe the Uninsured Motorist Act to find coverage. Id., 354 Pa.Super. at 313, 511 A.2d 1349, (citations omitted). We also held, citing Zagari v. Gralka, 264 Pa.Super. 239, 399 A.2d 755 (1979), that absent explicit language abolishing a certain type of tort liability, (in the case of Zagari, consortium), statutes are not presumed to make changes in rules or principles of common law. Pirches, supra, 354 Pa.Super. at 315, 511 A.2d 1349.

Because there was no explicit language in the Uninsured Motorist Act excluding recovery for consortium, and because the purpose of the act was to protect innocent victims from irresponsible, uninsured drivers, that in order to effectuate the Act’s object and promote justice, George Pirches was entitled to recover uninsured motorist benefits for loss of consortium when his wife was injured in an automobile accident.

Although we agree with the majority that the basic formula for defining consortium is loss of the spouse’s “services”, the harm done to the spouse claiming loss of consortium includes emotional or mental harm. Certainly persons are not required to prove that they suffered physical disability, disease or death, as the result of the negligent physical injury to their spouse in order to recover under a claim of loss of consortium.

We have recognized that a claim of loss of consortium arises as a right from the “marriage relationship which the husband and wife have respectively to the society, companionship, and affection of each other in their life together.” Burns v. Pepsi-Cola Metropolitan Bottling, 353 Pa.Super. 571, 510 A.2d 810 (1986) (emphasis added) (citation omitted). Furthermore, our supreme court has stated that the word “services”, “implies whatever of aid, assistance, comfort, and society the wife would be expected to render to, or bestow upon her husband ...” Kelley v. Mayberry Township, 154 Pa. 440, 447, 26 A. 595, 597 (1893), (citation omitted) (emphasis added).

Today we would substitute for the old fashioned words “comfort”, “companionship” and “society” such phrases as “emotional support”, “psychological compatibility”, or “social relations”, but clearly the damages recovered for the loss of these attributes of marital life, normally claimed in an action for loss of consortium, are damages recovered for emotional or mental injuries or harms.

Thus, when we held in Pirches that Mr. Pirches was “legally entitled” to recover for bodily injury, we held that he was entitled to recover uninsured motorist benefits for mental or emotional injury. Given that, (1) consortium claims were not specifically exempted from coverage in the statute, (2) a cause of action for loss of consortium is an action in tort which may be maintained under the law of this Commonwealth, and (3) uninsured motorist benefits were coextensive with those benefits recoverable under law, Mr. Pirches was legally entitled to recover for loss of consortium under the Uninsured Motorist Act.

I would hold that the same reasoning applies here as regards to Section E of the MVFRL concerning the Assigned Claims Plan. Section E provides that an eligible claimant who “has no other source of applicable uninsured motorist coverage and is otherwise entitled to recover in an action in tort from a party who has failed to comply with this chapter may recover for losses or damages suffered as a result of the injury,” up to a maximum of $5,000 for medical benefits. 75 Pa.C.S.A. §§ 1753-1754. This section clearly indicates that if a claimant has no other source of uninsured motorist benefits, then that claimant’s entitlement to benefits from the Plan is identical to the claimant’s rights to recover in an action in tort.

In construing an older version of the Assigned Claims Plan, the supreme court stated in Tubner v. State Farm Mutual Insurance Co., 496 Pa. 215, 436 A.2d 621, 623 (1981) that “[ajssigned insurers are obligated precisely as if they had issued basic loss insurance policies,” and, “[b]e-cause a claimant under the assigned claims plan is covered as if he had obtained a policy of basic loss insurance, his right to uninsured motorist benefits cannot be distinguished from that of holders of valid insurance policies.” Id., 496 Pa. at 220, 436 A.2d at 623 n. 13.

The parties have stipulated that the other driver, Mr. Madison, was negligent and that his negligence was more than 50% the cause of the accident. Therefore, under Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), Mr. Jackson would be entitled to recover for his emotional distress from the tortfeasor, and the Plan would be obligated to provide uninsured motorist benefits to Mr. Jackson who has no other source of uninsured motorist benefits.

Apart from the explicitly enumerated exceptions in the Plan, (see § 1753), and the dollar limitations in the amount of the recovery, there is no basis in the MVFRL for distinguishing between the scope of uninsured motorist coverage for private policies in Subchapter C and assigned claims coverage in Subchapter E. Without an explicit exception, we can not presume that the MVFRL made changes in the principle of law found in Sinn v. Burd, allowing for recovery for the negligent infliction of emotional distress. As Tubner teaches, the scope of the victim’s right to recovery from an uninsured motorist who may recover under a private policy is no different than the right to recover uninsured benefits under the Plan.

The Majority relies on this court’s holding in Needleman v. Liberty Mutual Fire Insurance Co., 352 Pa.Super. 288, 507 A.2d 1233 (1986), which construed the words “bodily harm” in the “No-Fault” Act. The majority states that the General Assembly would not have retained the definition of bodily injury in the MVFRL that was found in the earlier “No-Fault” Act, if they wanted to extend coverage to mental or emotional harm, (page 6). It quotes the language in 1 Pa.C.S. § 1922(4), “when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.” (emphasis added).

However, the Needleman decision was decided two years after the MVFRL was passed and the “No-Fault” Act was repealed. Therefore, we may not use the rule of statutory construction cited above because the MVFRL was not passed subsequent to the Needleman decision and the General Assembly did not have the benefit of Needleman when it passed the MVFRL. It would be unwarranted to conclude that by using the term “bodily harm”, the General Assembly intended to exclude recovery for mental or emotional injury under the MVFRL. Indeed, it could just as readily be concluded that had the General Assembly had the benefit of this decision, they would have changed the definition of injury in the MVFRL.

Because, unlike the Majority, I do not believe that our court’s construction of the term “bodily harm” in Needle- man is controlling in the instant case, and because I believe that given the context of the MVFRL and the the pre-1984 cases which liberally interpreted the provisions of the laws providing assigned claims and uninsured motorist coverage to protect victims of motor vehicle accidents, I would find that Mr. Jackson may recover under Section E of the MVFRL for the emotional trauma he suffered when he witnessed his wife’s fatal auto accident.

      . Act of February 12, 1984, P.L. 26, No. 11, 75 Pa.C.S. § 1701 et seq.

      . Act of August 14, 1963, P.L. 909, § 1, 40 P.S. § 2000, as amended by Act of December 19, 1968, P.L. 1254, No. 397, § 1, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . This court has noted, however, that recent development of Pennsylvania common law recognizes that loss of consortium is no longer a derivative claim, but rather a separate and distinct cause of . action from the injured spouse’s claim. See Koenig v. Progressive Insurance Co., 410 Pa.Super. 232, 239 n. 6, 599 A.2d 690, 693 n. 6 (1991).

      . This is not to endorse the view espoused in Pirches, or to otherwise express an opinion on whether the term injury encompasses a consortium claim under the MVFRL.

      . The former Uninsured Motorist Act, (40 Pa.C.S.A. § 2000(a)), states in pertinent part that motor vehicle liability insurance is provided, "for the protection of persons insured thereunder who are legally entitled to recover damages from owners and operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom ..."