author: CAVANAUGH, Judge.

text:
    632 A.2d 930
    William FREY, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 20, 1993.
    Filed Sept. 30, 1993.

      Thomas A. McDonnell, Pittsburgh, for appellant.
    Carol S. Gross, Pittsburgh, for appellee.
    Before CAVANAUGH, BECK and CERCONE, JJ.
   CAVANAUGH, Judge.

This case arises from a grant of Partial Judgment on the Pleadings in favor of the appellee William Frey and against appellant State Farm Automobile Insurance Company. It involves State Farm’s submission of disputed medical claims for first-party benefits to a Peer Review Organization where the insured’s policy and the accident predated the 1990 revision of § 1797 of the Motor Vehicle Financial Responsibility Act which instituted Peer Review. The lower court, relying on Clairton City School District v. Mary, 116 Pa.Cmwlth. 376, 541 A.2d 849 (1988), declared that a contract of insurance must be interpreted in accordance with the applicable statute in effect at the time the policy was issued. Since Peer Review was established by revision to 75 Pa.C.S.A. § 1797 subsequent to the effective date of the insured’s policy, the court held that State Farm had no right to require the appellee to submit to that process. We reverse, based on the import of 31 Pa.Code Ch. 68, § 1(a) and Lynn v. Prudential Property and Cas., 422 Pa.Super. 479, 619 A.2d 779 (1993).

The appellee, William Frey, was involved in a two automobile accident on November 16, 1987. Frey sustained injuries as a result of the accident and submitted various claims to his own insurance company, State Farm, and the insurance company of the other driver. On February 10, 1989, State Farm paid wage loss benefits to Frey up to the $5,000 policy limits. Subsequently, Frey settled his third party claim with the other driver’s insurance company for the policy limits of $50,000. Frey notified State Farm of the settlement offer, and placed the company on notice of his claim for underinsured motorist benefits. Frey at this time asked State Farm to waive subrogation rights against the other driver, which it did on June 19, 1990. On August 31, 1990, Frey settled his underinsured motorist benefits claim with State Farm for $35,000.

Throughout this period, Frey had ongoing medical treatment, all of which State Farm reimbursed. State Farm paid for Frey’s medical treatment from November 16,1987 through September, 1991. In September, 1991, State Farm invoked the Peer Review process, a procedure to evaluate disputed automobile insurance medical claims established by recent amendments to the Motor Vehicle Financial Responsibility Law effective April 15, 1990. Apparently, notwithstanding the April 15th effective date of the Peer Review system, State Farm arranged for all of Frey’s medical records and bills to be reviewed, including those made or submitted before April 15, 1990. A Peer Review Organization (“PRO”) subsequently reviewed Frey’s medical records and bills and issued a report on February 6, 1992. The report concluded that Frey had reached maximum medical recovery as of January 11, 1988, approximately two months after the accident. State Farm subsequently informed Frey on February 27,1992, that pursuant to the report’s conclusion it would not pay first-party medical benefits after August, 1991. State Farm, however, did not claim that Frey was responsible for reimbursing it for monies already paid to him before September, 1991.

On April 22, 1992, Frey filed suit against State Farm. His complaint contained two counts. Count I sounded in breach of contract. It alleged that since the provisions of the MVFRL in effect at the time of the accident did not provide for Peer Review, and the insurance policy did not call for Peer Review, submission of the appellee’s medical claims to a PRO breached the parties’ insurance contract. Reasonable attorney’s fees, 12% interest on the outstanding bills, court costs and costs of fees were asked for as part of this Count. Count II claimed that State Farm has acted in bad faith pursuant to 42 Pa. C.S.A. § 8371 for the reasons articulated in the above Count. It asks for damages, including punitive, attorney’s fees and costs.

State Farm filed an Answer and New Matter on June 3, 1992. It responded to both Counts I and II by asserting that the legislation enacting Peer Review applies to all medical claims incurred subsequent to the legislation’s effective date. Consequently, it asserted, State Farm was perfectly within its rights to submit medical claims, incurred subsequent to April 15, 1990, to a PRO. State Farm’s New Matter presented a similar refutation, which Frey responded to on June 18, 1992.

Frey moved for partial judgment on the pleadings on Count I of his complaint. The basis for this motion was that the following supposedly controlling question of law was presented:

After the payment of medical benefits for over three and one-half years, the payment of $5,000 of wage loss benefits, the waiving of subrogation rights to allow the settlement of a third-party action for the policy limits of $50,000 and the payment of $35,000 of under-insured motorist benefits, does [State Farm] have a right to refuse to pay [Frey’s] medical bills beginning in September, 1991 by submitting all of [Frey’s] medical bills to peer review for an accident occurring on November 16, 1987 under a policy of insurance issued as of November 16, 1987 when the policy in force at the time contained no provision for peer review?

After State Farm’s response, the parties’ submitted briefs. The lower court ruled in Frey’s favor.

The lower court noted that State Farm admitted in its Answer that (1) State Farm’s policy did not contain a Peer Review requirement and (2) law in effect at the time of the accident contained no provision for Peer Review of an insured’s medical bills. As a contract of insurance must be interpreted in light of the applicable statute in effect at the time the policy was issued, see Clairton City School District v. Mary, 116 Pa.Cmwlth. 376, 541 A.2d 849 (1988), the court felt that State Farm “cannot refuse to pay first party benefits to [Frey] based on the recommendations of a Peer Review Organization when it had no right to require [Frey] to submit himself to [Peer] review.” As the Peer Review procedure was required by statute subsequent to the effective date of Frey’s policy, he was not required to have any of his medical claims reviewed under it. This appeal followed.

The appellant raises two issues on appeal: (1) whether the Peer Review provisions in 75 Pa.C.S.A. § 1797(b) may be applied to situations where the contract of insurance predated the enactment of the Peer Review statute and (2) whether the trial court erred in granting appellee’s Motion for Partial Judgment on the Pleadings where there exist material issues of fact which preclude such a judgment.

Appellant’s first argument is that the Peer Review provisions in 75 Pa.C.S.A. § 1797(b) are applicable to certain situations where the contract of insurance predates the enactment of the Peer Review provisions in 75 Pa.C.S.A. § 1797(b). Namely, it asserts that even though an automobile policy predates the revisión of § 1797 that treatment rendered subsequent to the enactment of Peer Review is governed by that system of evaluating claims. Although recognizing the principle that a contract of insurance must be interpreted in light of the applicable statute in effect at the time an insurance policy was issued, State Farm believes that the relevant law indicates that the PRO process merely changes the procedure for challenging medical treatment and does not alter any substantive rights. It bolsters this position by reference to 31 Pa.Code Ch. 68, § 1(a) and Lynn v. Prudential Property and Cas., 422 Pa.Super. 479, 619 A.2d 779 (1993) for support.

We find merit with this argument. In Lynn v. Prudential Property and Cas., supra, we addressed the retroactive effect of the Peer Review amendments. In Lynn, the first of two questions the court addressed was as follows:

1. Whether 75 [Pa.C.S.] [§] 1797(a)(b), effective April 15, 1990 shall not be applied retroactively to a contract in effect prior to the April 15, 1990 [MVFRL] Amendments?

The lower court found this argument possessed merit, as the regulations implementing § 1797 clearly stated that the new amendments were applicable to medical services rendered after April 15, 1990. We agreed with that determination, citing the regulations the court relied on:

[Section 1797] applies to payments by property and casualty insurers for medical treatment or services rendered on or after April 15, 1990, for the treatment of care of persons covered by automobile insurance, regardless of when the accident or incident resulting in the need for medical care occurred or when the first claim was filed.

31 Pa.Code Ch. 68, § 1(a), as quoted in Lynn, supra, at 483, 619 A.2d at 781 (emphasis in Lynn). We approvingly referred to the lower court’s pronouncement: “[T]hus the critical date which triggers application of § 1797 is the date when the medical services were rendered, on or after April 15,1990, even if the accident occurred, or the pertinent policy was issued, prior to April 15, 1990.” Trial Court Opinion at p. 5, as quoted in Lynn, supra, at 483, 619 A.2d at 781 (emphasis in Lynn). We commented that the part of 31 Pa.Code Ch. 68, § 1(a) emphasized supra does not refer to the effective date of the amendments in regard to when the pertinent policy was issued. Lynn, supra, at 483, 619 A.2d at 781. Thus, for the foregoing reasons, we rejected the rationale of the lower court in the present case, and we accepted an interpretation of the amended § 1797 which focuses on the date of the medical services performed.

Admittedly, the Lynn decision was decided subsequent to the lower court’s consideration of this issue. Notwithstanding, the lower court’s Partial Judgment on the Pleadings must be reversed. We have held that an interpretation of a statute in decisional law relates back to the statute’s effective date:

In Pennsylvania, decisions changing the law are usually applied to cases pending upon appeal. If such decisions rely upon statutory interpretations, they relate back to the date the particular statute became effective, because they merely interpret existing legislation.

Fairbanks v. Travelers Insurance Co., 337 Pa.Super. 39, 42, 486 A.2d 469, 470-1 (1984), as quoted in Aletto v. Aletto, 371 Pa.Super. 230, 235, 537 A.2d 1383, 1385 (1988). Accordingly, the interpretation of the amended version of § 1797 pronounced in Lynn relates back to the date that section became effective.

The lower court felt that Partial Judgment on the Pleadings was mandated by the analysis of our sister court in Clairton City School District v. Mary, 116 Pa.Cmwlth. 376, 541 A.2d 849 (1988). The court appeared to be relying on Mary for the following settled legal proposition:

[i]nsurance contracts are presumed to have been made with reference to substantive law, including applicable statutes in force, and such laws enter into and form a part of the contractual obligation as if actually incorporated into the contract.

Mary, supra, at 421, 541 A.2d at 851 (citations omitted). The tenor of the court’s reasoning is that since there was no obligation to go to Peer Review in the substantive law at the time of the insurance policy’s issuance, Frey does not presently have to submit to Peer Review. We reject the lower court’s reasoning for two reasons.

First, Peer Review is not necessarily a change in the substantive law. Even before the institution of Peer Review, an insurer had the right to question whether further treatment of an accident victim was necessary. “[A]n insurer has always been able to challenge the legitimacy and necessity of continued treatment of injuries related to automobile accidents.” Lynn, supra, 422 Pa.Super. at 486 n. 5, 619 A.2d at 783 n. 5. Viewed in this fashion, Peer Review does not change substantive rights, but merely changes the procedures for challenging medical treatment and expenses. Accordingly, the lower court’s reliance on Mary is misplaced.

Second, “[t]he construction of a statute by an administrative agency is entitled to great weight and may be disregarded only if clearly erroneous.” Terminato v. Pennsylvania National Ins. Co., 422 Pa.Super. 92, 100, 618 A.2d 1032, 1036 (1993); accord Insurance Co. of North America v. W.C.AB., 137 Pa.Cmwlth. 393, 397-98, 586 A.2d 500, 502 (1991); No. 1 Cochran, Inc. v. Unemp. Comp. Bd. of Rev., 135 Pa.Cmwlth. 252, 260, n. 5, 579 A.2d 1386, 1391, n. 5, app. den. 527 Pa. 653, 593 A.2d 424 (1990). We find that the interpretation of the amended § 1797 afforded by the administrative regulations, supra, has not been shown to be clearly erroneous. This interpretation is in direct conflict with the lower court’s reasoning below and, therefore, we must reverse.

The appellee makes several attempts to distinguish the import of Lynn and the Pennsylvania Code section quoted supra. We summarize and address these arguments seriatim.

The appellee first contends that what distinguishes this case is State Farm’s submission of all of Frey’s bills to Peer Review, even those which accrued (and were paid) before Peer Review’s effective date. He complains that, unlike Lynn, State Farm is attempting to question treatment dispensed before the effective date of Peer Review.

We believe this mischaracterizes State Farm’s legal position. It is true that State Farm submitted all of Frey’s medical bills to a Peer Review Organization, and that the Peer Review Organization found that Frey reached maximum medical recovery on January 18, 1988, a date obviously before Peer Review’s effective date. Notwithstanding, the only action taken by State Farm has been to refuse to make further payment of first party medical coverage to Frey after August, 1991. It is difficult to ascertain how submitting all of Frey’s medical bills and records, including those before the amended § 1797’s effective date, has harmed him. Indeed, any fair evaluation of the present need for treatment would necessitate a review of past treatment. State Farm has only denied payment for medical bills after Peer Review’s effective date. We do not find appellee’s argument persuasive.

The appellee next argues that, even if we reject his position that the Peer Review system can not be invoked, that State Farm was dilatory in requesting Peer Review. He notes, inter alia, that under the Peer Review procedures established in 31 Pa.Code § 69.52, State Farm was required to make a request for Peer Review within thirty days after receipt of sufficient documentation of a bill.

We decline to address appellee’s argument. The appellee failed to present this argument to the lower court, and the court granted Partial Judgment on the Pleadings on the rationale articulated (and rejected) supra. Moreover, we believe that it would be incongruous with the role of an appellate court to determine if, and to what extent, State Farm was dilatory in requesting Peer Review. To approve the appellee’s argument we would have to determine to what extent State Farm possessed sufficient documentation to toll the thirty day period found in 31 Pa.Code § 69.52. The Record is by no means developed enough to make this determination, even if we thought it would be appropriate for this court to make a finding of fact. We leave this argument, if subsequently raised below, for the lower court’s future consideration.

The appellant’s second argument is that the trial court erred in granting appellee’s Motion for Partial Judgment on the Pleadings where there exists material issues of fact which preclude such a judgment. The tenor of this argument is that, even assuming that the Peer Review process does not apply to a person in Frey’s position, the ultimate question that still remains is whether Frey’s medical expenses are medically necessary. State Farm asserts that it should be afforded relief even under the law predating the § 1797 amendments. Previous law, it argues, allegedly similarly allows an insurer to inquire into the medical necessity of claims.

Having found persuasive appellant’s first argument that Peer Review applies to medical treatment rendered after the amended § 1797’s effective date, it is unnecessary to delve into a reconstruction of the law prior to Peer Review. We decline to address appellant’s second argument in light of our present holding.

For the reasons articulated supra, the lower court’s grant of Partial Judgment on the Pleadings is reversed.

Order reversed and case remanded.

Jurisdiction is relinquished.

      . The Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S.A. § 1701 et seq., was amended by Act of February 7, 1990, P.L. 11 (Act 6). The adoption of the Peer Review procedure was included in this amendment. See 75 Pa.C.S.A. § 1797.

      . That is, of course, unless it is argued that Frey has an interest in avoiding the proper evaluation of the necessity of his claim. However, no such argument is made here, and in any event, we would look with jaundiced eyes if it had been made.

      . State Farm has referred us to no statute, regulation, or precedent which supports its position.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    632 A.2d 934
    COMMONWEALTH of Pennsylvania, v. Brian MITCHELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 7, 1993.
    Filed Nov. 1, 1993.

      Patricia M. Hoban, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, KELLY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This appeal stems from an Order following a finding of violation of parole. Appellant’s claim on appeal is that the parole violation order is illegal and beyond the scope permitted under 42 Pa.C.S.A. § 9771. We find no merit to this contention and affirm the order of revocation of parole.

The factual background leading to the revocation of Appellant’s parole and imposition of original sentence is as follows. On March 12, 1992, appellant pleaded guilty to Burglary and was sentenced to a term of incarceration of time served to twenty-three months, to be followed by one year’s probation. As a condition of parole, the trial court ordered appellant to pay restitution and court costs, and to participate in an “appropriate program” as designated by the Parole/Probation Department. After he was released from prison, appellant failed to report to his parole officer. In addition, he failed to make restitution as required by the original sentence. Finally, while on parole, he was arrested six (6) times in less than a year, and, in all six cases, failed to appear for the trial listings, forcing the court to issue bench warrants.

On February 22, 1993, at a violation hearing, the trial court revoked appellant’s parole and recommitted him to serve the balance of his original sentence. At the hearing, appellant was found to be in technical violation of his parole because of his failure to report to his parole officer, his failure to pay restitution, and finally, his arrests on several counts of summary retail thefts. This appeal followed.

On appeal, appellant asks us to examine whether the trial court erred, as a matter of law, in revoking appellant’s parole and committing him to a term of total confinement. Appellant argues that the actions of the trial court in revoking his parole and sentencing him to a term of imprisonment are illegal and beyond the scope permitted under 42 Pa.C.S.A. § 9771(c). He further contends that the applicable provisions concerning sentencing on a violation of probation mandate that a judge shall not impose a sentence of total confinement unless defendant has been convicted of another crime or if the conduct of defendant indicates that it is likely that he will commit another crime if he is not imprisoned. Finally, appellant argues that since the summary offense of retail theft is not classified as a crime under Pennsylvania Crimes Code, 18 Pa.C.S.A. § 3929(b), it is impermissible to sentence defendant to total confinement for the alleged violation of parole based upon an arrest for a summary offense of retail theft.

Conversely, the Commonwealth argues that appellant’s failure to include in his brief a Pa.R.A.P. 2119(f) statement, articulating a substantial question regarding the discretionary aspects of sentencing, constitutes a waiver of his claim that the sentence was improper. For this reason alone, the Commonwealth argues, appellate review should be declined. In support of this contention, the Commonwealth cites Common wealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989), and Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990) respectively.

In reviewing Commonwealth’s argument, it is necessary to examine the precise application of Pa.R.A.P. 2119(f), and the supporting case law, as it applies to violations of parole. Pa.R.A.P. 2119(f) provides, in pertinent part, that:

An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. (Emphasis added.)

Clearly, the order revoking parole does not impose a new sentence; it requires appellant, rather, to serve the balance of a valid sentence previously imposed. See Commonwealth v. Carter, 336 Pa.Super. 275, 281 n. 2, 485 A.2d 802, 805 n. 2 (1984). Moreover, such a recommittal is just that — a recommittal and not a sentence. Abraham v. Dept. of Corrections, 150 Pa.Cmwlth. 81, 97, 615 A.2d 814, 822 (1992). Further, at a “Violation of Parole” hearing, the court is not free to give a new sentence. The power of the court after a finding of violation of parole in cases not under the control of the State Board of Parole is “to recommit to jail____” See Commonwealth v. Fair, 345 Pa.Super. 61, 64, 497 A.2d 643, 645 (1985) citing 61 P.S. § 314. There is no authority for giving a new sentence with a minimum and maximum. Id. at 61, 497 A.2d at 645. Therefore, an appellant contesting a revocation of parole need not comply with the provisions of Pa.R.A.P. 2119(f) by first articulating a substantial question regarding the discretionary aspects of sentencing. Accordingly, Commonwealth’s argument is without merit, and this appeal is properly before this court as it is not from the “discretionary aspects of a sentence.” The sole issue on appeal is whether the trial court erred, as a matter of law, in revoking appellant’s parole and committing him to a term of total confinement. In order to support a revocation of parole, the Commonwealth need only show, by a preponderance of the evidence, that a parolee violated his parole. Commonwealth v. Smith, 368 Pa.Super. 354, 358, 534 A.2d 120, 122 (1987), appeal denied 518 Pa. 639, 542 A.2d 1368 (1988). In Smith, the court reasoned that “the primary purpose of a parole revocation hearing is not to determine whether the parolee has, in fact, been convicted of a crime, rather its purpose is to determine whether ... parole remains a viable means of rehabilitation and deterring future antisocial conduct.” Id. at 358, 534 A.2d at 122 citing Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973) and Commonwealth v. Parker, 244 Pa.Super. 113, 366 A.2d 941 (1976). Further, violations of failing to report and not residing at a given address could, alone, be cause for parole revocation. Pa.R.Crim.P. § 1409; Commonwealth v. Smith, supra (citations omitted). A “technical violation” of parole results from a violation of parole conditions. Commonwealth v. McDermott, 377 Pa.Super. 623, 629 n. 2, 547 A.2d 1236, 1238 n. 2 (1988).

In the instant case, the trial court concluded that appellant’s blatant disregard for the conditions of his parole was quite serious. First, appellant was ordered to make restitution within (ninety) 90 days, and, in eleven months, the court concluded that he failed to make even a single payment. Moreover, the court found that he failed to pay any of his court fine of $145.00. The court further concluded that appellant never reported to the Parole/Probation Department. Finally, the record indicates, while on parole, appellant was arrested six times in less than a year, and, in all six cases, failed to appear for the trial listings, forcing the court to issue bench warrants.

Clearly, to recommit appellant to jail was within the trial judge’s discretion. The Commonwealth need only show, by a preponderance of the evidence, that a parolee violated the conditions of his parole. The trial court concluded that these technical violations were serious. Based on the foregoing factors, we conclude that the hearing court was correct in finding that appellant had violated his parole, and the court clearly did not err, as a matter of law, in recommitting appellant.

Order Affirmed.

      . 42 Pa.C.S.A. § 9771. Modification or revocation of order o£ probation

      (c) Limitation on sentence of total confinement. — The court shall not impose a sentence of total confinement upon revocation unless it finds that:
      (1) the defendant has been convicted of another crime; or
      (2) the conduct of the defendant indicates that it is likely that he will
      commit another crime if he is not imprisoned; or
      (3) such a sentence is essential to vindicate the authority of the court.

      . Appellant maintains that all of the summary offenses were subsequently discharged.

      . In his brief, appellant incorrectly states that the trial court imposed a term of imprisonment for a period of 11 1/2 months to 23 months as a result of his conviction for Burglary. The record is clear that the trial judge revoked appellant’s parole and ordered him to serve the balance of his original sentence.

      . Appellant erroneously relies on 42 Pa.C.S.A. § 9771(c) to support his contention. This appeal stems from a violation of parole order and not a violation of probation order. Therefore, 42 Pa.C.S.A. § 9771(c) is inapplicable.

      . Pa.R.A.P., Rule 2119, 42 Pa.C.S.A.

      . Appellant indicates that he initially reported to the parole authorities, but no record of his parole was found.


author: DEL SOLE, Judge:

text:
    632 A.2d 937
    ROBERT H. McKINNEY, JR., ASSOCIATES, INC., Appellant, v. John H. ALBRIGHT, Jr. and James Connelly.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1993.
    Filed Nov. 19, 1993.

      Arthur F. Loeben, Jr., Pottstown, for appellant.
    Michael P. Gottlieb, Norristown, for appellees.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant filed a Complaint on August 3, 1992, naming Appellee, James Connelly and another man, John H. Albright, Jr. as defendants. It sought to collect from them fees it claimed they owed as a result of engineering services which were performed by Appellant. Connelly filed preliminary objections which Appellant answered. Following argument, the court sustained the preliminary objections and dismissed the Complaint against Connelly. An appeal from this order is now before us. Upon review, we conclude this appeal was prematurely taken. A court order dismissing a complaint against some but not all of the defendants in a case is not considered a final order under Pa.R.A.P. 341, 42 Pa.C.S.A., and therefore, this appeal must be quashed.

Rule 341 of the Rules of Appellate Procedure defines what is a final order for appeal purposes. This rule as written in 1982 did not explicitly define the term “final order.” Thus, litigants and the courts often had to undertake a complex analysis to determine whether an order was to be considered “final.” See Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). An amendment to Rule 341 was later drafted in an effort to clarify which orders are to be deemed final. Amended Rule 341 was added to govern those actions commenced on or after July 6, 1992. Thus, the present action, which was commenced in August of 1992, is governed by the amended version of Rule 341. It provides in relevant part:

(a) General Rule. Except as prescribed in subdivisions (d) and (e) of this rule [relating to appeals from the Superior and Commonwealth court, and Commonwealth appeals from final orders in criminal matters], an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of Final Order. A final order is any order that:
(1) disposes of all claims or of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered as final pursuant to subsection (c) of this rule
(c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order.

Case law which interpreted the earlier provisions of Rule 341, considered final all orders which had a practical consequence of putting a litigant out of court. These included instances where a party was dismissed from a case or, in some circumstances, where some, but not all of the counts of a multi-count complaint were dismissed. In these later situations a legal analysis of finality was required to determine whether the dismissed claim was a separate cause of action in which instance it would be considered final. If the dismissed claim was merely found to be a different theory of recovery for the same cause of action left remaining, it was not a final order from which an appeal could be taken. Thus finality was often determined without regard to the fact that the litigation did not end as to all claims or all parties. However, under the amended version of Rule 341, as quoted above, this is no longer the case for actions commenced after July 6, 1992. Under the amended rule an appeal may not be taken from an order dismissing less than all claims or all parties from a case. An exception to this general rule exists under subparagraph (c), whenever an express determination has been made by the trial court that an immediate appeal would facilitate resolution of the entire ease.

In the present action, the court dismissed Appellant’s complaint as against one of two named defendants. The order did not dismiss the action against defendant, Albright, and, in fact, Appellant’s complaint remains pending against him. Because the order did not dispose of all the claims or all of the parties and because no statute expressly defines this type of order as final, the trial court’s order was not final as that term is defined in Rule 341(b)(1) or (2). Further, the order can not be considered a final order under 341(c) because the trial court did not make, as required under subsection (c), “an express determination that an immediate appeal would facilitate resolution of the entire case.”

By this later comment we do not suggest that such a determination was appropriate for the trial court to make in this case. A determination that an immediate appeal of a non-final order is appropriate should be made only in the most extraordinary circumstances because such action would frustrate the purpose of the amendments to the Rule. The revisions to the Rule were designed to eliminate the confusion created by the prior case law and to prevent piecemeal appeals which necessarily result in delay. Thus, the mere fact that some of the parties have been dismissed from a case, or that some of the counts of a multi-count complaint have been dismissed is insufficient reason to classify an order as final. While the comment to Rule 341 suggests areas where certification may be appropriate, courts are cautioned to refuse to classify orders as final except where the failure to do so would result in an injustice which a later appeal can not correct.

The failure of Appellant, or any aggrieved party, to apply to . the court for a determination of finality pursuant to Subparagraph (c) does not constitute a waiver of the matter. See Note to Pa.R.C.P., Rule 341, 42 Pa.C.S.A. Appellant may still challenge the trial court’s decision to dismiss the complaint against Connelly, if Appellant so desires, once the case has ended and a final order or judgment has been entered. In the event that an appeal is taken, the propriety of the trial court’s action in dismissing a party earlier in the proceedings can be reviewed.

Because no final order exists in this case, we find it necessary to quash the instant appeal.

Appeal quashed. Jurisdiction relinquished.


author: WIEAND, Judge.

text:
    632 A.2d 939
    Edwin and Lisa GRAHAM, H/W, Appellants, v. HARLEYSVILLE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1993.
    Filed Nov. 5, 1993.

      Kathleen S. McCardle, Norristown, for appellants.
    Debra G. Staples, Philadelphia, for appellee.
    Before WIEAND, CIRILLO and HESTER, JJ.
   WIEAND, Judge.

Edwin and Lisa Graham were the owners of a residence which, on December 5, 1988, was damaged by oil escaping from their neighbor’s oil tank. Harleysville Mutual Ins. Co. had written a homeowners’ policy of insurance on the Grahams’ residence. When the Grahams gave Harleysville notice of the oil damage, the insurer denied coverage because of an exclusion in the policy with respect to losses caused by the “release, discharge or dispersal of contaminants or pollutants.”

On May 21,1992, the Grahams commenced an action against Harleysville to recover their loss. The complaint alleged breach of contract and bad faith and included a copy of the policy of insurance. Harleysville filed preliminary objections in the nature of a demurrer. It contended, inter alia, that the Grahams had failed to comply with a policy provision requiring suit to be filed “within one year after the date of loss.” The trial court sustained this preliminary objection and entered judgment in favor of the defendant insurer. The Grahams appealed. They contend that the defense raised by the defendant-insurer was a statute of limitations defense which, according to Pa.R.C.P. 1030, should have been pleaded as new matter in a responsive pleading. See: Note to Pa.R.C.P. 1028(a)(4).

“[A] limitation on the time for bringing suit under an insurance contract is a contractual undertaking between the parties to the contract which is both valid and reasonable.” Kramer v. State Farm Fire and Casualty Ins. Co., 412 Pa.Super. 227, 230, 603 A.2d 192, 193 (1992). See: Lardas v. Underwriters Ins. Co., 426 Pa. 47, 231 A.2d 740 (1967). Such contractual limitations, however, can be waived. Kramer v. State Farm Fire and Casualty Ins. Co., supra. See: General State Authority v. Planet Ins. Co., 464 Pa. 162, 165, 346 A.2d 265, 267 (1975). Therefore, it is necessary that a defense based on breach of a contractual provision limiting the time for the filing of suit be pleaded as new matter in a responsive pleading. When the defense is raised in this manner, the plaintiff, by reply, can then assert facts, if any exist, which constitute a waiver of such contractual limitation or impose an estoppel upon the defendant to assert such a defense.

This was the case here. The plaintiff-appellants argue that Harleysville waived the one year limitation as a consequence of an agreement by which a prior action against Harleysville was terminated without prejudice to plaintiff-appellants’ right to file a second action. The trial court, in its opinion filed under Pa.R.App.P. 1925, concedes that it did not consider the issue of waiver but suggests that the issue was not properly raised by appellants in that court. This, however, is precisely the reason why it was inappropriate to dismiss the complaint on preliminary objections in the nature of a demurrer. Because the issue of the contractual limitation was raised by preliminary objections, there was no way in which appellants’ allegation of waiver could be placed on the record before the court made its ruling. If the contractual limitation had been pleaded as new matter in a responsive pleading, however, appellants may have been able to plead facts sufficient to raise an issue of waiver or estoppel. This is the reason for requiring a statute of limitations defense to be pleaded as new matter in a responsive pleading. The rule has equal application to the contractual limitation which the defendant-insurer sought to assert in this action.

Appellee suggests that this Court, even if it disagrees with the trial court’s reasoning, can affirm its ruling if it was correct for any reason. See: Fennell v. Nationwide Mut. Fire Ins. Co., 412 Pa.Super. 534, 539, 603 A.2d 1064, 1066 (1992), allocatur denied, 533 Pa. 600, 617 A.2d 1274 (1992); Williams v. Otis Elevator Co., 409 Pa.Super. 486, 495, 598 A.2d 302, 306 (1991); Arnold v. Logue, 405 Pa.Super. 422, 427, 592 A.2d 735, 737 (1991). It argues, therefore, that we should affirm the dismissal of plaintiff-appellants’ action by sustaining another preliminary objection which asserted that the policy provisions had expressly excluded coverage for the loss allegedly sustained by the plaintiff-appellants.

The standard by which a preliminary objection in the nature of a demurrer is to be considered was reviewed by the Supreme Court in County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985), as follows:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629,151 A.2d 612 (1959), and every inference fairly deductible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A, 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.
Since the sustaining of a demurrer results in a denial of a pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65,213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra, [436 Pa.] at 291, 259 A.2d at 449.

Id. 507 Pa. at 372, 490 A.2d at 408.

Here, as we have observed, the Harleysville policy excludes coverage for damages caused by the “release, discharge or dispersal of contaminants or pollutants.” The task of interpreting this exclusion in the contract of insurance is normally one for a court rather than for a jury. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1984).

The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. See Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. See Mohn v. American Casualty Co. of Reading, supra. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. See Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). “[I]n the absence of proof of fraud, ‘failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.’ ” Olson Estate, 447 Pa. 483, 488, 291 A.2d 95, 98 (1972), quoting Orner v. T.W. Phillips Gas & Oil Co., 401 Pa. 195, 199, 163 A.2d 880, 883 (1960).

Id. 503 Pa. at 305, 469 A.2d at 566.

In Raybestos-Manhattan, Inc. v. Industrial Risk Insurers, 289 Pa.Super. 479, 433 A.2d 906 (1981), the Superior Court considered an exclusionary clause which excluded coverage for losses caused by contamination or pollution. The Court said:

“ ‘Contamination’ connotes a condition of impurity resulting from mixture or contact with a foreign substance.” American Casualty Co. of Reading, Pennsylvania v. Myrick, 304 F.2d 179, 183 (5th Cir.1962). In Webster’s Third New International Dictionary, the word “contaminate” is defined as follows: “to render unfit for use by the introduction of unwholesome or undesirable elements____ Contaminate implies an action by something external to an object which by entering into or coming in contact with the object destroys its purity.”

Id. 289 Pa.Super. at 482, 433 A.2d at 907. As one might expect, Webster defines a contaminant as “something that contaminates.” Similarly, a pollutant is something that pollutes, i.e., something which makes physically impure or unclean.

The claim made by the plaintiff-appellants in this case was for contamination caused by escaping oil. Such a claim falls precisely within the exclusionary language of the policy. The language is not ambiguous or susceptible to different interpretations. When oil escapes from a neighbor’s tank and invades the property of another, it is a contaminant. It has rendered the other’s property unfit for use by the introduction of an unwholesome or undesirable element. For such a loss, the Harleysville policy provided no coverage.

It follows that the plaintiff-appellants have failed to state a cause of action entitling them to relief. Therefore, a preliminary objection in the nature of a demurrer must be sustained.

Affirmed.


author: POPOVICH, Judge. HESTER, Judge,

text:
    632 A.2d 1309
    Lucy E. GALLAGHER, and Forrest E. Gallagher, Her Husband v. Eugene MARGUGLIO, D.O., and Clarion Osteopathic Community Hospital, Appellees. Lucy E. GALLAGHER and Forrest E. Gallagher, Her Husband v. David E. HUMPHREY, D.O., and George J. Jaegers, D.O., Appellees. Appeal of Lucy E. GALLAGHER, and Lucy E. Gallagher, Administratrix of the Estate of Forrest Gallagher, Deceased.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Sept. 13, 1993.
    Reargument Denied Nov. 23, 1993.

      Dominic D. Salvatori, Pittsburgh, for appellant.
    John W. Jordan, IV, Pittsburgh, for appellee Marguglio.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment entered in the Court of Common Pleas of Clarion County after a jury found that appellee was negligent for failing to diagnose appellant’s rectal cancer but did not award any damages to the appellant. We affirm.

Appellant was appellee’s patient from April of 1985 until October of 1986. During that period, appellant complained of loss of weight, loss of appetite, diarrhea, hemorrhoids and blood in her stool. Another doctor subsequently diagnosed appellant as having cancer of the rectum in January of 1987. Appellant brought a cause of action for medical malpractice against appellee, Eugene Marguglio, D.O., alleging that appellee was negligent for failing to order a sigmoidoscopy, a test to detect rectal cancer. Appellee maintained that he recommended to appellant that she have a sigmoidoscopy but that appellant refused to have the test.

Following the trial, a jury, in response to special interrogatories, returned the following verdict: 1) that appellee was negligent 2) that appellee’s negligence was a substantial factor in bringing about appellant’s injury and 3) that appellant’s damages were valued at zero dollars. Appellant filed post-trial motions requesting that the trial court either mold the verdict to include an award of damages or grant a new trial on damages. Appellant’s post-trial motions were denied, and this appeal followed.

Herein, appellant argues that the jury verdict was inadequate based on the evidence presented, and that the trial court’s failure to grant a new trial was an abuse of discretion.

The decision to grant a new trial because of the excessiveness or inadequacy of the judgment is a matter within the sound discretion of the trial court, and its decision will be sustained by an appellate court in the absence of a clear abuse of discretion or error of law which affected the judgment or the outcome of the case. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992); Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978).

The amount of a jury verdict will rarely be held inadequate on appeal. Moreover, we emphasize that it is the province of the jury to assess the evidence and to accept or reject conflicting testimony given by witnesses. Even if testimony is uncontradicted, the jury is not required to accept everything or anything a party presents.

Dawson v. Fowler, 384 Pa.Super. 329, 558 A.2d 565, 567 (1989), appeal denied, 523 Pa. 636, 565 A.2d 445 (1989) (citations omitted). A verdict will not be set aside if the verdict bears a reasonable resemblance to the proven damages. Hill v. Commonwealth, Bureau of Corrections, 124 Pa.Commw. 172, 177, 555 A.2d 1362, 1365 (1989).

We have held that seemingly low and unfair jury verdicts are nevertheless adequate when the jurors are presented with conflicting testimony on liability, contributory negligence or degree of injury. Dawson, supra. Presently, the degree of appellant’s injury was contested.

Appellant contends that she offered evidence of the pain and discomfort that she experienced between the time that appellee should have diagnosed her condition and the time of her surgery in January of 1987. Appellant testified that she experienced pain in her “side around to [her] back.” N.T., 10/29/91, p. 159. She also stated that she was “hurt and sick” in October of 1986. N.T., 10/29/91, p. 167. According to appellee’s records, appellant initially complained of a pain in her left side, but she did not inform the doctor of continued pain and suffering. N.T., 10/31/91, p. 593.

Appellant argues that, irrespective of the conflicting testimony regarding appellant’s pain, it is “common knowledge that the kind of symptoms reported by [appellant] to [appellee] would produce pain, discomfort and irritation.” Appellant’s brief at 20. However, appellant has failed to offer either expert testimony or authority to substantiate her claim that rectal cancer is a type of cancer that is commonly known to cause pain and suffering. While we agree that certain injuries or diseases are known to be painful, “those injuries are obvious in the most ordinary sense: the broken bone, the stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, and all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering.” Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988), citing Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961).

“Pain may be subjective, and, if believed, is compensable.” Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988), citing, Laurelli v. Shapiro, 416 Pa. 308, 206 A.2d 308 (1965). If an injury is not shown to be a type that is painful, the pain experienced is subjective, and the triers of fact are not obliged to believe that every injury causes pain or the pain alleged. Id. The jury was presented with conflicting testimony regarding appellant’s pain and suffering during 1986. The jury must assess the evidence and may accept or reject conflicting testimony given by witnesses. Dawson, supra. This court will not substitute its judgment for that of the jury. Id.

Appellant’s second contention is that appellee’s failure to diagnose her cancer caused the cancer to spread to the tissue surrounding the rectum, and, consequently, reduced appellant’s chances of survival, increased the likelihood of recurrence of cancer, increased her fear of recurrence and required appellant to receive radiation treatment and chemotherapy. Appellant offered expert testimony to indicate that the cancer had spread during the period between when/she should have had the sigmoidoscopy and when she actually had the sigmoidoscopy. However, conflicting expert testimony was presented regarding whether the spreading of the cancer actually reduced appellant’s chances of survival, increased her risk of recurrence of cancer or affected medical treatment of the cancer.

In regard to appellant’s particular type of cancer, an expert witness testified that if the cancer had not recurred within five years, the chance of a recurrence was extremely low. The ■witness elaborated that the likelihood that appellee had been cured of all cancer was very high. N.T., 10/25/91, p. 29. The expert witness further testified that appellant’s prognosis would not have changed had the tumor been removed sooner. N.T., 10/25/91, p. 139. Another expert testified that the possibility of a recurrence exists beyond the five-year mark, and that the delayed diagnosis had increased the chance of recurrence. N.T., 10/30/91, pp. 533-534. The jury was presented with inconsonant testimony concerning the possibility of appellant suffering a recurrence of cancer. The jury could have concluded from the evidence that no significant possibility existed for appellant to suffer a recurrence. Also, the jury could have found that appellant had no significant future fear of recurrence for which she was entitled to be compensated regardless of any failure to diagnose her cancer at the earliest possible time. It is the duty of the jury to assess a witness’ testimony and to accept or reject that testimony. Elza v. Chovan, 396 Pa. 112, 115,152 A.2d 238, 240 (1959). Considering the testimony of the expert witnesses, the jury may have found that the evidence did not show that appellant’s chances of survival would have been any greater if the tumor had been surgically removed sooner.

Appellant, additionally, contends that the spread of the cancer into the surrounding tissue caused her to undergo radiation therapy and chemotherapy. Appellant claims that the radiation therapy and chemotherapy resulted in the following: 1) special medical damages for the cost of the treatment; 2) pain and discomfort resulting from the side effects of the treatment; and 3) an increased risk of new primary tumors caused by the treatment and the consequent increased fear of such tumors occurring.

Appellee presented an expert witness who testified that radiation therapy and chemotherapy were appropriate as treatment for appellant’s cancer regardless of whether the cancer had spread into the surrounding tissue. N.T., 10/25/93, p. 28. Appellant’s expert stated that radiation therapy and chemotherapy may not have been necessary had the cancer been detected sooner. N.T., 10/30/91, p. 529. Therefore, it was for the jury to determine whether the delayed diagnosis was associated with appellant receiving radiation treatment or chemotherapy.

The trial court stated the following in its decision not to grant appellant a new trial:

Based on the evidence detailed in the preceding discussion, the failure of the jury to award any damages to [appellant] does not shock this court’s sense of justice. Burrell v. Philadelphia Electric Company, 438 Pa. 286, 289, 265 A.2d 516, 518 (1970). ‘A new trial should not be granted because of a mere conflict in testimony or because the trial judge ... would have arrived at a different conclusion. Neither should it ordinarily be granted ... where the evidence is conflicting and the jury might have found for either party. Where the jury’s verdict is supported by the evidence ... it will be upheld ...’ Id. at 289, 285 [265] A.2d at 518; Arcidiacono v. Timeless Towns of the Americas, Inc., 363 Pa.Super. 528, 532-533, 526 A.2d 804, 806-807 (1987) (citations omitted).
With these standards in mind, we do not believe that the jury’s verdict of zero damages is so contrary to the weight of the evidence that disturbing the verdict is imperative.

Trial Court Opinion, 4/14/92, pp. 7-8.

We find that the trial court’s decision not to grant appellant a new trial was not an abuse of discretion. During the trial, the jury was, presented with conflicting testimony on several issues. It is duty of the jury to assess the evidence and to accept or reject conflicting testimony given by witnesses. Elza, supra. Since the verdict bears a reasonable resemblance to the evidence, we see no reason to disturb the judgment.

Judgment affirmed.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting.

I respectfully dissent. The jury determined that appellee was negligent in failing to diagnose appellant’s rectal cancer for a period of eighteen months. The evidence indicates that as a result of that failure, appellant experienced significant pain and discomfort during that period. Once the jury determined that appellee’s negligence caused appellant injury, appellant was entitled legally to be compensated for all her damages, which include pain, suffering, and inconvenience. Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952).

I do not believe that the pain suffered by appellant herein is equivalent to the pain at issue in Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). There, the plaintiff suffered a dog bite and was awarded his medical costs but no amount for pain and suffering. The trial court granted a new trial, based on case law providing that once a jury determines that the plaintiff suffered an injury and the defendant was liable for the injury, the plaintiff is entitled to be compensated for pain and suffering.

Our Supreme Court reversed and held that in appropriate circumstances, as in the case before it, a jury may determine that no compensable pain had been suffered by the plaintiff. The Court reasoned that the factfinder is permitted to believe that certain pain is part of living and that some types of momentary or transient pain do not warrant a monetary award. The Court noted that certain injuries, such as a broken bone, stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, are the types of injuries that will have such an accompanying amount of pain that the jury’s failure to award pain and suffering will require grant of a new trial. It concluded that the injury before it, a dog bite, was not necessarily that type of injury.

In the present case, the evidence established that appellant did not experience transient or momentary pain. She suffered eighteen months due to undiagnosed cancer, which involves injury to an organ. This pain is not part of ordinary, everyday living. The majority’s application of Boggavarapu herein is an unwarranted expansion of its holding, which was not intended to abrogate our longstanding precedent that a plaintiff is entitled to be compensated for all damages resulting from injuries caused by a negligent tortfeasor. Since the amount of damages awarded herein bears no reasonable resemblance to appellant’s damages, she is entitled to a new trial. See Todd v. Bercini, supra; Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982); Mueller v. Brandon, 282 Pa.Super. 37, 422 A.2d 664 (1980); Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971).

      . Although Clarion Osteopathic Community Hospital, David E. Humphrey, D.O., and George J. Jaegers, D.O. are listed in the caption, we note that a non-suit was granted in favor of Clarion Osteopathic Community Hospital and David E. Humphrey, D.O. We also note that the action against George J. Jaegers, D.O. was dismissed without prejudice pursuant to a stipulation by the parties.

      . Since the jury determined that appellee was negligent, it implicitly disbelieved his testimony that he had suggested that appellant have a sigmoidoscopy, but she refused. Accordingly, it is inappropriate to give significance to this testimony in upholding the award of zero damages.


author: CERCONE, Judge.

text:
    632 A.2d 1314
    Victa FLOYD v. PHILADELPHIA ELECTRIC COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1993.
    Filed Oct. 5, 1993.
    Reargument Denied Dec. 2, 1993.

      Robert J. Stern, Philadelphia, for appellant.
    Martin Stanshine, Philadelphia, for appellee.
    Before CAVANAUGH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment entered in the Court of Common Pleas of Philadelphia County, dated January 13, 1993, after a jury entered a verdict in favor of appellee and awarded him damages in the amount of $48,000. We affirm.

The facts of this case are not in dispute. On May 20, 1988, appellee, Victa Floyd, was driving eastbound on Ruscomb Street in the City of Philadelphia. The appellant, Philadelphia Electric Company (PECO), had parked a portable transformer at the southwest corner of Ruscomb and Old York Road. Attached to the front of the transformer was a steel hitch, which at the time, was extending into the intersection of Ruscomb and Old York Road. When appellee turned right onto Old York Road he did not see the hitch on the transformer. Appellee collided with the hitch causing damage to his automobile. Appellee also sustained physical injuries.

Appellee filed the instant suit alleging that PECO was negligent in the placement of the transformer and for failing to warn of the dangerous condition caused by the extending hitch. A board of arbitrators found in favor of appellee and PECO appealed to the Court of Common Pleas for a trial de novo. After a two-day trial, the jury found for appellee and assessed damages in the amount of $80,000. The jury also found that appellee was forty (40%) percent negligent. Thus, the trial judge molded the verdict to $48,000. Appellee petitioned the trial court to award delay damages. The trial judge granted the petition and further molded the verdict to account for delay damages. Appellant filed post-verdict motions which the trial court denied. This timely appeal followed.

Appellant raises a variety of issues for our review:
1. Whether the trial court erred in denying the [appellant’s] motion in limine and permitting testimony of subsequent remedial action;
2. whether thé trial court erred in excluding [appellant’s] rebuttal witness;
3. whether the trial court erred in excluding [appellant’s] report of investigation;
4. whether the trial court erred in refusing to grant a mistrial based on [appellee’s] prejudicial remarks during the closing argument;
5. whether the trial court erred in its charge to the jury on burden of proof, negligence, and duty owed when vision is obstructed;
6. whether the trial court erred in its refusal to use the [appellant’s] verdict sheet;
7. whether the trial court erred in ruling that the verdict was not excessive;
whether the trial court erred in denying the motion for judgment notwithstanding the verdict;

We are constrained, however, to affirm the rulings of the trial court as to all the issues which appellant has raised with the exception of issue 6. The certified record in this matter does not include a copy of the trial transcript in this case. It is well settled that the Superior Court may only consider documents properly incorporated within the certified record. Gemini Equipment v. Penney Supply, 407 Pa.Super. 404, 412 n. 5, 595 A.2d 1211, 1215 n. 5 (1991). The defect in the case sub judice is not cured by the fact that appellant has provided a copy of the trial transcript in the reproduced record. Paper may not be made part of the certified record simply by reproducing it. Id.

The certified record consists of the original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court. See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (composition of record on appeal); Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). “It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Fiore v. Oakwood Plaza Shopping Center, Inc., 401 Pa.Super. 446, 460-61, 585 A.2d 1012, 1019 (1991). “For purposes of appellate review, what is not of record does not exist.” Frank v. Frank, supra.

It is clear from the docket entries and filings that appellant never requested that the transcripts of testimony be made part of the certified record. Nonetheless, this Court has made extensive inquiry with the Prothonotary of the Court of Common Pleas of Philadelphia County, as well as with the trial judge, the Honorable Ethan Allen Doty, in search of the missing transcript. Unfortunately, our efforts to secure the missing material proved unavailing. Because the certified record is incomplete as to issues 1, 2, 3, 4, 5, 7, 8, and 9, we have no basis for overturning the rulings of the trial court.

We may, however, consider appellant’s sixth issue as the certified record is complete as to that issue. Appellant contends that the trial judge erred in giving the jury an improper verdict sheet for their consideration. He claims that the verdict sheet given to the jury allowed them to list appellee’s damages before deciding the percentage of his comparative negligence, if any. We know of no rule of law which prohibits the jury from listing the plaintiffs damages before deciding the degree of his fault; nor has appellant directed us to any precedent for that particular point. We have reviewed the verdict sheet which has been made part of the certified record and find that the jury valued appellee’s damages at $80,000 which was modified to account for the finding that he was 40% negligent. Thus, the jury awarded him $48,000.00. We perceive no error here. Having found no basis upon which to reverse the rulings of the trial court, we affirm the judgment.

Judgment affirmed. Jurisdiction is relinquished.