author: BROSKY, Judge:

text:
    558 A.2d 872
    Edith E. POUNDS and Ralph Pounds, her Husband, Appellants, v. John LEHMAN, M.D., and Beaver Valley Orthopedic Associates, P.C.
    Superior Court of Pennsylvania.
    Argued March 1, 1989.
    Filed May 5, 1989.
    Petition for Allowance of Appeal Denied Oct. 4, 1989.

      Christine L. Donohue, Pittsburgh, for appellants.
    Robert S. Grigsby, Pittsburgh, for appellees.

      Before CIRILLO, President Judge, and BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This is an appeal from an order granting judgment notwithstanding the verdict in favor of appellees. Appellants raise only one question for our determination, whether the “discovery rule” is “applicable” when the injury is discovered within a two year period after a surgical operation. The trial court found the rule inapplicable if the injury was in fact discovered during the two year period after the surgical operation took place. We vacate and remand.

On May 22, 1979, appellant Edith Pounds underwent back surgery performed by appellee John Lehman. The basis of the present action is the allegation that appellee Lehman failed to disclose and inform appellant of the risks of the surgery, specifically the potential for scar tissue development, and of the alternatives to surgery. Appellant had injured her back while lifting an object at work in June of 1978. Appellee began treating appellant who underwent a conservative treatment under appellee’s direction. Appellant went back to work but experienced severe pain which required her to stop working. On April 30, 1979 Dr. Lehman recommended low back surgery.

Testimony at trial was varied as to the information disclosed to appellant prior to surgery. However, it does appear that no discussion was had on the potential for scar tissue formation at the nerve roots. Surgery took place on May 22, 1979. Appellant remained under appellee’s care after surgery and eventually returned to work in January, 1980. Appellant’s condition purportedly improved after surgery, yet she continued to experience low back and left leg pain until, on May 31, 1980, appellant experienced a sharp pain her back while lifting a box at work. She was again admitted to Ellwood City Hospital and diagnosed by appellee as suffering acute low back sprain. Appellant was referred to a neurosurgeon, Dr. Phillips, whom she first saw in July, 1980. Dr. Phillips performed exploratory surgery on August 1, 1980, whereupon he discovered scar tissue compressing the L5-S1 nerve, located in the same proximity where the first surgery took place. The scar tissue was described as permanent.

After appellant’s surgery, but before her discharge on August 4, 1980, Dr. Phillips related to appellant that her low back condition was caused by the scar tissue which formed after her first surgery by Dr. Lehman. She had remained under Dr. Phillips care up until the time of trial.

Appellants instituted an action against appellees on July 30, 1982. After a jury trial and upon special interrogatory, a verdict was returned in appellant’s favor. However, upon appellees’ motion, judgment n.o.v. was granted. The trial court, asserting that appellant knew of the requisite elements sometime in August, 1980, agreed with appellees that the discovery rule was “inapplicable” to render appellant’s action timely as the knowledge was gained within the “original” statutory period. Thus, it was concluded that appellants were obligated to file suit within two years of the operation and not within two years of the discovery date.

We are puzzled to a degree as to how the above interpretation was garnered. However, we must state that there is a lack of support in law and reason for the application of the “discovery rule” in the manner done so here. We stated in Larthey by Larthey v. Bland, 367 Pa.Super. 67, 532 A.2d 456 (1987):

As a general rule, the statute of limitations begins to run in a tort case when the cause of action accrues, meaning the date the injury is sustained. “The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959).

The so-called “discovery rule” is considered an equitable exception to the general rule that the limitations period begins to run when the “injury” occurred and “applies” when there is an “inability of the injured, despite the exercise of due diligence, to know of the injury or its cause____” Id., 532 A.2d 458, quoting Pocono International Raceway Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). (Emphasis in the original). Of course, in this sense, the discovery rule itself is only relevant if in fact the “date of discovery” is after the date when the cause of action could be said to have accrued.

It is important to note that in actuality the discovery rule is “applied” in essentially two different fashions. In some cases the rule is applied, as just indicated, to excuse or toll, for equitable reasons, the period of time in which an individual is reasonably unaware that an actionable injury has been sustained. However, the rule, it appears, is also utilized as a tool to determine when, in fact, a cause of action accrues or accrued. This can be divined from the quoted language from Ayers. To the extent the “injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers, supra., (emphasis added), it would seem, in such cases, that the date of accrual of the action is in fact, the same day as the “date of discovery.” This is perhaps particularly true in cases where it is nearly impossible, if not impossible, to determine with any degree of exactness when the injury occurs, and thus when the cause of action accrues. Consider, for example, the so-called creeping disease cases. One may be exposed to the dangerous substance for a great deal of time but determination of the precise moment when that exposure results in an actionable injury may well be impossible. In such a case the “discovery rule” is not really an equitable remedy to toll the statute of limitations, but instead is a legal and logical device to signal the arising of an actionable injury itself. Thus in a case like Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc), application of the “discovery rule” in an asbestos action, it would seem, was motivated as much, if not more, by a need to designate the time when a cause of action accrued, as it was to provide relief to an individual or individuals whose cause of action had previously accrued but was undiscovered, or undiscoverable, for a period of time. In contrast, the discovery rule is also applied in circumstances where the action is ripe for suit prior to a time when it is discovered by the injured party to be so. This is essentially the motivation behind certain malpractice cases where perhaps an “injury” is sustained during an operation yet the patient is found to have been unable to ascertain either the injury or its cause for a certain period of time. See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

Obviously, to the extent the discovery rule is being applied to determine the date of injury, and thus the date the action accrued, the question raised here would be moot. The periods of time would be coterminous and there would be no question of whether the discovery date was within or without the “initial two year period.” However, to the extent the discovery rule is being applied to ascertain the date a plaintiff did or should have discovered a cause of action where admittedly the cause accrued prior to that time, we are unconvinced that the rule works to extend two years time for filing a suit only where the discovery date is outside the initial two year period.

The general purpose of the limitations period is to balance the interests of a potential plaintiff to have a reasonable amount of time in which to pursue a legal claim against an individual and the potential defendant’s right to be free from dilatory or stale claims. Under present law this statutory period for pursuing tort claims is two years. The general purpose of the discovery rule, in our opinion, is to exclude the period of time to which the injured party is reasonably unaware of the fact that an actionable injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury. The discovery rule is “applicable” when there is an inability to ascertain the fact that an injury has been sustained despite the exercise of due diligence. Pocono Raceway, supra. The flip side of this is, as has often been stated, that the date of discovery is the date the plaintiff knew or reasonably should have known that, one, he or she has been injured, and two, that the injury has been caused by another party’s conduct. In Cathcart, and as quoted and relied upon in Larthey, we stated:

Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135-136, 471 A.2d 493, 500 (1984) (citations omitted).

All that was meant by the words “where this rule is applied” is that where the conclusion is reached that an injured party would not reasonably be aware that he or she had sustained an actionable injury prior to a certain point in time. Thus, the rule “applies” to toll any period of time between the actual sustaining of the injury and the point in time where the awareness of the injury became reasonably ascertainable. From that point in time the period begins to run and the party is obligated to file an action within two years of this date. This is so even if the plaintiff did not actually become aware on that date that an actionable injury was sustained. See, Pocono Raceway, supra.

Of course, from a logical standpoint it is perhaps superfluous to say “when the rule applies”, for to the extent the discovery date, under the rule, is the date when a reasonable person would realize that he or she had sustained an injury caused by a third party, and to the extent actual knowledge is not necessary, there will always be a discovery date and, perhaps, often that date would be the date the injury was in fact sustained. Thus, in some, and possibly many, cases, the two year period from the date of injury and from the imputed date of discovery would be the same. In such cases it would be perhaps less correct to say that the rule does not apply as it would be to say that application of the rule would not extend or toll the limitations period to any degree. However, in any event, it appears clear that the date of discovery is irrelevant as to whether or not one is extended two years from that date to file an action. As quoted material from Cathcart demonstrates, where the rule is applied, and thus where there is a period of time after the injury is actually sustained where a person would be reasonably unaware of the injury, the statute of limitations will not begin to run until the injury is discovered or should have been discovered. 324 Pa.Super. at 135-136, 471 A.2d at 500. In Larthey we also described the discovery rule as working to toll the statute of limitations, thus preventing it from running. Presumably, once it began to run it would run the full two year period.

Under appellees’ theory an individual who was unable to discover his or her injury until just a few days prior to a point two years after the date it was actually sustained would be charged with an obligation to file an action almost immediately or suffer great prejudice, while an individual who could not discover the injury until more than two years after the injury was actually sustained would be granted a full two years from the discovery date to file an action. There is simply little logic or policy to support this interpretation. If an individual who discovers an injury 23 months after it is sustained is charged with an obligation to file within a month, why wouldn’t the same burden be placed upon an individual discovering the injury on the 25th month? Further, if it was or is undesirable to allow an individual who discovers an action in the 23rd month two full years to bring an action so that the total period would be 47 months, why would it be desirable to allow certain individuals an additional 24 months when the minimal total period of time allowed would be 48 to 49 months?

The cases cited by appellees simply do not support the position they espouse. For instance, in Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980), there was a classic discovery rule situation. The appellant there underwent surgery on June 6,1974, during which a tube was left at the site of the surgery. This fact was not discovered until another surgery was performed on October 14, 1975, a time within two years of the negligent act. In discussing the case we gave no indication that the period between June 6, 1974 and October 14, 1975 would not be tolled from the statute of limitations simply because the negligent act was discovered within the statutory two year period, thus giving the patient an opportunity to file suit within two years of that first surgery. Further, every indication signified a conclusion that October 14,1975 was the so-called discovery date. In reference to this matter we stated “[w]ithin two years of the latter date, suit was instituted against the surgeon ...” thus leaving at least an implicit suggestion that the panel believed that the second surgery constituted the beginning of the limitations period. Id., 421 A.2d at 1182. We simply held in Keating that the joinder of a new defendant more than three years after the removal of the tube was untimely.

The apparent genesis of appellees’ argument here is the discussion in Keating on determination of culpability. It was argued there that the action was timely because the discovery of who was responsible for leaving the plastic tube in the appellant had not been discovered until some three years after the operation. There is some authority discussed in Keating that where culpability for the negligent infliction cannot be ascertained during the two year period the period begins to run upon the date it could have been reasonably discovered. The Keating panel expressed some reservation about this interpretation. However, regardless of the correctness of that proposition, under the facts of Keating, there is no authority for the position put forth here. Under appellees’ theory since the injury and third party causation were discovered during the two year period the discovery rule would have been “inapplicable” and the appellant would have been obligated to file the action within two years of the first surgery. However, there is absolutely no indication that the panel of this court considered the period to have started running at any point earlier than the second operation when the tube was discovered. The decisions in Larthey, supra, and Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986), are consistent in the sense that in both cases it was found that the discovery date, at the latest supportable point in time, was more than two years prior to the filing of the action. Thus, the actions were filed untimely.

Our reading of the recent en banc decision of this court reaffirms our decision here. In Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1987) we stated:

The now generally accepted formulation of the discovery rule provides that the discovery rule prevents the statute of limitations from running against the plaintiff until the plaintiff knows or reasonably should know (1) that he or she has been injured, and (2) that this injury has been caused by another party’s conduct.

(384 Pa.Superior Ct. at 144, 557 A.2d at 1086). Perhaps more important to our decision here was the discussion of application of the discovery rule to informed consent cases. In this regard we state:

Since under the Cathcart formulation of the discovery rule, the statute of limitations does not begin to run until the plaintiff has or reasonably could have discovered both the injury and that it was caused by the act of a third party, the statute of limitations applicable to a lack of informed consent action cannot begin to run until plaintiff did or reasonably could have discovered that the medical procedure has caused an injury of which the plaintiff was not warned.

(Id., 384 Pa.Superior Ct. at 147, 557 A.2d at 1088).

Thus, it is clear that as the rule has been interpreted and applied one is given a full two years from the date he or she has acquired actual or imputed knowledge of the two operative facts discussed in Cathcart regardless of when these facts are ascertained.

Reviewing the trial court’s opinion it is apparent that the trial court found the discovery rule inapplicable because the discovery date was within a two year period after the first surgery. There is no finding as to when that discovery date was so as to allow a determination of the timeliness of the action. Nor did the trial court reach the other issues raised in the post-trial motions. Consequently, we vacate the order entering judgment n.o.v. and remand for proceedings consistent with this opinion.

Order vacated, remanded for further proceedings. Jurisdiction relinquished.

TAMILIA, J., concurs in the result.

      . A similar comment could be made in many medical malpractice cases. For instance, is one injured when a surgeon negligently leaves an instrument at the site of the surgery, as was done in Ayers, or is the injury sustained when that act results in some form of physical pain or impairment? Similarly, in the present case, appellant claims she experienced scarring at nerve roots in her spine which is causing pain and disability. To the extent this scarring is considered the injury sustained, the date of the operation would seem immaterial as obviously the scarring was not present at the time the surgery was completed. Ayers indicates the injury is sustained under such circumstances when damage becomes physically objective and asertainable. Levenson v. Souser, infra, follows this lead in informed consent cases as well, even though such a case is, technically speaking, a battery case.

      . In light of case law postdating Keating this discussion takes on a greater focus. One purpose of the two year statutory limitations period is to allow the prospective plaintiff an opportunity to investigate the relevant facts of the cause of action. Under Cathcart, the limitations period begins to run upon ascertaining knowledge of an injury and the fact that it has been caused by a third party. It does not appear that under Cathcart one needs to know the precise party responsible for the injury for the period to begin running. In fact, in that case, we disagreed with the contention that the limitations period did not begin to run against the suppliers of asbestos products until those suppliers had been identified. Thus, it would seem, one is charged with an obligation to discover who the culpable or responsible parties are, at least where discoverable in the exercise of due diligence, while the period is running where the responsible party is not immediately apparent.
      The discussion of importance in Keating revolved around the decision in Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 387 A.2d 480 (1978), which cited Carney v. Barnett, 278 F.Supp. 572 (E.D.Pa.1967). Carney, if not Grubb, appears to interject a determination of culpability into the discovery rule equation so that where a determination of responsibility or culpability for the injury cannot be discovered within the limitations period an individual would be extended two years from the date of this discovery to file. Apparently, under this theory, if one does ascertain the culpable party within the two year period one is obligated to institute the action within that period. The Keating panel expressed reservation about this statement of law and felt the holding of Grubb should be limited to a similar factual scenario, namely, where an individual cannot reasonably determine culpability within the statutory period. Thus Keating, and, of course, the later decision in Cathcart, could be cited for the proposition that one is not excused from investigating culpability where the fact that an actionable injury has been sustained is discovered and the culpable party is not immediately ascertainable. However, this point aside, the decision in Keating is further distinguishable from the present one.

        Keating, and, for that matter, Grubb, dealt with the joinder of a party after the previous institution of suit. Thus, the fact that an actionable injury had been sustained had been previously determined. The inquiry in those cases dealt with determination of culpability not discovery of injury. Nothing in those cases suggests that the discovery rule is inapplicable to start the limitations period upon discovery of the injury. Those cases, more correctly stated, deal with the obligation to join additional parties after suit had been instituted. Obviously, a party can be joined to a current action with relative ease. Thus, the timeliness of that action might be more properly gauged upon an ability to do so within the limitations period already running. (Of course, under Cathcart the period would be running against all culpable parties upon discovery of the injury, regardless of whether the culpability is immediately ascertainable.) However, that inquiry presupposes that the period is already running and there is nothing to suggest, in those cases, that the timing of the discovery of the injury in some way affects the determination of whether the period will begin running on the date of discovery or at some previous point in time. Furthermore, and just as obvious, the ease with which an additional party can be joined to an existing action is in direct contrast to the difficult road that may be ahead of a litigant after the discovery that an actionable injury has been sustained. Thus, it is wholly inappropriate to intermix the discussion on these two related but substantially different situations.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    558 A.2d 877
    COMMONWEALTH of Pennsylvania v. John David MALY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1988.
    Filed May 3, 1989.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Ernest J. Disantis, Jr., Assistant District Attorney, Erie, for Com., appellee.
    Before BROSKY, ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

John David Maly appeals from a judgment of sentence of 12 to 28 years incarceration imposed following his plea of nolo contendré to a charge of involuntary deviate sexual intercourse and pleas of guilty to charges of indecent assault, endangering the welfare of children, and corruption of minors. Appellant had originally been sentenced to 10 to 25 years incarceration for these same crimes. That sentence was vacated by a panel of this Court and the case was remanded for resentencing. 375 Pa.Super. 619, 541 A.2d 30.

Appellant’s first challenge is to the legality of his sentence. He argues that because the trial court has failed to affirmatively state on the record any new conduct on the part of appellant occurring after the time of the original sentencing proceeding which would justify the increase in his second sentence, he has been exposed to double jeopardy, as defined by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The trial court had stated at the second sentencing proceeding that the increased sentence was based upon a psychological evaluation which was performed upon appellant following the remand by this court. Appellant contends that the conclusions made in that report echoed the trial court’s prior conclusions at the original sentencing proceeding. Therefore, he argues, the trial court imposed a more severe sentence based upon identical information and conclusions regarding his character and rehabilitative needs, violating the proscription against double jeopardy. We agree.

In North Carolina v. Pearce, supra, the Supreme Court considered the question of what constitutional limitations there are upon the power of a judge to impose a longer prison sentence on remand than the defendant originally received at the first sentencing proceeding. The Court held that while a trial judge is not constitutionally precluded from imposing a sentence of greater duration, that longer sentence can only be imposed if it is clear that the longer sentence is not the result of judicial vindictiveness. The court recognized that the Due Process Clause of the Fourteenth Amendment required that a convicted defendant not be penalized for successfully seeking an appeal and being awarded a new trial. “[T]he very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to chill the exercise of basic constitutional rights.” Id., 395 U.S. at 724, 89 S.Ct. at 2080, 23 L.Ed.2d at 668 (citation omitted). The court then set forth the following standard to be applied to test the validity of a sentence of longer duration imposed following a successful appeal:

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Id., 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670 (emphasis added).

The Supreme Court has reevaluated its position since Pearce. In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), the Court retreated from its previous position that only evidence of conduct occurring after the first sentencing proceeding was relevant and supportive of a longer second sentence. “Restricting justifications for a sentence increase to only events that occurred subsequent to the original sentencing proceedings could in some circumstances lead to absurd results.” Id., 475 U.S. at 141, 106 S.Ct. at 980-81, 89 L.Ed.2d at 112 (emphasis in the original). The Court went on to describe a situation in which a defendant is convicted and sentenced on the basis of a burglary, apparently his first offense, to a short prison term, but that following his successful appeal and a second conviction after retrial, is found to have been in fact a convicted murderer using an alias. The Court concluded that none of the policy considerations underlying Pearce (i.e., judicial vindictiveness) would require that the defendant receive the same light sentence and summarized the meaning of Pearce as follows:

Perhaps then the reach of Pearce is best captured in our statement in United States v. Goodwin, 457 U.S. [368], at 374, 102 S.Ct. [2485], at 2489 [73 L.Ed.2d 74 (1982)]:
“In sum, the Court [in Pearce ] applied a presumption of vindictiveness, which may be overcome only by objective information ... justifying the increased sentence.” Nothing in the Constitution requires a judge to ignore “objective information ... justifying the increased sentence.” In refusing to apply Pearce retroactively we observed that “the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process.” Michigan v. Payne, 412 U.S. 47, 52-53, 93 S.Ct. 1966, 1969, 36 L.Ed.2d 736 (1973). Realistically, if anything this focus would require rather than forbid the consideration of the relevant evidence bearing on sentence since “ ‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.’ ” Wasman [v. United States], 468 U.S. [559] at 564, 104 S.Ct. [3217] at 3220-3221 [82 L.Ed.2d 424 (1984)] (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)).

McCullough, supra, 475 U.S. at 142-143, 106 S.Ct. at 981, 89 L.Ed.2d at 113 (emphasis in the original). Although the decision in McCullough broadens the focus of relevant information concerning the defendant’s behavior and characteristics, that decision does not effect the application of Pearce to the instant case. Because this case involves the same trial judge imposing a second, more severe sentence, the presumption of judicial vindictiveness applies. Compare McCullough, (defendant sentenced by jury following first conviction and by trial judge following second conviction); and Commonwealth v. Mikesell, 371 Pa.Super. 209, 537 A.2d 1372 (1988) (defendant tried before, and sentenced by, different judge than the one who had imposed the original sentence). Therefore, the trial court was required to affirmatively set forth on the record objective information concerning identifiable conduct which justified appellant’s enhanced sentence. See U.S. v. Solomon, 825 F.2d 1292 (9th Cir.1987), cert. denied — U.S. —, 108 S.Ct. 782, 98 L.Ed.2d 868 (1988) (failure of district court to affirmatively state reasons for enhanced sentence required appellate court to vacate the sentence and remand for new sentencing).

The trial court states in its opinion that it was relying upon the psychological report prepared by Dr. McKinney in imposing the enhanced sentence. Appellant argues that the trial court could not properly base the longer second sentence upon that report because the report was nothing more than a restatement of the trial court’s considerations and conclusions which were stated at the previous sentencing proceeding. At the first sentencing proceeding, the trial court stated the following with regard to appellant’s character and rehabilitative needs:

The Court has read the defendant’s version of the events which the defendant has set forth in detail, not only as to the events, in fact, most of the detail does not go to the events in question, but most of the detail goes to the defendant’s past. The court finds the defendant’s version to contain what can be best called ‘half-truths.’ The defendant does set forth excuses for his behavior in terms of drug, and alcohol use, illness, childhood problems, and military service problems. In fact, during most of his version he seems to blame everyone else for being responsible for the actions he took toward the victim but himself. However, at the end of his statement he does indicate to the Court that he accepts responsibility for his actions. The court notes, also, that the defendant has excused his actions or conduct stating that what he did was no more than fondling, and that there were only 6 incidents in a 1 year period.
The Court notes, also, that the defendant has claimed that he has made mistakes, and he is sorry for those mistakes, and that he, in fact, wants to get back with his wife and daughter. I’m not sure, Mr. Maly, whether your remorse is real or whether your remorse is because you have a great weight hanging over your head, and that is the sentencing on the part of this Court that you now stand before it for.
I’m not sure that you really care about what happened to the victim, but that you only care about what would happen to you if you did not tell the Court that you were remorseful or that you were taking responsibility for your actions. I noted that in the past, and in your version of the events, you have blamed others for what has occurred. You’ve blamed alcohol. You’ve blamed drugs. You’ve blamed mental stress. You’ve blamed numerous other things or people for your position, but, in fact, it is obvious to the court that because of the long longevity, and extent of your actions, and your conduct that the only person that can be blamed and must be blamed is you.
The Court in that matter, Mr. Maly, has considered your character, and it is obvious that there is something sorely lacking in your character to allow these events, not only to occur, but to continue for such a long period of time.
The Court notes your rehabilitative needs, if you can be rehabilitated. It is obvious, because of your numerous problems, real or claimed, that long term incarceration is necessary to deal with those drug, and alcohol problems you claim you have, and in the severity that you claim you have them. It is, also, obvious that to deal with your psychological, and/or mental problems that you may have, that long term treatment through incarceration is necessary. It is obvious to this Court that incarceration is necessary, also, because prior probation back in 1982 obviously failed to rehabilitate you as to alcohol or drug problems or to deter you from further criminal conduct.
The Court must, also, protect the people of this community. You are now, at present, a clear, and present danger. In deed, (sic) child offenders often are incapable of being treated. They are, in fact, incurable by the techniques we presently have available to us in modern day psychotherapy. Hopefully, that is not the case with you, but there is no guarantee for rehabilitation for those such as you. It can only come about through your own efforts.

(Sentencing Proceeding of February 24, 1987, pp. 17-23.)

At the second sentencing proceeding, the trial court made extensive reference to the psychological report prepared by Dr. McKinney in support of the enhanced sentence:

The Court has also considered the recent psychological evaluation which the court did not have at the time of the first sentencing. That evaluation specifically goes to your character and the possibility and potential for rehabilitation, two of the most serious factors that the Court must consider when imposing a sentence.
Dr. McKinney notes that the current offenses are admitted by you “but minimized as due to being out of control from use of drugs and alcohol as well as due to the victim’s exaggerating events that took place.” The drug and alcohol problem is clearly used by you, he points out, as the explanation for the sexual conduct, and is viewed by you as the only matter that needs to be dealt with.
“It appears,” according to Dr. McKinney, “that Mr. Maly is dealing with the unacceptable sexual misconduct on his part by shifting the focus to his drug and alcohol abuse, by minimizing the extent and the nature of the sexual abuse, and by contending the victim is exaggerating the events. Mr. Maly refers back to his drug and alcohol abuse to find reasons for most of his behavior. While it is apparent that Mr. Maly depicts a serious substance abuse problem, it is also apparent that the problem is used as a barrier to avoid dealing with other problems that he has.”
According to Dr. McKinney, personality testing indicated that you can be viewed as demonstrating a character disorder over the course of your development and currently to be experiencing intense distress due to your present situation. Dr. McKinney notes that you would not be considered to fit a profile of the fixed pedophile in terms of sexual interests towards children as a common part of your thinking and experiences, but rather the offenses demonstrate your poor control of impulses to self gratification of many types.
Concluding, Dr. McKinney states that from a psychiatric point of view Mr. Maly would likely be diagnosed as showing a “boarderline (sic) personality disorder” and to carry a poor prognosis for improvement in the future. “The offenses are connected to Mr. Maly’s inpredictability (sic) in pursuit of gratification and opportunism because he lacks typical inhibitions and restraints on behavior. Treatment with individuals like Mr. Maly generally has been associated with negative outcomes and cannot be viewed as a reliable deterrent.”
“It should also be recognized that Mr. Maly has shown a lack of effort to deal with his behavior while on his own and a pattern of rejection of external guidance so that there would be a high likelihood of his not following through on treatment in the community.”
The Court notes that that specifically and succinctly sets forth your character and rehabilitative needs, particularly in light of your background, the circumstances of these incidents, what the court was aware of prior thereto and after you had been incarcerated for a period of one and one half years.

(Sentencing Proceeding of February 16, 1988, pp. 27-31.)

It is readily apparent in reviewing the record of the two sentencing proceedings that the trial court did not base its second more severe sentence upon any new information or concerns from the psychological report. The trial court’s belief concerning appellant’s character and rehabilitative needs remained the same. The mere fact that the trial court was in possession of a psychological evaluation in the second proceeding which supported the trial court’s previous conclusions and beliefs was not new information to the trial court concerning appellant’s “life, health, habits, conduct and mental and moral propensities.” Pearce, supra, 395 U.S. at 723, 89 S.Ct. at 2079, 23 L.Ed.2d at 668, quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949). See U.S. v. Carrasquillo, 732 F.2d 1160 (3d Cir.1984) (defendant’s continued drug addiction insufficient to support district court’s imposition of enhanced sentence).

We cannot accept the Commonwealth’s contention that because the psychological evaluation was performed after appellant served one and one-half years of his sentence and was directly related to his character and rehabilitative needs that it supports the trial court’s imposition of a longer sentence. Although the report was relevant, it did not provide the trial court any information which the trial court had not considered in imposing the initial sentence. Without evidence of identifiable conduct which was not previously considered by the trial court, [see e.g., McCullough, supra; U.S. v. Peterman, 841 F.2d 1474 (10th Cir. 1988) (enhanced sentence upheld where district court considered defendant’s subsequent criminal conduct); and Commonwealth v. Sinwell, 223 Pa.Super. 544, 302 A.2d 400 (1973) (enhanced sentence upheld where trial court considered defendant’s prison break following his second conviction) ] a second sentence imposing a greater penalty than initially imposed cannot stand. Based upon the record of the instant case, we are constrained to vacate the judgment and again remand for resentencing.

Because of our disposition of appellant’s first issue, it is unnecessary to consider any of the other issues raised.

Judgment of sentence reversed and case remanded. Jurisdiction is not retained.


author: WIEAND, Judge:

text:
    558 A.2d 882
    COMMONWEALTH of Pennsylvania v. Daniel Kevin PALMER, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1989.
    Filed May 11, 1989.
    Brendan J. Vanston, District Attorney, Tunkhannock, for the Com., appellant.

      Paul P. Ackourey, Scranton, for appellee.
    Before WIEAND, MELINSON and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal by the Commonwealth from an order of the trial court which dismissed criminal charges on the grounds that trial had not been commenced within the time allowed by Pa.R.Crim.P. 1100. The order dismissing prosecution was entered after Rule 1100 had been amended on December 31, 1987 and while the parties were awaiting a decision from the trial court following a hearing on defendant’s motion to suppress evidence. For the reasons hereinafter set forth, we are constrained to reverse.

On October 2, 1987, a criminal complaint was signed in which Daniel Palmer was accused of possession of a controlled substance and possession with intent to deliver. A preliminary hearing was held on October 22, 1987, and the charges were returned to court. After an information had been filed, Palmer waived arraignment and filed, on January 20,1988, an omnibus pre-trial motion. In this motion he sought to suppress physical evidence seized by the police and statements which he had made to the police. He also requested the court to (1) dismiss the charge of possession with intent to deliver, and (2) compel the Commonwealth to disclose the identity of the informant who had led the police to him. Palmer’s omnibus pre-trial motion was heard by the trial court on March 17, 1988, but it was not decided. When a decision was not forthcoming, the Commonwealth moved, on May 12, 1988, for an extension of time within which to commence trial. The trial court denied the Commonwealth’s motion, holding that it had been filed too late. It was untimely filed, the court held, because it had not been filed until 223 days after the filing of the complaint. The Commonwealth thereafter petitioned for and was granted reargument, and Palmer filed a motion to dismiss the prosecution. On June 30, 1988, the trial court again denied the Commonwealth’s request for an extension and granted Palmer’s motion to dismiss. The Commonwealth appealed.

After the complaint had been signed and before one hundred and eighty (180) days had expired thereafter, Rule 1100 was amended by the Supreme Court on December 31, 1987. The amended rule became effective immediately. It provided in subparagraph (a)(3) that where a defendant is not incarcerated but free on bail, trial shall commence within three hundred and sixty-five (365) days after the filing of the complaint. If the amended rule is applicable to the prosecution against Palmer, then the trial court erred when it dismissed the charges against him. The time allowed for trial by the amended rule had not expired.

Pa.R.Crim.P. 2 directs that the rules of criminal procedure shall be construed “as nearly as may be in consonance with the rules of statutory construction.” The trial court refused to apply the amended rule because it believed that to do so would violate the proscription of 1 Pa.C.S. § 1926 against retroactive application. Concerning retroactivity, the Supreme Court has said:

Addressing our initial inquiry to the retroactivity issue, there can be no doubt that, absent clear language to the contrary, statutes are to be construed to operate prospectively only. Statutory Construction Act of 1972, 1 Pa.C. S.A. § 1926; Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972); Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960). It is manifest, however, that this principle becomes pertinent only after it has been determined that a proposed operation of a statute would indeed be retrospective. In this regard, our courts have held that a statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.

Gehris v. Commonwealth, Department of Transportation, 471 Pa. 210, 214-215, 369 A.2d 1271, 1273 (1977). See also: King v. Gazey, 270 Pa.Super. 445, 411 A.2d 802 (1979); Commonwealth, Department of Labor and Industry v. Pennsylvania Engineering Corp., 54 Pa.Cmwlth. 376, 421 A.2d 521 (1980). “Only where a vested right or contractual obligation is involved is a statute applied ‘retroactively’ when it is applied to a condition existing on its effective date which resulted from events which occurred prior to that date.” Commonwealth v. Johnson, 520 Pa. 165, 170, 553 A.2d 897, 900 (1989). See also: Creighan v. City of Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957).

To apply the amended Rule 1100 to the instant case would not constitute a retroactive application thereof. The Statutory Construction Act, at 1 Pa.C.S. § 1953, provides as follows:

§ 1953. Construction of amendatory statutes
Whenever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part 'amended, and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.

In addition, the provisions of 1 Pa.C.S. § 1975 are as follows:

§ 1975. Effect of repeal on limitations
Whenever a limitation or period of time, prescribed in any statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before a statute repealing such statute takes effect, and the same or any other limitation is prescribed in any other statute passed by the same General Assembly, the time which has already run shall be deemed part of the time prescribed as such limitation in such statute passed by the same General Assembly.

These sections of the Statutory Construction Act, when applied to the amended Rule 1100, suggest that the time which elapsed following the signing of the complaint and prior to the effective date of the new rule must be deemed a part of the longer period established by the new rule. The longer period became applicable immediately upon its effective date in all cases where the period established by the prior rule had not expired.

In the instant case, although the complaint had been filed prior to December 31, 1987, when the new Rule 1100 went into effect, the one hundred and eighty (180) days within which to commence trial had not yet expired. Therefore, the amended period of three hundred and sixty-five (365) days became applicable. Cf. Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027 (1988) (amendment extending statute of limitations from two to five years applied prospectively to prosecution commenced after effective date of amendment, where prosecution was not time-barred under former two year limitations period, regardless of whether crime for which defendant was being prosecuted occurred before or after effective date of the amendment). See also: Commonwealth v. Johnson, supra (amended statute of limitations was not retroactively applied where the original statutory period had not yet expired). Under amended Rule 1100, the Commonwealth had three hundred and sixty-five (365) days from October 2, 1987, the date on which the complaint was filed, within which to commence trial. Consequently, the trial court erred when, on June 30, 1988, it dismissed the charges. The three hundred and sixty-five (365) days within which to commence trial had not then expired.

Even under the former Rule 1100, however, the trial court’s dismissal was erroneous. The Commonwealth’s petition to extend the time within which to commence trial had not been filed untimely. Although it had been filed two hundred and twenty-three (223) calendar days after the filing of the complaint, the filing of Palmer’s omnibus pre-trial motion on January 20, 1988 had tolled the period under Rule 1100. Consequently, the time between January 20, 1988 and May 12, 1988, when the Commonwealth filed an extension petition, was excludable. It follows that the Commonwealth’s petition for an extension of time was filed only one hundred and ten (110) days after the filing of the complaint. This was timely.

In Commonwealth v. Riffert, 379 Pa.Super. 1, 549 A.2d 566 (1988), the Superior Court determined that the time intervening between the filing by a defendant of an omnibus pre-trial motion seeking to suppress evidence and the trial court’s determination of the motion was excludable for purposes of determining whether a Commonwealth petition to extend had been timely filed. The Court reasoned as follows:

In determining whether a petition to extend the time for trial has been filed timely ... all periods of time which are properly excludable under Rule 1100(d) must be subtracted. Commonwealth v. Shelton, 469 Pa. 8, 15, 364 A.2d 694, 697 (1976). See also: Commonwealth v. Bomboy, 357 Pa.Super. 265, 515 A.2d 969 (1986); Commonwealth v. Casper, 327 Pa.Super. 362, 475 A.2d 840 (1984). Time is excluded from the computation of the 180 day period under Rule 1100 for delays which are caused by the unavailability of a defendant. Commonwealth v. Armstead, 359 Pa.Super. 88, 91, 518 A.2d 579, 581 (1986); Commonwealth v. Colon, supra, 317 Pa.Super. [412] at 425, 464 A.2d [388] at 395[1983]. Also excluded, according to the decided cases, is the time intervening between a defendant’s filing of pre-trial motions and the trial court’s disposing of such motions. See: Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986); Commonwealth v. Bond, 350 Pa.Super. 341, 504 A.2d 869 (1986) (en banc) (Spaeth, P.J. concurring); Id. (Wieand, J. concurring). See also: Commonwealth v. Fuchs, 372 Pa.Super. 499, 539 A.2d 1307 (1988); Commonwealth v. Wills, 370 Pa.Super. 173, 536 A.2d 351 (1987). The rationale for excluding such time has been explained as follows:
The critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant’s motion to the date of the trial court’s order denying the motion should be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner.
Commonwealth v. Bond, supra, 350 Pa.Super. at 358, 504 A.2d at 878 (Spaeth, P.J. concurring). See also: Id., 350 Pa.Superior Ct. at 363, 504 A.2d at 881 (Wieand, J. concurring) (“appellant sought to delay the trial in order to obtain a ruling on the constitutional issue and thereby, in a practical sense, obtained a postponement or continuance of the trial”).
... Because Riffert’s omnibus pretrial motion has raised challenges to the Commonwealth’s evidence against him, his trial could not commence until the motion was disposed of by the trial court. Riffert thus was unavailable to be tried while his omnibus motion was pending. Implicitly, he had obtained a postponement or continuance of his trial during such time.

Commonwealth v. Riffert, supra, 379 Pa.Superior Ct. at 10, 549 A.2d at 570-571 (footnote omitted). See also: Commonwealth v. Reeves, 378 Pa.Super. 29, 548 A.2d 260 (1988).

Applying the Riffert rationale to the facts of the instant case, it is readily apparent that Palmer could not have been tried after he filed an omnibus motion seeking to suppress the evidence against him. The trial court has never decided this motion. Until it makes a decision, the trial cannot begin. This delay cannot be attributed to the Commonwealth. When Palmer filed his omnibus pre-trial motion seeking to suppress evidence, he implicitly requested that trial be delayed until his motion was decided. “To permit the period to run [against the Commonwealth] while the court deliberated on the motion would be to permit [Palmer] to wield [his] right to a speedy trial in an unjust and uncontemplated manner.” Commonwealth v. Bond, 350 Pa.Super. 341, 358, 504 A.2d 869, 878 (1986) (Spaeth, P.J., concurring).

Rule 1100 was adopted by the Supreme Court to reduce the backlog of criminal cases in the trial courts and to provide an objective standard for protection of defendant’s speedy trial rights. Commonwealth v. Crowley, 502 Pa. 393, 399, 466 A.2d 1009, 1012 (1983).
Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society.” Commonwealth v. Brocklehurst, 491 Pa. 151, [153-54], 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
Id. [502 Pa.] at 399, 466 A.2d at 1012, quoting Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-370 (1981).

Commonwealth v. Wills, 370 Pa.Super. 173, 178-179, 536 A.2d 351, 353-354 (1987). Even if the provisions of former Rule 1100 were to be applied in this case, therefore, the trial court’s dismissal of the prosecution with prejudice would be erroneous.

The order dismissing the prosecution is reversed, and this case is remanded for further proceedings. Jurisdiction is not retained.

HOFFMAN, J., concurs in the result.

      . Pa.R.Crim.P. 1100(a)(3), as amended, is as follows:
      Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint is filed.

      . In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Supreme Court said:
      The Commonwealth may not seek an extension pursuant to section (c) of the Rule nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting an extension. Commonwealth v. O’Shea, supra [465 Pa. 491] at [498 n. 9], 350 A.2d [872] at 875 n. 9[1976]; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). Whether or not an application for an extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant to section (d) of the Rule. If the time so computed exceeds the mandatory period of the Rule or, in cases where an extension or extensions have been properly granted, exceeds the mandatory period set forth in the order granting the last extension, then the application is untimely.

        Id. 469 Pa. at 15, 364 A.2d at 697-698. See also: Commonwealth v. Bomboy, 357 Pa.Super. 265, 515 A.2d 969 (1986).


author: MONTEMURO, Judge:

text:
    558 A.2d 886
    Lillian M. ANDERSON and Charles H. Anderson, Administrators of the Estate of Rose Marie Anderson, Appellees, v. The ERIE INSURANCE GROUP, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1989.
    Filed May 17, 1989.

      Margaret A. Wurzer, Philadelphia, for appellant.
    Albert P. Massey, Jr., Paoli, for appellees.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal, timely filed by The Erie Insurance Group, from the July 12, 1988, Order of the Court of Common Pleas of Chester County, wherein the court granted appellees’ motion for judgment on the pleadings. Appellees are Lillian M. Anderson and Charles H. Anderson, Administrators of the Estate of Rose Marie Anderson. In Groff v. Pete Kingsley Building Inc., 374 Pa.Super. 377, 543 A.2d 128 (1988), this Court stated:

A trial court, in granting judgment on the pleadings, must confine its considerations to the pleadings and relevant documents properly before it. Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). Judgment on the pleadings is appropriate only when no material facts are in dispute. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). “In reviewing the court’s decision, we must determine if the action of the court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. The decision will be affirmed only in cases which are clear and free from doubt.” Id. at 296, 511 A.2d at 880 (citations omitted)....

Id., 374 Pa.Superior Ct. at 382, 543 A.2d at 130. Following a careful review of the record before us and the arguments advanced by the parties, we affirm.

In August of 1987, appellees filed a petition for the appointment of an arbitrator. In this petition, appellees alleged that Rose Anderson had died as a result of injuries she sustained while occupying an automobile insured by Erie. Appellees claimed that the fatal accident had been caused by the negligent acts of an uninsured motorist:

6. Plaintiffs and defendants have been unable to agree as to the amount of money to which plaintiffs are entitled under the Uninsured Motorist provisions of the [Erie] policy.
7. The [Erie] policy provides that if the parties are unable to agree as to the amount of money to which plaintiffs are entitled, either party may make a written demand for arbitration in which each party will select an Arbitrator and the two Arbitrators will select a third.
8. By letter dated the 24th day of March, 1987, petitioners counsel notified the Erie Insurance Group that they had chosen their arbitrator and requested that respondent do likewise.
9. As of the date of this petition, respondent has failed to appoint its arbitrator____

R.R. at 49a.

Erie responded to the petition to compel arbitration by raising a number of issues which Erie believed prevented the trial court from ordering the parties to proceed to arbitration. Erie admitted that it had issued an insurance policy on a vehicle involved in the automobile accident which caused the death of Rose Anderson. However, Erie maintained that the entire insurance policy was null and void because of the alleged fraud or misrepresentation of the named insured, Betty Jean Tackett. Id. at 54a. Erie claimed that Betty Jean Tackett had secured the insurance policy in her name, to cover a 1984 Oldsmobile Firenza, but that this automobile was actually owned, garaged, maintained and operated by Robert Majors.

As a second issue, Erie claimed that, even if the insurance policy was not void, the Estate of Rose Marie Anderson could not recover under the policy because Rose Marie was not covered under the terms of Erie’s insurance policy: she was not a named insured, a relative of the named insured, nor was she “occupying” the insured vehicle at the time of the accident. Erie attached a letter it had written to its named insured, Betty Jean Tackett, wherein it quoted from what is apparently Erie’s uninsured motorist benefits provision:

The word “Occupying” is described in the “FPB Endorsement” Definitions as:
“occupying” means in or upon, getting into or getting out of.
Putting this all together, we find that neither Robert Majors nor Rose Anderson are an Insured or named Insured under the policy, nor were they occupying a motor vehicle at the time of the accident.
Under Uninsured Motorists Benefits,
OUR PROMISE — UNINSURED MOTORISTS COVERAGE
We will pay damages that the law entitles you or your legal representative to recover from the driver or owner of an uninsured motor vehicle. Damages must result from an accident arising out of the maintenance or use of the uninsured motor vehicle. Damages must involve bodily injury; meaning physical harm, sickness, disease or resultant death. We will not be bound by a judgment against the uninsured on the issues of liability or the amount of damages unless it is obtained with our written consent.
We previously have described the words YOU and YOUR in this letter.
OTHERS WE PROTECT
(1) Any relative.
(2) Anyone else, while occupying any auto we insure ____

R.R. at 41a. Erie alleged in its answer to the petition to compel arbitration that Rose Marie Anderson was a pedestrian, having exited the insured vehicle along with Robert Majors, who had been driving the car. It is Erie’s position that both Robert Majors and Rose Marie Anderson were struck by an uninsured motorist only after they had ceased to “occupy” the vehicle insured by Erie through its named insured, Betty Jean Tackett.

Finally, Erie contends that the arbitration agreement, which applies to uninsured motorist benefits, is inapplicable under the circumstances of the case at bar. The parties do not dispute that the arbitration agreement applies to claims arising from the maintenance or use of an uninsured motor vehicle and involving bodily injury or death, nor do they dispute the specific language of the arbitration agreement:

Disagreement over the legal right to recover damages or the amount of damages will be settled by arbitration____

Brief for Appellees at 20. However, Erie reads this provision as limiting arbitration to issues concerning the claimant’s right to recover damages which have resulted from the acts of an uninsured motorist and the amount of such damages, thus excluding the arbitration of questions of fraud, the issue of “occupation” of the insured vehicle, and whether other insurers should be held liable for uninsured motorist benefits. Brief for Appellant at 46.

In its Order of July 12, 1988, the trial court states that its order, compelling arbitration, is based upon its conclusion that “[wjhether Plaintiffs should be afforded rights or benefits under the policy of insurance is clearly a question which the policy directs to be decided by arbitration.” We must again admonish counsel for Erie for her blatant failure to comply with Pa.R.A.P. 1925(b):

(b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

On August 23, 1988, the trial court ordered Erie to file a Rule 1925(b) statement within the ten days. Erie’s Statement of Matters Complained of on Appeal was as follows:

Did the trial court err in granting the appellees’ motion for judgment on the pleadings, and directing the parties to proceed to arbitration?

This vague and cryptic statement utterly fails to comply with Rule 1925(b). The trial court, noting that Erie complains of error for “some unidentified reason”, nevertheless filed a supplemental opinion on October 3, 1988, stating:

... we note that our inquiry is limited to the question of whether an agreement to arbitrate was entered into and whether the dispute involved comes within the ambit of the arbitration provision; Rocca v. Pennsylvania General Ins. Co., 358 Pa.Super. 67[,] 516 A.2d 722 [772] (1986). Here, Defendant does not deny the allegation in the Petition that the parties agreed to arbitrate the question of Plaintiff’s right to recover damages under the policy at issue. Defendant merely challenges Plaintiff’s right to recover.

Op. of Trial Court, October 3, 1988, at 2.

We strongly disapprove of Erie’s failure to abide by the trial court’s direction to file a statement of matters complained of on appeal. Although there is considerable merit to the argument that we should elect to employ our discretion under Rule 1925(b) and find that Erie has waived all of its objections to the trial court’s order, we will not do so. Erie’s failure to comply with Rule 1925(b) in a meaningful manner has not interfered with our ability to exercise effective appellate review. Cf. Ryan v. Johnson, 369 Pa. Super. 377, 535 A.2d 207 (1987). We find the trial court’s order to be based on clear precedent, and thus, we are not left to speculate as to the trial court’s reasoning.

In Gaslin, Inc. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 482 A.2d 1117 (1984), this Court recognized the following:

____ Whether an agreement to arbitrate was entered into and whether the dispute falls within the scope of an arbitration provision have traditionally been questions for the court to determine____ Therefore, although the arbitrator is the final judge of law and fact, his power has not been extended to the degree that he may determine his own jurisdiction, that is, whether the arbitration tribunal has the requisite power to hear the particular case brought before it. Whether a party consented to arbitrate a dispute in the first instance is a jurisdictional question that must be decided by a court.

Id., 334 Pa.Superior Ct. at 139-140, 482 A.2d at 1121 (citations omitted). There is no question in the present case that Erie agreed to arbitrate disputes concerning its obligation to pay a claimant uninsured motorist benefits. The dispute between Erie and the appellees thus fits squarely within the subject matter of the arbitration provision.

In Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975), our Supreme Court specifically held that where a party had agreed to arbitrate controversies or claims, this agreement “cannot be circumvented by an allegation that the contract was void ab initio because of fraud in the inducement or mutual mistake.” Id., 459 Pa. at 662, 331 A.2d at 185. The Supreme Court stated “ ‘that a general attack on a contract for fraud is to be decided under the applicable arbitration provision as a severable part of the contract and that only where the claim of fraud in the inducement goes specifically to the arbitration provision itself should it be adjudicated by the court rather than the arbitrator____Id., 459 Pa. at 668, 881 A.2d at 186 (citations omitted). We find that Flightways controls the case at bar. Erie must present its claim of fraud or misrepresentation to the arbitrators. Likewise, Erie must also present its claim that uninsured motorist benefits may not be recovered because Rose Marie Anderson was not “occupying” the insured vehicle at the time that she was struck by the uninsured motorist. Again, this is a claim which falls within the subject matter of the arbitration clause: the scope of Erie’s liability to provide uninsured motorist benefits.

The Flightways precedent has been consistently followed in subsequent cases analogous to the case at bar. In Allentown Supply Corp. v. Hamburg Municipal Authority, 463 Pa. 167, 344 A.2d 477 (1975), the Supply Corporation had agreed to perform mechanical and plumbing work in connection with the improvement of a sewage plant. All disputes were to be resolved through arbitration. When a dispute arose concerning whether the Supply Company was to supply and install an aerated grit chamber, the Supreme Court agreed with the trial court’s conclusion that this dispute had to be submitted to arbitration:

Whether appellant is or is not obligated to furnish grit removal equipment is obviously a question of the nature and scope of its responsibilities under the contract, the resolution of which requires interpretation of the language of the contract. This is so whether the pertinent contract language is clear and precise or is obscure and ambiguous. The possibility that the meaning of the contract is as pellucid as appellant claims it to be does not eliminate the need for an authoritative determination of the matter once a dispute has arisen; interpretation is no less interpretation because it may prove simple. Under the arbitration clause here involved, however, that interpretation is for the board of arbitrators, not the courts.

Id., 463 Pa. at 170, 344 A.2d at 478 (footnote omitted).

In Kardon v. Portare, 466 Pa. 306, 353 A.2d 368 (1976), the Supreme Court considered an arbitration provision which provided that disputes concerning the forfeiture of trust rights would be resolved through arbitration. The Kardon Court, citing Flightways, noted that the arbitration provision was not limited through any of its express terms and, thus, the Court determined that whether the discharged employee had filed a timely demand for arbitration pursuant to the procedural requirements of the agreement was a matter to be determined by the arbitration panel. See also Muhlenberg Township School D.A. v. Pennsylvania Fortunato Construction Company, 460 Pa. 260, 333 A.2d 184 (1975) (question of whether contractor’s demand for arbitration under contract with the school district was timely was one of interpretation of the contract and not one of existence or scope of arbitration provision).

More recently, in Rocca v. Pennsylvania General Insurance Company, 358 Pa.Super. 67, 516 A.2d 772 (1986), the issue addressed by this Court was whether a claimant can compel an insurer to arbitrate a claim for benefits, in accordance with the terms of the policy, if the policy requirement of exhaustion of remedies has not first been sought. In Rocca, we opined:

The arbitrators can always set-off the amounts received by the appellant when, and if, an award is made. The arbitrators may decide that the conditions precedent under the policy have not been satisfied, and thus abate the right to obtain damages until the contractual sine qua non has been met. However, it is for the arbitrators, and not the court, to decide whether the procedural requisites have or have not been satisfied.
As always, the arbitration agreement controls the scope of authority wielded by the arbitrators. Here, the agreement does not specify that the arbitrators shall have no jurisdiction over procedural matters dealing with the abeyance of damage disputes, and we will not impose such a limitation where none exists in the agreement.

See Kardon v. Portare, 466 Pa. 306, 353 A.2d 368 (1976). Id., 358 Pa.Superior Ct. at 73, 516 A.2d at 775. See also Snyder v. Nationwide Mutual Insurance Co., 373 Pa.Super. 294, 541 A.2d 19 (1988) (arbitration provision encompasses not only a determination of the amount of damages but also the initial decision as the whether claimant is entitled to recover underinsurance benefits at all; insureds’ petition to compel arbitration under underinsured motorist provision was not premature even though insureds had pending action against the other driver); Nagle v. Allstate Insurance Co., 358 Pa.Super. 82, 516 A.2d 1191 (1986) (despite the claimant’s apparent inability to recover uninsured motorist benefits due to claimant’s admitted settlement without the consent of the uninsured motorist insurer, the matter must proceed to arbitration pursuant to the claimant’s request).

For all of the foregoing reasons, the order of the trial court is affirmed.

Order affirmed.

      . Robert A. Majors, represented by counsel different from counsel for the Estate of Rose Anderson, has filed a brief with this Court, designating himself as an additional appellee. Although Majors filed pleadings in the trial court similar to those filed by the Estate of Rose Anderson, designed to compel Erie to proceed to arbitration, Majors did not file a motion for judgment on the pleadings. The July 12, 1988, Order of the Court of Common Pleas, which is the subject of this appeal, was entered in response to a motion filed solely by the Estate of Rose Anderson. Consequently, Majors is not properly a party before this Court, and we will not consider his appellate brief.

      . The appellees have emphasized, in their brief to this Court and by way of a motion to strike portions of the Reproduced Record which was prepared and filed by Erie, that Erie has included in the Reproduced Record items which were not a part of the trial court record. One of these items is a copy of an Erie Uninsured/Underinsured Motorist Coverage agreement. R.R. at 171a-172a. Counsel for Erie is admonished that only matters actually of record may properly be placed in the Reproduced Record in an appeal. See Matson v. Housing Authority of Pittsburgh, 326 Pa.Super. 109, 473 A.2d 632 (1984). This principle is firmly settled in appellate practice, and we are unable to comprehend why counsel for Erie has disregarded it. We have confined our review to matters included in the trial court’s record.

      . The order which is the subject of this appeal, namely, the order compelling arbitration, is a final order. See Board of Education v. Philadelphia Federation of Teachers Local, No. 3, 464 Pa. 92, 346 A.2d 35 (1975).


text:
    558 A.2d 891
    Morton A. SHAPIRO and Edie Shapiro, Appellees, v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1989.
    Filed May 25, 1989.

      Dennis Vene ¡dale, Philadelphia, for appellant.
    Lee Albert, Philadelphia, for appellees.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal from an order refusing to vacate an arbitration award entered on an underinsured motorist claim. After careful review, we conclude that arbitration in Philadelphia County was improper and in contravention of the terms of the arbitration agreement which specifically provided for arbitration exclusively in the county in which the insured resided.

On November 22, 1985, Morton Shapiro, a resident of Cherry Hill, New Jersey, was injured in an automobile accident on Route 73, near Interstate 295, in Camden County, New Jersey. The third-party tortfeasor was insured under a policy of automobile insurance having a limit of liability of fifteen thousand ($15,000) dollars. The third party’s carrier paid its policy limits to Shapiro. Shapiro’s vehicle was insured under an automobile policy which had been issued by Keystone Insurance Company (Keystone), through its New Jersey Office. The policy contained under-insured motorist coverage. Claims for such benefits were subject to arbitration according to the following clause of the policy:

ARBITRATION

If we and a covered person do not agree:

1. Whether that person is legally entitled to recover damages under this endorsement; or
2. As to the amount of damages;
either party may make a written demand for arbitration.
In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction____
Unless both parties agree otherwise, arbitration will take place in the county in which the covered person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to:
1. Whether the covered person is legally entitled to recover damages; and
2. The amount of damages.

A dispute arose between Keystone and Shapiro regarding the benefits to which the insured and his wife were entitled under the underinsured motorist coverage. On October 22, 1987, the Shapiros filed a Petition to Compel Appointment of Arbitrators in the Court of Common Pleas of Philadelphia, and caused a copy of the petition to be served on Keystone at its Philadelphia office. On December 17, 1987, the Philadelphia court appointed a panel of three arbitrators. Thereafter, Keystone filed a petition for reconsideration in which it alleged that the parties had agreed by their contract to arbitration only in Camden County, New Jersey. The petition for reconsideration was denied on February 18, 1988, as was a later request by Keystone to stay the arbitration proceedings. The arbitration hearing took place on February 25, 1989, in Philadelphia. Keystone attended for the sole purpose of objecting to holding the hearing in a place other than Camden County, New Jersey. After hearing, in which Keystone did not participate, an award was entered in favor of the claimants in the amount of one hundred four thousand ($104,000) dollars. The Shapiros filed a petition to have the award confirmed, and Keystone filed a petition to have it vacated. The trial court denied the petition to vacate, and confirmed the award in favor of the Shapiros. This appeal followed.

The principles governing our standard of review in this matter were stated in Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, Inc., 328 Pa.Super. 357, 477 A.2d 482 (1984).

In an appeal from a common law arbitration determination, “the appellant must show by clear, precise and indubitable evidence that he was denied a hearing, or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable or unconscionable award____” Harwitz v. Selas Corp. of America, 406 Pa. 539, 542, 178 A.2d 617, 619 (1962). See Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); Smaligo v. Fireman’s Fund Insurance Co., 432 Pa. 133, 247 A.2d 577 (1968); Sudders v. United National Insurance Co., 217 Pa.Superior Ct. 196, 269 A.2d 370 (1970), aff'd, 445 Pa. 599, 284 A.2d 500 (1971). “As to questions of law and fact, however [the arbitrators are] the final judge[s] and [the] award is not subject to disturbance of mistake of either.” Sudders v. United National Insurance Co., supra 217 Pa.Super. at 200, 269 A.2d at 372. “[A] contrary holding would mean that arbitration proceedings instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally.” Westinghouse Air Brake Co. Appeal, 166 Pa.Superior Ct. 91, 97, 70 A.2d 681, 684 (1950).
In an arbitration proceeding, an irregularity refers to the process employed in reaching the result of the arbitration, not to the result itself. Press v. Maryland Casualty Co., 227 Pa.Superior Ct. 537, 540, 324 A.2d 403, 404 (1974). In Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (1973), our Supreme Court noted that:
It is possible to hypothecate [sic] an arbitration award which imports such bad faith, ignorance of the law and indifference to the justice of the result as to cause us to give content to the phrase “other irregularity” since it is the most definitionally elastic of the grounds for vacatur.
In most cases where an irregularity is alleged, our appellate courts have denied relief. See, e.g., Runewicz v. Keystone Insurance Co., supra (appellant alleged arbitrator’s award contradicted insurance policy language; no irregularity even though award patently at odds with contract); Hain v. Keystone Insurance Co., 230 Pa.Superior Ct. 456, 459-60, 326 A.2d 526, 527 (1974) (“while the damages granted in this case may have been at variance with the language of [the insurance policy], we do not believe that the award meets the Fioravanti criteria for vacating an arbitration decision.”). Compare Paugh v. Nationwide Insurance Co., 278 Pa.Superior Ct. 108, 420 A.2d 452 (1980) (irregularity found when plaintiffs kept pertinent testimony from arbitrators, therefore precluding arbitrators from fashioning award limiting plaintiffs’ possible double recovery).
Id. 328 Pa.Super. at 361-363, 477 A.2d at 485. See also: Elkins & Co. v. Suplee, 371 Pa.Super. 570, 576, 538 A.2d 883, 886 (1988); Parking Unlimited Inc. v. Monsour Medical Foundation, 299 Pa.Super. 289, 292-293, 445 A.2d 758, 760-761 (1982).

An arbitration award can be challenged if the arbitrators, in conducting hearings and making an award, exceed the power and authority given to them. This power and authority of the arbitrators is wholly dependent upon the terms of the agreement of the parties, who may place restrictions on their submission to arbitration. The arbitrators cannot validly determine a dispute if they violate or act inconsistently with the terms of the submission. Sley System Garages v. Transport Workers Union of America, AFL-CIO, Local 700, 406 Pa. 370, 374, 178 A.2d 560, 561 (1962); Giant Markets, Inc. v. Sigma Marketing Systems, Inc., 313 Pa.Super. 115, 122, 459 A.2d 765, 768 (1983). See also: Gaslin, Inc. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 139-140, 482 A.2d 1117, 1121 (1984) (“although the arbitrator is the final judge of law and fact, his power has not been extended to the degree that he may determine his own jurisdiction, that is, whether the arbitration tribunal has the requisite power to hear the particular case brought before it.”). In contrast, the fact that an arbitration clause directs a specific venue generally has no effect on the jurisdiction of a court of common pleas of a different county to appoint arbitrators, compel arbitration, or confirm an award. See: Hade v. Nationwide Ins. Co., 349 Pa.Super. 541, 503 A.2d 980 (1986), aff'd, 519 Pa. 227, 546 A.2d 615 (1988).

Nevertheless, “when an arbitration clause calls for arbitration in one particular county, parties to the contract are limited to that single forum even though the general venue rule, Pa.R.Civ.P. 2179, might allow for arbitration in any of several counties.” Id. 349 Pa.Super. at 544, 503 A.2d at 982. This limitation is consistent with the general rule that an arbitration agreement must be given effect according to its terms. See: Kuzmen v. Kamien, 139 Pa.Super. 538, 12 A.2d 471 (1940). It is only where the place of arbitration is undetermined by the contract that the site of the arbitration proceedings becomes a mere procedural matter which may be left to the discretion of the arbitrators. See: Friedman v. Friedman, 277 Pa.Super. 428, 419 A.2d 1221 (1980).

In the instant case, the Court of Common Pleas of Philadelphia County had jurisdiction of appellant’s person and could compel it to arbitrate Shapiro’s claim. The court could enforce arbitration, however, only in accordance with the terms of the parties’ agreement. Here, the parties had agreed to arbitrate only in Camden County, New Jersey, where the claimants resided and where, also, the policy had been sold and the accident had occurred. Arbitration in Philadelphia was in violation of the agreement to arbitrate. When the trial court declined to enforce the parties agreement and confirmed an award of arbitration held in violation of the agreement to arbitrate, it erred.

Appellees’ contention that Keystone waived its objection to arbitration in Philadelphia is lacking in merit. Appellant has always objected to arbitration proceedings in Philadelphia. The fact that it did not appear to object to the court’s appointment of arbitrators, which objection, as we have observed, would have been unavailing, did not prevent its insistence that arbitration take place in accordance with the agreement.

It follows that the award of the arbitrators must be vacated, and the matter must be remanded so that arbitration can proceed in accordance with the parties’ agreement.

Reversed and remanded for further proceedings in accordance with the foregoing opinion. Jurisdiction is not retained.

      . The arbitrators awarded Morton Shapiro $2,500 for medical expenses, $16,500 for lost wages, and $80,000 compensation for pain and suffering. They also awarded to Myra (Edie) Shapiro the sum of $5,000.

      . Overruled, on other grounds in Ostroff v. Keystone Ins. Co., 357 Pa.Super. 109, 123, 515 A.2d 584, 591 (1986) (en banc).

      . It is not highly unusual for the place of arbitration to vary from the place where arbitrators are appointed. See, e.g.: Hade v. Nationwide Ins. Co., supra.


author:
DEL SOLE, Judge:
      ROWLEY, Judge,

text:
    558 A.2d 895
    Dennis PODRAT and Mary Lou Podrat, his Wife, Appellant, v. CODMAN-SHURTLEFF, INC., and Presbyterian University Hospital, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1988.
    Decided April 7, 1989.
    Reargument Denied June 5, 1989.

      James A. Villanova, Pittsburgh, for appellant.
    Robert J. Marino, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Today we are asked to consider whether a hospital may be liable to a patient under a theory of strict liability for injury which results when a medical instrument breaks during surgery. Since we conclude that the hospital was not in the business of selling or supplying the instrument in question, but was providing professional services to Appellant, we decline to find the hospital strictly liable.

Appellant, Dennis Podrat, underwent back surgery at Presbyterian University Hospital, (the Hospital) for a herniated lumbar disc. During the course of this surgery, the tip of a pituitary forcep being used by the attending physician broke off and lodged within the disc space. The broken tip of the forcep was later removed and the surgical instrument was discarded. Mr. Podrat and his wife filed suit against the Hospital and Codman-Shurtleff, Inc., the company they alleged manufactured the instrument. Appellants’ claim was based upon theories of negligence, strict liability and breach of warranty. At the close of Appellants’ case the trial court granted a nonsuit as to both defendants. It found that Appellants failed to present any evidence that the instrument in question was manufactured by Codman-Shurtleff, Inc. It further rejected the sole claim presented to the trial court in Appellants’ post-trial brief, that the hospital should be held strictly liable as a supplier of medical instruments.

The rule of strict liability found in § 402A of the Restatement of Torts (2d) provides that anyone who sells a defective product unreasonably dangerous to the user or consumer is liable for injury to such person if the seller is engaged in the business of selling such products, and the product reaches the user without a substantial change in its condition. This rule was adopted in Pennsylvania by our Supreme Court in the case of Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The appellate courts of this Commonwealth have only once considered the application of strict liability to a hospital under circumstances similar to those found in the instant case. In Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 387 A.2d 480 (1978), the court was asked to review the applicability of strict liability to a hospital when the guard of a drill slipped causing the drill to penetrate further than anticipated during surgery to a vertebrae. In a per curiam Opinion it was acknowledged that strict liability does not turn on the technical existence of a sale and it would be a “reasonable extrapolation from the already expanding interpretation of 402A” to apply strict liability. Id., 255 Pa.Superior Ct. at 401, 387 A.2d at 490. However, this Opinion did not command the vote of a majority of the judges. Six judges participated in the decision of the case. Two judges concurred in the result but would not hold the hospital liable on strict liability. Another two judges dissented and found error in charging the jury that the hospital could be liable under § 402A. A fifth judge also dissented as to the liability of the hospital and listed as a reason the erroneous instruction on strict liability when strict liability was not pleaded. Since the opinion in support of holding the hospital strictly liable was not joined by a majority of the participating judges it is not precedential. Askew by Askew v. Zeller, 361 Pa.Super. 35, 521 A.2d 459 (1987). The Grubb decision, if anything, reveals that a majority of the court believed that the hospital should not be found strictly liable.

Fortunately other jurisdictions have been asked to examine this issue and their decisions provide us with guidance. In Silverhart v. Mount Zion Hospital, 20 Cal.App.3d 1022, 98 Cal.Rptr. 187 (1971), the court considered the applicability of strict liability to a situation where a surgical needle broke during an operation and became permanently lodged in the patient’s body. As in Grubb, the court remarked upon the expansion of the doctrine to those aside from manufacturers who participate in the chain of distribution. In those cases the Silverhart court observed a common element; the defendants had each played a vital part in the overall production or marketing of the product. Although the plaintiff sought to establish that strict liability should apply to the hospital as a supplier of the surgical needle, the court rejected this characterization and instead found that the hospital was a provider of professional medical services, not a supplier of products.

In reaching it’s decision the Silverhart court cited a New Jersey case where strict liability was not applied to a dentist whose drill broke while being used on a patient. The following quotation was cited:

Of ... meaningful significance is a recognition that the essence of the transaction between the retail seller and the consumer relates to the article sold. The seller is in the business of supplying the product to the consumer. It is that, and that alone, for which he is paid. A dentist or physician offers, and is paid for his professional services and skill. That is the essence of the relationship between him and his patient.

Id. at 1026-7, 98 Cal.Rptr. at 190. Citing Magrine v. Krasnica, 94 N.J.Super. 228, 235, 227 A.2d 539 (1967) affirmed 100 N.J.Super. 223, 241 A.2d 637 and 53 N.J. 259, 250 A.2d 129. Persuaded by this rationale, the Silverhart court found that it applied with equal force to a hospital. It noted that a hospital is not ordinarily engaged in the business of selling any of the products or equipment it uses in providing services. It found that the needle was part of the surgical equipment furnished incidental to a medical service and since the hospital was not a seller engaged in the business of selling such needles it could not be held strictly liable. An exception to this principle was made. The court noted that where a hospital is engaged in activities not integrally related to its primary function of providing medical services, such as the situation where the hospital operates a gift shop which sells a defective product, strict liability may apply. Id. 20 Cal.App.3d at 1028, 98 Cal.Rptr. at 187.

The decision in Silverhart was later cited in Hector v. Cedars-Sinai Medical Center, 180 Cal.App.3d 493, 502, 225 Cal.Rptr. 595. Therein the court found that the hospital was not a seller and could not be held strictly liable for injuries caused by defects in a pacemaker. The court noted that the patient does not enter the hospital merely to purchase a pacemaker but to obtain a course of treatment which includes implantation of a pacemaker. Finding that the hospital actions of supplying the patient with a pacemaker is integrally related to the hospital’s primary function of providing medical services, the court ruled that the hospital could not be subject to strict liability for a defective product. This decision was reached despite the fact the hospital charged the patient a percentage surcharge on the pacemaker. The court stated: “The determinative question is not how much the hospital charges for what it does, but what the hospital does.” Id. at 506, 225 Cal.Rptr. at 600.

It was found that strict liability could be applied to a hospital where a patient’s hospital gown ignited when he dropped a lighted match in Thomas v. St. Joseph Hospital, Tex.Civ.App., 618 S.W.2d 791 (1981). The court ruled that strict liability would not apply where there is no complaint that the product, per se, was defective apart from the professional services connected with its use, or when the professional services could not have been rendered without using the product. The court found that the hospital gown was unrelated to the essential professional relationship and was not intimately and inseparably connected with the professional services rendered. It determined that if there was any evidence from which the jury reasonable could have concluded that the hospital gown was unreasonably dangerous, the jury should be afforded the opportunity to consider the hospital’s liability under a theory of strict liability. See also Nevauex v. Park Place Hospital, Inc., Tex.App., 656 S.W.2d 923 (1983) (holding strict liability will not attach to a hospital when a patient is injured by radiation therapy even if it is a product because it is “intimately and inseparably” connected with the professional services offered).

Turning to the instant case, we find that Appellants seek to recover under the same arguments presented to the courts of our sister states. Appellants urge us to rule that the hospital may be found strictly liable for the damage caused by the broken instrument since it was a supplier of a product. Appellants liken the instant case to those where a rental store leases a product to an individual, (Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977)) or where a beautician applies a defective solution of a customer’s hair (Restatement (Second) of Torts § 402A comment 1). This we refuse to do. We are persuaded by the rationale developed in the caselaw of other jurisdictions. The hospital was not acting as a lessor who is in the business of providing its customers with products nor was it acting like a beautician who provides a permanent wave solution to a customer. Each of these individuals are ordinarily engaged in the business of selling a product which may be used in providing a service. The hospital, on the other hand, was providing a service to a patient. Incidental to this service, the treatment of the patient, was the use of an instrument. The surgical forceps were merely employed by the hospital in performing its actual function of providing medical services. The hospital’s relationship with the patient did not relate essentially to the use of this piece of equipment, but to the professional service it provided. Silverhart v. Mount Zion Hospital, supra 20 Cal.App.3d at 1027, 98 Cal.Rptr. at 187.

In support of their position Appellants rely upon a claim that the hospital charged the patient for the use of this instrument. First we note the the record does not support this claim. Although Mr. Podrat testified that he received a bill for “surgery and medical supplies,” (N.T. 3/11/87), there is no evidence that a charge was made for the use of this particular piece of equipment. Further, even if a charge was made, the outcome of this case would not be affected. As stated in Hector v. Cedars-Sinai Medical Center, supra 180 Cal.App.3d at 506, 225 Cal.Rptr. at 600, a charge in and of itself does not place the hospital in the business of selling. We must concentrate not on how the hospital charges, or whether in fact, it does charge, but rather what the hospital does. Id. See also Francioni v. Gibsonia Truck Corporation, 472 Pa. 362, 369-70 n. 3, 372 A.2d 736 (1977) (although strict liability is applied to conventional lease situation it is not applicable where the lessor is not marketing the product but merely financing its acquisition).

In sum, we conclude that the trial court did not err in finding that the hospital could not be liable under a theory of strict liability because the hospital was not in the business of selling this instrument, its use was only incidental to the hospital’s primary function of providing medical services and the medical services could not have been rendered without the use of this product. We do not consider Appellant’s second claim that the hospital should be found liable under the negligence theory of res ipsa loquitor. This issue was not argued before the trial court or included in Appellant’s post-trial brief and the trial court did not address the merits of this claim. Commonwealth v. Holzer, 480 Pa. 93, 101, 389 A.2d 101 (1978); Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386 (1985).

Order affirmed.

ROWLEY, J., concurs.

ROWLEY, Judge,

concurring:

I agree with the majority’s decision to affirm the trial court’s order refusing to remove the non-suit, and join in all of the majority’s opinion except for the paragraph on page 897 of the slip opinion discussing the liability of a beautician under § 402A of the Restatement of Torts, Second, for non-negligently applying a defective solution to a customer’s hair.

The majority, as does appellant, assumes without citation to any authority, that a beautician who applies a defective wave solution to a customer’s hair in the beauty shop is a “seller” of the defective product and is liable under § 402A for selling a “defective product.” My research has revealed no cases which support such a conclusion. Moreover, comment 1 to § 402A which discusses the application of defective wave treatments to a person’s hair in a beauty salon does not provide authority for the conclusion that a beautician is a “seller” under § 402A and is irrelevant to the inquiry in the present case.

Section 402A by its own terms addresses the issue of the liability of one who “sells” a defective product to a “consumer.” Comment 1, however, does not purport to clarify who is a “seller,” but only to identify who may be a “user or consumer”: “consumption includes all ultimate uses for which the product is intended, and the customer in a beauty shop to whose hair a permanent wave solution is applied by the shop is a consumer.” § 402A Restatement of Torts, Second, comment 1 (emphasis added). Although the comment suggests that the person to whose hair the wave solution is applied may sue under § 402A, the comment does not suggest from whom the customer may recover for the “defective product.”

The dispositive issue in the present case is not whether the appellant is a consumer, but whether the hospital is a “seller” of the defective product. Since comment 1 sheds no light on this pertinent question, in my opinion it is inapplicable here.