author:
KELLY, Judge:
      DEL SOLE, Judge,

text:
    563 A.2d 511
    COMMONWEALTH of Pennsylvania v. Admiral PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1989.
    Filed Aug. 17, 1989.

      Bernard Turner, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant's sole contention on appeal is that the trial court erred in dismissing his Post Conviction Relief Act (PCRA) petition which alleged that the Bureau of Corrections had erred in the calculation of his credit for time served. We agree that a PCRA petition is not the proper vehicle for appellant to raise this challenge, and affirm the order of the trial court.

Facts and Procedural History

On October 8, 1975, appellant was convicted of rape and burglary. He was sentenced to a term of imprisonment of eighteen to thirty-six months on the rape conviction and a consecutive five year term of probation on the burglary charge. On February 1, 1981, while still on probation, appellant was arrested and charged with murder and related offenses arising from the brutal beating death of a 78-year-old woman in her Philadelphia home. On February 2, 1982, a jury trial resulted in appellant’s conviction of third degree murder, robbery and burglary. Before sentencing on those convictions, appellant was determined to have violated his probation on his 1975 burglary conviction, probation was revoked, and he was sentenced to a five to ten year term of imprisonment. He was subsequently sentenced to an aggregate term of fifteen to thirty years imprisonment on the third degree murder, robbery, and burglary convictions. His conviction and the revocation of probation were separately appealed to this Court and separately affirmed.

In this appeal, appellant alleges that in November of 1985, he sent an inmate’s request slip to the Chief Record’s Officer informing him of an alleged miscalculation of appellant’s sentence and received the following reply:

If you feel there is credit coming to the detainer sentences, you will have to get it from the Court and have the Court send it to me. I cannot go by your copy of Court papers. The record will stand unless the Court notifies me differently.

(Appellant’s Pro Se Answer to Counsel’s Petition to Withdraw, at 1). Appellant asserts further that a praecipe to the clerk of the court of common pleas, directing the clerk to correct the alleged miscalculation, was ignored. Id.

Appellant then filed, on June 21, 1988, a PCRA petition seeking correction of the alleged miscalculation. The trial court dismissed the petition without appointing counsel and without a hearing; but, counsel was appointed to represent appellant on appeal. Appellate counsel has filed a petition to withdraw and an Anders brief in which he summarizes the factual and procedural history of the case, indicates the absence of any nonfrivolous issues to raise, and asserts that the sole issue which appellant seeks to raise is not cognizable via a PCRA proceeding. Appellant has responded with a pro se answer to counsel’s petition in which he asserts that he has been placed in a Catch-22 situation with both the trial court and the Bureau of Corrections informing him that he must seek redress from the other, and that his claim for time served is cognizable pursuant to our prior decision in Commonwealth v. Walker, 286 Pa.Super. 239, 428 A.2d 661 (1981). We cannot agree.

I. Challenge to the Bureau of Corrections’ Computations

Appellant contends that the Bureau of Corrections records are in error. If the alleged error is thought to be the result of an erroneous computation of sentence by the Bureau of Corrections, then the appropriate vehicle for redress would be an original action in the Commonwealth Court challenging the Bureau’s computation. See Wilson v. Commonwealth, Bureau of Correction, 85 Pa.Cmwlth. 32, 33-34, 480 A.2d 392, 393 (1984). If, on the other hand, the alleged error is thought to be attributable to ambiguity in the sentence imposed by the trial court, then a writ of habeas corpus ad subjiciendum lies to the trial court for clarification and/or correction of the sentence imposed. See Commonwealth v. Isabell, 503 Pa. 2, 10, 467 A.2d 1287, 1291 (1983).

It was only when the petitioner challenges the legality of a trial court’s alleged failure to award credit for time served as required by law in imposing sentence, that a challenge to the sentence was deemed cognizable as a due process claim in PCRA proceedings. See Commonwealth v. Walker, supra. A challenge to the Bureau of Correction’s computations or construction of the terms of . sentences imposed is neither a direct nor even a collateral attack on the sentences imposed; and so, such claims were not deemed cognizable in PCHA proceedings. See Commonwealth v. Isabell, supra, 467 A.2d at 1291. Because appellant has not challenged the trial courts’ sentences, but has challenged the Bureau of Correction’s computations or construction of the sentences, it is unnecessary to determine whether the analysis in Commonwealth v. Walker, supra, applies to actions brought under the new PCRA. It is enough, for the present, to note that a challenge to a Bureau of Corrections’ computation or construction of a sentence (or sentences) imposed may not be brought by a PCRA petition. See 42 Pa.C.S.A- §§ 9543(a), 9545(b).

II. Appointment of Counsel in PCRA Proceedings

Under Pa.R.Crim.P. 1503, as currently in effect, every indigent petitioner is entitled to have counsel appointed to represent them in PCRA proceedings, unless the same issue was finally determined against the petitioner in a previous counselled proceeding. See Pa.R.Crim.P. 1504. “The point in time at which a trial court may determine that a PCHA petitioner’s claims are frivolous or meritless is after the petitioner has been afforded a full, fair, and counselled opportunity to present those claims.” Commonwealth v. Harris, 381 Pa.Super. 206, 214-15, 553 A.2d 428, 433 (1989) (emphasis in original, citing cases). There is no exception to the rule requiring appointment of counsel for situations when the pro se petition fails to state a claim cognizable in PCRA proceedings.

This construction of the current rule is supported by the Supreme Court’s more plainly expressed intent in the new rules promulgated February 1, 1989, which take effect July 1, 1989. Under the new rules the trial court is required to indicate the nature of any defects in the original pro se petition, and must provide counsel appointed to assist the petitioner with a [reasonable] period of time in which to file a written amended petition curing the defects. Pa.R. Crim.P. 1505(b-d) (adopted 2/1/89, effective 7/1/89). Thus, under the new rules, defects in the original pro se petition would not warrant dismissal without appointment of counsel. Rather, it is only on second and subsequent PCRA petitions that the new rules render the appointment of counsel discretionary with the trial court. Pa.R.Crim.P. 1504(b & c) (adopted 2/1/89, effective 7/1/89). Hence, we conclude that the trial court erred in failing to appoint counsel to represent appellant prior to dismissing appellant’s first pro se PCRA petition.

However, following the initial erroneous dismissal of the PCRA petition without appointment of counsel, present counsel was appointed. Counsel has filed a petition which asserts that he has reviewed the record and finds no non-frivolous issues which could have been raised in an amended petition. Counsel notes further that the sole issue which appellant seeks to raise is not properly cognizable in a PCRA proceeding. Finally, counsel informed appellant of his conclusions in an “Anders Brief” sent to appellant by counsel, and also informed appellant in the accompanying letter that appellant could hire counsel, seek appointment of new counsel, or present argument in support of his contention pro se. Appellant then filed a pro se answer in opposition to appellate counsel’s motion to withdraw, which asserted that a cognizable claim had been asserted in his pro se PCRA petition. Thus, despite the trial court’s error in failing to appoint counsel to represent appellant prior to summarily denying the petition, counsel appointed to represent appellant on appeal has provided every protection which PCRA counsel at the initial stage could have provided. Cf. Commonwealth v. Turner, supra at n. 3.

The United States Supreme Court has declared that there is no federal constitutional right to counsel in collateral post conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). The new PCRA contains no statutory grant of a right to counsel. Thus, the right to counsel in PCRA proceedings as set forth in present Pa.R.Crim.P. 1503 and in Pa.R.Crim.P. 1504 (effective 7/1/89), is a creation of our Supreme Court not founded on federal constitutional or state legislative mandate.

Rather, the allowance of counsel to petitioners for post-conviction relief is based solely upon procedural rule adopted by our Supreme Court pursuant to Pa. Const. Article Y, section 10, as a matter of administrative convenience. See Court Rules, 552 A.2d at XCVI (1989) (“IT IS ORDERED pursuant to Article V, Section 10 of the Constitution of Pennsylvania ... ”)• There was no suggestion in the order promulgating new Pa.R.Crim.P. 1504, or in Commonwealth v. Turner, supra, that there is any state constitutional basis for a right to counsel in collateral post-conviction relief proceedings, i.e. that Pa. Const.Art. 1, sect. 9 provides a greater right to counsel than U.S. ConstAmend. 6, as construed in Pennsylvania v. Finley, supra. Consequently, we see no reason why procedural defects by either a withdrawing attorney or the court granting withdrawal may not be dismissed as “not substantial” or “not prejudicial” in appropriate cases. See Commonwealth v. Harris, supra. Under the circumstances of this case, we see no reason to remand for the pointless and formalistic repetition of PCRA proceedings, when the outcome would nonetheless be a foregone conclusion. Cf. Id.

Conclusion

Counsel’s petition to withdraw as counsel is granted. The order of the trial court is affirmed without prejudice to appellant’s right to pursue his challenge to the Bureau of Corrections’ records by an original action in the Commonwealth Court, or by a writ of habeas corpus ad subjiciendum in the trial court.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring.

I concur in the result reached by the Majority in holding that the Post Conviction Relief Act is not the appropriate method of challenging the Bureau of Corrections’ calculation of the defendant’s credit for time served. Also, I join in permitting counsel to withdraw his appearance on behalf of the defendant.

I cannot join in the Majority’s Opinion with regard to the discussion of the appropriate method for appointment of counsel in PCRA proceedings and for permitting counsel to withdraw since those issues are not before this Court as framed in the Majority Opinion.

      . See PCRA, 42 Pa.C.S.A. § 9541 et seq., superceding PCHA, 42 Pa.C. S.A. § 9541 et seq. The new PCRA applies to all petitions filed on or after April 13, 1988. The instant petition was filed June 21, 1988.

      . It should be noted that there is a reason for appointing counsel even when the initial pro se PCRA petition raises noncognizable or frivolous claims. If such petitions are dismissed without appointment of counsel or a hearing, then subsequent petitions would have to still be treated as first "counselled” petitions, and the process could be repeated with pro se petitions filed ad nauseum, clogging up the system, and delaying review of petitions with arguable merit. Cf. Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980) (the second PCHA petition should have been treated as a first counselled PCHA petition where appointed counsel for the first PCHA petition neither acted as advocate nor sought formal withdrawal on frivolity grounds). If, however, counsel were appointed when a first pro se PCRA petition is filed, counsel then would be able to assist the petitioner to separate the grain from the chaff and ensure the presentation of all arguable claims in a single petition, in a manner conducive to effective appellate review. See Commonwealth v. Harris, supra. Though prisoners may thereafter persist in filing additional repetitive pro se PCRA petitions, the fact of the prior counselled PCRA proceedings should enable trial courts to exercise their authority under new Pa.R.Crim.P. 1504(b), 1507, and 1508 to dispose of such petitions with confidence and dispatch. Likewise, the fact of a prior counselled PCRA proceeding should enable the Commonwealth to exercise its discretion under new Pa.R.Crim.P. 1506 not to respond to PCRA petitions, thus freeing already overburdened prosecutorial resources for other more productive service. In this way, it is at least hoped, justice and efficiency may both be served to the benefit of all.

      . But see Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 929 (1988) (when appointed counsel is properly permitted to withdraw on grounds of frivolousness, the petitioner may proceed "pro se, or by privately retained counsel, or not at all;” a request for new court-appointed counsel would no longer appear to be available in such cases).


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    563 A.2d 515
    COMMONWEALTH of Pennsylvania v. Kerry CAMBRIDGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Aug. 29, 1989.

      Douglas M. Johnson, Asst. Public Defender, Souderton, for appellant.
    Thomas E. Waters, Jr., Dist. Atty., Blue Bell, for Com., appellee.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered April 8, 1988 in the Court of Common Pleas of Montgomery County, Criminal Division. For the reasons enumerated below, we affirm.

The events underlying the instant appeal occurred August 10, 1986, when two men robbed two other men at a SEPTA bus stop located in Montgomery County. Appellant, Kerry Cambridge, along with his neighbor and frequent associate, Charles Haines, were subsequently arrested and tried for the robberies. A jury found appellant guilty of robbery, criminal conspiracy, and possession of an instrument of crime. Post-verdict motions were timely filed and duly denied after argument.

Appellant was then sentenced to serve between five (5) and ten (10) years incarceration for the robbery. The lower court imposed a five (5) year term of probation on the conviction for criminal conspiracy which was to run consecutively to the term of incarceration. Appellant also received a sentence of two (2) years probation for possessing an instrument of crime which was to run concurrently with the probation imposed for conspiracy. Appellant next filed the instant timely appeal in which he raises two questions for our consideration: (1) whether the lower court erred by permitting a hypothetical question to be asked and answered; and (2) whether the lower court erred by admitting into evidence a photographic array consisting of eight police “mug shots” which included a photograph of appellant.

Appellant’s first contention is that the following exchange between the prosecutor and one of the victims of the robbery was improperly admitted into evidence:

BY THE PROSECUTOR:

Q. Now, Mr. Green, I want to draw your attention back, again, to the incident in the early morning hours of August 10th.
A. Okay.
Q. Mr. Green, based only on what you saw that morning — for the moment, set aside the pictures — only on what you saw that morning, are you able to tell us whether or not, for sure, the person who robbed you that night is in the courtroom now?
A. Yes.

(N.T. 5/20/87 at 133-134.) At trial, defense counsel objected to this line of questioning because, during the police investigation of the robbery, the witness had been exposed to a photographic array which included appellant’s picture. Counsel claimed that as a result, the witness could not possibly be capable of separating the source of his identification. Appellant’s claim on appeal, however, is somewhat different. Appellant maintains that this was an improper hypothetical question posed to an expert witness involving facts not in evidence. We disagree with appellant’s interpretation of the Commonwealth’s question.

Our scope of review on evidentiary questions is narrow as we are controlled by the discretion of the trial court and will reverse only for clear abuse of that discretion. Commonwealth v. Cargo, 498 Pa. 5, 15, 444 A.2d 639, 644 (1982); Commonwealth v. Scott, 469 Pa. 258, 270, 365 A.2d 140, 146 (1976). Evidence is generally admissible if it is relevant and competent. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980). Evidence is relevant if it tends to establish a material fact in a criminal prosecution or tends to make a fact at issue more or less possible. Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980). Relevant evidence is admissible if its probative value outweighs its prejudicial impact. Commonwealth v. Shain, 324 Pa.Super. 456, 462-463, 471 A.2d 1246, 1249 (1984).

Our inspection of the record indicates that the reliability of Mr. Green’s identification of appellant was a major element of the defense strategy pursued by appellant at trial. Thus, the question of whether Mr. Green was able to identify appellant as a result of the incident itself, or only from having viewed a photographic array, was relevant and probative to the defense strategy. Mr. Green was an eyewitness to a robbery, and was himself a victim; he was not in fact testifying as an expert witness. Rather he was testifying as the only competent witness on the subject of the source of his identification of appellant as the assailant who robbed him. We find no clear abuse of discretion in the trial court’s decision to admit this evidence.

Appellant next contends that the trial court erred by admitting into evidence a photographic array consisting of eight police “mugshots” which included a photograph of appellant. The gravamen of appellant’s complaint is that use of “mugshots” in the photographic array stripped him of the presumption of innocence by conveying the impression that appellant engaged in prior criminal activity. We note initially that in Pennsylvania there is no per se rule against the use of “mugshots” as a method of identification. Commonwealth v. Brown, 511 Pa. 155, 160, 512 A.2d 596, 598 (1986) (concurring opinion filed by Hutchinson, J.; Larsen, J. concurred in the result; Flaherty, J. filed a dissenting opinion in which Nix, C.J. and Zappala, J., joined); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). The use of any photograph during an identification procedure must be analyzed under the facts and circumstances of each particular case. Commonwealth v. Brown, supra; Commonwealth v. Allen, supra. In order to determine if an accused has been unfairly prejudiced through the use of photographs, the appropriate question to ask is whether the jury could reasonably infer from the facts presented that an accused had engaged in prior criminal activity. Commonwealth v. Allen, supra, 448 Pa. at 181, 292 A.2d at 375.

Our inspection of the record has not disclosed, nor has appellant indicated, any instance in which the photographs in question were referred to as “mugshots” within the hearing of the jury. The record reveals that the constituent elements of the array were consistently described as “photographs.” Further, the photographic array in question was never shown to the jury. Finally, the trial court issued the following cautionary instruction to the jury:

Ladies and gentlemen, right before we took this brief recess, you had heard testimony with respect to photographs that were shown to, I believe, if I recall the testimony, it was to both of the eyewitnesses- — although, it’s up to you to recall the testimony — and there is an instruction I want to give you with respect to these photographs.
Merely because one’s photograph is in the possession of the police, does not prove or even suggest a prior conviction or a previous conviction by that person, or that that particular person has been charged with a crime previously, or that that particular person has even been involved in criminal activity. The fact that the police have photographs in their possession, can be equally consistent with innocence. The reason the police had the [appellant’s] photo in this case is not known. It has no bearing on the issues before you, and you must not concern yourselves with that reason, whatever it was.

(N.T. 5/21/87 at 221.) Under these circumstances, we see no basis on which the jury could have inferred prior criminal activity on the part of appellant. Thus, we see no indication that the presumption of innocence in favor of appellant was violated. Finding no clear abuse of discretion on the part of the trial court in admitting this evidence, we affirm on this issue.

Judgement of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 903.

      . Id. § 907.

      . Contrary to appellant’s implication, Justice Hutchinson’s concurring opinion in Commonwealth v. Brown did not disagree with Justice McDermott’s opinion announcing the judgment of the court on the issue of whether there is a per se rule excluding "mugshots” from use in identifying an accused. Nor did Justice Hutchinson contend that the use of photographs during an identification procedure should not be analyzed under the facts of each particular case.


text:
    563 A. 2d 518
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert McGINLEY.
    Superior Court of Pennsylvania.
    Submitted June 5, 1989.
    Filed Aug. 29, 1989.

      Joseph Giebus, Asst. Dist. Atty., Wilkes Barre, for Com., appellant.
    Harry P. Mattern, Wilkes Barre, for appellee.
    Before BROSKY, BECK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the Court of Common Pleas of Luzerne County denying appellant’s petition for writ of certiorari pursuant to 42 Pa.C.S.A. § 934. We reverse.

On June 12, 1988, appellee was charged with the summary offense of patronizing prostitutes. A hearing on the charge was scheduled for June 27, 1988. On that date, however, a detective from the police department of the city of Wilkes-Barre, which had filed the charge following a police “sting” operation, withdrew the charge against appellee. The district justice denied appellee’s objection to the withdrawal of the charge, and no hearing was held.

On July 19, 1988, the police department filed two new summary offense citations against appellee. One of the new citations charged appellee with the same offense that he was originally charged with, i.e., patronizing prostitutes, 18 Pa.C.S.A. § 5902(a). The other new citation charged appellant with an additional offense: criminal solicitation. At the evidentiary hearing on these charges, appellee moved for dismissal of the citations. Following the hearing, on September 21,1988, the district justice dismissed the citations on the basis that they had not been properly issued by the Commonwealth.

Appellant [the Commonwealth] then filed a petition with the lower court for a writ of certiorari, which the lower court denied. The instant timely appeal followed.

On appeal, appellant contends that the lower court erred in finding that the withdrawal of the original charge and the filing of new citations resulted in actual prejudice to appellee under Pa.R.Crim.P., Rule 90, 42 Pa.C.S.A. Before addressing appellant’s contention, we note first, as did the lower court, that the issuance of a writ of certiorari is within the discretion of the court of common pleas in its reviewing capacity. Commonwealth v. Cook, 226 Pa.Super. 273, 276, 308 A.2d 151, 153 (1973). In addition, the appropriate method for seeking review of a district justice’s dismissal of a summary charge on procedural grounds is by writ of certiorari to the court of common pleas. Commonwealth v. Reese, 364 Pa.Super. 553, 528 A.2d 647 (1987).

The lower court in the instant case denied appellant's petition for certiorari on the basis that the district justice was correct in dismissing the citations. The court found that there was sufficient evidence of record to demonstrate that appellant had not complied with the requirements of Pa.R.Crim.P., Rule 60, 42 Pa.C.S.A., in filing the citations with the district justice. Further, the lower court determined that the defect in procedure was prejudicial to appellee, thus permitting the district justice to dismiss under Rule 90, supra.

On appeal, the Commonwealth contends that the prejudice which the lower court found to have resulted from a defect in procedure under the summary rules was not the type of prejudice intended by Rule 90. Specifically, the lower court found that appellee had suffered actual prejudice as a result of having to appear twice at the office of the district justice for hearings, as well as having to secure legal services for the two hearings. Additionally, the lower court found prejudice in the fact that one of the new citations was for the identical charge as the previous one, while the remaining citation was for a new and separate charge requiring different proof and additional time and resources expended in defense of the charge. For the reasons which follow, we agree with appellant and reverse.

The rules governing procedure in summary criminal cases permit criminal proceedings in such cases to be instituted by one of the following methods: (a) issuing a citation to the defendant; (b) filing a citation; (c) filing a complaint; or (d) arresting without a warrant when arrest is specifically authorized by law. Pa.R.Crim.P., Rule 51, 42 Pa.C.S.A. The favored procedure is that described in Rule 51(a), issuance of a citation to the defendant, because the rule procedures “are generally designed to favor the least intrusive means of instituting a summary proceeding.” Pa.R. Crim.P., Committee Introduction to Chapter 50, Procedure in Summary Cases, 42 Pa.C.S.A.

In certain instances, however, summary criminal proceedings may be instituted by filing a citation with the proper authority. Pa.R.Crim.P., Rules 51(b) and 60, 42 Pa.C.S.A. Specifically, Rule 60 of the summary rules provides:

When it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges against the defendant resulting from the same incident, a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority.

Pa.R.Crim.P., Rule 60, 42 Pa.C.S.A.

A pending citation may be withdrawn. Comment, Pa.R.Crim.P., Rule 83, 42 Pa.C.S.A. The summary rules also provide that a case cannot be dismissed because of defects in a citation or the procedures under which it was filed unless such defect is prejudicial to the defendant. Pa.R.Crim.P., Rule 90, 42 Pa.C.S.A. “As a condition to relief regardless of whether the defect is in form, content, or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant.” Comment, id.

In the case sub judice, the original citation was issued to appellee within three hours of the alleged offense in compliance with Rule 51(a). This citation was later withdrawn. Subsequently, thirty-seven days after the original citation was issued, two new citations were filed with the district magistrate. The lower court was of the opinion that the Commonwealth’s filing of these two citations corn stituted a defective procedure under Rule 60. In so holding, the court cited the comment to Rule 60 which provides in pertinent part:

When determining whether the filing of a citation was the correct procedure under the rules, the courts have considered whether there was a reasonable basis for filing, whether there were compelling reasons to prevent issuing the citation, and whether the defendant was prejudiced by the filing----
When evidence is discovered after the issuance of a citation which gives rise to additional charges against the defendant resulting from the same incident, the police officer must file with the issuing authority an additional citation alleging such additional summary offenses, or a complaint when the additional charges include a misdemeanor or felony____

Comment, Pa.R.Crim.P., Rule 60, 42 Pa.C.S.A.

Applying the principles of Rule 60 and the Comment thereto, the lower court made the following findings:

Our review of the record does not indicate a “reasonable basis” for filing nor does it indicate the existence of “compelling reasons” to prevent the issuing of the citations to the Defendant. Accordingly, this Court finds that the District Justice could have validly applied Rule 60 to the circumstances of this case and in his judicial discretion found the requirements of Rule 60 to have been violated.

The lower court reasoned, in making this finding, that all of the evidence against appellant was known to the police immediately after the alleged offense occurred, and that it “stretchfed] credulity” to believe that the citation charging criminal solicitation could not have been issued at the time of the alleged offense.

We see no reason to disturb the conclusion of the lower court in this regard. While the record does not contain a transcript of the hearing before the district justice, we note that the Commonwealth itself has not argued the correctness of the procedure employed by the city police in this instance. We decline, therefore, to make this argument for the Commonwealth.

Although we accept the lower court’s finding that the procedure utilized by the city was defective under Rule 60, we disagree with the court’s conclusion that the defective procedure resulted in prejudice to appellee. In this regard, the comment to Rule 90 is instructive:

A complaint, citation, summons, or warrant may be amended at any time so as to remedy any defect in form or content that is not prejudicial to the rights of the defendant. Nothing in this rule shall prevent the filing of a new complaint or citation and the re-issuance of process. Any new complaint must be filed within the time permitted by the applicable statute of limitations.

Comment, Pa.R.Crim.P., Rule 90, 42 Pa.C.S.A.

As we stated earlier, Rule 90 requires actual prejudice to the rights of the defendant before the rule’s prohibition on dismissal of the charges or discharge of the defendant is invoked. However, as the comment to Rule 90 makes clear, defective citations may be remedied and new ones filed as long as they are filed within the statute of limitations. Moreover, it has been held that a finding of prejudice under the rule requires a showing of “manifest and palpable harm” resulting from the defective citation or procedure. Blosenski Disposal Service v. Commonwealth Department of Environmental Resources, 116 Pa.Cmwlth. 315, 543 A.2d 159 (1988) (construing Pa.R.Crim.P., Rule 150, predecessor to the present Rule 90). In Blosenski, it was held that a delay of eighty-two days in filing charges against appellant did not entitle appellant to a dismissal of the charges under the predecessor rule to Rule 90 where no evidence was presented to demonstrate that appellant was prejudiced by the delay. Id. at 324, 543 A.2d at 164. See also Commonwealth v. Joki, 330 Pa.Super. 406, 479 A.2d 616 (1984) (zoning officer’s error in filing complaints for violating zoning ordinance rather than filing citations was harmless error in absence of prejudice or injury — predecessor to Rule 90 cited).

Appellee alleges that the re-filing of the citations against him was prejudicial in that the delay caused him to suffer “prolonged and agonizing” media accounts of the alleged offense, forced him to expend additional financial and other resources in his defense, and required him to appear twice with witnesses before the district magistrate. These are the grounds upon which the lower court relied in reaching its finding of prejudice under Rule 90.

We cannot agree that these inconveniences are of the type contemplated by the rule. As we have indicated, the rule’s comment explains that nothing in the rule prevents the filing of a new citation or the amendment of a defective one, as long as the statutory time limitations are not exceeded. In addition, a finding of “manifest and palpable harm” is necessary. Here, it is clear that both of the charges filed with the district magistrate on July 19, 1988 were filed well within the statute of limitations for the two offenses. See 42 Pa.C.S.A. § 5552 (two year statute of limitations except for certain major criminal offenses). In addition, following a dismissal of the charges for an alleged defect in the procedure, there is nothing in the summary rules which would prevent the filing of a new citation or citations so long as they are filed within the limitation period for the offenses. Thus, despite the apparent violation of Rule 60, appellee did not suffer prejudice of the type which would permit dismissal of the charges under Rule 90.

We conclude that the lower court’s denial of the Commonwealth’s petition for a writ of certiorari was based on an erroneous interpretation of Rule 90. Therefore, the lower court abused its discretion in denying the Commonwealth’s petition for the writ.

Order reversed; appellant’s petition for writ of certiorari granted; remand to court of common pleas for further proceedings. Jurisdiction relinquished.

      . Section 934 provides:
      Unless and until changed by general rule, the judges of the courts of common pleas, within their respective judicial districts, shall have power, in addition to the right of appeal under section 9 of Article V of the Constitution of Pennsylvania, to issue writs of certiorari to the minor judiciary.

      . 18 Pa.C.S.A. § 5902(e).

      . Id. § 902.

      . Rule 90, relating to defects in form, content, or procedure in summary cases provides:
      A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of the Chapter [relating to general procedures in summary cases], unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant. Pa.R.Crim.P., Rule 90, 42 Pa.C.S.A.

      . See infra.

      . "The affiant may withdraw the citation pending before the issuing authority.” Id.

      . See note 4, supra.


author: BROSKY, Judge.

text:
    563 A.2d 522
    Malka C. GOODSTEIN v. Martin E. GOODSTEIN, Rosenfelt, Siegel & Goldberg. Appeal of Martin E. GOODSTEIN.
    Superior Court of Pennsylvania.
    Argued April 5, 1989.
    Filed Aug. 30, 1989.

      Alfred Marroletti, Philadelphia, for appellant.
    Carl N. Martin, III, Philadelphia, for Malka Goodstein, appellee.
    Before BROSKY, McEWEN and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from an order denying in part appellant’s Preliminary Objections to a Praecipe for Writ of Execution and the entry of a judgment of garnishment. Under the Praecipe appellant’s wages would be garnished for satisfaction of a foreign judgment representing arrearages in unallocated alimony and support payments and other monetary awards. The trial court denied appellant’s Preliminary Objections to the extent that the judgment represents past due alimony and/or support.

The issue raised here is whether garnishment of wages for payment of a judgment which represents unallocated alimony and support is allowable under Pennsylvania law. We conclude that it is and affirm the trial court’s order to the extent attachment is for alimony and/or support, and remand for allocation of support, alimony and other charges included in the foreign judgment.

The parties were divorced in the State of Connecticut on January 20, 1983. At that time they had one minor child, bom November 3, 1967. The decree of divorce provided, among other things, that appellant pay “unallocated alimony and support in the sum of $200 per week.” He was also ordered to pay past due mortgage payments and all existing liens and taxes on property awarded to appellee, appraisal fees, CPA charges, counsel fees, and other monetary awards. In addition, the divorce decree reaffirmed certain prior pendente lite orders against appellant.

On June 25, 1985, the Connecticut Superior Court of the County of Hartford entered a judgment against appellant in the amount of $42,966.79 for arrearages on the January 20, 1983 order. Appellee subsequently transferred this judgment to the State of Pennsylvania pursuant to the provisions of the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306. On February 11, 1988, appellee filed a Praecipe for Writ of Execution against appellant’s employer, seeking garnishment of appellant’s wages to satisfy the foreign judgment. This appeal, perhaps incorrectly taken, is from the ruling denying appellant’s Preliminary Objections to the attachment of wages for past due alimony and/or support. However, as it was taken after entry of the final judgment of garnishment we do not find the defect to be fatal to the appeal. Pa.R.A.P. 905.

Appellant contends that the trial court erred in its determination that a foreign degree encompassing multiple forms of monetary relief, including unallocated alimony and support, could be enforced through garnishment procedures provided for under 42 Pa.C.S. § 8127(b). This statute provides:

The wages, salaries, and commissions of individuals, shall, while in the hands of the employer, be exempt from any attachment, execution, or other process except upon an action or proceeding: (1) for support.

(Emphasis added.)

Specifically, appellant maintains that in Pennsylvania “alimony” and “alimony pendente lite” are different entitlements, with different requirements, and that the word “support” in § 8127(1) does not encompass “alimony.” Therefore, appellant argues, since the law in question is silent with regard to alimony and permits only support payments to be withheld from an employee’s wages, a judgment for unallocated support and alimony should not be enforced. In support of his argument, appellant relies on the Statutory Construction Act, which provides:

When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S. § 1921(b). Appellant also cites the provision of the Statutory Construction Act that controls interpretation of technical words and phrases:

“[Wjords and phrases shall be construed according to ... their common and approved usage; but technical words and phrases and such others have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning or definition.”

1 Pa.C.S. § 1903(a). Appellant contends the terms “alimony” and “alimony pendente lite” are technical words defined by the Divorce Code, 23 P.S. § 104, and are applied by the courts with specificity.

Since 42 Pa.C.S. § 8127 is devoid of any definition of “support” or “alimony,” the trial court, in determining that the terms are synonymous for the purpose of wage attachment, turned to the definition of alimony in the Divorce Code, 23 P.S. § 104. There, alimony is defined as “an order for support granted by this or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.” (Emphasis added.)

The provision of § 8127 which permits garnishment “for support” is a 1982 amendment to the statute, and there is little case law interpreting this phrase that applies specifically to the issue at hand. Thus, the trial court considered case law interpreting statutory provisions which exempt pensions and annuities from attachment. Although none of the cases were squarely on point with the instant case, certain language in those cases led the trial court to conclude that wages are not exempt from garnishment to enforce orders for alimony or child support.

In the first case examined by the trial court, Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985), the issue was whether a spouse could enforce a New Jersey court order for support arrearages by attaching the husband’s police pension. As in the instant case, after judgment was entered in the foreign jurisdiction it was filed in Pennsylvania. The Young court determined that the purpose of the statutes exempting pensions from attachment was to protect pension funds from the claims of creditors for the benefit of the employees and their families. The court then cited the Pennsylvania policy of giving priority to the enforcement of support orders and reasoned that a refusal to enforce the New Jersey court order would be inimical to this purpose. For these reasons the court allowed attachment of the pension to satisfy a court order whose purpose was to enforce support obligations.

Another case cited by the trial court, Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985), rev’d, 515 Pa. 288, 528 A.2d 146 (1987), considered the issue of whether or not pension payments of a former spouse could be attached to satisfy a judgment for arrearages under a support agreement. The Superior Court endorsed attachment for certain purposes, but concluded that attachment would not be permitted for enforcement of a support agreement. Our decision was reversed by the Supreme Court who thereby extended the attachment and garnishment remedy further than we found ourselves able to do. Nevertheless, we had concluded, and the Supreme Court’s stance would certainly affirm our position, that:

Garnishment of wages or a pension is ... applicable to court orders of support and alimony, as a legislatively empowered exercise of court authority to implement its orders. 347 Pa.Super. at 300, 500 A.2d at 843. (Emphasis added).

Discussing the exemption from wage attachment under 42 Pa.C.S. § 8127, the court in Ankrom v. Ankrom, 366 Pa.Super. 461, 531 A.2d 509 (1987) stated:

The wage exemption statute provides a means by which spouses and children can expeditiously, directly and assuredly obtain the support to which they are entitled and which is essential to sustain their daily existence.

366 Pa.Super. at 467, 531 A.2d at 512. The trial court reasoned that court-ordered support or alimony would be, by logical extension of the principle, included in this exclusion.

Finally, in Laughlin v. Laughlin, 372 Pa.Super. 24, 538 A.2d 927 (1988), one of the issues presented was whether the husband’s wages could be attached to enforce a court order solely for the payment of equitable distribution. The court held that they could not while indicating that only monetary judgments for child or spousal support can be enforced through wage attachment. Applying Laughlin to the present case, the trial court reasoned that such judgments encompass court orders for alimony under the statutory definition of 23 Pa.C.S. § 104, and therefore the Laughlin holding supported appellee’s argument that “alimony” is encompassed within the statutory definition of support contained in § 8127.

We agree that the above cases support the trial court’s finding. We find additional reinforcement of the determination that wages are not exempt from attachment to enforce alimony payments, in § 503 of the Divorce Code, which provides in pertinent part:

If at any time a party is in arrears in the payment of alimony or alimony pendente lite as provided for in sections 501 and 502 after hearing, the court may, in order to effect payment of the arrearages:
(1) Enter judgment____
(3) Attach no more than 50% of the wages of the party. (Emphasis added.)

23 P.S. § 503. Since this statute provides for the attachment of wages for arrearages of alimony, and since 42 Pa.C.S. § 8127 provides for the attachment of wages for support, both would appear within the scope of garnishment.

Appellant also argues that alimony is an obligation that ends with divorce. However, the legislative intent of the Divorce Code of 1980 has been interpreted to provide that alimony, in contrast with alimony pendente lite, continues after divorce when fixed in conjunction with a divorce or annulment decree. McNulty v. McNulty, 347 Pa.Super. 363, 371, 500 A.2d 876, 880 (1985). In the instant case the alimony and support order was incorporated in the divorce decree. Therefore, the appellant was not relieved of the obligation to continue to make alimony payments when the divorce became final.

We therefore affirm the order of the trial court to the extent that it allows garnishment of wages for the amount due for arrearages in alimony and support. However, upon review of the judgment we are concerned that it also represents amounts for obligations other than alimony and support and for which garnishment is not recognized. Since we are unable to determine from the order of January 20, 1983, or from the record what portion of the judgment represents arrearages for support and alimony and what portion is attributable to other unenforceable charges, we remand for allocation of the sums past due for support and alimony. Pennsylvania law is clear in the determination that wages are exempt from attachment for all purposes but a few specific exceptions, such as support and alimony. Equitable distribution of property, for example, is not a form of support in Pennsylvania and is not permitted to be enforced by garnishment of wages. Laughlin, 372 Pa.Super. at 28, 538 A.2d at 929. We remand the case back to the trial court to determine the nature of the arrearages stemming from the order of January 20, 1983, and to specify what portion of the judgment can properly be enforced by attachment of wages.

We accordingly affirm the order of the trial court, in part and remand for allocation of amounts due and enforceable as support and alimony.

      . Pennsylvania law governs the enforcement of the judgment involved in this case. 42 Pa.C.S. § 4306(b) provides: "A copy of any foreign judgment ... may be filed in the office of the clerk of any court of common pleas of this Commonwealth____ A judgment so filed ... shall have the same effect and be subject to the same procedures ... as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner." 42 Pa.C.S. § 6780(a) provides: “Upon registration the registered foreign support order shall be treated in the same manner as a support order issued by a court of this Commonwealth. It has the same effect and is subject to the same procedures ... as a support order of this Commonwealth and may be enforced and satisfied in like manner.”


author: MONTEMURO, Judge:

text:
    563 A.2d 525
    Ronald L. McCARTNEY, Appellant, v. DUNN & CONNER, INC., Andrew J. Conner and Robert C. Ward, Appellees.
    Superior Court of Pennsylvania.
    Argued April 24, 1989.
    Decided July 14, 1989.
    Reargument Denied Sept. 1, 1989.

      Robert Lesuer, Erie, for appellant.
    Theodore O. Struk and Stephen M. Houghton, Pittsburgh, for appellees.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   MONTEMURO, Judge:

This is a consolidated appeal, filed by Ronald L. McCartney, M.D., from two Orders entered by the Court of Common Pleas of Erie County on July 25, 1988. Under No. 01234 Pittsburgh 1988, the trial court granted appellees’ motion for a partial summary judgment, filed initially on January 6, 1988. Under No. 01235 Pittsburgh 1988, the trial court granted appellees’ motion for summary judgment, filed initially on April 27,1988. Appellees are the law firm Dunn & Conner, Inc., and Andrew J. Conner and Robert C. Ward. Following a careful review of the extensive record in this case, we affirm the entry of summary judgment and the entry of partial summary judgment.

On October 15, 1986, the appellant filed a complaint, claiming that the appellees had been negligent in their legal representation of the appellant in a prior lawsuit which arose and was ultimately litigated in the state of Texas. In an Opinion filed by the trial court on March 29, 1988, the court accurately sets forth the facts underlying the Texas lawsuit:

[Appellant] is a board certified radiologist. He left his practice in California in 1975 to become associated with Huguley Memorial Seventh-Day Adventist Medical Center, Inc. (hereinafter “Huguley”). At that time, the medical center was under construction. On August 25, 1976, [appellant] and Huguley executed a written agreement entitled “Provision of Radiology Services Agreement” which essentially provided that the [appellant] was being employed by Huguley to organize, supervise and operate a radiology department at Huguley. Article 9.02 of the agreement granted each party the right to terminate the agreement on ninety (90) days written notice to the other party.
On December 24, 1975, [appellant] signed three more documents — a Letter of Intention and two Notes. The thrust of these writings was that the hospital would advance living expenses to the [appellant] during the period of time that the hospital was being constructed and the radiology department was being organized, and that once the radiology unit was operational, the [appellant] would pay back to Huguley the sum of the advances made.
The hospital opened in early 1977 and in September of that year, the governing board of the hospital gave [appellant] a ninety-day notice of termination, as required by the Radiology Services Agreement. [Appellant] left the employ of the hospital in December of 1977. In November of 1978, he brought suit against Huguley alleging that: (1) Huguley had breached an oral agreement to employ the [appellant] as head of the radiology unit for at least five (5) years; (2) that Huguley breached the medical staff bylaws by terminating the [appellant] without notice and a hearing; and, (3) that the wrongful discharge had caused the [appellant] to be defamed. Huguley counterclaimed for the loans it had made to the [appellant] to subsidize him prior to the opening of the hospital.

Op. of Trial Court, March 29, 1988, at 1-3.

In the instant appeal, the parties do not dispute the fact that in October of 1978, the appellant contacted the appellees regarding his Texas litigation. At that point in time, appellant’s Texas counsel, Timothy Kelly, Esquire, had asked to be relieved from representing him in the lawsuit against Huguley. Appellant alleges in his complaint against the appellees that an attorney-client relationship was established at the initial October 1978 meeting and that this relationship continued through to the conclusion of the Texas litigation. R.R. at 12a. Appellees, on the other hand, claim that no attorney-client relationship arose until February of 1981, when an attorney in appellee law firm Dunn & Conner, Robert C. Ward, Esquire, agreed to appear on behalf of the appellant in the impending Texas trial. R.R. at 62a. Prior to this time, appellees aver that appellant was handling the Texas litigation pro se, and that appellees had agreed to merely assist the appellant in securing Texas counsel. R.R. at 63a. It is undisputed that Texas counsel, Jeffrey Walker, Esquire, was employed in November of 1979. Attorney Walker thereafter tried the defamation action in November of 1979. The defamation action was resolved unfavorably to appellant. Attorney Walker was dismissed as counsel in January of 1980. R.R. at 13a. Appellant was then represented by Robert C. Ward at the trial on the remaining claims against Huguley. After three days of trial, the trial court in Texas entered a judgment of non-suit against appellant on his claims against Huguley and, after deliberation on Huguley’s counterclaim, the jury returned a verdict in favor of Huguley in the amount of $95,000.00. This result was affirmed by the Fifth Circuit Court of Appeals in May of 1981.

We will first address the trial court’s disposition of appellees’ motion for partial summary judgment (No. 01234 Pittsburgh 1988). Pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure, summary judgment is to be entered only in cases where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). In determining whether a summary judgment should be granted, the trial court must examine the record in the light most favorable to the nonmoving party. Johnson v. Baker, 346 Pa.Super. 183, 185, 499 A.2d 372, 373 (1985) (citation omitted). The trial court in the present case held that appellees’ legal representation of appellant as to the theories of liability actually raised by the appellant in his complaint against Huguley was not negligent as a matter of law. The trial court correctly recognized that when a “... plaintiff alleges that [a] defendant lawyer negligently provided services to him or her as a plaintiff in the underlying action, he or she must establish that he or she would have recovered a judgment in the underlying action in order to be awarded damages in the malpractice action, which are measured by the lost judgment.” Duke & Co. v. Anderson, 275 Pa.Super. 65, 71, 418 A.2d 613, 616 (1980) (citation omitted). Appellant was precluded by Texas law from maintaining an action against Huguley for failure to follow medical staff bylaws. See Weary v. Baylor University Hospital, 360 S.W.2d 895 (Tex.Civ.App.1962). In regard to the appellant’s claim that Huguley breached an oral contract to employ him for a minimum five-year term, it is clear that the appellant failed to prevail on this claim not because of any legal malpractice but because of a lack of evidence. The Fifth Circuit Court of Appeals affirmed the directed verdict in favor of Huguley on this claim after noting that appellant “... failed to produce any evidence of the alleged [oral] agreement____” R.R. at 96a. The Court of Common Pleas of Erie County aptly recognized that “no amount of care exercised by the [appellees] in their role as legal counsel could have produced evidence that does not exist.” Op. of Trial Court, March 29, 1988, at 5-6.

Appellant further contends that the partial summary judgment motion should not have been granted because appellees were negligent in failing to advise him to amend his complaint against Huguley to include a “tortious interference with prospective and existing contractual relations” cause of action. Appellees contend that appellant failed to raise this particular contention of legal malpractice in his complaint, filed October 15, 1986, and that the Statute of Limitations has now run, thus preventing an amendment of the complaint. Moreover, appellees contend that even if this claim of legal malpractice had been included in a timely manner in appellant’s original complaint, appellees are entitled to judgment as a matter of law because by the time the appellees were handling the Texas lawsuit, the Statute of Limitations had already run on a tortious interference cause of action. Brief for Appellees at 17. Finally, appellees argue that because Huguley was legally justified in terminating Dr. McCartney, there is no viable claim for tortious interference with contractual relations under Texas law.

Our review of the record reveals that the appellant did file a motion to amend his complaint against appellees herein on July 8, 1988, seeking to specifically plead that the appellees’ failure to raise different theories of liability in the Texas action constituted legal malpractice. R.R. at 265a. The trial court failed to rule on appellant’s motion to amend the complaint. Our Supreme Court has held that:

... the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party____ An amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant____ This would constitute “resulting prejudice” to the adverse party. However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.

Schaffer v. Larzelere, 410 Pa. 402, 406-407, 189 A.2d 267, 270 (1963). It was an abuse of discretion for the trial court to have refused to consider the motion to amend the complaint. Appellant’s proposed amendment is not a new cause of action, but an amplification of allegations of negligent legal representation which are a part of his original complaint. Appellant’s complaint alleged inter alia as follows:

73. The acts and omissions of the Defendants, as described above, fell below the applicable standards of care owed by the Defendants to McCartney.
74. The Defendants failed to exercise on behalf of McCartney the skill, knowledge, diligence and judgment ordinarily possessed and employed by practitioners of the legal profession.

R.R. at 20a-21a. In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the plaintiffs, in their complaint, had originally alleged that the hospital, acting individually and through its employees, was negligent:

a. In perforating the sigmoid colon during the performance of a barium enema procedure;
b. In perforating the sigmoid colon and causing extravasation of the barium into the abdominal cavity causing barium peritonitis;
******
f. In otherwise failing to use due care and caution under the circumstances.

Id., 501 Pa. at 308, 461 A.2d at 601. The plaintiffs in Connor later filed a motion to amend the complaint to include the following allegation:

4. After it became apparent or should have become apparent ... that barium with the accompanying intestinal contents had extravasated into the abdominal cavity, the necessary laparotomy and cleansing of the abdominal cavity ... was delayed improperly causing the barium and intestinal contents to remain within the abdominal cavity causing extensive peritonitis, formation of adhesions and a pericolic abscess.

Id., 501 Pa. at 309, 461 A.2d at 602. The Supreme Court reversed a panel decision of this Court which had held that the proposed amendment was barred by the Statute of Limitations because it set forth a new theory of liability. Our Supreme Court in Connor opined:

... In their original complaint, appellants did not merely allege that the barium enema had been negligently performed. Rather, appellants also alleged that appellee ... was negligent “[i]n otherwise failing to use due care and caution under the circumstances.” Appellants’ proposed amendment simply specifies the other ways in which appellee was negligent in this case.
Since appellants’ proposed amendment does not change the original cause of action, but rather amplifies it, the amendment would not result in any prejudice to appellee. In view of the policy that the right to amend should be liberally granted, and in view of the fact that the amendment in this case would not have worked a prejudice against appellee, it was an abuse of discretion for the trial court to refuse the proposed amendment, and it was error for the Superior Court to uphold the trial court’s action.

Id., 501 Pa. at 310-311, 461 A.2d at 602-603. See also Walder v. Lobel, 339 Pa.Super. 203, 488 A.2d 622 (1985) (second amended complaint in defamation action did not state a new cause of action which would have been barred by the Statute of Limitations where second amended complaint did not allege entirely different theory or different relations between parties, but only amplified existing cause of action which was sufficiently stated in original complaint).

We are convinced that appellant’s proposed amendment is not barred by the Statute of Limitations, because it is not a new cause of action, but merely an amplification of his original allegations of legal malpractice. However, we affirm the entry of partial summary judgment because, as a matter of Texas law, appellant cannot establish a cause of action for tortious interference with contractual relations. It is undisputed that Huguley, as well as the appellant, had a contractual right to terminate their relationship upon ninety days written notice. Thus, while Huguley’s exercise of its valid contractual right may have had an impact on other contractual relationships or business relations of the appellant, Huguley’s actions were not tortious under well established Texas law:

Before recovery can be had for contract interference, it must be determined whether or not such interference was privileged or justified. Interference with contractual relations is privileged where it results from the exercise of a party’s own rights or where the party possessed an equal or superior interest to that of the plaintiff in the subject matter____ The exercise of an absolute right or privilege protects from liability only if the right exercised is equal or superior to the right invaded. Enforcing or complying with one’s own valid contract does not constitute unjustifiable interference with another’s contract. An action to protect one’s contractual right is also ordinarily justification for interference with another’s contract.

Maynard v. Caballero, 752 S.W.2d 719, 721 (Tex.App. — El Paso 1988) (citations omitted). See also V.M. Solis Underground Util. v. Laredo, 751 S.W.2d 532 (Tex.App. — San Antonio 1988); Marathon Oil Co. v. Sterner, 745 S.W.2d 420 (Tex.App. — Houston [14th Dist] 1988).

We also affirm the trial court’s entry of summary judgment (No. 01235 Pittsburgh 1988). Appellant claimed, with reference to Huguley’s counterclaim for advance monies, that appellees had been negligent in failing to seek introduction of the deposition testimony of a William Wiist to the effect that, despite the express language of the documents signed by Huguley and the appellant, it was never intended that appellant would actually repay the advance monies. This claim of legal malpractice is merit-less as a matter of law because such evidence is inadmissible under the Parol Evidence Rule. See Conner v. May, 444 S.W.2d 948 (Tex.Civ.App., 1969). Appellant’s obligation to repay these sums was expressly and unambiguously set forth in the three, written contracts he signed with Huguley in December of 1973.

Finally, appellant’s contention that the appellees were negligent because they failed to evaluate the settlement potential of the Huguley counterclaim is entirely speculative, and thus no cause of action for legal malpractice may be maintained. We note that Huguley’s counterclaim was based upon written contracts signed by the appellant which expressly and clearly controlled his obligation to repay the monies advanced to him by Huguley. Whether or not Huguley had any reason to settle for an amount less than the jury ultimately awarded is anyone’s guess, although we find the prospect less likely in view of the legal basis for the counterclaim. In any event, this Court has not allowed legal malpractice actions based upon speculations regarding settlement negotiations. See Mariscotti v. Tinari, 335 Pa.Super. 599, 485 A.2d 56 (1984) (whether appellant could have obtained a better settlement if her attorney had given her a correct evaluation of her husband’s stock was speculative, thus defeating any cause of action for malpractice of the attorney negotiating the settlement).

For all of the foregoing reasons, we affirm the entry of partial summary judgment (No. 01234 Pittsburgh 1988) and the entry of summary judgment (No. 01235 Pittsburgh 1988).

Orders affirmed.

      . Additionally, we find no error in the trial court’s initial determination that the facts as alleged by the appellant are insufficient to support a claim for punitive damages. The trial court determined that "in the present case, the facts which plaintiff alleges entitle him to punitive damages are defendant Conner’s advice that plaintiff should proceed with the lawsuit despite his knowledge of plaintiffs precarious financial situation, Conner’s lack of preparation of the case until two weeks before trial and the defendant’s involvement in litigation adverse to the plaintiffs radiology group at the same time that the defendants represented plaintiff. This conduct may be sufficient to support a finding of ordinary negligence on the part of one or all defendants; however, this court is not convinced that such conduct evidences the culpable state of mind that Pennsylvania requires in order for a jury to award punitive damages to plaintiff." Op. of Trial Court, March 29, 1988, at 8. We find that the trial court correctly held that there are insufficient facts alleged by the appellant to support a claim for punitive damages. In view of the fact that the amendment proposed by the appellant will not alter this aspect of the instant case, appellant is precluded from seeking punitive damages upon remand.
      Likewise, we affirm the trial court’s holding that as a matter of law, appellant cannot pursue his claim for attorney fees.


author: DEL SOLE, Judge.

text:
    563 A.2d 531
    William R. STENGER, Donna A. Stenger, Craig Stenger and Barry Stenger, Appellants, v. LEHIGH VALLEY HOSPITAL CENTER, Samuel Huston, Theodore J. Matulewcz, M.D., Barry H. Slaven, M.D., Hospital Central Services, Inc., H.C.S.C.-Blood Center Trading as Samuel W. Miller Memorial Blood Center, Lyndal Molthan, M.D., and Joseph Yelo, Appellees. William R. STENGER, Donna A. Stenger, Craig Stenger and Barry Stenger, Appellees, v. LEHIGH VALLEY HOSPITAL CENTER, Samuel Huston, Theodore J. Matulewcz, M.D., Barry H. Slaven, M.D., Hospital Central Services, Inc., H.C.S.C.-Blood Center Trading as Samuel W. Miller Memorial Blood Center, Lyndal Molthan, M.D., and Joseph Yelo, Appellees, Appeal of LEHIGH VALLEY HOSPITAL.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1989.
    Decided Aug. 2, 1989.

      Pamela W. Higgins, Philadelphia, for Stenger, appellants (at 2639) and appellees (at 2640).
    Georgine A. Olexa, Allentown, for Lehigh Valley, appellants (at 2640) and appellees (at 2639).
    David L. Haber, Philadelphia, for Molthan and Yelo, appellees.
    Before DEL SOLE, MELINSON and HOFFMAN, JJ.
   DEL SOLE, Judge.

An order permitting the filing of interlocutory cross-appeals provides the basis for our consideration of the proper extent of discovery available to the parties in this case.

Appellants, the Stengers, ask us to consider whether the trial court erred in refusing to permit them to discover the identity of a blood donor, (Donor) and the identities of recipients of blood from this particular Donor. In a cross-appeal Appellant, Lehigh Valley Hospital Center, seeks review of that portion of the trial court order which directed it to disclose the delivery dates of blood it acquired which may have been contaminated and the test results later conducted on patients who received this blood. Finding that a limited discovery would not constitute an impermissible violation of the Donor’s right to privacy, would not override any societal interest and would not violate any physician-patient privilege, we reverse the trial court’s order in part. Because upon balance we find the Stengers’ need to discover the identity of other recipients of Donor’s blood to be outweighed by the recipients’ expectation of privacy, we affirm the trial court’s refusal to order the disclosure of their identities. Finally, we affirm the trial court’s ruling regarding the Stengers’ right to discover the dates of blood shipments and the test results conducted on recipients of this blood as a proper exercise of its discretion in view of the order’s limited nature and the protection afforded the recipients from disclosure of their identities.

In October of 1984, Donna Stenger suffered serious personal injuries as a result of an automobile accident. While a patient at Lehigh Valley Hospital Center, (the Hospital), she received multiple transfusions of blood and blood products. Approximately a year and a half later Donna Stenger, her husband, William, and their sons Barry and Craig commenced suit against the Hospital, Hospital Central Services, Inc., H.C.S.C. Blood Center t/a Samuel W. Miller Memorial Blood Center (the Blood Center), and various individuals. Their complaint sets forth claims of negligence, breach of warranties, strict liability, battery and intentional and negligent infliction of emotional distress. In support of these claims the Stengers allege in their Complaint that in August of 1985, after Donna Stenger’s discharge from the Hospital, the Blood Center learned that a donor, who had supplied blood used in Donna Stenger’s transfusions, tested positive for the acquired immune deficiency syndrome virus (AIDS). The Complaint also alleges that the Blood Center informed the Hospital that blood products transfused into Donna Stenger’s circulatory system were or may have been contaminated with the AIDS virus. The Stengers contend that in November of 1986 Donna Stenger was diagnosed as suffering from AIDS which she contracted from blood transfusions. Within the next two months it is alleged that William Stenger and Craig Stenger, the Stengers’ six year old son, were diagnosed as having been infected with the AIDS virus. In an Answer to this Complaint it is denied that Donna Stenger was infected with the AIDS virus as a result of receiving blood and/or blood products supplied to the Hospital by the Blood Center. However it is averred that as a result of a look back procedure, which involves donors who have been confirmed to have HTLV-III antibodies, it was learned through the Hospital records that a prior donation by one of these donors was given to Donna Stenger.

Discovery in this case proceeded under a protective Order of Court prohibiting the disclosure of information discovered in depositions, interrogatories or other forms of the discovery process. Interrogatories were filed by the Stengers along with a request for production of documents. The defendants responded but the Stengers objected and challenged several responses which prompted them to file a Motion to Compel and a request for sanctions. Following argument the trial court entered an order which is the subject of the instant appeals. The court directed the hospital to disclose the delivery dates of blood received from the Blood Center which may have been contaminated and to disclose the AIDS test results of patients who were recipients of this blood. The court also ruled that the Stenger’s would be denied access to the identity of the Donor who supplied the blood ultimately used to transfuse Donna Stenger and to the identity of other blood transfusion recipients.

Cross-appeals were filed challenging this order. The Stengers’ claim their need to learn the identity of the Donor and the blood transfusion recipients is compelling and without such they would be unable to prove causation or negligent screening procedures. The Appellees respond by arguing that this information is constitutionally protected and protected by the physician-patient privilege. They further claim that the trial court did not abuse its discretion in refusing the Stengers request because of the public policy protecting confidentiality of this information. These same arguments are also advanced with respect to the Hospital’s claim that it should not be required to disclose information about the test results conducted on patients who were transfused with potentially contaminated blood and the dates such blood was received by the Hospital.

We will first address the Stengers claim seeking to discover the identity of the individual who donated blood transfused to Donna Stenger and who later tested positive for AIDS. The Stengers seek this information to prove causation and to develop their claim that the screening process undertaken by the Blood Center was negligent. In regard to the negligence claim it is noted that at the time the Donor donated the blood which was used in Mrs. Stenger’s transfusion a test was not yet developed to identify carriers of the AIDS virus. To identify those donors who were in a high risk category certain screening procedures were often utilized. The Stengers wish to question the Donor as to what, if any, screening procedures he or she underwent prior to donating blood. The Stengers also claim the identity of the Donor is relevant and critical to prove causation. They assert that recent scientific developments could conclusively establish through a comparison of blood samples that Donna Stenger acquired the AIDS virus from the blood donated by the Donor.

The Stengers request must be examined in view of a challenge to it as being violative of the Constitutional right to privacy, the overriding public policy against such disclosures and the physician-patient privilege.

An individual’s right to privacy finds support from interpretations of both the United States and the Pennsylvania Constitutions. In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Supreme Court was asked to review the constitutionality of a New York statute which required that a copy of the prescriptions for certain drugs, which included the name and address of the patient, be recorded by the state in a centralized computer file. The statute was challenged as an improper invasion of the right to privacy and the potential cause of a decline in patient’s seeking treatment due their fear of being stigmatized as drug addicts. The Court commented on two recognized privacy interest, the interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions. It was ruled that the New York statute did not, “on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation.” 97 S.Ct. at 877. In reaching this decision the court remarked on a variety of unpleasant invasions of privacy which are not automatically impermissible. The Court recognized the security system in place for protecting this information from unwarranted disclosures and the purpose for which the statute was designed, the prevention of drugs being diverting into unlawful channels.

These same two privacy interests have been recognized by the courts of this Commonwealth. The Supreme Court of Pennsylvania noted that the interest in avoiding the disclosure of personal matters was implicated where a grand jury issued a subpoena duces tecum seeking the production of hospital medical record containing tissue specimen reports. In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980). The Court stated: “This privacy interest finds explicit protection in the Pennsylvania Constitution, Art. 1, § 1.” 415 A.2d at 77. Nevertheless, the Court held that, although under certain circumstances the disclosure of medical data could constitute a constitutional violation, such was not the case where the information was relevant, the grand jury was sworn to secrecy and the proceedings were being overseen by a supervising judge. Thus, every intrusion into an individual’s privacy is not impermissible; rather, the individual’s right to privacy must be balanced against a countervailing interest which, under the circumstances, may justify an intrusion on privacy. Denoncourt v. State Ethics Commission, 504 Pa. 191, 470 A.2d 945, 948 (1983). The competing interests are to be weighed after giving thoughtful attention to certain factors:

The factors which should be considered in deciding whether an intrusion into an individual’s privacy is justified are the type of record requested, the potential for harm in any subsequent nonconsensual disclosure; the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.

United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3rd Cir., 1980).

In this case the Donor may obviously have an interest in avoiding the disclosure of his or her identity since the Donor may be a carrier of the AIDS virus, a virus which unfortunately is often accompanied by a social stigma. The Stengers claim that this need for privacy protection is outweighed by their need for disclosure to prove their case. While we find this information will be important to the Stengers’ negligence claim, the same cannot be said for the Stengers’ assertion that this information is necessary to prove causation. The Stengers refer to “recent scientific developments” which would compare “Mrs. Stenger’s blood to the blood of th[e] donor,” but do not name this test or provide any information about its existence. In view of this speculative use of this private information, we do not find the balance weighs in the Stengers’ favor. Further, while it is not admitted that Mrs. Stenger acquired AIDS through the blood transfusion, it is admitted that the donor who provided blood used in that transfusion later tested positive for the HTLV-III antibody. (Contrast Rasmussen v. South Florida Blood Service, 500 So.2d 533 (1987), where hospital denied any of 51 donors appeared on a list of AIDS victims.) In sum, the Stengers need to identify the blood Donor is not critical to prove causation.

On the other hand the Stengers’ contend the identity of the Donor is important to develop their negligence claim. The Stengers seek to prove that inadequate screening procedures were employed to safely screen the Donor. Since at the time of the Donor’s donation no test was yet developed to identify AIDS carriers, it would be important to the Stengers’ claim to learn what screening procedures were undertaken. Such screening may have revealed whether the Donor was in a high risk group, or exhibited some of the signs and symptoms which would alert one to the fact that the Donor may be an AIDS carrier. Although those individuals who performed the screening may testify that the Donor was carefully and completely evaluated, the only individual who would be able to refute this testimony is the Donor. Thus, questioning of the Donor as to what screening he or she underwent at the time of the critical donation would be a significant part of the Stengers’ negligence claim.

Although we find the Stenger’s need for the Donor’s identity important to establish negligence, we must still look to the societal interest which is called to our attention. The cases which have examined similar discovery issues have often referred to this interest, and the denial of such a discovery request has been made upon the basis that discovery rules do not require such information to be revealed where a strong countervailing public policy is found.

In Rasmussen v. South Florida Blood Service, supra, the Florida Supreme Court upheld a decision to quash a subpoena which sought the names and addresses of 51 blood volunteers whose donated blood was transfused to the plaintiff. The plaintiff sought this information to assist in the development of his case against the owner and operator of a vehicle which struck him. Plaintiff wished to establish that he was infected with AIDS through a blood transfusion which was an aggravation of the injuries he initially sustained in the accident. In reference to a rule nearly identical to Pa.R.C.P. 4011(b) the court remarked, that although the scope of discovery is generally broad, discovery can be limited or prohibited if it is likely to cause annoyance, embarrassment, oppression or an undue burden or expense. It went on to find that the donors’ privacy rights were very strong. Since none of the 51 donors were identified as carriers of AIDS, plaintiff would eventually have to know more than the names and addresses of the donors. The Rasmussen court noted that while the plaintiff’s interest parallelled the state’s interest in ensuring full compensation be provided for victims of negligence, the discovery order requested by plaintiff “would do little to advance that interest. The probative value of the discovery sought by Rasmussen [was] dubious at best.” 500 So.2d at 588. The questionable need for this information was balanced against the effect of disclosure on the private lives of the 51 donors and society’s interest in maintaining a strong volunteer blood supply. The court expressed its concern that a volunteer blood donation program would be greatly harmed if donors, fearful of later inquiry into their private lives and potential association with AIDS, decline to donate blood. Further, the lack of restrictions contained in the subpoena was also acknowledged by the court. It commented:” [T]he subpoena in question gives petitioner access to the names and addresses of the blood donors with no restriction on their use. There is nothing to prohibit petitioner from conducting an investigation without the knowledge of the persons in question.” 500 So.2d at 587. In closing the court stated, “The potential of significant harm to most, if not all, of the fifty-one unsuspecting donors in permitting such a fishing expedition is great and far outweighs the plaintiff’s need under these circumstances.” 500 So.2d at 538.

The circumstances surrounding the Stengers’ negligence claim differ greatly from those presented to the Florida court in Rasmussen. Here there is a single donor identified who after donating blood used in the plaintiff’s transfusion, tested HTLV-III positive. A “fishing expedition” would not be involved. Secondly, the need for the information in this case can not be characterized as “dubious at best.” The Stengers legitimately need to question the Donor about the screening procedure in order to determine if such a program was adequately followed. Further, there is no need for the questioning to extend into areas other than the screening procedure employed when Donor volunteered to give blood. Inquiry into other sensitive areas of a private nature would not be relevant. Finally, restrictions can be set in place to guarantee the limited scope of questioning and protect the identity of the Donor.

The Florida court’s decision in Rasmussen was not found to be persuasive by the courts of Texas which considered similar issues. In Tarrant County Hospital District v. Hughes, 734 S.W.2d 675 (Tex.Ct.App.1987) the hospital sought to have rescinded an order which required it to produce documents identifying donors of blood transfused to patients who developed AIDS. The court employed a balancing test comparing the interest served by compelling discovery with the donors’ interest in privacy. The court first noted that the plaintiff’s interest in this information was legitimate and that the trial court’s discovery order afforded the donors protection from public disclosure. The court also found that the hospital failed to establish that the court order was an abuse of discretion because of injury to any societal interest. In conclusion the court reasoned that the potential injury to society from the limited discovery ordered was “no less speculative than a determination that the order would benefit society by discouraging blood donation by those infected with AIDS”. 734 S.W.2d at 680. This same rationale was utilized in the later case of Gulf Coast Regional Blood Center v. Houston, 745 S.W.2d 557 (Tex.App.1988). Again in this decision, competing interests were balanced with specific attention paid to the restrictive and protective nature of the discovery order. In Gulf Coast the Donors were to be referred to by a reference number, their names and addresses were to be sealed with the court, the plaintiffs were prohibited from disclosing the names or addresses to third parties, no party was able to contact any donor without further order of court and the names of the donors were to be destroyed at the final disposition of the case.

Pursuant to a rule of civil procedure, a Colorado court fashioned an unusual discovery order in Belle Bonfils Memorial Blood Center v. The District Court, 763 P.2d 1003 (Colo.1988). Therein the court ordered deposition upon written questions. The written questions were directed to be submitted to the clerk of court who was to mail them to the infected donor. Upon completion they were to be returned to the clerk who was to keep the name and address of the donor in the strictest confidence. The questions were to be crafted in such a manner so as to ensure the identity of the donor was not revealed. The court determined that such relief would satisfy the competing interests. The court recognized that the donor had a privacy interest in remaining anonymous and that it was important to maintain the availability of an abundant supply of volunteer blood while at the same time it recognized the plaintiffs’ right to the disclosure of all information necessary to pursue their claims. In addition the court cited society’s interest of maintaining a safe blood supply.

The Texas decisions in Tarrant and Gulf Coast were not applied by the Court of Appeals of Ohio in Doe v. University of Cincinnati, 42 Ohio App.3d 227, 538 N.E.2d 419 (1988). However in that case the court focused upon the fact that the donor received written assurances at the time of blood donation that any information furnished would remain confidential. The court also concurred with the finding in Rasmussen that disclosure of donor information would inevitably result in a decrease in the number of voluntary blood donors, hampering the nation’s blood supply-

The legitimate need to keep a strong volunteer blood supply was also cited by the trial court in this case in its reference to Taylor v. West Penn Hospital, 136 P.L.J. (1988), a Court of Common Pleas decision from Allegheny County. While we agree that the need to protect our blood supply is a real and important concern, we believe that a limited and protective discovery order can be formulated in this case which will insure that the Stenger’s learn the information necessary to establish their claim while at the same time protecting confidentiality. See also: Stenger v. Stenger 382 Pa.Super. 75, 554 A.2d 954 (Pa.Super. 1989). We can perceive of no correlation between such a limited and protective order and a reduced number of blood donations, and none has been identified before this court.

It is also argued that even a limited disclosure of information acquired during the blood donation process would violate Pennsylvania’s physician-patient privilege. This statutory privilege found in 42 Pa.C.S.A. § 5929 restricts a “physician” from disclosing information acquired while attending to a “patient.” It was designed to create a confidential atmosphere in which thg patient would feel free to disclose all possible information which may be useful in rendering appropriate treatment. In re June 1979 Allegheny County Investigating Grand Jury, supra. While it appears that disclosure of names and addresses may reveal “communications,” Id., this case does not necessitate that such “communications” be revealed. The Donor may be identified by a number, or some other method of protecting his or her identity may be utilized, while at the same time the Donor will remain subject to questioning regarding screening. Further we find the physician-patient privilege inapplicable to this case simply because such a relationship was nonexistent between the Donor and the Blood Center. Under 1 Pa.C.S.A. § 1991 a physician is an individual licensed to engage in the practice of medicine and surgery. Although the Blood Center submits that the withdrawal of blood for donation is a “medical procedure” it does not contend that a relationship was established between a physician and a patient. See Tarrant County Hospital District v. Hughes, supra. It is not represented that the procedure was performed by a “physician” and there is no indication that the Donor was acting in the role of a “patient” seeking treatment by undergoing the procedures involved in drawing his or her blood. See Doe v. University of Cincinnati, supra.

Because we find that the physician-patient privilege would not be violated in response to this interrogatory and because we find that a limited discovery order can be formulated by the trial court which will protect the identity of the Donor we remand this matter to the trial court. Upon remand the court may fashion an order which will permit the Stengers’ to learn from the Donor the screening procedure employed at the time of donation, but which will protect the identity and confidentiality of the Donor.

Turning now to the discovery issue involving the identities of those who were recipients of the Donor’s blood, we find the above rationale equally applicable here to conclude that this information does not fall within the ambit of the physician-patient privilege. Although not barred by this privilege we find that the Stengers’ were properly prohibited from learning the identities of these recipients. As stated, individuals enjoy a right to privacy in avoiding the disclosure of personal matters, which must be balanced in this case against the Stengers need for the discovery of information necessary to present their case. The Stengers seek to learn the identities of those individuals who received blood or blood products from the Donor for many of the same reasons they sought to learn the identity of the Donor, to prove causation. They again assert that the “fingerprinting” technique of blood matching could compare the Donor’s blood with the blood of Donna Stenger and the blood of any other infected recipients. The Stengers maintain that evidence demonstrating that the other recipients of blood donated by the Donor carry the same AIDS virus which infected Donna Stenger could convince a jury that Mrs. Stenger received AIDS from the transfusion of blood donated by Donor. However, as in their previous claim, the Stengers fail to provide us with any details of this medical technique or any evidence that it does in fact exist. While the Stengers submit that to prove causation it is vitally necessary to learn whether any other individuals who received blood from the Donor also tested positive for AIDS, the trial court did not restrict them from acquiring this information. In fact, the basis for the cross-appeal in this action is the court’s order directing the Hospital to furnish the Stengers with information on the test results conducted on these transfusion recipients. Accordingly, upon balance we find that a sufficient need for the disclosure of this private information has not been shown and we affirm the trial court’s decision refusing access to the identities of those individuals who were transfused using Donor’s blood or blood products.

Remaining for our consideration is the cross appeal presented by the Hospital. The Hospital contends that the trial court erred in requiring it to disclose information concerning AIDS test results on patients other than the plaintiffs in this action. At issue is interrogatory number 28 which requested the Hospital to supply the dates blood and/or blood products were delivered to it from the Blood Center which were or may have been contaminated with the AIDS virus. Also sought was knowledge of whether such blood and/or blood products were ever administered to any person through transfusion or otherwise, the identity of such a recipient and the results of any AIDS detection tests conducted on these individuals. The Stengers concede in their Brief that they have narrowed their request to apply only to those other persons who also received blood or blood products from the Donor. The trial court refused to permit disclosure of the identity of the blood transfusion recipients, and we have affirmed that ruling. However, the trial court did rule that the Stengers were entitled to learn the dates blood was delivered and the AIDS tests results conducted on the persons who received the Donor’s blood or blood products. This information was to be provided absent any indication of the recipients identity. Because the identity of these individuals will be protected from disclosure, we affirm the trial court’s decision on this discovery matter.

As with the other discovery issues, it is claimed that a disclosure of this information will violate the physician-patient privilege. It is posited that the mere fact AIDS testing was performed tends to reveal communications between a patient and a physician. “Moreover, any data which serves to identify an ‘AIDS’ victim would tend to reveal communications by the patient which would assuredly blacken the character of the patient given the nature of the disease, the manner in which it is transmitted, and the acute public concern surrounding it.” Appellant’s Brief at 14. The Hospital concludes that “it is readily apparent that any information regarding ‘AIDS’ test results and any data relating to times of transfusions may tend to identify the patient.” Appellant’s Brief at 15. We disagree. We cannot envision in what manner the limited scope of this discovery order, which will be disclosed in an anonymous fashion, will tend to reveal the identities of the patients. If it is disclosed that Donor’s blood was transfused to (x) number of patients and (x) number of them later learned they had contracted AIDS, the identities of these individuals will remain protected. In addition, the information divulged does not directly relate to the patient’s communications. In In Re June 1979 Allegheny County Investigating Grand Jury, supra, production of the actual tissue reports for certain identified patients, listed alphabetically, was sought. The court found that the tissue reports contained no statutorily privileged communications. A test result performed on a blood sample which reveals the presence of an AIDS virus is much like these tissue reports and we conclude that the discovery of this information in this case does not violate the physician-patient privilege.

We likewise find that disclosure of the information which is responsive to the Stengers’ interrogatory does not violate the blood transfusion recipient’s right to privacy. As stated this information will be provided in an anonymous fashion and it is very limited in scope. Because this limited intrusion is so minimal, on balance it does not outweigh the Stenger’s right to discovery which may prove helpful in their effort to establish causation.

The Hospital’s final claim concerns the production of documents relating to this interrogatory. In their Motion to Compel, in addition to answers to the interrogatories, the Stengers sought the production of documents related to the interrogatories. The trial court in its order did not rule on this issue. Nevertheless, the Hospital claims these documents are protected by the Pennsylvania Peer Review Protection Act and cite the case of Sanderson v. Frank S. Bryan, M.D., Ltd., 361 Pa.Super. 491, 522 A.2d 1138 (1987) to support its claim. The decision in Sanderson concerned a plaintiff in a medical malpractice action who requested the production of documents and recordings maintained by a peer review organization which contained evaluations and reviews of the defendant physician. The court found that the appeal involved interpretation of section four of the Peer Review Protection Act, 63 Pa.C.S.A. § 425.1 et seq. which provides in part: “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery____” Since the records of a peer review committee are not sought in this case, we find the Peer Review Protection Act and the Sanderson decision inapplicable to this issue. However, because the trial court neglected to determine whether production of documents relating to this interrogatory must be produced, we are unable to review its decision. The Stengers contend that “all parties assume that production of corresponding documents, in a redacted fashion, is ... required” by the trial court’s order. We cannot make such an assumption. Therefore, on remand the trial court in its sound discretion will determine if production is required and if so the method and manner in which all information which may be confidential and protected will be excised.

In conclusion we affirm that portion of the trial court’s order which denies the Stengers request to learn the identity of blood transfusion recipients and which grants their request to learn the dates of blood shipments and AIDS test results conducted on those who were transfused with Donor’s blood or blood products. We remand to the trial court for formulation of an appropriate order, which while protecting Donor’s identity, will permit the Stengers to learn of the screening procedures Donor underwent at the time of donation. Upon remand the trial court will also consider the extent and manner in which production of documents, if any, will be required.

Affirmed in part. Reversed in part. Case remanded to the trial court for proceedings consistent with this Opinion. Jurisdiction relinquished.