author: McEWEN, Judge.

text:
    638 A.2d 258
    Mary Anne Werner SETO, Appellant, v. Lee O. WILLITS, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1993.
    Filed March 4, 1994.

      Marc F. Lovecchio, Williamsport, for appellant.
    Joseph D. Smith, Williamsport, for appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   McEWEN, Judge.

This appeal has been taken from the judgment entered on June 4, 1993, in favor of the defendant, Lee 0. Willits (hereinafter appellee), based upon the failure of the plaintiff, Mary Anne Seto (hereinafter appellant) to commence this action within the two-year period provided by the applicable statute of limitations set forth at Section 5524 of the Judicial Code, 42 Pa.C.S. § 5524. Since we find that the trial court properly concluded, as a matter of law, that the statute of limitations had expired prior to institution of this action, we affirm.

Appellant filed a complaint against appellee on June 16, 1992, wherein she asserted causes of action for assault and battery, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress based upon sexual assaults of appellant allegedly committed upon her by appellee during the summer of 1959 when she was nine years of age. Appellant persuasively argues that the discovery rule should apply to toll the statute of hmitations in this case since

during the course of these assaults against [appellant] by [appellee], [appellant’s] personality split to the extent that she mentally blocked out the acts committed by [appellee] upon her. Because of mentally blocking out said acts, [appellant] did not know or have reason to know of [appellee’s] acts or any damage that [appellee] inflicted upon her, until January of 1992, when [appellant’s] personality splits first surfaced. At that time, in January of 1992, appellant was hospitalized in the Divine Providence Hospital’s Mental Health Unit and diagnosed as suffering from multiple personality disorder and depression. Through psycho-pharmacological treatment and intensive insight-oriented psychotherapy, [appellant] first became aware of [appellee’s] acts upon her.

The distinguished Judge Kenneth D. Brown granted the motion of appellee for summary judgment based upon his well-reasoned conclusion that the Pennsylvania appellate courts would refuse to recognize an exception to the settled principle that the statute of limitations is not tolled solely because a plaintiff is under a disability, even where the disability is insanity. Thus, the issue for determination by this Court is whether the trial court properly found, as a matter of law, that the discovery rule was inapplicable to the instant action.

Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991). A summary judgment can properly be entered in favor of a defendant where plaintiffs cause of action is barred by the statute of limitations. Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982); Washington v. Papa, 24 Chest. 334 (1976); Penn-Delco Union School District Authority v. M. & L. Construction Co., 60 Pa.D. & C.2d 226 (Del.Co.1972).
In applying the discovery rule, whether a plaintiff should have made a timely discovery of his or her injury is generally an issue for the jury unless the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury was unreasonable as a matter of law. In such cases, summary judgment may be entered by the court. Carns v. Yingling, supra 406 Pa.Super. at 285, 594 A.2d at 340. See: McCain v. Montgomery Hospital, 396 Pa.Super. 415, 423, 578 A.2d 970, 974 (1990), allo. denied, 527 Pa. 624, 592 A.2d 45 (1991).

McD. v. Rosen, 423 Pa.Super. 304, 308, 621 A.2d 128, 130 (1993).

Senior Judge Donald W. VanArtsdalen, of the United States District Court for the Eastern District of Pennsylvania, astutely addressed this very factual and legal proposition when he granted a similar motion for summary judgment, based on the expiration of the statute of limitations, filed by the defendant in Baily v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), and thereby rejected the argument of the plaintiff that the discovery rule had tolled the running of the limitations period since the plaintiff had psychologically repressed all memory of the sexual abuses committed upon him by the defendant. The court in Baily noted that:

In Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988), Judge Plunkett noted that cases involving this issue have generally involved one of two fact patterns: (1) cases in which the plaintiff claims to have known about the sexual abuse at or before his or her majority, but did not realize that other physical and psychological problems were caused by the molestation (type 1 cases); and (2) cases in which the plaintiff alleges that he or she repressed the memory until shortly before he or she filed suit (type 2 cases). Id. at 1367.
Courts in Indiana, Montana and California have declined to apply the discovery rule to type 1 cases. See Hildebrand v. Hildebrand, 736 F.Supp. 1512, 1521 (S.D.Ind.1990); E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817, 820 (1988); DeRose v. Carswell, 196 Cal.App.3d 1011, 1020, 242 Cal.Rptr, 368, 373 (6 Dist.1987). In all three of these cases, the courts focused on the fact that the plaintiffs admittedly were fully aware of the wrongful conduct but did not connect it to their subsequent problems. In such cases, the plaintiff is considered to have been on notice that he or she may have been injured and therefore under a duty to investigate possible causes of action. Under those circumstances, the courts reason, an application of the discovery rule would undercut the protection of the statute of limitations. See Hildebrand, 736 F.Supp. at 1521; E.W. v. D.C.H., 231 Mont. 481, 754 P.2d at 820; DeRose, 196 Cal.App.3d at 1017, 242 Cal.Rptr. at 371. In contrast, courts in North Dakota and Wisconsin have applied the discovery rule in type 1 cases, on the grounds that the emotional trauma suffered by abuse victims justifies tolling the statute where they knew of the abuse but did not understand its connection to later emotional and physical difficulties. See Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23, 27 (1987).
A number of courts have applied the discovery rule to type 2 cases. In Mary D. v. John D., 216 Cal.App.3d 285, 264 Cal.Rptr. 633 (Cal.App. 6 Dist.1989), review dismissed, — Cal.3d —, 275 Cal.Rptr. 380, 800 P.2d 858 (1990), the court held that where a minor victim of sexual abuse repressed the memory of the events while a minor as a direct result of the tortious conduct, “it would be most unfair to the plaintiff not to toll the statute” and accordingly applied the discovery rule to such a claim. Id., 264 Cal. Rptr. at 638-639. In so doing, the court analogized to the minority tolling provision of the relevant statute of limitations, and reasoned that a person who has repressed the events giving rise to the cause of action is in the same position as a minor, in that he or she is not in a position to assert his or her rights. Id., 264 Cal.Rptr. at 639.
The court in Meiers-Post v. Schafer, 170 MichApp. 174, 427 N.W.2d 606 (1988), held that the statute of limitations can be tolled for a sexual abuse claim “if (a) the plaintiff can make out a case that she repressed the memory of the facts upon which her claim is predicated, such that she could not have been aware of rights she was otherwise bound to know, and (b) there is corroboration for plaintiffs testimony that the sexual assault occurred.” Id., 427 N.W.2d at 610. In reaching this conclusion the court stated that the claim would in effect fall under the insanity tolling provision of the relevant statute of limitations. Id., 427 N.W.2d at 608, 610. In Johnson v. Johnson, supra, the court reasoned that the Illinois Supreme Court would apply the discovery rule to a type 2 case, based on its conclusion that in applying the discovery rule the Illinois courts took equitable considerations into account “as strongly if not more strongly” than problems of proof. Id., 701 F.Supp. at 1369-1370.
Still other courts have rejected the application of the discovery rule to type 2 cases as well as type 1 cases. In Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986), the Supreme Court of Washington refused to apply the discovery rule to a type 2 case because of the risk of stale claims and the problems of proof that such cases would present. According to the court, “if [the court] applied the discovery rule to such actions, the statute of limitations would be effectively eliminated and its purpose ignored.” Id. at 79, 727 P.2d at 229. The result in Tyson has, however, been overruled by statute. See Wash.Rev.Code ch. 144 S.S.B. No. 6305 (amending RCW 4.16-350 and adding a new section to ROW 4.16); North Coast Air Services, Ltd. v. Grumman Corp., 111 Wash.2d 315, 759 P.2d 405 (1988). The court in Lindabury v. Lindabury, 552 So.2d 1117 (Fla.App. 3 Dist.1989) (per curiam), cause dismissed, 560 So.2d 233 (Fla.1990), affirmed the dismissal of a type 2 action on the grounds that it was time-barred without discussing whether the discovery rule might apply. In Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (1990), the Supreme Court of Nevada declined to apply the discovery rule to a type 2 case and instead ruled that “no existing statute of limitations applie[d] to bar the action of an adult survivor of [child sexual abuse] when it is shown by clear and convincing evidence that the plaintiff has in fact been sexually abused during minority by the named defendant.” Id. 792 P.2d at 25.
The Pennsylvania courts have been unwilling to allow the incapacity of a plaintiff to toll the statute of limitations. The existence of an insanity tolling provision has been pivotal to courts in other jurisdictions that have allowed plaintiffs in Baily’s position to proceed. The Pennsylvania judicial code specifically provides, however, that “[e]xcept as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.” 42 Pa.C.S. § 5533(a). Moreover, courts applying Pennsylvania law have consistently stated that the statute of limitations runs against persons under a disability, including one who is mentally incompetent.

Baily v. Lewis, 763 F.Supp. 802, 805-808 (E.D.Pa.1991), aff'd., 950 F.2d 721, 722 (3d Cir.1991) (footnote omitted).

Similarly, this Court in McD. v. Rosen, supra, found the discovery rule inapplicable to toll the statute of limitations where the plaintiff contended that, while she had been aware of the sexual assaults, she was unaware of the impropriety of the defendant’s acts. Our eminent colleague, Judge Donald E. Wieand, determined that the discovery rule was inapplicable by reason of the well-settled prohibition against consideration of “ ‘a plaintiffs mental incapacity as a factor to be considered in determining the reasonableness of plaintiffs diligence’”. Id. 423 Pa.Super. at 310, 621 A.2d at 131 (quoting Barren by Barren v. United States, 839 F.2d 987, 994 (3d Cir.1988) (Sloviter, J., concurring)). See also: E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 622 A.2d 1388 (1993). Judge Wieand, in McD. v. Rosen, supra, found as do we, that the decision of the legislature to specifically preclude, in Section 5533 of the Judicial Code, any tolling of the statute of limitations during any period of insanity suffered by the plaintiff, precluded a finding by this Court that the statute could be tolled since “inclusion of a plaintiffs mental incapacity as a factor to be considered in determining the reasonableness of plaintiffs diligence runs counter to [the reasonable person standard]”. McD. v. Rosen, supra at 310, 621 A.2d at 131, quoting Barren by Barren v. U.S., supra. Thus, we find ourselves barred, as did the court in McD., by Sections 5501 and 5533 of the Judicial Code and prior pronouncements of our Supreme Court which clearly establish that the standard of reasonable diligence is an objective or external one which permits tolling of the statute only where “a reasonable [and mentally competent] person in the plaintiffs position would have been unaware of the salient facts.” If there is to be any departure from the clear and certain pronouncement of prior case law and statute, it must be taken by our legislature or Supreme Court. Thus it is that we affirm the summary judgment entered in favor of appellee.

Judgment affirmed.

      . Section 5524 of the Judicial Code provides:
      The following actions and proceedings must be commenced within two years:
      (1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
      (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.
      (4) An action for waste or trespass of real property.
      (5) An action upon a statute for a civil penalty or forfeiture.
      (6) An action against any officer of any government unit for the nonpayment of money or the nondelivery of property collected upon on execution or otherwise in his possession.
      (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter. As amended 1982, Dec. 20 P.L. 1409, No. 326, art. II, § 201, effective in 60 days.
      42 Pa.C.S. § 5524.

      . Section 5533 of the Judicial Code provides:
      (a) General rule.—Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.
      (b) Infancy.—If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term "minor” shall mean any individual who has not yet attained the age of 18.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    638 A.2d 976
    In re ADOPTION OF Courtney STICKLEY. Appeal of George McCOOK.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed Jan. 27, 1994.
    Reargument Denied April 4, 1994.

      Joseph M. Lamonaca, Exton, for appellant.
    Robert M. Diorio, Media, for Joanne Stickley, Participating Party.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

George McCook appeals from the March 16, 1992, order terminating his parental rights to his daughter, Courtney Stickley. Courtney was born on April 7, 1986. Her parents, McCook and Joanne Stickley, were married on May 14, 1988, subsequently divorced, and were involved in a child support and custody dispute. Stickley filed a petition for the appointment of a guardian ad litem, for Courtney. In the petition, Stickley, who has remarried, alleged that McCook is not Courtney’s natural father and requested paternity testing. A hearing on the petition was held on November 12, 1991. At that hearing, the parties entered an agreement on the record whereby Stickley was to file a petition to voluntarily terminate McCook’s parental rights and McCook agreed he would sign it. According to the agreement, McCook was to have a final visit with his daughter before the hearing on the petition to terminate, and Stickley was to reimburse McCook $3,500 for sums McCook had paid in child support. Apparently, this agreement was made in order to settle the custody dispute and to end the necessity for paternity testing. It also appears that Stickley has as her ultimate goal the adoption of Courtney by her current husband.

Stickley filed a petition to confirm consent to adoption on February 14, 1992, and a hearing on that petition was held on March 16, 1992. McCook refused to attend the hearing even though he was in the building. McCook’s attorney attended the hearing only long enough to inform the court that his client was not willing to sign a consent to adoption or a consent to relinquish his parental rights. Also, at the hearing, Stickley’s attorney indicated that McCook had refused the $3,500 reimbursement check. The court then entered an order which stated in part:

[T]he Court finds that the averments of the Petition are true, that the requirements of the Adoption Act in this regard have been complied with, and that the consent of the natural father, GEORGE McCOOK, have [sic] knowingly, intelligently and voluntarily surrendered all parental rights to COURTNEY STICKLEY, born on April 7, 1986.
It is, therefore, ORDERED and DECREED that all the parental rights of GEORGE McCOOK to his child, COURTNEY STICKLEY, born on April 7, 1986, are hereby terminated forever.

Order, 3/16/92. McCook filed exceptions to this order on April 7, 1992. Stickley filed a motion to dismiss, averring that McCook did not file his exceptions within the time limit prescribed by Local Orphan’s Court Rule 7-1-1. The trial court dismissed these exceptions with prejudice on August 4, 1992. McCook then filed this timely appeal.

McCook contends that his exceptions were timely filed and the court erred in finding that he had knowingly, intelligently, voluntarily and freely consented to the voluntary termination of his parental rights. Due to the unorthodox procedure which led to the termination of McCook’s parental rights, we reverse.

According to the agreement, Stickley was to file a petition to voluntarily terminate McCook’s parental rights. Under the Adoption Act, McCook would have to file the petition, not Stickley. A parent may voluntarily relinquish his parental rights to an adult intending to adopt the child. 23 Pa.C.S.A. § 2502. Section 2502 provides:

When any child under the age of 18 years has been for a minimum period of 30 days in the exclusive care of an adult or adults who have filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt), the parent or parents of the child may petition the court for permission to relinquish forever all parental rights to their child.

Id. Section 2503 requires the court to conduct a hearing, at which the petitioner must appear, on such a petition before entering a decree terminating the parental rights.

The record discloses that no report of intention to adopt Courtney was filed. Section 2531(c) does not require the filing of such a report when the child is related by blood or marriage to the person receiving or retaining physical custody. Thus, Stickley would not have had to file a report of intention to adopt, nor would Courtney’s step-father if he had been a party to this proceeding. Section 2502, however, explicitly states that a parent may petition the court for permission to voluntarily relinquish his rights only when the child has, for 30 days, been in the care of an adult who has “filed a report of intention to adopt required by section 2531.” 23 Pa.C.S.A. § 2502(a). The statute does not contemplate this situation— relinquishment to a natural parent. See, e.g., Petition of Varner, 68 D. & C.2d 552 (1973) (holding § 302, predecessor to § 2502, inapplicable and that the court did not have jurisdiction to grant father’s petition to voluntarily terminate his rights where father wanted to relinquish his rights in favor of his ex-wife, the natural mother). Furthermore, the statute only addresses those instances where the parent bringing the petition is the one whose rights will be terminated. Common sense dictates that this statute is not meant to allow one parent to petition for the voluntary termination of the parental rights of the other parent. Thus, § 2502 is inapplicable to this case.

Recognizing that she could not file a petition to voluntarily terminate McCook’s parental rights, Stickley filed a petition to confirm consent to adoption pursuant to § 2504(a). Section 2504, entitled “Alternative procedure for relinquishment,” provides:

If the parent or parents of the child have executed consents to an adoption as required by section 2711 (relating to consents necessary to adoption) but have failed for a period of 40 days after executing the consent to file or proceed with the petition for voluntary relinquishment of parental rights provided for in this subehapter, the [adoptive parent or parents] may petition the court to hold a hearing for the purpose of confirming the intention of the parent or parents to voluntarily relinquish their rights and duties as evidenced by the consent or consents to the adoption, the original of which shall be attached to the petition.

23 Pa.C.S.A. § 2504(a). After a hearing, of which the consenting parent must receive notice, “the court may enter a decree of termination of parental rights in the case of a relinquishment to an adult.” Id. at § 2504(b).

In order for the lower court’s ruling to be valid, McCook must have executed a consent to an adoption pursuant to § 2711. That section requires the parent of an adoptee who is under 18 to execute a written consent, with signatures of two witnesses, to the adoption of his child. 23 Pa.C.S.A. § 2711(d). “A consent to an adoption may only be revoked prior to the earlier of either the entry of a decree of termination of parental rights or the entry of a decree of adoption ... [and] shall be in writing....” Id. at § 2711(c). McCook never executed the required written consent to an adoption. The lower court’s order and opinion considered the November 12, 1991, agreement entered on the record as McCook’s consent. Our review of the record, however, indicates that no written consent was ever executed nor was a court order adopting this agreement ever filed. Thus, the requirements of § 2711 have not been met because McCook did not execute a written consent.

Furthermore, if an oral agreement in court may operate as consent under § 2711, McCook revoked that consent before a decree of termination or of adoption was entered. McCook’s refusal to accept the check tendered pursuant to the agreement, his refusal to attend the March 16, 1991 hearing, and his attorney’s statements at the hearing all evidence McCook’s intent not to relinquish his parental rights. To the contrary, they evidence McCook’s desire to revoke his consent. At the hearing, McCook’s attorney stated:

[O]n Friday or Saturday, I saw a letter from my client saying he was not going to sign either a consent to the adoption or a consent to relinquishing parental rights.
He is downstairs in Courtroom No. 9, and his position is that he will not sign either a consent to an adoption or a consent to the relinquishment.

N.T., 3/16/92, at 5. After this, the court entered the decree terminating McCook’s parental rights. It is obvious that McCook evidenced a desire not to voluntarily terminate his parental rights before those rights were terminated. Thus, the lower court erred in entering the decree of termination.

Both the lower court and Stickley rely on the case of In re Voluntary Termination of Parental Rights to M.L.O., 490 Pa. 237, 416 A.2d 88 (1980), for the proposition that “a party seeking to disturb a Decree of Voluntary Termination of Parental Rights for the purpose of adoption must show that the consent given to the termination was not intelligent, voluntary and deliberate.” Opinion at 4. This is a correct statement of the law, however, reliance on this case is misplaced. This standard only applies where a party attempts to revoke his consent after the termination decree has been entered. In M.L.O., the natural mother’s petition to relinquish her parental rights was granted and a decree of termination was entered. Four months later, the mother petitioned the court to set aside that decree claiming her consent was not voluntary, intelligent and deliberate. Here, McCook never executed a valid consent, or, even if he did, he revoked it prior to the entry of the decree. A parent may revoke his consent to an adoption before a decree of termination or of adoption is entered. 23 Pa.C.S.A. § 2711(c); K.N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981). Thus, the court did not have the authority to “voluntarily” terminate his parental rights and McCook is not required to prove his consent was not voluntary. In addition, we note that McCook’s attempted revocation is evidence that his consent was not voluntary. See, In re Fritz, 460 Pa. 265, 333 A.2d 466 (1975) (teen-age mother’s written consent held not to have been voluntary where her conduct after the consent was given and the decree was entered indicated that she did not intend to give up her son).

Termination of parental rights is a drastic measure that should not be taken lightly. Not only are George McCook’s rights at stake here, but Courtney’s right to a relationship with her father is also at stake. Our Supreme Court has written:

To effect an adoption, the legislative provisions of the Adoption Act must be strictly complied with. Our courts have no authority to decree an adoption in the absence of the statutorily required consents. Nor may exceptions to the Adoption Act be judicially created where the Legislature did not see fit to create them.

In re Adoption of E.M.A., 487 Pa. 152, 153, 409 A.2d 10, 11 (1979). Likewise, we will not terminate parental rights upon a petition to confirm consent to adoption where the statutory requirements have not been satisfied. We also decline to dismiss the appeal for a procedural error where the result is to forever extinguish the parent-child relationship.

Order reversed without prejudice to the filing of a petition that complies with statutory prerequisites. Jurisdiction relinquished.


author: HOFFMAN, Judge. DEL SOLE, J.,

text:
    638 A.2d 980
    Barbara KASHNER and George Kashner, Her Husband, Appellants, v. GEISINGER CLINIC, Arthur Thompson Colley, M.D.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1993.
    Filed Feb. 1, 1994.
    Reargument Denied April 11, 1994.

      Richard C. Angino, Harrisburg, for appellants.
    David J. Felicio, Dansville, for appellees.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the December 28,1992 order denying appellants’ Motion for Additur and/or a New Trial on Damages. Appellants, Barbara and George Kashner, present the following questions for our review:

A. Did the Trial Judge err by refusing to permit the jury to consider medical bills in the amount of $241,089.31 incurred by Plaintiff Barbara Kashner because those bills had been “paid” by a separate, although related, corporate entity?
B. Did this action violate the “Collateral Source Rule”?

Appellants’ Brief at 3. For the reasons set forth below, we reverse and remand.

The relevant facts, as stated by the trial court, are as follows:

On February 8, 1988, the plaintiff Barbara Kashner (Mrs. Kashner) visited the Shamokin State General Hospital emergency room complaining of pain in the lower right abdominal area. Blood tests showed Mrs. Kashner to have an increased white blood count with a “left shift” indicative of a possible infectious process. The Plaintiff was examined by Dr. Patrick D. Pugliese, who, after ruling out the possibility of appendicitis, made a preliminary diagnosis of gastroenteritis. In order to rule out any possible gynecological problems, Dr. Pugliese ordered a gynecological consult by Dr. Fernando C. Lagrimas. Dr. Lagrimas’ exam turned up no major gynecological problems, but he did make an erroneous diagnosis of Mittelschmerz or middle of the month pain, at a time when the Plaintiff was menstruating which, amazingly, according to Dr. Lagrimas’ testimony at trial, was made in order to justify his consult. Mrs. Kashner was told her symptoms would subside in a few days, and she was sent home.
A few days later, February 12,1988, Mrs. Kashner returned to the Shamokin Hospital emergency room with complaints of abdominal pain. More tests were run and appendicitis was again ruled out. She was diagnosed as having a small bowel obstruction and was transferred to the Geisinger Medical Center (G.M.C.) for further testing. After several days of testing at the G.M.C., the possibility of appendicitis was ruled out and Mrs. Kashner was diagnosed as having a Resolving Ileus and Proximal Gastritis. She was discharged on February 17, 1988.
On February 19, 1988, because of Mrs. Kashner’s acute t.pain, her family summoned an ambulance to transport her to the G.M.C. The responding paramedics decided that due to the Plaintiffs grave condition, she would not survive the trip to the G.M.C. and instead took her to the Shamokin Hospital. Upon her arrival at the Shamokin Hospital, Dr. Edward Twiggar performed emergency surgery during which he removed the Plaintiffs appendix, thereby saving Mrs. Kashner’s life. At this time Dr. Twiggar made a diagnosis of a burst gangrenous appendix.
After the operation Mrs. Kashner’s condition continued to be serious. Due to an abdominal infection, she developed Adult Respiratory Distress Syndrome and had to be placed on a ventilator. On March 6, 1988, it was decided that Mrs. Kashner was stable enough to be transferred to the G.M.C. via Life Flight. Upon her arrival at G.M.C., Mrs. Kashner was placed in the intensive care unit, where she remained for the next 87 days.
During her stay in intensive care, Mrs. Kashner’s future was in doubt several times. Several more surgical procedures were necessarily performed, including an exploratory Laparotomy, a Tracheotomy and the insertion of a right subclavian Swan-Ganz. At one point the catheter of the Swan-Ganz was cut by mistake and surgery was required to remove it. Also, while still in intensive care., Mrs. Kashner suffered an infarct (stroke) on the left side of her brain. Finally, on June 17, 1988, after a stay of 103 days, Mrs. Kashner was discharged from the G.M.C.
In March of 1990, Mrs. Kashner again spent 11 days at the G.M.C., during which a Post Diverting End Ileostomy was performed. This procedure was necessary in order to remove the “bag” which was attached to the Plaintiffs bowel approximately two years earlier, at the beginning of her lengthy ordeal. This “bag” was cumbersome and required constant care and cleaning. In April, 1992, on the eve of the originally scheduled trial of this matter, Mrs. Kashner was again admitted to the G.M.C. A bronchoscopy revealed a lung infection and surgery was performed in order to remove a portion of the Plaintiffs right lung.
On March 11, 1988, the G.M.C. approved Mrs. Kashner for their Charity Care Program. A fraction of her bills were paid for by the Department of Public Welfare, the remainder of her bills were “written off’ by the G.M.C.

Trial Court Opinion, December 28, 1992, at 1-4.

On December 22, 1989, appellants filed a complaint against several physicians, including Arthur Colley, and their employers, the Geisinger Medical Center (hereinafter “GMC”) and the Geisinger Clinic (hereinafter “Clinic”), alleging negligence in the failure to diagnose acute appendicitis and seeking damages in excess of $1.2 million. Prior to the start of trial, several defendants were dismissed by stipulation. In addition, the GMC filed a motion in limine seeking to limit the amounts of medical bills provable by appellants to those amounts paid for by the Department of Public Welfare (hereinafter “DPW”) on their behalf. The GMC’s motion was granted and the case proceeded to trial on October 13, 1992. On October 26, 1992, the jury returned a verdict finding Geisinger Clinic 50% negligent, and Arthur Colley 50% negligent. The jury awarded appellants damages in the amount of $134,510.29. Appellants subsequently filed post-verdict motions for additur and, in the alternative, a new trial limited to damages. The trial court denied these motions and this timely appeal followed.

Appellants first contend that as the trial court erred by refusing to permit the jury to consider medical bills in the amount of $241,089.31 incurred by appellant Barbara Kashner in excess of the $59,510.29 paid by the DPW, there should be a new trial limited to the issue of damages. We agree.

Preliminarily, we point out that “[o]ur standard of review for rulings on the exclusion of evidence is very narrow. An appellate court will reverse the ruling of the trial court only for an abuse of discretion or error of law.” Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991) (citing Concorde Investments v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985)). With this standard in mind, we will proceed to the merits of appellants’ charge of error.

In the instant action, the trial court limited the amount of medical expenses provable by appellants to those amounts paid for by the DPW. In doing so, the trial court relied upon Hauck v. Ohio Casualty Group of Ins. Cos., 361 Pa.Super. 370, 522 A.2d 628 (1987), appeal denied, 516 Pa. 641, 533 A.2d 712 (1987) and its companion case, Brower v. Nationwide Mut. Ins. Co., 361 Pa.Super. 385, 522 A.2d 635 (1987), appeal denied, 518 Pa. 634, 542 A.2d 1364 (1988), for the proposition that a plaintiffs recovery of medical expenses is limited to the amount which was actually paid for the medical services. However, we find such reliance to be misplaced. This court’s holding in Hauck and Brower was based upon our interpretation and application of the Pennsylvania No-Fault Act. See Hauck at 373, 522 A.2d at 630 (“We believe that this case must be determined by construing the language contained in Section 103 of the No-fault Act____”). Hence, neither Hauck nor Brower are applicable to the instant action.

It is well-settled that a plaintiff in a personal injury action seeking damages for the cost of medical services provided to him as a result of a tortfeasor’s wrongdoing is entitled to recover the reasonable value of those medical services. See, e.g., Ratay v. Yu Chen Liu, 215 Pa.Super. 547, 551, 260 A.2d 484, 486 (1969). While we agree that the amount that was actually paid to the GMC for Mrs. Kashner’s medical services may be relevant in determining the reasonable value of those services, see, e.g., Knoble v. Ritter, 145 Pa.Super. 149, 156-57, 20 A.2d 848, 851 (1941), the trier of fact must look to a variety of other factors in making such a finding. Among those factors to be considered by the jury are the amount billed to the plaintiff, and the relative market value of those services.

Clearly, the amount actually paid for medical services does not alone determine the reasonable value of those medical services. Nor does it limit the finder of fact in making such a determination. See Brown v. White, 202 Pa. 297, 312, 51 A. 962, 965 (1902) (the damages entitled to plaintiff for medical expenses are determined by assessing what would reasonably compensate the physicians providing the services regardless of what the physicians had actually been paid). See also D. Dobbs, Handbook on the Law of Remedies § 8.1, at 543 (1973) (“The measure of recovery is not the cost of services ... but their reasonable value____ [R]ecovery does not depend on whether there is any bill at all, and the tortfeasor is liable for the value of medical services even if they are given without charge, since it is their value and not their cost that counts.”); Restatement (Second) of Torts § 924 comment f (1979) (“The value of medical services made necessary by the tort can ordinarily be recovered although they have created no liability or expense to injured person, as when a physician donates his services.”). Hence, we find that the trial court erred in precluding appellants from proving medical expenses in excess of those amounts paid for by the DPW.

Appellees contend, however, that as the Clinic and the GMC are part of the same medical group, the Clinic should be credited with the GMC’s forgiveness of Mrs. Kashner’s medical bills. This argument is without merit.

It is only where the tortfeasor himself makes a payment towards his tort liability that the payment will have the effect of reducing his liability. Restatement (Second) of Torts § 920A comment a (“If a tort defendant makes a payment towards his tort liability, it of course has the effect of reducing his liability.”); D. Dobbs, Handbook on the Law of Remedies § 8.10 at 583 (where plaintiffs medical costs are paid by the defendant, the defendant is entitled to a corresponding reduction in liability). See, cf., Denardo v. Carneval, 297 Pa.Super. 484, 495, 444 A.2d 135, 141 (1982) (“ ‘Clearly, the fact that an injured party has received compensation from a source other than the wrongdoer is without relevancy in a suit brought by the injured party against the wrongdoer to recover damages.’ ”) (emphasis added), quoting Moidel v. Peoples Natural Gas Co., 397 Pa. 212, 154 A.2d 399 (1959). As appellees themselves admit, it was the GMC who forgave the medical bills which were not satisfied by the DPW’s payment. Hence, the Clinic is not entitled to any reduction in liability for the GMC’s “payment” of medical bills.

Appellees argue, nonetheless, that as the GMC and the Clinic are the same entity, the GMC’s forgiveness of Mrs. Kashner’s medical bills should be credited to the Clinic. Appellees support this contention by pointing out that although separately incorporated, both the Clinic and the GMC share a parent corporation, the Geisinger Foundation, which has the power to appoint the corporate members of both the Clinic and the GMC who in turn elect their respective boards of directors. In addition, appellees point out that both the Clinic and the GMC share a trust fund which is used to satisfy judgments entered against either corporation.

Our Supreme Court has held that “courts will disregard the corporate entity only in limited circumstances when used to defeat public convenience, justify wrong, protect fraud or defend a crime.” Kiehl v. Action Mfg. Co., 517 Pa. 183, 190, 535 A.2d 571, 574 (1987) (citing Wedner v. Unemployment Compensation Bd. of Review, 449 Pa. 460, 296 A.2d 792 (1972)); Shelburne Sportswear, Inc. v. City of Philadelphia, 422 Pa. 199, 203, 220 A.2d 798, 800 (1966) (citation omitted). Here, appellees request that we disregard the corporate form to allow the Clinic to receive credit for the GMC’s forgiveness of Mrs. Kashner’s medical bills. We do not find this to be sufficient reason for us to disregard the Clinic’s status as a separate corporate entity.

Clearly, the Clinic realized benefits from separate incorporation. In their brief, appellees point out that the Clinic was separately incorporated so that it would be considered a separate health care provider under the Pennsylvania Health Care Services Malpractice Act, 40 P.S. § 1301.101, et seq. One resulting benefit is that the Clinic has its own coverage limit under the Professional Liability Fund. See 40 P.S. § 1301.701(d) (“The limit of liability of the fund shall be $1,000,000 for each occurrence for each health care provider and $3,000,000 per annual aggregate for each health care provider.”) (emphasis added). Moreover, as a separate corporate entity, the Clinic is insulated from the GMC’s liabilities. See, cf., In re Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987).

In addition, the Clinic employs its own staff of physicians and, other than the fact that it shares a parent corporation with the GMC, the Clinic appears to operate independently of the GMC. After a careful review of the record and the parties’ briefs, we do not find appellees’ arguments so compelling that we would allow the Clinic to reap the benefits of incorporation while at the same time “pierce the corporate veil” and allow it to profit from the GMC’s forgiving of Mrs. Kashner’s bills.

Hence, we reverse the order of the trial court and remand for a new trial on damages limited to a determination of the reasonable value of the services provided to Mrs. Kashner.

The order of the trial court is reversed. This case is remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.

DEL SOLE, J., files a concurring statement.

DEL SOLE, J.,

concurring.

I join the Majority Opinión authored by Judge Hoffman. I only wish to point out that where a tortfeasor makes a prejudgment payment to reduce liability, the reduction occurs after the extent of the liability is determined. It is not used to limit that determination.

      . Geisinger Clinic and Arthur Colley are the appellees in the instant appeal.

      . Specifically, - the jury awarded appellants $59,510.29 for medical expenses and $75,000 for pain and suffering.

      . As a result of our disposition of this issue, we need not address appellants’ second claim.

      . As mentioned above, the DPW paid a fraction of Mrs. Kashner’s medical bills. The remainder was "written off” by the GMC.

      . See Kravinsky v. Glover, 263 Pa.Super. 8, 24, 396 A.2d 1349, 1357 (1979) (where the medical services rendered were found to be necessary, the bills for those services were properly admitted into evidence); Ratay v. Yu Chen Liu, 215 Pa.Super. 547, 260 A.2d 484 (1969).

        . See Eagle v. Snyder, 412 Pa.Super. 557, 604 A.2d 253 (1992) (reasonable value of medical services may be determined through expert testimony regarding the market value of the medical services provided based on the average charges in the region where the services were performed).

      . We point out that the record indicates that a small portion of Mrs. Kashner’s medical bills were charged by the Clinic. Like the GMC, the Clinic accepted payment by the DPW for these services and the Clinic forgave the charges which remained unsatisfied. Hence, the amount of damages assessed against the Clinic should be reduced to the extent that the reasonable value of the medical services provided and billed by the Clinic exceeds the DPW’s payment.

      . Although GMC and the Clinic allegedly share a common trust fund for the payment of judgments, if a judgment against the GMC were to exceed the amount in the trust fund, the plaintiff would only be able to collect against the assets of the GMC.

      . We point out that the only damages sought by appellants were for medical costs and pain and suffering. As the cost of medical services is considered irrelevant and inadmissible as evidence of pain and suffering, see Greenwood v. Hildebrand, 357 Pa.Super. 253, 262, 515 A.2d 963, 967 (1986) (citing Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983)), appeal denied, 515 Pa. 594, 528 A.2d 602 (1987), the new trial on damages will be limited to a determination of appellants’ claim for medical costs.


text:
    638 A.2d 985
    COMMONWEALTH of Pennsylvania v. Wade H. CORLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1994.
    Filed March 9, 1994.

      Kyle W. Rude, Asst. Public Defender, Bellefonte, for appellant.
    April L. Chamberlain, Asst. District Atty., Bellefonte, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered against Wade Corley after a jury convicted him of rape, involuntary deviate sexual intercourse, and related charges. Corley contends that a statement he made during the incident should not have been admitted against him and, if it was properly admitted, the trial court failed to give an appropriate hmiting instruction. We have reviewed this case thoroughly and are constrained to affirm.

In the late evening of August 31, 1991, Corley was hanging around a video arcade in State College and introduced himself to a young woman, whom we will refer to as “W.P.” The two talked briefly and left the arcade to purchase cigarettes. On the way back to the arcade, Corley gave W.P. a ring and kissed her. Corley later told W.P. that he had to return a backpack to a friend’s apartment nearby and asked her to join him. W.P. testified that she was apprehensive about the sojourn, but accompanied Corley at his insistence.

Corley continued his aggressive courting of W.P. by kissing her while they were on the elevator riding to Corley’s friend’s apartment on the seventh floor. W.P. told Corley that he was “moving too fast” and that she “just wanted to be friends.” N.T. 5/19/92, at 15. Corley continued his advances in the hallway outside of the apartment and W.P. resisted again, still proclaiming that she wanted to be friends. Corley then told W.P. that since his friend was not home, he wanted to put the backpack in the laundry room next door. He also asked her to go into the room with him because he wanted to talk to her. W.P. acquiesced and Corley turned off the lights and shut the door. He then propped W.P. on top of a dryer and forcibly removed her clothes. He began licking W.P.’s chest and she began to cry. Corley told her that if she screamed or cried loudly, he would “break her fucking neck.” According to W.P., he then masturbated, ejaculated on her leg, twice performed oral sex on her, attempted to coerce her to perform oral sex on him, and had intercourse with her.

Corley steadfastly denied at trial that he had intercourse with W.P. He claimed that the two were consensually “making out in the laundry room,” and that while on top of the dryer, W.P. opened his pants and “sort of gave him a hand job.” N.T. 5/20/92, at 39. She then asked Corley to have sex, to which he responded that he had a wife and would not philander. He claimed that W.P. began to cry at this point, that he tried to console her, and that he regretted having gone too far. He denied that he stripped W.P. of any clothing or forcibly performed oral sex on her. The jury returned guilty verdicts on all counts, making it apparent that the jurors lent more credibility to W.P.’s account of the events than it did Corley’s.

The testimony at issue on this appeal occurred during W.P.’s direct examination. She claimed that after Corley performed oral sex on her (but before intercourse), Corley told her that “he had done this twice before,” meaning rape. The exchange went as follows:

Q: Okay. Now after he had oral sex with you again, what happened next?
A: He pushed me or he pulled me forward.
Q: How did he do that?
A: He grabbed my ankles.
Q: Okay. Did he say anything to you at this point?
A: He said that he had done this twice before. Once to a young girl in Bellefonte.
Q: Okay. And at that point what happened?
A: He stuck his penis in my vagina.

Id. Corley contends that: (1) the reference to having “done it . twice before” was inadmissible because it improperly referred to uncharged past criminal conduct; and (2) in the event it was admissible, the trial court erred in failing to give an appropriate instruction explaining to the jury the limited permissible use of the testimony. We will address each contention in turn.

I.

It is axiomatic that a defendant’s prior criminal conduct is inadmissible in most cases to prove that he has a propensity to commit a crime. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). An exception to the general proscription, however, allows the admission of a.defendant’s statement about prior criminal activity when the statement is made to intimidate or threaten a victim, and force or threat of harm is an element of the offense charged. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). In Claypool, the defendant was on trial for rape. He told his victim during the rape episode that he had been in jail. The victim testified, in pertinent part:

Q: And what, if anything, further did he say to you?
A: He said that I had—he said that I better not try to get away or to scream or holler because if I did he would shoot me and anybody else who got in his way and hopefully that if the police came that he would get killed too because he would never go back to jail again.
Q: Did he tell you why he had been in jail?
A: Yes, he did.
Q: What did he tell you about being in jail?
A: He told me he was in jail before for rape.
sS* * # % sfs
Q: And what affect [sic] did this have upon you?
A: I was scared to death because then I knew what he was going to do to me.

Id. at 202, 495 A.2d at 177-178. Our Supreme Court explained that the defendant’s references to his past rape should be admissible evidence:

In a case such as this, in which the defendant himself has made his prior criminal activity or conviction—whether or not the defendant actually did engage in such criminal activity or did have such a conviction—an element of the crime with which he is now charged, our failure to allow this evidence to be admitted would grant to a whole class of criminals immunity from their crimes. If such evidence were not admissible, a criminal would only need to make sure that the fear needed for the commission of his crime emanated from a threat which only embodied a claim of prior criminal activity to be “excused” for his activity. If there were other threats of fear accompanying a defendant’s claim that he engaged in prior criminal activity, the exclusion of evidence of defendant’s statement would present a much weaker case.

Id. at 205, 495 A.2d at 179.

Our review of Claypool leads us to the inescapable conclusion that Corley’s statements regarding his previous rapes were properly admitted to show threat or force. Corley made the statement immediately before having intercourse with W.P. and undoubtedly meant to intimidate her. Corley argues that his case is distinguishable from Claypool because he was never actually convicted of the prior rapes, and because W.P. initially told police that he made the statement after the incident. These claims are spurious. Whether the prior crimes were brought to conviction is irrelevant. It is the purpose behind the statement that governs its admissibility, not its truth; our Supreme Court stated as much. Id. Furthermore, whether W.P.’s story changed at trial is also irrelevant. The proper time to challenge her memory is during cross-examination. As offered, however, the statement was probative of Corley’s effort to force W.P. to have intercourse, and eminently proper under Claypool.

II.

Although statements regarding past crimes are admissible to show threat or intimidation, Claypool requires that “such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.” Id. at 206, 495 A.2d at 179. During its charge to the jury, the trial court instructed the jury in this case as follows:

There’s evidence tending to prove the defendant has a past criminal conviction. This evidence is not evidence of the defendant’s guilt. You must not infer guilt from the evidence of a prior conviction. This evidence may be considered by you for one purpose only. That is to help you judge the credibility and the weight of the testimony given by the defendant as a witness in this trial. In considering the evidence of prior conviction you may consider the type of crime committed, and how it may affect the likelihood that the defendant has testified truthfully in this case.

N.T. 5/20/92, at 110. Corley submits that this instruction did not explain the specific purpose for admitting the statements regarding Corley’s criminal activity. Although we agree with this contention, we cannot grant him a new trial on this ground.

There can be no question that the trial court’s instruction was improper. The trial court states in its opinion that it “specifically instructed the jury the evidence of Defendant’s prior criminal conviction was to be considered for one purpose only. That purpose was to help the jury judge the credibility and weight of the testimony given by the Defendant as a witness in this trial. The instruction was cautionary and carefully explained [the evidence’s] limited purpose.” This reasoning is suspect because Corley’s statements were not admitted to impeach his testimony. They were admitted as substantive evidence to prove that he forced W.P. to have intercourse. This is the whole point behind Claypool, and we are at a loss to understand how this escaped the trial court since the record makes it very clear that the references were admitted for precisely that purpose.

Furthermore, Corley’s references to “doing this twice before” were references to prior criminal activity, not prior convictions, and as such were not admissible to impeach. In order to impeach with a prior criminal act, it must be proven that a defendant’s prior conviction, among other things, was for a crime involving dishonesty or a false statement. Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Here, Corley’s assertions were far from being proven as convictions and, even if they were, rape is not a crime that involves dishonesty or false statements. Commonwealth v. Benefiel, 254 Pa.Super. 248, 385 A.2d 1003 (1978); see Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977) (statutory rape does not involve dishonesty). The trial court’s instruction, insofar as it referred to Corley’s prior criminal activity, was error because it did not explain why the evidence was admitted and, furthermore, allowed the jury to conclude that Corley was convicted of prior rapes—an improper use of the statements no matter how one looks at it.

Just as important, moreover, is the trial court’s failure to even make reference to the prior rapes testimony in its instruction. In Claypool, the Court made it abundantly clear that the jury “must” understand why the testimony is being admitted. For example, the lower court in Claypool gave the following instruction, which the Supreme Court heralded as being the type of instruction that guards against improper use of the testimony:

In the testimony of the witness presently on the stand ..., yesterday it was stated that before the first act of rape the defendant informed her that he had been in jail previously for an alleged rape. According to [the victim], the defendant told her the incident involved the wife of a cousin of the defendant____ [T]his testimony if it be accepted by the jury, that is to be believed, must be used for the sole purpose it was offered. That was to show why the will of [the victim] was overcome to make that act of intercourse and possibly later involuntary deviate sexual relations without her consent____ The general rule is that evidence of prior criminal acts cannot be considered by a jury in determining guilt for the act of that which defendant is presently being tried. On the other hand, although this evidence was generally inadmissible it was permitted to be received because it may tend to prove, if believed, one of the necessary elements that the Commonwealth must establish beyond a reasonable doubt for both the offense of rape and involuntary deviate sexual relations. That is, taking the act that it is claimed or acts that are claimed to be performed as to whether or not the will of the defendant [sic] was overcome ... [t]he testimony of the defendant’s alleged prior involvement in a rape is to be considered only for what affect [sic] it had on a person of reasonable resolution to determine whether or not that by itself or with the other acts, the pointing of the gun if that occurred, the physical force if that occurred, or whatever it was that overcame her resistance, if it did, would have done so as to a person of reasonable resolution. That’s the reason and the only reason that that testimony was received and it must be considered by the jury in that limited context.

Claypool, 508 Pa. at 202, 495 A2d at 178, n. 1. This instruction, which was given during the victim’s testimony, thoroughly explained the limited purpose of the prior criminal acts testimony. Given our Supreme Court’s adoption of its language, it is an appropriate model for Claypool instructions.

The trial court’s instruction in this case, however, fell woefully short of acceptable because it did not refer to the prior conduct as “conduct” only, was given as part of the general charge at the close of Corley’s case, and incorrectly explained why the evidence was admitted. Although the jury did hear evidence that Corley was convicted of attempted theft, allowing the jury to believe that Corley was convicted of a previous rape, and allowing it to use that supposition to impeach Corley’s testimony, was so prejudicial that we can have no confidence in Corley’s conviction. The jury simply had no proper framework within which it could consider Corley’s alleged statement.

Although our review of the record indicates that the trial court’s error was palpable, the instruction, improper as it was, was given without objection by defense counsel. It is for this reason that we cannot grant Corley relief. In Commonwealth v. Gabrielson, 370 Pa.Super. 271, 536 A.2d 401 (1988), we held that although a proper cautionary instruction is vital to protect the potential prejudice caused by a jury’s improper use of prior criminal acts, counsel is under a duty to request the instruction. Here, the trial court allowed W.P. to testify regarding Corley’s statement about the prior rapes and did not caution the jury during her testimony that the evidence had a limited use. Defense counsel, however, sat silently. During the jury charge, likewise, counsel did not ask for a specific Claypool instruction, nor did he seek to narrow the scope of the trial court’s “impeachment” instruction. It cannot be contended now that the instructions constituted reversible error.

A defendant must object to a jury charge at trial, lest his challenge to the charge be precluded on appeal. Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990), alloc. denied, 527 Pa. 585, 588 A.2d 508 (1991); Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579, alloc. denied, 517 Pa. 592, 535 A.2d 82 (1987); Pa.R.Crim.P., Rule 1119(b), 42 Pa.C.S.A. Furthermore, the defendant’s failure to request a specific instruction will waive any claim that the instruction should have been given. Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981). Even where the alleged error is “basic and fundamental,” as we feel was the case here, any challenge to instruction must be initiated in the trial court. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1973). The process of preserving an objection in the trial court is essentially a rule of administration which requires an appellate court to reverse a trial court only when there has been a ruling below. Although its application in this case seems arbitrary, based on the unmistakable effect of the error, the appellate court may not grant relief on its own, and as long as Clair is the law, this is the way it must be.

Our Supreme Court in Clair, was quick to mention, however, that where a defendant is deprived fundamental rights of due process, he will not sit in jail because of counsel’s dereliction:

Indeed, abrogating the [“basic and fundamental error’’] doctrine in the criminal area may be even more compelling since any error that deprives a defendant due process can more properly be remedied by a claim of ineffective assistance of counsel. Our standard for effective assistance is a meaningful test and not simply a fictional standard which does no more than allow appellate courts the opportunity to select those alleged errors they wish to review.

Clair, 458 Pa. at 421, 326 A.2d at 274.

Here, Corley was represented by the Centre County Public Defender’s Office at trial and here on appeal. He has not yet had an opportunity to claim that trial counsel’s performance was ineffective and may do so on collateral attack. As for now, however, we are constrained to hold that Corley’s objections to the jury instructions have been waived.

Judgment of sentence affirmed.

      . The Commonwealth presented a host of police officers and investigators to testify that W.P. was extremely upset on the evening of the incident. The Commonwealth also presented forensic experts who established that the semen found on W.P.’s clothes was Corley’s and that fingerprints found on the dryer belonged to Corley. Since all of this testimony is consistent with both W.P.'s and Corley’s account of the events, we can only conclude that the jury accepted W.P.’s version.

      . Corley’s current attorney does not raise the issue of trial counsel’s ineffective assistance. Normally, subsequent counsel must challenge a prior counsel’s stewardship at the earliest available opportunity. When both attorneys are from the same office, however, the general rule does not apply because we do not expect, nor do we generally allow, associates to challenge each other’s performance.