author: WIEAND, Judge:

text:
    547 A.2d 1180
    Evelyn MORGANSTEIN, Executrix of the Last Will and Testament of Morton Morganstein, Deceased, Appellant, v. Benjamin HOUSE, M.D., Appellee.
    Superior Court of Pennsylvania.
    Submitted April 7, 1988.
    Filed Aug. 18, 1988.
    Reargument Denied Oct. 5, 1988.

      Keith S. Erbstein, Philadelphia, for appellant.
    Stanley P. Stahl, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal from the judgment entered following a defense verdict in a medical malpractice action, the principal issue is whether the trial court erred by instructing the jury on the “two schools of medicine” doctrine.

On June 24,1980, Morton Morganstein made a professional visit to Benjamin House, M.D., who had been his physician for almost twenty years. Morganstein complained of pain in his left armpit, which radiated down his left arm. Dr. House was a primary care or family physician. Morganstein was overweight and had a history of hypertension; and Dr. House had been treating him regularly since 1962 for asthmatic bronchitis. On June 24, 1980, the doctor made a routine examination of his patient, took a history, found his blood pressure to be 140 over 80, and administered an electrocardiogram (EKG). House interpreted the EKG as being normal, observed that Morganstein was not in pain, diagnosed his patient’s condition as presumptive coronary artery disease, and prescribed nitroglycerine as a therapeutic trial. Dr. House also advised Morganstein to restrict his activity, not to go to work, to return for additional evaluation on July 1,1980, and to contact him immediately in the event of subsequent pains. Morganstein immediately returned to work. Two days later Mrs. Morganstein called and expressed concern for her husband’s condition. Dr. House told her to have her husband call him. On the evening of June 26, 1980, Morganstein called Dr. House, inquired about test results, and said that he felt fine. He also reported that he had suffered left axillary pain for a few minutes the night before, for which he had taken nitroglycerine. Dr. House again recommended that Morganstein restrict his activity, told him to call immediately if the symptoms worsened, and said he would see him in a few days at the time of their scheduled appointment. On June 29, 1980, after a late night of socializing, Morganstein began to experience pain and placed a nitroglycerine tablet under his tongue. When the pain persisted, his wife called a nearby hospital, which agreed to see him immediately. As he was leaving home about 2:00 a.m., Morganstein collapsed and died of a heart attack.

Letters testamentary were issued to Evelyn Morganstein, and she commenced an action to recover for her husband’s death in which she alleged that Dr. House had been guilty of medical malpractice. At trial, Michael Barrett, M.D., a cardiologist, opined that the June 24th EKG had disclosed significant changes which suggested that the decedent had been suffering from unstable angina, a condition which required immediate hospitalization, in addition to nitroglycerine. However, defendant’s cardiologist, Dr. Norman Makous, testified that his examination of decedent’s EKG revealed no significant heart changes and that Dr. House’s treatment under the circumstances had been in accordance with accepted medical practice. Dr. House also testified that neither the EKG nor any of his patient’s symptoms had indicated unstable angina and that hospitalization had not been warranted. Following a four day trial, the jury returned a verdict in favor of the defendant physician.

After defining negligence and instructing the jury on causation, the trial court charged the jury as follows:

There was testimony here as to the proper or improper methods used or utilized by physicians in regard to cardiac problems. One expert testified one way, another expert testified differently. So that you will have to decide whether the manner followed by either or the other expert was proper or the method employed was proper. In assisting you in doing this, I wish to advise you that “a physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought, even though the school that he follows is a minority one. He will not be deemed to be negligent or practicing improperly so long as it is representable and respected by reasonable medical experts.”

At the conclusion of the trial court’s instructions, appellant’s counsel recorded the following objection:

MR. ERBSTEIN: Your Honor, you discussed the competing schools of thought in conjunction with discussing the fact that the different experts in the case expressed different opinions. And in that chronological sequence of discussing that, I believe one gets the impression that if there are two experts who testify on the witness stand and one said one is appropriate and the other says the other is appropriate that if the doctor merely followed one of the things that one of the experts said—
THE COURT: If reputable.
MR. ERBSTEIN: I believe it was confusing, Your Honor. I take exception—
THE COURT: Okay.

Appellant contends that the trial court’s instruction on two schools of medicine was inapplicable and inappropriate and should not have been given.

Initially, we must determine whether this issue has been properly preserved for appellate review. Appellee asserts that the present argument was not included in the objection made by appellant at trial, which was directed to the confusing nature of the instruction. We conclude that the issue of whether the inclusion of this portion of the court’s instructions was confusing because inapplicable to the facts has been properly preserved for appellate review.

The doctrine of different schools of medicine has been clearly stated at 29 P.L.E. Physicians and Surgeons § 23 as follows:

A physician or surgeon is not bound to employ any particular mode of treatment, and where among physicians or surgeons of ordinary skill and learning more than one method of treatment is recognized as proper, it is not negligence for a physician to adopt either of such methods. Thus, in cases where medical authorities differ, a competent physician or surgeon is only bound to exercise his best judgment in determining what course of treatment is the best, and where competent medical authority is divided, a physician or surgeon will not be held responsible if, in the exercise of his judgment, he follows a course of treatment advocated by a considerable number of his profession in good standing in his community.

Id. (footnotes omitted).

The rule was first articulated in Remley v. Plummer, 79 Pa.Super. 117 (1922), where the issue was whether it had constituted negligence to administer a general anesthetic during minor surgery instead of a local anesthetic. The Superior Court stated the reason for the rule as follows:

The question actually passed upon by the jury was not whether the defendants, in their handling of the case, had been guilty of negligence in not following a well-recognized and established mode of treatment, but rather, which of two methods, both having their respective advocates and followers of respectable authority, was the safer and better from a surgical standpoint. In other words, in the face of conflicting reliable expert evidence as to what was the proper course to be pursued by the surgeon in charge of the case, twelve laymen, with no knowledge of medicine and surgery were called upon to decide a disputed scientific medical and surgical question upon which eleven physicians and surgeons of standing and experience could not agree, and as to which there is a wide divergence of competent authority____

Id. at 121. This, the Court said, had been error. “If the treatment is in accordance with a recognized system of surgery, it is not for the court or jury to undertake to determine whether that system is best, nor to decide questions of surgical science on which surgeons differ among themselves.” Id. at 123, quoting 30 Cyc. 1588, section 8. The rule was subsequently adopted and made a part of the law of this Commonwealth by the Supreme Court in Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935). See also: Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980); Trent v. Trotman, 352 Pa.Super. 490, 508 A.2d 580 (1986).

However, the rule is not without limitation. In Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939), a young boy had fallen on a stick which penetrated his thigh by several inches. His physician treated the wound by cleaning and bandaging it. He did not give the boy an injection of tetanus anti-toxin. A tetanus infection caused the boy to suffer lockjaw. Plaintiffs experts testified that proper treatment for a puncture wound included an anti-tetanus injection. Defendant’s experts opined that the wound had been a “lacerated” or “tunneling” type wound for which cleaning and bandaging constituted proper treatment. The trial court instructed the jury on the “two schools of thought” doetrine, and the jury returned a verdict for the defendant. The trial court set aside the verdict and granted a new trial. The Supreme Court affirmed. It held that where medical experts in a case agree as to the recognized and established proper treatment for a particular type injury but there is a dispute as to whether the plaintiff had that type of injury, the latter question is one of fact for the jury.

Similar limitations had been recognized by the Superior Court via dictum in Remley v. Plummer, supra, when it said:

[I] f there is a reasonably general agreement as to what is the proper medical treatment for a disease or the proper surgical treatment for an injury and there is a dispute as to whether the physician or surgeon in charge of the case used the method or means thus generally prescribed a question of fact is presented which is for a jury to determine. Or if the symptoms of a disease or the effects of an injury are so well known that a reasonably competent and skillful physician or surgeon ought to be able to diagnose the disease or injury, his negligence in failing to do so is likewise a matter of fact on which a jury of laymen may pass judgment.

Id. at 122.

Appellant argues that these limitations are applicable to the instant case. He contends that whether Dr. House should have diagnosed his patient’s malady as an unstable angina requiring immediate hospitalization and treatment was an issue of fact for the jury. We agree. It was Dr. Barrett’s testimony that the unstable angina was apparent from the EKG reading and that the patient should have been hospitalized immediately. He conceded that most patients with stable angina can obtain relief with nitroglycerine. On the other hand, it was the testimony of Dr. House and Dr. Makous that neither the patient’s symptoms nor the EKG had disclosed that the patient was suffering from an unstable angina requiring immediate hospitalization. Dr. Makous testified that under such circumstances, there having been no prior history of heart disease, it was sound medical practice to use nitroglycerine as a therapeutic trial and to aid in the evaluation of the patient’s complaints. He did not negate a need for immediate hospitalization when a patient has unstable angina.

Whether Dr. House should have diagnosed Morgan-stein’s condition as an unstable angina and hospitalized him for treatment and further testing was an issue of fact for the jury. To instruct the jury regarding two schools of medical thought, under these circumstances, was inappropriate.

Appellee argues, however, that the trial court’s charge, when examined in its entirety, did not mislead the jury. This argument relies on the well-established principle that whether a charge is erroneous depends on an examination of the charge as a whole and not on isolated portions taken out of context. See: Baker v. Pa. Nat’l Mutual Casualty Ins. Co., 370 Pa.Super. 461, 469, 536 A.2d 1357, 1361 (1987); Mecca v. Lukasik, 366 Pa.Super. 149, 167-168, 530 A.2d 1334, 1343 (1987); 10 St.Pa.Prac.2d § 59:52.

In the instant case, the principle of different schools of medical thought and its possible application were not further explained to the jury by the trial court. Therefore, it was possible for the jury to interpret the instruction as requiring a finding that Dr. House was not negligent so long as his conduct was supported by the testimony of another medical expert. We are constrained to conclude, therefore, that the erroneous instruction was neither harmless nor corrected by any other part of the court’s charge. Because it may have contributed to the verdict, a new trial is required. Richmond v. A.F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 271-272, 218 A.2d 303, 304 (1966). Ackerman v. Delcomico, 336 Pa.Super. 569, 578 n. 1, 486 A.2d 410, 415 n. 1 (1984).

We find no merit in appellant’s remaining assignments of error. Because there was evidence that the decedent had disregarded his physician’s instructions regarding his returning to work and also regarding his use of nitroglycerine, the trial court could properly instruct the jury, as it did, on Morganstein’s possible contributory negligence and the law of comparative negligence. See, e.g.: McCullough v. Monroeville Home Ass’n, 270 Pa.Super. 428, 411 A.2d 794 (1979) (if there is any evidence of contributory negligence it is reversible error to refuse to charge thereon).

Moreover, it would have been improper for the trial court to instruct the jury, as appellant urged, that it could draw an inference adverse to the defendant merely because only a portion of the electrocardiogram print-out had been retained. The evidence was that it was generally accepted medical practice to segment off and cut up electrocardiogram results, while retaining only a small portion thereof as a permanent record. In light of such evidence, the trial court properly refused appellant’s request for an instruction that would have permitted the jury to draw an inference adverse to the physician because only a part of the EKG print-out had been retained. See generally: Haas v. Kasnot, 371 Pa. 580, 584-585, 92 A.2d 171, 173 (1952) (adverse inference applies only where party failing to produce evidence which is in its control and would naturally be in its interest fails to give a satisfactory reason for the omission); Farley v. Southeastern Pennsylvania Transportation Authority, 279 Pa.Super. 570, 577-580, 421 A.2d 346, 350-351 (1980) (per Watkins, J., with two judges concurring in result) (same).

Nevertheless, for the reason hereinbefore set forth, a new trial must be granted.

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


source: Caselaw Access Project

author: DEL SOLE, Judge: ROWLEY, Judge,

license: Public Domain

text:
    547 A.2d 1184
    Robert E. SCHROEDER, on Behalf of Himself and all Others Similarly Situated, v. ACCELLERATION LIFE INSURANCE COMPANY OF PENNSYLVANIA, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1988.
    Filed Aug. 17, 1988.
    Reargument Denied Oct. 7, 1988.

      Anthony F. Jeselnik, Pittsburgh, for appellant.
    Ellen M. Doyle, Pittsburgh, for appellee.
    Before ROWELY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order which denied Appellant the right to amend its New Matter to assert as an affirmative defense a three year contractual limitation period.

The underlying action was initiated on April 18, 1986 when a complaint was filed by Robert E. Schroeder, on behalf of himself and all others similarly situated, against Appellant, Acceleration Life Insurance Company of Pennsylvania. Mr. Schroeder had purchased Credit Life and Disability Insurance from Appellant and had attached a copy of the disability insurance policy to his Complaint. Contained within the policy was language limiting the time in which an action may be brought to “3 years after the time written proof of loss is required to be furnished.” On July 14, 1986, Appellant filed an Answer, New Matter and Counterclaim. The contractual limitation period was not referred to in Appellant’s pleadings. Appellee replied to Appellant’s New Matter and Counterclaim and interrogatories were filed. In December a hearing was held on the Motion for Class Certification. The court granted the certification and identified the class as insureds who made payments to their creditors after April 17, 1980. In accordance with the court’s order Appellee filed a proposed form of notice. Appellant filed objections to the proposed notice to class members on February 13, 1987. These objections to the proposed notice made reference to the restriction contained in the contractual limitation. However, it was not until July 10, 1987, when Appellant presented to the court its Motion for Leave to File Amendment to Answer and New Matter which sought to include as an affirmative defense the contractual limitation. The trial court’s denial of this motion is the subject of the instant appeal.

A decision to grant a motion to amend a pleading is a matter for the exercise of judicial discretion in the trial court. Kilian v. Allegheny County Distributors, 409 Pa. 344, 347, 185 A.2d 517, (1962). However, amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those instances where surprise or prejudice to the other party would result, or where the proposed amendment is against a positive rule of law. Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966). Although not dispositive of the issue, long unexplained delay between the original pleading and the motion to amend will be considered as a factor in deciding whether to permit the amendment. Tanner v. Allstate Ins. Co., 321 Pa.Super. 132, 467 A.2d 1164, 1169 (1983).

In denying Appellant’s motion to amend the trial court stated:

Counsel for the defendant, as evidenced by the total record in this case, has vigorously resisted the claims asserted herein, both substantively and procedurally, not only in this court but also in the Superior Court, and, in so doing, has proven what Janicik, supra, presumes; this coupled with the defendant’s long-time knowledge of the contractual limitation as well as its counsel’s acquiring knowledge thereof prior to the filing of the Answer and New Matter evidences a deliberate choice not to raise the defense of the contractual limitation. Having done so we will not permit the defendant to change its position for its sole profit and to the detriment of the identified six (6) year class; to do so would also further- burden the representative plaintiff and the orderly procedures of the court.

(Trial court opinion at 11-12 citing Janicik v. Prudential Ins. Co. of America, 305 Pa.Super. 120, 451 A.2d 451 (1982)). Concluding that Appellant had by its actions evidenced a waiver of this affirmative defense the trial court denied Appellant’s motion. Although limitations on the time to commence suit contained in a contract of insurance have been held to be valid and enforceable, the courts of this jurisdiction have held that a provision of this nature may be extended or waived where the actions of the insurer leads the insured to believe the limitation period will not be relied upon. Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 274, 341 A.2d 74 (1975). As noted the by trial court, Appellant was obviously aware of the contractual limitation since it drafted the contract in question, a copy of which was attached to plaintiffs complaint. Nevertheless, Appellant chose to wait nearly one year after filing of its original Answer and New Matter to seek an amendment to assert this affirmative defense. The only justification offered by Appellant for its oversight in failing to include the defense in its original pleadings was that it did not anticipate such a broad class definition. Appellant did not maintain, nor could it, that it was unaware of this defense, or that it was not legally entitled to assert this defense at the time it filed its original pleading. Contrast: Tanner v. Allstate Ins. Co. Supra, (where amendment sought to assert certain defenses in light of the Supreme Court’s pronouncement in a related case which occurred after the original pleadings were filed.); Carpitella by Carpitella v. Consolidated Rail Corporation, 368 Pa.Super. 153, 533 A.2d 762 (1987), (where party seeking amendment asserted that it did not know of defenses at earlier date). Kilian v. Allegheny County Distributors, supra, (where amendment sought on basis of recent Supreme Court decision which impacted on jurisdictional question.)

In view of Appellant’s actions and Appellee’s reliance thereon, it cannot be said the the trial court committed an abuse of discretion in ruling that Appellant waived its newly asserted defense and in therefore denying Appellant’s petition to amend.

Order affirmed.

ROWLEY, J., files a dissenting opinion.

ROWLEY, Judge,

dissenting:

I respectfully dissent because in my opinion the appeal is interlocutory and should be quashed.

The Pennsylvania Supreme Court has addressed the question of the appealability of a pre-trial order denying a motion to amend an answer and/or new matter, or striking new matter which raised an affirmative defense, and has repeatedly held that such an order is final if it precludes proof of factual matters which the fact finder could have determined in favor of the defendant thereby establishing a complete factual defense. However, where the pre-trial order merely precludes a legal defense which does not require proof of disputed facts to establish the legal defense, the order is interlocutory.

This rule was first set forth in Adcox v. Pennsylvania Manufacturers Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965). In Adcox, new matter of the defendant was stricken, and an immediate appeal was taken from the order striking the new matter. The substance of the new matter was that the defendant was immune from liability under a workmen’s compensation insurance policy because the injury occurred beyond the scope of the Workmen’s Compensation Act inasmuch as it was due to the alleged failure of the company to inspect the machine which caused the injury, which inspection the company was not required to perform. The appellee filed a motion to quash the appeal as interlocutory. The court held that the order striking the new matter was interlocutory because it raised exclusively a legal question as to whether there was a duty to make the inspection and the status between the employer and the defendant insurance company. The court expressly distinguished Adcox from prior cases in which

the striking of new matter prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense.

Adcox, Id., 419 Pa. at 174, 213 A.2d at 368. Therefore, the appeal was quashed.

Recently, in Hull v. Tolentino, 517 Pa. 328, 536 A.2d 797 (1988), an appeal was taken from an order striking a defendant doctor’s new matter which had raised the affirmative defense of a release from liability. Although there is only a plurality opinion of three justices in this case, all six justices participating in the decision agreed that the issue raised by the doctor’s new matter presented only a question of law, and for that reason, the order precluding him from raising the legal defense was interlocutory.

The same day that Hull was decided, the Supreme Court also handed down its decision in Mineo v. Tancini, 517 Pa. 335, 536 A.2d 1323 (1988). Mineo involved an appeal from a final judgment which raised the issue of whether a pre-trial order which had denied the defendant permission to amend its new. matter to assert the affirmative defense of settlement was a final or interlocutory order. The three justices who joined in the Opinion in Support of Affirmance applied the rule that if the determination to preclude the amendment to new matter raised a factual issue, then the order denying permission to amend the new matter was final and had to be appealed, if at all, within 30 days of the entry of the order. Because the new matter which the defendant wanted to include in the new matter was a settlement by the plaintiff, and because this raised a factual question as to whether or not the prior settlement which had been reached had been authorized by the plaintiff, the Opinion in Support of Affirmance determined that the order denying permission to amend the new matter was final and appeal-able. The plurality further determined that since no appeal was taken from the pre-trial order denying permission to amend the new matter until after judgment was entered on the jury’s verdict, the issue of whether the court erred in denying permission to amend the new matter to raise the affirmative defense had been waived.

The three justices who joined in the Opinion in Support of Reversal did not address the issue of whether the order denying permission to amend the new matter was final or interlocutory. Rather, they stated that assuming the order was final and appealable, they would still reverse because the appellant had in fact tried to take an appeal from the order immediately after it was entered, but the Commonwealth Court had denied them the opportunity to do so. Therefore, they would not consider the issue of the propriety of the order denying permission to amend the new matter to have been waived for failure to take an immediate appeal from the order relating thereto.

Based on this review of the Supreme Court’s decision in Adcox, Hull and Mineo, it is my opinion that the rule initially established in Adcox has not been abandoned or abrogated by the Supreme Court. Although neither Hull nor Mineo is a majority decision, the Adcox rule appears to have been at least implicilty followed by a majority of the court in Hull, and although not applied by a majority in Mineo, it also was not rejected by any of the justices. The majority in the present case do not apply the Adcox rule, but instead rely on Joyce v. Safeguard Mutual Ins. Co., 362 Pa.Super. 522, 524 A.2d 1362 (1987), in which an en banc panel of the Superior Court decided that an order precluding a party from presenting an affirmative defense based on the statute of limitations was final and appealable because it put the defendant out of court on that defense.

In my opinion, we cannot ascertain definitively from the published decision in Joyce whether or not the Adcox rule was in fact followed. In Joyce, the defendant did not file any answer to the complaint. Eight days before the case was scheduled to be heard by a board of arbitrators, defendant filed a motion to file an answer and new matter in which it wanted to raise the statute of limitations as a defense. The motion was denied, and an appeal was immediately taken. On appeal, appellant argued that the trial court erred as a matter of law when it denied the motion as untimely without consideration of whether there was any prejudice. After noting that an appeal will lie only from a final order, the court en banc set forth its entire discussion of the appealability of the order in question as follows:

Our study of whether an order is final and appealable must go beyond the technical effect of the order to an examination of the practical ramifications of the ruling. That study here requires a finding that the order is sufficiently final to allow review, since the refusal to allow appellant an opportunity to present the proposed affirmative defense of the statute of limitations put appellant “out of court” as to that defense. (Citations omitted.) Having determined that the order was final and appealable, we proceed to consider the merits of the appeal. (Emphasis added.)

Joyce, Id., 862 Pa.Superior Ct. at 525, 524 A.2d at 1363.

It cannot be determined from the limited facts recited in Joyce if the court’s order refusing to allow the defendant in Joyce to raise the statute of limitations defense “prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense.” Whether a statute of limitations defense is a legal or factual question depends on the circumstances of each case. As we stated in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 139, 471 A.2d 493, 502 (1984), “Whether the statute of limitations has run on a claim is usually a question of law for the judge; however at times, a factual determination by the jury may be required.”

In light of the fact that we cannot determine that the defense which was precluded in Joyce raised only a legal issue, only a factual issue, or a mixed question of law and fact, and despite the fact that the court in Joyce did not expressly apply the Adcox rule, I think it is inappropriate to presume that the Supreme Court’s Adcox rule was not in fact followed in Joyce. Moreover, if it could be determined that Joyce did not follow the Adcox rule, in my opinion we would nevertheless be bound to follow the Adcox decision especially in light of the the Supreme Court’s subsequent decision in Hull in which all of the justices agreed on at least the narrow issue that because the pre-trial order precluding pleading of an affirmative defense raised only a legal issue, the pre-trial order was interlocutory. Therefore, I would apply the Adcox test to the facts of the present case to determine whether or not the order appealed from is interlocutory or final.

In the present case, appellant was precluded from amending its new matter to raise the affirmative defenses of the statute of limitations and contractual limitations. However, in the proposed amendment to the new matter, no factual allegations are set forth. Rather the only assertion in the proposed new matter is the legal conclusion that the claims are precluded by the period of limitations described in the insurance summary and by the statute of limitations, 42 Pa.C.S. § 5525(8). Appellant does not argue, and my review of the record does not reveal that the order denying appellant permission to amend its new matter raises any factual issues. Therefore, I would quash the instant appeal.

      . In Hull v. Tolentino, 517 Pa. 328, 536 A.2d 797 (1988) and Mineo v. Tancini, 517 Pa. 335, 536 A.2d 1323 (1988) the Supreme Court has recently reaffirmed its holding in Adcox v. Pennsylvania Manufactures Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965): "a pre-trial order precluding the assertion of an affirmative defense which raised pure questions of law is interlocutory and therefore unappealable; whereas a pre-trial order precluding the assertion of an affirmative defense which 'prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense,’ is final." Hull v. Tolentino, 536 A.2d at 798. In the case at bar we are presented with a pre-trial order precluding the assertion of a defense based upon a contractual limitation period. We see no difference between a limitation based upon contract from one based upon statute, and we note that a determination regarding the applicability of a statute of limitations often raises both factual and legal questions. Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). An en banc panel of this court has found that the refusal to allow an appellant "an opportunity to present the proposed affirmative defense of the statute of limitations put appellant ‘out of court’ as to that defense" and was final and appealable. Joyce v. Safeguard Mutual Ins. Co., 362 Pa.Super. 522, 524 A.2d 1362, 1363 (1987). Following the precedent of Joyce v. Safeguard Mutual Ins. Co., Id., we find the instant order constitutes a final order for purposes of appeal. However, we again note that the law in this area is not clear and often it is dangerous to litigants and lawyers. We call upon the Appellate Rules Committee to undertake a total “re-examination and re-evaluation” in an effort to clearly define the parameters of final and appealable orders. See: Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987) (Dissent by Del Sole, J. 532 A.2d at 881).


author: OLSZEWSKI, Judge:

text:
    547 A.2d 1189
    COMMONWEALTH of Pennsylvania, Appellant, v. Gregory STEWART, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1988.
    Filed Sept. 12, 1988.

      Catherine Marshall, Assistant District Attorney, Philadelphia, for Com.
    Frank DeSimone, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant, the Commonwealth, appeals from the trial court’s order granting a new trial to appellee, Gregory Stewart. The Commonwealth claims that the trial court erred in finding that defense counsel was ineffective for: (1) failing to present a defense at trial based upon a psychiatric disorder which was triggered by Stewart’s drunken state at the time of the offense; and (2) failing to present evidence of Stewart’s good character. We agree with the Commonwealth’s contentions that trial counsel did not render ineffective assistance and, accordingly, we reverse the trial court’s order.

Charges of robbery, recklessly endangering another person, aggravated assault, and simple assault were filed against appellee following an attack on Ronald Johnson, a cab driver, in Philadelphia. According to the record, in the early morning hours of November 9, 1983, the victim received a call to pick up a fare. When he arrived at the designated address, no one responded to his inquiry. Stewart, who was standing nearby, approached the cab and asked to be taken to a certain destination. En route, Stewart told the victim to stop the cab. Stewart then alighted from the vehicle and briefly spoke to a woman. Shortly thereafter, he returned to the cab and it proceeded on its way.

Stewart sat directly behind the victim in the cab. As the victim was driving, Stewart grabbed him from behind, covered his mouth and said “stick-up.” N.T. 4/17/84 at 41. A struggle ensued and the victim let go of the steering wheel, allowing the cab to travel down a hill without control. As the victim struggled to free himself from Stewart’s grasp, he saw, in the rear view mirror, that Stewart was clenching a long, shiny object. The victim struggled to avoid being injured and turned completely around in his seat to directly confront Stewart. As the cab crashed into an iron gate, Stewart maintained his hold on the victim. For five minutes, the two men struggled in the cab while the victim screamed for help. Eventually, two passers-by responded to the victim’s screams and attempted to pull Stewart off the cab driver. They were unsuccessful until a third passerby rendered aid. The police arrived shortly thereafter and Stewart was placed under arrest.

Following a jury trial on April 17-18, 1984, Stewart was convicted of aggravated assault, recklessly endangering another person, and two counts of robbery. Post-verdict motions were denied and Stewart was sentenced to a term of five-to-ten years’ imprisonment. Stewart secured the representation of new counsel and filed an appeal to this Court claiming, inter alia, that trial counsel was ineffective for failing to present evidence of his mental state. This Court, unable to determine from the record whether trial counsel had a reasonable basis for failing to introduce psychiatric evidence as to Stewart’s mental state at the time of the offense, remanded the case to the trial court for an evidentiary hearing on counsel’s ineffectiveness. Pursuant to this Court’s order, the trial court held a hearing on July 30,1987. The trial court subsequently ordered that Stewart receive a new trial, finding that trial counsel was ineffective for failing to present a psychiatric defense and for failing to present character testimony. This appeal followed.

Appellant, the Commonwealth, contends that the trial court erred in finding that defense counsel rendered ineffective assistance of counsel. Our Supreme Court has explained the appellate standard of review of a claim of ineffectiveness of counsel as follows:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Counsel is presumed to be effective and the burden of proving to the contrary rests on the party alleging counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The Commonwealth first contends that the trial court improperly found that trial counsel was ineffective for failing to present psychiatric testimony concerning Stewart’s mental state at the time of the crime which would have constituted a valid defense. Stewart was convicted, inter alia, of robbery, which contains theft as a lesser included offense. Theft is the unlawful taking of the property of another with the intent to deprive him thereof. See 18 Pa.C.S.A. § 3921(a). The specific intent to deprive is required for a robbery conviction. Stewart, the appellee, maintains that the trial court properly found counsel to be ineffective for failing to present psychiatric evidence to negate the requisite element of specific intent to deprive.

In support of his claim of ineffectiveness at the July 30, 1987 evidentiary hearing, Stewart offered the testimony of Dr. Arthur Boxer, a Board certified psychiatrist and neurologist. Dr. Boxer focused on three sources of information in rendering an expert opinion: a review of selected court records of this case; a presentence mental health report prepared by Dr. Gino Grasso; and a personal interview with Stewart. Dr. Boxer explained that Stewart suffered from a mental disorder, Delayed Post-Traumatic Stress Disease Syndrome, as a result of his military service in Vietnam. In evaluating Stewart, Dr. Boxer stated:

[Generally, I was quite impressed by Mr. Stewart, as being a functioning member of society, who was able to deal with the stresses and strains of everyday living, without any major problems.
In reviewing the reports, concerning his event and his background, I learned that Mr. Stewart spent some time in Vietnam and was greatly stressed by the memory of his Vietnam experiences, and it seemed to me that a report of the incident of which he was charged seemed to be reminiscent of an acute altered state of consciousness, which might also be referred to as, an acute psychotic state.
By that, I mean, the individual was reported to be behaving in such a way as to be out of contact with reality.
In further eliciting the history, concerning the event, it seemed Mr. Steward was intoxicated, that night, and, in my experience, in dealing with post-traumatic stress disorders, acute psychotic reactions, and altered state of consciousness, in susceptible individuals, with alcohol interfering with their thinking process, they may well engage in behavior for which they have no control and which is totally out of character for how they would behave if they had not been drinking.
It seemed to me that Mr. Stewart had been sensitized by Post-traumatic Stress Disorder in Vietnam, where the aberrant behavior might never have emerged, if he had not been drinking on the night in question, but, as much as he had been intoxicated, the underlying dis turbance emerged, and he no longer had any contact with reality.

N.T. 7/30/87 at 12-14 (emphasis added).

Dr. Boxer described Delayed Post-Traumatic Stress Disease Syndrome in the following manner:

Well, it is subjected to unrelated stress and forced to perform acts which is not in keeping with their personality, and the make-up, of course, Vietnam, one’s programed [sic] to kill, and under that degree of stress, oftentimes, an individual’s personality and emotional state is sensitized to what they have been forced to do, and this is relived in certain maladaptive traits, but, more importantly, if the individual has relived this by nightmares, sleep disturbances, they are often colored, as a result of the sensitization of the period of time when they were forced to live under severe, unrelenting stress.
Now, many individuals are like this and function quite well, if they don’t add any other stresses to their central nervous systems; such as, alcohol.

Id. at 17-18 (emphasis added). Dr. Boxer agreed with Dr. Grasso’s description of Stewart as:

... an individual who functioned well, until such a time as he altered his state of consciousness with alcohol and the underlying stress disorder merged, rendering him unable to act in a prudent manner, because he was out of contact with reality and behaving in an altered state of consciousness.

Id. at 20-21 (emphasis added). Based upon his observations, Dr. Boxer opined that Stewart could not distinguish right from wrong, did not know the nature and quality of his act and could not form the requisite specific intent to commit a crime.

In Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979), the appellant argued that the record failed to establish that he was either sane or sober, so as to be criminally responsible for his conduct. In particular, our Supreme Court was confronted with the issue of whether the possibility of an underlying pathological disorder would prevent criminal liability from attaching where it was established that the actor was not aware of the nature and quality of the act and unable to distinguish between right and wrong. The Court acknowledged that the appellant’s bizarre actions were the result of an acute psychotic episode which was induced by appellant’s consumption of alcohol. Mr. Justice (now Chief Justice) Nix stated:

It is obvious that an actor should not be insulated from criminal liability for acts which result from a mental state that is voluntarily self-induced. The evidence in this case presents an ample basis for the finding that appellant’s behavior was the result of voluntary alcohol ingestion and not mental disease. Even accepting the remote possibility of the existence of a pathological disorder, it was at best a passive condition triggered by the ingestion of alcohol. In either event appellant was not entitled to escape the responsibility for his conduct under the M’Naghten Rule [Regina v. M’Naghten, 10 Cl. & Pin. 200, 8 Eng.Rep. 718 (1843) (test for legal insanity)].

Id., 483 Pa. at 311-12, 396 A.2d at 1186 (emphasis added) (footnote omitted) (citations omitted).

Similarly, in the instant case, in presenting the basis for his opinion that Stewart’s mental state precluded him from forming the requisite intent to commit the crimes, Dr. Boxer stated repeatedly that the consumption of alcohol interfered with Stewart’s thinking process. Dr. Boxer further stated that Stewart’s underlying psychiatric disorder was triggered by his voluntary consumption of alcohol and that this disorder would not have emerged if Stewart had refrained from becoming intoxicated. Voluntary intoxication is not a defense to robbery and evidence of such intoxication is inadmissible to negate the element of intent of the offense. 18 Pa.C.S.A. § 308; see Commonwealth v. Byron, 319 Pa.Super. 1, 465 A.2d 1023 (1983). Given that a defendant is not insulated from criminal liability for crimes, other than homicide, resulting from the eruption of a psychiatric disorder triggered by the ingestion of alcohol, Stewart’s claim of ineffectiveness for trial counsel’s failure to introduce evidence of Stewart’s mental state is merit-less.

The Commonwealth next contends that the trial court erred in finding trial counsel ineffective for failing to present evidence of Stewart’s good character. This issue was improperly raised for the first time by the trial court acting sua sponte. The trial court clearly erred in raising and deciding this claim of ineffectiveness on its own motion. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (defendant bears the burden of proving that counsel was ineffective).

In addition, we have reviewed the record and find no factual basis for the trial court’s finding of ineffectiveness. According to the record, counsel for both sides stipulated that Nannette Dedman, if she were to testify, would say that Stewart had an excellent reputation for being a peaceful, law-abiding citizen. Indeed, in his post-trial motions, Stewart challenged the trial court’s charge on the use of such character evidence. The trial court held that a correct charge on character evidence had been given, and that determination was affirmed by this Court on direct appeal. Given that Stewart had the benefit of evidence establishing his good character, the trial court’s finding that trial counsel was ineffective for failing to secure character evidence is clearly unsupported by the record.

Accordingly, the trial court’s order granting Stewart a new trial is reversed.

McEWEN, J., concurs in the result.

      . Stewart’s behavior at the time of the incident was described by the victim as "not making any sense” and that he acted "in a rage”. N.T. 4/17/84 at 57. Another witness testified that Stewart seemed to go into a seizure following the incident.

      . 18 Pa.C.S.A. § 3701(a)(1) states in relevant part: “A person is guilty of robbery if, in the course of committing a theft____” (emphasis added).

      . Dr. Boxer saw Stewart on only one occasion, June 27, 1987.

      . Section 308 of the Crimes Code states:
      § 308. Intoxication or drugged condition
      Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

      . In addition, we wish to note that in contesting the claim of ineffective assistance of counsel, the Commonwealth presented the testimony of trial counsel, Peter Maas, Esquire, an employee of the Defender’s Association of Philadelphia. Mr. Maas testified that he initially prepared to represent Stewart by reviewing the notes of interviews conducted by two other attorneys who were employed by the Defender’s Association: Susan Bergin, Esquire, and Sidney Kine, Esquire. According to Mr. Maas, Stewart told Ms. Bergin that he had been drinking on the evening of the arrest and that the police arrested him when he appeared at the police station to report the theft of his car. Stewart also told Ms. Bergin that he did not have any psychiatric, alcohol or drug-related problems. He did state, however, that he was drunk on the night of the incident.
      According to Mr. Maas, Stewart met with Mr. Kine on February 26, 1983, and essentially recounted the same information. Stewart did not, however, acknowledge that he had been drinking.
      Thereafter, Mr. Maas attempted to arrange an interview with Stewart. He sent a letter on March 9, 1984, asking that his client appear for an appointment. Stewart did not respond to the letter. Rather, he appeared unexpectedly in Mr. Maas’s office on March 22, 1984. Although Mr. Maas had another commitment at the time, he briefly spoke with his client. Stewart later called Mr. Maas and promised to meet with counsel the next day. He failed, however, to keep the appointment with counsel.
      Based upon the interviews with Stewart, Mr. Maas determined that Stewart could not benefit from a defense based upon either mental infirmity or alcohol abuse. Specifically, Mr. Maas concluded that because use of voluntary intoxication as a defense to any crime, except murder, is barred under 18 Pa.C.S.A. § 308, he could not prepare a defense based upon intoxication. In addition, Mr. Maas stated that because his client failed to adequately inform him of the circumstances, he had no reason to suspect that Stewart was suffering from a mental disorder. Mr. Maas explained that his decision to retain the services of a psychiatrist to examine a defendant depends, inter alia, on the defendant’s pretrial demeanor and deportment. In this case, neither Mr. Maas nor his colleagues observed Stewart acting in a manner which indicated an inability to answer their questions about his psychiatric history or problems.

        Stewart denied that the incident occurred and instructed defense counsel that he would not testify at trial. Lacking any other defense strategy, Mr. Maas explained that he proceeded at trial by exploiting every weakness in the Commonwealth’s case.


text:
    547 A.2d 1194
    COMMONWEALTH of Pennsylvania, v. Bernard TENNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 18, 1988.
    Filed Sept. 12, 1988.

      Marlene Cooperman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying appellant’s petition for relief under the Post Conviction Hearing Act (“PCHA”) which alleged that trial counsel was ineffective for failing to demonstrate at a Rule 1100 hearing, via documentary evidence, that the Commonwealth had failed to exercise due diligence. We affirm the denial of the petition.

On January 7, 1978, appellant and an accomplice forced entry into the home of Mildred Clark and bound and gagged her, threatened to kill her, stabbed her five times, and fled with her cash and jewelry. As a result, law enforcement officials in Philadelphia filed a criminal complaint against appellant charging him with burglary, robbery, simple assault, aggravated assault, possessing instruments of crime, recklessly endangering another person, unlawful restraint, and criminal conspiracy. When appellant could not be located near his home, the arresting officer supplied photographs and other information to the anti-crime teams and had appellant’s photograph shown at all uniform roll calls throughout the city. In April 1978, appellant’s father’s girlfriend informed police that appellant was residing in Florida. A copy of the warrant and appellant’s physical description were forwarded to the Miami Police Department, after which a wanted bulletin was published.

On August 25, 1978, Philadelphia police received a computer message indicating that appellant had been arrested for armed robbery in Florida. On September 15, the Miami Police Department informed Philadelphia authorities that appellant had been arraigned as a fugitive from Pennsylvania and had refused to sign a waiver of extradition. Rule 1100 hearing at 37. Soon thereafter, Philadelphia authorities began extradition procedures by requesting a governor’s warrant for appellant. After appellant was sentenced on the Florida charges, Pennsylvania authorities sent a detainer and appellant was delivered to Pennsylvania on April 4, 1979.

After a Rule 1100 hearing on May 22, 1979, the trial court held that Philadelphia police and the district attorney’s office acted with due diligence in securing appellant’s return to the Commonwealth. In so finding, the trial court specifically held emphasized:

There has been received and the Court has admitted into evidence Defense Exhibit D-l, which purports to be a Waiver 6-E of extradition, such being, however a photocopy. Said document speaks for itself; but, among others, there appears thereon the date of August 30, 1978. The Court hereby finds, as a matter of fact, that [Miami police] did inform [Philadelphia police], whether it be right or wrong or incorrectly or otherwise, nevertheless, did inform [Philadelphia police] that [appellant] ... refused to waive extradition. The Court would hereby find support in that conclusion by the ensuing activities by [Philadelphia authorities] which would belie any contrary information, namely, contrary being that defendant had waived extradition.

Rule 1100 hearing at 66 [emphasis supplied]. On July 19, 1979, appellant’s case was tried without a jury and appellant was found guilty and subsequently sentenced.

On November 16, 1979, appellant filed a notice of appeal to this Court. The sole issue raised by appellant on appeal was whether the Commonwealth failed to show that it exercised due diligence in its efforts to locate appellant. We affirmed appellant’s judgment of sentence on September 18, 1981, 295 Pa.Super. 608, 437 A.2d 1029, declaring:

The testimony at the Rule 1100 (c) hearing revealed that the police made continued efforts to locate Appellant from January 7, 1978, until April 14, 1978. The lower court held that these efforts constituted due diligence, and we agree. As the court stated in Commonwealth v. Hinton, “The matter of availability and due diligence must be judged by what was done by the authorities rather than what was not done.” 269 Pa.Super.Ct. 43, 50, 409 A.2d 54, 58 (1979). It is not the function of the courts to dictate that, unless the police follow certain procedures, they are not exercising due diligence. Commonwealth v. Mitchell, [472 Pa. 553, 566, 372 A.2d 826, 832 (1977)].

Memorandum at 5.

On September 11, 1985, appellant filed a pro se petition for relief under PCHA. Counsel was appointed and filed an amended petition on appellant’s behalf. Following an evidentiary hearing on April 29, 1987, appellant’s petition was denied. This appeal followed.

Appellant asserts that he was “denied effective assistance of counsel at his Rule 1100 hearing due to counsel’s failure to demonstrate via documentary evidence that the Commonwealth had failed to exercise due diligence to bring the case to trial.” Appellant’s brief at 5. The Commonwealth urges that because appellant has already raised the issue of whether the Commonwealth proved due diligence sufficient to entitle it to the Rule 1100 extension on direct appeal, his petition is unreviewable as finally litigated pursuant to 42 Pa.C.S.A. § 9544(a)(2). We agree.

Our case law is clear that one may not relitigate a finally litigated ground for relief every time a new legal theory is advanced. Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983)....
In Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980) , the supreme court held that an allegation of ineffective assistance of counsel, for failing to object to deliberation by the jury on bills of indictment on which the defendant contended he had not been properly arraigned, would not be considered. The court had examined the arraignment procedure in the defendant’s prior direct appeal and concluded that no impropriety existed. Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973). The court stated, “Since this issue was fully considered by this Court on direct appeal, it has been finally litigated and is not open to collateral attack.” Commonwealth v. Jones, supra, 488 Pa. 270, 272, 412 A.2d 503, 504 (citations omitted). The advancement of a new or different theory as a basis for relitigating an issue that has already been decided will not justify relitigation. Id.
In Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981) , the supreme court held that Senk’s allegation that his trial counsel was ineffective for failing to challenge Senk’s illegal arrest could not be relitigated, as the issue of Senk’s arrest had been considered by a prior PCHA court and the Pennsylvania Supreme Court, as well. The court stated, “Appellant now is attempting to have this issue relitigated under the guise of ineffective assistance of counsel. An issue may not be relitigated merely because a new or different theory is posited as a basis for reexamining an issue that has already been decided.” Id., 496 Pa. at 634-35, 437 A.2d at 1220 (citation omitted).

Commonwealth v. Curtin, 365 Pa.Super. 424, 429, 529 A.2d 1130, 1133 (1987).

In the instant case, the trial court considered appellant’s claim that the Commonwealth had failed to exercise due diligence in securing appellant’s return to the Commonwealth. That precise issue was rejected by our Court in appellant’s direct appeal. Appellant now asserts that trial counsel was ineffective for failing to demonstrate via documentary evidence that the Commonwealth failed to exercise due diligence. A petitioner is not entitled to relitigate a claim “every time he offers a new theory or argument which he had not previously advanced.” Id., quoting Commonwealth v. Slavik, 449 Pa. 424, 431-32, 297 A.2d 920, 924 (1972). We conclude, based on the foregoing, that the issue of due diligence may not be relitigated under the guise of ineffective assistance of counsel. Id., citing Commonwealth v. Mileshosky, 350 Pa.Super. 127, 504 A.2d 278 (1986); Commonwealth v. Thomas, 335 Pa.Super. 323, 484 A.2d 155 (1984), rev’d on other grounds, 512 Pa. 171, 516 A.2d 328 (1986).

The order of the PCHA court is affirmed.

      . We note that 42 Pa.C.S.A. § 9544 provides that an issue is finally litigated when "The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals____ There is a rebuttable presumption that a failure to appeal a ruling ... is a knowing and understanding failure.” Id. at (a)(2); (c). Instantly, appellant has offered no facts that rebut the presumption that he knowingly and understandingly failed to appeal from this Court’s affirmation of the judgment of sentence. A petitioner has the burden of showing that an issue has not been finally litigated. Id. at § 9543(4). We are cognizant of the fact that ineffective assistance of counsel may amount to "extraordinary circumstances” precluding a finding of final litigation. See Commonwealth v. Jackson, 329 Pa.Super. 293, 478 A.2d 474 (1984). Our reading of the cases delineating when ineffective assistance of counsel may amount to an extraordinary circumstance rebutting the presumption, however, leads us to the conclusion that the ineffectiveness complained of must specifically relate to trial or appellate counsel’s failure to file an appeal. Our Supreme Court has declared:
      If it can be demonstrated that counsel’s ineffectiveness prevented a knowing or intelligent waiver of the right to appeal then the ineffectiveness claim is clearly germane to the waiver of appeal question. If the alleged ineffectiveness is not related to the decision to waive the appeal, such a claim will not be considered once it is established that there has been an effective waiver.

        Commonwealth v. Jumper, 494 Pa. 451, 454, 431 A.2d 941, 942 (1981); see also Commonwealth v. Wilcox, 312 Pa.Super. 184, 458 A.2d 575 (1983); cf. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982) ("ineffective assistance of counsel is an extraordinary circumstance that justifies the failure [of appellant] to raise an issue”); Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983) if'extraordinary circumstances, to wit the ineffectiveness of Attorneys ...in prior proceedings, justify [appellant’s] failure to earlier raise defects in his guilty plea colloquy”) (emphasis in original).
      We emphasize that to permit the ineffectiveness of trial counsel on an issue totally unrelated to appellant’s failure to appeal to amount to extraordinary circumstances permitting circumvention of statutorily mandated final litigation would undermine the rebuttable presumption that failure to appeal is knowing and understanding. Because appellant has not specifically raised the ineffectiveness of appellate counsel to file an appeal and because we do not find any evidence in the record of extraordinary circumstances to rebut the presumption that appellant knowingly chose not to appeal to our Supreme Court, we find that appellant knowingly and understandingly failed to pursue further appeals.

      . We further note that, in any event, appellant’s claim of ineffective assistance must fail. We point out, preliminarily, that the PCHA court mistakenly stated that “a claim under Rule 1100 of the Pennsylvania Rules of Criminal Procedure is not cognizable in a Post Conviction Hearing Act proceeding.” Opinion at 3. Our reading of the cases relied upon by the PCHA court reveals that a petitioner may not be discharged under PCHA for trial counsel’s failure to object to an extension of time under Rule 1100 unless he has been deprived of his underlying constitutional right to a speedy trial. Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). Crowley and its progeny require, however, that counsel’s actions must be weighed against the ineffectiveness standard and deemed to be ineffective before a court may conclude that “the course of conduct denied defendant a constitutional right, thus entitling him to relief under the Post Conviction Hearing Act.” Commonwealth v. Wells, 513 Pa. 463, 470, 521 A.2d 1388, 1391 (1987).
      Therefore, before the PCHA court may address whether appellant has been denied his right to a speedy trial, the court must determine trial counsel’s effectiveness according to our well-established three-prong test, which has as its first prong the mandate that a reviewing court first ascertain whether the underlying issue is of arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). We find that trial counsel’s failure to supply a certified copy of appellant’s alleged waiver of extradition is of no consequence in light of the trial court’s ruling that Philadelphia authorities had acted with due diligence notwithstanding the recognition that Miami police did inform Philadelphia police, “whether it be right or wrong or incorrectly or otherwise, nevertheless, did inform [Philadelphia police] that [appellant] ... refused to waive extradition.” Rule 1100 hearing at 66. Therefore, the procurement of a certified copy of the document would nt have affected the hearing court’s determination of due diligence by police in apprehending appellant. Because we find that appellant’s underlying claim lacks arguable merit, his request for relief under the PCHA would fail in any circumstance.


author: MONTGOMERY, Judge:

text:
    547 A.2d 1198
    Leonard J. FASSETTE, Individually and as Administrator of the Estate of Mattie Fassette, Deceased, Appellant, v. ERIE INSURANCE EXCHANGE, Appellee.
    Superior Court of Pennsylvania.
    Argued April 13, 1988.
    Filed Sept. 6, 1988.
    Cathy M. Lojewski, Northeast, for appellant.

      Warren T. Jones, Erie, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The appeal in this case involves a claim for death benefits, based upon a policy of automobile insurance. The Plaintiff-Appellant instituted suit on his own behalf and as Administrator of the Estate of his deceased wife, seeking such benefits as a result of his wife’s death in a motor vehicle accident in November, 1984. The trial court entered an Order granting a Motion for Summary Judgment filed by Defendant-Appellee Erie Insurance Exchange, and dismissing a Cross-Motion for Summary Judgment submitted by the Appellant.

This action was commenced in early April, 1986, by the filing of a class action Complaint by the Plaintiff. Therein, he sought the recovery of a death benefit which he claimed under certain provisions of an insurance policy issued to him by the Defendant. In addition to seeking a recovery on grounds of an alleged breach of contract, the Plaintiff also asserted a claim for punitive damages. The Defendant filed preliminary objections with regard to the claim for punitive damages. Such preliminary objections were granted by the trial court, as to the punitive damage claim, and the Defendant thereafter filed an Answer and New Matter. The Plaintiff filed an Answer to the New Matter. In March, 1987, the Defendant filed a Motion for Summary Judgment, and on April 20, 1987, the Plaintiff filed a Cross-Motion for Summary Judgment. After hearing argument and reviewing briefs submitted by the parties, the trial court entered an Order granting the insurer’s Motion for Summary Judgment, and denying the Plaintiff’s Cross-Motion.

Although his Complaint recites that this action was instituted by the Plaintiff as a class action, he did not file a Motion for Class Certification until after argument on the Motions for Summary Judgment before the trial court. The trial court never ruled on the class action certification request, apparently because of its' granting of the defense Motion for Summary Judgment. No issue was raised on this appeal by either party concerning the propriety of the Appellant’s request for class certification in this action. Also, the trial court’s rejection of the Plaintiff's punitive damage claim is not challenged on appeal.

The record indicates that on August 3, 1984, the Defendant insurer issued an automobile insurance policy to the Plaintiff. The policy consisted of three parts. The first was a twelve page standard form policy. The second part was a “Declarations” page. The final part, an “Auto Endorsement”, was entitled “PERSONAL INJURY PROTECTION (PIP) NO-FAULT COVERAGE — PENNSYLVANIA”.

The Defendant maintains that it paid all benefits due on the policy as a result of the death of the wife of the Plaintiff, including medical expenses, “survivor’s loss” benefits in the amount of $5,000.00, and funeral benefits in the amount of $1,500.00. Such benefits are provided for in the “Auto Endorsement” provision of the policy which details the PIP No-Fault coverages. It is the contention of the Plaintiff that he is entitled to recover additional death benefits under the policy, in accordance with provisions set forth in the initial standard form policy section of the insurance agreement. In that regard, he points out the following provision, set forth on page 6 of that first section of the agreement:

X Death Benefit

If you die as the result of bodily injury in an accident under this coverage, we will pay any balance remaining from the limit of protection after paying the medical expenses, up to a maximum of $5,000. We will pay this benefit to the surviving kin we choose or to the victim’s estate. The X amount of Death Benefit will never be less than $1,000 nor more than $5,000 .
We will pay this benefit provided death occurs within one year of the date of the accident, the victim was at least one year old at the time of the accident and there are surviving kin. Surviving kin means a spouse residing in the same household or any parent, child or dependent, (emphasis in original)

The Plaintiff urges that he is entitled to an additional payment of a Five Thousand Dollar ($5,000.00) death benefit under the provisions of the initial policy section quoted above. He argues that the provisions calling for such payment are different coverages than those which are provided in the No-Fault sections of the policy.

Further, he points out other parts of the policy which purportedly lend weight to his claim. In that regard, he initially notes the following provision, which is set forth on the front page of the entire policy:

We call this a PIONEER Policy because it contains many XTRA PROTECTION FEATURES developed by the ERIE. Wherever an “X” appears in the margin of this Policy, YOU receive XTRA PROTECTION, either as additional coverage or as a coverage that is not in most auto policies.

He directs our attention to the fact that an “X”, designating additional coverage or “xtra protection provisions”, is placed next to the section relating to death benefits, quoted above, upon which he relies in asserting his claim. He cites other sections of the basic policy, the declaration page, and the endorsement, which allegedly support his contention that the “survivor’s loss” benefit which he received was a different type of benefit from the “Death Benefit” detailed in the initial part of the policy, to which he claims additional entitlement in this action.

It is the position of the Plaintiff that the provisions of the policy are clear and expressly stated in such a manner as should entitle him to a recovery of the additional benefit he seeks in this case. In the alternative, he maintains that if there is any ambiguity or lack of clarity, such a condition must be resolved in his favor and against the insurer, under prevailing law.

In our consideration of this case, several rules are applicable. First, it is clear that the interpretation and construction of an insurance policy is a question of law, and within the province of the court. Patterson v. Reliance Insurance Companies, 332 Pa.Super. 592, 481 A.2d 947 (1984); Garber v. Travelers Insurance Companies, 280 Pa.Super. 323, 421 A.2d 744 (1980). Any ambiguity in the insurance contract must be construed in favor of the insured and against the insurer. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). A provision of a policy may be considered ambiguous only if reasonably intelligent persons, on considering it in the context of the entire policy, would honestly differ as to its meaning. Celley v. Mutual Benefit Health & Accident Association, 229 Pa.Super. 475, 481-82, 324 A.2d 430, 434 (1974). It is not the function of the court to rewrite a policy or give its terms a construction which differs from their plain meaning. Pennsylvania Manufacturers Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). Our goal in interpreting an insurance contract is to determine the reasonable expectations of the parties. Huffman v. Aetna Life & Casualty Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984). In trying to determine the intention of the parties through a construction of the policy, the policy must be read in its entirety, with a construction, if possible, which will give effect to all of the provisions of the policy. Galvin v. Occidental Life Insurance Co. of California, 206 Pa.Super. 61, 211 A.2d 120 (1965).

A reading of the policy in issue in this case, in its entirety, leads us to the conclusion that the trial court did not err in denying the additional death benefit claim asserted by the Appellant. The second page of the standard form policy, which forms the first part of the three part insurance agreement, states the following under the “DEFINITIONS” section:

“Declarations” means the sheet which shows the coverages you have chosen for each car we insure. It also shows the premium for those coverages and the limits of protection. Your policy is not complete without this sheet, (emphasis in original)

Page 3 of the same part of the policy, under the heading “WHEN AND WHERE THE POLICY APPLIES”, states, in pertinent part: “An Endorsement tells you that the policy has been changed.” (emphasis in original) Page 11 of the same standard policy section of the insurance contract also contains a provision providing guidance. Under a section heading entitled “HOW YOUR POLICY MAY BE CHANGED”, it declares: “This policy may be changed by endorsement issued by us.” (emphasis in original) On the next page of the same part of the policy, under the heading “Agreement”, the policy language states that the insurer agrees “... to provide the coverages you have chosen. Your choices are shown on the Declarations, which are a part of this policy.” (emphasis in original)

The aforesaid provisions indicate that the intent of the parties was that the coverage would be as delineated on the declarations page and in any endorsements, in any circumstances where the latter might differ from the coverages discussed in the initial standard policy pages which form the first part of the agreement. This conclusion is buttressed by a recognition that the initial standard policy section of the insurance agreement provides, inter alia, for coverages applicable only to policies issued in the State of Maryland. Such coverages would certainly have no application to the policy under consideration in this case, which was issued to the Appellant in Pennsylvania.

The declarations page of the policy indicates that the final part of the agreement, the endorsement section providing for Pennsylvania No-Fault coverage, is applicable with respect to the policy. The declarations page does not indicate any premium charge to the insured for any death benefit coverage, under the provision the Plaintiff relies upon in seeking a recovery in this action. The endorsement itself specifically provides for the payment to survivors of the benefits which were furnished by the insurer. The endorsement does not provide for any entitlement by the insured to the death benefits set forth on page 6 of the initial standard policy part of the agreement. We find it significant that the same page and section of the standard policy part of the contract provides for the payment of medical expenses. However, the Pennsylvania No-Fault endorsement section sets forth different language regarding entitlement to medical payment coverage, and such terms were obviously intended to supplant the prior policy provisions dealing with the same subject.

Finally, in analyzing the Plaintiffs claim of entitlement to death benefits, we cannot ignore the following provision in the Pennsylvania No-Fault endorsement, in a section entitled “LIMITS OF LIABILITY”:

Regardless of the number of persons insured, policies or plans of self-insurance applicable, claims made or insured motor vehicles to which this coverage applies, the ERIE’S liability for personal injury protection benefits with respect to bodily injury to any one eligible person in any one motor vehicle accident is limited:
(a) for the named insured and any relative in the amounts indicated by the 1st digit of the “PIP CODE” shown on the Declarations page and explained on the Benefits Table which is on page 1 of this endorsement.

Based upon the foregoing, it is evident that the only benefits to which the Plaintiff is entitled, as a result of his wife’s death, are those survivor’s benefits set forth in the Pennsylvania No-Fault endorsement section of the policy, and not the different death benefits included in the initial standard policy section of the insurance agreement.

Thus, we agree with the conclusions reached by the trial court in this case. The insurance policy in issue is not ambiguous regarding the Plaintiff’s lack of entitlement to the death benefits sought herein. Accordingly, we find no merit in this appeal.

The Judgment of the trial court is hereby affirmed.

      . The word “you" is defined elsewhere in the policy to. include both the insured and his or her spouse. "We” is defined as the insurer.