author: BECK, Judge:

text:
    650 A.2d 907
    COMMONWEALTH of Pennsylvania v. Owen W. MORROW, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed Dec. 8, 1994.

      William R. Bernhart, Reading, for appellant.
    Iva C. Dougherty, Asst. Dist. Atty., Reading, for Com., appellee.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge:

In this appeal we address, inter alia, the responsibilities of the Commonwealth’s attorney in exercising his or her discretion to reject a physician’s recommendation under 35 Pa. C.S.A. § 780-118 (Section 118). We conclude that the statute does not require the Commonwealth’s attorney to state on the record his or her reasons for rejecting a defendant for Section 118 treatment. Finding that none of appellant’s claims has merit, we affirm the judgment of sentence.

Elliott Boulous approached the Chief of Police in Caernavon Township, Berks County, and informed him that an officer in the department, appellant, had supplied Boulous with marijuana. The Chief referred Boulous to the state police in order to avoid a conflict in investigating one of his own officers. State troopers interviewed Boulous and asked him to call appellant and inquire whether he could obtain more marijuana. Boulous called appellant from the troopers’ barracks and asked appellant to get him some marijuana to relieve back pain he had been experiencing. Appellant replied that he did not have marijuana at that time but would look into securing some for Boulous. Later that same day, appellant appeared at Boulous’s home and explained that he could get some marijuana and would return with it soon.

Boulous contacted the troopers with whom he had met that morning and told them of appellant’s visit. The troopers came to Boulous’s residence and waited in his workshop for appellant to return. Later, appellant came back to Boulous’s house and, while in Boulous’s driveway, informed him that he had the marijuana and that it cost $60. Boulous went to his workshop where he received $60 in marked bills from one of the troopers. He then went outside to appellant and exchanged the money for a bag containing 5.5 grams of marijuana. Appellant asked Boulous if he could take a “pinch” for himself and Boulous agreed. Appellant then took a small amount of the marijuana and began to leave. Boulous returned to the troopers and handed one of them the bag appellant had delivered. The troopers immediately approached appellant, placed him under arrest and found on his person $60 in marked bills and a small amount of marijuana.

Appellant was charged with possession of marijuana, possession with intent to deliver and delivery for the conduct described above. He was also charged with possession for a previous marijuana transaction alleged by Boulous to have taken place one week earlier. Pursuant to Section 118, Disposition in Lieu of Trial or Criminal Punishment, appellant sought abeyance or withdrawal of the criminal charges and treatment for his drug problem. Appellant offered the report of Dr. Emmanuel Wittels which recommended that appellant would benefit from treatment instead of criminal proceedings. After a hearing at which Dr. Wittels testified, the district attorney rejected the doctor’s recommendation.

Following a non-jury trial, appellant was found guilty of the charges stemming from the incident involving the state troopers. He was acquitted of the charges involving the earlier marijuana transaction alleged to have taken place the week before. Appellant now claims that several errors took place in the trial court which require an arrest of judgment or grant of new trial.

Appellant’s first issue concerns the actions of the district attorney in rejecting him for consideration under Section 118. This statute provides nonviolent drug abusers a single opportunity to avoid criminal prosecution while at the same time receive treatment for a problem that contributed to their criminal conduct. Its language makes clear that its use is committed to the sound discretion of the district attorney who is given authority to accept or reject the physician’s recommendation.

In this case, the district attorney chose not to accept Dr. Wittels’s recommendation. Appellant claims that it was error for the Commonwealth attorney to make such a choice without placing his reasons on the record. The Commonwealth argues that the statute contains no such requirement. Analogizing Section 118 to the Accelerated Rehabilitative Disposition Program (ARD), see Pa.R.Crim.P. 175-186, appellant asserts that the district attorney should be required to state his reasons for rejection on the record. Despite the fact that in ARD matters the district attorney has discretion to accept or reject a candidate, our supreme court has imposed upon Commonwealth attorneys the responsibility of stating on the record their reasons for rejecting a defendant seeking ARD. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985).

ARD is a privilege, not a right, and the decision to submit a matter for ARD is in the sole discretion of the district attorney. Commonwealth v. Hyde, 406 Pa.Super. 445, 594 A.2d 703, 704 (1991). While the district attorney’s discretion is broad, and appellate review of such decisions is narrow, the district attorney’s power is not completely unfettered and is subject to the following judicially imposed restrictions: 1) an open, on-the-record specification of reasons which are 2) related to society’s protection or the defendant’s rehabilitation. Commonwealth v. Ebert, 369 Pa.Super. 318, 535 A.2d 178, 180 (1987). Where, however, the decision to reject an ARD candidate is “wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of the candidate’s success in rehabilitation,” the district attorney has abused his discretion. Lutz, supra at 310, 495 A.2d at 935.

An abuse of discretion is established where the decision to reject a person for ARD is based, for example, on race or religion. See Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265, 1269 (1991). However, any policy rationally related to society’s protection or an individual’s ability to succeed under the program is acceptable and is not considered an abuse of discretion. See id. (Delaware County district attorney’s policy of refusing to recommend any drug cases originating in the city of Chester is rationally related to society’s protection); Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930 (1990) (en banc) (approving Bucks County district attorney’s policy of rejecting for ARD any DUI violator involved in an accident with another vehicle); Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (approving Monroe County district attorney’s policy that DUI defendants with a blood alcohol level in excess of .25 are ineligible for ARD), allocatur denied, 520 Pa. 614, 554 A.2d 507 (1988).

It is true that like the ARD statute, Section 118 does not require the district attorney to state on the record his or her reasons for rejecting a defendant. The statute places no restrictions or limitations on the district attorney’s discretion. Appellant asks that we impose the same restrictions upon district attorneys in Section 118 cases that have been placed upon them in the ARD arena in order to guard against “arbitrary, unexplained and unreviewable prosecutorial power.”

We find this argument compelling and perhaps would be inclined to adopt, albeit prospectively, such a rule. However, we conclude that the legislature specifically intended that the Commonwealth attorney not be required to state his or her reasons for rejecting a physician’s recommendation for a Section 118 disposition. The statute was enacted in 1972 and its original language included the following subsection:

(b) In the event that he [the government attorney] does not accept the physician’s recommendation he shall state in writing and furnish the defendant a copy of his decision and the reasons therefor.

This subsection was amended in 1992 and replaced with the following language:

(b) In the event the government attorney does not accept the physician’s recommendation, the person charged shall not be eligible for relief under this section.

The legislature’s actions in deleting language calling for a statement of reasons and replacing it with the current language is logically interpreted as a decision to grant full discretion to the district attorney in making his or her decision. In crafting the amendment, the legislature could have revised the subsection in any manner it saw fit, from enumerating acceptable reasons for rejection to calling for an open court statement of reasons as opposed to a written statement. Instead, it chose to eliminate entirely the requirement of stating the reasons underlying a rejection. This leads us to conclude that our lawmakers have considered this issue and decided against the position appellant sets forth. That we find appellant’s argument compelling is not enough. The legislature has made its position clear and we are bound to enforce it.

Based on the plain language of the statute, as well as its legislative history, we agree with the trial court that the district attorney is under no obligation to place on the record his or her reasons for rejecting a defendant under Section 118.

Appellant next argues that the evidence was insufficient to convict him of delivery of marijuana under 35 PS. § 780-113(a)(30). His argument is based primarily on the fact that at the time of the transaction, appellant claimed he was charging Boulous the same amount of money he paid for the substance, ie., was not making a profit. Appellant draws our attention to 35 PS. § 780 — 113(a)(31), which punishes (to a lesser degree than the delivery statute) the distribution, but not sale, of a small amount of marijuana. Essentially, appellant argues that the government charged the wrong crime. We disagree. Section 780-113(a)(30) does not require that a party make a profit, it simply prohibits “delivery.” Delivery is defined as “the actual, constructive or attempted transfer from one person to another of a controlled substance.... ” 35 PS. § 780-102. The evidence clearly was sufficient to sustain the charge of delivery.

Appellant next alleges that the trial court erred in admitting an exhibit at trial, namely, the bag of marijuana appellant delivered to Boulous in the driveway of his home. At trial, Boulous testified that he met with appellant in the driveway, learned that appellant had gotten the marijuana and then went back to the workshop to get $60 from the troopers. After returning with the money, he took a bag from appellant, gave appellant the money and allowed appellant to take a small amount of marijuana from the bag. He then immediately returned to the workshop and handed the the bag appellant had given him to the trooper. The trooper testified that Boulous left the workshop when appellant arrived, returned and requested $60 to pay for the drugs, went back to where appellant was waiting and then promptly returned and handed the trooper a bag containing marijuana. The trooper identified the exhibit shown to him by the prosecutor as the bag Boulous gave him.

Appellant insists that the prosecution’s failure to have Boulous identify the bag from the witness stand is fatal to the Commonwealth’s case. He claims that the chain of custody was not established and the trial court could not infer that the bag presented at trial was the bag appellant delivered.

The admissibility of evidence is left to the sound discretion of the trial judge and we will not find error absent an abuse of that discretion. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381, 1387 (1980). Physical evidence may be admitted at trial without demonstrating to an absolute certainty the precise chain of custody; the evidence need only establish a reasonable inference which the fact finder may or may not accept. Id.

Here, Boulous testified to receiving a bag of marijuana, from which appellant took a small portion, and immediately turning it over to a state trooper. This testimony, coupled with the same trooper’s testimony about Boulous leaving the workshop with money for a bag of marijuana and promptly returning with a bag of the substance which the trooper positively identified at trial, leads us to conclude that the “chain of custody was sufficiently strong to give rise to the reasonable inference” that the bag identified by the trooper was the bag appellant delivered to Boulous. See Commonwealth v. Culmer, 413 Pa.Super. 203, 604 A.2d 1090, 1097 (1992). We find no abuse of discretion in the trial court’s admission of the exhibit.

Appellant’s final claim is that the trial court erred in not finding that entrapment was established as a matter of law. Typically, whether entrapment has occurred is a question for the fact finder unless the evidence points to only one conclusion, in which case it may be decided as a matter of law. Commonwealth v. Clawson, 250 Pa.Super. 422, 378 A.2d 1008, 1010 (1977). It is only where the evidence is so overwhelming that no reasonable fact finder could fail to find entrapment that the defense is established as a matter of law. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10, 14 (1989).

Entrapment occurs when a law enforcement official or someone acting in cooperation with such official “induces or encourages another person to engage in [criminal conduct] by either making knowingly false representations designed to induce the belief that such conduct is not prohibited or employing methods of persuasion or inducement which create a substantial risk that such offense will be committed by persons other than those who are ready to commit it.” 18 Pa.C.S.A. § 313. The inquiry does not address the predisposition of the defendant but instead focuses on the “conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” Id. at 311, 554 A.2d at 13 (quoting Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976)).

The entrapment defense is “aimed at condemning certain impermissible police conduct which ... falls below standards ... for the proper use of government power.” Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159, 165 (1984) (citations omitted). We look, then, to the actions of the police in this matter as well as those of Boulous, the informant.

Trial testimony revealed that Boulous and appellant were casual friends for approximately three or four years and, on previous occasions, had smoked marijuana together. After appellant allegedly gave Boulous some marijuana, Boulous contacted the local police, who referred him to the state police. Five days later, Boulous met with state troopers to explain his contacts with appellant. That same morning, Boulous was asked to make a telephone call to appellant to request marijuana, which he did. Later that afternoon, appellant appeared at Boulous’s residence and informed him that he could get some of the drug that evening. As promised, appellant returned several hours later -with a bag of marijuana and was thereafter arrested.

Appellant likens his case to the facts in Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990) (en banc), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991), wherein we held that entrapment had been established as a matter of law. However, the instant facts are not similar in any material way to the facts in Wright. That case involved an informant who promised to gather information for police about drug dealing on Penn State’s campus in exchange for a probationary sentence. The informant cultivated a friendship with Wright to persuade Wright to purchase marijuana for him, thereby fulfilling the informant’s agreement with police. After learning that law enforcement officials would not honor the agreement because the informant had failed to “cooperate,” the informant, in an attempt to cause his prior agreement with the police to be honored, told police that Wright might be able to supply him with marijuana.

The informant’s first attempt at getting Wright to purchase drugs failed. Thereafter, Wright acquired marijuana for the informant on several occasions. After receiving money from the police to finance the transaction, the informant in advance gave Wright the money for the drugs, as well as money for gas and other travel expenses. The informant also arranged to pick up the drugs with the help of police. Police instructed the informant to tell Wright he could not get the drugs on his own because of his campus work schedule and further instructed the informant to have the drugs delivered to him on campus.

We found that the facts in Wright admitted of only one conclusion, that the defendant was entrapped. We held that Wright was induced to provide the informant with marijuana based on a completely feigned friendship which the informant, with police approval and assistance, deliberately cultivated in order to persuade Wright to engage in criminal conduct.

The case before us today is unlike Wright. The conduct of the police does not fall below standards “for the proper use of government power.” Commonwealth v. Thompson, supra. The police did not use Boulous as a tool, financing his purchases and fabricating a cover story. Boulous initiated the contact with the police. Unlike the facts of Wright, law enforcement officials in this case “did no more than afford appellant an opportunity to make a sale of [marijuana] because [Boulous] merely provided a market if appellant wished to sell.” Id. at 286, 578 A.2d at 518 (citing Commonwealth v. Stokes, 264 Pa.Super. 515, 400 A.2d 204, 206 (1979)). The availability of the entrapment defense “does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation.” Jones, supra, at 311, 363 A.2d at 1285 (citing Sherman v. United States, 356 U.S. 369, 383-84, 78 S.Ct. 819, 826-27, 2 L.Ed.2d 848 (1958)). We find no error in the trial court’s rejection of appellant’s entrapment defense as a matter of law.

Judgment of sentence affirmed.

      . It was this transaction, testified Boulous, that prompted him to contact the police because he believed appellant was "setting him up.”

      . The statute provides in pertinent part:
      (a) If a person charged with a nonviolent crime claims to be drug dependent or a drug abuser and prior to trial he requests appropriate treatment, including but not limited to, admission or commitment under the Mental Health and Mental Retardation Act of 1966 in lieu of criminal prosecution, a physician experienced or trained in the field of drug dependency or drug abuse shall be appointed by the court to examine, if necessary, and to review the accused's record and advise the government attorney, the accused and the court in writing setting forth that for the treatment and rehabilitation of the accused it would be preferable for the criminal charges to be held in abeyance or withdrawn in order to institute treatment for drug dependence, or for the criminal charges to be prosecuted. The government attorney shall exercise his discretion whether or not to accept the physician’s recommendation.
      35 Pa.C.S.A. § 780-1.18(a).

      . In any event, the record reveals clearly sufficient reasons to affirm the district attorney’s decision in this case. Dr. Wittels testified that appellant previously completed drug rehabilitation programs. Certainly the failure of a defendant to respond to treatment in the past is an appropriate reason to deny Section 118 relief.

      . We note, however, that appellant has not preserved or framed this issue as a federal or state constitutional challenge to the statute, either on its face or as applied to him. See Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994) (en banc) (an appellate court may not raise a constitutional issue sua sponte).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    650 A.2d 1068
    Honorable James P. MacELREE, II, Appellant, v. PHILADELPHIA NEWSPAPER, INC. and B.J. Phillips, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Dec. 5, 1994.
    Petition for Allowance of Appeal Granted March 2, 1995.

      Richard Sprague, Philadelphia, for appellant.
    Vernon L. Francis, Philadelphia, for appellees.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

In April of 1993, the Honorable Judge James MacElree (MacElree) sued Philadelphia Newspapers, Inc. (the Inquirer) and its reporter B.J. Phillips for defamation. His claim stems from a short article Phillips wrote about an altercation at Lincoln University, which briefly mentioned MacElree (then the Chester County District Attorney). The article explored the racial aspects of this incident, and quoted a Lincoln University attorney as calling MacElree “the David Duke of Chester County.” R.R. 19a.

The article appeared in the November 1,1991, edition of the Philadelphia. Inquirer. In it, Phillips described a strange melee between Lincoln students and some visiting students from New York. Apparently, the New York students arrived at the Lincoln campus and headed for a dormitory, looking for girls. Fights broke out, and the visitors were taken into custody by campus police. Then a mob of fifty to a hundred Lincoln students gathered and stormed the campus police office and attacked the visitors. The article described them as a resembling a lynch mob without a rope. They beat up four of the New Yorkers; “one was- stabbed and his shoulder dislocated.” The article focused on the ironic fact that both the New York visitors and the mob of Lincoln students who attacked them were African-American. R.R. 18a-19a.

The report accused the Lincoln University administration of trying to cover up this ugly incident, rather than acknowledge it and discipline the students involved. In describing the efforts of the University administration to deflect scrutiny and criticism, a passing mention was made of MacElree in paragraph seventeen:

Writing to a local newspaper, [University President Siara] Sudarkasa questioned remarks by the Chester County district attorney that one of the New Yorkers had been stabbed. When D.A. James MacElree replied with quotations from police reports, the university’s lawyer, Richard Glanton, accused him of electioneering — “the David Duke of Chester County running for office by attacking Lincoln.”
“I expected they’d eventually stoop to that,” MacElree said. “But this has nothing to do with racism. It has to do with finding out the truth about what happened.”

Id. According to MacElree, the David Duke remark was inaccurately attributed to Glanton, but the Inquirer printed it anyway. The article was published Friday, November 1, 1991. Four days later, the voters of Chester County elected MacElree to the bench of the court of common pleas. See 1993 Pennsylvania Manual.

A year and a half after that, MacElree sued the Inquirer and Phillips for defamation. He argued that the statement about “electioneering” and the comparison to David Duke portrayed him as “a white supremacist, white separatist, racist zealot with neo-Nazi beliefs and practices.” Appellant’s brief at 17. The trial court disagreed that a reasonable reader would have gotten that impression from the article. The trial court considered the lone remark, taken in context, to be more like a “verbal slap in the face.” As such it was not actionable as defamation, so the court sustained the newspaper’s preliminary objections and dismissed the case. We agree with Judge Cohen’s excellent opinion, and affirm.

When considering a ruling on preliminary objections in the form of a demurrer, our standard of review is well settled:

All material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be in favor of overruling it.

Muhammad v. Strassburger, et al., 526 Pa. 541, 547, 587 A.2d 1346, 1349, cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (citations omitted)).

In a defamation case, a trial court must first determine whether the offending statement, taken in context, would be interpreted by a reasonable reader as defamatory. If not, the court should dismiss the action. Thomas Merton v. Rockwell International Corp., 497 Pa. 460, 465, 442 A.2d 213, 215-16 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982); McAndrew v. Scranton Publishing Co., 364 Pa. 504, 72 A.2d 780 (1950); see also 42 Pa.C.S.A. § 8343(a)(1) (plaintiff has the burden of proving defamatory content of publication).

The article’s thesis was that Lincoln University officials were trying to cover up an ugly, racial incident on their campus. MacElree was not involved in the underlying events; he was only mentioned as the lone law enforcement official who was concerned about the truth when Lincoln officials wanted to downplay the culpable conduct of their students. Rhetorically, MacElree was mentioned solely to focus the reader’s attention on the Lincoln officials’ inability to honestly confront the problem on their campus. The article was not about MacElree; to the extent that the reader would be left with any impression of MacElree at all, it would be a positive impression when contrasted with the dissembling university officials.

MacElree therefore focuses on the David Duke comment in utter isolation, claiming that by merely publishing the comparison, the newspaper “falsely, but effectively, accused [him] of being a Klansman, a Nazi, and corrupt and oppressive in the use of his office, as well as a person who deceives the public — a Volf in sheep’s clothing.’ ” Appellant’s brief at 25. The trial court rejected this attempt to “throw the long white bonnet of Duke over the head of MacElree.” Trial court opinion, 4/8/94 at 8. We agree.

In calling MacElree “the David Duke of Chester County,” Lincoln University attorney Glanton was speaking metaphorically. If Glanton had developed this metaphor in any detail, then Judge MacElree’s extreme interpretation of the remark might be better founded. It is in the fleshing out of bare metaphor with facts that a statement acquires a defamatory content. If Glanton had described why MacElree was to Chester County what David Duke is to Louisiana, then we would know precisely what sort of factual allegations Glanton intended to make. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (discussing the semantics of defamatory statements).

But Glanton gave us no facts, no details — only a bare metaphor. Would a reasonable person take this metaphor and infer from it that every negative aspect of David Duke’s life and political career also applied to MacElree? We agree with the trial court that such an interpretation is stretched; the metaphor’s level of generality is far too high. We cannot imagine how any reasonable reader would conclude that with a mere sentence fragment likening him to Duke, the Inquirer “accused MacElree of abusing his office, violating his sworn oath, and committing state and federal offenses.” Rather, a fair and reasonable interpretation of the remark would be a simple charge of racism. That is, the remark, “MacElree is the David Duke of Chester County” is semantically equivalent to saying, “MacElree is racist.”

The trial court correctly held that such a remark, while certainly unflattering, is not enough to support a defamation action. See McAndrew, supra, 364 Pa. at 511, 72 A.2d at 783 (“It would doubtless be annoying for a man to be charged with bigotry of any kind, yet it has been held that for a man to be charged with such bigotry is not defamation.”); Rybas v. Wapner, 311 Pa.Super. 50, 55, 457 A.2d 108, 110 (1983) (“A publication which charges that an individual is actuated by unpleasant or undesirable prejudice may offend his sensibilities, but is not thereby libelous.”). The Restatement of Torts has provided a persuasive explanation as to why this should be so:

There are some statements that are in form statements of opinion, or even of fact, which cannot reasonably be understood to be meant literally and seriously and are obviously mere vituperation and abuse. A certain amount of vulgar name-calling is frequently resorted to by angry people without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more. This is particularly true when it is obvious that the speaker has lost his temper and is merely giving vent to insult.

Restatement (Second) of Torts, § 566 comment e. The Restatement does note that insults published in a newspaper ought to be considered more seriously than insults shouted in the heat of an argument. Id.

But even if Glanton fully intended to accuse MacElree of racism, we must consider what this charge means in the context of today’s political discourse. The Seventh Circuit Court of Appeals has recently offered a particularly insightful analysis:

Language is subject to levelling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. When plantation owners held blacks in chattel slavery, when 100 years later governors declared, “segregation now, segregation forever”, everyone knew what a “racist” was. The strength of the image invites use. To obtain emotional impact, orators employed the term without strong justification, shading its meaning just a little. So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of the word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings. In daily life “racist” is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back.

Stevens v. Tillman, 855 F.2d 394, 400 (7th Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989). Here, the newspaper afforded MacElree the opportufiity to slap back, and he did. Moreover, he did so with a measured, responsible reply well becoming a law enforcement officer. Glanton’s alleged remark boomeranged — by irresponsibly bandying about the language of racism, Glanton embarrassed himself more than MacElree.

We therefore decline MacElree’s invitation to blow the remark completely out of proportion, and agree with the trial court that it was not actionable defamation. As the trial court thoughtfully opined, “Glanton’s reported statement was the kind of unfortunate, impetuous outburst that is born briefly on the local political scene and then dies a natural death.” Opinion at 10. We will not resurrect it.

Affirmed.

DEL SOLE, J., concurs in the result.

      . The trial court dismissed the case once before, but allowed MacElree to plead over. The second complaint added a number of newspaper articles about David Duke, but did not otherwise restate the theory of the case. The trial court then dismissed the case with prejudice.

      . While Judge MacElree also asserts that the use of the term "electioneering” defamed him, he nowhere explains how. Webster’s Ninth New Collegiate Dictionary defines "electioneer” as “to take an active part in an election; specif: to work for the campaign of a candidate or party.” As a district attorney running for judge, the comment that MacElree was electioneering was neither defamatory nor false. The comment can have a negative connotation only when taken together with the David Duke comparison.

      . Appellant’s reply brief at 1. Contrary to the argument in MacElree’s reply brief, we think that the recent standards of Milkovich support the trial court’s conclusion that the remark is not actionable defamation. A metaphor is a figure of speech, and one cannot assign truth values to figurative language. A metaphor can only be more or less apt. Indeed, how could MacElree satisfy the Milkovich test that the metaphor be provable as false? Would he produce other residents of Chester County who are more like David Duke than he is, and thereby show that he is not the David Duke of Chester County? What criteria would a court use to evaluate the similarities? Such a literal interpretation does not capture the intended and commonly understood meaning of the statement. That is why a statement must have a core of objective meaning, or logically entail some set of falsifiable facts, before it enters the realm of actionable defamation. See Milkovich, 497 U.S. at 19-20, 110 S.Ct. at 2706-07.

      . MacElree’s false light invasion of privacy claim fails for the same reason. The article, taken as a whole, portrays MacElree not in a false light, but a positive light (albeit a dim light, seeing how MacElree was scarcely mentioned). See Curran v. Children’s Service Center, 396 Pa.Super. 29, 39, 578 A.2d 8, 12 (1990) (defining the tort), alloc. denied, 526 Pa. 648, 585 A.2d 468 (1991).


author: CIRILLO, Judge:

text:
    650 A.2d 1072
    In the Matter of Naja GREEN. Appeal of Ricardo McCOY.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Dec. 7, 1994.

      Beryl H. Benson, Philadelphia, for appellant.
    Cynthia N. Keller, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee Department of Human Services’ (DHS) demurrer to appellant Ricardo McCoy’s (putative father) petition for standing. We affirm.

Naja Green, a minor, age 4, was adjudged dependent and committed to DHS. Naja’s mother, Linda Green, gave birth to Naja on August 4, 1990 at Jefferson Hospital in Philadelphia; the child was premature, weighing less than three pounds at birth and testing positive for cocaine in her system, hepatitis and syphilis. The mother, an admitted drug abuser, abandoned the child in the hospital. The mother had identified McCoy to hospital personnel as Naja’s “father,” but did not list anyone as father on the child’s birth certificate. McCoy had been incarcerated at the time of conception, and was aware that he was not Green’s sole intimate partner; he insisted, nonetheless, that he was intimately involved with Naja’s mother while out on a furlough and that he was Naja’s father.

Following his incarceration, McCoy resided in a halfway house. During this time, he visited Naja at the hospital, but his circumstances prevented him from providing financially for Naja. On August 24, 1990, DHS held a conference with McCoy and McCoy’s mother; McCoy’s mother questioned her son’s paternity also, but indicated that she would care for the child. Later, however, she stated she was unable to care for Naja.

DHS was aware of McCoy’s situation and introduced the idea of temporary foster care for Naja. On October 17, 1990, McCoy signed a voluntary placement agreement and was granted weekly visits with Naja. Naja has lived with her foster parents since she was two months old; the foster parents wish to adopt Naja should she become free for adoption. McCoy was reincarcerated on December 18, 1990 due to a parole violation.

On April 22, 1992, following a review hearing, the court ordered blood tests on McCoy. Thereafter, the matter was again reviewed on July 21, 1992, August 12, 1992 and September 24, 1992. Blood test results excluded McCoy as Naja’s biological father. On December 22, 1992, McCoy’s visits were vacated and McCoy was precluded from contacting Naja except through an attorney.

McCoy filed a petition for standing, which was denied on September 9, 1993. This appeal followed. McCoy raises the following claims on appeal:

1. Did the trial court abuse its discretion by granting a demurrer when there were genuine factual issues and there was no entitlement to judgment as a matter of law?
2. Did the trial court abuse its discretion by its failure to estop the Department of Human Services from questioning paternity of appellant under the equitable estoppel doctrine?
3. Did the trial court err in its failure to rule paternity irrelevant?

The standard for allowance of a demurrer is virtually the same as the standard for granting a motion for compulsory nonsuit or a motion for a directed verdict in a jury trial. Vernon D. Cox & Co. v. Giles, 267 Pa.Super. 411, 406 A.2d 1107 (1979). The court must determine whether the facts as shown are sufficient to maintain the issue. A demurrer has the effect of admitting the truth of all the evidence advanced by the adverse party and all reasonable and necessary inferences therefrom. Commonwealth, Pa. Liquor Control Board v. K.V.M., Inc., 119 Pa.Commw. 458, 547 A.2d 517 (1988).

McCoy argues that DHS, as a result of its acceptance of McCoy as Naja’s father for the first twenty-one months of the child’s life, is estopped from challenging paternity. DHS argues that the doctrine of paternity by estoppel has never been applied to dependent children. DHS contends that matters involving dependent children are governed by the Juvenile Act, which mandates that the court consider the child’s best interests above all else. In the alternative, DHS argues that if this court finds that domestic relations law is applicable, then the trial court correctly determined that McCoy had failed to establish the elements of paternity by estoppel. Specifically, DHS contends that McCoy failed to show by clear and convincing evidence that his actions or DHS’s actions should estop DHS from requesting a paternity test.

Recently, the Pennsylvania Supreme Court addressed the doctrine of paternity by estoppel, and stated:

[U]nder certain circumstances, a person might be estopped from challenging paternity where that person has by his or her. conduct accepted a given person as father of the child.... These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. See, e.g., Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976). The General Assembly has codified the principle of “paternity by estoppel” in ... 48 Pa.Stat.Ann. § 167 (Purdon’s Supp.1989) (hereinafter referred to as “section 167”),[] which provides:
Children; legitimacy, determination of paternity
******
(b) For purposes of prescribed benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out of wedlock have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds out the child to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child which may include a prior determination of paternity.

John M. v. Paula T., 524 Pa. 306, 317-19, 571 A.2d 1380, 1386-87, cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990) (emphasis in original) (quoting 23 Pa.C.S.A. § 5102(b)).

We agree with the trial court that paternity was not established as a matter of law. Although McCoy held out the child to be his own, his paternity was questionable from the outset. McCoy was not identified on Naja’s birth certificate as the father, nor did he have the resources or capability of accepting Naja into his home or supporting her. 23 Pa.C.S.A. § 5102(b)(2). Cf. Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976) (mother was barred from questioning paternity of her son; mother had acquiesced in the father’s conduct and had accepted his financial support); Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991) (mother was equitably estopped from denying putative father’s paternity, despite blood tests conclusively indicating that father was not child’s biological father; father had developed a strong bond with the child and mother had led father to believe he was the child’s father and had accepted father’s assistance in child support payments pursuant to an agreed support order); In re Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987) (father was precluded from attempting to disprove his own paternity through blood testing since paternity had already been established through the father’s conduct; the father had held out the child to be his own and had supported the child for some time).

In Gulla, supra, this court explained that the doctrine of equitable estoppel is aimed at “achieving fairness between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child.” Id. at 278, 596 A.2d at 856 (emphasis added). In Gulla, the court found that the number of years or months the parent and child are involved in the relationship is not necessarily determinative. In holding that the mother was estopped from questioning the father’s paternity, Judge Beck stated:

Rather, it is the nature of the conduct and the effect on the father and the child and their relationship that is the proper focus of our attention. Every such case must be decided after a close analysis of all of the facts and circumstances, with the length of time involved being only one circumstance to be considered.

Id. at 282, 596 A.2d at 858.

We have been unable to uncover a case in the Commonwealth applying the doctrine of paternity by estoppel to a factual situation such as this. We must determine, therefore, as a matter of policy, whether the doctrine of paternity by estoppel is applicable against an agency, such as DHS, operating in the interests of a dependent child, just as it is applicable against a mother challenging a father’s paternity, or a father attempting to prove or disprove his own paternity. Cf. In re John M., supra; Young, supra; Gulla, supra; Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988); Montenegro, supra.

Because it is the parent/ehild bond and the nature of that relationship that is our primary focus, Gulla, supra, we find that the doctrine is applicable to an agency such as DHS. Public policy dictates that the parent/ehild bond be nurtured. We are bound to preserve that relationship where it exists. Refusing to apply the doctrine of paternity by estoppel simply because an agency, and not a parent, challenges paternity, would be inconsistent with our efforts to preserve the parent/child relationship.

The question we must next answer is whether, under these facts and circumstances, DHS’s actions and McCoy’s actions are such as to estop DHS from challenging McCoy’s paternity. Although we applaud McCoy’s efforts at parenting, our review of the record precludes us from characterizing McCoy’s relationship to Naja as “parental.” None of the determining factors for paternity, as codified in 23 Pa.C.S.A. § 5102(b) apply. The parents did not marry, and there was no determination of paternity. Further, McCoy was unemployed, unable to provide housing, care, or financial support for Naja, and was serving a prison sentence. 23 Pa.C.S.A. § 5102(b)(1), (2), and (3). Realistically, McCoy was unable to establish or maintain a parent/ehild relationship with Naja. This is particularly emphasized here due to Naja’s special developmental needs caused by her medical condition at birth. These facts do not rise to the level of clear and convincing evidence to support a determination of paternity. See 23 Pa.C.S.A. § 5102(b)(2); see also Jefferson v. Perry, 432 Pa.Super. 651, 639 A.2d 830 (1994) (although both parties admitted that during child’s infancy putative father, who believed at the time the child was his, had relationship with the child, the parties did not live together, putative father had not visited the child for one and one-half to three years at the time of trial, and putative father had not supported the child; court held that finding of paternity was not supported by clear and convincing evidence).

We conclude, therefore, that McCoy has failed to establish his paternity as a matter of law, and has failed to establish that the doctrine of paternity by estoppel is appropriate here to preclude DHS from challenging paternity.

Order affirmed.

      . Repealed. 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days, and reenacted at 23 Pa.C.S.A. § 5102, 1990, Dec. 19, P.L. 1240, No. 206, § 2, effective in 90 days.


author: TAMILIA, Judge.

text:
    650 A.2d 1076
    Sonja L. RIFFE and Robert B. Anderson, Co-Administrators of the Estate of Steven D. Anderson, Deceased, Appellants, v. VEREB AMBULANCE SERVICE, INC., St. Francis Hospital and Valerie L. Custozzo.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1994.
    Filed Dec. 7, 1994.

      Jack W. Cline, Mercer, for appellants.
    Louis C. Long, Pittsburgh, for St. Francis.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge.

Sonja L. Riffe and Robert B. Anderson, co-administrators of the estate of Steven D. Anderson, deceased, take this appeal from the Order of April 20, 1994, denying plaintiffs’ motion to remove compulsory nonsuit. The underlying wrongful death action was filed by appellants on March 27,1992 against Vereb Ambulance Service, St. Francis Hospital and Valerie Custozzo. The complaint alleged that on March 30, 1990, defendant Custozzo, an emergency medical technician employed by Vereb Ambulance Service, while responding to an emergency call regarding Steven Anderson, began administering to Anderson the drug Lidocaine, as ordered over the telephone by the medical command physician at defendant hospital. While en route to the hospital, Anderson was administered an amount of Lidocaine 44 times the normal dosage. Consequently, normal heart function was not restored and Anderson was pronounced dead at the hospital shortly thereafter.

On August 17, 1993, plaintiffs settled their action against Custozzo and Vereb Ambulance Service for $40,000 and executed a release. On March 29, 1994, a jury trial as to St. Francis Hospital commenced before the Honorable Francis X. Caiazza of the Court of Common Pleas of Lawrence County. Following the testimony of two plaintiffs’ witnesses, and an offer of proof regarding the remainder of plaintiffs’ case, the trial court found that the release of Custozzo and Vereb Ambulance Service, ostensible agents of the hospital, acted as a release of the hospital. Accordingly, the trial court entered compulsory nonsuit in favor of St. Francis Hospital and against plaintiffs (N.T., 3/30/94, p. 26). Plaintiffs’ counsel made an oral post-trial motion to remove the nonsuit, which was denied by the trial court. Appellants filed a notice of appeal on April 13, 1994.

Appellants argue that their theory of liability was not based upon agency principles, but rather on the theory that the hospital breached its duty of care to pre-hospital patients, as that duty is set forth in the Pennsylvania Code. Appellants claim that in finding no duty on the part of the hospital, the trial court further erred in excluding competent testimony offered to show the hospital had breached its duty. Inasmuch as disposition of this case turns on whether, as appellants allege, the hospital “had an independent, primary and concurrent duty of care to the deceased pre-hospital patient,” our analysis must begin with an examination of the applicable sections of the Pennsylvania Code governing emergency medical care.

As appellee notes correctly, the delivery of emergency medical care is governed by the Emergency Medical Services Act (“the Act”), 35 P.S. §§ 6921-6938, and the regulations promulgated thereunder by the Pennsylvania Department of Health, 28 Pa.Code §§1001.1-1013.7. Under the Act, the Secretary of the Department of Health of the Commonwealth (“the Department”) is charged with overseeing and coordinating the Commonwealth’s emergency medical services (EMS) system. 35 P.S. §§ 6924, 6925. The Department’s mandate provides for the training, certification, accreditation, continuing education and quality assurance of EMS personnel. Id., §§ 6924(1); 6925(b)(6); 6931(b), (d).

In conjunction with these duties, the regulations provide for the establishment of statewide and regional EMS councils, which in turn are also charged with certain responsibilities. See 28 Pa.Code §§ 1001.2 (definitions of Council, EMS Council and Regional EMS Councils and the Council); 1001.121-1002.125 (additional requirements for Regional EMS Councils); 1001.141-1001.143 (additional requirements of the Council). Each regional EMS council has a regional EMS medical director, whose duties include: ensuring compliance by EMS personnel with state certification and continuing education standards, § 1003.2(a)(4); establishing standards for EMS dispatch, field treatment and transportation protocols, § 1003.2(a)(5)-(8); and establishing operation standards for medical command facilities, § 1003.2(a)(9).

The Act and the Code define medical command facility as “The distinct unit within a facility that contains the necessary equipment and personnel for providing medical command and control to an ambulance service.” Id., § 1001.2; 35 P.S. § 6923. A “facility” is defined as “a hospital.” Id. The Code requires every medical command facility within a hospital to be accredited by the Department by complying with stated operational criteria, § 1009.1. Each medical command facility is headed by a medical command facility medical director, defined as a “physician responsible for the medical direction and control of the medical command physicians at an accredited medical command facility.” Id, § 1001.2.

While the Code specifies that a medical command facility “shall actively participate in quality assurance programs approved by the Department,” § 1001.63, it does not specify what that participation entails. Further, although a medical command facility medical director has the responsibility for quality assurance and participation in EMS training and education, § 1003.3, the roles and responsibilities are not set forth in the regulation as specified duties. Cf. § 1003.2(a) (“Each regional EMS council shall have a regional EMS medical director who shall carry out the following duties....) (emphasis added). A comparison between the language referring to regional EMS medical directors and medical command facility medical directors discloses no language setting forth specific duties for medical command facility medical directors. Moreover, we find no reference to “facility” beyond the definition in the Code, and no duty imposed upon a facility.

For these reasons, the trial court, after an offer of proof, objection thereto and argument by counsel, excluded the proposed testimony of plaintiffs’ expert. The trial court stated:

In response to the issue now before the Court for resolution, the Court will advise counsel, at this time, that this Court finds that the medical command facility, pursuant to the applicable statute, is a distinct unit within the hospital, and, in this instance, of course, the hospital is the St. Francis Hospital of New Castle.
In similar fashion, the Court finds that neither the hospital nor the medical command facility located within the hospital, again, the St. Francis Hospital of New Castle in this instance, are responsible for the training or the overseeing or the certification or hiring of ambulance personnel, be they attendants, EMT paramedics or emergency medical technicians. The satisfaction of the certification requirements of ambulance attendants, EMT’s and EMT paramedies are determined by the Pennsylvania Department of Health pursuant to the statute.
That’s before the Court for interpretation. In that regard, the regional EMS medical director is responsible to insure [sic] that the personnel in the EMS system meet the certification and continuing education standards required by the state and regional protocols.
Fundamentally, the certification and the continuing education standards are determined, for the most part, by the Pennsylvania Department of Health, but not by the hospital. In that regard, the Court refers counsel to section 1003.24 of the statute [sic] under consideration here.
Also, as a practical matter, in view of this Court to hold the hospital liable for the negligent acts involving prehospital care, such as appears in this case, would place an undue burden upon the hospital by making the hospital responsible for the competency of each employee of each ambulance service within the area of service.
The testimony that counsel intends to present from Dr. Ferrucci cannot be in opposite [sic] to the finding of this Court.

(N.T., 3/30/94, pp. 1-3.)

The trial court noted the practical impossibility of the hospital carrying ultimate responsibility for the quality of care and treatment given patients, in general, by EMS services. This is propounded proportionately in relation to the density of the population, numbers of hospitals (facilities) and number of EMS services. It becomes obvious that the focus of training and monitoring of such services must lie with the EMS regional and local councils pursuant to and subject to regulations promulgated by the Department of Health. While hospitals, as facilities, participate in the overall operation of EMS services, the hospital command facility derives its function from the law and regulations relating to the operation of EMS. The networking of EMS and command facilities is such that they have a common interrelated function that is apart from the administration of the hospitals to which they are attached. Because EMS may be involved with several hospitals depending on specialization, and even allowing for patients’ directions, a hospital’s legal responsibility for the operation of any given EMS becomes too tenuous.

For the above reasons, we find no error by the trial court in determining no liability could be imputed on the part of St. Francis Hospital.

We also reject appellants’ comparison of this Court’s decision in Friter v. Iolab Corp., 414 Pa.Super. 622, 607 A.2d 1111 (1992), with this case. In Friter, a federal regulation, 21 C.F.R. § 813.66(a)(6), imposed a specific duty on a hospital to obtain an informed consent from a patient prior to the patient’s participation in an experimental procedure. Unlike Friter, no specific regulation or statute in Pennsylvania imposes liability on a hospital housing EMS medical command facilities for the negligence of an ambulance service or its personnel.

As a final matter, in addition to its finding that the hospital was not directly liable, we also agree with the trial court that appellants’ release of Custozzo and Vereb extinguishes any claim against the hospital, under a theory of vicarious liability. Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380 (1989).

For all of the foregoing reasons, we find no legal duty on the part of St. Francis Hospital, and, therefore, no liability. Consequently, we affirm the Order denying appellants’ motion to remove the nonsuit.

Order affirmed.

      . Appellants have not provided any case law or statutory support for their position contrary to the trial court’s interpretation of the Act and 28 Pa.Code §§ 1001.1-1013.7, other than a one-paragraph footnote to their brief. In that footnote, however, appellants' citations to the Code refer to sections dealing with special events and regional EMS medical directors and councils, none of which is applicable to this case. In addition, the footnote refers to the responsibilities of medical command facility medical directors, which, as stated supra, cannot be equated to legal duties.


text:
    650 A.2d 1079
    Irene TESAURO and Richard Tesauro, Appellees, v. M.L. PERRIGE, D.M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1994.
    Filed Dec. 12, 1994.

      Jonathan D. Herbst, Philadelphia, for appellant.
    Nancy H. Fullam, Philadelphia, for appellees.
    Before CIRILLO,' OLSZEWSKI and HESTER, JJ.

      . A dry socket is a painful condition that can develop after the extraction of a tooth when a blood clot fails to form in the cavity left by the tooth removal. R.R. 799a.

   OLSZEWSKI, Judge:

In 1984, Mrs. Irene Tesauro, appellee, saw Dr. M.L. Perrige, appellant, to have a damaged lower left molar removed. Dr. Perrige, a board-certified oral surgeon, successfully removed the molar; however, a dry socket developed shortly after the extraction. After initial attempts at treatment failed, Dr. Perrige administered an injection of alcohol near the affected area.

Immediately after the alcohol injection, Mrs. Tesauro experienced severe pain, burning, and numbness on the left side of her face and mouth. She also experienced difficulty opening her mouth. The diagnosis of several treating physicians was that Mrs. Tesauro suffered from muscle spasms caused by a damaged trigeminal nerve.

Mrs. Tesauro spent the next five years visiting a multitude of specialists and attempting a variety of treatments in hopes of alleviating the symptoms. In 1989, Dr. Terzis performed an experimental surgery on Mrs. Tesauro that attempted to repair the damaged trigeminal nerve. The operation was very successful and has eliminated the most painful symptoms. But Mrs. Tesauro still suffers from numbness and limited burning on certain areas of her face.

In 1986, Mrs. Tesauro and her husband, Richard Tesauro, filed a dental malpractice lawsuit against Dr. Perrige. The suit alleged that Dr. Perrige was negligent in administering an alcohol injection so close to the trigeminal nerve. The jury returned a verdict in favor of Mr. and Mrs. Tesauro. It awarded $2,747,000 in compensatory damages to Mrs. Tesauro and $593,000 to Mr. Tesauro for loss of consortium. This appeal followed.

Dr. Perrige’s first assertion is that he is entitled to a remittitur or a new trial on damages because the jury verdict was excessive. The decision to grant, or not to grant, a new trial based on the excessiveness of a jury verdict is within the sound discretion of the trial court, and its decision will be upheld on appeal absent a gross abuse of that discretion. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 164-65, 611 A.2d 1174, 1176 (1992); Harding v. Consolidated Rail Corp., 423 Pa.Super. 208, 224-26, 620 A.2d 1185, 1193 (1993). In this area of the law, a gross abuse of discretion means that the verdict must be so grossly excessive that it shocks the court’s sense of justice.

Id. We are not free to substitute our judgment for that of the trial judge or jury. Botek, 531 Pa. at 164-65, 611 A.2d at 1176.

This Court has set out certain factors that are helpful in determining whether a particular verdict is excessive. A court should consider, inter alia:

(1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of out-of-pocket expenses; (6) The amount of compensation demanded in the original complaint.

Harding, 423 Pa.Super. at 225-26, 620 A.2d at 1193. The court should apply only those factors that are relevant in a particular case, as each case is unique. Id.; Mineo v. Tancini, 349 Pa.Super. 115, 124-26, 502 A.2d 1300, 1305 (1986). After a careful review of the record in the present case, we find that the evidence fairly supports the jury’s award of damages.

The severity of Mrs. Tesauro’s injury in itself would support the compensatory award of $2,747,000. The testimony establishes that she had a severely damaged trigeminal nerve. The damage caused numbness, burning, and sharp pain on the left side of her face, as well as extreme difficulty in opening her mouth to talk or to eat. Mrs. Tesauro spent the next five years trying to find a cure for the chronic pain. During that time, she consulted numerous specialists and underwent a variety of attempted treatments (including hydrocollators, physical therapy, multiple bite appliances, mouth splints, sliced cork wedges, medications, transcutaneous nerve stimulators, hypnotism, acupuncture, biofeedback, counseling, and speech therapy). R.R. 446a-459a. Notwithstanding all attempts to solve the problem, the pain persisted and the difficulties with essential activities, such as speaking and eating, continued unabated. In 1989, Mrs. Tesauro underwent radical experimental surgery, performed by Dr. Terzis, that finally succeeded in correcting the most oppressive symptoms. While much recovered, Mrs. Tesauro still suffers from numbness and some burning. Her experience clearly falls into the category of a severe injury. Cf. Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953) (court found an injury to be severe and upheld- a large jury verdict where plaintiff spent nine weeks in the hospital, underwent skin grafting, and walked on crutches and special shoes); Libengood v. Pennsylvania Railroad, Co., 358 Pa. 7, 55 A.2d 756 (1947) (court found an injury to be not very severe and held the jury award to be excessive where plaintiff was only in the hospital for four days and suffered from slight bruises).

The five remaining factors further undermine Dr. Perrige’s claim that the jury verdict was excessive. The injury was manifested by objective physical evidence; Dr. Terzis testified to the damaged nature of the trigeminal nerve that she viewed during the corrective surgical procedure. As for the permanence factor, Mrs. Tesauro’s testimony that she still experienced numbness and burning on the left side of her face, and that she remains unable to chew on that side of her mouth for fear of choking, was sufficient to show that some aspects of this injury are permanent. In terms of employment, the evidence establishes that Mrs. Tesauro no longer runs her own beauty salon and now works part-time for someone else. These facts indicate that while Mrs. Tesauro is still working, her earning potential will probably never be as high as it was prior to the injury. Lastly, while it is true that the jury award was much higher than the actual out-of-pocket expenses and the original claim, these factors alone are not dispositive. See Botek, 531 Pa. at 164-65, 611 A.2d at 1176 (Supreme Court upheld jury verdict of $350,000 where out-of-pocket expenses were only $800).

Dr. Perrige puts much emphasis on Mrs. Tesauro’s improvement since the 1989 corrective surgery. As the evidence shows, however, this improvement does not diminish the pain that she suffered for five years prior to the 1989 surgery. It also mischaracterizes her present condition as one of total comfort. Her improvement must be viewed relatively: her life is wonderful now relative to how painful it was before the 1989 surgery. Even taking into account the fact that Mrs. Tesauro’s future will be better than her immediate past, this jury verdict does not shock our sense of justice. Therefore, we find no abuse of discretion by the trial court in refusing to grant a remittitur or a new trial.

Our analysis is the same regarding the jury award of $593,000 to Mr. Tesauro for loss of consortium. The severity of the injury had a huge impact on the marital relationship. Once again, Dr. Perrige primarily argues that it is better now that Mrs. Tesauro has improved. Notwithstanding the improvement, the jury believed that Mr. Tesauro had suffered a valid loss over that five-year period. It compensated him in an amount that it considered fair and just. This decision does not shock our sense of justice and we see no reason to disturb the award.

Dr. Perrige’s second claim is that the trial court committed reversible error by not instructing the jury on the “two schools of thought” doctrine. Our Supreme Court recently clarified the law on this doctrine in Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992), writing “[w]here competent medical authority is divided, a physician -will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” 53l Pa. at 40, 610 A.2d at 969. The burden is on the defendant to prove that there are two schools of thought. Id. In determining when the two schools of thought instruction must be given to the jury, the court must evaluate whether the defendant has produced adequate factual support for his claim that there áre a considerable number of professionals who agree with the treatment. Id.; Bonavitacola v. Cluver, 422 Pa.Super. 556, 564-66, 619 A.2d 1363, 1368 (1993), appeal denied, 535 Pa. 652, 634 A.2d 216 (1993) (“trial court must initially determine whether the defendant has introduced sufficient evidence that ‘there is a considerable number of professionals who agree with the treatment employed by the defendant’ ”).

In the present case, the factual support offered by Dr. Perrige did not meet this standard. Dr. Perrige claimed that he was following a procedure described in a 1975 text by the former Chief of Oral Surgery at the University of Pittsburgh, Dr. Archer. R.R. 864-65a. Dr. Perrige’s first expert, Dr. Totian, never claimed that alcohol injections were proper and widely used in the treatment of dry sockets. In fact, he testified that he had never given one and did not teach the procedure to others. R.R. 753-54a. Dr. Perrige’s second expert, Dr. Guernsey, asserted that the use of alcohol injections to treat certain intractable pain was “well known in ... the literature.” His only factual support for the use of alcohol to specifically treat dry sockets, however, was the 1975 text authored by Dr. Archer and a reference in a manual written by a Dr. Shira during Dr. Guernsey’s residency from 1959-1961. R.R. 1007a, 938a, 947a. Dr. Guernsey also stated that he had never personally given an alcohol injection specifically to treat dry socket and had never taught his residents to give such an injection. R.R. 947a-948a. Therefore, the defense’s factual support consists of a 1975 text by Dr. Archer and a brief mention in a thirty-three-year-old manual.

The manual by Dr. Shira is clearly out of date. Especially in the medical and dental fields, evidence of treatments that were used more than twenty years ago is only marginally relevant. It is incumbent upon practitioners to keep current on the safety of their preferred techniques. The text by Dr. Archer is also arguably dated; but even more importantly, it is a text by a single oral surgeon. Even Dr. Guernsey conceded that the alcohol procedure is not mentioned in any other scholarly article or text. R.R. 1007a. The writings and teachings of one individual are inadequate factual support for the proposition that a considerable number of professionals agree with this treatment. In light of the meager defense evidence and the more telling evidence presented by all of the experts at trial, including defense experts, that not one of them had ever used alcohol in such a manner, we must find that the defense failed to meet its burden of producing sufficient evidence to support a second school of thought. Therefore, the trial court did not err by refusing to instruct the jury on the two schools of thought doctrine.

Dr. Perrige’s final assertion is that the trial court committed reversible error in allowing Dr. Perrige to be impeached by prior inconsistent statements in a deposition from a separate proceeding. Specifically, Dr. Perrige urges that Mrs. Tesauro’s counsel failed to lay a proper foundation by not specifically introducing evidence of the similarity of the two cases. Therefore, the evidence was collateral, in that it was unduly prejudicial and confusing for the jury when compared to its low probative value. We disagree.

A party to a lawsuit who chooses to testify “may be cross-examined freely as to any matter relevant and material to the issues.” Brozana v. Flanigan, 309 Pa.Super. 145, 148-50, 454 A.2d 1125, 1127 (1983) (quoting Jess v. McMurray, 394 Pa. 526, 527, 147 A.2d 420, 421 (1959)). “The credibility of a witness on dispositive facts is always in issue.” Brozana, 309 Pa.Super. at 149, 454 A.2d at 1127. In the present case, the issue was whether Dr. Perrige was negligent in administering an alcohol injection to treat Mrs. Tesauro’s dry socket. The prior inconsistent statements offered by Mrs. Tesauro’s counsel were statements describing Dr. Perrige’s phone calls to other area dentists to ask if they used alcohol injections. These statements go directly to Dr. Perrige’s credibility on the central issue of the case: the propriety of using these injections. Therefore, this cross-examination was properly allowed as going to the credibility of a party witness on a central issue in the case.

Dr. Perrige argues that the relevance of the prior inconsistent statement was outweighed by the prejudice to his case because of opposing counsel’s failure to lay an extensive foundation as to the similarity of the two cases. This assertion is simply not supportable. See Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 614-16, 537 A.2d 334, 336 (1988). In Majdic, this Court allowed a witness to be impeached using conflicting interrogatory answers from a prior lawsuit, notwithstanding the fact that the proponent of the evidence failed to establish the substantial similarity of the prior lawsuit. Id.

Similarly, in the instant case, counsel’s failure to introduce a lengthy foundation as to the similarity between the two cases did not preclude counsel from using the prior inconsistent testimony to impeach Dr. Perrige. The two cases both involved patients who received alcohol injections from Dr. Perrige, illustrating that the cases were similar enough for the testimony to be relevant. Since the jury was already aware of the prior lawsuit based on remarks from appellee’s witness, Dr. Vernose, the questioning of Dr. Perrige was not unduly prejudicial to the jury. Therefore, we find that the trial court did not abuse its discretion in allowing Mrs. Tesauro’s counsel to impeach Dr. Perrige using his prior inconsistent statements.

In conclusion, we find that Dr. Perrige has failed to establish that the trial court abused its discretion in its final order.

Order affirmed.

      . In 1988, Mrs. Rao, another one of Dr. Perrige’s patients, sued him for injuries resulting from an alcohol injection.


author: BROSKY, Judge.

text:
    650 A.2d 1084
    COMMONWEALTH of Pennsylvania v. Joseph R. RICCO, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1994.
    Filed Dec. 12, 1994.

      Mark S. Love, Tannersville, for appellant.
    James P. Gregor, Dist. Atty., Stroudsburg, for Com., appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s conviction upon two counts of indecent assault. The sole question presented for our review is whether the evidence was sufficient to sustain appellant’s conviction in that there was no actual skin-to-skin contact between appellant and the victim. For the reasons set forth below, we affirm the judgment of sentence.

Before considering this question, we will briefly recount the pertinent facts of this case. In July of 1993, the female victim moved with her family from New Jersey to Pennsylvania. Within a few days after her arrival, the victim met the daughter of appellant, Joseph Ricco, Sr. The girls became friends and on July 29, 1993, the victim was invited to sleep over at appellant’s home.

Appellant’s wife left for work late in the evening, thus leaving her daughter, son and the victim in appellant’s care. While alone with the girls, appellant teased his daughter regarding her weight, causing her to cry and flee to her bedroom. Appellant then invited the victim to sleep in his bedroom. The victim consented, went into appellant’s bedroom and got into the bed. Appellant thereafter turned out the lights and removed his clothing except for his underwear. Appellant got into bed with the victim and “cuddled” or hugged her. The victim was wearing a pair of shorts beneath her nightgown which appellant asked her to remove. The victim refused. Appellant then took the victim’s hand and placed it over his genital area. After a few seconds, the victim managed to pull her hand away. Although appellant attempted to take the victim’s hand, she resisted by stiffening her hand so that he could not move it. Appellant’s daughter then entered the bedroom and asked the victim to come and sleep with her. The victim agreed and the girls went to sleep on a sofabed. Appellant followed the girls downstairs and asked to sleep with them. Appellant’s daughter refused and appellant kissed the girls on their cheeks. Although appellant told the victim to move over to allow him to enter the bed, she did not comply. Having been rebuffed, appellant left the girls alone and retired to his bedroom to sleep. The victim subsequently apprised her family of the incident, who in turn contacted the police. Appellant was charged with various offenses as a result.

A jury trial was held in May, 1994 following which appellant was acquitted of the charge of corrupting the morals of a minor and convicted of two counts of indecent assault. Appellant was sentenced on June 16, 1994 to a term of six (6) to eighteen (18) months’ imprisonment. Appellant thereafter initiated this timely appeal therefrom.

Appellant challenges the sufficiency of the evidence to sustain his conviction. In determining whether the Commonwealth has met its burden of proof, the test to be applied is:

Whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations omitted). We will examine appellant’s arguments and the decision of the lower court with these considerations in mind.

The crime of indecent assault is defined as follows:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him, is guilty of indecent assault if: (1) he does so without the consent of the other person; ... (6) he is over 18 years of age and the other person is under 14 years of age.

18 Pa.C.S.A. § 3126(a)(1) and (6). The Crimes Code further defines the phrase “indecent contact” as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S.A. § 3101. While the term “touching” has not been expressly defined by our Legislature, this court has indicated that it includes contact between a bodily part with another object so as to perceive it through the tactile sense. See Commonwealth v. Grayson, 379 Pa.Super. 55, 60 n. 3, 549 A.2d 593, 596 n. 3 (1988).

The evidence presented by the Commonwealth unequivocally established that appellant committed the crime of indecent assault by causing the victim to have indecent contact with him in that he placed the victim’s hand upon his genitals. Appellant nonetheless argues that this conduct should not be construed as an indecent assault because no actual skin-to-skin contact occurred. Appellant essentially asks us to impose a direct skin-to-skin contact requirement onto the statute even though it does not expressly so provide. This we decline to do.

In applying the indecent assault statute, this court has recognized that:

The legislature of this Commonwealth established the crime of indecent assault because of a concern for the shame, outrage, and disgust engendered in the victim, rather than because of any physical injury to the victim. Moreover, due to the nature of the offenses sought to be proscribed by the indecent assault statute, and the range of conduct proscribed, the statutory language does not and could not specify each prohibited act.

In the Interest of J.R., 436 Pa.Super. 416, 426, 648 A.2d 28, 34 (1994) (citation and quotation marks omitted).

To interpret the statute in the manner posited by appellant would contravene the purpose of this enactment and would lead to patently absurd results. When indecent contact has occurred, a victim feels no less shame, outrage and disgust merely because a layer of clothing comes between his/her own skin and the skin of the perpetrator. Moreover, appellant’s interpretation of the statute is unreasonable and illogical, as demonstrated by the excellent example set forth by President Judge Spicer in Commonwealth v. Bittinger, 9 D. & C.3d 614, 617 (C.C.P. Adams 1979) in which he described a situation in which the perpetrator wore gloves and the victim absolutely nothing.

Pursuant to appellant’s theory, any touching or contact which occurred between a victim and the perpetrator in Judge Spicer’s scenario would not constitute an indecent assault since a layer of clothing separated the victim’s skin from that of the perpetrator. Adoption of appellant’s skin-to-skin requirement would thus enable a perpetrator to touch any part of the victim’s body at whim and subject the victim to extensive unwanted touching, yet the perpetrator would be insulated from criminal liability merely by ensuring that a clothing barrier existed between the victim’s and the perpetrator’s skin. The same would be true in a case where the touching occurred through the victim’s clothing. Such a result is untenable as it would completely eviscerate the purpose of the statute and the evil which it seeks to prohibit. We therefore reject appellant’s invitation to engraft a direct skin-to-skin contact element onto the indecent assault statute. Because the evidence presented here was more than sufficient to establish that an indecent assault occurred, we affirm the judgment of sentence. See Commonwealth v. Vosburg, 393 Pa.Super. 416, 422, 574 A.2d 679, 682 (1990), allocatur denied, 529 Pa. 648, 602 A.2d 859 (1991) (evidence that defendant entered a home and proceeded to a second floor bedroom where an eight year old girl was sleeping, following which he pulled on her underwear was sufficient to show that an indecent assault occurred); In re: M.S., 10 D. & C.4th 282, 282-283 (C.C.P. Bucks 1990) (requisite element of indecent contact was established by the touching of female victim’s intimate parts, i.e., breasts, over her clothing); Commonwealth v. Bittinger, 9 D. & C.3d at 615, 617 (evidence sufficient to sustain indecent assault conviction where defendant grabbed a young woman’s shoulders, wrestled her to the ground, slapped her and laid directly on top of her in a sexual position).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3126(a)(1) and (6).

      . The victim was approximately ten years of age when the offenses were peipetrated.

      . Appellant was forty-one years of age at the time of the incident.

      . For support, appellant refers us to People v. Duke, 174 Cal.App.3d 296, 299-300 n. 1, 219 Cal.Rptr. 873, 875 n. 1 (1985) and In re: Keith T., 156 Cal.App.3d 983, 986, 203 Cal.Rptr. 112, 113 (1984), both of which found the evidence insufficient to sustain a sexual battery conviction where the touching occurred through the victim’s clothing. At the time these cases were decided, the California Penal Code expressly required physical contact with the victim's skin. See California Penal Code § 243.4(d) (West 1988) (defining touching as physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense). See also People v. Duke and In re: Keith T., supra. However, the California statute was amended in 1992 and now defines touching as “physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.” California Penal Code § 243.4(d)(2) (West 1994 Supp.). Consequently, physical contact with the victim's skin is no longer a required element.
      Appellee also references the law of other states in support of its argument that direct skin contact need not be proved. See Appellee's Brief at 8 n. 4 (citing People v. Boykin, 127 A.D.2d 1004, 513 N.Y.S.2d 310, appeal denied, 69 N.Y.2d 1001, 511 N.E.2d 93, 517 N.Y.S.2d 1034 (1987) and State v. Towers, 304 A.2d 75 (Maine 1973), both of which affirmed convictions in which touching occurred through the victim’s clothing). However, the Maine and New York statutes expressly define unlawful sexual contact as touching which occurs either directly or through clothing. See 17-A Maine Revised Statutes Annotated § 251 (1994 Supp.) (defining sexual contact as any touching of the genitals or anus, directly or through clothing) and 39 N.Y. Penal Law § 130.00 (McKinney's 1987) (sexual contact includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing). Pennsylvania’s statute significantly differs from the laws of Maine and New York, as well as California, because it does not expressly state that touching includes contact through the clothing of the victim or the perpetrator. We accordingly do not find the authorities referenced by the parties to be dispositive.


text:
    650 A.2d 1087
    Edward Anton VALANT, Jr. v. Renee C. VALANT, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Dec. 13, 1994.

      Serena M. Williams, Pittsburgh, for appellant.
    Robert W. Koehler, Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County. We affirm.

On January 28, 1994, the Honorable Cynthia A. Baldwin denied appellant Renee C. Valant’s (Wife) request for a hearing on counsel fees. Wife alleged that appellee Edward Anton Valant, Jr. (Husband) had violated the parties’ marriage settlement agreement and was, therefore, responsible for Wife’s counsel fees and expenses associated with enforcement of the agreement. Wife argues that the court’s failure to schedule a hearing on this issue violated her right to due process.

The parties were married on October 15, 1990 and divorced on September 18, 1991. Just prior to entry of the divorce decree, on August 16, 1991, the parties entered into a marriage settlement agreement. The agreement purported to resolve the outstanding economic issues between the parties. The agreement provides, in pertinent part:

8. ... For her interest in the commercial assets of the marital estate, Wife recognized that she received more than 50% of the personal assets and Wife shall relinquish all of her right, title and interest in the property and stock of Keystone Spring Service, Inc., and the real estate located in the Strip District of the City of Pittsburgh, Pennsylvania and Portersville, Pennsylvania, and in consideration of such relinquishment, Wife shall receive payment in the sum of $75,000.00 per year for a period of 20 years following the execution of this agreement.
‡ He :>c ‡ ‡ ‡
11. The installment payments ... shall be secured and pledged by Certificates of Deposit currently with a value of at least $509,000.00 held in the name of Husband’s late father, Edward Anton Valant, Sr. Said Certificates of Deposit shall be held and interest accumulated thereon in the possession of Husband’s Lawyer, with instructions that said Certificates shall not be turned over to anyone or pledged or encumbered without evidence that Husband’s obligation under Paragraph 8 of this Agreement has been paid in full or without the consent of Wife. In the event Husband’s lawyer is unable or unwilling to provide said service or in the event of said lawyer’s death, disability, or incompetence, or if said lawyer shall move out of the jurisdiction of Pennsylvania, a successor lawyer shall be selected.

(emphasis added). Further, paragraph 6 provides in part:

Should either party have to pursue remedies through the Court, then that party upon prevailing may, if the Court deems it equitable and proper, be awarded reasonable counsel fees to compensate for the necessity of having to seek the aid of the court to enforce this Agreement.

The parties’ personal assets were valued at over 1.7 million dollars. These assets were divided between the parties pursuant to the agreement. In consideration for Wife’s relinquishment of her interest in the parties’ business assets, Husband was to pay Wife $75,000.00 each year in accordance with paragraphs 8 and 11 of the marriage settlement agreement.

After the parties executed the agreement, it was determined that the Husband’s father’s estate did not contain the Certificates of Deposit which were to be used as security for the installment payments. Upon this discovery, both parties agreed that negotiations commence for substitute security. Approximately one year after negotiations began, the parties entered into a consent order and addendum to the marriage settlement agreement. This consent order and addendum provided for substitute security for the installment payments. The consent order, dated October 13, 1993, provides in relevant part:

With the consent of the parties and their counsel, it is hereby ORDERED, ADJUDGED and DECREED that the following substitute security shall be established within thirty (30) days:
1. Plaintiff [Husband] shall execute a Note to Defendant [Wife] in the amount of $1,312,500.00, a mortgage to Defendant [Wife] on property located in Muddycreek Township, Butler County, Pennsylvania, and a mortgage to Defendant on property located in the 6th Ward of Pittsburgh, Allegheny County, Pennsylvania.
2. The property located in Muddycreek Township, Butler County, Pennsylvania has an approximate value of $270,000 as represented by West Penn appraisers on which Defendant [Wife] relied in accepting said property as security.
3. The property located in the 6th Ward of Pittsburgh, Allegheny County, Pennsylvania has an approximate value of $580,000 as represented by West Penn Appraisers on which Defendant [Wife] relied in accepting said property as security.
4. Plaintiff [Husband] shall designate Defendant [Wife] as irrevocable primary beneficiary on SMA Life Assurance Company life policy # L 559 387-00 in the face amount of $600,000.00 and maintain such designation and face amount until further Order of Court and/or the satisfaction of all obligations called for in the Agreement.
******

Both parties signed the consent order and it was filed of record on October 13, 1993. On January 28, 1994, Wife presented to the court a petition for reimbursement of counsel fees and expenses and requested a hearing on the petition. The trial court, noting that Wife did not seek the aid of the court to enforce the agreement, denied Wife’s petition and request for a hearing. On appeal, Wife raises the following two issues:

1. Did the trial court err in failing to schedule a hearing on the issue of reimbursement of counsel fees incurred due to Husband’s non-compliance with the parties’ Marital Settlement Agreement, thus denying Wife her right of due process?
2. Did the trial court err in failing to order Husband to further perfect security on his financial obligations to Defendant under the Marital Settlement Agreement until such time as the security called for in said Agreement had been duplicated in quality?

Wife relies upon the case of Creeks v. Creeks, 422 Pa.Super. 432, 619 A.2d 754 (1993) to support her argument. In Creeks, the parties entered into a marital settlement agreement. Like the agreement presented here, the Creeks’ agreement specifically provided for counsel fees in the event of a breach of any provision. The agreement stated in relevant part:

7. Attorney’s Fees in Event of Breach. In the event enforcement proceedings are instituted because of a breach or alleged breach of this Agreement or any Court Order entered thereunder by either party, the prevailing party in such proceedings shall be entitled to an award of counsel fees for all time reasonably expended in connection with the enforcement of this Agreement____

Id. at 438, 619 A.2d at 757. The Creeks’ agreement also contained a provision requiring each party to make “a complete and accurate disclosure to the other of all assets of any nature whatsoever in which such party has or may have an interest.” Id. In Creeks, Wife alleged that Husband had breached this disclosure clause. The trial court disagreed and found no breach. On appeal, this court reversed, finding that Husband had breached his duty to disclose the existence of certain assets. Because Wife had instituted enforcement proceedings in the trial court, this court held that under the agreement she was entitled to counsel fees. Id. We stated:

The plain language of the parties’ agreement provides for the award of attorney’s fees, if an enforcement proceeding must be brought because of the breach of the Agreement by either party. The trial court did not award attorney’s fees as it concluded that breach of the Agreement had not occurred. Since we conclude that Husband’s failure to disclose all of his monetary assets constituted a breach of the disclosure warranty in paragraph 4 of the Agreement, attorney’s fees should have been awarded pursuant to the plain language of paragraph 7 of the parties’ Agreement.

Id. (emphasis added).

When interpreting agreements involving clear and unambiguous terms, this court need only examine the writing itself to give effect to the parties’ understanding. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992) (en banc); Creeks, supra. This court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). “When the terms of a written contract are clear, this Court will not re-write it or give it a construction in conflict with the accepted and plain meaning of the language used.” Creeks, 422 Pa.Super. at 435, 619 A.2d at 756 (citing Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981)).

The language to which Wife refers is clear and unambiguous. Paragraph 6 of the agreement plainly states that reasonable attorney’s fees will be awarded “[s]hould either party have to pursue remedies through the Court.” Here, Wife did not pursue a remedy through the court; instead, she entered into settlement negotiations with Husband and the parties eventually settled the matter. At no time prior to Wife’s filing of her petition for counsel fees did she seek the aid of the court to enforce the terms of the agreement. For this reason, we find the Creeks case, although applicable, is not favorable to Wife. The reasoning in Creeks, when applied to the ease before us, leads us to the conclusion that the trial court properly denied counsel fees. Wife’s reliance on Creeks, therefore, is misplaced.

In her second claim, Wife contends that the agreement provided that Husband post security for the amount owed Wife. This was to be accomplished in the form of a certificate of deposit in the amount of $509,000.00 plus accrued interest. It was later determined that the certificate of deposit did not exist. Pursuant to consent order/addendum to the marital settlement agreement, Husband executed substitute security in the form of a note to Wife in the amount of $1,312,500.00, a mortgage to Wife on property located in Muddycreek Township, Butler County, valued at $270,000.00, and a mortgage to Wife on property located in Allegheny County, valued at $580,000.00. The parties both signed the consent order. On appeal, Wife claims that the substitute security is inferior and that the trial court should have ordered Husband to further perfect security until such time as the security called for in the marital settlement agreement had been duplicated in quality.

We find this claim meritless. Wife signed the consent order and cannot now be heard to contest the quality of the security.

Order affirmed.