text:
    673 A.2d 959
    Cathy S. DOMINECK and Michael Domineck, her husband, Appellants, v. The MERCY HOSPITAL OF PITTSBURGH, The Hospital Association of Pennsylvania, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1995.
    Filed March 25, 1996.

      Philip Fabiano, Pittsburgh, for appellants.
    Dorothy Davis, Pittsburgh, for appellee.
    Before DEL SOLE, BECK and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order of the trial court granting Summary Judgment in favor of The Mercy Hospital of Pittsburgh and against Cathy S. Domineck and Michael Domineck. We affirm.

In 1985, Ms. Domineck was admitted to Mercy Hospital with a diagnosis of rectal prolapse and mitral valve prolapse. In June of that year, a Dr. Richard A. Happ performed the Ripstein Proctopexy surgical procedure on Ms. Domineck. In June 1987, the Dominecks filed a medical malpractice claim against Dr. Happ alleging that he was negligent in his care and treatment of Ms. Domineck with respect to the surgical procedure. The Dominecks here allege that, during discovery in the malpractice case, they learned that Dr. Happ failed to maintain malpractice insurance when he performed the surgical procedure on Ms. Domineck.

Appellants initiated this action by filing a Praecipe for Writ of Summons in a civil action against Mercy Hospital. Appellants subsequently filed a Complaint alleging, among other claims, that Appellee owed a duty to Appellants to ensure that physicians afforded staff privileges at the Appellee hospital carried the statutorily mandated liability insurance pursuant to the Health Care Services Malpractice Act. 40 P.S. § 1301.101 et seq. Appellants averred that Appellee breached that duty when it allowed Richard Happ, M.D., a physician granted staff privileges at Appellee hospital, to perform a surgical procedure on Cathy Domineck when Dr. Happ was without the required professional liability insurance coverage.

Appellee filed Preliminary Objections to Appellants’ Complaint in the Nature of a Demurrer based on the lack of a statutory or common law duty on Appellee Hospital to monitor the insurance coverage of its staff physicians. The Honorable Eugene B. Strassburger, III denied the Preliminary Objections without an Opinion. The Appellee then filed an Answer and New Matter to which the Appellants filed a Reply. Appellee then filed a Motion for Summary Judgment and the Motion was initially denied. Upon reconsideration, the Honorable Joan Orie Melvin granted the Motion for Summary Judgment. Appellants filed this appeal.

Appellants argue that the trial court erred in granting the Appellee’s Motion for Summary Judgment because it raised the same issues Appellee advanced in its Preliminary Objections which were previously overruled by another judge of the same court. We are cognizant of the general rule cited by Appellants that judges of coordinate jurisdiction sitting in the same court cannot overrule each other’s decision. Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989). The purpose of this rule is to promote finality of pre-trial applications so that judicial economy and efficiency can be maintained. Id.

In Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988), we examined a similar issue where one judge denied preliminary objections and a different judge of the same court subsequently granted summary judgment on the same issues. We acknowledged the general rule of coordinate jurisdiction; however, we stated:

... the rule is not intended to preclude granting summary judgment following denial of preliminary objections. ‘The failure to present a cause of action upon which relief can be granted may be raised at any time. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, answers to interrogatories, admissions and affidavits.’ We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then stands warrants such action. This is particularly true when the preliminary objections were denied without opinion. Moreover, where, as here, dismissal of the entire complaint on motion for summary judgment is appropriate, preclusion of consideration of the summary judgment motion by application of the rule stated, would have further burdened the parties and the court by requiring them to undergo the time and expense of an unnecessary trial, and thereby thwart the very purpose the rule was intended to serve, i.e. that judicial economy and efficiency be maintained. (Citations omitted.)

Id. 377 Pa.Super. at 87-88, 546 A.2d at 1170.

Instantly, when the Preliminary Objections were denied, the judge only had the benefit of Appellants’ Complaint and Appellee’s Preliminary Objections in the Nature of a Demurrer. The Complaint alleged that Appellee was negligent “in failing to properly and adequately investigate Dr. Happ’s credentials” in addition to the claims arising from the Hospital’s failure to monitor the physician’s insurance coverage. The Preliminary Objections were denied without an opinion. When Appellee filed its Motion for Summary Judgment, second judge had before her for review in addition to the items previously filed, Appellee’s Answer and New Matter, Appellants’ Reply to New Matter, and Appellee’s Summary Judgment Motion. In addition she was aware of the fact that there was no response filed to the Motion for Summary Judgment and the record contained no additional discovery.

From the record before us, it is apparent that the claim of hospital liability for failing to investigate the credentials was not developed or advanced. Since the judge who considered the Motion for Summary Judgment had a more extensive and focused record than the one who denied the Preliminary Objections, she did not err by considering the Motion for Summary Judgment.

We now determine whether the grant of Summary Judgment was appropriate in this case. In Drapeau v. Joy Technologies, Inc., 447 Pa.Super. 560, 670 A.2d 165 (1996), we stated:

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. The moving party has the burden of proving that there is no genuine issue of material fact. The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. (Citations omitted).

Id.

We are presented with a very narrow issue: Does a hospital have a duty to ensure that its staff physicians maintain professional liability insurance coverage? Appellants alleged that such a duty exists and Appellee breached that duty. Appellee contends that neither the Health Care Service Malpractice Act nor the common law imposes a duty on a hospital to ensure that its staff physicians maintain malpractice insurance; rather, the duty to maintain malpractice insurance is the responsibility of the individual physician. We agree.

We are guided by Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) in determining whether a cause of action exists in this case. Thompson sets forth the duties a hospital owes to its patient, defining the concept of corporate negligence as:

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.
[These] duties have been classified into four general areas: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment ...; (2) a duty to select and retain only competent physicians ...; (3) a duty to oversee all persons who practice medicine within its walls as to patient care ...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. (Footnote and citations omitted).

Id. 527 Pa. at 339, 591 A.2d at 707.

In reviewing the record before us, no claim is made that the failure of Appellee in monitoring the physician’s insurance coverage would have led to a determination that the doctor was not competent to practice. For example, had it been established that the insurance coverage was cancelled because of excessive claims or for any reason that would give rise to a question of professional ability, the hospital’s duty to the patient would be implicated. Under those circumstances, failure to monitor could be the basis of a claim of corporate negligence since the delivery of safe care is implicated.

Appellee also raises the argument that it would place an unreasonable burden on hospitals to monitor physician’s malpractice coverage. We are not so persuaded. In thousands of business and financial transactions carriers issue certificates of insurance to third parties and agree not to cancel coverage without notification to those third parties. Thus, we do not decide this issue on that ground.

In this case, as presented, we do agree with the trial court in concluding that “[a]ny alleged injuries and damages sustained by the Plaintiff Wife were caused by the physician’s alleged negligent performance of surgery and subsequent treatment and not his failure to maintain proper professional liability insurance. Such failure may relate to Plaintiffs potential remedy but not to the issue of causation of Plaintiffs alleged harm.” (Trial ct. op. dated 9-7-94 at 3-4). In its Motion for Summary Judgment, Appellee averred that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Since the record does not contain any genuine issues of material fact, we find that the trial court correctly granted the Motion for Summary Judgment.

Order affirmed.


source: Caselaw Access Project

author: CERCONE, President Judge Emeritus:

license: Public Domain

text:
    673 A.2d 962
    COMMONWEALTH of Pennsylvania v. Omar RODRIQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1996.
    Filed March 27, 1996.

      Elayne Bryn, Assistant Public Defender, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, J., CIRILLO, P.J.E. and CERCONE, P.J.E.
   CERCONE, President Judge Emeritus:

This is an appeal from the. judgment of sentence entered following a jury trial. We affirm.

While on routine patrol at about 4:30 a.m. on July 5, 1993, City of Philadelphia Police Officer Dennis Wilson saw three men kicking, punching and going through the pockets of an older man who was lying in the street. N.T. 9/13/94 at 19-20. As the officer drove closer to the scene, the assailants “quickly walked” in his direction, past the police car. Id. at 20. The victim, Leonard Robinson, entered the police car and reported that the three assailants, later identified as Charles Brock, John Lyles and appellant Omar Rodriquez, had stolen his money and Walkman. Id. at 20-21. Officer Wilson made a U-turn and stopped the men about one-half of a block away from the scene of the attack. Id. at 21, 38. Mr. Robinson identified the men stopped as those who had robbed him. At the time of the stop, appellant was in possession of the Walkman. Id. at 22, 23. The officer arrested all three men. Id. at 23.

On October 6, 1993, appellant and co-defendant Charles Brock requested a jury trial. The trial court denied appellant’s motion to sever and accepted Charles Brock’s guilty plea on September 12, 1994. On September 14,1994, a jury found appellant guilty of Robbery, Aggravated Assault, and Conspiracy. The trial court sentenced appellant to consecutive terms of imprisonment of not less than ten (10) nor more than twenty (20) years for the robbery and assault counts and to an additional consecutive term of imprisonment of not less than five (5) nor more than ten (10) years for the conspiracy charge. Appellant filed post-sentence motions on November 23, 1994 which were denied by operation of law on March 23, 1995 pursuant to Pennsylvania Rule of Criminal Procedure 1410 B(3). Pa.R.Crim.P. Rule 1410 B(3), 42 Pa.C.S.A. On that same day, appellant filed a Notice of Appeal.

In the instant appeal we are presented with several allegations of error. Appellant first claims that the trial court erred in failing to apply the doctrine of merger to the sentences imposed for aggravated assault and robbery. In addition, appellant contends that the sentence imposed was excessive and that the court erred in imposing disparate sentences on two co-defendants. Moreover, appellant challenges the sufficiency of the evidence with respect to each of the crimes of which he was convicted. We shall begin by addressing the sufficiency claims.

When presented with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Martin, 433 Pa.Super. 280, 285, 640 A.2d 921, 923 (1994). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Commonwealth v. Woods, 432 Pa.Super. 428, 432, 638 A.2d 1013, 1015 (1994), appeal denied, 539 Pa. 650, 651 A.2d 537 (1994). It is within the province of the fact finder to determine the weight to be accorded each witnesses’ testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa.Super. 29, 33, 631 A.2d 1040, 1042 (1993).

The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ”

Commonwealth v. Hodge, 441 Pa.Super. 653, 657, 658 A.2d 386, 387-88 (1995) (quoting Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) and Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).

According to appellant, the absence of medical testimony and the victim’s testimony rendered the evidence insufficient to support appellant’s convictions for robbery, aggravated assault and conspiracy. As stated, appellant was convicted of one count of robbery pursuant to 18 Pa.C.S.A. § 3701(a)(l)(ii). An individual commits a robbery under that subsection if, in the course of committing a theft, he “threatens another with or intentionally puts him in fear of immediate serious bodily injury.” 18 Pa.C.S.A. § 3701(a)(l)(ii). A conviction under that subsection is dependent upon the type of bodily harm threatened. Commonwealth v. Ross, 391 Pa.Super. 32, 35, 570 A.2d 86, 87 (1990), appeal denied, 527 Pa. 644, 593 A.2d 417 (1990) (evidence sufficient to show appellant, by the use of an upraised knife, threatened the victim with serious bodily injury). A reviewing court will consider the defendant’s intent and actions and not necessarily the subjective state of mind of the victim. Id.; Commonwealth v. Leatherbury, 326 Pa.Super. 179, 473 A.2d 1040 (1984).

For example, in Leatherbury, appellant and another man approached a seventy-one year old man from behind, grabbed his arms and demanded his money. The victim “shook them off’ and alerted the police. A reviewing court deemed the evidence sufficient to show that appellant, in the course of attempting to commit a theft, threatened the victim with or put him in fear of immediate bodily injury. Id. at 184, 473 A.2d at 1042. “Whether the victim was in fact put in fear under such circumstances was not controlling.” Id. As such, the Commonwealth was not required to have the victim, Mr. Robinson, testify as to his state of mind.

In this case, the Commonwealth established that at 4:40 in the morning, appellant and two other men kicked and punched an older man and ransacked his pockets as that man lay prostrate in a Philadelphia intersection. Appellant was later found in possession of the Walkman the victim had reported stolen. As in Leatherbury, we find that the enumerated circumstances were sufficient to permit an inference that appellant, in the course of committing a theft, intended to put his victim in fear of serious bodily injury.

We shall now address the sufficiency of the evidence supporting appellant’s conviction for aggravated assault. A person is guilty of aggravated assault if he “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life....” 18 Pa.C.S.A. § 2702(a)(1). To prove aggravated assault based upon an attempt, as in this case, the Commonwealth must show that the accused acted with specific intent to inflict serious bodily injury. Commonwealth v. Sanders, 426 Pa.Super. 362, 368, 627 A.2d 183, 187 (1993), appeal denied, 535 Pa. 657, 634 A.2d 220 (1993). Such intent may be proven circumstantially. Commonwealth v. Rightley, 421 Pa.Super. 270, 281, 617 A.2d 1289, 1295 (1992). The conduct giving rise to an inference that the accused intended to cause serious bodily injury need not itself be life threatening. Id. (appellant swung a baseball bat three times at his victim, striking him twice). The jury could infer intent to inflict serious bodily injury from evidence that appellant and his confederates punched and kicked the lone victim while the victim was on the ground, stopping only when a police officer arrived. See Commonwealth v. Glover, 303 Pa.Super. 229, 449 A.2d 662 (1982), aff'd, 500 Pa. 524, 458 A.2d 935 (1983) (jury could infer intent to inflict serious bodily injury from evidence that appellant repeatedly kicked the victim, hit him in the head with his fists, and acted not alone, but with two other men); Commonwealth v. Gregory, 267 Pa.Super. 103, 406 A.2d 539 (1979) (evidence showing that two men attacked a lone undercover officer who was posing as an elderly male; struck and kicked him after he fell to the ground, and stopped only when a back-up police officer arrived was sufficient to support a finding of intent to inflict serious bodily injury). Accordingly, we find that the Commonwealth presented evidence sufficient to support appellant’s conviction for aggravated assault.

As stated, the sentencing court imposed consecutive ten (10) to twenty (20) year terms of imprisonment for the robbery and assault convictions. Appellant maintains that, under the circumstances presented in this case, the crimes of robbery and aggravated assault merge for sentencing purposes. Preliminarily, we note that questions of merger relate to the legality of sentence. Commonwealth v. Servich, 412 Pa.Super. 120, 133-34, 602 A.2d 1338, 1345 (1992), appeal denied, 531 Pa. 646, 612 A.2d 984 (1992).

[I]n all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses. “The same facts” means any act or acts which the accused has performed and any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction or encounter, or multiple criminal plans, schemes transactions or encounters.

Commonwealth v. Anderson, 538 Pa. 574, 579, 650 A.2d 20, 22 (1994), order modified on denial of reargument, 539 Pa. 476, 653 A.2d 615 (1994) (striking the victim with a gun may be used to satisfy the force requirements of at least two crimes against the victim, kidnapping and aggravated assault; the sentences for each crime will not merge because these crimes are not greater and lesser included offenses). “[TJhere is no difference between a double jeopardy analysis and a merger analysis: ... the operative consideration in both is whether the elements of the offenses are the same or different.” Id. at 581, 650 A.2d at 23. We must ascertain

whether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge.

Id. at 582, 650 A.2d at 24.

As directed, we begin by comparing the elements of the two offenses. To support appellant’s conviction for robbery pursuant to 18 Pa.C.S.A. § 3701(a)(1)(h), the Commonwealth established that appellant, in the course of committing a theft, threatened the victim with or intentionally put him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a)(1)(h). To satisfy the elements of aggravated assault, the Commonwealth proved that appellant attempted to cause serious bodily injury to the victim. Because the Commonwealth presented no evidence of actual injury, it was further required to show that the appellant acted with specific intent to inflict serious bodily injury. Commonwealth v. Sanders, supra.

Under the circumstances presented in this case, all of the elements of the lesser offense, aggravated assault, are not included within the elements of the greater offense, robbery. Specifically, although an accused must act with specific intent to cause serious bodily injury to be convicted of aggravated assault when serious bodily injury is not inflicted, an accused need not act with such specific intent to be convicted of robbery as defined in subsection (a)(l)(ii). Further, the crime of robbery requires proof of at least one element which the crime of aggravated assault does not, ie., the act must occur in the course of committing a theft. Because each crime requires proof of at least one element which the other does not, the sentences do not merge.

Despite appellant’s claims to the contrary, our resolution of the instant appeal is not governed by this court’s holding in Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116 (1990). In Ennis, appellant was convicted of aggravated assault pursuant to section 2702(a)(1), causing serious bodily injury to another, and robbery pursuant to section 3701(a)(l)(i), inflicting serious bodily injury upon another in the course of committing a theft. All of the elements of the lesser crime of aggravated assault were included within the greater crime of robbery. Specifically, appellant shot the victim in the stomach, thus inflicting serious bodily injury. Ennis, 394 Pa.Super. at 15-16, 574 A.2d at 1123. See Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d 575 (1993), appeal denied, 537 Pa. 663, 644 A.2d 1200 (1994) (noting that when serious bodily injury is inflicted, the Commonwealth need not prove specific intent to cause such injury). Further, the greater offense included at least one additional element, that the appellant inflicted serious bodily injury in the course of committing the theft. Ennis, 394 Pa.Super. at 15-16, 574 A.2d at 1123. Accordingly, unlike the sentences imposed in the instant case, the sentences imposed in Ennis merged. See also Commonwealth v. Moore, 421 Pa.Super. 241, 617 A.2d 816 (1992), appeal denied, 536 Pa. 621, 637 A.2d 281 (1993) (applying Commonwealth v. Ennis, supra).

We shall now consider appellant’s claims that the trial court abused its discretion by imposing a sentence that was harsh and excessive and, further, by imposing disparate sentences on co-defendants. Each of these allegations raises questions regarding the discretionary aspects of sentencing. See Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876 (1994), appeal denied, 540 Pa. 596, 655 A.2d 985 (1995) (by claiming that sentencing court failed to articulate its reasons for imposing consecutive sentences and for sentencing appellant outside the recommended guidelines ranges, appellant preserved challenge to discretionary aspects of sentence); Commonwealth v. Canfield, 432 Pa.Super. 496, 501, 639 A.2d 46, 49 (1994) (claimed disparity between sentences imposed upon co-defendants raised a substantial question as to the propriety of the sentence imposed). Preliminarily, we note that a challenge to the discretionary aspects of sentence is not guaranteed as of right. Commonwealth v. Koren, 435 Pa.Super. 499, 503, 646 A.2d 1205, 1207 (1994). To the contrary, before we may reach the merits of such a challenge, appellant must demonstrate that there is a substantial question that the sentence imposed is inappropriate under the sentencing guidelines. Commonwealth v. Huckleberry, 429 Pa.Super. 146, 150, 631 A.2d 1329, 1331 (1993); Commonwealth v. Jones, 418 Pa.Super. 93, 99, 613 A.2d 587, 590 (1992), appeal denied, 535 Pa. 615, 629 A.2d 1377 (1993). To satisfy that requirement, appellant must “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A. Commonwealth v. Tuladziecki, 513 Pa. 508, 511-13, 522 A.2d 17, 19 (1987).

Appellant in this case has failed to comply with the dictates of Tuladziecki. Moreover, the Commonwealth has objected to appellant’s omission. Consequently, we may not reach the merits of these claims. See generally Huckleberry, 429 Pa.Super. at 151, 631 A.2d at 1331 (because the Commonwealth specifically objected to appellant’s failure to include a Tuladziecki statement in the appellate brief, Superior Court was precluded from addressing the merits of appellant’s chailenges to the discretionary aspects of sentence); Commonwealth v. Miller, 414 Pa.Super. 56, 606 A.2d 495 (1992), appeal denied, 531 Pa. 639, 611 A.2d 711 (1992) (same).

Judgment of sentence affirmed.

      . The trial court made the following observation:
      Co-defendant, Charles Brock, ... entered a guilty plea to conspiracy and robbery and was subsequently sentenced on November 7, 1994 to two (2) to four (4) years incarceration at a State Correctional Institution.
      Although another co-defendant, John Lilas, was present at the July 12, 1993, preliminary hearing ..., Mr. Lilas[’] case was not part of the procedural history of the instant matter. From the Quarter Sessions file of the Philadelphia Court of Common Pleas, John Lilas ... appeared before the Honorable Jane C. Greenspan on September 17, 1993, and pled guilty to robbery and conspiracy. He was sentenced to a term of not less than 16 to 120 months of incarceration at a State Correctional Facility.
      Trial Court Opinion filed August 16, 1995 at 1 n. 1.

      . 18 Pa.C.S.A. § 3701.

      . Id. 2702.

      . Id. 903.

      . To clear up a procedural question appearing on the face of the record, we shall quote from the opinion of the trial court:
      According to the file maintained by the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas, prior to counsel’s filing of Post Sentence motions the defendant filed pro se Motions on November 17, 1994. Thereafter on December 12, 1994, the defendant filed a pro se Motion to Reduce Sentence, which was incorrectly docketed as an Appeal to the Superior Court, and was assigned an independent Superior Court case number (Superior Court No. 37, Philadelphia, 1995).
      Subsequently, the Superior Court ... appointed Ms. Bryn as counsel to perfect the defendant's appeal. After which Ms. Bryn filed a Notice of Appeal and the instant Superior Court term and number was assigned to the defendant’ case.
      Trial Court Opinion filed August 16, 1995 at 2 n. 5.

      . Appellant waived any challenge to the sufficiency of the evidence supporting his conviction for conspiracy by failing to provide any support in the argument section of his brief. A mere assertion of error, without elaboration, will not be addressed. Commonwealth v. Holmes, 444 Pa.Super. 257, 260-62, 663 A.2d 771, 773 (1995); Commonwealth v. Mercado, 437 Pa.Super. 228, 244, 649 A.2d 946, 954 (1994) (defendant waived issue that was raised in statement of questions by failing to include any support in the appellate brief).


author: POPOVICH, Judge:

text:
    673 A.2d 969
    COMMONWEALTH of Pennsylvania, Appellee, v. Al PERSIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1995.
    Filed March 27, 1996.

      Frank DeSimone, Philadelphia, for appellant.
    Barbara R. Paul, Assistant District Attorney, Philadelphia, for the Commonwealth, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

The appellant, A1 Persia, appeals the order of the Court of Common Pleas of Philadelphia County denying his “Petition to Expunge.” We affirm.

The facts of record indicate that a fourteen-year-old child was having behavioral and emotional problems leading to therapy. The child was referred by the Department of Human Resources for treatment of mental health issues. More specifically, through sessions with the child/victim and several other children, the therapist (Dr. William Russell) learned “the same names [one of whom was the appellant] had come from three different boys that [he] was treating” concerning “a loosely organized group of people who were using children for sexual purposes.” N.T. 7/21/94 at 7 & 8. The therapist reported the matter to the Philadelphia Sex Crime Unit and an investigation ensued leading to the appellant’s arrest for involuntary deviate sexual intercourse and corrupting the morals of a minor.

At the preliminary hearing, however, the child/victim “was not in any way, shape or form capable of going into a courtroom and talking about the sexual molestation that he suffered at the hands of these different individuals.” Id. at 10. As a result, despite the fact that the doctor “had spent several times trying to get [the child/victim] over the anxiety and emotional stress he was going through[, i]t [did] not surprise [the doctor] that [the child/victim] didn’t identify anybody, because he wasn’t going to do it.” Id. at 15. Accordingly, the charges were nolle prossed by the Commonwealth. Sixteen months after his arrest, the appellant filed a petition seeking to expunge his arrest record. A hearing followed wherein the Commonwealth produced the only witness to testify, i.e., an expert in the treatment of sex offenders (Dr. Russell).

The expert, during the course of qualifying him to testify, recalled that for several months efforts were made to make the child/victim comfortable enough to reveal in court what occurred between himself and the appellant; to-wit:

We tried for several months to get him to feel comfortable enough to reveal in court what happened. He would reveal it to individuals in the therapy sessions, to the Sex Crimes Unit’s officer in my office, but [the child/victim] was not in any way, shape or form capable of going into a courtroom and talking about the sexual molestation that he suffered at the hands of these [three] different individuals^ one of whom named was the appellant].

Id. at 10. Additionally, the expert opined that the general rate of recidivism for adult males who victimize child males was approximately sixty-four percent. With this the hearing concluded and the court followed with an opinion and order denying expunction. This appeal was taken and asserts that, in essence, the Commonwealth failed to produce compelling reasons for the retention of the appellant’s criininal record.

In this jurisdiction, in deciding whether justice requires expungement, a court, controlled by the facts in each particular case, must balance the individual’s rights to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records. Commonwealth v. Cohen, 395 Pa.Super. 536, 577 A.2d 920, 921 (1990). Further, our Supreme Court has enumerated some of the factors to be considered by a trial court in ruling on expunction petitions; namely:

The [factors] include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877, 879 (1981) (Citation omitted). We have noted that these factors are not exclusive or exhaustive of the circumstances to weight in deciding the expunction question. See Commonwealth v. W.P., 417 Pa.Super. 192, 612 A.2d 438, 441 (1992).

Given the youthful age of the child/victim, and his reluctance to identify in court his adult assailant, we may look to these elements in the weighing process of an expunction petition. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Also, the case law which we have examined embraces the tenet that “expunction is proper only in cases where acquittal is consistent with a finding [of] innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence.” Commonwealth v. W.P., supra, 417 Pa.Super. at 199, 612 A.2d at 441 (Citations omitted).

Albeit we do not equate the failure of the Commonwealth to establish a prima facie ease at a preliminary hearing with the equivalent of a “legal technicality,” we do observe that the child/victim’s therapist testified at the hearing that three child/victims referred to various adults, one of whom was the appellant, as allegedly sexually assaulting them. Secondly, a dismissal of charges at a preliminary hearing is not the equal of a not-guilty verdict entered following a jury trial. On the contrary, it merely protects against the unlawful detention of an accused (if bail is not met) pending trial. Even if charges are dismissed at the District Justice level, the case need not be at an end if the prosecution is able to secure additional evidence to supplement that initially introduced to establish a prima facie case of guilt. The case is still extant until the statute of limitations runs.

Consistent with the factors listed in Wexler to weigh in the expunction equation, we look at the strength of the Commonwealth’s case, which was initiated by a disinterested third-party/therapist (Dr. Russell) being informed by three child/victims that the appellant was one of a group of adults involved in child molestation. Prior to the preliminary hearing, the therapist, and others iii the criminal justice field, had been told by the child/victim that the appellant had sexually assaulted him. However, Dr. Russell was not able to dismiss the victim’s apprehension of testifying against his alleged assailant in open court — the end result being a nolle pros of the charges.

Next the appellant’s age (48), employment history (sole proprietor of a florist shop) and the elapsed time between the arrest and petition to expunge (16 months) do not mitigate in favor of granting the appellant’s petition when viewed in light of the particular facts here, notwithstanding the fact that the appellant has no prior or subsequent arrest record. We are cognizant of the appellant’s right to be free from the stigma of criminal arrest, but we weigh this against society’s right to know of and seek protection against potential child molesters whose victims refrain from testifying (for fear and embarrassment). On this point, Dr: Russell testified that the recidivist rate for adult offenders of male-child-victims is sixty-four percent. N.T. 7/21/94 at 12.

Because the victims of child molesters are sometimes unable to protect themselves against assaults which leave them scarred for life and convert them into assailants of other children, we tread with caution in this area when expunction is sought. Especially is this true where, as here, the accused has not had to run the gauntlet of a trial where a panel of one’s peers hears the evidence, weighs credibility and renders a verdict of guilt or innocence, which in the latter case militates in favor of granting a subsequently filed petition to expunge. See Commonwealth v. D.M., 444 Pa.Super. 299, 663 A.2d 792 (1995) (en banc).

Here, the appellant’s innocence or guilt did not have to withstand the light of scrutiny with the child/victim’s refusal to testify at the preliminary hearing. The rigors of a trial were dispensed with and society was left with a void in its attempt to resolve a serious accusation by a youth against the appellant. Such inability to act, be it motivated by fear or embarrassment, should not be the key to unlock and set free from future scrutiny one charged with such a serious crime against a youth.

Society’s interest in monitoring such behavior as has been alleged to have occurred here, given the circumstances under which prosecution was dismissed, we hold allows for the retention of the arrest record sought to be expunged. As was so aptly noted by the court below in concluding to deny the appellant’s petition to expunge:

Mr. Persia is a 48 year old self-employed florist. The record is silent as to any possible occupational or economical limitations existing as a consequence of his arrest record. This Court recognizes that retention of such records may adversely affect appellant in some manner. “When one is even accused of committing so horrible an invasion of another’s privacy, a stigma attaches that is far-reaching and long-lived.” See Commonwealth v. Richardson, 354 Pa.Super. 194, 511 A.2d 827, 829 (1986). However, this Court believes that the long-term devastating effects of such crimes against children clearly overrides appellant’s interests in being free from the generalized adverse effects of the retention of his arrest record.
In the case sub judice, expert testimony established compelling reasons to retain Mr. Persia’s arrest record. The Commonwealth submitted extensive expert testimony which indicated that there is an extremely high rate of recidivism among homosexual pedophilic offenders. Since the rate of recidivism for these types of crimes is very high and the victims of these crimes may often be emotionally unable to testify against their alleged assailants, it is necessary to retain any information related to similar offenses. Retention of records in these cases is a method by which law enforcement personnel may identify repeat offenders and establish modus operandi information, should the accused offender be subsequently charged with a similar crime.
Furthermore, the length of time that has elapsed between the arrest and the petition to expunge is minimal. Appellant submitted this petition to expunge his criminal record only 16 months after the original charges were filed. The Commonwealth avers that the high rate of recidivism associated with these crimes and the short period of time since the charges were filed are compelling reasons to retain appellant’s records. The Commonwealth asserts that the likelihood of a repeat occurrence of this type of crime is so great that it is necessary to maintain the vital information found in arrest records in order to establish a chronicle of events that may be vital to subsequent investigations. This court agrees.

Court Opinion, 7/19/95 at 6-8. We agree.

The facts of this case, when viewed in conjunction with the weighing that is to occur in assessing a petition to expunge, do not warrant an immediate expunction of the appellant’s arrest record. The passage of time without incident of alleged child molestation, when examined with the status of the appellant’s circumstances then in existence, may prompt a different result. At this stage, however, there is sufficient reason to retain the appellant’s arrest record for involuntary deviate sexual intercourse and corruption of a minor. Society calls for no less.

Order affirmed.

      . It appears that the child/victim, through years of sexual abuse, became an offender himself.

      . This being a nolle pros at the preliminary hearing stage vis-a-vis a jury trial, we may look at this element in making our assessment. Commonwealth v. D.M., 444 Pa.Super. 299, 663 A.2d 792 (1995).

      . Albeit the expert’s testimony indicated in a general fashion the recidivist rate for adult offenders of child/victims, we look at that statistic in conjunction with the manner in which the investigation of the appellant arose, the persistence with which the child/victim identified the appellant as his assailant to his therapist and others in the criminal system, and his reluctance at the eleventh hour to testify, which the doctor attributed to the child/victim’s years of sexual abuse and fear of confronting his assailant.


author: TAMILIA, Judge:

text:
    673 A.2d 973
    Kevin and Marlene HODGES, Appellants v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1996.
    Filed March 28, 1996.
    Roger J. Harrington, Philadelphia, for appellants.
    Daniel J. deLuca, Philadelphia, for appellee.
    Before McEWEN, President Judge, and TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

Marlene and Kevin Hodges appeal from the Order entered July 13, 1995 dismissing their complaint in this insurance action and ordering the parties to proceed to an appraisal. Since the timeliness of appellee’s appraisal demand is at issue, a chronological review of the facts is necessary.

In August, 1992, the parties executed a homeowners insurance policy. Under section 1, entitled “Conditions,” paragraph 6 of the policy provides:

6. Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss____

Paragraph 8 of the policy provides:

8. Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.

(R. 24a.) On December 11, 1992, the roof of appellants’ home was extensively damaged by a wind storm. On the same date, appellants notified appellee of the loss and appellee advised that appellant-husband, a contractor, make temporary repairs of the premises in order to avoid further damage. On January 5,1993, appellee’s adjuster confirmed “severe[ ] damag[e]” to appellants’ residence. (R. 101a.) Thereafter, the parties failed to agree on the amount of loss. Nonetheless, based on the adjuster’s estimate, appellee paid appellants $8,320 by two drafts dated February 3, 1993. Appellants did not cash the checks and the parties continued to disagree on the amount of loss. During this time, appellant-husband engaged in extensive repair work at the residence. By letter dated October 29, 1993, appellee’s adjuster requested from appellants additional information concerning the nature and cost of repairs that had been undertaken. The letter also provided as follows:

Please be advised that Pennsylvania Millers Mutual Insurance Company intends to strictly enforce the one year (from the date of loss) policy provision for filing suit [paragraph #8 quoted above]. No extension will be granted. This means that the one year will expire on December 11, 1993.

(R. 80a.) On December 9, 1993, appellants filed their writ of summons in the Court of Common Pleas of Philadelphia County and appellee was served with the summons on December 16, 1993. An arbitration date was set for June 7, 1994. On May 26, 1994, appellee served appellants with a Rule to File Complaint and appellants’ complaint was filed on May 31, 1994. On July 8, 1994, appellee filed its answer and new matter stating, at paragraph 2, “this case should be dismissed so that the parties can follow the appraisal process required under the terms of the insurance policy.” (R. 36a.) However, appellee made no appraisal demand to appellants.

On August 31, 1994, the action proceeded to arbitration and appellee claimed that appraisal should be utilized to resolve the parties’ differences. The arbitrators rejected this argument and awarded appellants $34,216.20, the full amount of their claimed damages. On September 28, 1994, appellee appealed the arbitration award and demanded a jury trial. Trial was scheduled for March 6, 1995. Thereafter, by letter dated November 9, 1994, appellee wrote to appellants as follows:

Consider this letter a formal request that the current complaint be dismissed so that both the plaintiff and the defendant can go through an appraisal process permitted under [appellants’] insurance policy.

(R. 42a.) On February 17, 1995, appellee filed its motion to dismiss on the basis that appraisal had been requested. By Order entered July 13, 1995, the trial court granted appellee’s motion, dismissed appellants’ complaint and ordered appraisal. This appeal followed.

On appeal, appellants claim “appellee’s request for appraisal made twenty-three (23) months after notice of loss, after appellants were compelled to file suit due to the one-year contractual statute of limitations, after submission of the case to compulsory arbitration, after appellee’s appeal from same, and after the assignment of a trial date, is untimely[.]” (Appellant’s brief at 8.) Thus, appellants claim, appellee’s right to request appraisal was waived and the Order dismissing appellants’ complaint in favor of appraisal was in error. The trial court rejected this argument, holding that:

The Appraisal provision’s plain language states if either party to a damages dispute demands Appraisal the other side must comply. The provision does not provide a refusal option, nor does it place a time frame in which Appraisal must be demanded.

(Slip Op., Moss, J., 9/19/95, p. 4; emphasis in original.) In virtually identical language, appellee urges us to reject appellants’ argument on the basis that:

The plain meaning of [the] policy provision indicates that if either party to a dispute over the amount of damages requests appraisal, the other party must cooperate. There is no refusal option in this provision, nor is there any time limit stated within which appraisal must be requested.

(Appellee’s brief at 5.)

We reject the contention of the trial court and appellee that a provision which is silent as to the time in which an appraisal request must be made permits a request at any time. Indeed, it is hornbook law that where no time is specified for performance of a contractual obligation, the courts will require that the obligation be performed within a “reasonable” time. See Farnsworth, Contracts (3d ed. 1982), § 3.28, p. 197 (“courts have ... had little difficulty in supplying and enforcing terms under which a specified duty ... is to be performed within a “reasonable” time if no other time is stated.”); Restatement, Second, Contracts, § 204 (“when the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court[,]” and Comment d, “if no time is specified, a term calling for performance within a reasonable time is supplied.”); Lefkowitz v. Hummel Furniture Co., 385 Pa. 244, 247, 122 A.2d 802, 804 (1956) (“[W]here no time for performance is provided in the written instrument the law implies that it shall be done within a reasonable time.... ”); Barr v. Deiter, 190 Pa.Super. 454, 459, 154 A.2d 290, 293 (1959) (where “lease designated no specified time and, in the absence of such designation, the option contained therein had to be exercised in a reasonable time considering all the circumstances”).

Under the circumstances of the case sub judiee, we find that appellee’s “formal request” for appraisal, made 23 months after notification of appellants’ claim, was untimely and prejudicial to appellants. Specifically, based on appellee’s threat to “strictly enforce” the one-year time limitation for legal action, appellants were forced to prepare and prosecute this action through arbitration and appellee’s appeal therefrom. Therefore, appellee has abandoned its right to now insist on appraisal pursuant to paragraph 6 of the policy. Barr, supra. (Contractual option to purchase land deemed abandoned where not exercised within reasonable time.)

Finally, we find the facts of Kester v. State Farm, 726 F.Supp. 1015 (E.D.Pa.1989), a case on which the trial court relied in dismissing appellants’ complaint, distinguishable from those in the instant case. As noted by the court in Barr, supra at 459, 154 A.2d at 293, a determination of reasonableness is dependent upon “all the circumstances” of the case at issue. The circumstances of Kester reveal that the insurance company therein waited only eight months after notification of its insured’s loss before requesting appraisal. Further, while the insured in Kester had filed suit prior to the appraisal demand, arbitration had not taken place and therefore no appeals were pending and a trial date had not been set. To the contrary, our case involves a 23-month delay, an adjudication favorable to appellants, an appeal and the scheduling of trial. Further, our case involves a threat to “strictly enforce” the time limitation for legal action which compelled appellants to file a complaint in order to protect their legal rights. These facts are distinguishable from Kester and demonstrate prejudice to appellants caused by appellee’s delay in requesting appraisal.

Based on the foregoing, we reverse the July 13, 1995 Order dismissing appellants’ complaint and remand for trial.

Order reversed; case remanded.

Jurisdiction relinquished.

      . Appellee notes that it granted appellants a 60-day extension in which to file suit. However, as appellee acknowledges, the extension was not granted until December 13, 1993, two days after the one-year limitation had expired. Thus, the extension did not alter the fact that appellants were required to file suit by December 11, 1993 in order to protect their legal rights.

      . Our remand renders unnecessary a discussion of appellants claims that appellee acted in bad faith and has not agreed to compensation for appellants’ content damage and temporary living expenses. These issues will be adjudicated prior to or at trial.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    673 A.2d 975
    COMMONWEALTH of Pennsylvania, Appellee, v. Antoine BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 29, 1996.
    Filed March 29, 1996.

      Norris E. Gelman, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before WIEAND and TAMILIA, JJ. and MONTEMURO, J.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge:

This appeal comes from appellant Antoine Brown’s (Brown) conviction and judgment of sentence for aggravated assault and possession of an instrument of crime. Brown was found guilty by a jury on February 23, 1994, and was sentenced by the Honorable Charles P. Mirarchi, Jr., of the Court of Common Pleas of Philadelphia County on February 8,1995, to consecutive sentences of ten to twenty years incarceration for aggravated assault and two and one-half to five years incarceration for possession of an instrument of crime. We affirm.

Brown was convicted for stabbing a co-worker, William Rase (Rase), on December 7, 1990. At the time, both men worked at a cemetery. Sometime after 12:30 p.m., as Rase was working alone in a part of the cemetery, Brown assaulted Rase with a blow to the head, and then stabbed him in the throat. Another employee, John Fital, found Rase at approximately 1:25 p.m. As a result of the attack, Rase was in a coma for five months. After emerging from the coma, Rase was unable to speak and was confined to a wheelchair, paralyzed from the waist down. Rase underwent extensive therapy, and eventually was able to communicate “yes” or “no” by using his thumb. Ultimately, in April, 1992, Rase was able to identify Brown as the person who assaulted him.

Brown, represented by new counsel, raises three issues for our review:

1. Did the trial court commit reversible error when it ruled that Brown’s prior participation in an ARD program for theft could be used to impeach his credibility as a witness, and so charged the jury?
2. Was trial counsel ineffective for not preserving, through objection, the trial court’s error in charging that Brown’s prior theft conviction and his prior participation in the ARD program for theft may be used for impeachment?
3. Was trial counsel ineffective for failing to object to blatant misconduct in summation by the prosecutor who literally testified that Walter Tate was an unindicted co-conspirator who had a Fifth Amendment right not to incriminate himself and accordingly could not be called as a witness by the prosecution?

Brown’s first claim is that the trial court erred in allowing the Commonwealth to use his prior participation in an Accelerated Rehabilitative Program (ARD) for an arrest for theft to impeach his credibility. Brown claims that because participation in ARD is not a conviction, it may not be used for impeachment purposes.

The determination of the scope and limits of cross-examination are within the discretion of the trial court, and we cannot reverse those findings absent a clear abuse of discretion or an error of law. Commonwealth v. Nolen, 535 Pa. 77, 82, 634 A.2d 192, 195 (1993). Evidence of prior convictions may be introduced for the purpose of impeaching the credibility of a witness if

the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period of greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). This rule applies equally to defendants who testify. See Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). Theft is a crime involving dishonesty, and therefore is a prior conviction which may be used to impeach credibility. Commonwealth v. Ellis, 379 Pa.Super. 337, 359, 549 A.2d 1323, 1334 (1988), allocatur denied, 522 Pa. 601, 562 A.2d 824 (1989).

Before Brown testified at trial, the trial court had already ruled that if Brown were to testify, Brown’s theft conviction and ARD participation could be used by the Commonwealth to impeach him. Thus, Brown’s trial counsel elicited this information on direct. In its charge to the jury, the trial court stated,

In referring to defendant’s prior criminal record, I indicated that the defendant had one criminal contact. Actually, there were two. But it’s your recollection that counts, not the Court’s recollection. But there was brought out by defendant that there were two criminal contacts, both of them for theft. One resulted in a guilty plea. One resulted in ARD, which is the accelerated rehabilitative disposition program, which is a pretrial type disposition, without verdict.
The crime of theft has inherent in it dishonesty and falsehood. So that while the defendant can’t be found guilty here because of whatever took place back in 1978 or ’79, which is when these matters were committed, nevertheless you may weigh his testimony with respect to the areas of credibility and believability as I’ve defined for you and as the crimen falsi crimes that were committed affect the believability and credibility of his testimony. I am not telling you to find the defendant guilty because of prior criminal acts. The question is, is his testimony credible and believable or not? And that you will weigh.

(N.T. 2/23/94 at 90-91.) During closing arguments, defense counsel himself referred to the thefts as “two convictions.” (N.T. 2/23/94 at 29.)

The Commonwealth argues that pursuant to Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), allocatur denied, 537 Pa. 638, 644 A.2d 161 (1994), cert. denied, — U.S. —, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994), evidence of participation in an ARD may be used to impeach the credibility of a witness. In holding that a witness may be cross-examined concerning admission into an ARD program, the court noted that, “While it is clear that admission into an ARD program generally is not equivalent to a conviction, it equally is clear that the successful completion of such a program is not consistent with a finding of innocence.” Id. at 43, 624 A.2d at 135. Citing 75 Pa.C.S. § 3731(e)(2), the court also noted that an ARD is treated as a conviction for certain purposes. Id. The court cited DeNillo v. DeNillo, 369 Pa.Super. 363, 535 A.2d 200 (1987), a child custody case, in support of its holding. However, DeNillo did not concern whether admission into ARD can be used for impeachment purposes; it held that it may be used in determining a child’s best interest in a custody dispute. Id. at 366, 535 A.2d at 202.

The court did not cite the numerous cases that have held that admission into an ARD program is not a conviction that may be used for impeachment. In Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981), the court held that admission into an ARD program is not a conviction for purposes of impeachment. The court noted that admission into an ARD program “places the criminal proceedings in abeyance” so that a defendant can rehabilitate himself “without the necessity of trial and conviction.” Id. at 5, 434 A.2d at 100-01.

In Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), the court, although recognizing that an ARD amounts to a conviction for purposes of classifying a motorist as a habitual offender, cited Krall and stated that admission to an ARD program “is not equivalent to a conviction under any circumstance....” Id. at 541, 453 A.2d at 1019. See also Commonwealth v. Ferguson, 377 Pa.Super. 246, 546 A.2d 1249 (1988) (ARD not conviction for impeachment purposes), allocatur denied, 521 Pa. 617, 557 A.2d 721 (1989); Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988) (ARD not conviction for impeachment purposes); Commonwealth v. McSorley, 335 Pa.Super. 522, 485 A.2d 15 (1984) (citing Knepp and Krall), aff'd, 509 Pa. 621, 506 A.2d 895 (1986).

Although, as the Bowser court recognized, admission into an ARD program may be treated as a conviction for certain purposes, those purposes are narrow in scope and, before Bowser, never included impeachment. In Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987), an en banc court, in interpreting the sentencing provisions of Drunk Driving Act, 75 Pa.C.S.A. § 3731, which Bowser cites, held that acceptance of ARD is equivalent to a conviction. Id. at 65, 530 A.2d at 894. However, the court stated that,

We emphasize that our decision in the instant case is narrow in scope. We deal here only with the proper interpretation of § 3731(e)(2).... It is true that when the word ‘conviction’ appears in a statute it is usually taken to mean ‘the ascertainment of the guilt of the accused and judgment thereon by the court[.] However, this technical definition of conviction could not be applied ‘where the intention of the legislature is obviously to the contrary____’

Id. at 59, 530 A.2d at 890-91 (citations omitted).

Hence, in dealing with a statutory mandate, acceptance of ARD may be considered a conviction. Absent such a directive, however, this court has consistently held, outside of Bowser; that admission into an ARD is not a conviction for impeachment purposes. The court in Bowser did not cite, let alone provide a reason to abandon, the prior line of cases holding that admission into ARD is not a conviction for impeachment purposes. Furthermore, the authorities relied upon by Bowser do not hold that admission into ARD may be used for impeachment purposes. Because we have no reason to abandon the pre-Bowser line of established case law, we hold that the use of Brown’s participation in an ARD program was not a conviction upon which his credibility could be impeached.

The Commonwealth contends that even if the trial court erred, the impeachment by use of the ARD was cumulative of other impeachment evidence and was thus harmless error. An error is deemed harmless if we are convinced beyond a reasonable doubt that the error could not have contributed to the verdict. Nolen, 535 Pa. at 85, 634 A.2d at 196. An error will be deemed harmless if: 1) the prejudice suffered was de minimis; 2) the erroneously admitted evidence was cumulative of other, properly admitted evidence which was substantially similar to the erroneous evidence; or 3) the evidence of guilt was so overwhelming as established by proper and uncontradicted evidence that the prejudicial effect was comparatively insignificant. Id.

The Pennsylvania Supreme Court has implicitly recognized that erroneously admitted impeachment evidence can be cumulative of properly admitted impeachment evidence. In Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990) (plurality), the prosecution properly impeached a witness with a prior conviction of attempted theft, and erroneously with prior convictions for crimes that did not involve dishonesty or a false statement. 524 Pa. at 407-09, 573 A.2d at 538. In deciding that the erroneous impeachment evidence was not cumulative of the attempted theft impeachment evidence, the court relied upon the fact that they were not substantially similar. Id. at 410-11, 573 A.2d at 539.

At trial, Brown testified that he pled guilty in 1978 to retail theft. He also testified that he was arrested for another theft in 1979, for which he was admitted into an ARD program. These events are identical in substance, and nearly identical in time. In the instant case, unlike the evidence admitted in Williams, the erroneously admitted evidence concerning the ARD was cumulative of the evidence of Brown’s theft conviction: the theft conviction was properly admitted; the theft conviction was indisputable; and the theft conviction was not derived from the improper admission of the ARD evidence. See Commonwealth v. Story, 476 Pa. 391, 411-12 n. 21, 383 A.2d 155, 165 n. 21 (1978). In addition, the evidence was not used substantively, but was introduced to attack credibility. Thus, we hold that the error in admitting the ARD evidence for impeachment was harmless in light of the other, properly admitted impeachment evidence.

Brown’s second contention is that if we find that trial counsel waived the ARD issue by not objecting to the trial court’s jury charge, then trial counsel was ineffective. Because we have not found that trial counsel waived the issue, we need not address this issue.

Finally, Brow alleges that trial counsel was ineffective in failing to object to statements made during the Commonwealth’s closing argument. In order to prevail on a claim of ineffectiveness, Brow must demonstrate that the underly-

ing claim is of arguable merit, the particular course of conduct did not have' a reasonable basis designed to effectuate his interests, and the alleged ineffectiveness prejudiced him. Commonwealth v. Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994). If the underlying claim is meritless, counsel cannot be deemed ineffective. Id.

In reviewing a claim of prosecutorial misconduct in closing argument, our scope of review is limited to determining whether the trial court abused its discretion in ruling that no misconduct occurred. Commonwealth v. Simmons, 541 Pa. 211, 244-48, 662 A.2d 621, 638-39 (1995). Prosecutorial comments do not constitute reversible error, unless the unavoidable effect of the comments would prejudice the jury by causing bias and hostility impeding their ability to objectively weigh the evidence and return a true verdict. Id. at 246-48, 662 A.2d at 639.

During Brown’s closing, trial counsel referred to the fact that Brown’s co-worker, Walter Tate (Tate), was not called by the Commonwealth:

Walter Tate. Walter Tate worked at the cemetery. Antoine Brown tells you his version of what happened and he says he leaves Walter Tate in the X section of the cemetary [sic] and then goes to the bathroom and comes back to get Walter after the discovery is made of Mr. Rase. Now, if that’s not true and Walter still works for the cemetary [sic], bring Walter in. Let Walter say that’s not what happened.

(N.T. 2/23/94 at 19-20.)

In response, the Commonwealth made the following argument,

It’s a free world. Anyone can call witnesses. They have not one obligation to put on one iota of defense. They chose to put on a defense. Ladies and gentlemen, from the evidence that we put forth to you, it is, it has been and it always will be the position, although [Rase] cannot and will not identify someone who he didn’t see doing something to him, that Walt Tate is the unindicted co-conspirator. I got a little problem calling the unindicted co-conspirator to the stand. He sort of has a constitutional right against incriminating himself. So try not to hold the fact that we couldn’t call Walter Tate to testify, because Walter Tate, I submit to you, was over there either waiting with that tractor or that vehicle and was let in exactly how John Fital testified.... Billy Rase cannot say that Walter Tate was involved in this, so Walter Tate remains and he always will remain a free man. He can only identify the person who actually brutally assaulted him, the person he’s always identified as the defendant.

(N.T. 2/23/94 at 53-54.)

Brown claims that by calling Tate an “unindicted co-conspirator,” the Commonwealth is shifting Tate’s “illusory guilt” of the possibility of his not testifying to Brown. He also alleges that the comments gave the jury a basis to believe that if Tate would have testified, he would have incriminated both himself and Brown. Lastly, Brown claims that the Commonwealth’s statement that Tate would exercise his Fifth Amendment rights was based upon a “raw assertion.”

Brown’s argument is without merit. The Commonwealth may “fairly respond” to closing remarks made by the defense. Commonwealth v. Griffin, 537 Pa. 447, 462, 644 A.2d 1167, 1175 (1994). Brown’s closing argument implies that the Commonwealth did not call Tate because he would have been an adverse witness to the Commonwealth’s case. In response, the Commonwealth did not use Tate’s Fifth Amendment rights as evidence of Brown’s guilt; it used them to explain why it did not call Tate. In addition, both the trial court and the Commonwealth reminded the jury that Brown had no burden to put on a defense.

The Commonwealth’s belief concerning Tate was not based upon a “raw assertion.” Based upon the evidence presented, the Commonwealth had a reasonable basis to believe that Tate would invoke his Fifth Amendment rights: Tate and Brown were working together in the same section of the cemetery; both were observed near the area where Rase was assaulted shortly thereafter; and Tate was placed in a photo array presented to Rase by the police. (N.T. 2/17/94 at 43-44, 61-62; 2/22/94 at 42-44.)

A review of the case law reveals that comments by a prosecutor, which would otherwise be in error, have been held not to be erroneous if made in response to a defense argument. In Commonwealth v. Fielder, 417 Pa.Super. 455, 612 A.2d 1028 (1992), allocatur denied, 533 Pa. 630, 621 A.2d 577 (1993), the appellant alleged that the Commonwealth implied that he had an obligation to put on a defense by noting that a witness was not called. 417 Pa.Super. at 472, 612 A.2d at 1037. The court held that in light of the defense counsel’s closing, in which counsel questioned why a witness was not present, the Commonwealth’s closing was permissible. Id. at 473, 612 A.2d at 1037. In Commonwealth v. Hess, 378 Pa.Super. 221, 548 A.2d 582 (1988), allocatur denied, 522 Pa. 618, 563 A.2d 887 (1989), the court held that because defense counsel stated in opening argument that the defendant would testify, and the defendant never did so at trial, the Commonwealth could comment on his failure to testify. 378 Pa.Super. at 221, 548 A.2d at 587. See also Commonwealth v. Riggins, 374 Pa.Super. 243, 542 A.2d 1004 (1988) (statement that the presumption of innocence is a cloak and “not a shield for the guilty to hide behind” was proper in response to an analogous statement made during defense closing), allocatur denied, 522 Pa. 583, 559 A.2d 527 (1989).

The Commonwealth’s comments, which were not directed to Brown’s Fifth Amendment rights, were made in direct response to a defense argument. Thus, we hold that the jury was not improperly influenced; and trial counsel was not ineffective for failing to raise a meritless objection.

Affirmed.

WIEAND, J., files a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting.

I agree with the majority that the trial court erred by allowing appellant to be impeached with his prior admission into an Accelerated Rehabilitative Program (ARD) following an arrest for theft. However, I cannot agree that this error was harmless beyond a reasonable doubt. Accordingly, I would reverse the judgment of sentence and remand for a new trial.


author: HUDOCK, Judge:

text:
    673 A.2d 982
    Lorraine ELIAS, Appellant, v. George SPENCER, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 24, 1996.
    Filed March 29, 1996.

      Gary Gilman, Washington, for appellant.
    Robert N. Clarke, Washington, for appellee.
    Before DEL SOLE, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

In this appeal Lorraine Elias (Mother) claims that the trial court abused its discretion in deviating downward from the guideline amount in an action for child support. We reverse and remand for further proceedings.

The facts may be summarized as follows: On April 11,1995, Mother filed a petition to modify a child support order issued against George Spencer (Father) in which she sought an increase in support. As of that date, Mother had been receiving $250 a month for the support of the child, Alycia. A support conference was scheduled for May 15, 1995. Because the parties were unable to reach an agreement, a hearing was held before a hearing officer pursuant to Pa.R.C.P. 1910.12, 42 Pa.C.S.A Thereafter, the hearing officer recommended that Father pay $450 per month for the support of Alycia and provide medical insurance for the child’s benefit through his employer. The hearing officer’s report also stated that there were no reasons which would warrant a deviation from the guideline recommendation. Father filed timely exceptions to the hearing officer’s report and recommendation. The trial court heard argument on these exceptions and issued an order and memorandum opinion on July 11, 1995 in which the amount of support was reduced to $375 per month. The trial court specifically stated that the downward deviation was warranted due to Father’s “new family and his personal expenses in general[.]” On appeal to this Court, Mother contends that these reasons are insufficient to support a downward deviation and further contends, therefore, that the trial court erred in doing so.

Our standard of review is well-settled:

The standard of appellate review of child support matters has not changed; a reviewing court must continue to apply an abuse of discretion standard. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975). A support order will not be disturbed on appeal unless the trial court failed to consider properly the requirements of the Rules of Civil Procedure Governing Actions for Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying these Rules. O’Callaghan v. O’Callaghan, 530 Pa. 176, 607 A.2d 735 (1992); Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988); Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1985); LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), appeal denied, 514 Pa. 648, 524 A.2d 494 (1987).

Ball v. Minnick, 538 Pa. 441, 448-49, 648 A.2d 1192, 1196 (1984).

Mother argues that the trial court’s decision to deviate downward from the guideline amount is unsupported by the record because Father never testified that he or any member of his new family has unusual needs or fixed obligations, or medical expenses not covered by health insurance. Mother further argues that a multiple family calculation of the support obligations based upon the guidelines would garner less than fifty percent of Father’s net monthly income to fulfill his child support obligations. We agree.

As this Court has recently stated:

The rules make clear that the amount of support as determined from the support guidelines is presumed to be the appropriate amount of support and that any deviation must be based on Rule 1910.16-4.
******
The presumption is strong that the appropriate amount of support in each case is the amount as determined from the support guidelines. However, where the facts demonstrate the inappropriateness of such an award, the trier of fact may deviate therefrom. This flexibility is not, however, intended to provide the trier of fact with unfettered discretion to, in each case, deviate from the recommended amount of support. Deviation will be permitted only where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate.

McCarty v. Smith, 440 Pa.Super. 280, 284, 655 A.2d 563, 565 (1995) (quoting Ball v. Minnick, 648 A.2d at 1195-96 (1994)).

Rule 1910.16-4 of the Pennsylvania Rules of Civil Procedure provides a list of eight circumstances to which a court may refer when providing its reasons for deviating from the guideline amount:

Rule 1910.16-4. Support Guidelines. Deviation
(a) If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.
(b) In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; and
(8) other relevant and appropriate factors, including the best interests of the child or children.

Pa.R.C.P., Rule 1910-16.4.

As our Supreme Court further stated in Ball v. Minnick:

As we said previously, deviations are governed by Rule 1910.16-4 in support proceedings involving parties whose incomes fall within the guideline figures. Subsection (b) of this Rule sets forth the only factors that a trier of fact may consider in determining whether to deviate. The trier of fact is required to consider all relevant factors and any one factor alone will not necessarily dictate that the amount of support should be other than the guideline figure. Rather, the trier of fact must carefully consider all the relevant factors and make a reasoned decision as to whether the consideration thereof suggests that there are special needs and/or circumstances which render deviation necessary. Furthermore, where the trier of fact does determine that the circumstances warrant a departure from the guideline amount, the justification for any such deviation must be explicitly set forth in writing, giving particular attention to those factors which this Court, in adopting the guidelines, has specifically deemed relevant. See Pa.R.C.P. 1910.16-4(a). General references to the effect that “all relevant factors have been considered” is wholly insufficient.

Ball v. Minnick, 648 A.2d at 1196 (emphasis in original) (footnote omitted). See also McGinnis v. McGinnis, 439 Pa.Super. 372, 375-77, 654 A.2d 563, 565 (1995) (presumption that guideline figure is appropriate amount of support is rebutted only where the trier of fact makes written finding or specific finding on record that an award in the amount determined from the guidelines would be unjust or inappropriate); Young v. Muthersbaugh, 415 Pa.Super. 591, 596-98, 609 A.2d 1381, 1384 (1992) (a trial court should deviate from the guidelines only when the obligor can establish unique financial needs).

Given the above comments, the trial court’s general statement in the present case that a downward modification is warranted “considering [Father’s] new family and personal expenses” provides an insufficient justification for an approximate twenty percent reduction in Father’s support obligation. See Connor v. Connor, 434 Pa.Super. 288, 293-94, 642 A.2d 1136, 1139 (1994) (trial court’s meager explanation did not justify twenty-seven percent reduction of defendant’s obligation); see also McCarty, 655 A.2d at 565 (trial court could not deviate from guideline amount based on current spouse’s net income without testimony or evidence regarding current spouse’s contributions toward joint expenses of wife’s new household).

Moreover, our own review of the record reveals that there was no evidence presented which would establish any special obligations or circumstances justifying an award lower than the recommended guideline figure. While we recognize that Father appeared at the May 15, 1995, Master’s hearing without counsel, he provided little testimony which would support any deviation. Although he testified that he had filed for bankruptcy approximately eighteen months earlier, he provided no testimony as to the effect of this action on his financial needs and the trial court made no specific reference to this fact in its memorandum order modifying the Master’s recommendation. Father only asked the Master to take into consideration the fact that he has a new wife and son to support. While this fact is to be considered by the trial court, we concur with Mother’s assertion that, under Rule 1910.16-5(n), Awards of Child Support When There Are Multiple Families, Father’s total support obligations are less than fifty percent of his net income and would not, therefore, provide a reason for reducing Father’s support obligation for Alycia.

Order reversed. The case is remanded for the imposition of an award in the amount of the appropriate guideline figure. Jurisdiction relinquished.

      . Father has not filed an appellate brief.

      . Given the incomes as found by the Master and undisputed on appeal, the guideline amount of support for Alycia is $462 per month. The Master recommended only $450 a month because that was the amount requested by Mother. A plain reading of our Supreme Court’s rationale in Ball v. Minnick, supra, however, leads us to conclude that, unless there is a reason or reasons justifying a deviation, the guideline figure must be awarded.

      . The trial court has not filed a 1925(a) opinion in this appeal.


author: MONTEMURO, Justice, Assigned.

text:
    674 A.2d 244
    ROBBINS & SEVENTKO ORTHOPEDIC SURGEONS, INC., Appellant, v. Jacques H. GEISENBERGER, Jr., S.R. Zimmerman, III, Robert Pfannebecker, and John R. Gibbel, Individually and t/a Geisenberger, Zimmerman, Pfannebecker & Gibbel.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed Feb. 26, 1996.
    Reargument Denied May 1, 1996.

      John W. Craynok, West Chester, for appellant.
    Kevin Canavan, Philadelphia, for appellees.
    Before KELLY and POPOVICH, JJ., and MONTEMURO, J.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Justice, Assigned.

Appellants, Robbins and Seventko Orthopedic Surgeons, Inc., bring this timely appeal from an order granting Appellees’, Geisenberger, et al, Motion for Summary Judgment in the Court of Common Pleas of Lancaster County (Georgelis, J.). The issues on appeal concern when the statute of limitations begins to accrue in a legal malpractice action, and whether the trial court erred in failing to apply the equitable estoppel doctrine.

The relevant factual and procedural history as derived from the trial court’s opinion are as follows: In 1976, the Appellants retained the Appellees’ law firm to incorporate its practice as orthopedic surgeons, and to prepare and file an employee pension plan with the Internal Revenue Service (IRS). Appellants allege that the pension plan forms initially submitted to the IRS in September 1977 by Appellee, John Gibbel (Gibbel), were returned with instructions that they be resubmitted. On October 17, 1978, Appellee, S.R. Zimmerman, III (Zimmerman), amended and filed the plan with an Application for Determination. In 1981, the Appellees were discharged by Appellants for reasons unrelated to this case.

On May 4, 1983, the Appellants were informed by the IRS that the pension plan had failed to qualify, and that deductions made to it in 1976, 1977, 1978 and 1979 were disallowed. Appellants through their new counsel, Michael Kane, and accountant, James Rottmund, filed an administrative appeal with the IRS. On October 8, 1986, the Appellants reached a settlement with the IRS and submitted a Form 870-AD, Waiver of Restriction on Assessment and Collection (waiver). The IRS agreed to accept the amendments to the plan filed by Mr. Kane for 1978 and 1979. Howéver, it refused to accept the amendments which related back to the years 1976 and 1977. On September 22,1986, the IRS notified the Appellants that the waiver (Form 870-AD) had been accepted, and that its case, for tax years 1976 through 1979, was closed.

The Appellees were originally notified of the problem with the pension plan through a letter from the IRS dated February 24, 1986. On April 15, 1986, the Appellees informed the Appellants that they believed the IRS’s objections to the plan were simple to amend. In January 1987, the Appellees agreed to hire another firm, Dechert, Price & Rhoads (Dechert), to amend the plan, and negotiate on behalf of the Appellants. On May 7, 1987, the Appellees forwarded a power of attorney, executed by the Appellants, to Dechert.

On January 21, 1988, the Appellees were contacted by Dechert and informed that the Appellants were precluded from amending and resubmitting the plan by their submission of the waiver form. On December 12, 1988, the Appellants began this action through a Writ of Summons, filing a complaint on December 22, 1989. The complaint alleged that the Appellees were negligent in preparing and filing the employee pension plan with the IRS for the 1976 and 1977 tax years. The Appellees filed a Motion for Summary Judgment contending that the action was barred by the statute of limitations. The trial court granted the motion giving rise to the instant appeal.

The Appellants raise the following issues for our consideration:

I. Does the filing of Form 870-AD by Appellants’ accountant end the process of administrative appeals with the IRS and begin the running of the statute of limitations against Appellants’ claim that Appellees’ negligence caused disallowance of deductions to their pension plan?
II. Where Appellants engaged Appellees’ law firm to continue negotiations with IRS and to rectify the damage caused by their initial negligence, are Appellees estopped from asserting the bar of the statute of limitations until such time as they notify Appellants that the appeal process has ended?

Appellants assert that the trial court incorrectly concluded that the Appellees were entitled to summary judgment as a matter of law. Our standard of review in this matter is well settled. A trial court’s order granting summary judgment will not be reversed unless it is established that the court committed an error of law or clearly abused its discretion. Cochran v. GAF Corporation, 542 Pa. 210, 215, 666 A.2d 245, 248 (1995) (citations omitted).

The first issue we must consider is when the statute of limitations in this legal malpractice action began to accrue. In support of their Motion for Summary Judgment, the Appellees argued that the statute began to run on May 4, 1983, the date the IRS notified the Appellants that the deductions for the pension plan were disallowed. The Appellees asserted that since the Appellants did not institute the malpractice suit until December 12, 1988, it was barred by the applicable statute of limitations.

By contrast, the Appellants contend that the statute of limitations was tolled during its administrative appeal with the IRS. They allege that the statute began to run on January 21, 1988, when the new firm hired by the Appellees advised them that the waiver form filed with the IRS precluded any further action. The Appellants argue that the statute should run from January 21,1988, since at that time all appeals of the underlying claim were exhausted.

The trial court agreed with the Appellants that the statute was tolled during the administrative appeal process. Trial Court Opinion, April 5, 1995, P. 8. However, the court concluded that the statute began to accrue on September 22, 1986, when the IRS informed the Appellants that it had accepted their waiver. Because the malpractice action was not brought within two years of September 22, 1986, the trial court granted the Appellees’ Motion for Summary Judgment.

We affirm the trial court’s decision to grant Appellees’ Motion for Summary Judgment. However, we conclude that the statute of limitations was not tolled during the Appellants’ administrative appeal with the IRS. Therefore, the proper date of accrual in this case was May 4, 1988, when the IRS notified the Appellants that the deductions for the pension plan were disallowed.

In Pennsylvania, the occurrence rule is used to determine when the statute of limitations begins to run in a legal malpractice action. Under the occurrence rule, the statutory period commences upon the happening of the alleged breach of duty. Bailey v. Tucker, 533 Pa. 237, 251, 621 A.2d 108, 115 (1993). An exception to this rule is the equitable discovery rule which will be applied when the injured party is unable, despite the exercise of due diligence, to know of the injury or its cause. Pocono Raceway v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Lack of knowledge, mistake or misunderstanding, will not toll the running of the statute. Id. 503 Pa. at 85, 468 A.2d at 471.

The Appellants cite Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 524 A.2d 980 (1987), to support their argument that the statute of limitations is tolled until all appeals for the underlying action have been exhausted. In Garcia, the appellant brought a legal malpractice cause of action against Community Legal Services (CLS). CLS represented the appellant in an action to obtain compensation for property damage. The statute of limitations on the property claim expired, and the appellant retained new counsel to reintroduce it. This second claim was dismissed on October 5, 1981. However, the appellant did not learn that it was dismissed until October 19, 1981, when the letter was translated from english into Spanish. On October 6, 1983, the appellant brought a legal malpractice action against CLS, arguing in part that an appeal or pending appeal of the underlying action should toll the statute of limitations for the malpractice action.

The panel applied the occurrence rule, and determined that the harm occurred on June 27,1979, when the initial claim was dismissed. However, because the appellant could not have reasonably discovered her injury at that point the court applied the discovery rule tolling the statute of limitations until October 5, 1981, when the appellant’s present attorney received notice that the second claim had been dismissed. Garcia, 362 Pa.Super. at 495, 524 A.2d at 985. Since the Appellant did not bring the legal malpractice action within two years of this date, the Appellees’ Motion for Summary Judgment was granted.

After reaching this conclusion, the Court confronted the appellant’s argument that the statute was tolled by the pendency of an appeal, concluding that this approach was not applicable in Pennsylvania. “This rationale is inapplicable to Pennsylvania because in our state courts, the limitation period begins to run when the alleged breach of duty occurs. It is tolled only until the injured party should reasonably have learned of this breach.” Garcia, 362 Pa.Super. at 497, 524 A.2d at 986. The Court did cite a case in an occurrence jurisdiction where the statute of limitations was tolled during the pendency of an appeal but was careful to point out that this approach was not applicable to the instant case: “the argument has theoretical merit but is inapplicable to this case---- We do not hereby endorse this position in that it is not relevant to the situation before us.” Garcia, 362 Pa.Super. at 498, 524 A.2d at 986-87. Accordingly, the Court’s commentary concerning whether the pendency of an appeal tolls the statute of limitations is obiter dicta. While the Court mentioned this approach, it still applied the occurrence and discovery rules to determine when the statute of limitations began to accrue.

Pennsylvania has never adopted the approach postulated by the panel in Garcia, tolling the statute of limitations in a legal malpractice claim until the appeals of the underlying claim have been exhausted. Our Supreme Court rejected a similar argument in a criminal defense malpractice case, Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993). In Bailey, the plaintiffs asserted that their defense attorneys had committed legal malpractice which resulted in a conviction for one plaintiff and a longer sentence for the other. The Court was called upon to determine when the statute of limitations in a criminal defense malpractice case began to accrue.

To make this determination the Court employed the occurrence and discovery rules. Bailey, 533 Pa. at 252, 621 A.2d at 115. Applying the occurrence rule, the court determined that in a criminal case the time of the harm was the date of sentencing. The court then applied the discovery rule tolling the statute of limitations until the defendant became aware that his attorney was responsible for the harm. The Court held that this occurred when the attorney client relationship was terminated. Bailey, 533 Pa. at 253, 621 A.2d at 116. Chief Justice Nix, writing for Justices Flaherty and Cappy, rejected the plaintiffs argument that the statute was tolled until the final resolution of the matters in the underlying the case (the direct appeal and collateral proceedings of the ineffective assistance of counsel claims). Bailey, 533 Pa. at 253, 621 A.2d at 116.

While the Court did require a plaintiff to pursue post-trial remedies and obtain the relief that was dependent on the attorney’s errors before the malpractice claim was cognizable, it did not exempt the plaintiff from filing the action within the prescribed statute of limitations period. Bailey, 533 Pa. at 251 n. 13, 621 A.2d at 115 n. 13. The Court explained:

[w]e recognize the concern about the amount of claims that might clog the civil dockets. However, we feel that it is more important that we require these criminal defendants to file their claims within the statutory period to prevent any injustice to an attorney who has to defend a claim of malpractice many years after his relationship with the client ends.

Bailey, 533 Pa. at 252 n. 15, 621 A.2d at 115 n. 15.

In those instances where the malpractice claim must be filed before the post conviction process was completed, the Court directed an attorney defendant to interpose a preliminary objection on the grounds of demurrer. The trial court was then instructed to reserve its ruling until the post conviction process was resolved. Bailey, 533 Pa. at 251 n. 13, 621 A.2d at 115 n. 13.

The Appellants cite two federal cases to support their argument that the statute should not accrue when an appeal of the underlying case is pending, Boerger v. Levin, 812 F.Supp. 564 (E.D.Pa.1993), and Bowman v. Abramson, 545 F.Supp. 227 (E.D.Pa.1982). These cases are somewhat distinguishable since they concern the justiciability of a claim, not the accrual of the statute of limitations. In addition, we are not bound by the decisions of the lower federal courts. Green v. Dolsky, 433 Pa.Super. 556, 560, 641 A.2d 600, 602 (1994) (citations omitted).

Accordingly, we reject the Appellants’ argument to toll the statute of limitations in a legal malpractice claim while an appeal of the underlying action is pending. In Pennsylvania, the method used to determine when the statute begins, to accrue is the occurrence rule or the discovery rule when appropriate. This approach is consistent with our Court’s previous decision in Garcia, and the reasoning of our Supreme Court in Bailey.

The statute of limitations is designed to balance two competing interests: avoiding stale claims and providing meaningful remedies for plaintiffs. If the statute of limitations were tolled pending an appeal of the underlying claim this balance would be disturbed:

[t]he purpose of the statute would not be served if an attorney is kept in a state of breathless apprehension while a former client pursues appeals from the trial court, to the Court of Appeal, to the Supreme Court and then, if the client has the money and energy, to the United States Supreme Court, during which time memories fade, witnesses disappear or die, and evidence is lost.

Laird v. Blacker, 279 Cal.Rptr. 700 (1991).

The proper date of accrual of the malpractice action in this case is May 4, 1983. The alleged breach of duty took place in 1976 and 1977, when the forms for the pension plan were filed with the IRS. Applying the occurrence rule, the statute would begin to run at this point. However, it would be unreasonable to expect the Appellants to have learned of the injury at this time. Therefore, it is proper to utilize the discovery rule. The Appellants acquired knowledge of the harm on May 4, 1983, when the IRS notified them that the pension deduction was disallowed. Accordingly, the statute began to accrue on that date.

The Appellants also assert that the trial court erred in failing to apply the doctrine of equitable estoppel which would have precluded the Appellees from asserting the statue of limitations as a defense. Where through fraud or concealment the defendant causes the plaintiff to relax his/her vigilance or deviate from his/her right of inquiry, the defendant is estopped from invoking the bar of the statute of limitations. Molineux v. Reed, 516 Pa. 398, 402, 532 A.2d 792, 794 (1987). The burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is on the Appellants. Molineux, 516 Pa. at 403, 532 A.2d at 794. The Appellants have failed to meet this burden. They have presented no evidence that the Appellees concealed evidence or that the Appellees made any misrepresentations whether intentional or negligent. In fact, the only evidence of concealment in the underlying matter was the Appellants’ failure to inform the Appellees that they had filed the 807-AD waiver form with the I.R.S.. Accordingly, this argument is without merit.

For the foregoing reasons, we affirm the order of the trial court granting Appellees’ Motion for Summary Judgment.

Order affirmed.

      . 42 Pa.C.S.A. § 5524 states in pertinent part:
      The following actions and proceedings must be commenced within two years:
      (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.

      . In applying the discovery rule, the court opined that it would have been unreasonable for the appellant to have known that the underlying case was barred by the statute of limitations. At that time, the law was unsettled as to which statute of limitations applied to the underlying case. This was later reconciled in 1981, when our Court decided Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981).

      . Justice Zappala concurred, but agreed with Justice Nix that the limitations period for criminal defense malpractice actions began to run when the attorney client relationship ended, and was not tolled until the underlying claim was exhausted. Bailey, 533 Pa. at 254, 621 A.2d at 117.