author: OLSZEWSKI, Judge: JOHNSON, Judge,

text:
    671 A.2d 707
    COMMONWEALTH of Pennsylvania, Appellant, v. Dennis ZASLOW, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1995.
    Filed Jan. 26, 1996.
    Reargument Denied March 13, 1996.

      Karen A. Brancheau, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Burton Rose, Philadelphia, for appellee.
    Before JOHNSON, HUDOCK and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County granting Dr. Dennis Zaslow’s motion to dismiss pursuant to Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. We reverse and remand for trial.

This case arises from criminal complaints filed against four individuals. Specifically, A. Terry Daly, Esquire, was charged with 86 counts of criminal conduct in three Grand Jury presentments, while co-defendants Zaslow, Jannette Lawsin, and Sheldon Bennett were charged with 36, 7, and 7 counts, respectively, each in the third presentment. The third presentment alleged, inter alia, a pattern of racketeering activity between Daly, Zaslow, Lawsin, and Bennett, in presenting false motor vehicle and other insurance claims, lawsuits, and testimony for the purpose of collecting financial settlements and awards. In particular, the complaint against Zaslow was filed on March 10, 1993, and he was charged with insurance fraud, false swearing, perjury, corrupt organizations, theft by deception, tampering with public records, and criminal conspiracy. Zaslow was subsequently released on bail.

A preliminary hearing was held on June 14, 1993, at which counsel for Daly requested a continuance because Daly had been admitted to a mental hospital for evaluation. Zaslow objected to the continuance and filed a motion to sever his trial from Daly’s trial. The Commonwealth opposed severance due to the complex nature of the case, the overlapping allegations against the four co-defendants, and because the repeated appearances of the same witnesses would greatly inconvenience the witnesses and not serve judicial economy. Further, the Commonwealth believed that Daly was malingering and feigning mental illness. The trial court denied the motion for severance and ordered that the preliminary hearing be continued until June 28, 1993.

On June 28, 1993, the court found that Daly was competent to proceed with the preliminary hearing. The trial court scheduled the preliminary hearing for September 14, 1993. Zaslow again objected to any continuance and renewed his motion to sever. The Commonwealth continued to resist this request for severance, and, consequently, the lower court denied Zaslow’s motion. Prior to the scheduled preliminary hearing date, however, Daly asked the court for another continuance due to his ongoing mental difficulties. On September 14, 1993, the court halted proceedings and ordered the court psychiatrist, Richard B. Saul, M.D., to examine Daly to determine if he could proceed with the hearing. When the hearing reconvened later that day, Dr. Saul testified that Daly was incompetent to assist in his own defense. Further, Dr. Saul stated that, in his opinion, there was no malingering and that Daly needed approximately 90 to 130 days of in-patient treatment before he could participate in the preliminary hearing. Following this testimony, Zaslow again petitioned for severance. The Commonwealth renewed its opposition to the motion, and the court denied the motion. The court then scheduled a status conference for November 1, 1993, to monitor Daly’s treatment and progress, and ruled that the period between September 14, 1993, and November 1, 1993, was excludable from the Rule 1100 calculations.

On November 1, 1993, Dr. Saul re-examined Daly and concluded that he was still unable to participate in his own defense. Dr. Saul suggested that Daly was not receiving the proper care at his current facility and suggested a transfer to another facility. Daly requested that the proceedings be continued to allow him to get this care. Zaslow renewed his motion for severance and objected to the continuance, but the Commonwealth requested an additional opportunity to determine if Daly was competent. Consequently, the court continued the action and held that this time was excludable for Rule 1100 puiposes. On December 15, 1993, the court held another status meeting at which it determined that Daly remained unable to assist in his own defense. Zaslow renewed his motion to sever, which the court denied. Instead, the court continued the case for another status conference, and ruled the time from December 15, 1993, to February 22, 1994, excludable from the Rule 1100 calculation.

On February 22, 1994, the court once again convened to evaluate Daly’s progress and recovery. Daly became extremely agitated at this hearing. As a result, the Commonwealth asked for a continuance to allow its expert, Robert L. Sadoff, M.D., the opportunity to examine Daly. Zaslow strongly objected to this delay and requested severance for the sixth and final time, but the Commonwealth opposed this motion. The court denied the request for severance and the matter was re-scheduled for April 6,1994.

At the April 6, 1994 hearing, the court received several medical reports concerning Daly’s mental state and competency. To allow time for review of these reports, the court rescheduled the hearing for April 27, 1994. On April 27, 1994, the court found that Daly was competent to proceed to trial. Thus, the court scheduled the preliminary hearing for the next available date of July 11, 1994. After a four-day preliminary hearing, at which 19 witnesses testified, Zaslow was held over for trial on 31 of the 36 counts with which he had been charged. The case was scheduled for a pre-trial conference on September 9, 1994, but was continued by the court until September 29, 1994. On September 29, 1994, Zaslow filed a motion for dismissal pursuant to Rule 1100. On November 18, 1994, following an evidentiary hearing, this motion was granted. This appeal followed.

Presently, the Commonwealth asserts that the trial court erred in granting Zaslow’s motion to dismiss pursuant to Rule 1100. In advancing this contention, the Commonwealth claims that the propriety of its actions following the filing of charges against Zaslow necessitates a reversal of the order. We agree.

While it is clear that trial did not commence within 365 days following March 10, 1993, the date on which the complaint was filed against Zaslow, we believe that the Commonwealth has met its burden of establishing that it acted with due diligence and that the circumstances occasioning the procedural delay were beyond its control. Accordingly, we find that the trial court abused its- discretion in granting Zaslow’s motion for dismissal pursuant to Rule 1100.

The statutory provision at issue in this case provides, in relevant part, as follows:

Rule 1100. Prompt Trial
(a)(3) Trial in a court case in which a written complaint is filed against the defendant where the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.
* * * * * *
(g) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant’s attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain.... If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. (emphasis added).

The standard of review in the case sub judice is whether the lower court abused its discretion in determining that the Commonwealth did not act with reasonableness with respect to the issue of due diligence. Commonwealth v. Johnson, 405 Pa.Super. 363, 373, 592 A.2d 706, 711 (1991). In making such an assessment, we are limited to considering only that evidence on the record of the Rule 1100 hearing and the findings of the lower court. Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991). Also, when reviewing the determination of the hearing court, we must view the facts in the light most favorable to the prevailing party. Id.

“Due diligence is a concept defined on a case by case basis.” Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632 (1984). Presently, in determining whether the Commonwealth exercised due diligence, it is necessary to evaluate the proceedings as they relate to the severance of Zaslow’s case from that of Daly’s. Since the trial court’s disposition of the six severance motions was based upon frequent evaluations of Daly’s mental status, we believe that the issue of severance is inextricably intertwined with the issue of Daly’s competency. Accordingly, we address the severance issue in light of the trial court’s handling of Daly’s competency to stand trial.

Although the decision whether to grant a motion for severance must be balanced with the need to minimize the prejudice that may be caused by consolidation, there is a clear preference in this Commonwealth to consolidate the trials of those engaged jointly in criminal activity. Commonwealth v. Stocker, 424 Pa.Super. 189, 204, 622 A.2d 333, 341 (1993). In Commonwealth v. Patterson, our Supreme Court noted that:

[t]he general policy of the law is to encourage joinder of offenses and consolidation of indictments when judicial economy can thereby be effected, especially when the result will be to avoid the expensive and time-consuming duplication of evidence.

519 Pa. 190, 195-199, 546 A.2d 596, 599-600 (1988) (citations omitted). Accord Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992); Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991). Most recently, in Commonwealth v. Lee, our Supreme Court stated that:

[it] has ... been held that a joint trial is not only permissible, but advisable, where multiple defendants are charged with participation in the same criminal acts and much of the same evidence is necessary to prove the Commonwealth’s case against each defendant. Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973); Commonwealth v. Kloiber, 378 Pa. 412, 415, 106 A.2d 820, 823, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).

541 Pa. 260, 662 A.2d 645, 650 (Pa.1995). We recently echoed similar sentiments in Commonwealth v. Presbury, 445 Pa.Super. 362, 665 A.2d 825 (1995).

Illustrative of the application of this principle is Commonwealth v. Zdrale, 397 Pa.Super. 167, 579 A.2d 1309 (1990), rev’d. on other grounds, 530 Pa. 313, 608 A.2d 1037 (1992), where we found no abuse of discretion in denying severance where charges arose from the same conspiracy, much of the evidence was common to both defendants, and separate trials would have required duplication of the testimony of 17 witnesses presented over seven days. Moreover, in Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987), alloc. denied, 518 Pa. 617, 541 A.2d 744 (1988), we specifically addressed the issue of severance in the context of the Commonwealth’s exercise of due diligence under Rule 1100. The defendant in that case argued that “the Commonwealth, by opposing his motion to sever his case from his co-defendant’s, failed to demonstrate due diligence.” Id. We disagreed and, in holding that the defendant’s motion to dismiss was properly denied by the trial court, stated that “[s]eparate trials would have required the duplication of testimony and evidence and would have caused the court to have ‘incurred the burdensome cost of two lengthy trials.’ ” Id.

That Zaslow was named in only one of the three presentments that named Daly did not entitle him to a severance given his pervasive conspiracy with Daly in the crimes alleged in the one presentment. The number of witnesses common to Daly and Zaslow was large and the Commonwealth’s concerns centered not only on the resulting strain on judicial resources but also on its ability to present its case since it believed that the witnesses would not have fared well in having to testify on more than one occasion.

In denying the motions for severance, the trial court periodically assessed Daly’s status. On each occasion, the severance motions were denied because adequate justifications as to Daly’s progress and expected recovery were provided. As a result of Daly’s expected recovery, the Commonwealth remained prepared to proceed with its numerous witnesses on each date on which the court met to evaluate Daly’s competency-

In consideration of the foregoing, we do not believe that the trial court abused its discretion in denying Zaslow’s numerous requests for severance during the pendency of Daly’s psychiatric evaluation. Therefore, we find that the entire period during which such evaluation was pending should be excluded from the Rule 1100 calculation.

We turn, therefore, to a determination of the period during which Daly’s competency to stand trial was being considered. We find that this period, aggregating 224 days, begins on September 14, 1993, when the court halted proceedings and ordered a psychiatric examination of Daly, and ends on April 27, 1994, when the court made a final determination that Daly was competent to stand trial. With these 224 days properly excluded, the amended Rule 1100 run-date was October 19, 1994. Since Zaslow filed his motion seeking dismissal on September 29, 1994, and all proceedings since that time have related to this motion, we believe that remand to the trial court to commence trial on a date certain is appropriate.

Finally, we address the applicability of our Supreme Court’s decision in Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). We are fully cognizant of the caution which must be exercised in accepting excuses for the Commonwealth’s failure to bring a criminal case to trial within the period prescribed by Rule 1100. Id. Our Supreme Court was justified in cautioning upon the acceptance of excuses resulting in an emasculation of Rule 1100. We do not accept the contention, however, that this case is one where the exercise of such caution results in a decision in favor of the defendant. In finding so, we note that:

The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
* * * * * *
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. [C]ourts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well.

Commonwealth v. Corbin, 390 Pa.Super. 243, 248-251, 568 A.2d 635, 638-639 (1990) (quoting Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-370, 371 (1981)). Also, our Supreme Court has stated that:

The public ... has an important “interest in having the guilt or innocence of the accused determined. Indeed, the criminal justice system owes society the duty not to abort trials, but rather to conduct proceedings expeditiously.”

Commonwealth v. Dunbar, 503 Pa. 590, 597, 470 A.2d 74, 78 (1983) (citations omitted). Additionally, it is important to note that cases relying upon Browne’s cautionary language have dealt with the Commonwealth’s failure to comply with reasonable procedures in the administration of cases. See, e.g., Commonwealth v. Taylor, 409 Pa.Super. 589, 592-595, 598 A.2d 1000, 1002-1003 (1991) (due diligence was not demonstrated where the Commonwealth attempted to justify its failure to secure a police report but had only requested the report two or three times); Johnson, supra (Commonwealth did not exercise due diligence where it failed to subpoena the proper complainant police officer and also neglected to locate the trial file for the case).

In view of this precedent and the substantial pertinent caselaw relating to the consolidation of trials in the case of joint criminal activity, we do not believe that our Supreme Court’s admonition in Browne was meant to refer to cases similar to the one here, dealing with complex issues of joint criminal activity posing not only substantial judicial economy concerns but also concerns regarding the ability of the Commonwealth to zealously present its case. A contrary reading of Browne would result in a “[s]trained and illogical judicial construction [which] adds nothing to our search for justice, but only serves to expand the. already bloated arsenal of the unscrupulous criminal determined to manipulate the system.” Corbin, Pa.Super. at 248-251, 568 A.2d at 638-639. Accordingly, we hold that the trial court abused its discretion in not recognizing that the Commonwealth’s efforts to bring Zaslow to trial within the. Rule 1100 time period were reasonable.

Order reversed. Case remanded for trial. Jurisdiction relinquished. •

JOHNSON, J., dissents.

JOHNSON, Judge,

dissenting:

Because I find that the Commonwealth failed to act with due diligence in prosecuting this case, I would affirm the trial court order that dismissed the charges pursuant to Rule 1100. Thus, I must respectfully dissent.

The Majority correctly states that this Court’s standard of review is limited to considering only that evidence on the record of the Rule 1100 hearing and the findings of the trial court. Majority slip op. at 295, citing Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991). Most importantly, when this Court reviews such a decision, we “must view the facts in the light most favorable to the prevailing party,” and the trial court’s ruling will not be disturbed absent an abuse of discretion. Edwards, supra, at 105, 595 A.2d at 53.

In order to consider the merits of Zaslow’s contentions, we must analyze the pertinent provisions of Rule 1100, which provides that, where the defendant is at liberty on bail, trial shall commence within no later than 365 days from the date on which the complaint is filed. Pa.R.Crim.P. 1100(a)(3). Further, this rule provides for the exclusion of certain periods of time from its calculations; namely:

(1) the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or the defendant’s attorney:
(ii) any continuance granted at the request of the defendant or the defendant’s attorney.

Pa.R.Crim.P. 1100(c). Lastly, the rule provides that a defendant may petition the court for dismissal of the charges against him if the Commonwealth has failed to prosecute within the allotted time period. Pa.R.Crim.P. 1100(g). The trial court will then conduct a hearing to determine whether the Commonwealth prosecuted the case with due diligence and whether the circumstances occasioning the postponement were beyond the Commonwealth’s control. Id. Thereafter, the court will determine if dismissal of the charges is proper. Id.

The complaint against Zaslow was filed on March 10, 1993. Thereafter, Zaslow was arrested and released on bail. Thus, according to Rule 1100, Zaslow’s run-date was March 11, 1994. Pa.R.Crim.P. 1100(a)(3). The Majority excludes the entire period that was used to determine the competency of his co-defendant, Arthur Terrence Daly, from its calculations, and, thus, arrives at an amended run-date of October 19, 1994. In making this determination, the Majority simply claims that “the Commonwealth was entitled to participate in the process of evaluating Daly.” Majority at 298 n. 2. The Commonwealth asserts, and I concur, that this time is properly excludable as to the determination of Daly’s Rule 1100 run-date. N.T., dated October 27, 1994, at 149-50. However, the Majority cites no authority, nor has my research disclosed any, in support of its assertion that the Commonwealth may exclude this time from the determination of Zaslow’s run-date. In fact, the Commonwealth conceded at the Rule 1100 hearing that the period of time relating to Daly’s competency was not excludable as to Zaslow, but stated that it considered this time “extendible” to Zaslow. Id. at 150. I am unable to agree with this novel concept of “extendible” time, as it is unsupported in either the language of the Rule or the caselaw of this Commonwealth.

In calculating Zaslow’s Rule 1100 run-date, the trial court excluded the period between September 14, 1993 until February 22, 1994 from its calculations, a period of 161 days. Even assuming that this exclusion is correct, the amended run-date for bringing Zaslow to trial according to the trial court’s calculations was August 17, 1994. The pre-trial conference was not scheduled until September 29, 1994, and the docket does not reflect that a trial date was ever set. Further, the record does not reflect that Zaslow expressly waived the applicability of Rule 1100, nor is the procedural delay attributable to him or to his counsel. In fact, Zaslow was prepared to proceed at all hearings and strenuously objected to all of the Commonwealth’s requested continuances. Thus, I conclude that Zaslow was not brought to trial within 365 days, in violation of Rule 1100. The Commonwealth contends that because it acted with due diligence in prosecuting Zaslow, and the delay is fully attributable to questions about Daly’s competency, a dismissal is not warranted. I disagree.

The purpose of Rule 1100 is to ensure that a criminal defendant will be brought to trial within a certain time period or be discharged. Commonwealth v. Johnson, 405 Pa.Super. 363, 375, 592 A.2d 706, 711 (1991). Further, the Commonwealth is required to take affirmative action to ensure that a defendant is brought to trial within the required time period. Commonwealth v. Hawk, 528 Pa. 329, 597 A.2d 1141 (1991); Commonwealth v. Hagans, 482 Pa. 572, 394 A.2d 470 (1978). In reviewing the dismissal of an action pursuant to Rule 1100, our supreme court has stated:

“When a case has possible Rule 1100 problems, prosecutors must do everything reasonable within their power to see that the case is tried on time.” Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). [See also ] Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981). The test to be met is whether the Commonwealth’s efforts to bring the defendant to trial were reasonable and pursued with diligence.

Commonwealth v. Browne, 526 Pa. 83, 89, 584 A.2d 902, 905 (1990). In addition, the Commonwealth has the burden of establishing to the reviewing court that the accused was brought to trial with due diligence. Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990); Hawk, supra.

In order to determine if the Commonwealth acted with due diligence in the present case, we must ascertain if the trial court should have granted Zaslow’s motions to sever his trial from that of his co-defendants. In considering this issue, I agree with the Majority that the consolidation of cases is preferred in this Commonwealth. Majority op. at 295-296. However, it cannot be disputed that “a defendant’s case should be severed if not doing so would result in substantial injustice.” Commonwealth v. Stocker, 424 Pa.Super. 189, 204, 622 A.2d 333, 341 (1993). Further, “the court must balance the need to minimize the prejudice that may be caused by consolidation, against the general policy of encouraging judicial economy.” Commonwealth v. Presbury, 445 Pa.Super. 362, 366, 665 A.2d 825, 828 (1995).

In the present case, the record reveals that Zaslow requested severance of his trial from that of his co-defendants on seven separate occasions. See, N.T., supra, at 76-80, 92, 102, 113, 118-20, 123, 126-7. In fact, Zaslow renewed his severance motion at every possible opportunity. In response, the Commonwealth vigorously opposed such motions, claiming that consolidation was required because of principles of judicial economy. The Commonwealth repeatedly expressed concern that its witnesses would refuse to testify at more than one hearing. However, the Commonwealth did not provide any evidence to substantiate this claim. The Commonwealth does not offer evidence that it experienced difficulty in locating these witnesses, nor that the witnesses refused to cooperate with Zaslow’s prosecution. Instead, the Commonwealth simply made a bald assertion that its witnesses were unlikely to appear for more than one hearing. See, id., at 85, 103-4, 110, 112-14, 118-19, 123-24, 126-27. In fact, most of the proposed -witnesses had already testified before the grand jury. Id. at 85. In addition, all of the Commonwealth’s -witnesses that testified against Zaslow live in the Philadelphia area. Id. at 147. Thus, I am not persuaded by this argument.

Further, the Commonwealth contends that the hearings were too complex to sever. Prior to the preliminary hearing, the Commonwealth insisted that it would require at least two weeks of court time and include the testimony of 70 to 80 witnesses. However, at the preliminary hearing, all of Zaslow’s co-defendants, including Daly, waived their right to a preliminary hearing. Thus, the Commonwealth was only required to establish a prima facie case against Zaslow. In doing so, the Commonwealth called only 19 -witnesses over a span of 4 days. Accordingly, the Commonwealth’s claim of complexity is belied by the record. Based on this disparity, I conclude that the Commonwealth exaggerated the complexity of this case. .Thus, I cannot sanction a finding that the Commonwealth acted with due diligence.

In evaluating the Commonwealth’s diligence in this matter, we must also acknowledge that Zaslow informed the court that he was experiencing severe difficulties due to the delay in these proceedings. ' Specifically, Zaslow claimed that his medical practice- suffered a drastic loss of patients, that he was forced to sell the building that housed his practice and was unable to earn a living as a medical expert, and was faced with potentially significant civil liabilities. Accordingly, in balancing the competing interests of judicial economy and the prejudice suffered' by the defendant as required by Presbury, supra, I would agree with the trial court that, in the present case, the prejudice suffered by Zaslow outweighs the Commonwealth’s claims of inconvenience.

Moreover, the Commonwealth failed to have Daly, Zaslow’s co-defendant, examined by its own expert until January 1994, ten months after criminal charges were filed against Zaslow and Daly. I find this delay inexcusable as it was apparent early in the proceedings that Daly’s competency to stand trial would be a hotly contested issue. The Commonwealth does not offer an explanation for this long delay.

Finally, I am compelled to express my general concern that the Majority does not adequately consider Commonwealth v. Browne, supra, in reaching its conclusion in this case. This Court should not blindly accept the Commonwealth’s failure to promptly bring a defendant to trial. Our supreme court has “become concerned that the Superior Court is more and more inclined to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100....” Browne, supra, at 89, 584 A.2d at 905. I take this admonition to heart. Accordingly, after a review of this record, I would conclude that severance was not only possible in this case, but it was the only method available to the Commonwealth to ensure that Zaslow would be brought to trial within the aforesaid time. This opposition to severance, in my view, is evidence of the Commonwealth’s lack of due diligence.

The trial court found that, under the totality of the circumstances, the Commonwealth failed to act with due diligence in bringing Zaslow to trial within the specified time period. Because this Court is required to view the facts in the light most favorable to Zaslow as the prevailing party, I would agree with this determination. Thus, I would find that the trial court did not abuse its discretion, and I would affirm the order granting Zaslow’s petition to dismiss pursuant to Rule 1100. Hence, this dissent.

      . Citing the detrimental effect on Zaslow’s medical practice, the dissent relies heavily upon its finding of substantial injustice resulting from a failure to sever the action against Zaslow. We do not believe that the additional procedural delay of 224 days (approximately 7 months) gives rise to this degree of injustice.

      . The dissent fails to justify its decision to include only that period ending 63 days earlier, on February 22, 1994, in excludable time. Although the additional delay was the result of the Commonwealth's request for time to have its own expert review Daly’s competence, we do not believe that this provides a sufficient basis for the dissent’s finding since the Commonwealth was entitled to participate in the process of evaluating Daly.


source: Caselaw Access Project

author: HUDOCK Judge: HESTER, Judge,

license: Public Domain

text:
    671 A.2d 716
    Kenneth KAPLAN, on Behalf of Himself and all Others Similarly Situated, Appellant, v. CABLEVISION OF PA, INC. and its Successor in Interest, Suburban Cable TV Co., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1995.
    Filed Feb. 5, 1996.

      Michael J. Boni, Philadelphia, and Michael D. Donovan, Haverford, for appellant.
    Geoffrey L. Beauchamp, Norristown, for Cablevision of PA, appellee.
    Alexander Kerr, Philadelphia, for Suburban Cable TV, appellee.
    Before ROWLEY, President Judge, and TAMILIA, KELLY, POPOVICH, HUDOCK, FORD ELLIOTT, SAYLOR, HESTER and BROSKY, JJ.
   HUDOCK Judge:

If a cable company fails to voluntarily rebate fees for periods of cable interruption, does this constitute an unfair or deceptive practice under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. section 201-1 et seq., when the cable subscription agreement does not expressly obligate the cable company to provide continuous, uninterrupted service? We find that it does not and hence affirm the trial court’s November 2, 1994 order which granted Cablevision of PA, Inc.’s and Suburban Cable TV Co., Inc.’s preliminary objections in the nature of a demurrer and dismissed Kenneth Kaplan’s amended class action complaint with prejudice.

On September 8, 1993, Kenneth Kaplan filed a class action complaint against Cablevision of PA, Inc. and its successor in interest, Suburban Cable TV Co., Inc., on behalf of himself and all “current and former subscribers to Cablevision’s cable television services.” Kaplan alleged that Suburban and Cablevision (collectively referred to as the “Cable Companies”) failed to provide continuous, uninterrupted cable service and failed to provide credit or notice of how to obtain credit for periods of service interruptions. Kaplan complained that the Cable Companies deliberately confused and misled their subscribers by not voluntarily providing rebates for periods of cable interruptions and by failing to inform them of their right to such rebates. Kaplan alleged that this conduct violated the UTPCPL, constituted a breach of the contractual duty of good faith and fair dealing and a breach of the implied warranty of merchantability allegedly contained in the subscription agreement. Kaplan sought money damages, a rebate for all periods when the cable services were interrupted, a declaratory judgment that the Cable Companies’ practices were unlawful, and an injunction prohibiting the Cable Companies from continuing to engage in the alleged illegal practices.

The Cable Companies’ filed preliminary objections to the class action complaint and Kaplan responded by filing an amended complaint on November 29, 1993 raising the same three claims. Once again Suburban and Cablevision filed preliminary objections on December 17, 1993 and January 7, 1994, respectively. Kaplan filed preliminary objections and an answer to the Cable Companies’ preliminary objections on January 25, 1994. Oral argument was scheduled for August 17, 1994 but was rescheduled for November 1, 1994 when the trial judge recused himself. On November 2, 1994, the court entered an order granting the Cable Companies’ preliminary objections, denying Kaplan’s preliminary objections and dismissing Kaplan’s amended complaint with prejudice. Kaplan then filed the instant appeal which was certified for en banc review.

Our scope of review from an order which sustains preliminary objections in the nature of a demurrer is plenary. Smith v. Exxon Corporation, 436 Pa.Super. 221, 223, 647 A.2d 577, 578 (1994). We must determine the legal sufficiency of the appellant’s complaint and decide whether sufficient facts have been pled which would permit recovery by the plaintiff if ultimately proven. Id. We must accept as true all well-pleaded facts contained in the complaint together with all reasonable inferences which may be deduced therefrom. Al Hamilton Contracting Company v. Cowder, 434 Pa.Super. 491, 495, 644 A.2d 188, 190 (1994). We will sustain the trial court’s demurrer if the facts pled in the plaintiffs complaint could not possibly state a cause of action permitting recovery. Id.

Section 201-3 of the UTPCPL makes it unlawful to engage in “unfair methods of competition and unfair or deceptive acts or practices.” 73 P.S. § 201-3. Sections 201-2(4)(i) through (xvii) delineate examples of “unfair methods of competition” and “unfair or deceptive acts or practices.” 73 P.S. § 201-2(4). Count one of Kaplan’s amended complaint alleged that the Cable Companies violated sections 201-2(4)(v), (xiv) and (xvii) of the UTPCPL. Kaplan complained that the following conduct constituted an unfair and deceptive trade practice: (1) requiring customers to pay in advance for cable transmission then failing to provide continuous, uninterrupted cable programming; (2) failing to credit or refund money paid for such continuous and uninterrupted programming when outages occur; (3) misleading customers as to the availability of rebates by failing to specify how subscribers may be reimbursed for interruptions; and (4) actively deterring customers from requesting credit for the cable outages.

In Commonwealth ex rel. Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974), our Supreme Court explained the Legislature’s purpose in enacting the UTPCPL. The Court explained:

The Legislature sought by the Consumer Protection Law [UTPCPL] to benefit the public at large by eradicating, among other things, “unfair or deceptive” business practices. Just as earlier legislation was designed to equalize the position of employer and employee and the position of insurer and insured, this Law attempts to place on more equal terms seller and consumer. These remedial statutes are all predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace. Instantly, the Legislature strove, by making certain modest adjustments, to ensure the fairness of market transactions. No sweeping changes in legal relationships were occasioned by the Consumer Protection Law, since prevention of deception and the exploitation of unfair advantage has always been an object of remedial legislation.
Although the Consumer Protection Law did articulate the evils desired to be remedied, the statute’s underlying foundation is fraud prevention. This Court emphatically stated in Verona v. Schenley Farms Co., 312 Pa. 57, 64, 167 A. 317, 320 (1933), “[a]s a statute for the prevention of fraud, it must be liberally construed to effect the purpose.... ”
Since the Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense, it is to be construed liberally to effect its object of preventing unfair or deceptive practices.

Commonwealth ex rel. Creamer v. Monumental Properties, 329 A.2d at 815-17 (citations and footnotes omitted). See also Pirozzi v. Penske Olds-Cadillac-GMC, Inc., 413 Pa.Super. 308, 313, 605 A.2d 373, 375 (1992), alloc. den., 532 Pa. 665, 616 A.2d 985 (“The purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices[.]”).

In his appeal Kaplan initially argues that the Cable Companies violated section 201-2(4)(v) of the UTPCPL which prohibits “[representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have[.]” 73 P.S. § 201-2(4)(v). He claims that the Cable Companies misrepresented in the Subscription Agreement that they would provide continuous, uninterrupted cable programming.

Kaplan acknowledges in the amended complaint that the Cable Companies’ contractual duties are defined by the terms of the Subscription Agreement which every cable subscriber executes prior to receiving cable services. Kaplan, however, does not specify which paragraph of the Subscription Agreement obligates the Cable Companies to provide continuous, uninterrupted cable service or unrequested credits for periods of interruption. He instead urges us to read into the Agreement by “necessary implication” this contractual obligation.

The doctrine of necessary implication is a principle of contract law which allows the court to imply a contract term “where it is clear that an obligation is within the contemplation of the parties at the time of the contracting or is necessary to carry out their intentions[.]” Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 586, 546 A.2d 676, 679 (1988). Our Supreme Court explained:

In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.

Id. (citing Frickert v. Deiter Brothers Fuel Company, Inc., 464 Pa. 596, 347 A.2d 701 (1975)). The court may apply the doctrine of necessary implication in only limited circumstances; it may imply a missing term in a parties’ contract only when it is necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by such term. Id.

We are unpersuaded by Kaplan’s argument that the doctrine of necessary implication applies in the present case. We may not imply the contractual duty to provide continuous uninterrupted service or unrequested credits for outages when it is unclear whether the Cable Companies clearly intended to be bound by this obligation. The Cable Companies did not expressly state this obligation nor does the Subscription Agreement contain any provisions which suggest that the Cable Companies obligated themselves to provide continuous, uninterrupted service or to automatically provide rebates for interruptions in service. Compare Slater v. Pearle Vision Center, Inc., 546 A.2d at 679-80 (several provisions in the lease suggested that the parties contemplated at the time of executing the commercial lease that Pearle would be obligated to actually occupy and use the premises). The trial court correctly concluded that the Cable Companies “did not represent that they would automatically credit subscribers for outages within [their] control.” Trial Court Opinion, 4/12/95, at p. 7. Accordingly, we do not agree with Kaplan that the Cable Companies misrepresented that they would provide continuous, uninterrupted service or in the alternative provide voluntary, unsolicited refunds.

Kaplan also argues that the Cable Companies violated section 201-2(4)(v) of the UTPCPL by misrepresenting that they are responsible for cable outages within their control. Once again the Cable Companies did not include this term in the Subscription Agreement nor did they imply it by other provisions in the Subscription Agreement. Kaplan claims that because the Cable Companies refunded money to customers who specifically requested rebates for periods of cable outages, this necessarily obligates them to automatically refund money to all customers who experience an outage regardless if they request such a refund.

We are unpersuaded by Kaplan’s argument. The fact that the Cable Companies gratuitously provide a refund when requested by a customer does not contractually obligate them to do so in all instances of cable interruption. The Cable Companies point out that they rely on the subscribers’ calls to notify them if an interruption in service occurs. They argue that without this notification they cannot issue a refund of cable fees, therefore, the notification requirement is neither unreasonable or illogical. We will not imply a term in the Subscription Agreement that obligates the Cable Companies to provide credits for cable outages when they have no notice that an outage has occurred.

In his last claim under section 201-2(4)(v) of the UTPCPL Kaplan argues that the Cable Companies misrepresented their responsibility for cable outages in the Subscription Agreement and deterred their customers from requesting credits by disclaiming liability in certain “emergency” situations specifically delineated in paragraph nine of the Subscription Agreement. Kaplan’s argument is difficult to comprehend. In paragraph nine of the Subscription . Agreement the Cable Companies specifically declared:

Company shall not be responsible for damages by reason of a failure to furnish audio or video signals or to'complete any of the work required of Company under this agreement where such failure is the result of any strike, war, riot, insurrection, civil commotion, fire, flood, accident, storm, or any Act of God or any other cause beyond the control of the Company, including but not limited to' Federal, state and local regulatory requirements now or hereafter in existence.

Paragraph 9, Subscription Agreement.

The terms of paragraph nine of the Subscription Agreement are clear. This clause, which is known as a “force majeure” clause, excuses the Cable Companies’ duty to provide cable service if one of the delineated events occurs. The clause does not represent that the Cable Companies will provide rebates for outages that are within their control without a specific request by the subscriber.

Next, Kaplan argues that his amended class action complaint stated a valid cause of action under section 201-2(4)(xiv) of the UTPCPL which makes it unlawful to “[f]ail[ ] to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made[.]” 73 P.S. § 201—2(4)(xiv). The trial court rejected this claim because Kaplan failed to plead that the Cable Companies breached a written guarantee or warranty that they would provide continuous, uninterrupted cable service. In the absence of such a written warranty, we agree with the trial court that no cause of action under section 201-2(4)(xiv) can be sustained.

Kaplan also contends that his amended complaint sets forth an actionable claim under the “catch-all” provision of the UTPCPL — subsection (xvii) — which prohibits “[e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201—2(4)(xvii). Kaplan did not include this claim in his amended complaint. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a), 42 Pa.C.S.A.; Weir v. Weir, 428 Pa.Super. 515, 523, 631 A.2d 650, 654 (1993). Thus, we will not examine the merits of Kaplan’s claim.

In the second count of the amended complaint Kaplan set forth a cause of action based on the Cable Companies’ alleged breach of their contractual duties of good faith and fair dealing. He contended that the Cable Companies failed to act in good faith by deliberately providing insufficient, confusing and misleading representations regarding the subscribers’ right to credit for service interruptions. He further claims that the Cable Companies concealed their policy of providing pro-rata credits from their customers. He requested the Cable Companies to credit or refund an appropriate pro-rata share of the fees collected in advance from its subscribers for times when the subscriber experienced a cable outage.

' Section 205 of the Restatement (Second) of Contracts, which was adopted by this Court in Baker v. Lafayette College, 350 Pa.Super. 68, 84, 504 A.2d 247, 255 (1986), aff'd., 516 Pa. 291, 532 A.2d 399 (1987), and Creeger Brick & Building Supply, Inc. v. Mid-State Bank & Trust Company, 385 Pa.Super. 30, 35, 560 A.2d 151, 153 (1989), provides: “Every contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement.” Restatement (Second) of Contracts, § 205. A similar requirement has been imposed upon contracts within the scope of the Uniform Commercial Code (UCC) by 13 Pa.C.S.A. section 1203. Somers v. Somers, 418 Pa.Super. 131, 135, 613 A.2d 1211, 1213 (1992). “Good faith” has been defined as “[h]oriesty in fact in the conduct or transaction concerned.” 13 Pa.C.S.A. § 1201. The breach of the obligation to act in good faith cannot be precisely defined in all circumstances, however, examples of “bad faith” conduct include: “evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.” Somers, 613 A.2d at 1213 (citing Restatement (Second) of Contracts, § 205(d)).

Kaplan’s argument that the Cable Companies failed to act in good faith is premised on their alleged duty to provide continuous service or voluntarily rebate fees paid in advance by the cable subscribers when an outage occurs. We previously concluded that the Cable Companies were not contractually bound to provide such service or credit and that they made no representations regarding the right to such credits. The Cable Companies’ conduct in providing credits when a subscriber notified them of a service interruption evidences honesty and good faith conduct, not bad faith conduct as Kaplan suggests. Hence, we agree with the trial court’s determination that Kaplan failed to set forth a viable claim for breach of the contractual duties of good faith and fair dealing.

In his third question presented, Kaplan claims that count three of his amended complaint stated an actionable claim for breach of the implied warranty of merchantability which is allegedly embodied in the Subscription Agreement.

Pennsylvania has adopted the implied warranty of merchantability found in Division II of the UCC at 13 Pa.C.S.A. section 2314. That section provides in pertinent part:

(a) Sale by merchant. — Unless excluded or modified (section 2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(b) Merchantability standards, for goods. — Goods to be merchantable must be at least such as:
(1) pass without objection in the trade under the contract description;
(2) in the case of fungible goods, are of fair average quality within the description;
(3) are fit for the ordinary purposes for which such goods are used;
(4) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved;
(5) are adequately contained, packaged, and labeled as the agreement may require; and
(6) conform to the promises or affirmations of fact made on the container or label if any.

13 Pa.C.S.A. § 2314.

The trial court granted the Cable Companies’ demurrer to this claim on the grounds that the Subscription Agreement is a contract for the Cable Companies’ services and does not contemplate a “transaction in goods” which is a prerequisite for the UCC and the implied warranty of merchantability to apply. See 13 Pa.C.S.A. § 2102 (limits the scope of Division II of the UCC to transactions in goods); Stephenson v. Greenberg, 421 Pa.Super. 1, 9, 617 A.2d 364, 368 (1992), alloc. den., 535 Pa. 649, 633 A.2d 153 (1993) (“For the Sales Article of the [UCC] to apply there must be a ‘transaction in goods.’ ”). Kaplan argues on appeal that a cable television signal is movable and hence satisfies the definition of “goods” set forth in 13 Pa.C.S.A. section 2105(a). Section 2105(a) defines “goods” as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than money in which the price is to be paid, investment securities ... and things in action.” 13 Pa.C.S.A. § 2105(a). “This definition embraces every species of property other than real estate, choses in action, or investment securities.” Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 349, 437 A.2d 417, 419 (1981).

We have found no case law in this Commonwealth which has determined whether the supply of cable television programming is a “transaction in goods” so as to trigger the implied warranty of merchantability in Division II of the UCC. We will review analogous cases to resolve this novel issue.

In Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964), the appellants sued the appellee gas company for personal injuries they sustained when gas escaped from the underground pipe leading into their home. The trial court sustained the gas company’s preliminary objections and dismissed the complaint on the grounds that the action was barred by the two year statute of limitations for personal injury actions based on a tort claim. The precise issue on appeal was whether the two year statute of limitations for torts or the four year statute of limitations for breach of warranty contained in the UCC governed. In reaching its conclusion that the UCC’s four year statute of limitations applied, our Supreme Court summarily noted that the supply of gas to the appellants’ home on a month-to-month basis fell within the definition of a contract for sale under the UCC. Id. at 614 n. 8. Our Supreme Court did not decide the precise issue of whether the sale of gas was a “transaction in goods.” Rather, the Court noted in a footnote that the sale of gas on a month-to-month basis constituted a “contract for sale” as defined by the UCC. Id.

In Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. den., 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974), our Supreme Court held that a sale of the businesses of two radio stations, including their tangible and intangible assets, was not a transaction in goods under the UCC. Id. at 696. The Court relied on the fact that the license, good will, real estate, radio studio, and transmission equipment were not movable and hence did not fall under the UCC’s definition of goods. Id.

In Schriner v. Pennsylvania Power & Light Company, 348 Pa.Super. 177, 501 A.2d 1128 (1985), this Court was presented with the issue of whether the doctrine of strict liability in tort under section 402A of the Restatement (Second) of Torts may be asserted against a public utility supplying electricity. To apply section 402A against the electric company, the Court had to first determine if electricity was a “product” for purposes of strict liability. Id. at 1132. This Court adopted the reasoning of the Wisconsin Supreme Court in Ransome v. Wisconsin Electric Power Company, 87 Wis.2d 605, 275 N.W.2d 641 (1979), and reasoned that the distribution of the electricity was a service, but once the electricity passed through the customer’s meter it entered the stream of commerce and became a product within the meaning of section 402A. Schriner, 501 A.2d at 1134. This Court’s decision in Schriner dealt solely with the applicability of section 402A of the Restatement (Second) of Torts and did not address whether supplying electricity was a transaction in goods governed by the UCC.

In Whitmer v. Bell Telephone Company of Pennsylvania, 361 Pa.Super. 282, 284, 522 A.2d 584 (1987), this Court determined “whether the use, or attempted use, of a public pay telephone involve[d] a ‘transaction in goods’ so as to trigger application of implied warranties imposed by Article II of the [UCC] as it has been adopted in Pennsylvania.” Id. at 585 (footnote omitted). This Court held that “neither the use, nor the attempted use, of a public pay telephone involves a ‘transaction in goods’ and consequently, the implied warrant provisions of Article II of the Code do not apply.” Id. We reasoned that when the appellant picked up the receiver of a public pay telephone she attempted to utilize the services offered by the phone company. She was not attempting to purchase a tangible, movable good. We distinguished Gardiner and Schriner as follows:

Herein lies the distinction between Gardiner and Schriner and the instant case. The gas and electric utilities provide both transmission services and the products to be transmitted. The telephone company, however, provides transmission services, but not the communication to be transmitted. While the telephone company does provide certain incidental communications (for instance, directory assistance), the predominant nature of the transaction remains the transmission of consumer provided communications from one location to another which is the rendition of a service. When the transaction involves predominantly the rendition of services, the fact that tangible movable goods may be involved in the performance of services does not bring the contract under the Code.

Whitmer, 522 A.2d at 587 (citations omitted) (emphasis omitted).

In Gall v. Allegheny County Health Department, 521 Pa. 68, 555 A.2d 786 (1989), our Supreme Court held that the sale or supply of water by a municipal water authority constituted a transaction in goods subject to the implied warranty of merchantability. Id. at 789. Our Supreme Court reasoned that because water can be measured by a flow meter, it is movable and hence satisfied the UCC’s definition of a good. Id.

Finally, we recognize the federal decision of Satellite Television & Associated Resources, Inc. v. Continental Cablevision of Virginia, Inc., 714 F.2d 351 (4th Cir.1983), cert. den., 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984), where the Fourth Circuit Court of Appeals held that the defendant cable company offered a service and not “goods” as defined by the Clayton Act, 15 U.S.C. section 14. The Clayton Act covers only “goods, wares, merchandise, machinery, supplies or other commodities[.]” Id. The Court found that the dominant nature of the transaction was broadcasting which is a service and that the supply of transmission equipment, which could be considered a good, was incidental to the provision of the service. Satellite Television, 714 F.2d at 354. Thus, the Court concluded that the exclusivity provision entered into by the cable television company and apartment owners did not come within the purview of the Clayton Act. Id. at 354.

After reviewing these various cases we agree with the trial court that the transmission of cable television programming is not a “transaction in goods” as defined by section 2105(a) and relevant case law. Although the audio and video signals which the Cable Companies transmit move through the cable wires, the Official comment to section 2105 instructs us that the definition of goods “is not intended to deal with things which are not fairly identifiable as movables before the contract is performed.” 13 Pa.C.S.A. § 2105, UCC Comment 1. The signals transmitted through the cable wires to the subscriber’s home are not “fairly identifiable as movables before the contract is performed.” The Cable Companies do not sell a tangible, separate identifiable good — instead they supply a continuous stream of audio and video signals. Unlike gas and electric companies which generate the products they provide, the Cable Companies do not generate the signals which they transmit to the subscribers. They merely act as a common carrier transmitting numerous cable signals through cable wires into the subscriber’s home.

Moreover, unlike gas, electricity, or water, where the quantity consumed by the consumer is readily measurable, the quantity of cable programming that each subscriber receives is difficult to ascertain. We find the analysis in Whitmer with the use of a public telephone illustrative. When an individual inserts money into the public telephone, he pays for the telephone company to transmit his message over the telephone wires. When a cable subscriber turns on his television, he pays for the cable company to transmit the television signal through the cable wires into his television. The dominant purpose of the Subscription Agreement is to provide a cable television programming service; any equipment supplied by the Cable Companies to transmit the signals into the subscriber’s home is incidental to the service. Satellite Television & Associated Resources, Inc., 714 F.2d at 354.

Even assuming arguendo that the transmission of cable television constitutes a “transaction in goods” as defined by the UCC, we find an alternative basis for affirming the trial court’s order granting the demurrer to count three of Kaplan’s amended complaint. See Al Hamilton Contracting Co. v. Cowder, 644 A.2d at 190 (trial court’s order may be affirmed on appeal if it is correct on any legal theory regardless of the reason or theory adopted by the trial court). Kaplan’s allegations in count three of the amended complaint were insufficient to constitute a cause of action for the breach of the implied warranty of merchantability. Kaplan does not complain that the cable programming he received, was unmerchantable. He does not allege that the “goods” were, “unfit” for the ordinary purpose for which such programming is used, nor does he allege that the programming he received was low quality or defective. On the contrary, Kaplan complains that he is entitled to a rebate for periods of cable interruption. This allegation does not assert a cause of action based on the implied warranty of merchantability. Compare Moscatiello v. Pittsburgh Contractors Equipment Company, 407 Pa.Super. 363, 371, 595 A.2d 1190, 1194 (1991), alloc. den., 529 Pa. 650, 602 A.2d 860 (1992) (defendant breached implied warranty of merchantability when it sold a concrete paving machine which failed to lay concrete evenly and thus was unfit for ordinary purpose for which it was used).

Order affirmed.

HESTER, J., files a dissenting opinion.

ROWLEY, President Judge, did not participate in the consideration or decision of this case.

HESTER, Judge,

dissenting:

I respectfully dissent from the decision reached by the majority. I believe that the complaint contains allegations sufficient to demonstrate that the cable company committed an unfair trade practice by failing to make public its practice of refunding for service outages and by failing to comply with the terms of its subscription agreements to refund for service outages caused by circumstances within its control.

This case was instituted as a class action by cable television subscribers to recover against a cable television company for, among other things, its alleged violation of the Unfair Trade Practices and Consumer Protection Law (the “Act”), 73 P.S. 201-1, et seq. The trial court sustained the cable company’s preliminary objections to the complaint, determining that appellants had failed to state a claim upon which relief could be granted.

Our standard of review when the trial court has granted preliminary objections follows:

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988).

Kelly-Springfield Tire Co. v. D’Ambro, 408 Pa.Super. 301, 303, 596 A.2d 867, 868 (1991), quoting Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 32-33, 560 A.2d 151, 153 (1989).

In the present case, the complaint includes the following allegations. The cable company provides cable services to its subscribers for a monthly fee. The subscription agreements provide that the company is not responsible for damages if service is interrupted due to strike, war, riot, insurrections, commotion, fire, flood, accident, storm, act of God, or other cause beyond the control of the cable company. The cable company’s practice is to limit refunds for service outages within its control to customers only if those customers complain, and it never has told its. subscribers that they can, in certain circumstances, obtain refunds for outages.

I believe that this practice is an unfair trade practice under the Act. A fair reading of the subscription agreements leads to the conclusion that the cable company is liable for damages, i.e., loss of service, for any service interruptions which are within its control. The agreement expressly limits the company’s liability for damages only when service is interrupted due to enumerated circumstances, all of which are beyond the control of the company. Thus, the company, by necessary implication, agreed to give customers damages for service outages which are within its control.

Its alleged refusal to do so under the agreements is a breach of those agreements and an unfair trade practice under the Act since the Act defines an unfair trade practice to include “[flailing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made.” 73 P.S. § 201-2(xiv). That the company had an unpublished practice of issuing a credit to customers who complain reinforces the interpretation of the contract that the company is responsible for refunds when service is interrupted due to equipment and other failures within its control. The company should have made all of its subscribers aware of this practice. Accordingly, I dissent.

      . In August of 1993 Suburban purchased Cablevision and notified Cablevision subscribers that the same Subscription Agreement remained in effect with Suburban.

      . In the amended complaint Kaplan averred that the Cable Companies violated section 201-2(4)(ii) of the UTPCPL. Kaplan abandons this subsection on appeal and bases his UTPCPL claim solely on subsections (v), (xiv), and (xvii).

      . A force majeure clause lists a series of events such as earthquakes, storms, floods, natural disasters, wars, or other "acts of God” which the parties to a contract have agreed upon as excuses for nonperformance. JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS 639 (1990).

      . We reject Kaplan's excuse as to why he did not raise this issue in the amended complaint. He claims that he did not include a claim based on subsection (xvii) in the amended complaint because of this Court’s statement in Prime Meats v. Yochim, 422 Pa.Super. 460, 619 A.2d 769 (1993), alloc. den., 538 Pa. 627, 646 A.2d 1180 (1994), where we reiterated that generally fraud is not an appropriate cause of action for a class action because of each individual plaintiffs need to prove his reliance on the defendant's misrepresentation. Id. at 774 (citing Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1976), cert. den. 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976)). That general principle does not explain why Kaplan did not raise a claim based on section 201-2(4)(xvii) in his amended complaint.

      . When Gardiner was decided, the UCC was codified at 12 P.S. section 2-101 et seq. and the definition of "contract for sale” was found at 12 P.S. section 2-106.

      . Kaplan raises an additional issue in this appeal which we are unable to address. He argues that the trial court should not have granted the Cable Companies’ preliminary objections because in doing so it contradicted its own ruling in Goldman v. Comcast Cablevision Corporation, No. 93-16895 (Montgomery County, filed 8/26/94), where the plaintiff cable subscriber asserted similar claims as those raised by Kaplan. The Goldman case is not on appeal before this Court and we are not called upon to review the trial court’s disposition of that case. Moreover, the trial court explained that the facts in Goldman were distinguishable from the facts in the present case thus meriting different results.