author: CAVANAUGH, Judge:

text:
    500 A.2d 1137
    Larry D’AMELIO, Individually and on Behalf of all other Persons Similarly Situated, Appellant, v. BLUE CROSS OF LEHIGH VALLEY, and St. Luke’s Hospital, Individually and on Behalf of All Other Hospitals Similarly Situated, Appellees.
    Superior Court of Pennsylvania.
    Argued Oet. 18, 1984.
    Filed Oct. 11, 1985.
    Reargument Denied Dec. 12, 1985.

      Margaret H. Poswistilo, Thomas R. Elliott, Jr., Easton, for appellant.
    William F. Brodt, Jr., Bethlehem, for St. Lukes, appellee.
    Oldrich Foucek, III, Allentown, for Blue Cross, appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order denying appellant/plaintiffs’ motion for certification of a class action. The court below held that certification was not appropriate because plaintiffs failed to satisfy the commonality, typicality and adequacy of representation requisites for certification pursuant to Pa.R.C.P. 1702. We disagree and, therefore, reverse and remand to the Court of Common Pleas to make additional findings of fact necessary for a determination of whether class certification is appropriate.

I. FACTUAL HISTORY

The pertinent facts are as follows. Plaintiff, Larry D’Amelio, entered St. Luke’s Hospital on October 23, 1979, with an admitting diagnosis of “depressive reaction.” He was hospitalized at St. Luke’s until November 23, 1979. D’Amelio, at admission and throughout his stay, was insured pursuant to an agreement between his employer, Shoemakers AMC Jeep, Inc., and Blue Cross of Lehigh Valley (hereinafter referred to as Blue Cross.) According to the terms of this agreement, D’Amelio was entitled to the benefits accorded in-patients provided that Blue Cross determined that his medical expenses were medically necessary. At the time of his admission, D’Amelio signed a payment guarantee where he, in effect, assumed the responsibility for payment to St. Luke’s for his medical expenses not covered by Blue Cross which accrued during his stay. .

At the times relevant to this appeal, St. Luke’s had its own internal utilization review process, the purpose of which was to determine whether a stay or admission was medically necessary for insurance payment purposes. The process was used as a screening procedure whereby costs to Blue Cross would be kept down, and payment by Blue Cross to St. Luke’s would be likely.

St. Luke’s utilization review procedure, at the time of D’Amelio’s admission and stay operated as follows. The day after admission, a utilization review coordinator on St. Luke’s staff would review a patient’s chart for medical necessity and treatment rendered. Ten days later a further review would be conducted. At that point, a coordinator would review the patient’s record, examine the medical necessity of the treatment rendered and match it with established criteria for severity of illness, intensity of care and discharge screens. If no problem was detected, further reviews would be conducted periodically. If the coordinator questioned the necessity of medical services, the matter would be referred to a physician serving on the utilization review committee. If the committee physician also questioned the medical necessity, he would then contact the attending physician. If a dispute were to arise between the committee physician and the attending physician, the matter would be reviewed by a second committee physician. If a dispute still remained, a letter would be sent to the insurance carrier stating that the utilization review committee had recommended that medical necessity was not indicated beyond a specified date. The patient would also be sent a copy of that letter. Whether a patient chose to remain in the hospital thereafter rested within the discretion of the patient, his family and attending physician.

In Mr. D’Amelio’s case, St. Luke’s, through its utilization review committee, determined that plaintiff’s hospitalization was medically necessary for the entire period of his stay.

Subsequent to plaintiff’s discharge, St. Luke’s submitted Mr. D’Amelio’s hospital bill to Blue Cross, which employed its own utilization review procedure. As a result of Blue Cross’ review, it was determined that Blue Cross would provide benefits to D’Amelio for the period of October 23,. 1979, to November 3, 1979. However, Blue Cross refused to provide benefits for the period from November 4, 1979, through November 23, 1979, on the basis that said period of hospitalization was not medically necessary. Thereafter, Blue Cross notified both St. Luke’s and the plaintiff of its decision.

After the notification of denial of benefits, appellant appealed the denial through various internal review procedures. Ultimately, the initial decision to deny benefits was upheld by a panel of Blue Cross’ reviewing psychiatrists.

Thereafter, because St. Luke’s' was not a participant in the waiver of liability program, it sought payment of the unpaid balance of $2,208.15 directly from D’Amelio.

II. PROCEDURAL HISTORY

Mr. D’Amelio brought a cause of action in trespass and assumpsit to obtain allocation of responsibility for costs of in-patient hospitalization for a class of plaintiffs. Appellant, in his action, seeks money damages and equitable relief on behalf of the plaintiff class from a health plan corporation, Blue Cross, and a class of defendant hospitals, of which St. Luke’s as D’Amelio’s health care provider was named class action representative. The complaint avers that the plaintiffs incurred medical expenses which were not paid by Blue Cross because Blue Cross retrospectively determined that the expenses were not medically necessary. The complaint continues by averring that because of Blue Cross’ denial, the proposed members of the class are personally liable to the treating hospitals to pay their hospital expenses.

D’Amelio claims that Blue Cross breached its subscription agreement and implied contractual terms by retrospective denial of coverage. In the alternative, he argues that if the retrospective review and denial provisions were part of and authorized by the agreement, they were unconscionable and void as against public policy. Plaintiff also seeks relief as a third-party beneficiary of the Blue Cross-Hospital contract. In addition, plaintiffs seek recovery on the basis of alleged violations of the Unfair Trade Practices and Consumer Protection Act, based upon alleged misrepresentations by Blue Cross.

Blue Cross filed preliminary objections, and plaintiff amended his complaint by redefining his class by reference to the contractual two year period of limitations. The redefined class then included subscribers hospitalized after September 10, 1979 instead of subscribers denied coverage after September 10, 1979. A later amendment named other hospitals similarly situated to St. Luke’s thus creating a double class action. A third amendment to the definition of the class was made, proposing that the plaintiff class should include all subscribers of Blue Cross of Lehigh Valley who were hospitalized after September 10, 1975, and subsequently denied benefits. This amendment was made based on plaintiff’s argument that Blue Cross did not act in good faith in denying the claims based on its medical necessity clause and therefore, the two year contractual period of liability found in the subscription agreement was unenforceable. Accordingly, the amendment provided that the class would include persons hospitalized over a six year and not a two year period of time.

After the third amendment was made, pleadings were concluded and the case proceeded to a class certification hearing. By stipulation of counsel, it was agreed that in lieu of an evidentiary hearing, the issue of certification would be determined based on the record to date and oral argument. Based on the record and oral argument, the lower court denied plaintiff’s Motion for Class Certification and plaintiff petitioned for reconsideration. Plaintiff’s petition for reconsideration was denied. This appeal followed.

III. STANDARD OF REVIEW

Appellants contend that the court below abused its discretion in holding that the second, third and fourth requirements and criteria for class certification were not met. Pa.R.C.P. 1702, 1708, 1709. We agree. The lower court’s determination regarding class certification is a “mixed finding of law and fact entitled to ‘appropriate deference’ upon appeal.” Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 451 A.2d 451, 454 (1982) (quoting with approval from Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235, 348 A.2d 734, 739 (1975) on remand, 241 Pa.Super. 192, 360 A.2d 681 (1976)).

“Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class.” Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Accord, Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 342-43, 431 A.2d 883, 886 (1981); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Super. 219, 225-26 n. 4, 438 A.2d 616, 619 n. 4 (1981). Accordingly, the lower court’s order granting or denying class certification will not be disturbed on appeal unless the court neglected to consider the requirements of the rules or abused its discretion in applying them. See Janicik v. Prudential Insurance Co. of America, supra; Sharkus v. Blue Cross of Greater Philadelphia, supra; Klemow v. Time, Inc., supra; Bell v. Beneficial Consumer Discount Co., supra. See also Zeidman v. J. Ray McDer-mott & Co., 651 F.2d 1080, 1050 (5th Cir.1981).

IV. BURDEN OF PROOF

It is well established law that the party seeking certification bears the burden of proving that the matter is maintainable as a class action. Janicik v. Prudential Insurance Co. of America, supra; Klemow v. Time, Inc., supra. Pennsylvania Rule of Civil Procedure 1702 denotes five prerequisites to class action certification: numerosity; common issues of law or fact; typicality; adequacy of representation; and, fairness and efficiency. The policy of our Commonwealth in regard to class certification is that “decisions in favor of maintaining a class action should be liberally made.” Bell v. Beneficial Consumer Discount Co., supra, 241 Pa.Super. at 205, 360 A.2d at 688. When, as here, the underlying facts are not in dispute, the court may hold the burden more easily satisfied. Ablin v. Bell Telephone Co. of Pennsylvania, 291 Pa.Super. 40, 50 n. 5, 435 A.2d 208, 214 n. 5 (1981); Wolfson v. Solomon, 54 F.R.D. 584, 591 (S.D.N.Y.1972).

Once the pleadings are concluded, the party moving for class certification must present evidence at the certification hearing, establishing that the five prerequisites have been met. See Janicik, supra. Due to the overlapping and interrelated nature of the five prerequisites, the moving party may satisfy his burden by proving sufficient facts from which the court can properly determine that each of the five prerequisites have been met. Janicik, supra; see Albin, Inc. v. Bell Telephone of Pennsylvania, supra, 291 Pa.Super. at 48, 435 A.2d at 212 (typicality, commonality and adequacy of representation are closely related).

Allegations pleaded by the class proponent, if admitted by the opposing parties, may be considered as evidence at the class certification hearing. Pa.R.C.P. 1706. After the proponent establishes a prima facie case for certification, the class opponent shoulders the burden, which has shifted, of coming forward with contrary evidence challenging the prima facie case. Where there is an actual conflict on an essential fact, the class proponent bears the risk of non-persuasion.

V. RELEVANT AUTHORITY

There is no dispute that Pa.R.C.P. 1702 establishes the requisites that must be met in order for a plaintiff class to be granted class certification. Pa.R.C.P. 1702, “Prerequisites to a Class Action”, provides as follows:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the' claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

We shall discuss the above requisites in seriatim in the context of the case at bar. In addition to the relevant rules enacted by the Pennsylvania legislature and and cases interpreting them, and federal cases interpreting analogous federal rules, we find it necessary to carefully interpret the case of Sharkus v. Blue Cross of Philadelphia, 494 Pa. 336, 431 A.2d 883 (1981), as it is central to our analysis of the propriety of the denial of class certification in the instant case.

All parties rely primarily on Sharkus to reach their respective conclusions in regard to certification. The lower court, reading Sharkus in a fashion consistent with that of appellees, denied certification stating that Sharkus was legally controlling, yet factually distinguishable from the instant case. We disagree. We believe that Sharkus is legally controlling, and factually similar to the instant appeal to an extent requiring the same result, i.e., a finding of typicality and commonality.

In Sharkus, plaintiffs, who were medical insurance subscribers, brought a class action against the insurer, Blue Cross, and provider hospitals. Plaintiff’s complaint alleged that the insurer, by retrospectively reviewing and refusing to pay the hospital expenses of subscribers hospitalized upon the recommendation of the provider’s staff physician, breached the subscription agreements and its fiduciary duty to administer the health care program in such a way as to protect its subscribers from unknowingly submitting to uncovered hospitalization. In addition, plaintiffs alleged, the hospital breached its duty to ensure that plaintiff/subscribers’ hospitalizations were medically necessary. The Court of Common Pleas of Philadelphia entered an order dismissing plaintiffs’ complaint on the grounds that it was not a proper class action and that the subscribers had failed to join certain indispensable parties as defendants. The case was appealed to the Superior Court, which affirmed, and the subscribers appealed. On appeal, the Supreme Court held, inter alia, that: (1) class action relief was appropriate for those subscribers who were unfairly charged for their hospitalizations by their insurer’s retroactive determination that hospitalizations were medically unnecessary.

VI. DISCUSSION

A. NUMEROSITY

The parties have stipulated that the numerosity requirement has been met, and the lower court accepted the stipulation, thus making further discussion unnecessary.

B. COMMONALITY

To satisfy the commonality requirement, plaintiffs must establish that their claim presents “questions of law or fact common to the class.” Pa.R.C.P. 1702. While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding. Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Super. 219, 438 A.2d 616 (1981).

Plaintiffs contend that class certification is appropriate because the common issue predicated on any of the prof-erred theories is the fairness of Blue Cross’ retrospective determination that all or a portion of their hospitalization was not medically necessary and, thereafter, the defendant hospitals charging them directly for the unreimbursed costs of services and supplies.

Blue Cross alleges that plaintiffs have failed to adequately set forth the underlying facts for the court below to make its conclusions or, alternatively, that the question of medical necessity is a factual determination for each individual plaintiff. St. Luke’s joins in Blue Cross’ arguments, and further maintains that each member hospital performs its own procedure for utilization review resulting in different interpretations of medical necessity.

We agree with appellants that the common issue among class plaintiffs is whether the retrospective denial of benefits by Blue Cross predicated upon lack of medical necessity is unfair under any of the theories averred in plaintiff’s complaint. We believe that this issue was also the same issue as presented in Sharkus, supra. The Sharkus court stated,

The basic issue that is common to all members of the proposed class is stated by appellants as follows:

“If Blue Cross was justified in revoking its payment on the grounds that the hospitalization was ‘not medically necessary,’ then defendant hospital (acting through the Hospital Director or his delegates) must bear the responsibility for permitting a hospital admission that was not medically necessary. On the other hand, if a hospitalization was sufficiently ‘medically necessary’ to justify the hospital in accepting the admission, then it is prima facie unconscionable to permit Blue Cross with hindsight to apply a more stringent definition of ‘medical necessity’ and leave the patient caught in the middle.”

494 Pa. 336, 345-46, 431 A.2d at 887.

Like Sharkus, the class action at bar seeks not to prove that plaintiffs’ hospitalizations were, in fact, medically necessary. Instead, like Sharkus, plaintiffs in the instant case seek a legal determination that: 1) Blue Cross subscribers may not be held liable for the costs of hospitalization retroactively denied by Blue Cross on the ground that they were medically unnecessary; and, 2) where Blue Cross disagrees with the determination by the hospital that hospitalization was medically necessary, a solution to that problem must be reached by Blue Cross and the hospital.

The lower court distinguished Sharkus on three factual grounds which we do not believe are controlling. First, the court below stated that “unlike Sharkus, the instant subscription agreement specifically provides that ‘Blue Cross will not provide coverage for medical services that are not medically necessary.’ ” The lower court also said in regard to Sharkus, “a class action was proper because there were no individual questions of medical necessity present. It was the practice of reaching the decisions themselves which was attacked. In the case at bar, benefits are being denied pursuant to the express terms of the agreement. If Blue Cross breached the agreement, it must have been when it incorrectly determined that a period of hospitalization was not medically necessary.” This conclusion is erroneous on two grounds. First, it does not take into account all of the theories of recovery plaintiff alleges, e.g., this conclusion is irrelevant to plaintiffs unconscionability argument. Second, the correctness of Blue Cross’ determination of medical necessity is not at issue here, instead it is the procedure underlying the, denial of benefits. As aptly stated by the court below in regard to Sharkus, and which in .our opinion likewise may be applied to the case at bar, “class certification was appropriate because there was only an ultra vires policy that was being challenged, and not an individual, factualized determination.”

The lower court is correct in its recitation of the subscription agreement provision in the instant case. However, it is incorrect in asserting that this provision is unlike Sharkus. Plaintiff Riloff in Sharkus was initially denied coverage on the basis of her subscription agreement which provided, inter alia, that:

Benefits shall not be provided under this Agreement for:
f. In patient hospitalization ... when ... the nature of the procedure does not necessitate that the Subscriber be hospitalized as an in-patient; (emphasis added)

It is clear from reading Sharkus that Riloff’s physician at the treating hospital recommended that in-patient hospitalization was medically necessary. Therefore, although the language was not as succinct as in the case at bar, the contract provision cited above was relied upon by Blue Cross in denying coverage to Riloff when it determined that hospitalization was not medically necessary. That is, Blue Cross’ decision to deny benefits to Riloff was predicated on its power to deny benefits as stated in subsection f. Therefore, we hold that although the contract language in Shar-kus and the instant case is not identical, there is a express provision in both whereby Blue Cross may unilaterally and retrospectively deny benefits to the subscriber. Whether it is reasonable that the subscriber would read the medical necessity clause as meaning that Blue Cross could deny benefits months after the subscriber’s discharge is a valid question affecting the plaintiffs in both Sharkus and the case at bar.

Second, the court below places undue weight on the perceived fact that “Sharkus involved an action where both defendant hospitals’ utilization committee and Blue Cross determined that the plaintiffs’ hospitalizations were not medically necessary. Therefore, medical necessity was not an unresolved issue of fact. In the instant case, there is a dispute as to medical necessity for hospitalization.”

Our reading of Sharkus does not support the lower court’s interpretation of Sharkus. Sharkus does not say that the hospital utilization review committee and the Blue Cross utilization review committee agreed that plaintiff’s hospitalization was medically unnecessary. It is unclear whether that fact existed in the Sharkus case as to all or some patients. It is not apparent that the Sharkus court placed much, if any, weight on this fact. It is clear from reading Sharkus that the Blue Cross approved treating physicians at the defendant hospitals felt that plaintiffs’ hospitalizations were medically necessary. There is no mention in the Sharkus opinion of a specific hospital utilization review committee or what action it took in relation to plaintiffs Sharkus and Riloff. In any case, the fact remains, regardless of any determination made by the hospital review committee, that in Sharkus and in the instant case, plaintiffs were told by their Blue Cross approved treating physicians that hospitalization was medically necessary and that were denied al at some point after discharge all plaintiffs or part of the benefits because Blue Cross determined thát their hospitalizations had been medically unnecessary. ; ‘

In addition, a factual determination; of medical necessity regarding the plaintiffs in either case is not required or relevant to dispose of the certification issue, nor is it sought by plaintiffs. Plaintiffs simply seek a determination of the legality of Blue Cross’ actions. It is the procedural practice in denying the benefits which is at issue in both Sharkus and the case at bar, not a patient by patient determination that the denial, on the medical merits of each patient’s case, was improper, i We believe, contrary to the court below, that the issue ¡herein is whether the procedure by which a subscriber’s hospital bills are either covered or denied by Blue Cross is impermissible, not whether the decision by the treating doctor, the provider hospital or Blue Cross was medically correct.

Third, the lower court states that all of the plaintiffs in Sharkus were directly responsible for costs not paid by Blue Cross. This was because the defendant hospitals in Sharkus did not participate in a waiver of liability program. In contrast, all defendant hospitals in the instant case, at the time the lawsuit was filed, had at some time instituted waiver of liability programs. We do not see why this factual distinction requires us to ignore Sharkus. Obviously, as the lower court observed, “[t]hose plaintiffs who were treated prior to their hospital entering the program remain liable for the expenses not covered by Blue Cross, but those plaintiffs who were hospitalized subsequent to the institution of the program are absolved of liability.” The lower court observation leads to the conclusion that those patients not sought out by the treating hospital for payment after being denied coverage by Blue Cross will not be included in the plaintiff class. In other words, only those patients who: 1) were treated at a defendant hospital at a time when that hospital did not participate in the waiver of liability program, 2) were later denied Blue Cross benefits; and, 3) were billed by the treating hospital, shall be included in the plaintiff class.

To reiterate, we believe that the following factual parallels in Sharkus and the instant case mandate a finding of commonality and typicality. In both cases, plaintiffs were treated at a defendant hospital, which hospital had a subscription agreement with Blue Cross. In both cases, plaintiffs were informed by their treating physician approved by Blue Cross that hospitalization was necessary. In both cases, plaintiffs, upon their physicians’ advice, received in-patient hospitalization and services. In both cases, plaintiffs were denied coverage or partial coverage by Blue Cross for their in-patient hospital care on the basis that such hospitalization had been medically unnecessary pursuant to Blue Cross’ determination. In both cases, the determination of medical necessity adverse to the subscriber was made despite the recommendation to the contrary by the treating physician, Blue Cross approved doctor, and after the subscriber had been discharged from the hospital. And, in both cases, after Blue Cross denied coverage, the hospitals demanded payment from the subscribers.

In addition, we believe that the lower court’s reasons for departing from Sharkus are not persuasive. Contrary to the lower court’s conclusion, we find that Sharkus is controlling in our disposition of the case at bar. In reaching this holding, we expressly highlight our observation that individual determinations of medical necessity are not needed in Sharkus or at the case at bar in order to prove a prima facie case of liability, and that the plaintiffs herein present common issues of law and fact regarding the propriety of retrospective denial of benefits by Blue Cross.

We also note that the court below apparently did not exercise the discretion it has under Pa.R.C.P. 1710(c)(2) which provides:

(c) When appropriate, in certifying, refusing to certify or revoking a certification of a class action the court may order that
(2) a class be divided into subclasses and each subclass treated as a class for purposes of certifying, refusing to certify or revoking a certification and that the provisions of these rules be applied accordingly.

Since we are remanding to the court below, the court should state in its opinion whether it considered dividing the class into subclasses, and if it divides into subclasses specific findings should be made under Pa.R.C.P. 1702(1)(2) and (3).

C. TYPICALITY

Appellant must show that her “claims or defenses ... are typical of the claims or defenses of the class.” Pa.R. Civ.P. 1702(3). The typicality requirement is closely akin to the requirements of commonality and the adequacy of representation. Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra 291 Pa.Superior Ct. at 40, 435 A.2d at 212. Its purpose is to determine whether the class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members. Id.; Peil v. National Semiconductor Corp., [105 F.R.D. 463] supra. Accord, Luitweiler v. Northchester Corp., supra 456 Pa. [530] at 534, 319 A.2d [899] at 902 (must appear that relief sought beneficial to all class members); Penn Galvanizing Co. v. Philadelphia, supra 388 Pa. [370] at 378, 130 A.2d [511] at 515 (footnote omitted).

Janicik 305 Pa.Super at 134, 451 A.2d at 457-58.

The court below found that the requirement of typicality as defined above was lacking in the instant case.

The lower court opinion states that “the complaint seeks recovery for all those persons during a six year period who were retrospectively denied benefits by Blue Cross. However, the complaint fails to differentiate among plaintiffs.” The court predicates this statement on the fact that the treating hospitals entered waiver of liability programs at different times during the defined six year period. The legal consequence of the lower court’s statement is simply that a person treated during the six year period but after the treating hospital had adopted the waiver of liability program would not be included in the plaintiff class. This is because pursuant to the waiver of liability program, the hospital would, after denial of benefits by Blue Cross, be precluded from seeking payment directly from the patient. In addition, payment would not have been sought from a patient whose charges the hospital wrote off as either insignificant in amount or as a bad debt. Since we believe that plaintiff, D’Amelio, is typical in that he represents those patients who were retrospectively denied benefits and were later requested by the hospital to pay their hospital bills, which by definition does not include those patients treated by a hospital while the hospital was active in the waiver of liability program, or where the hospital never sought payment from the patient, we find this distinction unpersuasive. These patients obviously suffered no harm and, therefore, are by devinition of the various causes of action, not plaintiffs included in the class.

D’Amelio's claim is typical of the class as a whole. His “claim arises from the same practice or course of conduct” on the part of Blue Cross and defendant hospitals that give rise to the potential claims of every other member of his class, namely, that each was treated by a defendant hospital later denied benefits by Blue Cross, and approached by the hospital for direct payment. Ablin, Inc. v. Bell Tel. Co. of Pa., 291 Pa.Super. 40, 50, 435 A.2d 208, 213 (1981). The question of law or fact common to the class is the allegedly unfair retrospective denial of Blue Cross benefits on medical necessity grounds, thus causing the patient to be liable to the treating hospital. Viewing D’Amelio as class representative, his claim is identical to every other plaintiff in the class. We believe that the lower court abused its discretion in not so finding.

In addition, the court below places much weight on a perceived necessity for an individual determination of medical necessity for each patient in determining that plaintiffs claim is not typical. For the reasons discussed earlier in this opinion, we believe that the issue in this case closely parallels that in Sharkus and that no individual determination of medical necessity is at issue in the instant certification action, nor will it be required to be made to dispose of the case on its merits.

D. ADEQUACY OF REPRESENTATION

The lower court addressed this requirement briefly in a footnote by stating that “the adequacy of representation requirement is closely akin to the requirements of commonality and typicality. Therefore, our discussion of those requirements is applicable to the adequacy of representation requirement.” We agree that the commonality, typicality, and adequacy of representation requirements are closely related. However, in determining whether the adequacy of representation requirement is satisfied, Rule 1709 sets forth criteria to be considered in conjunction with this requirement only. Pa.R.C.P. 1709 provides:

Criteria for Certification. Determination of Fair and Adequate Representation
In determining whether the representative parties will fairly and adequately assert and protect the interests of the class, the court shall consider among other matters
(1) whether the attorney for the representative parties will adequately represent the interests of the class,
(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
(3) whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.

We believe that the three criteria set forth in 1709 require the lower court to consider evidence and find facts distinct from those necessary in its determination regarding the requisites of commonality and typicality. We do not believe that the court’s statement of the law set forth in footnote two is erroneous; however, since these are additional considerations set forth in 1709 specific and unique to the determination of adequacy of representation which are not addressed in the lower court opinion, we are uneasy in addressing this issue on appellate review without the benefit of the lower court’s factual findings and legal; conclusions regarding the criteria in Rule 1709. Therefore, we direct the lower court to make specific findings as to this requisite as well as to requisite (5).

In conclusion, we find that the court below erred in the following findings supporting the denial of class certification:

1. Individual issues of fact and law predominate over common issues of fact and law precluding certification of the proposed plaintiff class; and,
2. The claims of the named plaintiff are atypical of the members of the proposed plaintiff class. Pa.R.C.P. 1702(3).

Accordingly, we reverse. Remand for findings pursuant to Pa.R.C.P. 1702(4) and (5) and Pa.R.C.P. 1702(1)(2) and (3) if appropriate. Jurisdiction relinquished.

      . There are five requirements which must be met for a court to certify a class action. The first, was stipulated to by counsel. The second and third, commonality and typicality, were found to be lacking by the court below. We disagree and, therefore, reverse as to these two requirements. The fourth, adequacy of representation is briefly mentioned in the lower court opinion, however, we find it necessary for the purpose of review to remand this case to the court below for additional findings regarding this requirement. And, finally, the fifth requirement, fair and efficient method of adjudication, was not considered by the court below and shall be disposed of on remand together with the fourth requirement.

      . Blue Cross designed a waiver of liability program in the mid-1970's, which all defendant hospitals joined at different times thereafter, up to 1980. Pursuant to this program, the hospital may not bill the patient for services determined by Blue Cross to have been medically unnecessary. In addition Blue Cross will only pay the hospital one half of one percent of the total days of care provided the subscriber, where the care is deemed medically unnecessary by Blue Cross. All expenses over and above one and one half percent are thus borne by the provider hospital. The goal of this program is to provide an incentive to the hospital to perform efficient utilization review.

      . At all relevant times, there existed a contract provision between Blue Cross and each defendant hospital whereby Blue Cross agreed to pay directly to the hospital the sum of money on behalf of its insured for hospital care and services rendered at such a hospital upon the recommendation of a physician who was either a member of the medical staff or who were otherwise acceptable to the hospital.

      . There is no issue regarding indispensable parties in the instant appeal.

      . The institution of the waiver of liability program is directly responsive to appellant’s second concern.

      . Although the lower court found, in its supplemental opinion filed after consideration of appellants’ Petition for Reconsideration, that the contract language (as excerpted infra ) was medical necessity language, it distinguished the two cases. The lower court said, "[hjowever, the language was limited to the situation in which Blue Cross agreed to pay the provider hospitals when the services were rendered upon the recommendation of a physician. Nowhere in the relevant contracts themselves did Blue Cross reserve itself the unilateral right to retrospectively review the question of 'medical necessity’ of hospitalization.” We believe that the lower court’s distinction is fallible. Although Blue Cross did not expressly reserve to itself the unilateral right to retrospectively review "medical necessity”, it is unfathomable that the medical necessity clause, in the context of the contract, be read or interpreted any other way. Clearly, Blue Cross, in its contract clause regarding medical necessity is not providing for the determination to be made by the patient, doctor, or hospital, nor does it provide for a join decision to be made by Blue Cross and any other party. In fact, it is clear in Sharkus that plaintiffs’ Blue Cross’ approved physicians recommended that plaintiffs be hospitalized on the basis of medical necessity.

      . We believe that the subscription agreement exemption clauses at issue, although not identical, would cause similar expectations in the subscribers to arise.

      . See opinion of the court at 10 n. 2.

      . The criterion of fair and efficient method of adjudication pursuant to Rule 1702(5) was expressly not addressed by the lower court. See op. at 10 n. 2.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    500 A.2d 1148
    Ancilla GAINER v. William JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1985.
    Filed Oct. 11, 1985.
    Reargument Denied Dee. 5, 1985.

      Allen L. Feingold, Philadelphia, for appellant.
    Robert Taylor, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which adjudged paternity and awarded appellee, the mother, child support in the amount of twenty-five dollars ($25.00) per week plus ten dollars ($10.00) in arrearages. We affirm.

The facts are as follows:

On May 2, 1983, the instant case was listed, and the trial court ordered blood tests to be conducted.

On February 29, 1984, the case was listed again; however, the trial court concluded that the case was listed in error because no complaint for support had been filed.

A complaint for support was filed eventually on March 14, 1984 on behalf of appellee, Ancilla Gainer, and against the putative father, appellant, William Jones. A hearing was held at which time appellant was adjudged to be the father of the minor child, Stacey, who was born on October 29, 1982. A “PETITION FOR RECONSIDERATION” was filed, and this appeal followed.

Appellant raises the following issues: (1) whether the trial court abused its discretion in admitting into evidence the results of an HLA blood test because (a) no expert testimony was presented to interpret the findings; (b) the appellant was denied the opportunity to cross-examine the expert examiner; (c) no foundation was laid for the admission of the expert report; and (d) the trial court was without” jurisdiction to order the blood tests.

Appellant also argues that the trial court’s order adjudging paternity and awarding support was in error because it contained serious procedural defects which denied appellant due process of law.

At the outset, we must resolve the question of jurisdiction. According to appellant, the trial court “never had subject matter jurisdiction or the jurisdiction to order the parties to submit to said blood studies.” Appellant’s Brief at 12. Appellant’s contention is based on the fact that no complaint in support had been filed on May 2, 1983, when the trial court ordered the blood tests. This procedural irregularity, however, is not fatal in the instant case.

The jurisdiction of the Courts of Common Pleas of this Commonwealth has been set forth in the following manner:

Article 5, § 5 of the Pennsylvania Constitution provides that the court of common pleas shall have “unlimited original jurisdiction in all cases except as may otherwise be provided by law.” The constitutional provision was implemented by the General Assembly of Pennsylvania when § 931 of the “Judicial Code” was enacted. 42 Pa.C.S.A. § 931. The legislature provided that the courts of common pleas of the Commonwealth “shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.” [emphasis supplied.] The jurisdiction of the common pleas courts established therein is exclusive.

Martino v. Transport Workers Union, Etc., 301 Pa.Super. 161, 174, 447 A.2d 292, 299 (1982).

Additionally, our Court has said:

The test to be applied in deciding whether subject matter jurisdiction exists was also set forth in Witney v. Lebanon City, 369 Pa. [308] at 312, 85 A.2d 106, where Justice Stern said:
“We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged, — whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case____”

Id., 301 Pa.Superior Ct. at 171, 447 A.2d at 297 (Emphasis in original).

In this case, courts of common pleas have the authority to govern proceedings determining paternity and to order the parties to submit to blood tests as follows:

§ 6133. Authority for test
In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party or enforce its order if the rights of others and the interests of justice so require. 42 Pa.C.S.A. § 6133; See also 42 Pa.C.S.A. § 6132(a) (“Civil matters. This subchapter shall apply to all civil matters.)

We also are mindful of the following provision which states:

Every court shall have power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction and for the enforcement of any order which it may make and all legal and equitable powers required for or incidental to the exercise of its jurisdiction, and, except as otherwise prescribed by general rules, every court shall have power to make such rules and orders of court as the interest of justice or the business of the court may require.

42 Pa.C.S.A. § 323.

Thus, courts of common pleas of this jurisdiction have subject matter jurisdiction to consider and decide claims of the general category to which appellee’s claim belongs, “unless a specific provision of the law can be demonstrated to have deprived the courts of such jurisdiction.” Martino v. Transport Workers Union, Etc., supra, 301 Pa.Superior Ct. at 174-76, 447 A.2d at 299.

Appellant has failed to cite a statute in support of his contention, and our research has failed to disclose one. The trial court had the authority to decide the general claim of paternity, and the fact that a formal complaint in support was not filed until later fails to show that the court was without jurisdiction to entertain the matter, particularly when the procedural defect was cured.

Appellant raises a number of other issues. However, the resolution of those issues depend upon whether appellant has preserved them for appellate review by the timely filing of post-trial motions. Pa.R.C.P. 227(b)(1)(2) and (c). In the instant case, a decision was made by the trial court on September 4, 1984 after a hearing. Appellant’s “PETITION FOR RECONSIDERATION” was filed on September 24, 1984. Even if we give credit to appellant’s argument that, because the support hearing immediately followed the paternity hearing, he was unable to file post-trial motions at that time, appellant could have filed and did file post-trial motions after September 4, 1984, which was the date of the court’s decision. In fact, the record shows that the trial court requested the attorneys for both parties to “take five minutes together in the counsel room outside the courtroom and try to work out something in this case before we proceed” on the support matter. N.T. 9/4/84 at 19. Thus, appellant did have an opportunity to file post-trial motions. See Pa.R.C.P. 1910.5 commentary. (“In certain cases, where the parties are in court when paternity is adjudicated and the evidence is ready, a hearing may be immediately held and a final support order entered.”) However, because appellant’s motion for post-trial relief was filed more than ten (10) days after the decision was made, appellant’s claims have not been preserved for review.

Order is affirmed.

      . Although the rules provide that the action in support should be commenced by the filing of a complaint, see Pa.R.C.P. 1910.4, it appears that the trial court was under the false impression that a complaint had been filed. However, because the paternity issue had to be decided before a support determination could be made, the trial court did not abuse its discretion in allowing the appellee to proceed once the support complaint was filed. See Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1026 (1984) (“'hypertechnicality and formalism in pleading [are] contrary to the modern practice of allowing free amendment in order to promote resolution of cases on their merits.’")

      . The pertinent rules of civil procedure provide for the following: Rule 1910.15. Paternity
      (a) If the action seeks support for a child born out of wedlock and the reputed father is named as defendant, the defendant may acknowledge paternity in a verified writing substantially in the form provided by Rule 1910.28(a). In that event the action shall proceed as in other actions for support.
      (b) If the reputed father does not execute an acknowledgement of paternity, the domestic relations officer shall terminate the conference. He shall advise the parties that there will be a trial without, jury on the issue of paternity unless within ten days after the conference either party demands a trial by jury as provided by Rule 1910.28(b).

        Note: See Section 6131 of the Judicial Code, 42 Pa.C.S. § 6131 et seq., for the Uniform Act on Blood Tests to Determine Paternity
      (c) Post-trial proceedings shall be governed by Rules 227.1 to 227.4 inclusive and shall be limited to the issue of paternity.
      (d) (1) If the verdict or decision is for the defendant on the issue of paternity, unless a post-trial motion is filed and sustained, a final order shall be entered, on praecipe or by the court, dismissing the action as to the child; or
      (2) If the verdict or decision is against the defendant on the issue of paternity, unless a post-trial motion is filed and sustained, an interlocutory order shall be entered, on praecipe or by the court, finding paternity.
      (e) After an interlocutory order is entered finding that the defendant is the father of the child, the court shall either refer the case to a conference as in other actions for support or as expeditiously as possible hold a hearing on the issue of the amount of support and shall enter a final order of support.
      (f) The interlocutory order of paternity is not an appealable order but any issue of paternity raised in a post-trial motion may be included in an appeal from a final order of support.


author: PER CURIAM:

text:
    500 A.2d 1151
    ALLSTATE INSURANCE COMPANY, Appellant, v. Pamela G. WILLIAMS, Cynthia Nairn and Mary Zotis on Behalf of Themselves and Other Members of a Class Similarly Situated, Appellees.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed Nov. 15, 1985.

      John A. Crittenden, Pittsburgh, for appellant.
    Richard C. Schomaker, Pittsburgh, for appellees.
   PER CURIAM:

The sole issue presented by this appeal is whether appel-lees, possessing valid automobile insurance policies issued pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act [“No-fault Act”], may recover, as accident related expenses, for services in the nature of physical therapy provided by doctors of chiropractic.

On November 22, 1983, appellees filed a complaint in class action for declaratory judgment and equitable relief in the Court of Common Pleas of Allegheny County. By an order dated February 24, 1984, the court below sustained four of appellant’s preliminary objections and directed ap-pellees to file an amended complaint setting forth more specifically their claim with regard to physically therapeutic services.

On March 23, 1984, appellees filed an amended class action complaint in assumpsit and for declaratory judgment. At paragraph three of this complaint, appellees asserted the following:

3. The plaintiffs [appellees] bring this action on behalf of themselves and as representatives of a class of the defendant’s insureds to recover money due them, wherein defendant, pursuant to its standard no-fault insurance policy, has failed to pay certain medical expense claims, or, more specifically, those bills pertaining to therapy or treatments in the nature of physical therapy from doctors of chiropractic.
‘Therapy’ or ‘treatment(s) in the nature of physical therapy’ from doctors of chiropractic for purposes of this complaint shall mean and include hotpack applications, coldpack applications, massage, mechanical stimulation, electrical stimulation, traction, theraputic [sic] devices, ultrasound and/or other modalities of treatment encompassed within the definition of physical therapy as set forth in the Physical Therapy Practice Act of 63 Pa.Stat. Ann. § 1302, provided in association with other chiropractic care, under the supervision/direction of a licensed chiropractor (as opposed to a licensed physical therapist) and in connection with care of a spinal injury.

On April 13, 1984, appellant filed a preliminary objection in the nature of a demurrer to appellees’ amended complaint.

Following discovery, the taking of depositions, the filing of extensive briefs, a hearing, and the agreement of counsel to a limited stipulation, the court below dismissed appellant’s preliminary objection on June 12, 1984. Thereafter, in response to a motion by appellant, the court below amended its June 12, 1984 order to include a paragraph certifying its interlocutory ruling for immediate appeal and staying any further proceedings below pending appeal. On September 26, 1984, this court granted appellant’s petition for permission to appeal an interlocutory order.

Initially, we note that, in attempting to ascertain and implement the pertinent legislative intent behind the No-Fault Act in close cases, courts must err, if at all, in favor of extending coverage to insureds. See Steppling v. Penn sylvania Manufacturers’ Association Insurance Company, 328 Pa.Super. 419, 477 A.2d 515 (1984); Bills v. Nationwide Mutual Insurance Company, 317 Pa.Super. 188, 463 A.2d 1148 (1983). Furthermore, one of the legislature’s avowed purposes in enacting the No-fault Act was to establish “a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims ... ”. 40 P.S. § 1009.102(b).

“Loss”, for the purpose of calculating an insured’s recovery pursuant to the No-fault Act, was defined as “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.” 40 P.S. § 1009.103 (emphasis supplied). Section 103 defined “allowable expense” in pertinent part as:

reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for: (A) professional medical treatment and care;
(C) medical and vocational rehabilitation services;

In addition, by way of further definitional clarity, section 103 defined “medical and vocational rehabilitation services” as:

services necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services. A basic loss obligor is not obligated to provide basic loss benefits for allowable expense for medical and vocational rehabilitation services unless the facility in which or through which such services are provided has been accredited by the Department of Health, the equivalent governmental agency responsible for health programs, or the accrediting designee of such department or agency of the state in which such services are provided, as being in accordance with applicable requirements and regulations.

In Miller v. Johnson, 496 Pa. 290, 436 A.2d 1187 (1981), our supreme court observed:

There can be no serious question that chiropractic expenses can be recovered under the ‘allowable expenses’ component of ‘basic loss benefits’ under the No-Fault Act. Section 103 provides that ‘allowable expenses’ include ‘medical and vocational rehabilitation services,’ defined as ‘services necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim.’ Section 103 further provides that these services ‘may include, but are not limited to ... ’ the following:
‘medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services.’

Id., 496 Pa. at 294-95, 436 A.2d at 1189 (emphasis supplied).

Accepting that an insured may recover necessary chiropractic expenses as “allowable expenses” pursuant to the No-fault Act, the issue before us becomes whether doctors of chiropractic may indeed provide services in the nature of physical therapy, recoverable as chiropractic expenses.

As set forth in the Chiropractic Registration Act [Chiropractic Act] at section 602(b), “chiropractic” is described as:

a limited science of the healing arts dealing with the relationship between the articulations of the vertebral column, as well as other articulations, and the nervous system and the role of these relationships in the restoration and maintenance of health. It shall include chiropractic diagnosis; a system of locating misaligned or displaced vertebrae of the human spine, and other articulations; the examination preparatory to the adjustment of such misaligned or displaced vertebrae, and other articulations; the furnishing of necessary patient care for the restoration and maintenance of health and the use of scientific instruments of analysis, as taught in the approved schools and colleges of chiropractic, without the use of either drugs or surgery. The term ‘chiropractic’ shall not include the practice of obstetrics or reduction of fractures or major dislocations.

(emphasis supplied). In dismissing appellant’s preliminary objection and therefore finding that chiropractors may perform physical therapy, the court below relied upon this rather broad definition of “chiropractic”, encompassing “the furnishing of necessary patient care for the restoration and maintenance of health ... ”.

Both appellant and amicus curiae, the Pennsylvania Physical Therapy Association, in their briefs to this court, direct our attention to Commonwealth, Department of State v. Schatzberg, 29 Pa.Commw. 426, 371 A.2d 544 (1977).

In Schatzberg, our commonwealth court upheld regulations forbidding licensed chiropractors from performing acupuncture. Interpreting section 602(b)’s definition of “chiropractic”, the court found that acupuncture was a procedure beyond the professional bounds of those licensed in chiropractic. The court specifically noted, “Nothing in this record indicates that acupuncture is, or is intended as, a treatment of misaligned or. dislocated vertebrae or articulations.” Id. at 431, 371 A.2d at 546-47. As alleged in appellees’ amended complaint, the procedures at issue in the case sub judice, collectively labeled “physical therapy”, were provided “in connection with [the] care of ... spinal injurpes].” We therefore find Schatzberg to be factually inapposite to this case.

Nevertheless, appellant and amicus curiae rely on the following language in Schatzberg.

While the appellant only hints that he may depend on the phrase ‘the furnishing of necessary patient care for the restoration and maintenance of health’ as support for the chiropractor’s engaging in treatment not relating to articulations, we think it appropriate to note that the quoted phrase does not authorize chiropractors to engage in the general practice of the healing art, which is permitted only those licensed under The Medical Practice Act of 1973, section 17(a)(4), 63 P.S. § 421.17(a)(4), of which specifically excludes chiropractic from its application.

Id. at 431-32, 371 A.2d at 547 (footnotes omitted). They contend that, since section 602(b)’s definition of “chiropractic” may not be read so expansively as to encompass practices uniquely within the professional sphere of physicians licensed to practice medicine and surgery, section 602(b)’s definition similarly should not be read to subsume the practice of licensees under the Physical Therapy Practice Act [Physical Therapy Act].

In responding to this argument, we find two considerations to be of particular significance. First, there are both qualitative and quantitative differences between the training and licensing requirements of physical therapists, chiropractors, and physicians. Clearly, the court’s concern in Schatzberg was with protecting the public from those members of the chiropractic profession who offer and perform general acupuncture for which they are unlicensed and which may only be offered or performed by physicians due to their more extensive training and testing. See also Commonwealth, Department of Transportation Hearing Board v. Pennsylvania Chiropractic Society, 22 Pa. Commw. 483, 349 A.2d 509 (1976). An attempt to extrapolate from this rationale a general prohibition against the performance of physically therapeutic techniques by licensed chiropractors is, in our view, tenuous. Second, a holding in favor of appellees herein does not mandate the subsumption of the practice of physical therapy into the practice of chiropractic in that chiropractic remains a limited science dealing with the treatment of misaligned or dislocated vertebrae or articulations and the related treatment of the nervous system. See Schatzberg, supra.

The Physical Therapy Act defines “physical therapy” as: the evaluation and treatment of any person by the utilization of the effective properties of physical measures such as mechanical stimulation, heat, cold, light, air, water, electricity, sound, massage, mobilization and the use of therapeutic exercises and rehabilitative procedures including training in functional activities, with or without assis-tive devices, for the purpose of limiting or preventing disability and alleviating or correcting any physical or mental conditions, and the performance of tests and measurements as an aid in diagnosis or evaluation of function.

63 P.S. § 1302. The Act further provides, “Nothing in this act, however, shall prohibit any person trained and licensed or certified to practice or to act within the scope of his certification in this State under any other law, from engaging in the licensed or certified practice for which he is trained.” Id. § 1304(a). We view this provision as anticipating that certain modalities of physical therapy are necessarily employed in the proper performance of other health related practices, i.e., medicine and chiropractic.

Section 1304(b.l) of the Physical Therapy Act states: It shall be a violation of this act for any person or business entity to utilize in connection with a business name or activity the words ‘physical therapy,’ ‘physical therapist,’ ‘physiotherapy,’ ‘physiotherapist’ or similar words and their related abbreviations which imply directly or indirectly that physical therapy services are being provided, including the billing of physical therapy services, unless such services are provided by a licensed physical therapist in accordance with this act. Provided, however, That nothing in this section shall limit a physician ’s authority to practice medicine or to bill for such practice nor limit a chiropractor’s authority to practice chiropractic or to bill for such practice.

(emphasis supplied). After quoting these provisions, appellant states, in its brief, “Clearly the Pennsylvania Legislature did not perceive a great deal of overlap between physical therapy and chiropractic; rather it viewed them as two separate disciplines.” Appellant’s brief at 32. Quite to the contrary however, we view the legislature’s inclusion of the specific proviso in section 1304(b.l) as designed to relax any perceived restriction on physicians’ and chiropractors’ utilization of necessary physically therapeutic treatments.

We find that a plain reading of the Chiropractic Act in conjunction with the Physical Therapy Act is conclusive as to the issue before us. In treating misaligned or dislocated vertebrae or articulations and related conditions of the nervous system, licensed chiropractors are clearly authorized to utilize, as necessary patient care, modalities of treatment properly defined as “physical therapy”. .Accordingly, we hold that the physical therapy provided to appellees in connection with their spinal injuries constitutes an allowable chiropractic expense recoverable pursuant to the No-fault Act.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, arts. I-VII, §§ 101-701, 40 P.S. §§ 1009.101-701 (repealed).

      . Act of August 10, 1951, P.L. 1182, §§ 1 et seq., as amended, 63 P.S. §§ 601 et seq.

      . Act of October 10, 1975, P.L. 383, §§ 1 et seq., as amended, 63 P.S. §§ 1301 et seq.

      . As aforementioned, appellees admit in their amended complaint that the services provided by their chiropractors, for which recovery is sought, fall within this definition of “physical therapy”.


author: HOFFMAN, Judge:

text:
    500 A.2d 1155
    LOOS & DILWORTH v. QUAKER STATE OIL REFINING CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1985.
    Filed Nov. 15, 1985.

      John J. Hart, Doylestown, for appellant.
    James D. Coleman, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order granting appellee a new trial. While we agree that a new trial is warranted because of an erroneous jury charge and, accordingly, affirm the court’s order, upon retrial the jury should be charged in accordance with this opinion.

In October, 1980, appellee, Loos & Dilworth, Inc., brought this action in assumpsit against appellant, Quaker State Oil Refining Corporation, seeking damages for appellant’s alleged wrongful termination of a written distributor agreement between them. Appellee alleged that appellant failed to “act in good faith and in a commercially reasonable manner as required by law.... ” (Appellee’s Complaint ¶ 14 at 4). A jury trial was held in the Court of Common Pleas of Bucks County on December 12-19, 1983. Prior to its deliberations, the presiding judge submitted to the jury the following special interrogatories:

1. Do you find that the relationship between [appellee] and [appellant] was one of franchisee-franchisor?
YES_ NO_
(If the answer to Question No. 1 is “NO”, then you should find for [appellant], and you need not proceed to Questions No. 2 and No. 3.)
2. (Answer this question only if the answer to Question No. 1 is “YES”.)
Do you find that [appellant’s] termination of its relationship with [appellee] was arbitrary, in bad faith, and not commercially reasonable?
YES_ NO_
(If the answer to Question No. 2 is “NO”, then you should find for [appellant] and you need not proceed to Question No. 3.)
3. (Answer this question only if the answers to Questions No. 1 and 2 are “YES”.)
What is the total amount of damages suffered by [appellee] as a result of the termination of its relationship with [appellant]?

$-

The jury answered “yes” to question one and “no” to question two, thus finding for appellant. See N.T., Verdict, December 19, 1983 at 2. Appellee thereupon moved for a new trial, arguing that the court’s charge to the jury, i.e., that it must find that appellant’s termination was “arbitrary, in bad faith, and not commercially reasonable” (emphasis added), was incorrect. Appellee contended that the word “or” should have been used instead of the word “and” in the charge. By order and opinion dated May 8, 1984, the court agreed and granted appellee a new trial, basing its action on our Supreme Court’s decision in Atlantic Rich-field Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978). See Loos and Dilworth, Inc. v. Quaker State Oil Refining Corp., 44 Bucks County L.Rep. 7, 9 (Ct.C.P.1984). This appeal followed.

It is well-established that the decision to either grant or deny a motion for a new trial is within the sound discretion of the trial court, and its decision will not be reversed on appeal absent a palpable abuse of discretion or clear error of law. Tyus v. Resta, 328 Pa.Superior Ct. 11, 16, 476 A.2d 427, 430 (1984). Pennsylvania appellate courts rarely reverse a trial court’s decision on a motion for a new trial. 16 Standard Pa.Practice 2d § 91:87 at 522 (1983). With those principles in mind, we turn to appellant’s contentions.

I

Appellant first contends that appellee’s objection to the lower court’s instruction was waived because appellee failed to take a specific exception to the charge. The cases appellant cites, however, see Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Crosbie v. Westinghouse Elevator Co., 297 Pa.Superior Ct. 304, 443 A.2d 849 (1982); Capan v. Divine Providence Hospital, 270 Pa.Superior Ct. 127, 410 A.2d 1282 (1979), are inapposite; those cases concern preserving issues for appeal. We believe appellant’s assertion is that, because appellee failed to object specifically to the court’s charge, the court could not thereupon grant appellee a new trial based on the alleged error. This contention is meritless.

Pennsylvania Rule of Civil Procedure 227.1 provides, in pertinent part, that

% :■! # •]« :}:
(b) [p]ost-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised ... by ... point for charge, ...; and
(2) are specified in the [post-trial] motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

Pa.R.Civ.P. 227.1(b). Rule 227.1(b) mandates two requirements, then, which must be met before post-trial relief can be granted. See id. comment. Here, while appellee took no specific objection, it did submit a point for charge requesting the court to charge the jury that it must find that appellant’s decision not to renew the 1974 agreement was “arbitrary, in bad faith or not commercially reasonable.” (Appellee’s Requested Points for Charge No. 1.b at 1) (emphasis added). The court below refused the point, taking out the word “or” and replacing it with the word “and.” (N.T., Points for Charge, December 19, 1983 at 2). Following the jury’s verdict, appellee then moved for a new trial, arguing, inter alia, that the court’s correction was incorrect and that its requested point was proper and should have been given. Thus, appellee satisfied both Pa.R.Civ.P. 227.1(b) requirements, and therefore the trial judge was properly able to grant appellee’s requested relief.

II

Appellant next contends that the court’s instruction to the jury regarding appellee’s “burden of proof” (i.e., special interrogatory number two) was not erroneous or prejudicial to appellee. We disagree. In granting a new trial, the lower court correctly concluded that the charge was in error. We disagree, however, with the court’s reading of Atlantic Richfield Co. v. Razumic, supra. In Razumic, our Supreme Court held that, even though the franchise agreement in issue provided for a three-year term of occupancy, “[consistent with [a franchisee’s] reasonable expectations, principles of good faith and commercial reasonableness, [a franchisor] may not arbitrarily recover possession of [a] service station and thereby summarily terminate the franchise relationship.” Id., 480 Pa. at 381, 390 A. 2d at 743. The lower court read Razumic to place three affirmative obligations on the franchisor: (1) to act in good faith, (2) to act in a commercially reasonable fashion, and (3) not to act arbitrarily when terminating a franchise. Ra-zumic ’s progeny make clear, however, that Razumic placed only two obligations on the franchisor: to act (1) in good faith and (2) with commercial reasonableness. See Amoco Oil Co. v. Burns, 496 Pa. 336, 342, 437 A.2d 381, 383 (1981) (“principles of good faith and commercial reasonableness”); Witmer v. Exxon Corp., 495 Pa. 540, 549-50, 434 A.2d 1222, 1227 (1981) (“Razumic standards of good faith and commercial reasonableness”). Thus, a franchisor acts arbitrarily if it acts in bad faith or in a commercially unreasonable fashion.

Appellant argues, however, that appellee was not prejudiced by the court’s instruction because (1) appellee failed to request, in its points for charge, specific definitions of the terms “bad faith,” “commercial unreasonableness,” and “arbitrary;” (2) appellee alleged, in its complaint and closing argument, that appellant acted in bad faith; (3) the court equated bad faith with commercial unreasonableness in its charge; and (4) the terms “bad faith” and “commercial unreasonableness” are not really different and distinct from each other. We believe that these contentions are meritless and find, consequently, that the lower court did not abuse its discretion in granting appellee a new trial.

We address appellant’s specific arguments in turn. First, even if appellee had requested the court to define the above-mentioned terms, the jury would still have had to find that appellant violated all three obligations according to the court’s charge. As we have stated, appellee need only prove that appellant breached one of its obligations, not all three (or two, as we have found that Razumic places two duties on a franchisor). Similar reasoning applies to appellant’s second argument, that appellee cannot be heard to complain about the court’s charge where appellee sought to prove only appellant’s bad faith and now seeks to rely upon another “theory” at a new trial.

Nor do we agree with appellant that the lower court, by instructing the jury that it could compare evidence of appellant’s treatment of other distributors with its treatment of appellee, equated “bad faith” with “commercial unreasonableness.” Appellant relies upon the following portion of the court’s charge:

In order to terminate such a relationship, though it must be done in good faith, or stated conversely, not in bad faith, it must not be done arbitrarily and it must be done in a commercially reasonable manner. If you find that [appellee] has proved by a preponderance of the evidence that it was a franchisee, you must, next, determine if [appellant’s] decision not to renew its agreement with [appellee] was arbitrary, in bad faith, and not commercially reasonable.
In so determining, you may compare [appellant] and [appellee] with other franchisees that [appellant] had. Now, in that regard, I am not going to go over all the evidence that you have had because you have had a great deal of evidence about the relationship between [appellee] as it was working for [appellant] in comparison with other distributors, or franchisees, whichever you determine that were working in the division, in the territory, and even across the country.
And, it is for you to determine just what all those figures mean. You have heard arguments on both sides, and you have, also, received evidence as to other ways and other matters in which [appellant] terminated distributors.

(N.T., Jury Charge, December 19, 1983 at 9). Therefore, appellant argues that appellee “suffered no prejudice, because this instruction was exactly in accordance with its own legal theory contending [that appellant] treated [appel-lee] differently than other distributors thus constituting evidence of bad faith, arbitrariness and commercial unreasonableness.” (Brief for Appellant at 22). The record belies appellant’s contention. Immediately following the above-quoted portion of the charge, the court further instructed the jury that “all of that is presented to you on this question as to whether or not [appellant] acted in bad faith or arbitrarily [sic], bad faith and arbitrarily, and in a commercially unreasonable manner in their termination of [appellee].” (N.T., Jury Charge, December 19, 1983 at 10) (emphasis added). Thus, we do not believe that the lower court equated the above terms with each other. Again, the jury was told that it had to find that all three obligations were breached before appellee could recover. Appellant’s fourth argument, that the terms “bad faith” and “commercial unreasonableness” are not different and distinct from each other and that, because appellee failed to produce any evidence of commercial standards of fair dealing in the trade, it could not recover, is flawed. Appellant defines “good faith” as follows: “In the case of a merchant, good faith means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.” (Brief for Appellant at 23, citing 13 Pa.C.S.A. § 2103(a)) (emphasis added). We reject this definition of “good faith.” In support of its proposition that a franchisor has an “obligation to deal with its franchisees in good faith and in a commercially reasonable manner,” the Razumic Court cited the following:

Restatement (Second) of Contracts, supra at § 231 [Tent. Draft No. 5, 1970] (imposing standard of good faith on contracting parties); Hewitt, “Termination of Dealer Franchises and the Code — Mixing Classified and Coordinated Uncertainty With Conflict,” 22 Bus.Law. 1075, 1086 (1967); cf. Uniform Commercial Code, § 1-102(3) (imposing same standard in commercial transactions involving sale of goods).

Atlantic Richfield Co. v. Razumic, supra, 480 Pa. at 378, 378 n. 7a, 390 A.2d at 742, 742 n. 7a. Section 231, now § 205, reads: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Restatement (Second) of Contracts § 205 (1981). Comment a to § 205, however, cites both Uniform Comercial Code (UCC) definitions of “good faith:” (1) the definition contained in § 2-103(1)(b) [13 Pa.C.S.A. § 2103(a), cited by appellant] and (2) the definition contained in § 1-201(19). The latter definition has been codified in this Commonwealth at 13 Pa.C.S.A. § 1201, which defines' “good faith” as “[h]onesty in fact in the conduct or transaction concerned.” Initially, we note that there is a question of whether the provisions of divisions one (general provisions) and two (sales) of the UCC, see 13 Pa.C.S.A. §§ 1101-2725, are even applicable here. While we are not strictly dealing with a sale of goods, but rather with a franchise agreement which includes the sale of goods, we can “apply[] the stated principles by analogy.” Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 408 N.E.2d 1370, 1375 (1980); see also Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. 807, 809 (E.D.Pa.1981) (relies upon Zapatha to find that “[the UCC] represents a policy statement by the state legislature concerning good faith, as applicable to a franchise agreement as to a conventional article 2 contract for the sale of goods”).

We believe that our Supreme Court’s holding was clear: a franchisor must act both in good faith and in a commercially reasonable manner when terminating a franchise. If the Court meant for these terms to be one and the same, it could have said so. As for the term “good faith,” we hereby adopt that definition contained in 13 Pa.C.S.A. § 1201, namely, “honesty in fact in the conduct or transaction concerned.” To adopt the § 2103(a) definition would lead to an absurdity; a franchisor would have to be honest in fact and observe reasonable commercial standards of fair dealing in the trade to act in good faith and then also act in a commercially reasonable manner. In any event, appellant’s argument is logically flawed. Even if appellee produced no evidence of what was commercially reasonable, appellee could still recover if it proved that appellant did not act in good faith, i.e., that it was dishonest in fact. Therefore, we reject appellant’s four arguments and find that the court’s instruction to the jury was both erroneous and prejudicial to appellee.

Ill

Appellant finally contends that certain provisions of the written distributor agreement compel that a verdict be entered in its favor, arguing that paragraph three renders the Razumic principles inapplicable to the instant case and that paragraph eight precludes appellee’s recovery regardless of whether Razumic applies or not. Appellant therefore requests that we reverse the order of the court below and reinstate the jury’s verdict.

Before reaching the merits of those arguments, however, we must first determine whether appellant properly preserved those issues for review. If either of appellant’s arguments is correct, we could not grant appellant’s request that the jury verdict be reinstated- as that verdict would be rendered unnecessary; we believe appellant is arguing that, for either or both of the above-cited reasons, the lower court should have directed a verdict in its favor. “While ordinarily an appellate court will not reverse the action of a lower court in granting a new trial, it will do so where binding. instructions should have been given as a matter of law for the party in whose favor the verdict was rendered____” Owens v. Peters, 126 Pa.Superior Ct. 501, 507-08, 191 A. 399, 401 (1937) (citations omitted); see also Hill v. Gerheim, 419 Pa. 349, 353, 214 A.2d 240, 243 (1965); Fornelli v. Pennsylvania R.R. Co., 309 Pa. 365, 369, 164 A. 54, 55 (1932); see generally 16 Standard Pa. Practice 2d § 91:87 at 522-23 (1983). Thus, in order to have preserved its two arguments, appellant must have requested binding instructions which the court below then refused.

Appellant’s first argument, that, because the term of the written distributor agreement, i.e., one year, is expressly stated in writing, the Razumic principles are inapplicable here, was contained in a binding instruction requested by appellant: “If you find the Distributor Agreement explicitly permits termination at the end of one year by either party, without cause, then your verdict must be for [appellant] and against [appellee]. Witmer v. Exxon Corp., 495 Pa. 540 [434 A.2d 1222] (1981).” (Appellant’s Request for Binding Instructions and Points for Charge No. 18 at 4). The court below refused to give this instruction. See N.T., Points for Charge, December 19, 1983 at 2-5. Thus, we may reach the merits of this argument and determine whether the lower court erred as a matter of law in refusing this instruction. We find that it did not.

Appellant claims that it acted properly in accordance with its rights under the agreement, namely, that it could cancel “without cause” at the end of the one-year period. However, appellant’s reliance on Razumic, Burns v. Amoco Oil Co., supra, and Witmer v. Exxon Corp., supra is misplaced. In Razumic, our Supreme Court found that

the absence of a ... term authorizing [the franchisor] to terminate the agreement without reason is striking.
The lone provision of the writing which could support [the franchisor’s] termination of the comprehensive franchise agreement is that setting a three year term of occupancy. This provision does not, however, confer upon [the franchisor] the right to terminate the franchise agreement at its pleasure.

Atlantic Richfield Co. v. Razumic, supra, 480 Pa. at 377, 390 A.2d at 741 (footnote omitted) (emphasis added). We fail to see any difference between Razumic and the instant case. The fact that the instant agreement contains a one-year term does not by itself give appellant the right to terminate the franchise at will.

Nor do Burns and Witmer aid appellant’s cause. In Burns, the franchisee’s “lease contained a clear and unambiguous provision permitting termination by either party without cause on proper notice at the end of the original or renewal term.” Amoco Oil Co. v. Burns, supra, 496 Pa. at 342, 437 A.2d at 384. The Court thus concluded “that this provision rendered] the Razumic standard inapplicable.... ” Id. There is no such provision in the instant case. Similarly, in Witmer, the Court found that, even if it were a case of direct or indirect termination, “the leases expressly reserve[d] to each party the right not to renew the lease agreement at the end of the lease term.” Witmer v. Exxon Corp., supra, 495 Pa. at 550, 434 A.2d at 1227. Here, paragraph three of the agreement, which simply states its duration, is not a “without cause” termination provision. Therefore, we find that the lower court properly refused appellant’s proposed eighteenth request for a binding instruction.

Concerning paragraph eight of the distributor agreement, appellant’s proposed binding instruction read as follows: “If you find that [appellee] did not have a franchise relationship with [appellant], then you must find that paragraph 8 of the Distributor Agreement, which prohibits a claim for lost profits or income, prevents [appellee] from recovering damages in this case.” (Appellant’s Request for Binding Instructions and Points for Charge No. 19 at 5) (emphasis added). This instruction was accepted by the lower court. See N.T., Points for Charge, December 19, 1983 at 4. The court then instructed the jury as follows:

Now, in this case, and I’ll give you the instructions on franchise in just a moment, but in this case, if you find that the relationship between [appellee] and [appellant] does not rise to the heighth [sic] of a franchise agreement relationship, as I will explain to you, then, the distributor agreement, then, does apply, and there is a provision in the distributor agreement. It is provision no. 8.
I will even tell you about it just in case you look at it and see it. That provision no. 8 would be effective if you find there is no franchise agreement provision. No. 8 says that [appellee], as the plaintiff, as the distributor, has no rights and has no claim at all against [appellant].
However, under the operation of the law, if you find that the relationship does create the franchise agreement, a franchise relationship between [appellee] and [appellant], then, that provision limiting their liability has no effect, and the provision in here permitting the cancellation or termination of the relationship at the end of one year has no effect.

(N.T., Jury Charge, December 19, 1983 at 5). Because the lower court gave appellant’s proposed binding instruction on paragraph eight, we fail to see what appellant is assigning as error.

Appellant is arguing, for the first time on appeal, that, even if there was a franchise relationship between the parties and that franchise was terminated in bad faith, appellee could still not recover because of paragraph eight. In support of this proposition, appellant relies upon Phillips Machinery Co. v. LeBlond, Inc., 494 F.Supp. 318 (N.D. Okla.1980). It is axiomatic that issues raised for the first time on appeal will not be considered. Pa.R.A.P. 302(a); cf. Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 411 n. 8, 406 A.2d 1102, 1107 n. 8 (1979) (alleged error waived where defendant failed to request a directed verdict at trial). Therefore, because appellant failed to request a binding instruction incorporating this argument, we find this issue waived.

For the foregoing reasons, we affirm the order of the court below and remand this case for a new trial. On retrial, the lower court should instruct the jury that, if it finds that the relationship between the parties was one of franchisor-franchisee, then it must determine whether the termination of such franchise was in bad faith or not commercially reasonable. The court should further instruct the jury that good faith is “honesty in fact in the conduct or transaction concerned.”

Order granting a new trial affirmed and case remanded.

Jurisdiction is relinquished.

      . The parties' relationship was governed by a series of one-year contracts or renewal agreements beginning in 1926. The latest agreement was dated January 17, 1974; it was last renewed, pursuant to a written renewal agreement, on January 17, 1978. By letter dated December 13, 1978, appellant notified appellee that the 1974 distributor agreement would "not be renewed at the expiration date of January 17, 1979." See Exhibit C to Appellee’s Complaint.

      . The cases cited by both parties would be more applicable if, for example, appellee was arguing that appellant had failed to preserve an issue for appeal because appellant had failed to object specifically to the court’s charge at trial.

      . The basis of appellant’s argument appears to be that any error in the court’s instructions was harmless, and, therefore, the lower court need not have granted appellee a new trial. The court below, however, found that “a prejudicial burden was placed on [appellee].” Loos and Dilworth, Inc. v. Quaker State Oil Refining Corp., supra at 9. Thus, to reverse we would have to find that the lower court abused its discretion in finding prejudice to appellee.

      . This definition is found in "Division 2 — Sales” of the Uniform Commercial Code (UCC) as adopted in this Commonwealth.

      . Our Supreme Court’s citation to § 1-102(3) of the UCC evidently refers to § 1-203, codified in this Commonwealth at 13 Pa.C.S.A. § 1203: “Every contract or duty within this title imposes an obligation ■ of good faith in its performance or enforcement.”

      . “[Appellee] purchased products from [appellant] for resale----" (Appellee’s Complaint ¶ 4 at 2).

      . "The term of this agreement shall be for one year from the date hereof, subject to the provisions for cancellation herein contained." (Exhibit A to Appellee’s Complaint ¶ 3 at 1).

      . Unless it is otherwise specially agreed upon in writing by the parties hereto, it is now understood and agreed that upon the termination or cancellation of this agreement, the Buyer shall not make any claim for, or have any right to demand reimbursement or compensation in any amount from the Seller for any moneys expended or liabilities incurred by the Buyer in or for the Selling or sales of QUAKER STATE Oils and other products or the conducting or promoting of the busines of the Buyer therein, or for any profits or other income or moneys in anticipation of the sales of said oils and other products or the business to be done, had this agreement not been terminated or cancelled.

        (Id. ¶ 8 at 3).

      . Appellant also raised the possible preclusionary effect of paragraph eight in its preliminary objections in the nature of a demurrer and in its motion for summary judgment, but appellant did not cite this case in either its brief supporting its preliminary objections or that supporting its motion for summary judgment.
      In Phillips, in finding that a contractual exclusion of consequential damages was not unconscionable, the District Court for the Northern District of Oklahoma held that "[e]ven if defendant terminated the contract in bad faith, plaintiff cannot recover lost profits as damages.” Phillips Machinery Co. v. LeBlond, Inc., supra at 325. The plaintiff had argued that the defendant’s good or bad faith in terminating the contract at issue should be a factor in determining whether the exclusionary clause was unconscionable. Id. at 324. The court thought that factor was irrelevant because “[s]ubsequent events will not make a valid provision unconscionable.” Id.

      We make no intimation here as to whether Pennsylvania courts would uphold such a clause in the franchisor/franchisee context. See and compare K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970) (clause enforceable); National Cash Register Co. v. Modern Transfer Co., Inc., 224 Pa.Superior Ct. 138, 302 A.2d 486 (1973) (clause enforceable); Stanley A. Klopp, Inc. v. John Deere Co., supra (clause enforceable); Johnson v. Mobil Oil Corp., 415 F.Supp. 264 (E.D.Mich.1976) (clause held unconscionable); Stan D. Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C.App. 341, 317 S.E.2d 684 (Ct.App.1984) (clause enforceable for listed items).