author: CAVANAUGH, Judge:

text:
    664 A.2d 607
    COMMONWEALTH of Pennsylvania v. Javier CORREA, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1995.
    Filed Aug. 31, 1995.
    Reargument Denied Nov. 3, 1995.

      Carmen C. Marinell, Allentown, for appellant.
    Robert L. Steinberg, District Attorney, Allentown, for the Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal is from the court’s order denying appellant’s petition for relief under the PCRA. We reverse the court’s order and remand for a new trial.

In October of 1991, appellant was convicted by a jury of rape, indecent assault, simple assault and criminal trespass. Following the denial of post trial motions appellant was sentenced to a term of 6-14 years imprisonment. There was no direct appeal from appellant’s judgment of sentence. However, on September 13, 1993, appellant filed a PCRA petition requesting a new trial, alleging in support thereof, trial counsel’s ineffectiveness for failing to object to certain allegedly improper remarks made by the prosecutor during his closing argument to the jury. A hearing on appellant’s petition was held without Commonwealth participation. The court granted appellant’s petition, finding that the prosecutor had engaged in prosecutorial misconduct sufficiently egregious to warrant a new trial.

The Commonwealth filed a motion for reconsideration of appellant’s PCRA petition. The court granted the motion and vacated its previous order granting a new trial. After argument on the motion, the court entered its order granting appellant’s claims of ineffective counsel and prosecutorial misconduct but denying appellant’s petition for a new trial. The court explained:

[Defendant's Trial Counsel was ineffective, ... [for] his failure to object to the Prosecutor’s continued misstatements of the facts, personal opinions regarding the credibility of the Defendant and his witnesses, and historical references to an irrelevant rape in New York City. The Defense Counsel did offer one objection to the Prosecutor’s closing, but a request to strike certain remarks by the Prosecutor should have been made. Nevertheless, when the Court balances the weight of the evidence produced by the Commonwealth (particularly the eyewitness account of the victim with whom the Defendant admitted he had had sexual relations) against the harm done by the inappropriate remarks by the Prosecutor, it is clear that the failure of Trial Counsel to object had no significant impact upon the jury’s verdict.

The instant appeal follows and presents one issue for our review.

WHETHER APPELLANT JAVIER CORREA IS ENTITLED TO A NEW TRIAL PURSUANT TO THE POST CONVICTION RELIEF ACT WHERE HIS CONVICTION RESULTED FROM INEFFECTIVE ASSISTANCE OF COUNSEL WHICH SO UNDERMINED THE TRUTH DETERMINING PROCESS THAT NO RELIABLE ADJUDICATION OF GUILT OR INNOCENCE COULD HAVE TAKEN PLACE?

Our standard of review is well settled. The law presumes counsel’s effectiveness so that the burden of establishing ineffectiveness rests squarely on the defendant. Commonwealth v. Donahue, 428 Pa.Super. 259, 282, 630 A.2d 1238, 1250 (1993). In order for appellant to prevail on his ineffectiveness claim, “he must show 1) the underlying claim is of arguable merit; 2) the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and 3) counsel’s ineffectiveness prejudiced him.” Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994). In the context of a PCRA claim, appellant must not only establish ineffective assistance of counsel, he must also plead and prove that counsel’s stewardship “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207 (1994).

Instantly, appellant alleges counsel’s ineffectiveness for failing to object to certain alleged improper remarks made by the prosecutor during his closing argument to the jury. Our standard for reviewing a prosecutor’s remarks is as follows:

In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Generally, comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. The initial determination whether the prosecutor’s remarks were unfairly prejudicial rests -within the sound discretion of the trial court and our inquiry of necessity must turn to whether an abuse of discretion was committed.

Commonwealth v. Jubilee, 403 Pa.Super. 589, 593-94, 589 A.2d 1112, 1114 (1991) (citations omitted).

The facts underlying the case sub judice can be summarized as follows. The victim, Carmen Nieves, and appellant became acquainted through Pedro Ortiz, who reportedly was Ms. Nieves’ former live-in paramour and appellant’s “best friend.” Ms. Nieves testified that at 11:50 PM on June 10, 1991, appellant called her claiming he had something important to discuss with her but that he could not do so over the phone and needed to speak with her personally. She invited him to her home, a second floor apartment in downtown Allentown. When he arrived at her door fifteen minutes later, Ms. Nieves let him in and turned around to ascend the stairs to her living room. Ms. Nieves testified that when she reached the top of the stairs, appellant grabbed her, threw her onto the couch and raped her. She testified that she actively resisted appellant by screaming, hitting him and pulling his hair. She testified that as appellant left her apartment, he threw her telephone to the bottom of the stairs. She followed him down the stairs to retrieve the phone, looked out the door and observed him running away.

Appellant, on the other hand, testified that he had been dating Ms. Nieves for several weeks prior to the incident and that during that time, had twice engaged in sexual relations with her. On the night in question, he testified that they again had consensual sex. Afterwards, however, Ms. Nieves, for unexplained reasons, became upset. She began screaming at him, accusing him of rape and threatening to call the police. Appellant testified, “I told her to go right ahead and call them, that I was headed towards my mother’s house and that there I could be found.” Appellant then left Ms. Nieves’ apartment.

During his closing argument to the jury, referring to the fact that on the night in question, the police did not receive any calls concerning a woman’s screams emanating from Ms. Nieves’ apartment, the prosecutor remarked:

Do any of you remember the case, I believe it was either Detroit or New York, when the woman was stabbed in the alley, windows open. Famous case, movies were made about it. People didn’t call the police. People didn’t go down and help. They shut their windows, pulled their shades, went about their business. Why? Because they didn’t want to get involved. Are you going to say it’s okay because nobody showed up? Because nobody wanted to get involved?

Appellant’s counsel did not object to these remarks, and the prosecutor, following up on the theme, finished his summation by commenting:

This is when her words can finally be heard. When she finally appeals to you to say, “Please listen to me.” And she stated to you that what these people said wasn’t true, “I’m telling you what happened on June 11th. You weren’t there to hear me then, but you’re here to hear me now. I did not consent.” You have to decide if that’s the truth.

This Court has established that the conduct of the prosecutor at closing argument is circumscribed by the concern for the right of the defendant to a fair and impartial trial. Commonwealth v. Green, 417 Pa.Super. 119, 125, 611 A.2d 1294, 1297 (1992). In defining impermissible conduct during closing argument, we have followed Section 5.8 of the ABA standards. Id.; Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976). Section 5.8 provides:

Argument to the jury.
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate evidence or mislead the jury as to inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his personal opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.

In Commonwealth v. Green, supra, at 126, 611 A.2d 1297, the prosecutor made reference to the fact that there were 525 homicides committed in Philadelphia during the previous year, and remarked that “in Los Angeles they are shooting people on the highway for cutting them off because the highways are too crowded. Motive is not a part of this crime. This is a crime of madness.” We held that such argument was reversible error, opining:

[T]he prosecutor’s remarks were unprofessional and improper because they injected “issues broader than the guilt or innocence of the accused under the controlling law” and were calculated to inflame the prejudices of the jury. The facts injected and references made by the prosecuting attorney had absolutely nothing to do with appellant’s guilt or innocence of the charges brought against him and could only cause prejudice to his defense by directing the jurors to the carnage resulting from senseless crimes committed by others in Philadelphia and Los Angeles.

Commonwealth v. Green, at 128-29, 611 A.2d at 1299.

In the case sub judice, we similarly find that the prosecutor’s reference to a notorious case in “Detroit or New York” where a victim was reportedly stabbed to death on the street in view of others who did not come to her aid was a wholly improper appeal to the emotions of the jury to right that wrong by coming to the aid of the victim in this case. The reference to that unrelated crime injected issues broader than the guilt or innocence of appellant and could only cause prejudice to his defense.

At trial, appellant called several witnesses to corroborate his testimony that he and the victim had been dating. These witnesses testified that appellant and Ms. Nieves had been seen together in public on several occasions in the weeks prior to the incident in question. Appellant alleges that the prosecutor improperly rendered his personal opinion as to the credibility of appellant’s testimony and that of appellant’s witnesses. During his summation, the prosecutor remarked:

Now if it seems as if I’m talking about some of the defense witnesses first, I’m doing that on purpose because I want to dismiss their testimony. Why? Because they have an interest, they have motivation, they have a reason to lie. ‡ ‡ ‡ *
Well, I was surprised by some of the evidence you heard in this trial. And Carmen was too as you may have been able to guess from the way she reacted. And so I have an opportunity to respond to some of that evidence. She took the stand and showed you for the first time that she was very upset. Not simply by what happened but because these people came in here and lied.
$ ‡ ‡ ‡ ‡ ‡
Ask yourself, who but the defendant had something to gain by coming here today and the day before, and the day before, and lying?
Our supreme court has previously stated:
It is well settled that a prosecutor is not permitted to express a personal belief as to the defendant’s guilt or innocence or as to the defendant’s or other witness’ credibility. Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986). In Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), we held that it was reversible error for the prosecutor to state, during cross-examination of a witness, that the witness “lied.”

Commonwealth v. Johnson, 521 Pa. 118, 122-23, 588 A.2d 1303, 1305 (1991).

Additionally, the prosecutor repeatedly remarked that appellant stated he ran from the apartment after the incident occurred.

Now let’s turn our attention to one — to two last items before I finish on the facts. How did Carmen’s testimony and the defendant’s testimony come together somewhat? Well, they both said afterwards he ran back to his house. He said it was his mother’s house. He said he just ran out. So we’ve got the running.

The prosecutor argued that such flight was evidence of consciousness of guilt.

And what did the defendant do? Broke the cordless phone so she couldn’t call the police. Ran out Penn Street up to Liberty and down Liberty. The judge will tell you that evidence of flight or concealment could suggest consciousness of guilt. That the defendant knew because of what he had done that he may be accused of a crime. And was fleeing and doing acts to conceal it, by breaking that phone and running.

Appellant maintains that he did not testify to running away from the victim’s apartment and alleges that the prosecutor’s remarks to the contrary were improper. We agree. Our review of the record discloses that appellant did not state that he ran from the apartment. Rather such testimony was provided by the victim. It is clear that the prosecutor misrepresented the facts when he stated that the testimony of the defendant and the testimony of the victim coincided on that point. It has repeatedly been held that it is improper for a prosecuting attorney to make reference to matters which are not in evidence or supported by inferences to be drawn from the evidence. Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980); Commonwealth v. Sanders, 380 Pa.Super. 78, 98, 551 A.2d 239, 249 (1988); Commonwealth v. Howard, 375 Pa.Super. 43, 53, 543 A.2d 1169, 1174 (1988).

For the foregoing reasons we find that the remarks complained of in the prosecutor’s closing argument; i.e., his reference to an unrelated infamous crime, his negative characterization as to the credibility of appellant and his witnesses, as well as his misstating the facts of record as to appellant’s alleged flight from the apartment, constitute prosecutorial misconduct.

We note that the trial court “granted” appellant’s claims of ineffective counsel and prosecutorial misconduct. We agree that appellant’s claims of ineffective assistance and prosecutorial misconduct are established by the evidence of record. However, despite the trial court’s determination to the contrary, we cannot agree that the error was harmless. The evidence of appellant’s guilt was not overwhelming. Indeed, the case ultimately was resolved by a determination of credibility. The Commonwealth alleged rape, and presented the testimony of the victim in support thereof. The appellant testified, on the other hand, that the sex was consensual and presented witnesses to corroborate his testimony that he had been dating the victim.

Because the case was close, the prosecutor’s improper remarks, when considered in toto, and appellant’s counsel’s failure to object to those remarks, were not harmless error. The prosecutor’s attempt to substitute exaggerated rhetoric for evidence carried him beyond the limits of permissible argument and deprived appellant of a fair and impartial trial. Counsel’s failure to object thereto undermined the truth determining process so that no reliable adjudication of guilt or innocence could have taken place. Such error can only be corrected by the grant of a new trial. We therefore reverse the order denying appellant’s petition for relief under the PCRA and remand for the purposes of a new trial.

Reversed and remanded. Jurisdiction relinquished.

      . Opting to attend a simultaneously scheduled proceeding in an unrelated matter, the Commonwealth's attorney did not attend appellant’s PCRA hearing. No continuance was sought.

      . Despite the Commonwealth’s contention that appellant’s allegations of ineffectiveness of counsel and prosecutorial misconduct are waived due to his failure to raise them post-trial, it is clear that the trial court did not deem them waived. The trial court considered them and disposed of them at the PCRA hearing. We are therefore persuaded that appellant’s present issue, which contains the same allegations of error, is properly before us.

      . Ms. Nieves testified:
      Q. And what did he do to you?
      A. He started to — he started to pull his pants down, and I started to hit him. And I screamed and nobody heard anything.
      s}« # sK s¡« % #
      Q. And were you still screaming and telling the Defendant to stop?
      A. Yes, I screamed, I hit him, I pulled his hair ... but, nobody did anything.


source: Caselaw Access Project

author:
JOHNSON, Judge.
      DEL SOLE, Judge,

license: Public Domain

text:
    664 A.2d 612
    In re ESTATE OF William P. FLEIGLE, Late of the Borough of Dallastown, York County, Pennsylvania, Deceased. Appeal of ESTATE OF William P. FLEIGLE, Deceased and Linda J. Zeigler.
    Superior Court of Pennsylvania.
    Argued July 12, 1995.
    Filed Aug. 31, 1995.

      Donald T. Puckett & Larry C. Heim, York, for appellant.
    Byron H. Lecates, York, for Wanda Fleigle, participating party.
    Before ROWLEY, P.J., and CAVANAUGH, McEWEN, DEL SOLE, TAMILIA, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge.

In these consolidated appeals, we are asked to determine whether an executor has standing to appeal an Orphans’ Court order that confirmed a First and Final Account of a decedent’s estate and directed the executor to distribute the estate to decedent’s daughter who was born after decedent wrote his will. Because we find that the executor has no beneficial interest in decedent’s estate, we quash his appeals. Further, we affirm the Orphans’ Court determination that decedent’s daughter was entitled to the entire estate as a pretermitted child, pursuant to 20 Pa.C.S. § 2507(4).

In 1975, decedent executed a will leaving everything to his parents, if they survived him, and, if not, to his brother, Charles Fleigle, Jr. This will also appointed Charles Fleigle, Jr., as the executor of decedent’s estate. In 1985, decedent’s daughter was born. On April 15, 1990, decedent wrote the following note:

I William Fleigle. In case of accident or death. 509 East Main St. Would be leased at a fare price to K & H Auto Repair, Lyn Zeigler to have upstair free. Car Lot Co Leased to Dave Snyder of John Walters Auto Sales. Lyn Zeigler would run Car Lot. All profits to be shared with Lyn Zeigler and My daughter Wanda Fleigle when she becomes 21 yrs old. Also my Father Charles Fleigle.
Yours Truly
William Fleigle

The decedent committed suicide on May 4, 1990. At the time of his death, decedent owned real estate located at 509 East Main Street, Dallastown, York County, Pennsylvania, and he owned a business known as “Bill’s Cycle Shop and Car Lot.” Decedent was survived by his daughter, father and brother. He also was survived by his paramour, Linda Zeigler, a/k/a Lyn Zeigler. Decedent’s father died on July 23, 1990, leaving his estate to Charles Fleigle, Jr.

On May 9, 1990, decedent’s will, dated March 5, 1975, was offered for probate, admitted, and, in accordance with the terms of the will, Charles Fleigle, Jr., was appointed executor of the estate. On May 16,1990, the above-quoted handwritten note was offered for probate as a codicil to decedent’s will.

On October 22, 1991, the executor filed a First and Final Account of decedent’s estate. On behalf of decedent’s daughter, the Bank filed objections to this Account, claiming that the handwritten note was not a codicil and that decedent’s daughter, as a pretermitted heir, was entitled to the entire estate. See 20 Pa.C.S. § 2507(4). In December 1993, the Orphans’ Court filed an Opinion and Decree Nisi, in which it sustained the Bank’s objections and agreed that decedent’s handwritten note was invalid as a codicil to his will and that decedent’s daughter was entitled to the entire estate as a pretermitted child. Both the executor and Zeigler filed exceptions.

On August 31, 1994, the Orphans’ Court filed the following: (1) an Adjudication; (2) a Decree that confirmed the First and Final Account and ordered distribution to decedent’s daughter as set forth in the Adjudication; and (3) an order that dismissed the exceptions and directed that the decree nisi be entered as a final decree. No further exceptions were filed. Nonetheless, in September 1994, two joint notices of appeal were filed, both on behalf of the Estate of William P. Fleigle, Deceased and Linda J. Zeigler. The first joint notice of appeal was from the August 31, 1994 order, and the second was from the August 31, 1994 Adjudication and Decree.

On December 21,1994, the Bank filed a motion to quash the appeals filed on behalf of the Estate, claiming that the executor lacked standing to file them. On March 27, 1995, this Court denied the Bank’s motion to quash without prejudice to raise this issue at the time of oral argument before the next session of the Court en banc. Following argument, the appeals were consolidated and are now before us.

For purposes of review, we have renumbered the executor’s and Zeigler’s contentions. On appeal, they argue that (1) the executor had standing to appeal the Orphans’ Court order, and (2) the Orphans’ Court erred in ruling that decedent’s handwritten note was not a codicil to his will.

First, the executor contends that he had standing to appeal the Orphans’ Court order.

Pennsylvania law is well settled that, merely by virtue of his or her official capacity, an executor cannot appeal from a decree of distribution entered by the court to which he or she must account so long as that decree does not surcharge the executor or make distribution of an amount larger than the total of the estate’s assets. An executor who has not been surcharged has no standing to except to an adjudication of the auditing judge regarding payment of claims against an estate unless the executor is also a residuary beneficiary of the estate.

Appeal of Gannon, 428 Pa.Super. 349, 360-61, 631 A.2d 176, 181 (1993) (citations omitted), appeal denied, 538 Pa. 647, 647 A.2d 902 (1994); see also Estate of Felice, 487 Pa. 342, 347 n. 2, 409 A.2d 382, 384 n. 2 (1979).

As we previously stated, decedent’s 1975 will provided that his estate would be distributed to his parents if they survived him. Thus, as executor of decedent’s estate, Charles Fleigle, Jr., claims that he is entitled to bring this appeal because, if this Court determines that the handwritten note is a valid codicil, then decedent’s child is provided for under the will and is not a pretermitted child. Accordingly, decedent’s estate would be distributed to the estate of his father, and that estate, in turn, would be distributed to the executor as the father’s sole testamentary heir.

However, for the reasons set forth below, we find that decedent’s handwritten note was invalid as a codicil to the will, and, accordingly, decedent’s daughter is entitled to receive the entire estate. Thus, the executor has no beneficial interest in decedent’s estate. In addition, no allegation has been raised that the executor was surcharged or that the court ordered a distribution amount larger than the total of the estate’s assets. Accordingly, we find that the executor, as executor, does not have standing to appeal. See Appeal of Gannon, supra. The appeal has been brought on behalf of the Estate of William P. Fleigle, Deceased. Therefore, we quash the executor’s appeals.

Next, Zeigler asserts that the Orphans’ Court erred when it determined that decedent’s handwritten note was invalid as a codicil to his will. When reviewing a final order of the Orphans’ Court, we accord the findings of an Orphans’ Court judge the same weight and effect as a jury verdict. In re Benson, 419 Pa.Super. 582, 585, 615 A.2d 792, 793 (1992).

“[A]s an appellate court[,] we can modify an Orphans’ Court decree only if the findings upon which the decree rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent evidence.” Id.

Zeigler maintains that decedent’s handwritten note was a valid codicil because it provides for testamentary dispositions. We note that a writing need not assume a special form to take effect as a will or codicil. See In re Estate of Hopkins, 391 Pa.Super. 211, 570 A.2d 1058 (1990), appeal denied, 525 Pa. 627, 578 A.2d 414 (1990); In re Hengen’s Estate, 337 Pa. 547, 12 A.2d 119 (1940). One essential element of a valid will or codicil is that it dispose of property. Hopkins, at 214-15, 570 A.2d at 1059. Further, the disposition must be intended to take effect after the testator’s death. In re Estate of Ritchie, 480 Pa. 57, 389 A.2d 83 (1978).

Here, the Orphans’ Court concluded that decedent intended the writing to take effect at the time of his death “[b]ecause of the unusual and unique circumstances of this case____ Specifically, the writing was created shortly before the Decedent committed suicide and was discovered in his residence on the counter top together with his 1975 will and other documents and checks. [In addition,] the writing was clearly so positioned that it would be easily located upon his death.” Trial Court Opinion, dated December 23,1993, at 4-5. We find no error or abuse of discretion in this conclusion. Ritchie, supra. Thus, we need only determine whether the handwritten note disposes of decedent’s property. Hopkins, supra, at 211, 570 A.2d 1058.

To make a testamentary disposition of property, a decedent must set forth both the thing given and the person to whom it is given with such certainty that a court can give effect to the gift when the estate is to be distributed. 4 Bowe-Parker, Page on Wills, § 5.11 (Revised Ed.1961). Further, a will must be sufficiently certain and definite to be capable of intelligent interpretation and enforcement. See Gaston’s Estate, 188 Pa. 374, 41 A. 529 (1898); cf. In re McKean’s Estate, 159 Pa.Super. 409, 48 A.2d 74 (1946) (clause is void for uncertainty and without dispositive effect where it is so vague and indefinite as to render its.purpose meaningless).

Here, the note provided for the lease of property located at 509 East Main Street to K & H Auto Repair and for the lease of a car lot to an individual named Dave Snyder of John Walters Auto Sales. However, this writing is not sufficiently certain and definite as it fails to provide for a period of specific duration. Cf. id. Thus, we find that it fails to dispose of the property listed. Further, because the note only indicates an intent to lease decedent’s properties, we agree with the trial court that there was no transfer of title, and, hence, no disposition of the properties. Cf. Whitmer v. Bell Telephone Co. of Pa., 361 Pa.Super. 282, 291, 522 A.2d 584, 588 (1987) (a lease occurs when use and possession of property pass, but not title). The note also provided that Zeigler would have the “upstair” at 509 East Main Street “free” and that she would “run” the car lot leased to Dave Snyder. However, there is no indication regarding the duration of the free use of this “upstair,” or of the management of the car lot. Finally, the note states that Zeigler, decedent’s daughter (upon reaching age 21) and decedent’s father are to share “profits.” Again, however, decedent failed to indicate which “profits” the three are to share. Accordingly, both attempted dispositions fail for lack of certainty and definiteness. Gaston’s Estate, supra, at 374, 41 A. 529; McKean’s Estate, supra, at 409, 48 A.2d 74. As a result, we agree with the trial court that decedent’s handwritten note is invalid as a codicil to the 1975 will because it failed to properly dispose of decedent’s property after his death. See Hopkins, supra, at 211, 570 A.2d 1058.

Based on the foregoing, we find that the court did not err or abuse its discretion when it determined that decedent’s daughter was entitled to the entire estate as a pretermitted child, pursuant to 20 Pa.C.S. § 2507(4). Thus, we affirm the Orphans’ Court order.

Executor’s Appeals at Nos. 797 & 798 Harrisburg 1994 Quashed. Order Affirmed.

DEL SOLE, J., files a concurring and dissenting opinion in which KELLY, J., joins.

DEL SOLE, Judge,

concurring and dissenting.

I join the analysis of the Majority in concluding that the trial court correctly decided the April 15, 1990 note is not a valid codicil. Therefore, I agree with the disposition affirming the decree of distribution.

However, I dissent from that portion of the Opinion which concludes Charles Fleigle, Jr. does not have standing to bring this appeal. The Majority’s statement of the law that, “merely by virtue of his or her official capacity, an executor cannot appeal from a decree of distribution entered by the court ... so long as that decree does not surcharge the executor.” (Majority Opinion at page 635), does not apply to the situation before us.

Charles Fleigle, Jr. has an interest in the determination of the legal question on the validity of the April 15, 1990 note by virtue of his status as the sole beneficiary of his father’s estate. I believe the correct statement of the law in regard to his standing is found in In re Estate of Hain, 464 Pa. 349, 346 A.2d 774 (1975), where our Supreme Court held:

Appellants were not adversely affected by the decree of the orphans’ court in their capacity as executors. However, they were directly affected, and are “parties aggrieved,” in their capacity as residuary trustees under this will and, ... in [wife’s] individual capacity as a spouse who has elected to take against the will. When a party has erroneously challenged an order or decree of the orphans’ court as executor but properly could have proceeded in some other capacity, the party is entitled to retain the benefit of the appeal in the proper capacity, (citations omitted) Although appellants may lack standing to appeal in their capacity as executors, they do have standing in their other capacities. We must therefore reach the merits of the appeal, (emphasis added).

464 Pa. at 353, 346 A.2d at 776.

Given that Charles Fliegle, Jr. was the person to whom the estate would pass had the determination of the legal question surrounding the purported codicil be resolved differently, I conclude he has standing as a party aggrieved to maintain this appeal.

KELLY, J., joins.


author: WIEAND, Judge:

text:
    664 A.2d 616
    John H. ROBINSON and Patricia Robinson, Appellants, v. B.F. GOODRICH TIRE COMPANY and Montgomery Ward, Appellees. John H. ROBINSON and Patricia Robinson, Appellants, v. B.F. GOODRICH TIRE COMPANY and Montgomery Ward, Appellees.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed Sept. 5, 1995.

      William R. Shaffer, Butler, for appellants.
    Dennis A. Watson, Pittsburgh, for appellees.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

In this products liability action to recover damages for injuries caused by an exploding tire, the jury returned a verdict in favor of the manufacturer and retailer of the tire. On appeal, the injured plaintiff contends that it was error for the trial court to give a jury instruction that he could be found to have voluntarily assumed the risk if he failed to use available safety measures. After careful review, we agree. Therefore, we reverse and remand for a new trial.

On September 14, 1988, John H. Robinson was inflating an automobile tire for a customer of the Wiltrout Oil Co., when the sidewall of the tire blew out, striking him in the face and causing injury to his eye and ear. The tire had been one of a set of four which had been manufactured by B.F. Goodrich Tire Co. and sold by Montgomery Ward within a month prior to the accident. The owner of the tires testified that the tires had not been subjected to abnormal use prior to the explosion and that she had no knowledge of any defect therein. On the day of the explosion, however, and while one or two miles from the Wiltrout Service Station, she had heard a noise and felt the car begin to sway. Robinson contended that the tire had been defectively manufactured, for which the manufacturer and retailer were strictly liable.

The defendants denied liability. They contended that the tire had been punctured following its sale and that this had caused the explosion and not any manufacturing defect in the tire. They also contended that Robinson, an experienced tire worker, should have been aware of the risk of explosion and voluntarily assumed the risk thereof by failing to utilize available safety measures. The trial court, over objection by appellant, told the jury that although contributory negligence was not a defense to strict liability, voluntary assumption of the risk was a complete defense. The court said: “Assumption of a risk is a bar to the assuming party’s claim when the party assuming the risk possessed the requisite subjective awareness of the danger and voluntarily assumed the risk by failing to utilize available safety measures.” Appellant contends that this was error.

“ ‘A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and [is] sufficient to guide the jury in its deliberations.’ ” Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 606, 592 A.2d 1377, 1378 (1991), quoting Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985). However, an erroneous jury instruction may be the basis for a new trial if it is shown that the instruction was fundamentally in error and might have been responsible for the verdict. Sedlitsky v. Pareso, 425 Pa.Super. 327, 332, 625 A.2d 71, 74 (1993).

In Pennsylvania, the Supreme Court has held that a plaintiff cannot be precluded from recovery in a products liability case because of his or her own negligence. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 100, 337 A.2d 893, 901 (1975); Kupetz v. Deere & Co., Inc., 435 Pa.Super. 16, 31, 644 A.2d 1213, 1220 (1994). Therefore, contributory negligence is not a defense in a products liability action. McCown v. International Harvester Co., 463 Pa. 13, 17, 342 A.2d 381, 382 (1975).

Voluntary assumption of the risk, however, is an affirmative defense in a products liability case. Berkebile v. Brantly Helicopter Corp., supra; Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, -n. 3, 662 A.2d 1089, 1090 n. 3 (1995); Kupetz v. Deere & Co., Inc., supra 435 Pa.Super. at 31, 644 A.2d at 1220. See also: Rutter v. Northeastern Beaver County Sch. Dist., 496 Pa. 590, 613, 437 A.2d 1198, 1209 (1981) (clarifying assumption of risk doctrine available in products liability cases). Before the theory may be submitted to a jury, the defendant must produce evidence that the plaintiff fully understood the specific risk, and yet voluntarily chose to encounter it. Fish v. Gosnell, 316 Pa.Super. 565, 577, 463 A.2d 1042, 1048 (1983). “Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and voluntarily chooses to encounter it.” Mucowski v. Clark, 404 Pa.Super. 197, 201, 590 A.2d 348, 350 (1991) (citation omitted). A plaintiffs knowledge and understanding of the risk may be shown by circumstantial evidence. Id. at 201-202, 590 A.2d at 350.

It has been said that assumption of the risk and contributory negligence may sometimes overlap because certain conduct may exhibit the elements of both. Kupetz v. Deere & Co., Inc., supra 435 Pa.Super. at 29, 644 A.2d at 1219; Fish v. Gosnell, supra 316 Pa.Super. at 576-577, 463 A.2d at 1048. In general, however, the concepts are distinguishable. “Contributory negligence connotes carelessness; assumption of the risk connotes venturousness in voluntarily incurring a risk the nature and extent of which are fully appreciated.” 57A Am.Jur.2d, Negligence § 815. Assumption of risk involves the meeting of a subjectively known risk; whereas, contributory negligence may involve a plaintiff exposing himself to a danger of which he was subjectively unaware but which would have been apparent had he used due care. 57A Am.Jur.2d, Negligence § 816. “Thus, the essence of the assumption of risk defense is not fault but that the plaintiff changed his position. Before the injury, he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards, seeks to assert the claim he had waived.” Fish v. Gosnell, supra at 578, 463 A.2d at 1049. “Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate abandonment of the right to complain, but rather is better judged by its reasonableness, that is, by negligence principles.” Id.

In the instant case, the evidence did not show that appellant was subjectively aware of a specific defect in the tire. Indeed, the defendants contended at trial that there was no defect in the tire. However, if the jury were to disagree and find the tire defective, it was the defendants’ additional contention that appellant, an experienced tire worker, should have been aware of the danger of explosion and should have utilized available safety measures. If they were correct in this, however, appellant was guilty of contributory negligence; he did not knowingly and voluntarily assume the risk of a specific defect in the tire.

When the trial court instructed the jury that appellant could be found to have voluntarily assumed the risk if he failed to utilize available safety measures, the court erred. By confusing the concepts of contributory negligence and voluntary assumption of the risk, the trial court permitted the jury to deny recovery if plaintiff had been contributorily negligent. This, as we have seen, was contrary to the law in this Commonwealth and may have influenced erroneously the jury’s verdict. The error, therefore, requires that a new trial be granted.

We also reverse the trial court’s order compelling plaintiffs to pay the cost of transcribing the entire record. In this case, the diminished record paid for by plaintiffs, which consisted of the in-chambers colloquy prior to closing arguments and the court’s jury instructions, provided an adequate record for appellate review of the issue raised. See: Pa.R.A.P. 1911.

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


author: DEL SOLE, Judge:

text:
    664 A.2d 619
    Kimberly Y. ROZANC and Richard A. Rozanc, her husband, Appellants, v. Marguerite Lynn URBANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed Sept. 6, 1995.

      Richard C. Levine, Pittsburgh, for appellants.
    Mark Neff, Washington, for appellee.

      Before: WIEAND, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment entered in favor of defendants in an action brought as a result of an automobile collision. Among the claims raised by Appellants is that the jury verdict in this matter was against the weight of the evidence since the evidence was uncontradicted that Kimberly Rozanc suffered some injury in the accident. In reviewing this claim following the filing of post-trial motions the trial court concluded that “plaintiffs contention would be correct,” but the court nevertheless refused to award her relief because it found that the issue had been waived. Because we find that the trial court erred in its determination of waiver and there is support for the court’s underlying conclusion regarding the merits of the issue, we reverse and remand this matter for a new trial.

The trial court recounted the following relevant facts: This civil action arises out of a motor vehicle accident which occurred on August 30, 1990, at the West Chestnut Street exit ramp of 1-70 in Washington, Pennsylvania. While she was stopped at the end of the exit ramp in order to merge with the traffic on West Chestnut Street, the wife-plaintiffs vehicle was struck from behind by a vehicle being operated by the defendant, Marguerite Lynn Urbany (Urbany). The plaintiff, Kimberly Y. Rozanc (Rozanc), has alleged various injuries as a result of this accident, including cervical sprain or strain and injury to the long thoracic nerve on the right side. That evening Rozanc was treated at St. Clair Memorial Hospital. Later she sought treatment with Dr. Scott Baron, an orthopedic surgeon, who prescribed six weeks of physical therapy for neck and shoulder injuries. Still later, Dr. William Frost treated her for injury to the long thoracic nerve and a shoulder impingement syndrome.
During the trial in March 1994, the defendant admitted that at the time of the accident she was looking over her left shoulder as she was driving down the ramp. She also stated that she did not notice the plaintiff’s vehicle had stopped at the end of the ramp. About a second before the collision, the defendant, going approximately 15 miles per hour, saw the plaintiff’s vehicle, too late to avert the collision. Although the jury found the defendant had been negligent, they also found that the negligence was not a substantial factor in bringing about the harm to the plaintiff.

In concluding that Appellants would be “correct” in their assertion that a new trial should be granted because this verdict was against the weight of the evidence the court focused on the trial testimony, in particular that of defense witness Dr. Wachs. This expert medical witness testified during cross-examination as follows:

Q. The x-rays showed some straightening of the cervical spine is due to spasms of the muscle. Is that what you indicated in your report?
A. Correct.
Q. So you were actually able to see on the x-ray that the bones in her neck were straighter than normal?
A Well, what happens, is when the muscles of the neck tighten up or develop spasm, it tends to cause a straightening of the patient who has had an acute soft-tissue injury affecting the muscles and ligaments, of the neck. The bones themselves were fine. Instead of having a normal curve, the spine was straight.
Q. So we can agree, Dr. Wachs, that Kim Rozanc did have some type of injury in the accident of August 30, 1990?
A. Yes, I don’t have any doubt that she had an injury. And based upon what her symptoms were, it sounded like a strain of the muscles and ligaments of her neck.

(Trial Deposition of Dr. Wachs at 23, 23.

Dr. Wachs admitted that the patient “had some neck pain which undoubtedly was due to the strain of the muscles and ligaments.” This defense testimony coupled with Appellant’s own testimony about her injuries and that of her treating physician who described injuries to her neck and shoulder, made it uncontradicted that the Appellant suffered some injuries as a result of the accident. The jury in this case ignored this evidence of injury and undoubted pain which must have accompanied them.

Recently in Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995) the court was presented with somewhat similar circumstances. The defense expert in that case testified that the plaintiff “exhibited a diagnosis of a healed neck sprain and a healed scapular or shoulder blade sprain.” Id. at 522, 653 A.2d at 637. The court found that the medical testimony “of both parties established that [plaintiff] suffered from objective injuries, the defense expert only disagreeing as to their extent.” Id. at 524, 653 A.2d at 638. The court agreed with the trial court that these injuries were of the “type that naturally and normally cause pain and suffering and, accordingly, the jury was not free to disregard them.” Id. The court ruled that a new trial was properly awarded in that case.

In this case it was undoubtedly clear that Appellees negligence caused Plaintiff injuries. It is also obvious that the type of injury suffered would cause Plaintiff to suffer some pain. The defense expert conceded as much in his testimony.

When considering a trial court’s order regarding the award of a new trial on appeal our review is limited to determining whether the trial court abused its discretion committed an error of law. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). The court’s initial finding that Appellant’s request for a new trial should be granted based upon the evidence offered at trial, can not be found to be an abuse of discretion.

The trial court ultimately did not award a new trial in this matter based upon a waiver analysis. It is with this legal conclusion of waiver with which we find fault.

The trial court ruled that Appellants waived their request for a new trial by not objecting to the verdict which answered special interrogatories. The court found that under the decision of Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994) this inaction barred subsequent review of a request for a new trial. In Picea the jury found the defendant to be negligent, but in response to a special interrogatory which asked, “Was the defendant’s negligence a substantial factor in bringing about the plaintiffs harm?,” the jury answered, “No.” Id. at 301, 645 A.2d at 870. In considering a claim for a new trial the court found that the interrogatory was worded in such a manner as to make the result of the jury’s finding unclear. It found that the jury may have determined that the defendant caused some injury, but that conduct may not have been a substantial factor in bringing about all of the plaintiffs harm. The court concluded that plaintiff should have objected to the overly broad wording of the second interrogatory and should have had it reworded in such a manner so as to focus on the injuries actually caused by the defendant. On review this court noted:

After the jury returned its verdict, [plaintiff] could have objected so the court could determine whether the jury was incredibly finding that [defendant] caused no injury at all, or whether the jury considered [defendant’s] contribution to [plaintiffs] aliments insubstantial. If the latter were the case, the court could have then instructed the jury to find [defendant] liable for so much of [plaintiffs] injuries as he actually caused, and avoided any need for a new trial.

Id. at 302, 645 A.2d at 871.

In support of its ruling the Picea court also remarked on the fact the trial court in the case before it did not focus on the broad term “plaintiffs harm” in its instructions and did not restrict the jury to consider only the harm caused by the accident. Picca at 870, 645 A.2d at 870 n. 2. Picea was later cited by this court in Holliday v. Page, 440 Pa.Super. 490, 656 A.2d 136 (1994). It found that Picea held the “failure to object to an ambiguous or flawed jury verdict prior to dismissal of the jury will result in the waiver of that claim on appeal.” Id. at 494, 656 A.2d at 138.

The difference between Picea and the case before us is that in the instant matter it is not claimed that the jury verdict was ambiguous or flawed. The claim here is simply that the verdict was contrary to the evidence admitted at trial. The jury was given interrogatories in this case which included the question of whether the negligence of the Defendant was a substantial factor in bringing about the harm to the plaintiff. However they were also charged that damages should be awarded to compensate the plaintiff for “all the physical and financial injury she has sustained as a result of the accident.” N.T. 3-24-94 at 131. The court also advised the jury: “Damages should not be awarded on the basis of sympathy, benevolence or sentimentality, but should be limited to reasonable compensation for the injuries involved.” Id. at 132. With this background the jury in this case was not presented with an ambiguous interrogatory. It was clear that the jury was to consider whether defendant’s negligence was a substantial factor in causing any harm to plaintiff as a result of the accident. Because the jury’s negative answer to this question was completely contrary to the evidence provided at trial, it was appropriate for the court to award a new trial in this matter. Waiver is not a bar to such an award because the objection in this case is not to the wording of the interrogatory or to an inconsistent result reached by the jury following the answering of interrogatories. The question is simply whether the jury’s verdict was so contrary to the evidence as to “shock our conscience.” See Neison v. Hines, supra, at 539 Pa. 516, 653 A.2d 634. The jury’s disbelief of the injuries which were conceded by defense expert in this case, was unwarranted. For these reasons we vacate the Judgment in this case and remand the matter for a new trial. Jurisdiction relinquished.

      . The remaining issues raised by Appellants, which address particular evidentiary rulings made by the court during trial and a claim regarding a certain juror, will not be discussed in view of our decision to remand this matter for a new trial.


author: HUDOCK, Judge:

text:
    664 A.2d 622
    COMMONWEALTH of Pennsylvania, Appellant, v. Brett Lamar SMITH, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 17, 1995.
    Filed July 6, 1995.
    Reargument Denied Sept. 13, 1995.

      Kemal A. Mericli and Sandra Preuhs, Asst. Dist. Attys., Pittsburgh, for Com., appellant.

      Patrick J. Thomassey, Asst. Public Defender, Monroeville, for appellee.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   HUDOCK, Judge:

In this appeal by the Commonwealth, the question presented is whether the sentencing court erred in concluding that the Commonwealth could not seek a mandatory sentence, after Appellee’s conviction at trial, because it had previously offered to waive the mandatory sentence during unsuccessful plea negotiations. Finding that the sentencing court did err, we vacate Appellee’s sentence and remand for resentencing.

The facts and procedural history may be summarized as follows: By information filed January 15, 1993, Appellee was charged with one count each of possession of a controlled substance with intent to deliver, possession of a controlled substance, criminal conspiracy, and prohibited offensive weapons. On May 3, 1993, Appellee entered a plea of guilty to the charges and sentencing was deferred until July 7, 1993. As part of the plea bargain, the Commonwealth agreed that it would not seek any applicable mandatory minimum sentence. At the conclusion of a hearing held on June 15,1993, however, Appellee was permitted to withdraw his guilty plea. On September 29, 1993, pre-trial motions were heard and denied. On October 4, 1993, a jury convicted Appellee on all charges. On October 21, 1993, the Commonwealth sent notification of its intent to proceed pursuant to the mandatory sentencing provision of 18 Pa.C.S.A. section 7508(a)(3)(i). On February 1, 1994, the sentencing court refused to impose the mandatory minimum sentence. Instead, on the conviction for possession with intent to deliver, the court imposed a sentence of nine to twenty-three months incarceration. With regard to this sentence the court further stated that Appellee was “to be permitted alternate housing and work release or study release if [he] has employment or is enrolled in an appropriate educational institution.” N.T., 2/1/94, at p. 47. For the criminal conspiracy conviction, the court imposed a consecutive, two-year probationary term. No further penalty was imposed on the remaining convictions. On February 8, 1994, the Commonwealth filed a motion to reconsider sentence. This motion was denied by order of court dated June 21, 1994. This appeal followed.

Appellee’s conviction for possession with intent to deliver 7.50 grams of cocaine subjected him to a mandatory minimum sentence of one year in prison and a fine of at least $5,000. 18 Pa.C.S.A. § 7508(a)(3)(i). Work release is not permitted. 18 Pa.C.S.A. § 7508(c). It is well-settled that it is within the sole discretion of the Commonwealth to invoke the mandatory minimum sentence. See generally, Commonwealth v. Biddle, 411 Pa.Super. 210, 601 A.2d 313 (1991); Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991), alloc. den., 528 Pa. 622, 597 A.2d 1151. At sentencing, however, the court refused to impose the mandatory minimum because it believed that the Commonwealth does not enjoy unfettered discretion in choosing to proceed under the mandatory sentencing guidelines and because the Commonwealth’s offer during plea negotiations to forego the mandatory sentence constituted an improper inducement to plead. The sentencing court further concluded that the subsequent invocation of the mandatory sentence “unconstitutionally infringed upon [Appellee’s] right to due process by vindictively seeking imposition of the mandatory minimum sentence to punish [Appellee’s] exercise of his right to a jury trial.” Sentencing Court Opinion, 1/6/95, at pp. 3-4. Because this reasoning has been rejected by the United States Supreme Court, and is inconsistent with both the views of this Court and our Supreme Court with regard to the Commonwealth’s discretion to seek the mandatory minimum, as well as the proper function of the plea bargaining process, we reverse and remand for resentencing pursuant to 18 Pa.C.S.A. section 7508(a)(3)(i).

In its 1925(a) opinion, the sentencing court states:

Although Pennsylvania courts have repeatedly interpreted the phrase “reasonable notice of the Commonwealth’s intention to proceed ...” as a legislative grant of discretion to the prosecutor to determine whether to invoke a mandatory sentence, this Court maintains that these interpretations are fundamentally flawed.

Sentencing Court Opinion, 1/6/95, at p. 5. The court then discusses its belief that the rationale of our Supreme Court in Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987), and of this Court in Commonwealth v. Biddle, 411 Pa.Super. 210, 601 A.2d 313 (1991), is in error. In conclusion, the sentencing court states that, despite these two controlling decisions, it is its “continuing judgment that the legislature never intended to transfer discretion from judges to prosecutors in matters of sentencing.” Sentencing Court Opinion, 1/6/95, at p. 10. The court then cites to its own opinion which was reversed by this Court in Biddle, supra.

Despite the sentencing court’s belief that the reasoning in the above cases is flawed, as an inferior court, it was nevertheless required to follow the law as set forth therein. As noted above, these cases clearly hold that it is within the sole discretion of the Commonwealth whether to proceed under the mandatory minimum sentencing provisions. As shall be discussed more fully below, the use of the mandatory minimum sentencing provisions as a tool in the plea bargaining process is not unconstitutionally infirm.

In its opinion the sentencing court continues:

To the extent that the holdings of Pittman and Biddle are read to grant unfettered discretion to the prosecutor to invoke the terms of the mandatory sentencing provisions, it is this Court’s considered conclusion that the District Attorney has abused this discretion: (1) by exceeding the proper limits of the discretionary role conferred to the prosecutor in sentencing; (2) by arbitrarily and discriminatorily applying its inter-office policies regarding the discretionary application of the mandatories; and (3) by circumventing the Court’s supervisory function under Pa.R.Crim.P. 319.

Sentencing Court Opinion, 1/6/95, at p. 11. Upon careful consideration, we find each of these conclusions to be unsupported by the record or otherwise contrary to case law.

The sentencing court first concluded that the “traditional powers” of the Commonwealth, that is, its charging function, was not intended to include “the power to coerce guilty pleas by manipulating mandatory penalties. Nor did the Supreme Court [in Pittman ] redefine sentencing authority by shifting the discretion to proceed or not to proceed with mandatory sentences to an area to which it was never intended to apply— the plea bargaining process.” Sentencing Court Opinion, 1/6/95, at p. 12. We cannot agree with the sentencing court’s characterization of the Commonwealth’s discretion.

With regard to the vital role of the plea bargaining process in criminal prosecutions, this Court has stated:

It is well recognized that the guilty plea and the frequently concomitant plea bargain are valuable implements in our criminal justice system. See Blackledge v. Allison, [431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)]; Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973). “The disposition of criminal charges by agreement between the prosecutor and the accused, ... is an essential component of the administration of justice. Properly ad ministered, it is to be encouraged. Santobello v. New York, [404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971)] (emphasis added). In this Commonwealth, the practice of plea bargaining is generally regarded favorably, Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976); Commonwealth v. Alvarado, supra, at 516, 276 A.2d 526; Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), and is legitimized and governed by court rule. Pa.R.Crim.P. 319(b).

Commonwealth v. Schmoyer, 280 Pa.Super. 406, 413-14, 421 A.2d 786, 789 (1980). In Schmoyer, this Court also noted that the desirability of disposing of criminal charges through plea bargaining is based on the premise that a plea agreement is advantageous to all concerned:

“The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting , completion of criminal proceedings.”

Id. 421 A.2d at 790 (quoting Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627-28, 52 L.Ed.2d 136 (1977)).

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), reh. den., 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511, the United States Supreme Court discussed the constitutional significance of the plea negotiation process. Hayes was indicted by a grand jury in Kentucky of uttering a forged instrument. After arraignment, Hayes, his counsel, and the Commonwealth’s attorney met to discuss a possible plea agreement. The prosecutor offered to recommend a sentence of five years incarceration if Hayes would plead guilty. He also said that if Hayes did not plead guilty he would seek a grand jury indictment under Kentucky’s recidivist statute. Under this statute, Hayes would be subject to a mandatory sentence of life imprisonment by reason of his prior felony convictions. Nevertheless, Hayes decided not to plead guilty and the prosecutor obtained the indictment under the recidivist statute. A jury found Hayes to be guilty of the underlying crime and, in an independent proceeding, found him to be a recidivist. Thus, under Kentucky law, he was sentenced to life imprisonment. The Kentucky Court of Appeals rejected Hayes’ constitutional objections to the enhanced sentence. The Sixth Circuit Court of Appeals reversed the judgment of the Kentucky Court of Appeals, however, on the ground that the prosecutor’s conduct during the plea bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), which protected defendants from the vindictive exercise of a prosecutor’s discretion. Thus, the Sixth Circuit Court of Appeals ordered Hayes discharged.

In an opinion authored by Justice Stewart, the United States Supreme Court disagreed with the Sixth Circuit Court of Appeals’ conclusion that the prosecutor was acting vindictively and in violation of due process of law because his charging decision was influenced by what he hoped to gain in the course of plea negotiations. In so concluding, the Court stated:

... [I]n the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.
Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, [397 U.S. 742, 752, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970) ]. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. [Id. at 758, 90 S.Ct. at 1474]. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App.Draft 1968); Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. [Brady, 397 U.S. at 751, 90 S.Ct. at 1470]; North Carolina v. Alford, [400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)].
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, [412 U.S. 17, 31, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973)]. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

Commonwealth v. Carter, 318 Pa.Super. 252, 267, 464 A.2d 1327, 1335 (1983) (quoting Bordenkircher, 434 U.S. at 363-64, 98 S.Ct. at 668).

In Carter, supra, a panel of this Court was presented with a post-conviction petitioner’s claim that his guilty pleas were unlawfully induced by the Commonwealth’s threat to subject him to additional charges if he did not plead guilty. The Carter panel, after noting the purpose of the plea negotiation process and discussing Bordenkircher as cited above, concluded that the course of conduct engaged in by the prosecutor, “which no more than openly presented the appellant with the unpleasant alternatives of foregoing trial or facing charges on which he might be subject to prosecution, did not constitute ‘unlawful inducement’ nor will it be equated with ‘manifest injustice’ warranting the withdrawal of the guilty pleas.” Carter, 464 A.2d at 1336 (citing Bordenkircher, supra).

In Carter this Court concluded that the “inducement” involved was no more than the “give-and-take” of the bargaining process. The same can be said in the present case. Simply put, “[t]he Commonwealth is never under any legal obligation to plea bargain with any defendant.” Commonwealth v. Stafford, 272 Pa.Super. 505, 509, 416 A.2d 570, 573 (1979) (plurality). The decision whether to enter into plea negotiations is a function of prosecutorial discretion and this Court will not review such decisions unless they are based upon invidious classifications such as race, religion, or national origin. Id. See also Commonwealth v. Losch, 369 Pa.Super. 192, 212, 535 A.2d 115, 125 (1987) (“[A defendant] has no right to a deal with the Commonwealth; the district attorney is ordinarily free to choose with whom he will negotiate.”) Moreover, as discussed in Bordenkircher, supra, the promise of leniency is not an improper inducement in the bargaining process. Once the defendant withdraws from his part of the bargain, by not entering a guilty plea, it cannot be said that the Commonwealth should remain bound by its now rejected offer. As our Supreme Court has stated:

In the event the plea offer is refused, the prosecutor is never prevented by due process principles from proceeding on the original indictment, notwithstanding the fact that he has deliberately attempted to dissuade the defendant from asserting a constitutional right.
If the Due Process Clause does not bar prosecution on the original indictment after the defendant’s refusal of a plea bargain offer, then it cannot bar reinstatement of the original indictment after revocation of a plea agreement.

Commonwealth v. Ward, 493 Pa. 115, 128-29, 425 A.2d 401, 408 (1981) (plurality), cert. den., 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (emphasis in the original). See also Pittman, 528 A.2d at 142 (“[T]his Court has consistently upheld, against due process challenges, the authority of the prosecutor to choose between procedures and sentencing alternatives.”) (citation omitted). Thus, we cannot agree with the sentencing court’s conclusion that the Commonwealth has exceeded “the proper limits of [its] discretionary role” in this instance. Sentencing Court Opinion, 1/6/95, at p. 11.

In addition, we find that the sentencing court’s conclusion that the Commonwealth’s policies with regard to mandatory sentencing are “applied arbitrarily and discriminatorily and constitute nothing more than coercion of the accused[,]” is unsupported by the record. Sentencing Court Opinion, 1/6/95, at p. 16. At the sentencing hearing, defense counsel called two prosecutors in order to inquire of them whether the district attorney’s office ever considered the background of the individual defendant before electing to proceed under the mandatory minimum sentencing provision. Assistant District Attorney Daniel Konieczka testified that the office policy was to waive the mandatory minimum sentence if the case presented evidentiary problems for the Commonwealth or the defendant cooperated in other investigations. Mr. Konieczka further testified that he believed that evidentiary problems existed in the present case because the Commonwealth’s theory was one of constructive possession of drugs found throughout the house and he feared that Appellee’s brother, who had already been adjudicated delinquent, and his mother, who had had charges dropped against her, would now come forward as defense witnesses and claim ownership of the drugs. Mr. Konieczka also testified that after Appellee was permitted to withdraw his guilty plea, his new counsel was offered the same plea agreement, but also was informed that the Commonwealth would seek the mandatory minimum sentence if the matter went to trial. Assistant District Attorney Richard Goldberg confirmed that the policy stated by Mr. Konieczka involved pre-trial considerations and that once a defendant decided to go to trial the mandatory minimum sentence would be sought.

Given this testimony, the sentencing court reasoned as follows:

As the Court interprets this testimony, it is not the policy of the District Attorney’s office to waive the mandatory sentence every time a case involves evidentiary concerns or a cooperative defendant. Rather, the District Attorney will waive the mandatory sentence if, and only if, a defendant “cooperates” or a defendant who might win a suppression hearing or a trial gives up his constitutional rights and pleads guilty — but not if he seeks to exercise those constitutional rights.
If [Appellee] had cooperated fully and truthfully and had provided credible evidence against others, but prior to trial had decided to “roll the dice” rather than plead guilty, could we expect the Commonwealth to ignore [Appellee’s] cooperation and seek the mandatory sentence? Following the District Attorney’s stated “office policies” the answer must be “yes,” clearly punishing the exercise of constitutional rights.
Despite the District Attorney’s admission that multiple “evidentiary problems” existed in this case, once [Appellee] chose to go to trial and suffered a conviction rather than simply pleading guilty, the prosecution conveniently ignored its own guidelines which direct that the mandatory sentence be waived. Thus, in every case where a suppression motion is denied and a defendant is convicted, regardless of the District Attorney’s pre-trial determination that evidentiary deficiencies rendered a conviction improbable or even questionable, the bright light of success blinds the prosecutor’s vision of the seemingly insurmountable obstacles that were once present in his case.
It is therefore inescapable that every time the District Attorney succeeds with weak evidence, he or she is free to, and does, ignore that the case was once fraught with deficiencies, which admittedly required a plea negotiation waiving a mandatory sentence. Claiming “evidentiary considerations” or “problems,” in these instances, is simply a ruse for coercion. “Evidentiary considerations” or “problems” are true obstacles to a successful prosecution when, and only when, a defendant pleads guilty. When a defendant chooses to exercise his constitutional right to a suppression hearing or trial and the District Attorney succeeds, these “problems” magically vanish — vaporized by the successful decision or verdict. Thus, the defendant is punished for exercising his constitutional rights of suppression and trial since waiver of the mandatory penalty is never available to one who elects this course.

Sentencing Court Opinion, 1/6/95, at pp. 17-19 (emphasis in the original).

We cannot agree with this interpretation of the Commonwealth’s testimony and will not speculate as to circumstances which are not properly presented in this case. Upon our own reading of the sentencing transcript, we conclude that the Commonwealth’s stated policy was to enter into plea negotiations in drug cases where the defendant had been cooperative as to other investigations or where the Commonwealth believed that, due to evidentiary concerns, its chance of conviction was not strong. This policy is not constitutionally infirm. Indeed, as noted above, our criminal system allows for the “give-and-take” of plea negotiation, and the fact that the more lenient sentence is offered as an incentive to plead is not violative of a defendant’s due process rights. The Commonwealth also testified that once put to the burden of going to trial, they would seek, as is permitted — and in fact intended— for all drug defendants, mandatory sentencing under the pertinent provision of the statute. As the policy noted by the Commonwealth does not infringe upon any “invidious classification,” Stafford, supra, at 272 Pa.Super. 510, 416 A.2d 573, the trial court’s conclusions that the policy is arbitrarily and discriminatorily applied is unfounded. Finally, as noted above, defense counsel inquired of the Commonwealth if it ever considered the individual circumstances of the defendant, that is, did the Commonwealth ever decide that a particular defendant “deserves a break” due to his or her age, educational level, or other mitigating circumstance. N.T., 2/1/94, at p. 16. The Commonwealth responded in the negative. It is our belief that, if the Commonwealth were to do as defense counsel suggested, clearly such a “policy” would be more suspect of arbitrary and discriminatory application.

With regard to prosecutorial vindictiveness, this Court has noted:

The [United States] Supreme Court cases dealing with vindictive prosecution have recognized two distinct situations in which the appearance of vindictiveness may require inquiry and judicial intervention. The first is where a prosecutive decision is based on discriminatory grounds of race, religion, national origin or other impermissible classification. See e.g. Bordenkircher v. Hayes, [434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ]. The other situation is where the accused is treated more harshly because he successfully exercised a lawful right, e.g. the right to seek a new trial. See e.g. Blackledge v. Perry, [417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)]; North Carolina v. Pearce, [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)].
# Hs Hi sfc *
In subsequent cases applying Pearce, however, the Supreme Court has made clear that due process does not forbid enhanced sentence or charges; rather, only enhancement motivated by actual vindictiveness toward the defendant for having exercised his legal rights is forbidden. See United States v. Goodwin, [457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ] (presumption of prosecutorial vindictiveness not warranted where defendant charged with felony after refusing to plead guilty to misdemeanor charges; prosecutor’s charging decision made before trial is less likely to be improperly motivated than decision made after trial); Bordenkircher, supra (Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged; there is no such presumption of vindictiveness in the “give and take” of plea negotiations, so long as the accused is free to accept or reject prosecution’s offer)[.]

Commonwealth v. Rocco, 375 Pa.Super. 330, 334-35, 336, 544 A.2d 496, 498, 499 (1988), alloc. den., 522 Pa. 575, 559 A.2d 36 (1989). See also Ward, 425 A.2d at 409 (“Not even the appearance of retaliation arises where a defendant simply is returned to his pre-agreement status after successfully abrogating his part of the plea bargain.”) When Appellee withdrew his guilty plea, his counsel was informed by the Commonwealth that it would seek the imposition of the mandatory minimum if Appellee went to trial. In essence, Appellee was returned to his pre-agreement status. Because the Commonwealth thereafter promptly notified the sentencing court of its intention to seek the mandatory minimum, the sentencing court was without power to sentence Appellee to a term of incarceration below the mandatory minimum. See generally, Commonwealth v. Green, 406 Pa.Super. 120, 593 A.2d 899 (1991).

Finally, the sentencing court claims that the district attorney’s practice of bartering with the mandatory sentences pre-trial in reaching plea agreements permits circumvention of the court’s supervisory function under Pa.R.Crim.P. 319. The sentencing court argues:

Since the Biddle/Pittman Courts have rendered the trial court powerless in determining the applicability of mandatory minimum sentences, by using the threat of these sentences to induce plea agreements, the District Attorney had successfully bypassed the Court’s prerogative to determine if the agreements serve the best interest of justice. In so doing, the prosecution has perverted the plea bargaining system, preventing the court’s review of whether a defendant was coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees including the right to a suppression hearing and/or a trial.
There is an affirmative duty on the part of the Court to insure that the terms of the plea agreement are openly acknowledged and evaluated. However, where the agreement is predicated upon the exercise of the District Attorney’s discretion in giving “notice of intention to proceed” under the mandatory provisions, the court’s ability to exercise its supervisory function pursuant to Rule 319 by accepting or rejecting the plea agreement is emasculated. Since this Court cannot sua sponte impose a mandatory penalty, the Court lacks the authority to reject a plea agreement predicated upon the District Attorney’s waiver of the mandatory sentence. Certainly, this practice is violative of the entire plea bargaining process and cannot be tolerated.

Sentencing Court Opinion, 1/6/95, at p. 20.

We are not persuaded by the sentencing court’s reasoning. We agree that court approval of a plea agreement is far more than a ministerial act. As noted by the sentencing court, this Court has stated: “To the extent that a proposed plea agreement goes beyond the legitimate discretionary authority vested in the prosecutor, and seeks to bind the sentencing authority vested in the judiciary, court approval of a proposed plea agreement via Pa.R.Crim.P. 319 involves a substantive exercise of judicial sentencing discretion, as well as an act of procedural guardianship.” Commonwealth v. Porreca, 389 Pa.Super. 553, 568, 567 A.2d 1044, 1051 (1989), rev’d on other grounds, 528 Pa. 46, 595 A.2d 23 (1991) (emphasis in original). In Porreca, this Court found that an assistant deputy attorney general had no authority to bargain away the trial court’s sentencing authority. Such is not the case in the instant appeal. Rather, the Legislature has established a minimum sentence which must be imposed unless the Commonwealth decides not to proceed under the statute. Thus, the following language of Porreca is more apropos: “If the bargain struck is limited to concessions which lay within the direct authority of the prosecutor to fulfill, court approval will not be necessary to fulfill the bargain.” Id., 389 Pa.Super. 570, 567 A.2d at 1052 (footnote omitted). Because appellate case law has held that the Legislature intended that the Commonwealth determine, in its sole discretion, whether to seek a mandatory sentence, and that that discretion can be used in a constitutionally firm manner during plea negotiations, we must conclude that the trial court erred in failing to impose the mandatory minimum.

Judgment of sentence vacated. The matter is remanded for resentencing consistent with this memorandum. Jurisdiction relinquished.

      . The Commonwealth’s right to appeal a court's refusal to impose a mandatory sentence is specifically provided by statute. See generally, 18 Pa.C.S.A. § 7508(d).

      . 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S.A. §§ 903 and 908, respectively.

      . Appellee was adjudicated guilty prior to Januaiy 1, 1994, and there is no indication in the record that the court below vacated the judgment of sentence in order to afford additional time to consider the motion. Thus, under pre-amended Rule 1410 of the Pennsylvania Rules of Criminal Procedure, because the sentencing court failed to act within the thirty day appeal, the motion was denied by operation of law. See generally, Pa.R.Crim.P. 1410, 42 Pa.C.S.A. and accompanying Comment, and Pa.R.A.P. 1701, 42 Pa.C.S.A.

      . We note that, while claiming the Commonwealth’s actions were constitutionally impermissible, the sentencing court’s 1925(a) opinion is devoid of any due process analysis.

      . There was much confusion as to who represented Appellee on appeal. The brief ultimately filed by Appellee’s counsel is no more than a wholesale adoption of the sentencing court’s reasoning and argument. Thus, we address these arguments together.

      . Appellee, his brother, and mother were arrested at the same time.

      . It appears that the trial court allowed Appellee to withdraw his guilty plea because it was made pre-trial and a possible conflict of interest existed because the same counsel represented Appellee, his brother, and his mother.

      . In reversing this Court’s decision in Porreca, our Supreme Court determined that the lack of inquiry into the defendant’s affirmative response to a written plea colloquy question regarding existence of threats or promises made to persuade him to enter a guilty plea mandated a remand for a new guilty plea colloquy.

      . Once again, in answer to the trial court’s protestations that the Legislature never intended to confer this discretion upon the prosecution, we echo footnote 9 of this Court’s decision in Commonwealth v.

        Biddle, supra, wherein we stated that the legislature has not seen fit to amend section 7508 in light of this Court’s interpretation of similar statutory language. Moreover, we cannot concur with the sentencing court’s statement at sentencing which implies that our Legislature is ignorant of subsequent court interpretation of its legislation. See N.T., 2/1/94; at pp. 41-42 ("Oh, good Lord, Mr. Sachs, do you think any [of our legislators] ever read Pittman?").

      . Because this disposition may disturb the sentencing scheme of the court below, Appellee’s judgment of sentence is vacated in its entirety. See generally, Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. den., 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798.


author: HUDOCK, Judge.

text:
    664 A.2d 979
    Mary COLONNA, Appellant, v. Steven RICE, DDS, and Kimmelman-Rice, DDS, PC, Appellees.
    Superior Court of Pennsylvania.
    Argued June 29, 1995.
    Filed Aug. 1, 1995.
    Reargument Denied Oct. 11, 1995.

      Irving L. Abramson, Radnor, for appellant.
    Michelle T. Wirtner, Philadelphia, for Steven Rice, DDS, appellee.
    Robert L. Ignasiak, Plymouth Meeting, for KimmelmanRice, DDS, PC, appellee.
    Before ROWLEY, President Judge, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge.

Mary Colonna (Appellant) appeals from the order of the Court of Common Pleas of Philadelphia County granting summary judgment in favor of Steven Rice, DDS, and Kimmelman-Rice, DDS, PC (Appellees) in a medical malpractice action. We affirm.

This action was commenced against Appellees on April 28, 1992. In her complaint, Appellant alleged that Appellees were negligent in that they never informed her of her periodontal condition and never initiated any meaningful treatment. The record reveals that in 1978, Appellant began to visit Dr. Rice as her dentist. In 1985, Dr. Rice extracted two of Appellant’s teeth and informed her that her teeth were loose due to gum disease. Dr. Rice did not perform any other treatment for the disease at this time. Appellant did not return to Dr. Rice’s office until 1988. On April 21, 1988, Dr. Rice performed an intra-coronal splint on Appellant’s teeth. In her deposition, Appellant stated that her insurance company denied her claim for reimbursement since the claim was cosmetic. However, Appellant stressed that she thereafter wrote to her insurance company to inform them that the procedure was not cosmetic but was necessary in order to treat her gum disease. Appellant also stated that, at this time, she became aware that she had some sort of periodontal condition. Dr. Rice also commenced deep scaling and root planing on Appellant’s teeth in 1989.

After the complaint was filed, Appellees filed an answer and new matter in which they alleged that Appellant’s dental malpractice action was time barred by the two-year statute of limitations. See 42 Pa.C.S.A § 5524(2). On December 15, 1994, the trial court entered summary judgment in favor of Appellees. On appeal, Appellant claims that the “discovery rule” exception to the statue of limitations applies to her cause of action since she was not aware, until August 1991 when she consulted with a periodontist, that she had advanced periodontal disease.

Our standard of review on summary judgment cases is clear:

In reviewing an entry of summary judgment, this Court may disturb the order of the trial court only where there has been an error of law. This Court applies the same standard as the trial court, affirming a grant of summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In deciding whether summary judgment should have been granted, this Court must examine the record in the light most favorable to the non-moving party.

Jenkins v. Bolla, 411 Pa.Super. 119, 123, 600 A.2d 1293, 1295 (1992) (citations omitted). “Summary judgment may properly be entered in favor of a defendant when the plaintiffs cause of action is barred by the statute of limitations.” Brooks v. Sagovia, 431 Pa.Super. 508, 510, 636 A.2d 1201, 1202 (1994).

The discovery rule and its application in Pennsylvania to a motion for summary judgment is as follows:

It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). “Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).
Generally, once the prescribed statutory period has expired, the complaining party is barred from bringing suit. The “discovery rule,” however, is an exception to that rule, and its application tolls the running of the statute of limitations. The “discovery rule” provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Schaffer at 406, 189 A.2d at 270. The “discovery rule” arises from the inability of the injured party, despite the exercise of reasonable diligence, to know of the injury or its cause. Pocono at 85, 468 A.2d at 471. Its purpose is to exclude the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury. Pounds v. Lehman, 384 Pa.Super. 358, 363, 558 A.2d 872, 874 (1989).
Whether the statute has run on a claim is usually a question of law for the trial judge, but where the issue involves a factual determination, the determination is for the jury. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Sadtler v. Jackson-Cross Co., 402 Pa.Super. 492, 501, 587 A.2d 727, 732 (1991).

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324-25, 608 A.2d 1040, 1042-43 (1992). Further, the level of reasonable knowledge required is (1) knowledge that one has been injured; and (2) that his injury has been caused by another party’s conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135-36, 471 A.2d 493, 500 (1984) (en banc). The failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law. Baumgart v. Keene Building Products Corporation, 430 Pa.Super. 162, 169-70, 633 A.2d 1189, 1193 (1993), alloc, den., 538 Pa. 607, 645 A.2d 1311 (1994). In determining whether reasonable diligence has been used, we are guided by the following:

The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. The fact that this individual plaintiff may have lacked knowledge of his or her injury is “irrelevant,” “the statute is tolled only if a reasonable person in the plaintiffs position would have been unaware of the salient facts.” In defining reasonable diligence, the courts have stated “[tjhere are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.” Moreover, with respect to knowledge of a claim, “plaintiffs need not know that they have a cause of action, or that the injury was caused by another party’s wrongful conduct, for once a plaintiff possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.”

A. McD. v. Rosen, 423 Pa.Super. 304, 309, 621 A.2d 128, 131 (1993) (citations omitted) (quoting Baily v. Lewis, 763 F.Supp. 802, 806-07 (E.D.Pa.1991), aff'd., 950 F.2d 721 (3d Cir.1991)).

In Brooks v. Savogia, supra, a similar issue was presented to this Court. In that case, summary judgment was granted in favor of the defendant in a malpractice action based upon the dentist’s alleged failure to diagnose periodontal disease. The plaintiff, Dorthea Brooks, was a patient of Dr. Sagovia from October 21, 1985 to May 11, 1987. In March, 1988, the plaintiff was treated by another dentist, Dr. Sockel, who told her “that she was suffering from extensive periodontal disease which had caused a 50% loss of bone.” Brooks, 636 A.2d at 1202. A second opinion confirmed this diagnosis and, thereafter, the plaintiff began treatment with a periodontist. On June 20, 1990, the plaintiff, by writ of summons, instituted a lawsuit against Dr. Sagovia, and, on January 15, 1992, filed a complaint alleging the negligence of the dentist. The trial court, after a motion for summary judgment, dismissed the plaintiff’s complaint on the basis that the cause of action was barred by the applicable two-year statute of limitations. On appeal, this Court, after a thorough analysis of the discovery rule and its application, affirmed the trial court’s decision. This Court, in reviewing the relevant facts, reasoned:

that appellant possessed the requisite degree of knowledge prior to June, 1988. In March, 1988, Brooks had been diagnosed and was informed that she had extensive periodontal disease. In her deposition testimony, she admits that when Dr. Sockel informed her that the disease had caused a 50% bone loss she “assumed that [it] wasn’t something that just happened.” Her testimony also indicated that at the time she learned of her disease, she wondered, if she had been receiving dental care and the disease was detectable, why hadn’t she been informed that she had it. Moreover, Dr. Sockel informed Brooks that the bone loss was visible on x-rays which Dr. Sagovia had taken in October, 1985. Brooks testified that this upset her because “if it was there, [she thought she] should have been told it was there.” It is clear, therefore, that already in March, 1988, appellant possessed the requisite degree of knowledge needed to commence suit against Dr. Sagovia. She knew or reasonably should have known that she had had the disease while she had been a patient of the appellee-dentist and that appellee had failed to tell her of it.

Id. at 1203-04.

In applying the facts of the present matter to the relevant case law, we conclude that summary judgment was properly granted in favor of Appellees since Appellant possessed the requisite degree of knowledge to assert this cause of action prior to her 1991 visit to a periodontist. In Appellant’s deposition, she admitted that she had known as early as 1985 that she had gum disease and her teeth were loosening. However, at this point, Dr. Rice did not treat her for gum disease. Even with the knowledge that she had gum disease, Appellant did not return to the dentist’s office until 1988. When asked why she did not return to the dentist for such a long period of time, Appellant responded, “I knew my teeth were clean, I was using good hygiene, and I hadn’t had any cavities in a long time. And, yes, the teeth were getting loose, but he said that I would expect that because of gum disease and there’s nothing you can do about it.” Appellant’s Deposition, at p. 35. Even accepting Appellant’s statement as true and thus assuming that she was reasonable in 1985 in not seeking further advice, Appellant’s condition evidently continued to worsen. This is apparent through the procedures performed upon Appellant after her return to Appellees’ office in 1988. It was at this time that splinting, a dental procedure needed for the treatment of more advanced gum disease, was needed on her teeth and, upon submission of the claim to her insurance, Appellant admitted that the treatment was a result of her gum disease. Given these facts, especially the continuing loosening of her teeth as early as 1985, we cannot say that Appellant acted with reasonable diligence in informing herself of the facts and circumstances involving her gum disease. A person using reasonable diligence should have been aware that the proper treatment was not being given for such condition at least as early as 1988. Moreover, proper treatment may have been given had Appellant not waited three years before returning to the dentist. Appellant, however, asserts that she had no reason to believe that Dr. Rice was negligent in his treatment. However, as we stated above, it is not a requirement that one know that their injury has been caused by the negligent conduct of another. See Bickford v. Joson, 368 Pa.Super. 211, 216-17, 533 A.2d 1029, 1032-33 (1987), alloc, den., 518 Pa. 647, 544 A.2d 959 (1988). Appellant must be charged with the duty to investigate her injury even though she did not believe that Dr. Rice was negligent.

Finally, we reject Appellant’s claim that Dr. Rice concealed the true nature of her injury. Appellant espouses that Dr. Rice did not reveal to her the true, advanced nature of her gum disease. Moreover, she claims that she had no reason to consult with another dentist since she fully trusted Dr. Rice as a professional. In reviewing this claim, we are guided by the following:

Where, “through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry,” the defendant is estopped from invoking the bar of the statute of limitations. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). Moreover, defendant’s conduct need not rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964). Mere mistake, misunderstanding or lack of knowledge is insufficient however, Schaffer v. Larzelere, supra; and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party. Nesbitt v. Erie Coach Company, supra.

Levenson v. Souser, 384 Pa.Super. 132, 149, 557 A.2d 1081, 1089 (1989), alloc, den., 524 Pa. 621, 571 A.2d 383 (quoting Molineux v. Reed, 516 Pa. 398, 532 A.2d 792, 794 (1987)). “The burden of proving the existence of such fraud or concealment is upon the asserting party by evidence that is clear, precise and convincing.” DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 504, 460 A.2d 295, 301 (1983) (citation omitted).

We find Appellant’s claim to be without merit. Merely because Appellant put trust in Dr. Rice does not relieve her of responsibility to be diligent concerning her own medical treatment. See Levenson, 557 A.2d at 1090. Further, we cannot conclude that Dr. Rice concealed the true nature of Appellant’s injury. As stated above, a reasonable person would have further investigated one’s condition given the symptoms suffered by Appellant. Arguably, after reviewing Appellant’s deposition testimony, it may appear that in 1985 Dr. Rice concealed the true nature of her condition by allegedly stating that there was nothing they could do about her condition. However, by 1988, there is no evidence of concealment, especially as Dr. Rice performed several major procedures on Appellant’s teeth.

Order affirmed.