text:
    497 A.2d 612
    In re ESTATE OF Ethel McSorley MIHM, Deceased. Appeal of STERLING LAND COMPANY, John McSorley, III, Michael McSorley, David McSorley, Cathleen McSorley Stanton, Mary McSorley, Robert McSorley and Robert McSorley, Jr.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed Aug. 16, 1985.

      John J. McLean, Jr., Pittsburgh, for appellants.
    Kenneth E. Lewis, Pittsburgh, for appellee.
    Before BROSKY, WIEAND and LEDERER, JJ.

       The Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

The orphans’ court refused to order specific performance of a written agreement which purported to obligate the Estate of Ethel McSorley Mihm, deceased, to sell for $475,-000 a one-third interest in a closely held, family corporation allegedly worth $1,800,000. This appeal was filed by the owners of the remaining two-thirds. We affirm.

The task of a reviewing court is to determine whether the record contains evidence which will support the trial judge’s findings of fact, not to substitute its view of the evidence for his. United States Steel Corp. v. Hoge, 304 Pa.Super. 182, 188 n. 6, 450 A.2d 162, 165 n. 6 (1982), rev’d on other grounds, 503 Pa. 140, 468 A.2d 1380 (1983). “Even meager or uncorroborated evidence will support the [trial court’s] findings if the evidence is of record and properly before the court.” Id. It is also the responsibility of a reviewing court to determine whether the law was correctly applied to the facts by the trial court. See: Lawner v. Engelbach, 433 Pa. 311, 315, 249 A.2d 295, 297 (1969); Silo Realty Corp. v. Redevelopment Authority of the City of Philadelphia, 289 Pa.Super. 67, 70, 432 A.2d 1053, 1055 (1981); Barbet v. Ostovar, 273 Pa.Super. 256, 260, 417 A.2d 636, 638 (1979).

A review of the law applicable to an action for specific performance of a contract was included in the opinion of the Supreme Court in Snow v. Corsica Construction Co., 459 Pa. 528, 329 A.2d 887 (1974).

“Inadequacy of consideration is not ground for refusing to decree specific performance of a contract to convey real estate, unless there is evidence of fraud or unfairness in the transaction sufficient to make it inequitable to compel performance: Harris v. Tyson, 24 Pa. 347, 360; Graham v. Pancoast, 30 Pa. 89, 97; Cummings’s App., 67 Pa. 404; Bowers v. Bennethum, 133 Pa. 306, 19 A. 624; Jackson’s Est., 203 Pa. 33, 52 A. 125. ‘Inadequacy of price, improvidence, surprise, and mere hardship, none of these, nor all combined, furnish an adequate reason for a judicial rescission of a contract. For such action something more is demanded,—such as fraud, mistake or illegality.’ Frey’s Est., 223 Pa. 61, 65, 72 A. 317, 318. Although relief in equity is a matter of grace only and not of right, and rests in the discretion of the court, to be exercised upon a consideration of all the circumstances of the case, it does not follow that a decree for specific performance must be entered in all cases where the agreement is legally sound and the price adequate, but if the transaction be inequitable or unjust in itself or rendered so by matters subsequently occurring, specific performance may be denied and the parties turned over to their remedy in damages (Rennyson v. Rozell, 106 Pa. 407, 412), and, while no rule applicable to all cases can be announced, it may be said that specific relief will be granted if apparent that, in view of all the circumstances, it will subserve the ends of justice, and will be withheld where, on a like view, it appears hardship or injustice will result to either of the parties. Rennyson v. Rozell, supra; Spotts v. Eisenhauer, 31 Pa.Super. 89, 93.”

Id., 459 Pa. at 531-532, 329 A.2d at 888-889, quoting Welsh v. Ford, 282 Pa. 96, 99, 127 A. 431, 432 (1925). See also: Payne v. Clark, 409 Pa. 557, 560, 187 A.2d 769, 771 (1963).

Sterling Land Company, incorporated in 1915, was owned by John McSorley and was engaged in owning and managing apartments and other real estate in Allegheny County. In 1931, McSorley transferred all the stock in his corporation to his six children: Arthur, G. Franklin, John, Jr., Robert, Virginia and Ethel (Mihm). Subsequent increases in capitalization and the declaration of stock dividends resulted, by 1946, in each child’s ownership of 776 shares. In that year, the stockholders decided to restrict the right to sell stock by agreeing that each would sell only to other shareholders. An initial value of $250,000 was placed upon each stockholder’s interest. Later, this value was increased to $300,000. Still later, in 1958, the shareholders agreed that if the value could not be agreed upon, the value of each interest would be determined by arbitration. Arthur died in 1964, and it was agreed that the corporation would purchase his shares for $450,000. His shares of stock were then retired. In 1966, G. Franklin died, and the value of his stock was fixed by arbitration at $440,000. His stock was also purchased by the corporation and retired. A new agreement was executed in 1967. Pursuant thereto, Ethel agreed that upon her death, her stock was to be sold to the corporation for $475,000. The two remaining brothers and a sister were not equally bound; their heirs could elect to sell the shares owned by their decedent to the corporation or retain the shares and join the corporate enterprise. Ethel’s interest was treated differently, it was explained, because it was not expected that her children would become active in the business of the corporation. In January, 1973, Virginia executed an agreement that upon death her stock should be sold to the corporation for $250,000. She died on December 12, 1973, and the corporation purchased her stock for $250,000. Although the three surviving shareholders, to wit, John, Robert and Ethel, continued to own only 776 shares of Sterling Land Company, each now owned a one-third interest in the corporate enterprise.

In 1976, Ethel executed another agreement. By the terms of this agreement, she bound her estate to sell her stock to the corporation for $475,000. She and the corporation were the sole parties to the agreement; the earlier agreement of 1967 remained in effect as to Robert and John, Jr. When Ethel died in 1978, her estate refused to sell her interest for $475,000. This precipitated the present litigation.

The trial court found that Ethel’s involvement in the corporate enterprise had been limited to ministerial functions and that she had not been familiar with the scope of the corporate business or the financial aspects thereof. The corporation’s business had been conducted by the two brothers, Robert and John. Robert was a lawyer, and he drafted the several buy-sell agreements. Ethel relied upon him to advise her regarding corporate matters and also with respect to the reasons for and effect of the buy-sell agreements which she executed in 1967 and 1976. The trial court found, based upon this evidence, that a confidential relationship had existed between Ethel and her brothers and that she relied upon and trusted them to protect her interests. There was a long-standing and close family relationship, the court said, that caused Ethel “to deal with her brothers without the precaution normally used in transactions with a stranger.” Thus, Ethel did not separately consult counsel. Her son testified that she had not been aware of the state of the corporation’s business and had relied upon Robert for advice. Even Robert and John conceded that Ethel relied upon them for information regarding corporate business.

“The general test for determining the existence of [a confidential] relationship is whether it is clear that the parties did not deal on equal terms.” Frowen v. Blank, 493 Pa. 137, 145, 425 A.2d 412, 416 (1981). A confidential relationship was defined in Brooks v. Conston, 356 Pa. 69, 51 A.2d 684 (1947), as follows: Id., 356 Pa. at 76-77, 51 A.2d at 688. A confidential relationship “is not confined to any specific association of the parties; it is one wherein a party is bound to act for the benefit of another, and can take no advantage to himself. It appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed____” Leedora v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411 (1922). In some cases, as between trustee and cestui que trust, guardian and ward, attorney and client, and principal and agent, the existence of a confidential relationship is a matter of law. In others, as between parent and child or brother and sister, the existence of a confidential relationship is an issue of fact to be established by the evidence. Null’s Estate, 302 Pa. 64, 68, 153 A. 137, 139 (1930). Accord: Peoples First National Bank and Trust Co. v. Ratajski, 399 Pa. 419, 160 A.2d 451 (1960). Although the mere existence of kinship does not, of itself, give rise to a confidential relation, it is a factor to be considered. See: Moyer v. Moyer, 356 Pa. 184, 186-187, 51 A.2d 708, 709 (1947); Null’s Estate, supra. See generally: Peoples First National Bank and Trust Co. v. Ratajski, supra (uncle and niece); Hamberg v. Barksy, 355 Pa. 462, 50 A.2d 345 (1947); Drob v. Jaffe, 351 Pa. 297, 41 A.2d 407 (1945).

Confidential relation is any relation existing between parties to a transaction wherein one of the parties is bound to act with the utmost good faith for the benefit of the other party and can take no advantage to himself from his acts relating to the interest of the other party: Leedom v. Palmer, 274 Pa. 22, 117 A. 410; Harrison v. Welsh, 295 Pa. 501, 145 A. 507; Null’s Estate, 302 Pa. 64, 153 A. 137. This Court has recently defined confidential relationship in Drob v. Jaffe, 351 Pa. 297, 41 A.2d 407. Mr. Justice Horace Stern said, p. 300 [41 A.2d 407]: “... a confidential relationship is not limited to any particular association of parties but exists wherever one occupies toward another such a position of advisor or counsellor as reasonably to inspire confidence that he will act in good faith for the other’s interest____” That case was cited with approval in Hamberg v. Barsky et al., 355 Pa. 462, 466, 50 A.2d 345, and in Shook v. Bergstrasser, 356 Pa. 167, 51 A.2d 681. See also: McCown v. Fraser, 327 Pa. 561, 192 A. 674; Metzger v. Metzger, 338 Pa. 564, 14 A.2d 285; Stewart Will, 354 Pa. 288, 47 A.2d 204; Dichter Will, 354 Pa. 444, 47 A.2d 691.

In the instant case, the existence of a confidential relationship was an issue of fact. The orphans’ court which heard the evidence found that a confidential relationship had existed. We accept that finding because, as we have observed, there is evidence to support it. That finding, approved by the court en banc, has the weight of a jury’s verdict. Peoples First National Bank and Trust Co. v. Ratajski, supra 399 Pa. at 423, 160 A.2d at 453.

“Transactions between persons occupying a confidential relationship are prima facie voidable, and the party seeking to benefit from such a transaction has the burden of proving that the transfer was indeed fair, conscientious and beyond the reach of suspicion.” Frowen v. Blank, supra, 493 Pa. at 149, 425 A.2d at 418. The trial court found that the price inserted into the agreement of 1976 was grossly inadequate and unfair and that the decedent had not been made aware of the true value of her interest in the corporation. This is supported by the evidence. In 1970, the corporation had agreed to sell the corporate business for a price of $3,650,000. Although this agreement was never consummated, it suggests an awareness, even in 1970, that the agreement with Ethel contained an inadequate price. The value of the decedent’s interest, moreover, had increased substantially by the corporate purchase and retirement of the interests of two brothers and a sister who had predeceased her. It is an inadequate answer, in the face of these circumstances, to suggest that the decedent’s interest was undervalued in order to establish a low basis for determining the amount of estate taxes.

Appellants’ reliance upon the decision in In re Brown Estate, 446 Pa. 401, 289 A.2d 77 (1972), is misplaced. There, the Supreme Court recognized the general rule that buy-sell agreements are specifically enforceable and cannot be avoided merely because of inadequacy of price. The facts of that case did not involve a confidential relationship.

The facts found by the orphans’ court in the instant case are similar to the facts in Brooks v. Conston, supra. There, the Supreme Court held that a confidential relationship existed between a forty-one year old widow and her neighbor, Harry Conston, a close friend who acted as her business advisor and counsellor after her husband’s death. The widow subsequently granted to Conston, upon his advice, an option to purchase a chain of millinery stores. Specific performance of the agreement was denied because the price was inadequate, and because Conston failed to prove that he had not acted in his own interest and had not taken advantage of the widow’s confidence.

The decedent in the instant case had placed her trust in her brothers, Robert and John, and had relied upon them to act in her best interests in conducting the affairs of the family owned corporation. This gave rise to a confidential relationship and required Robert and John to exercise the utmost good faith and take no advantage to themselves. The agreements which Robert induced the decedent to sign during her lifetime required that the decedent’s interest in the business be sold for a price that was grossly inadequate and unfair. Robert and John did not similarly bind themselves and their estates; their agreement permitted them to perpetuate their interest in the corporation and pass it to their heirs. Under these circumstances it cannot be said that the orphans’ court abused its discretion by refusing to decree specific performance.

Order affirmed.

      . The arbitration and purchase were not completed until 1970.

      . In this case, a confidential relationship was held to exist between an 86 year old widow and a neighboring couple with whom a close, social relationship had developed.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    497 A.2d 616
    COMMONWEALTH of Pennsylvania v. William G. BARNHART and Linda Barnhart, Appellants.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed Aug. 16, 1985.

      Bruce F. McKenrick and Fremont J. McKenrick, Ebensburg, for appellants.
    Patrick T. Kiniry, Assistant District Attorney, Johnstown, for Commonwealth, appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

This matter comes before us on appeal from judgment of sentence for involuntary manslaughter and endangering the welfare of a child. Appellants’ convictions follow the death of their infant son. The child, Justin Barnhart, age 2 years and 7 months, died as a result of an untreated Wilms’ tumor. Appellants, life-long members of the Faith Tabernacle Church, had relied on God to the exclusion of modern medicine to cure the boy’s cancer. Justin’s death sparked an inquiry. As a result of that investigation, appellants were tried and convicted by a jury on counts of involuntary manslaughter and endangering the welfare of a child. Their post-verdict motions denied, appellants received terms of probation. They now appeal.

Appellants raise five points of error. The first squarely frames the conflict in this case: the competing interests of parent and state in a child’s life.

I

Appellants argue that the criminal statutes were unconstitutionally applied to punish conduct protected by the free exercise clause of the First Amendment. At issue was appellants’ failure, for religious reasons, to seek medical treatment for their child. The statutes provide:

Endangering welfare of children
A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18 Pa.C.S. Sec. 4304, and:

Involuntary manslaughter
A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, he causes the death of another person.

18 Pa.C.S. Sec. 2504(a). Against these statutory proscriptions, appellants assert a claim of religious right. They contend their conduct as parents raising children within a particular religious order, by the principles and tenets of that order, is protected by the First Amendment. See U.S. Const.Amend. I. Conceding that the state may lawfully abridge their religious freedom, appellants argue that the state has failed to define with specificity what conduct, otherwise protected, is forbidden by Sections 4304 and 2504(a). “When the Commonwealth acts to limit this basic freedom, it must do so in clear and unambiguous terms so that potential Appellants know what conduct is proscribed.” Appellants’ Brief at 15.

Section 4304 speaks of a “duty of care.” The Crimes Code nowhere defines this duty. The Commonwealth, in response to appellants’ request for “the specific law which imposes the duty of care which is alleged to have been violated by the Defendants,” stated:

The duty to render care for one’s child arises out of the relationship of parent and child. The right to receive medical care is one created by natural law, attributable to the nature of mankind rather than to enactments of law. Various statutes of the Commonwealth of Pennsylvania impliedly recognize this natural right and corresponding duty by providing for remedies to ensure the welfare of children whose parents fail to provide reasonable medical care necessary for the child’s health.

Although the Commonwealth failed to elaborate, ample authority exists for its proposition. A parent is charged with the duty of care and control, subsistence and education necessary for the child’s physical, mental and emotional health and morals. See 42 Pa.C.S. Sec. 6302 (defining “dependent child”). At the very least, he or she must act to avert the child’s untimely death. See Commonwealth v. Breth, 44 Pa.C. 56 (Clearfield Co. 1915); Commonwealth v. Hoffman, 29 Pa.C. 65 (Blair Co.1903) (parent found guilty of involuntary manslaughter for failure to seek medical assistance for sick child); see also Commonwealth v. Howard, 265 Pa.Super. 535, 538, 402 A.2d 674, 676 (1979) (“A parent has the legal duty to protect her child, and the discharge of this duty requires affirmative performance.”). “The inherent dependency of a child upon his parent to obtain medical aid, i.e., the incapacity of a child to evaluate his condition and summon aid by himself, supports imposition of such a duty upon the parent.” Commonwealth v. Konz, 498 Pa. 639, 644, 450 A.2d 638, 641 (1982) (explaining Breth and Hoffman).

Appellants’ vagueness challenge rests ultimately on the procedural due process requirement of notice. Due process requires a minimum degree of definiteness in the statutory prescription of standards, language which conveys “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223, 231-232, 71 S.Ct. 703, 707-708, 95 L.Ed. 886 (1951). Appellants were charged with consciously disregarding “a substantial and unjustifiable risk that death would result after observing the presence and continuous growth of a tumor in the stomach of Justin Barnhart which caused a continuous weight loss and which ultimately resulted in Justin Barn-hart’s death by starvation.” At the coroner’s inquest, appellant William G. Barnhart testified that he and his wife were aware of his son’s condition: “Well we realized he was going downhill and in his body—our little neighbor boy, Scotty Gates, died with leukemia and Justin seemed like he fell that same rut in that short time and it took a lot of faith to keep looking up.” William G. Barnhart’s inquest testimony would indicate appellants knew Justin’s death was imminent. Little remains, therefore, of appellants’ “no-notice” claim.

What does remain is troublesome. Our decision today directly penalizes appellants’ exercise of their religious beliefs. Appellants ask how we can hold them criminally liable for putting their faith in God. No easy answer attends. A central tenet of appellants’ faith is that life rests ultimately in God’s hands. Three generations of appellants’ family have adhered to that belief. As Pastor Charles Wallace Nixon explained, more than concern for the child’s physical well-being, the church’s “greater concern” was for the child’s spiritual interest or eternal interest:

Well, the only greater concern would have been his spiritual interest or eternal interest.
It has been stated by our presiding elder, by Pastor Reinert, he said, “that the courts and people would not possibly as a whole accept a statement like that, but it has been said that that is an abuse or child abuse or in other words harmful to the child.” We would consider going to a doctor and trusting in medicine doing greater harm because it would be harmful as we believe in our belief, it would be harming the spiritual and eternal interest of the child and the parents as well in doing so.

Accepting as true these statements of appellants’ religious beliefs, the question becomes one of degree: to what extent may a parent impose these beliefs on a minor child?

Appellants’ right to hold and to practice their religious beliefs free from governmental interference is guaranteed by the free exercise clause of the First Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment, and by Article I, Section 3 of the Pennsylvania Constitution. Appellants’ right to raise their child by these beliefs follows from the guarantee of religious freedom and the state’s traditional deference to the parents’ authority over their child. See In re Green, 448 Pa. 338, 292 A.2d 387 (1972) (unless the child’s life is immediately imperiled, the state’s interest must give way to the parent’s religious beliefs precluding medical treatment); see also Bellotti v. Baird, 443 U.S. 622, 639 n. 18, 99 S.Ct. 3035, 3046 n. 18, 61 L.Ed.2d 797 (1979) (suggesting there exists a constitutional parental right against undue, adverse interference by the state). Appellants’ exercise of these rights has brought them in conflict with other established law. An examination of the bases of these rights makes clear that the conflict was all but inevitable.

The guarantee of freedom of religion is intended to secure the rights of the individual as against the state. Underlying the guarantee is a principle of neutrality, a belief that religion is “not within the cognizance of civil government.” Reynolds v. United States, 8 Otto 145, 163, 98 U.S. 145, 163, 25 L.Ed. 244 (1878). However nice the distinction in theory, as the case at bar attests it sometimes fails in practice.

Assertion of a claim of religious right does not vouchsafe the parents secure from state influence in every aspect of their children’s lives. As the United States Supreme Court in Prince v. Massachusetts, 321 U.S. 158, 64 5. Ct. 438, 88 L.Ed. 645 (1944), explained:

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparations for obligations the society can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or child to communicable disease or the latter to ill health or death.

Id. at 166-167, 64 S.Ct. at 442 (citations omitted). For its last proposition, the Court cites the case of People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903).

The question whether a parent may be held criminally liable when the exercise of his or her religion results in the child’s death is one of first impression for our appellate courts. The court in Green, concluding that the child’s life was not in immediate physical peril, did not reach that question. 448 Pa. at 345, 292 A.2d at 392. Neither this Court nor our Supreme Court have addressed the issue on the merits. See Commonwealth v. Konz, 498 Pa. at 644, 450 A.2d at 641 (dicta); Commonwealth v. Comber, 170 Pa.Super. 466, 469, 87 A.2d 90, 93 (1952) (dicta), rev’d on other grounds, 374 Pa. 570, 97 A.2d 343 (1953). Of the pair of lower court cases which have grappled with the issue, one attempted to dissolve the dilemma, Commonwealth v. Breth, 44 Pa.C. 56 (Clearfield Co.1915), while the other rode roughshod through it, Commonwealth v. Hoffman, 29 Pa.C. 65 (Butler Co.1903).

In Hoffman, a child died of scarlet fever after his father called in the elders of a Christian Scientist Church rather than a physician who was near and available. Framing the issue as a question of reasonableness, the court asked the jury to determine whether an ordinarily prudent man would have relied on these remedies alone. The court answered defendant’s claim of religious right with its own reading of the scriptures:

And we may well believe that the demands of ordinary prudence do not run counter to divine authority, for the same inspired writer, whose injunctions the defendant has sought so literally and conscientiously to observe, informs us that “as the body, without the spirit, is dead, so faith without works is dead also.”

Id. at 69. In the case at bar, appellant testified that: “In my belief I know no other way but the way I pointed out to live and if I would go to a doctor I would be turning my back on my faith.” The First Amendment precludes scrutiny of the verity or validity of religious beliefs. See United States v. Ballard, 322 U.S. 78 (1944). Adoption of the Hoffman approach would entail our pitting one set of beliefs against another. Such a course would clearly violate the spirit of neutrality. We decline, therefore, to follow the Hoffman approach.

The Breth decision presents its own set of problems. There a father failed, apparently for religious reasons, to furnish medical attendance and proper medicines for his critically ill son. The child died. The parent was prosecuted for manslaughter. The trial court charged the jury:

It would not be a lawful excuse for the non-performance of this duty that he entertained some religious or conscientious belief that it was unnecessary or that he had no intent to do anything which would interfere with the recovery of the child nor that he was honestly mistaken as to the efficacy of the means which he did use. As a citizen of this commonwealth and the parent of this dependent child, the law of Pennsylvania, so long as he remains within its borders, puts upon him the duty of doing those things for its protection which the ordinary judgment of prudent men at the time and place would dictate, and his failure so to do would be negligence, and if the circumstances indicated that the child’s condition required great care, his failure to provide the means ordinarily used by prudent men and at his disposal would be gross or culpable negligence.

44 Pa.C. at 66. So doing, the court focused on the parent’s civil duty to the exclusion of any religious concerns.

The court in Breth simply assumed that civil law took precedence over religious convictions. As the United States Supreme Court decision in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), makes clear, that assumption does not always hold. The civil law may, at times, give way to religious beliefs. At issue in Yoder was a claim by members of the Old Order Amish religion and the Conservative Amish Mennonite Church that application to them of a state compulsory school-attendance law violated their rights under the free exercise clause. In sustaining the Amish claim, Mr. Chief Justice Burger for the majority reasoned that the state’s interest in universal compulsory education was outweighed by the harm enforcement of the law would cause the Amish in the free exercise of their religion:

The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable. For the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.

406 U.S. at 218, 92 S.Ct. at 1534 (citations omitted). The Yoder Court rejected the argument that the state as parens patriae has the power to extend the benefit of secondary education to children regardless of their parents’ wishes. Id. at 229, 92 S.Ct. at 1540. The majority rested safe in its assurance that no harm to the child or to the public safety, peace, order, or welfare could be demonstrated or properly inferred. Id. at 230, 92 S.Ct. at 1540.

Mr. Justice Douglas, dissenting in part, argues that the case necessarily involved not only the free exercise claims of the parents but also those of the high-school-age children:

These children are “persons” within the meaning of the Bill of Rights. We have held so over and over again. In Haley v. Ohio, 332 U.S. 596, [68 S.Ct. 302, 92 L.Ed. 224] we extended the protection of the Fourteenth Amendment in a state trial of a 15-year-old boy. In In re Gault, 387 U.S. 1, 13, [87 S.Ct. 1428, 1436, 18 L.Ed.2d 527] we held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In In re Winship, 397 U.S. 358, [90 S.Ct. 1068, 25 L.Ed.2d 368] we held that a 12-year-old boy, when charged with an act which would be a crime if committed by an adult, was entitled to procedural safeguards____

Id. at 243, 92 S.Ct. at 1547 (citations corrected). Chief among these safeguards for Douglas was the child’s right to be heard.

Although his life hung in the balance, Justin Barnhart here had no voice in his parents’ decision to rely on religious rather than medical help. Precisely because a child of two years and seven months cannot speak on his own behalf, the state has charged the parents with the affirmative duty of providing medical care to protect that child’s life. Faced with a condition which threatened their child’s life, the parents had no choice but to seek medical help.

We recognize that our decision today directly penalizes appellants in the practice of their religion. We emphasize that the liability attaches not to appellants’ decisions for themselves but rather to their decision effectively to forfeit their child’s life. Accord Prince v. Massachusetts, 321 U.S. at 170, 64 S.Ct. at 444 (“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they (the children) have reached the age of full and legal discretion when they can make that choice for themselves.”). Admittedly, the distinction is not a happy one. An integral part of family life is the transmission of values from one generation to the next. In the case at bar, the values include a set of religious beliefs. Sitting as a court of law, we abjure even the suggestion that, by our decision today, we are passing on the content of those beliefs.

II

Appellants next challenge, as against the weight of the evidence, the jury verdicts. Specifically they allege that the Commonwealth has failed to prove beyond a reasonable doubt that Justin’s death resulted from their reliance on prayer.

It is undisputed that the cause of Justin’s death was an untreated Wilms’ tumor. However, as the trial judge counseled the jury, Justin’s death may have had more than one direct cause. Appellants were convicted on the theory that their failure to seek medical care directly caused the child’s death. They raise a legal question whether the child might not have died in any event.

The Commonwealth’s case rested on circumstantial evidence. Medical care first reached the boy after his death. On the basis of a posthumous examination, Dr. Sidney A. Goldblatt testified that the cause of Justin Barnhart’s death was “Wilms’ tumor, also known as nephroblastoma, a tumor originating in the left kidney and mestastasizing to the right and left lungs and to the lymph nodes, mediastinal and para-aortic area.”

Dr. Giulio J. D’Angio, Director of the Children’s Cancer Research Center of the Children’s Hospital of Philadelphia, testified that he had analyzed slides taken from the boy’s tissue. On the basis of those slides and the autopsy report, Dr. D’Angio concluded that the tumor had a favorable histology. He explained that the boy’s chances for survival at any stage would have depended on whether the tumor had spread to the lungs. Had medical treatment been afforded:

His (Justin’s) overall chance for survival with a favorable histology lesion, without knowing what state disease he had had at that time would have been 90 percent. Had he been in the early state; that is, without their being spread, it would have been about 95 percent at least. If it had been only locally spread, it would have been 85 percent. And had he had metastatic disease, it would have been 50 percent. By metastatic disease I mean spread to the lungs.

In response to defense counsel’s question, Dr. Goldblatt agreed that there was no way of knowing when metastasis to the lungs had occurred.

The jury had before it certain facts. Justin Barnhart had died from a kidney tumor with extensive pulmonary involvement. The boy’s mother had first noticed the growth in April. By September, the boy was dying. After his death, it was impossible to determine at what stage the cancer had spread to the lungs. If the tumor had been detected and treated before the cancer spread, Justin’s chances of survival would have been at least 95 percent. If, on the other hand, the cancer had already metastasized by May, Justin’s chances with any treatment were only 50-50. Appellants argue that the facts as given were insufficient to sustain the manslaughter verdicts.

The test for sufficiency of the evidence asks whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined that all elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983). Applying that standard to the facts of this case, we are satisfied that Commonwealth has established beyond a reasonable doubt the offense of involuntary manslaughter.

Conviction for involuntary manslaughter requires proof that the death was “a direct result” of appellants’ failure to seek medical treatment. See 18 Pa.C.S.Sec. 2504. Causation must be established beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also Commonwealth v. Hicks, 466 Pa. 499, 353 A.2d 803 (1976); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971). It is not sufficient that death probably resulted from the unlawful act. Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1969). The Commonwealth must prove a direct causal relationship between the defendant’s acts and the victim’s death. Tort concepts of “proximate cause” play no role in a prosecution for criminal homicide. Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961).

Appellants argue that the facts presented fail to establish causation beyond a reasonable doubt. Depending whether or not the cancer had metastasized by the time it was discovered, Justin’s chances could have been excellent or no better than even no matter what the treatment. Quantification of “proof beyond a reasonable doubt” is problematic. See Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971). Had the Commonwealth established that Justin with medical treatment stood a 95% chance of survival, we would have little trouble affirming the manslaughter convictions. Conversely, had testimony indicated early pulmonary involvement with a survival rate of only 50% no matter what the treatment, we would pause. Reasonable doubt, after all, is one which would cause a person to hesitate to act in an important affair. See Jury Charge, footnote 10, infra. Resolving our doubt in favor of the Commonwealth, we reject appellants’ claim.

Ill

Appellants raise numerous challenges to the jury charge. They argue that the charge was tantamount to a directed verdict of guilty, that it confused the jury, prejudiced appellants’ case and misstated fundamental legal principles. After reviewing the charge in its entirety, we dismiss appellants’ claims.

The charge, though strongly worded, stated the law in the Commonwealth today. The trial judge properly framed the question of fact:

Now, this case is really not a question of Christian Faith or the efficacy of prayer. It is whether the parents of Justin failed to seek medical assistance for a seriously ill child and that failure caused his death.

The fact that the trial judge, in his charge, dismantled appellants’ theory of religious defense does not invalidate the charge. See Commonwealth v. Thompson, 367 Pa. 102, 79 A.2d 401, cert. denied, 342 U.S. 835 (1951), cert. denied, 342 U.S. 929 (1952) (so long as instructions are not binding, no error for judge to express opinion in jury charge).

IV

Appellants next argue that the trial judge erred in refusing to charge the jury on culpability as per 18 Pa.C.S. Sec. 302.

Appellants submitted the following points for charge:

(3) The offense of Endangering the Welfare of a Child requires a specific intent so that the accused must be aware that his complete reliance on faith healing is of an endangering nature such as would bring harm to the child.
(4) The offense of Endangering the Welfare of a Child requires a specific intent so that the accused must be aware if he persists in his conduct (faith healing beliefs) he is practically certain that the child will be endangered.
(5) The offense of Endangering the Welfare of a Child requires a specific intent so that the accused must be aware that his complete reliance on faith healing is of an endangering nature such as would bring harm to the child.
(6) If the jury finds that the defendants were operating under a mistaken belief as to the fact their prayers and anointing would heal their sick son, said ignorance and mistake being due to their background, then this ignoranee and mistaken belief would negate the specific intent of “knowingly” endangering their child’s welfare.

The trial judge charged the jury, in pertinent part:

Now, as to the matter of endangering the welfare of a child, very simply we state, the elements in that situation where a person has been charged with the crime of endangering the welfare of a child, in order to find a defendant guilty of the crime you would have to find each of the elements of the crime has been established beyond a reasonable doubt. What are those elements?
First, that the defendants endangered the welfare of the child by violating a duty of care; that is, failure to seek medical attention when the circumstances demanded it, which is the law of Pennsylvania.
Secondly, that the defendants endangered the welfare of the child knowingly; that is, a person’s conduct is knowing when that person is aware that it is practically certain that their conduct; that is, the failure to obtain medical assistance will cause a particular result; that is, that the physical welfare of the child would be endangered; and, Third, that the defendants were, at the time, parents of Justin; and fourth, that Justin was under the age of 18 at the time of endangering.

Points 3, 4 and 5, explaining the concept of “knowingly” endangering the child’s welfare, were covered in the jury charge. Additionally, a finding of specific intent is supported by Mr. Barnhart’s testimony at the coroner’s inquest. With respect to point 6, appellants have never claimed that mistake or ignorance caused them to rely on the power of prayer. To the contrary, appellants continue to believe that Justin’s death, their prayers and his anointing notwithstanding, represents the will of God.

y

Finally, appellants argue that the trial court erroneously excluded testimony of a caseworker who investigated the matter after the child’s death. Appellants attempted to introduce the testimony of Josephine Siciliano, a Child and Youth Services caseworker who had investigated appellants’ home at the coroner’s request. The trial court excluded the testimony: “The caseworker in question did not enter into the picture until well after the death of the child and after the fact. Further, the Defendants at no time were charged with abuse.” Admission or exclusion of evidence lies within the sound discretion of the trial judge. We find no error in the lower court’s decision.

Further, appellants’ attempted reliance on the Child Protective Services Law, 11 P.S.Sec. 2201 et seq. is misplaced. For the purposes of reporting suspected child abuse, the Law does specifically exclude cases where the child:

... is in good faith being furnished treatment by spiritual means through prayer alone in accordance with the tenet and practices of a recognized church or religious denomination by a duly accredited practitioner thereof or is not provided specified medical treatment in the practice of religious beliefs____

11 P.S.Sec. 2203. Failure to report, however, is not at issue here.

VI

Appellants have failed to challenge the legality of their sentences. A question as to the legality of a sentence is, however, never waived. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1288 (1983) (and cases cited therein). On the facts of this case, judgment of sentence for both involuntary manslaughter and endangering the welfare of a child cannot stand. We vacate the sentences entered on the lesser charges.

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), quoted in Commonwealth v. Tarver, 493 Pa. 320, 325, 426 A.2d 569, 572 (1981). This Court, in its most recent pronouncement on the subject, has prescribed a mechanical application of the Blockburger test. “The test depends solely on a comparison of the elements of the crimes charged, not on the similarity or even the identity of the evidence introduced at trial to establish their commission.” Commonwealth v. Williams, 344 Pa.Super. 108, 117, 496 A.2d 31, 36 (1985). Applying that test to the case at bar, we conclude that imposition of separate sentences for endangering the welfare of a child, 18 Pa.C.S. Sec. 4304, and involuntary manslaughter, 18 Pa.C.S.Sec. 2504, violated the constitutional bar against double jeopardy-

Section 2504 defines involuntary manslaughter as a death resulting from “the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner (where the actor) causes the death of another person.” To the extent that liability under Sec. 2504 is predicated on commission of an “unlawful act,” a proven violation of 18 Pa.C.S.Sec. 4304 would establish that unlawful act. Briefly stated, a violation of Sec. 4304 furnishes the misdemeanor for misdemean- or-manslaughter under Sec. 2504.

The proposition that proscriptions against double jeopardy bar punishment for both the misdemeanor and the misdemeanor-manslaughter is not a novel one. In Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), our Supreme Court held that, for purposes of double jeopardy, robbery is not a discrete offense from killing in the course of robbery. The bar against punishment for both the felony and the felony-murder has been explained by this Court:

in a felony-murder prosecution the underlying felony is a lesser-included offense of, and therefore the “same offense” as, the felony-murder itself, because proof of the felony-murder ipso facto proves all the elements of the underlying felony; indeed proof of the underlying felony is necessary to establish that a killing was in fact felony-murder.

Commonwealth v. Williams, 344 Pa.Super. 108 at 118, 496 A.2d at 37 (citations omitted). That same logic attends here. Proof of the underlying unlawful act is necessary to establish involuntary manslaughter.

The Williams court limited the use of the Blockburger “same offense” test by interpreting it as “a rule of statutory construction to be employed where the legislature has not explicitly authorized separate punishments for a single offense.” Slip opinion at 9. A review of the statutory language at issue here makes clear that the legislature did not intend cumulative punishments for the same offense. Rather, the legislature devised distinct punishments dependent on the consequences of the “unlawful act.” When the result of the unlawful act is merely to endanger the child’s,, welfare, the offense is punishable as a misdemeanor of the second degree. 18 Pa.C.S.Sec. 4304. Where, however, the child’s death results, the offense is typed as a misdemeanor of the first degree and the punishment is enhanced accordingly. 18 Pa.C.S.Sec. 2504(b); see 18 Pa.C. S.Sec. 1104.

The convictions for endangering the welfare of a child merge for purposes of sentencing with the convictions for involuntary manslaughter. We vacate the sentences for endangering the welfare of a child.

Judgment of sentence as modified affirmed.

      . 18 Pa.C.S.Sec. 2504.

      . 18 Pa.C.S.Sec. 4304.

      . Appellants direct their challenge toward the child welfare statute, 18 Pa.C.S.Sec. 4304. A proven violation of Section 4304 would establish the "unlawful act” necessary under Section 2504, the involuntary manslaughter statute. 18 Pa.C.S.Sec. 2504.

      . Further, as our Supreme Court has explained, it must be borne in mind that we are dealing with a juvenile statute:
      The purpose of juvenile statutes, as the one at issue here, is basically protective in nature. Consequently, these statutes are designed to cover a broad range of conduct in order to safeguard the welfare and security of our children. Because of the diverse types of conduct that must be circumscribed, these statutes are necessarily drawn broadly. It clearly would be impossible to enumerate every particular type of adult contact against which society wants its children protected. We have therefore sanctioned statutes pertaining to juveniles which proscribe conduct producing or tending to produce a certain result ... rather than itemizing every undesirable type of conduct.
      ******
      The common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.

        Commonwealth v. Mack, 467 Pa. 613, 617-618, 359 A.2d 770, 772 (1976) (upholding, as against a "vagueness" challenge, Section 4304, Endangering Welfare of Children) (citations omitted).

      . Appellant William G. Barnhart testified that he, his four sisters and one brother had been born at home without medical care.
      Both his mother and his father had belonged to the Faith Tabernacle Congregation. Appellant's father had come into the church when he (the father) was severely ill. On repenting of his sins and being anointed, the father recovered from his illness and returned to work in the mines. Appellant testified that his father had lived to be in his sixties.
      Because of his religious beliefs, appellant served without pay in World War II. He received an honorable discharge.
      Appellant has visited a doctor only for employment physicals. His children have never received medical treatment.
      Appellant has two children by his current marriage and two by a former marriage. The children of the first marriage, now full-grown, are both practicing members of the Faith Tabernacle Church. Appellant testified that his son by the first marriage:
      Bill, when he was about five years old, had a severe sick spell, lost all his hair, his eyebrows. I don’t know what the disease was. He was practically yellow. We had him anointed and it was—I don’t know if it was overnight or the next day he started to recover and he received all his hair back, his color and that is him sitting there now.
      The son Bill testified at trial.

      . Green involved a suit for judicial declaration that the minor was a "neglected child” under 11 P.S.Sec. 243. The statute defined "neglected child” as "a child whose parent ... neglects or refuses to provide proper or necessary ... medical or surgical care." Section 243 was repealed in 1972. The current statute is silent on this point.

      . Although appellants filed a boilerplate post-verdict motion challenging the weight of the evidence, the motion pre-dated this Court’s decision in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). We deem the issue preserved for review. See Pa.R. Crim.P., Rule 1123(a), 42 Pa.C.S.A.

        . Dr. Goldblatt explained:
      In describing the cause of death, it is reasonable to talk of the cause of death and the mechanism of death.
      ******
      The mechanism of Justin’s death is emaciation or in the broadest sense a kind of malnutrition in that the tumor has tremendous metabolic demands. It was indeed the largest single structure in Justin’s body and it has a tremendous demand for nourishment, for food, and at the same time, the tumor, by crowding and compressing and obstructing the intestines prevented Justin from taking nourishment in adequate amount and so the mechanism of death is this form of wasting or malnutrition, if you will, resulting in the extreme emaciation I described.

      . Both Dr. Goldblatt and Dr. D’Angia stated their opinions with a "reasonable degree of medical certainty.” See Commonwealth v. Webb, 449 Pa. 490, 495, 296 A.2d 734, 737 (1972). “Medical causation and legal causation are qualitatively different in their application. Whether the Commonwealth’s evidence is sufficient to warrant a finding of causal connection is initially a legal question for the court, but whether it is persuasive beyond a reasonable doubt is for the jury to say.” Id., 449 Pa. at 496, 296 A.2d at 737.

      . The trial court instructed the jury:
      Now, the law is that whenever the law commands or prohibits the commission of any act, no person, parent can excuse their practices to the contrary because of their religious or conscientious convictions.
      The Supreme Court of Pennsylvania and of the United States has stated that to permit this would be to make the professed doctrine of religious belief superior to the law of the land and in effect permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
      Our Supreme Court has stated that it is impossible to see how civil government could exist if the dictates of the individual conscience were in every instance where they come in conflict with the law of the land, the paramount rule of action and it has been layed down by the Supreme Court from an early date where the law is dispensed with, whenever they happen to be in collision with some supposed religious obligation, Governments would be perpetually falling short of the exigence.
      There are a few things, however simple, that stand indifferent in the view of all the sects into which the Christian world is divided. There are people who believe that the divine power may be invoked to heal the sick and that faith is all that is required.
      There are others who believe that the Creator has supplied the earth, nature’s storehouse, with everything that man may want for his support and maintenance including the restoration and preservation of his health and that he is left to work out his own salvation under fixed natural laws.
      There are still others who believe that Christianity and science go hand in hand, both proceeding from the Creator; and that science is but an agent of the Almighty through which he accomplishes results and that science and Divine Power may be invoked together to restore diseased and suffering humanity.
      But, sitting as a Court of law for the purpose of construing and determining the meaning of statutes, we have nothing to do with these variances in religious beliefs and have no power to determine which is correct.
      We place no limitations upon the power of the mind over the body, the power of faith to dispel disease or the power of the Supreme Being to heal the sick.
      We merely declare the law as given to us by the Legislature and the law as enumerated by the Courts. In fact, to permit any man to set up an alleged religious or conscientious belief to override the laws of the land would be to create an ecclesiastical authority which human experience has demonstrated to be the most oppressive tyranny under which mankind has ever groaned.
      The charge made extensive use of the language in Commonwealth v. Breth, 44 Pa.C. 56 (1915). Although we question the reasoning in that case, no prejudicial error results from use of its language. See Commonwealth v. Konz, 498 Pa. 639, 450 A.2d 638 (1982) (citing both Breth and Commonwealth v. Hoffman, 29 Pa.C. 65 (1903)).

      . Under Section 302(b)(2):
      A person acts knowingly with respect to a material element of an offense when:
      (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
      (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

      . The trial court sentenced appellant William G. Barnhart:
      With regard to the matter of C-0425(a)-82, involuntary manslaughter, it would be the sentence of the Court:
      1. The Defendant is to be placed on probation for a period of 59 months. The conditions of that probation are that he:
      A. Pay the costs of prosecution.

        B. Pay the amount of $250 to the use of Cambria County; that amount to be paid $50 each September 1st of each year beginning September 1, 1983.
      C. The costs of prosecution are to be paid at the rate of $25 per month until the costs are paid in full, and that would begin July 29, 1983, and each month thereafter until paid in full.
      D. The Defendant shall contribute 100 hours of community service in a hospital or recognized hospice center as one of this conditions. This is to be done and credited to him within the year of 1983. That would be the sentence of the Court on C-0425(a)-82.
      With regard to the case of C-0425(b)-82, endangering the welfare of children, ... the sentence of the Court would be:
      1. That he be placed on probation for a period of 23 months.
      2. That he pay the costs of prosecution.
      3. He is under the supervision of the Cambria County Probation Bureau in both C-0425(a) and (b).
      4. This sentence is to run concurrently with C-0425(a)-82.
      5. Upon the payment of the costs as we have indicated with regard to C-0425(a)-82, those costs with regard to C-0425(b)-82 would be picked up on the 29th of the month after he has completed payment of the costs to C-0425(a)-82 and $25 each month thereafter until those costs are paid in full.
      The court sentenced Linda Barnhart:
      It would be the sentence of this Court to C-0424(a)-82, involuntary manslaughter charge, that she:
      1. Pay the costs of prosecution.
      2. Be placed under the supervision of the Cambria County Probation Bureau for a period of 23 months.
      The condition of that probation would be just to pay the costs of prosecution and be placed under the supervision of the Cambria County Bureau of Probation for a period of the 23 months. And we will state later how those costs are to be paid.
      With regard to C-0424(b)-82, endangering the welfare of the children, she is sentenced to:
      1. Pay the costs of prosecution.
      2. Be placed under the supervision of the Cambria County Probation Bureau for a period of 23 months to run concurrently with C-0424(a)-82.
      3. Her costs are to be paid beginning the month following the completion of her husband’s payments of costs at the rate of $25 per month and we are adhering and staying with the 29th of the month with regard to the initial starting date of the payment of those costs, after her husband has paid his costs, as we stated, in full, and so that her payment of costs will run consecutively to the payment of her husband’s costs.
      The court, in imposing concurrent sentences of probation, stated its recognition that the offenses might merge.

      . We note that the two sections require different findings of intent. Section 2504 specifies that the unlawful act be done "in a reckless or grossly negligent manner.” Section 4304 requires proof that the accused “knowingly” endangered the welfare of a child. A finding that the accused knowingly endangered the welfare of a child is sufficient to establish intent under Section 2504. 18 Pa.C.S.Sec. 302(e) ('When the law provides that negligence suffices to establish an element of the offense, such element is also established if a person acts intentionally or knowingly.”); see Commonwealth v. Thomas, 482 Pa.Super. 312, 393 A.2d 1122 (1978) (applying Crimes Code definition of "negligently" to prosecution for involuntary manslaughter).


author: TAMILIA, Judge:

text:
    497 A.2d 630
    Carl SPOTTS & Florence Spotts, His Wife, Appellants, v. John S. REIDELL, M.D.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed Aug. 16, 1985.

      Jay H. Feldstein, Pittsburgh, for appellants.

      Grant H. Fleming, State College, for appellee.
    Before TAMILIA, LIPEZ and BUCHER, JJ.

       Judge Wilson Bucher, Senior Judge, of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   TAMILIA, Judge:

This is an appeal from the Order of the lower court denying appellants’ post-trial motions for a new trial and/or judgment n.o.v. We reverse and remand for a new trial on the basis that the lower court improperly admitted hearsay testimony which was substantially prejudicial to appellants’ case.

The facts are as follows. In June of 1980, appellant, Carl Spotts, telephoned his family doctor, A. Reed Allison, Jr., M.D., after noticing blood in his stool. On July 1, 1980, Dr. Allison performed a direct visual examination of the appellant’s rectum with a rigid sigmoidoscope. After noting that the bleeding was emanating from a polyp, Dr. Allison referred appellant to the appellee/defendant, John Reidell, M.D. Dr. Reidell examined appellant with a proctoscope and discovered a polyp in the posterior part of the rectum. (N.T. 534-35) Additionally, Dr. Reidell estimated the size of the polyp to be about two centimeters and stated that “[it] appeared flat. It had a sessile appearance. I could not see any stalk on it.” (N.T. 534).

Dr. Reidell took multiple biopsies of the polyp and had them examined by a pathologist at Centre Community Hospital, who issued a tissue report with a diagnosis of “villous adenoma”. On July 7, 1980, appellant was admitted to Centre Community Hospital. A barium enema was administered and x-rays were taken. A retrolesion was diagnosed, approximately two centimeters in diameter, posterior in location, and about three or four centimeters above the anus. No other lesions were found and nothing indicated whether the retrolesion was malignant or benign.

On July 9, 1980, Dr. Reidell performed a low anterior resection upon the appellant, which involved the surgical excision of six to seven inches of appellant’s bowel. While still operating, Dr. Reidell sent the removed portion of appellant’s bowel to the pathology laboratory and awaited the result. The resulting tissue report diagnosed a “villousadenomatous colonic polyp with foci of atypia.” This report also indicated that the polyp rested upon a pedicle (i.e., a stalk) and resembled a mushroom in form. Dr. Reidell then performed an anastomosis, which consists of attaching both ends of the bowel together.

Consequently, appellant experienced seepage of fecal matter from his rectum, resulting in his having to frequently change clothes and to use tissues and sanitary napkins.

Appellant suffered a constriction or tightness of his rectum where the bowel had been reattached for eleven months following surgery. As a result, approximately once every three weeks, Dr. Reidell would manually dilate this constriction with his fingers in an attempt to enlarge the opening in appellant’s colon.

On May 26, 1981, appellant once again visited Dr. Reidell for a manual dilation of the rectal constriction. However, after this procedure was performed, appellant began to bleed from the penis. Subsequently, a urologist performed tests which indicated that Dr. Reidell, during the manual dilation, had caused a fistula (i.e., had punched a hole through the wall of the rectum and into the bladder). Immediately thereafter, a total colostomy was performed upon appellant. This procedure consists of the sewing of the colon to an opening in the wall of the abdomen. Specifically, the anus is bypassed and the feces pass through an abdominal opening. As a result of this operation, the appellant must permanently wear a colostomy bag, which collects fecal matter from the large intestine and requires constant changing.

On March 15, 1982, appellant brought an action in trespass against Dr. Reidell alleging medical malpractice. Appellant’s suit alleged that Dr. Reidell fell below the medical standard of care when he elected to perform a resection of the colon instead of a snare wire polypectomy. Appellant’s expert, Dr. Richard Raizman, contended that had the snare wire procedure been utilized, appellant would have been spared all of the unfortunate complications which followed. Appellant also produced the expert testimony of Dr. Howard Reidboard, a pathologist, who stated that the medical term “villous adenoma” essentially refers to a benign, nonmalignant tumor as opposed to a malignant, cancerous tumor.

Dr. Reidell, on the other hand, testified that the excision of appellant’s bowel was justified due to the allegedly cancerous nature of the tumor. Dr. Reidell attempted to justify his decision by stating that the polyp was not pedunculated; therefore it was incapable of being removed safely with a snare wire cauterization.

The jury returned a verdict in favor of the appellee, Dr. Reidell. Appellant filed timely post-trial motions which were denied and this appeal followed.

The narrow issue before us is whether the lower court erred in permitting Dr. Reidell to testify that Dr. Velkoff, a pathologist, told him prior to the operation that the pre-operative biopsy specimen of the polyp indicated the presence of atypia. We find that the testimony relating to this out-of-court conversation was clearly hearsay as Dr. Velkoff was never present during the trial and was never confronted or cross-examined by the appellant. The lower court, however, admitted this testimony as a state of mind exception to the hearsay rule. The lower court noted that “[t]he conversation was not offered to prove the presence of atypia, but to explain why the surgical procedure was chosen.” (Slip Op. at 2.) We disagree for the following reasons.

It is well-established that an out-of-court declaration constitutes hearsay if it is offered for the purpose of proving the truth of the matter contained in the declaration. Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 240 A.2d 71 (1968); Klischer v. Nationwide Life Insurance Co., 281 Pa.Super. 292, 422 A.2d 175 (1980). See Fed.R.Evid. 801(c). However, an out-of-court statement is not hearsay when it is introduced purely for the purpose of establishing that the statement was made and not to establish its truth. See, e.g., Baldino v. Castagna, 308 Pa.Super. 506, 454 A.2d 1012 (1982); Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962); Wagner v. Wagner, 158 Pa.Super. 93, 43 A.2d 912 (1945). Likewise, an out-of-court statement is not hearsay if it is offered to explain a course of conduct, Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980), or to reflect the declarant’s state of mind. Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974). See also, McCormick, On Evidence, § 294-96 (3rd. Ed. 1984).

However, the problem here is that we are not concerned with the declarant’s state of mind, but rather with Dr. Reidell’s reliance on the medical opinion offered by Dr. Velkoff in their conversation. When questioned on direct examination regarding Dr. Velkoff’s report, Dr. Reidell attempted to testify concerning an out-of-court conversation with the pathologist who authored the report:

Q. Now, did the pathologist give you a written report?
A. Yes, the following day I had a written report.
Q. Is this the report which is labeled Plaintiffs’ Exhibit No. 2, which we have heard testimony about before?
A. Yes, that’s correct.
Q. In addition to receiving this report, did you do anything to pursue the information that was on the report?
A. Yes. This confirmed my impression as I looked at it, my gross or microscopic impression, that this was a villous adenoma. In addition, I went to the laboratory and spoke with Dr. Velkoff, who had read these slides that morning, and discussed this with him and reviewed the tissue with him. In our conversation there—(N.T. 542-43)

At this point, appellant’s trial counsel raised a hearsay objection. After hearing arguments by counsel for both parties, the trial judge permitted Dr. Reidell to testify as follows:

A. He pointed out to me areas of atypia within this biopsy, which also agreed with what I would expect from what I had seen at the time of examining the tumor.
Q. Did you observe the tumor when you looked at it to be ulcerated?
A. Yes, micro-ulcerated, which is very small, irregular areas.
Q. And upon the pathologist’s report of atypia, what did that indicate to you?
A. It confirmed my impression at that time that this tumor had a very high likelihood of being invasively cancerous.
Q. You also knew that it was a villous adenoma?
A. Yes.
(N.T. 546)

Viewing this testimony in the context from which it arose (i.e., a medical malpractice action), we would be hard-pressed to hold that it was elicited solely to show that a conversation occurred between Dr. Reidell and Dr. Velkoff or merely to reflect Dr. Reidell’s pre-operative state of mind. In fact, we find that proof of the existence of a conversation between appellee and Dr. Velkoff is simply irrelevant and not a fact at issue in this case since the appellants have never contested the existence of this conversation.

Our careful review of the record convinces us that this hearsay testimony was offered for its substantive effect of proving the truth of the matters asserted therein (i.e., that the polyp had a high probability of being cancerous). This is evident from the outset of the trial when Dr. Reidell’s counsel, in his opening statement, made clear reference to this hearsay testimony for its substantive value.

An instructive case concerning hearsay evidence in a medical malpractice action is Rosario v. New York City Health & Hospitals Corp., 87 A.D.2d 211, 450 N.Y.S.2d 805 (1982). In Rosario, the plaintiff alleged that injections of a drug (Sotradecol) to treat her condition by oral surgeons constituted a deviation from accepted medical practice and that subsequent surgery for this same condition deviated from sound medical advice. The court held that it was error to admit into evidence pages from the Physicians Desk Reference (PDR) and to allow cross-examination of defendant’s experts on these pages since the drug manufacturer’s entry in the PDR was hearsay evidence. The Rosario court found that this hearsay evidence was received for the truth of the matters contained therein (i.e., that the drug should be used for certain medical problems and not for others, and that it should be administered in a certain way and not in any other). The court noted that the real issue involved “was not what the manufacturer said concerning the drug, its use and possible side effects, but whether the injection into Rosario’s joints was acceptable medical practice.” Id. at 214, 450 N.Y.S.2d at 807. The court noted that although there was sufficient evidence to sustain a finding that the surgery was unnecessary, the strong possibility existed that the jury’s finding was tainted by the hearsay evidence. Consequently, the Rosario court held that this was so prejudicial as to mandate a new trial on all issues. We find the reasoning of Rosario to be dispositive of the issue before us. See also, Denny v. Burpo, 124 Ill.App.3d 73, 79 Ill.Dec. 520, 463 N.E.2d 1074 (1984) (patient developed vesicovaginal fistula due to negligent surgical procedure; lower court’s admission of certain hearsay testimony of defendant/physician’s expert witness during cross-examination was so prejudicial as to warrant a reversal); Cummings v. Fondak, 122 Misc.2d 913, 474 N.Y.S.2d 356 (1983) (hearsay evidence concerning material factual issue in medical malpractice action was offered for truth of matters contained therein).

Our concern is with the use of an out-of-court statement to prove an act or to explain conduct on the part of one other than the declarant when that act or conduct is itself the key issue in the case. Here, the particulars of the hearsay statement offered were of critical importance in the context of the issue being tried and the obvious implication resulting from this testimony is that Dr. Reidell’s operative procedure was justified by reference to the cancerous potential of the polyp.

We are also concerned with the prejudicial impact of this testimony on appellant’s case. As noted above, the jury had no opportunity to evaluate the credibility, qualifications or demeanor of Dr. Velkoff since he was not present during the trial, did not testify and was not cross-examined. The right to confront and cross-examine adverse witnesses is a cornerstone of our legal system. Moreover, “[t]he Hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination.” 5 Wigmore, Evidence § 1362 (3d.ed.1940). Further, this right to cross-examination becomes even more crucial in situations like that before us where the testimony at issue originates from a physician since jurors, as lay persons, are often predisposed to accept the testimony of medical professionals due to its esoteric nature. This concern has been reflected in prior decisions of this Court which exclude the expert testimony of a physician who is unavailable “for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion.” Commonwealth v. McNaughton, 252 Pa.Super. 302, 307, 381 A.2d 929, 931 (1972) (citations omitted). See also, Foster v. McKeesport Hospital, 260 Pa.Super. 485, 394 A.2d 1031 (1978) (medical opinion of expert physician cannot be based soley upon the opinion of an out-of-court physician). While these cases deal with the exclusion of opinion testimony, we find them applicable here since Dr. Reidell, in discussing his conversation with Dr. Velkoff, was in effect referring to the opinion of an out-of-court expert medical witness.

Appellee relies on Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), in which our Supreme Court held that a medical expert may express an opinion even though it is based, in part, upon the reports of others. Specifically, Thomas involved the appeal of a criminal conviction in which the appellant argued that the Commonwealth’s expert psychiatrist relied upon written reports of other medical professionals as a basis for his opinion that the accused was sane. In concluding that such an opinion was admissible as an exception to the hearsay rule, the Thomas Court emphasized that the opinion was based “upon reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession.” Id., 444 Pa. at 445, 282 A.2d at 698 (citations omitted). See also Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (opinion testimony of forensic pathologist based on hearsay deemed admissible); Commonwealth v. Wilson, 245 Pa.Super. 415, 369 A.2d 471 (1976) (hearsay testimony regarding x-rays admissible where the physician customarily relied on such x-rays taken by others in the practice of his profession).

Quoting Professor Wigmore, the Thomas Court stated, “ ‘where the information is that of an attending nurse or physician having personal observations and an interest in learning and describing accurately, there seems to be every reason for admitting testimony based in part on this.’ ” Thomas, supra 444 Pa. at 445, 282 A.2d at 699. Here, however, the appellee produced hearsay evidence pertaining to a conversation he had with Dr. Velkoff to further justify the medical course of action he chose. We find this use of hearsay evidence to far exceed the limited exception of Thomas (i.e., those reports customarily relied upon in the profession). Moreover, the Thomas Court further stated that “[ejrrors in ruling on evidentiary matters do not require reversal if the accused’s rights have not been prejudiced.” Thomas, supra, 444 Pa. at 446, 282 A.2d at 699. In the instant case, we find the impact of Dr. Reidell’s testimony regarding his conversation with Dr. Velkoff to be highly prejudicial to appellant’s case. Unlike Thomas, which merely recognized the general reliability of medical documents, the present situation involves the use of hearsay testimony to further explain, clarify or vary the information recorded in Dr. Velkoff’s report. As such, the guarantees of reliability inherent in the facts of Thomas and its progeny are missing. Thus, we conclude that Thomas, a criminal case, is inapplicable to the facts of the medical malpractice action before us.

Finally, we note that the trial judge failed to deliver curative instructions to the jury limiting the use of the hearsay testimony at issue to establish proof of the conversation or as reflecting appellee’s state of mind and/or course of conduct. See In re Leslie H., 329 Pa.Super. 453, 478 A.2d 876 (1984) (trial court failed to limit use of hearsay testimony to issue of daughter’s state of mind). See also, Commonwealth v. Wright, supra; Cummings v. Fondak, supra. Since the jury was free to assess this testimony for its substantive value concerning the truth of the assertions therein, we conclude that this hearsay testimony was extremely prejudicial to appellant’s case.

Accordingly, we reverse the Order entered March 21, 1984 and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction relinquished.

      . Dorland’s Illustrated Medical Dictionary (25th Ed.1974) defines "adenoma” as a "benign epithelial tumor in which the cells form recognizable glandular structures or in which the cells are clearly derived from glandular epithelium.” The term “villous adenoma” is specifically defined as a large soft papillary polyp on the mucosa of the large intestine. Id. at 37.

      . In this procedure, the snare wire is passed through the colonoscope, looped around the polyp, and then tightened to remove portions of the polyp.

      . In his opening statement, appellee's counsel asserted that a finding of “atypia” was made in the pathologist’s pre-operative tissue report:
      When the pathology report came back to Dr. Reidell, the pathologist reported that the tissue contained atypia cells, that the cells were abnormal. An atypia is an indication of a pre-cancerous condition in the nucleus of the cells. (N.T. 47)
      However, as noted above, the pathologist’s tissue report contained a diagnosis of "villous adenoma” and made no mention of the term "atypia", contrary to appellee’s counsel’s mistaken assertion. (N.T. 58-59)

      . The Opinion of the lower court rejected appellant’s concern that the jury never was provided an opportunity to evaluate the credentials and credibility of Dr. Velkoff. The lower court held this concern to be immaterial since appellant chose not to investigate the credentials of Dr. Velkoff nor to bring him into court to testify. We disagree with the- lower court’s analysis and find appellant’s failure to present testimony from the pathologist to be de minimis in the context of this case. The fact that the pathologist was not called to testify by the appellant does not give the defense carte blanche to use hearsay evidence substantively to prove the truth of the assertions therein. We find the prejudicial nature of this testimony to far exceed any hindsight analysis of what appellant should have done at trial as opposed to what actually happened.

      . We find appellee’s claim that the hearsay statement at issue had no relevance to appellant’s theory of medical malpractice to be meritless. Throughout the entire trial, appellee referred to the cancerous nature of the polyp as justification for the ensuing surgery. In fact, on cross-examination, Dr. Reidell admitted that the conversation at issue played a significant role in his belief that the polyp was cancerous. N.T. 610. Thus, we refuse to conclude that the cellular composition was not relevant to how the polyp should be removed.

      . Appellee alleges that the conversation with Dr. Velkoff did no more than confirm his prior belief that the polyp was cancerous. While there was other evidence in the record to support this point of view, we are unable to conclude that the conversation with Dr. Velkoff did not taint the jury’s verdict.
      The instant case is also distinguishable from Powell v. City of Philadelphia, 311 Pa.Super. 526, 457 A.2d 1307 (1983) which allowed the testimony of a physician based on inadmissible hospital records. In allowing such testimony, this Court stressed that the physician noted in his testimony that his opinion would be the same even if he had not seen the hospital records. Here, we are not convinced that Dr. Reidell’s course of action would have been the same notwithstanding the conversation he had with the pathologist prior to the operation. In addition, we emphasize that the hearsay conversation with Dr. Velkoff lacks the safeguards of reliability inherent in hospital records.

      . While Thomas has been applied to civil cases, see Jumper v. Jumper, 240 Pa.Super. 99, 362 A.2d 411 (1976); Christy v. Darr, 78 Pa.Commw. 354, 467 A.2d 1362 (1983), it has never been applied in a malpractice action against a defendant-physician whose hearsay testimony is at issue. Moreover, we emphasize that in the above cases, the hearsay testimony was proffered by a nonparty expert witness, unlike the situation in the instant case.

      . Appellant also argues that the lower court erred in improperly excluding appellant’s proposed point for charge number 11. Since we have reversed and remanded on the basis of the lower court’s having admitted prejudicial hearsay evidence, we need not discuss appellant’s alternative argument.