author: KELLY, Judge:

text:
    578 A.2d 952
    In re J.W., A.W., V.W. and J.W., Minor Children. Appeal of Joanne WERKHEISER.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed July 27, 1990.

      Mark L. Newman, Asst. Public Defender, Stroudsburg, for appellant.
    Arthur L. Zulick, Stroudsburg, for appellees.
    Richard E. Deetz, Stroudsburg, for participating party.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this case we are called upon to determine the effect of various procedural defaults upon appellant’s appeal from an order granting a petition for involuntary termination of parental rights. We find quashal or dismissal on procedural grounds inappropriate, and reach the merits of the appeal. Nonetheless, we affirm the termination of appellant’s parental rights.

Facts and Procedural History

This case involves the fate of four children and their natural mother. Two of the children had been sexually abused by their father who committed suicide while charges were pending against him. The wife had known of the abuse for a period of ten months but had taken no steps to protect her children from her husband’s sexual abuse.

The mother suffered from schizophrenia and also attempted suicide. She was treated as an inpatient at a mental hospital during involuntary commitment, followed by a brief voluntary commitment.

In the five years since her release, her employment and residence have changed erratically. Her employment changed ten times. Her residence changed thirteen times. None of the residences were suitable for a family of five.

Despite continued need for out-patient treatment, her participation in free counselling/mental health services was so sporadic that it was terminated by the provider. She subsequently failed to avail herself of other available mental health services. She ascribed her unwillingness to participate in such services to her belief that Children and Youth Services was plotting against her. The court ascribed her behavior to paranoia.

Finally, and perhaps most importantly, by the time of the last hearing in this matter she was visiting only one of her four children, and him only once every four to six weeks. She was originally authorized to visit with each of her four children twice a month. Her three daughters, J.W. (dob 10/1/72), A.W. (dob 12/8/73) and Y.W. (dob 9/14/76), specifically testified in favor of termination of their mother’s parental rights. The fourth and youngest child, J.W. (dob 10/25/81), expressed no opinion on termination of parental rights but noted that he enjoyed “the hamburgers and toys” his mother gave him during visits.

The trial court specifically found that “the foster families have provided a stable and secure environment for the Werkheiser children for the past seven years.” Trial Court Opinion at 2. Nothing in appellant’s brief to this Court casts the least doubt on that evaluation; rather, it is readily apparent that the children have been quite fortunate in developing nurturing ties to their foster parents.

Jurisdiction

When notice of appeal was filed in this case, a final decree had not yet been entered. Rather than exercise our discretion to quash the appeal, this panel caused the following Per Curiam Order to be entered:

ORDER

This appeal taken from an order dismissing exceptions to a decree nisi terminating the appellant’s parental rights. An appeal will not lie from an order denying exceptions. Entry of a final decree is necessary for appellate review. Kopchak v. Springer, 292 Pa.Super. 441, 437 A.2d 756 (1981) (where appellant failed to have a final decree entered on the docket, but instead appealed from order dismissing exceptions to decree nisi, appeal would be quashed). The appellant is, therefore, directed to praecipe for the entry of a final decree. Pa.R.A.P. 301. If the appellant does not submit proof of entry of a final decree on the trial court docket, within fifteen days of the date of this order, this appeal shall be dismissed.

Order of April 5, 1990.

When an order is interlocutory and unappealable, an appeal taken from the order may be quashed. In many cases, however, an order quashing an appeal only serves to unnecessarily delay review by causing the parties to go back to the start, praecipe a final order, and then repeat correctly completed procedures with no discernable benefit derived over simply directing the appellant to praecipe the final order without quashing. When, as here, the case involves parental rights and the swiftly passing childhoods of four individuals, any unnecessary delay ought be avoided when practicable alternatives exist. Hence, we elected to exercise our discretion to direct appellant to perfect our jurisdiction by filing a praecipe for entry of a final decree. See Pa.R.A.P. 301; Pa.R.A.P. 905(a).

In response to our order of April 5, 1990, a final decree was entered April 10, 1990. Our jurisdiction was thereby perfected. See Pa.R.A.P. 905(a).

Preservation of Issues

Review of the record reveals that appellant’s exceptions were not timely filed. Failure to file timely exceptions may result in waiver of challenges on appeal. Pa.R.C.P. 227; Pa.R.C.P. 1501; cf. Sipowicz v. Sipowicz, 358 Pa.Super. 319, 517 A.2d 960 (1986), appeal denied, 516 Pa. 642, 533 A.2d 713 (1987). Thus, a second stumbling block is set in the path to review on the merits.

When, as here, however, an issue presented on appeal was raised, briefed, argued, and considered in the trial court, we may decline to dismiss the claim on waiver grounds. Cf. Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989). Moreover, if the untimeliness of the exceptions were to result in denial of the present claim, such would constitute a procedural default, which presumably would be redressable in a subsequent collateral proceeding alleging ineffective assistance of counsel. See In re Adoption of T.M.F., 392 Pa.Super. 598, 573 A.2d 1035 (1990) (en banc, plurality, discussing ineffective assistance of counsel in the termination of parental rights context).

There are times when reason commands that a procedural knot be swiftly severed, rather than require the parties to suffer the delay in reaching the same ultimate disposition which unravelling the knot might require. Such a time is now.

“Childhood is a small stretch of time in which events and changes can alter a life to its last day.” Karis v. Karis, 518 Pa. 601, 607, 544 A.2d 1328, 1332 (1988). Because we cannot alter the past, we must be all the more careful of the present, which all too soon in the life of a child passes into the irretrievable past. Id.

In Karis, our Supreme Court dealt with the interest of children who were “the victims of conflicting loves” in the context of a divorce/custody dispute. Justice McDermott’s cogent observations in Karis, of course, apply with all the more importance and urgency to children who are victims of neglect and/or abuse in the context of parental rights termination cases.

Consequently, we decline to dispose of this case on waiver grounds and risk sinking this case and these four children’s sense of permanence and stability in the quagmire of collateral ineffectiveness proceedings grounded on counsel’s procedural default. Rather, we will cut through appellant’s problematic procedural defaults to address the substantive merits of this appeal.

Standard of Review

In cases where there has been an involuntary termination of parental rights our scope of review is limited. We are bound by the findings of the trial court which have adequate support in the record, so long as the findings do not evince capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court’s inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court’s sustainable findings. See In re Adoption of JJ, 511 Pa. 590, 592-95, 515 A.2d 883, 885-86 (1986); In re G.D.G., 392 Pa.Super. 575, 577, 573 A.2d 612, 613 (1990); cf. Karis v. Karis, supra, 518 Pa. 601, 607, 544 A.2d 1328, 1332 (a similarly worded standard applies in custody appeals).

Burden of Proof

Because of the constitutional significance of the parental rights involved, the party seeking termination of parental rights has the burden to establish grounds for involuntary termination by clear and convincing evidence. See In re Adoption of J.J., supra, 515 A.2d at 886, citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); see generally Zummo v. Zummo, 394 Pa.Super. 30, -, 574 A.2d 1130, 1138 (1990) (collecting parental rights cases). Our Supreme Court has repeatedly explained that:

[t]he standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989); La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963); see also In re Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988).

The custody, care, nurture, and instruction of children resides first in the children’s natural parents, as a constitutionally recognized fundamental right. See Lehr v. Robertson, 463 U.S. 248, 257-61, 103 S.Ct. 2985, 2991-93, 77 L.Ed.2d 614, 623-29 (1983) (collecting cases). The statist notion that the government may supercede parental authority in order to ensure bureaucratically or judicially determined “best interests” of children has been rejected as repugnant to American traditions. Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101, 119 (1979); accord Meyer v. Nebraska, 262 U.S. 390, 401-02, 43 S.Ct. 625, 627-28, 67 L.Ed. 1042, 1046 (1922) (noting the models of Aristotelian guardianship and Spartan state collectivization of youth and rejecting those models as antithetical to American freedoms). Moreover, it has been repeatedly suggested, but not as yet decided, that a showing of unfitness of the parents, is constitutionally required to warrant termination of parental rights. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554-55, 54 L.Ed.2d 511, 520 (1978); see also Santosky v. Kramer, supra, 455 U.S. at 760 n. 10, 102 S.Ct. at 1398 n. 10, 71 L.Ed.2d at 611 n. 10; Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14, 47-48 (1977) (Stewart, J.; joined by Burger, C.J. and Rehnquist, J.).

The Juvenile Act does not empower the courts to intervene to promote the judicially or bureaucratically determined “best interests” of the children in place of the children’s “bests interests” as determined by the children’s parents. In Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762, 766-68 (1989) (Johnson, J.; joined by Cavanaugh, McEwen and Popovich, JJ.); id., 561 A.2d at 775, 777 (Beck, J., concurring); id., 561 A.2d at 772 (Brosky, J.; Cirillo, P.J., joins). Indeed, whether or not constitutionally required, it is clear that under the law of this Commonwealth, “unfitness” as statutorily defined in the Juvenile Act is an indispensable prerequisite to parental rights termination. Id.

This Court has repeatedly affirmed that:

the Juvenile Act was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take children of the illiterate and crude and give them to the educated and cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

In Interest of Feidler, 392 Pa.Super. 524, -, 573 A.2d 587, 591 (1990), quoting In Interest of S.A.D., 382 Pa.Super. 166, 176, 555 A.2d 123, 128 (1989). Rather, the Juvenile Act merely authorizes state agencies and the courts to intervene to ensure that parents meet certain legislatively determined irreducible minimum standards in executing their parental rights. In Interest of Coast, supra.

Thus, under Pennsylvania law, while parents have broad discretionary authority over their children’s lives, they also have serious concomitant responsibilities which the Commonwealth has a right and duty to enforce. The Juvenile Act provides the vehicle for the necessary enforcement of the irreducible minimum standards which define those parental responsibilities.

The statutory section under which appellant’s parental rights were terminated reads in pertinent part:

23 Pa.C.S.A. § 2511

(a) General Rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy the conditions which led to the removal or placement of the child within a reasonable period of time, and termination of the parental rights would best serve the needs and welfare of the child.
(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

(Emphasis added).

“Essential parental care, control, or subsistence necessary for [the child(ren)’s] physical or mental well-being” under Section 2511(a)(2), like the “needs and welfare” language of Section 2511(a)(5), denotes certain irreducible minimum requirements to which all children are entitled from their parents, including adequate housing, clothing, food, love, and supervision. See In Re P.A.B., 391 Pa.Super. 79, 85, 570 A.2d 522, 525 (1990). The necessary implication of the language in the Juvenile Act is that a parent who cannot or will not meet the irreducible minimum requirements set by the Juvenile Act within a reasonable time following state intervention may properly be considered “unfit,” and may properly have parental rights terminated.

It is universally agreed that the bond of parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima facie in the best interest of the child, and the state has no justification to terminate that bond. On the other hand, a court may properly terminate parental bonds which exist in form but not in substance when preservation of the parental bond would consign a child to an indefinite, unhappy, and unstable future devoid of the irreducible minimum parental care to which that child is entitled. See In re P.A.B., 391 Pa.Super. 79, 85, 570 A.2d 522, 525 (1990); In re Angry, 361 Pa.Super. 180, 182, 522 A.2d 73, 74 (1987). It is important to keep in mind that the essential needs of the child and the responsibilities of the parent must be considered as well as the rights of the parent. In Re G.D. G., 392 Pa.Super. 575, 581, 573 A.2d 612, 615 (1990), quoting In Re Adoption of J.J., supra, 515 A.2d at 891.

There is a statutory requirement that the state make reasonable efforts to promote family stability and preserve family unity. See generally In Interest of Feilder, supra, 573 A.2d at 588; In Interest of S.A.D., supra, 555 A.2d at 124-25. However, when the goal of preserving the family unit conflicts with the reality of the child(ren)’s unmet irreducible essential needs, the dispositive question then becomes, to what extent may the parent be helped to meet those needs without permitting those needs to go unmet. Cf. In Interest of S.A.D., supra, 555 A.2d at 126, citing Interest of Ryan Michael C., 294 Pa.Super. 417, 421, 440 A.2d 535, 536 (1982).

The Commonwealth’s self-imposed obligation to help the parents assume their irreducible minimum parental responsibilities is not indefinite, nor has the Commonwealth made itself guarantor of the success of efforts to help parents assume their parental duties. Rather, parents are required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities. In re G.D.G., supra, 573 A.2d at 615-16. Our Supreme Court has explained the parents duty unequivocally as follows:

“We think this affirmative duty, at a minimum requires a showing by the parent of a willingness to cooperate with the agency to obtain the rehabilitative service necessary for the performance of parental duties and responsibilities. The agency must, of course, put forth a good faith effort in making services available to the parent, and once it has done so on a continuing basis, it has discharged this obligation.”

In Interest of J.J., supra, 515 A.2d at 890. A parent’s avowed intent to cooperate in a remediation program at the eleventh hour, after a long period of uncooperativeness as to the utilization of necessary and available services, may properly be rejected as untimely and/or insincere. Cf. Commonwealth ex rel. M.D. v. M.D., 392 Pa.Super. 49, 54, 572 A.2d 227, 229-30 (1990); In re Adoption of J.F., 392 Pa.Super. 39, 46-47, 572 A.2d 223, 226-27 (1990).

Appropriateness of Termination of Parental Rights

On the merits, we have no hesitancy in affirming the termination of appellant’s parental rights. Succinctly, the record fully sustains the trial court’s conclusion that appellant has neither the capacity nor the inclination to take the remedial steps required to meet the irreducible minimum parenting skills necessary to perform parenting functions for the four children involved in this case, either now or in the foreseeable future. Lamentable as termination of parental rights is, it is both necessary and appropriate in this case.

Appellant asserts that she has always asserted a desire for reunification, she is now willing to fully cooperate in any program of therapy or education required, and that her case worker had undermined her from the start. We find these arguments entirely unpersuasive.

Appellant, in fact, has always avowed her intent to perform a parental role toward her children. However, adequate parenting requires action as well as intent. During the five year period between the date of her release from in-patient mental health treatment and the date of the final termination hearing held in this case, appellant’s actions fell far short of her avowed intent to acquire the irreducible minimum parenting skills required.

Shortly before the termination hearing, appellant, on advice of counsel, scheduled an appointment with Mental Health Services and indicated her willingness to follow any program they prescribed. The trial court rejected this evidence of appellant’s intent to reform as untimely and incredible. We find no abuse of discretion. Avowals of remorse or intent to reform made from the bar of a court (or within its shadow) are generally deemed to ring hollow; indeed, the evanescent nature of such pledges is proverbial. Cf. In Interests of J.J., supra; In re G.D. G., supra; Commonwealth ex rel. M.D. v. M.D., supra; In re Adoption of J.F., supra.

Finally, appellant attempts to shift the responsibility for her failure to make progress toward reunification onto Children and Youth Services, and her case worker in particular. No evidence was presented that appellant was denied services or opportunities provided to similarly situated persons. Rather, appellant makes a general claim that her efforts (unspecified) were undermined by the case worker’s expressed intent to seek termination of parental rights. There is, inherent in this argument, a credibility question which the trial court resolved in favor of the case worker and CYS. The trial court specifically dismissed appellant’s claim of a plot against her as mere “paranoia.” Trial Court Opinion at 7. Cf. In re G.D.G., supra. The record sustains that conclusion.

Assuming, arguendo, that the case worker had expressed to appellant some opposition to reunification (even at an early date in the process) and that the case worker’s opposition to reunification deflated appellant’s hopes and expectations, such would hardly be remarkable or improper in this case. While CYS and case workers have a duty to promote reunification by providing assistance to parents working toward that goal; they have no obligation to force parents to make such efforts, to guarantee the success of such efforts, or to promote unreasonable expectations concerning such efforts regarding the prognosis for reunification.

It is important to remember the context in which CYS’s involvement arose in this case. The family was living in an unsanitary, garbage strewn residence, the father was sexually abusing his two oldest daughters, and the mother was aware of this for ten months but took no steps to prevent her husband’s sexual abuse of her own pre-teenage daughters. After the children were placed in state care, the father committed suicide, the mother attempted suicide, and then the mother was treated for schizophrenia as an in-patent in a mental hospital for 15 months. Moreover, the mother’s irratic and irresponsible conduct after her release strongly reinforced the original negative prognosis for reunification. Indeed, appellant resisted all assistance and took no discernable steps toward acquiring the skills and means to perform her parental responsibilities until on the eve of termination, on the advice of counsel, she suddenly announced her intent to abandon all resistance and cooperate fully in any program prescribed.

How in this context could CYS or the case worker be faulted for recognizing the painful realities in this case, or in preparing for eventual and inevitable termination of parental rights? The trial court found no fault in CYS or the case worker. Neither do we.

These children have been repeatedly victimized by parental neglect and abuse during their short lives. What little solace may be had by the establishment of nurturing ties to foster and/or adoptive parents, and/or by the development of stability and a sense of permanence in their lives at this late date in their childhoods was their right to ask of this Commonwealth. It was a request the trial court was fully empowered to grant under the circumstances presented.

Order Affirmed.

      . Under Pennsylvania law such conduct could sustain a criminal conviction for endangering the welfare of a child. See Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986). The record does not disclose whether charges were ever filed against the mother for that misconduct.

      . The two older children, who were sexually abused by their father, confronted their mother on November 21, 1988, concerning her responsibility for failing to take steps to prevent continued sexual abuse of them by her husband for ten months after she became aware of the abuse. When their mother refused to take any responsibility for their abuse, the daughters understandably refused to have further contact with her. Their sister also refused to see appellant from that date forward.

      . We are not faced here with a question of whether the statutory duty to promote family stability and unity requires futile efforts to preserve a family unit in the face of egregious child abuse by parents. Here, efforts to preserve the family unit were plainly made and it is the adequacy of those efforts which is questioned. Hence, we do not reach the broader, more problematic issue of whether children must be further traumatized in the futile pursuit of family unity where the abuse was egregious and the damage to the parental bond was irreparable.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    578 A.2d 960
    COMMONWEALTH of Pennsylvania v. Robert Max JENKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1990.
    Filed Aug. 1, 1990.

      William J. Patrick, Berwick, for appellant.
    George 0. Wagner, Dist. Atty., Danville, for Com.

      Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Montour County after conviction for three counts each of involuntary deviate sexual intercourse, statutory rape, indecent assault and sexual abuse of children, along with one count each of endangering the welfare of children and incest. On appeal, Jenkins calls upon us to determine: (1) whether the verdicts were against the weight of the evidence; and (2) whether appellant was prejudiced because the Commonwealth’s expert witness was not specifically determined to be an expert witness by the trial judge. We affirm.

On January 26, 1988, following a jury trial, appellant was convicted of the above charges. Post-verdict motions were filed and denied. On August 3, 1989, appellant was sentenced to an aggregate term of fifteen-to-thirty years imprisonment. Following denial of his motion to reconsider sentence, appellant filed the instant appeal.

Initially, appellant argues that his conviction was against the weight of the evidence. He contends that the testimony elicited from the prosecution’s witnesses was so contradictory, unbelievable and incredible that a new trial is warranted. We disagree.

While it has been the practice of this Court to review weight of the evidence claims, several recent cases have questioned our continuing authority to do so. In Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989), our Supreme Court stated that “a challenge to the weight of the evidence is not appealable.” Id., 522 Pa. at 315, 561 A.2d at 728. Though this statement would seem to preclude this Court from addressing appellant’s initial claim, we note that the defendant in Wallace never specifically challenged the weight of the evidence. In such a circumstance then, it would appear that the pronouncement of the Court amounts to obiter dictum rather binding authority.

Our Supreme Court was not without precedent, however, in finding a weight of the evidence challenge non-appealable. In Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987), cert. denied sub nom. Pennsylvania v. Nelson, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987), a capital-murder case upon which the Wallace majority relied, the Court, in a footnote, posited:

Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. Commonwealth v. Brantner, 486 Pa. 518, 522 n. 2, 406 A.2d 1011, 1013 n. 2 (1979); Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record.” Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Farquharson, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). However, where the penalty of death is imposed we will consider such a complaint.

Id., 514 Pa. at 271 n. 3, 523 A.2d at 733 n. 3 (emphasis added). While the Nelson Court expressed its disfavor in addressing claims regarding the weight of the evidence, it did not preclude an appellate court from reaching them and, in fact, went so far as to create an exception for those cases where a penalty of death is imposed. Thus, by the Court’s own language, it appears that in certain situations a weight of the evidence examination may be appropriate.

One situation has been presented to this Court on numerous occasions involving weight of the evidence claims. When faced with a request for a new trial on the grounds that the verdict is against the weight of the evidence, it has been held that the task of the trial court is to determine whether “... the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). We have reviewed this determination under an abuse of discretion standard. Id. (citing Commonwealth v. Pronkoskie, supra.). Of course, to be able to apply such a standard, we must necessarily conduct an examination of the “cold record.” That we have done so at this level, without comment by our Supreme Court, cannot be doubted.

In Commonwealth v. Farquharson, supra, our Supreme Court acknowledged another of these situations. In addressing a weight of the evidence argument the Court, while reiterating the jury’s role in resolving matters of credibility, "... recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding. Id., 467 Pa. at 59-61, 354 A.2d at 550 (citing Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973)). This so-called “Bennett principle” was found to apply “only where the party having the burden of proof presents testimony to support that burden which is either so unreliable or contradictory as to make any verdict based thereon obviously the result of conjecture and not reason.” Id. In assessing the appellant’s argument against this principle, and thereby weighing the evidence, the Court in Farquharson upheld the trial court's decision denying the grant of a new trial.

From our review then, we conclude that the passing statements of our Supreme Court in Wallace and Nelson have not resulted in a prohibition of weight of the evidence arguments in our appellate courts. Though the Wallace and Nelson decisions indicate a decided preference in favor of the fact-finder’s role as the final authority concerning matters of credibility and weight of the evidence, an examination of these matters by appellate tribunals still exists. Though we recognize that this practice is extremely limited, and properly so, we find that a weight of the evidence issue properly raised before this Court shall not be denied our review. Accordingly, and until directed to the contrary by our Supreme Court, we turn to the merits of appellant’s weight of the evidence argument.

Appellant was charged with sexual offenses against three children. Appellant is the biological father of the two female children (hereinafter referred to as “X” and “Y”), and the stepfather of the male child (hereinafter referred to as “A”). The trial court did not permit “Y” to testify; she was six years old at the time of the trial.

During their testimony at trial, “A” and “X” spoke of numerous incidents of abuse which correlated to each element of the various crimes for which appellant was convicted. Their testimony, however, was at times contradictory, and both admitted that they do not always tell the truth. “X” admitted that on various occasions she has named others as sexual abusers, and she admitted that if she were mad at someone she would name them as a sexual abuser. “A” admitted that he would sometimes lie to get out of trouble. In addition, several inconsistencies were present regarding the actual dates and times of the alleged abuse, and of the respective participants. Both witnesses testified, however, that these acts had occurred over a long period of time.

Appellant contends that this evidence was so contradictory and unreliable as to warrant a new trial. We disagree. While we are in accord with appellant that there were contradictions and inconsistencies present in the witnesses’ testimony, and that both admitted to lying on occasion, our examination of the record does not reveal a situation in which we are obliged to overturn the findings of the jury. This conclusion is not altered by the fact that appellant denies committing the acts charged or that a physician for the two girls, “X” and “Y”, could find no physical evidence of abuse. The jury was free to accept all, some or none of the testimony presented. Commonwealth v. Nelson, supra; Commonwealth v. Farquharson, supra. The fact that they chose to believe the victims does not shock this Court’s sense of justice. Nor do we find that the verdict was based upon surmise or conjecture. Accordingly, we find no abuse of discretion on the part of the trial court in denying appellant’s motion for a new trial.

Finally, Jenkins contends that he was prejudiced because the trial court did not specifically state that Kay Stewart was an expert witness.

The trial court judge did not specifically inform the jury that Kay Stewart had been accepted as an expert witness. Following an extensive examination of the witness regarding her background and areas of expertise, however, the court did state:

I think we have gone as far as we need to go here. We have spent a lot of time on this. We will permit her to express her opinion, and certainly the objections taken by Mr. Patrick will be taken into account in passing upon the weight to be given to that testimony.

Notes of testimony at 96. Although it would have been preferable for the trial court to expressly state that Kay Stewart was an expert witness qualified to state an opinion in her given area of expertise, we believe that the court’s statement was sufficiently clear so that the jury knew why she was there, what her testimony would concern, and that she was an expert in the field of child sexual abuse. Also, if there was error in not specifically stating that Kay Stewart was an expert witness, it was most certainly harmless error. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984).

Judgment of sentence affirmed.

      . Curiously, appellant does not raise a sufficiency of the evidence argument. We shall limit our review accordingly.

      . Appellant was also found not guilty of one count of incest.

      . It should be noted that the issue in Bennett was one of sufficiency, and not the weight, of the evidence. Credibility of a witness’s testimony, however, comes into play when discussing both sufficiency and weight claims and our courts have often utilized the fact-finder’s role in determining credibility to cover both situations.


author: BROSKY, Judge.

text:
    578 A.2d 964
    COMMONWEALTH of Pennsylvania v. Frederick M. TIPTON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 29, 1990.
    Filed Aug. 10, 1990.

      Charles R. Gority, Asst. Public Defender, Altoona, for appellant.
    David Gorman, Asst. Dist. Atty., Hollidaysburg, for Com.
    Before OLSZEWSKI, CERCONE and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after he pled guilty to charges of aggravated assault, involuntary manslaughter and recklessly endangering another person.

Appellant raises the following issues, whether the sentence was excessive, whether the court committed error in equating homicide by vehicle while intoxicated with involuntary manslaughter and recklessly endangering, whether the restitution ordered was vague and outside appellant’s ability to pay, and whether reckless endangerment merged with involuntary manslaughter. We affirm the judgment of sentence with exception to the sentence on the reckless endangerment count, which we vacate.

Appellant pled guilty to charges arising out of an incident where he came home intoxicated late one night and prodded his sleeping girlfriend with a rifle which discharged resulting in her death. Appellant was sentenced to two-and-one-half to five years imprisonment on the involuntary manslaughter charge, and one to two years on the recklessly endangering charge. He was also sentenced to 18 to 36 months on a charge of unauthorized use of a motor vehicle which occurred after he had been arrested on the manslaughter and related charges. All sentences were ordered consecutive to each other.

Upon initial review of appellant’s challenges to the discretionary aspects of sentencing, we find that appellant’s statement of reasons relied upon for allowance of appeal does not set forth a showing that the sentence of imprisonment imposed was inconsistent with, or otherwise compromises, the purposes of the sentencing code. As such, under the dictates of Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), we decline review of that aspect of the sentence.

Appellant’s challenge to the order of restitution is found waived for a failure to object post-sentencing.

Appellant also contends that it was error for the court to equate the criminal act here with that of a homicide by vehicle while intoxicated. We have reviewed the sentencing transcript and found nothing impermissible within it. The court did make an allusion to homicide by vehicle. However, there is no indication that the court was equating the two. Rather he spoke by way of comparison and fully supported the sentence handed down with reasoning that is certainly within the bounds of sentencing discretion. Thus, we find no error in this regard.

Appellant’s final contention asserts that the crimes of recklessly endangering and involuntary manslaughter should have merged for sentencing purposes. We agree.

The crime of reckless endangerment is defined at 18 Pa.C.S. § 2705 as: “a person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” Obviously, the elements of the offense are (1) engaging in reckless conduct that (2) places another person in danger of death or serious bodily injury. Involuntary manslaughter is defined at 18 Pa.C.S. § 2504 as: “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, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person. When the language of this section is reduced to a minimum, the elements of this offense are (1) the engaging in an action in a reckless or grossly negligent fashion which (2) causes the death of another person. The analysis of a merger issue has been clouded in recent times by decisional changes in the law. Despite recent decisions purportedly handed down in an effort to simplify the question, it remains a challenging endeavor to determine whether, for sentencing purposes, one offense is merged into another allowing the imposition of but one sentence. However, we conclude that merger is, indeed, proper in the present case.

Early in 1989 our Supreme Court decided two cases in which the merger inquiry was redefined. In Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989), our Supreme Court abandoned the previously accepted approach to merger analysis and indicated that “except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished.” Id., 559 A.2d at 29. (Emphasis in original). Ostensibly then, the two or more crimes in question must include at least one which is a lesser included offense of another prior to a finding of a merger for sentencing purposes. The exact impact this case has on the determination of what constitutes a lesser included offense, in itself an endeavor of a mystifying nature, is still less than clear. The companion case to Williams, Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), contained the following language: “In Leon Williams we held that where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses.” Applying this rule to the present case we conclude that the facts necessary to prove the involuntary manslaughter are also those relied upon to establish the crime of reckless endangerment. We further find that reckless endangerment is a lesser included offense of involuntary manslaughter, thus, the crimes must merge.

As analyzed above, in order for the Commonwealth to prove involuntary manslaughter it was necessary to show reckless or grossly negligent conduct which caused the death of the victim. This was accomplished by establishing appellant’s conduct of recklessly discharging the rifle into the victim’s body which caused her death. However, these very same facts also support the reckless endangerment charge. With regard to this charge, reckless conduct is established by the act of pointing a weapon in the victim’s direction and the element of placing the victim in danger of death or serious bodily injury is amply demonstrated by the fact that the victim, indeed, lost her life as a result of the conduct engaged in. However, our merger inquiry does not end here, under Williams it is further necessary to establish that reckless endangerment is a lesser included offense of involuntary manslaughter. We would conclude that to be the case.

There have been many recitations of what constitutes a lesser included offense. However, when the rhetoric is reduced to a minimum it can be concluded that a lesser included offense is one which will necessarily be established by proof of the greater offense; not simply in the factual context of a given case, but also in an abstract application as well. Thus, in its stricter form of interpretation, a lesser included offense will always, in every case, be established when the greater offense is established. This results, essentially, due to a relative identity of elements of the two or more offenses being compared. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983). When the elements of reckless endangerment and involuntary manslaughter are compared there is an obvious identity of the essential elements. Indeed, every case of involuntary manslaughter, it would seem, would necessarily establish a case of reckless endangerment due to the relative identity of elements. As such, there can be no doubt that reckless endangerment is a lesser included offense of involuntary manslaughter.

The element of doing an act in a reckless or grossly negligent manner, essential to involuntary manslaughter, would seem to necessarily establish the element of engaging in reckless conduct, necessary for reckless endangerment, and the element of causing the death of another would clearly satisfy the element of placing one in danger of serious bodily injury or death. As such, involuntary manslaughter “necessarily involves” the crime of reckless endangerment. Thus, although clearly not every case where a reckless endangerment has been committed will there also be an involuntary manslaughter, a finding of involuntary manslaughter would appear to support a reckless endangerment charge. Reckless endangerment is, essentially, a stop along the way to involuntary manslaughter and it would seem impossible to commit the offense of involuntary manslaughter without also committing the offense of reckless endangerment. Indeed, it could be stated with reasonable certitude, that the death of the victim, which would support the involuntary manslaughter, is at least one of the results hoped to be prevented by making reckless endangerment an offense in the first instance. Thus, merger is appropriate.

We are unconvinced that our decision regarding merger would be changed by the Commonwealth’s argument that there were other small children in the same room as the victim, thus making them victims of reckless endangerment as well. The information charging appellant makes no mention whatever of the individuals now claimed by the Commonwealth to be victims of reckless endangerment. Indeed, the only mention of reckless endangerment in the information explicitly states the decedent was the victim of the reckless endangerment. Thus, after our finding as to the merger issue, there is no factual basis upon which the charges could rest. To uphold the sentence on this argument advanced by the Commonwealth would be tantamount to finding appellant guilty to charges to which he did not plead guilty to. Appellant can be deemed to have pled guilty to, and thereby acknowledged the factual basis for, only those charges and those facts contained in the information. Consequently, the Commonwealth’s position must be deemed meritless.

Judgment of sentence vacated as to the charge of reckless endangerment, affirmed in all other regards. Jurisdiction relinquished.

      . We note that there is reference to the filing of a petition for reconsideration/modifícation. In fact, the sentencing court did modify the sentence on the unauthorized use charge in apparent response to this petition. Yet no such document can be found in the record as transmitted to this court. Indeed, the docket statement itself, fails to indicate that such a document was filed. Further, there is no indication that the petition allegedly filed contained an objection to the order of restitution. Consequently, we have no choice but to find this challenge waived.

      . In Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983), we concluded that reckless endangerment was a lesser included offense of attempted murder, and our Supreme Court concluded that reckless endangerment was a lesser included offense of murder in Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979). We would think that these holdings strengthen our own here, since, unlike murder, involuntary manslaughter focuses on reckless conduct as, of course, does reckless endangerment.

      . It is not even immediately apparent from the record that the children were in the room with the victim as now claimed by the Commonwealth. A copy of the presentence investigation, under the heading “official version”, indicates that the children were in another room at the time of the incident and the information itself is silent on this matter.


author: HOFFMAN, Judge:

text:
    578 A.2d 967
    BANK LEUMI:LE-ISRAEL, B.M., Appellant, v. Daniel ZIMMERMAN and Richard E. Rosin, Successor Trustees to Herman Winderman and Eleanor Mellman, Trustees Pursuant to a Trust Indenture Dated 11/2/73.
    Superior Court of Pennsylvania.
    Argued May 3, 1990.
    Filed Aug. 14, 1990.

      Edward J. Hayes, Philadelphia, for appellant.
    Arthur W. Lefco, Philadelphia, for appellees.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order dated October 4, 1989, denying the Petition of appellant, Bank Leumi, to Fix Fair Value and Establish Deficiency Judgment, and marking appellant’s prior judgment against appellees, Daniel Zimmerman, et al., released, satisfied and discharged. Appellant argues that the trial court erred in utilizing the Deficiency Judgment Act (the “Act”) to resolve the case. For the following reasons, we reverse the trial court’s order and remand for proceedings consistent with this opinion.

On November 2, 1973, the parties executed a mortgage and bond by which appellant agreed to lend appellees $2 million, and appellees pledged certain parcels of real property as collateral. Appellees defaulted on the loan, and on June 15, 1984, appellant had judgment by confession entered against appellees in the amount of $940,095.39. Thereafter, on July 5, 1984, appellant instituted execution proceedings. A sheriffs sale was held, and some of appellees’ property was sold to P. Agnes, Inc. (“Agnes”) for the sum of $565,000. On September 17, 1984, appellant filed a Petition to Set Aside Sheriff’s Sale. The petition was denied on March 19, 1985, and appellant filed a Notice of Appeal to that decision on April 16, 1985. Appellant also entered into negotiations with Agnes which resulted in a settlement by which Agnes made a payment to appellant, and appellant withdrew its appeal. The Sheriffs deed was issued to Agnes on November 21, 1985. On May 20, 1986, appellant filed a Petition to Fix Fair Value and Establish Deficiency Judgment against appellees. That petition was denied, and appellant’s June 15, 1984 judgment was marked released, satisfied and discharged, by order dated October 4, 1989. This appeal followed.

I. THE DEFICIENCY JUDGMENT ACT

The Deficiency Judgment Act provides the procedure that must be followed by a judgment creditor, who purchases his debtor’s real property at an execution proceeding, if the execution did not fully satisfy the judgment. Our Supreme Court explained the history and purpose of the Deficiency Judgment Act in its opinion in Union Trust Company v. Tutino, 353 Pa. 145, 44 A.2d 556 (1945):

Prior to the Deficiency Judgment legislation, an execution plaintiff, purchasing at his foreclosure sale, was required to credit on the judgment only the price, however nominal, at which the property was sold to him by the sheriff; he was then permitted to issue additional executions to recover the balance of the judgment____ [I]t was ... hardships [resulting from that rule] which the legislature desired to abolish by the enactment of the Deficiency Judgment legislation____ The intention, as the title and contents of the Act indicate, was to protect judgment debtors whose real estate is sold in execution, by requiring the plaintiff to give credit for the value of the
property he purchased at his execution and not merely to credit the price at which it was sold.

Id., 353 Pa. at 148, 44 A.2d at 558. See also Shrawder v. Quiggle, 256 Pa.Super. 303, 389 A.2d 1135 (1978); Hoffman Lumber Co. v. Mitchell, 170 Pa.Super. 326, 85 A.2d 664 (1952). The Act is structured as follows. Section 8103(a) states:

Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.

42 Pa.C.S.A. § 8103(a). Once fair market value is established, and if the fair market value is less than the amount of the debt owed to the judgment creditor, the Act provides that “the judgment creditor may proceed by appropriate proceedings to collect the balance of the debt.” Id. § 8103(c). The Act also provides certain limitations on the judgment creditor’s ability to establish a deficiency judgment. Thus, subsection (b) provides that any person liable to the judgment creditor for the payment of the debt who is neither named in the petition nor served with a copy thereof, is discharged from all personal liability to the judgment creditor on the debt. Subsection (c), in turn, deals with answers to petitions to fix fair market value, and sets forth guidelines courts will follow in establishing the fair market value of the real property sold based on those answers. It also releases judgment debtors from their debt to the extent of that value, less certain costs. Subsection (d) offers the debtor protection if the judgment creditor fails to timely petition to fix the fair market value:

If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within the time after the sale of such real property provided by section 5522 (relating to six months limitation), the debt- or, obligor, guarantor or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, or any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment, may file a petition, as a supplementary proceeding in the matter in which the judgment was entered in the court having jurisdiction, setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, after notice as prescribed by the general rüle, and being satisfied of such facts, shall direct the clerk to mark the judgment satisfied, released and discharged.

42 Pa.C.S.A. § 8103(d). Finally, subsection (e) of the Act prohibits debtors from entering into agreements to waive the benefits of the Act. Having discussed the history, purpose and mechanics of the Act, we now turn to an evaluation of appellant’s claim.

APPELLANT’S CLAIM

The scope of our review of deficiency judgment proceedings is limited to a determination of whether there is sufficient evidence to sustain the holding of the trial court, or whether the court committed a reversible error of law. First Pennsylvania Bank, N.A. v. Peace Valley Lakeside Community and Agricultural Trust, Inc., 329 Pa.Super. 218, 478 A.2d 42 (1984); Cheltenham Federal Savings and Loan Ass’n v. Pocono Sky Enterprises, Inc., 305 Pa.Super. 471, 451 A.2d 744 (1982).

Here, the court below found that the Act applied because "... after settling its dispute with Agnes [the party that purchased appellant’s property], [appellant] entered into an agreement [by] which [appellant] received the benefit of the higher negotiated price—just as though it had bought the property at Sheriffs Sale and then resold it to a third party—without participation of [appellees], the owners of the property.” Trial Court Opinion, November 15, 1989 at 18. The court went on to hold that, although appellant had timely filed its petition within six months of the delivery of the deed to Agnes, appellant’s actions in challenging the sale, and thereby delaying delivery of the Sheriff’s deed for over a year, constituted an “undue delay” for purposes of the Act. The court therefore ordered that the judgment against appellees be marked released, satisfied and discharged pursuant to § 8103(d).

Appellant. argues that the court’s decision was erroneous because the Act does not apply. Specifically, appellant argues that a predicate for applying the Act does not exist because the property was not “sold, directly or indirectly” to appellant. Although appellant’s argument is somewhat disingenuous in light of the fact that appellant itself initiated the suit under the Act, we are constrained to agree. Section 8103(a) of the Act clearly states that the Act only applies when real property is “sold directly or indirect.ly” to the judgment creditor. Here, the property in question was sold to a third party, Agnes, and there was no evidence that the sale was “directly or indirectly” a sale to appellant. Thus, the Act clearly does not apply, and the court erred in marking the judgment satisfied under the Act. In a case such as this, it would appear that appellant’s remedy for a “deficiency,” if any, would be an action to enforce the personal liability evidenced by the bond. See generally 9 Goodrich Amram, § 3180:1.1 (1977); 59 C.J.S. Mortgages, § 774 (1949). Accordingly, for the foregoing reason, we reverse the trial court’s order and remand for proceedings consistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

      . 42 Pa.C.S.A. § 8103 et seq. Alternatively, appellant argues that the court erred in refusing to award a deficiency judgment because it mistakenly found that appellant had caused an "undue delay" in the delivery of the Sheriffs deed for purposes of the Act. However, because of our disposition of appellant’s first claim, we need not reach this argument.

      . This language refers to the Deficiency Judgment Act of 1941, 12 P.S. § 2621 et seq., which was repealed and replaced by the Deficiency Judgment Act of 1976, 42 Pa.C.S.A. § 8103, et seq. The present Act is essentially a reenactment of the prior version, except for the elimination and modification of certain procedural provisions. See Official Source Note, 42 Pa.C.S.A. § 8103. Our Supreme Court’s observations, therefore, are no less applicable to the present version of the Act.


author: ROWLEY, Judge:

text:
    578 A.2d 970
    Elizabeth MacCAIN and William MacCain, Appellants, v. MONTGOMERY HOSPITAL, John E. DeVenney, M.D., Robert Belasco, M.D., and Bruce J. Menkowitz, M.D.
    Superior Court of Pennsylvania.
    Argued June 21, 1990.
    Filed Aug. 15, 1990.

      Francis X. Nolan, Philadelphia, for appellants.
    Mary T. Trainor, Norristown, for Montgomery Hosp., appellee.

      Joseph M. Hoeffel, Norristown, for Robert Belasco, M.D., appellee.
    Before ROWLEY, McEWEN and JOHNSON, JJ.
   ROWLEY, Judge:

Elizabeth and William MacCain appeal from the trial court’s order granting Summary Judgment in favor of appellees, Montgomery Hospital, John E. DeVenney, and Robert Belasco. Appellants raise the following three issues on this appeal: (1) whether the trial court erred in finding no issue of material fact where the opinion of three doctors contradicted a fourth doctor and where the trial court attributed to plaintiff, only the fourth doctor’s opinion as elicited through plaintiff’s lips rather than through the testimony of the fourth doctor and where the trial court charged plaintiff with greater knowledge than her three treating physicians; (2) whether the trial Court erred in deciding as a matter of law that the statute of limitations had run where the uncontradicted affidavit of plaintiff revealed that she was unable, due to physical and emotional complications of surgery, to learn that she had suffered an "injury” that was proximately caused by another, where plaintiff’s conduct presented issues of the reasonableness which under the most recent cases mandated resolution by a jury and where the decisions of this court were conflicting on the issues; and (3) whether the trial court erred in applying the statute of limitations where the evidence clearly revealed an estoppel in that Dr. Belasco concealed information from the plaintiff until his deposition in 1988. We have reviewed the record and affirm the grant of Summary Judgment.

The facts giving rise to this case commenced on October 10, 1983 when Mrs. MacCain was admitted to the Montgomery Hospital for an orthopedic procedure on her right elbow. Dr. Menkowitz was the orthopedic surgeon who was to perform the procedure. Dr. Menkowitz requested a consultation by a cardiologist, Dr. Belasco, to determine whether Mrs. MacCain posed a surgical risk. Mrs. MacCain was first examined by a physician’s assistant who noticed a “right breast mass” during the examination. Dr. Belasco then examined Mrs. MacCain. He found no breast mass, but because of the assistant’s findings, he ordered a mammogram. The mammogram was taken on October 10, and based on its results, Dr. DeVenney, the radiologist, typed the following report:

Routine views of both breasts reveals what appears to be residual breast tissue in the upper middle and upper outer quadrant. I do not see anything that I could call a discrete mass. However, there are multiple small microcalcifications within this tissue and I cannot absolutely exclude the possibility of malignancy within this region. Follow up is suggested.

Dr. Belasco subsequently made a notation in Mrs. Mac-Cain’s chart that the mammogram was negative and he told Mrs. MacCain that everything was fine.

Mrs. MacCain’s surgery was performed and she was released from Montgomery Hospital on October 15, 1983.

During the ensuing months, Mrs. MacCain noticed that the lump in her breast was increasing in size and she consulted her gynecologist, Dr. Pedano, in February, 1984. Dr. Pedano examined the lump and indicated that he “did not like the looks of it.” Dr. Pedano instructed Mrs. MacCain to return in six months.

In September, 1984, when Mrs. MacCain returned to Dr. Pedano, the lump had grown larger. On September 25, 1984, Mrs. MacCain had a second mammogram taken. Dr. Pedano compared the two mammograms and recommended a biopsy.

Mrs. MacCain desired a second opinion and she went to Dr. Whitenack in October, 1984. Dr. Whitenack confirmed Dr. Pedano’s recommendation. Following a biopsy, Mrs. MacCain underwent a modified radical mastectomy on October 5, 1984.

Appellants instituted the present action on November 21, 1986 against Montgomery Hospital, Dr. DeVenney, Dr. Belasco, and Dr. Menkowitz. Appellees filed separate Motions for Summary Judgment asserting that appellants’ claims were barred by the statute of limitations. On November 6, 1989, the trial court granted these motions and the MacCains filed this appeal.

Pa.R.C.P. 1035(b) provides the following:

The [summary] judgment sought shall be rendered 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 a judgment as a matter of law.

In deciding a motion for summary judgment, the court must resolve all facts in the light most favorable to the non-moving party and resolve all doubts as to the existence of material facts against the moving party. Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989). Furthermore, summary judgment may be entered only in cases that are free from doubt. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980). Finally, a trial court’s grant of summary judgment will only be reversed if there has been an error of law or a clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 528 A.2d 177 (1987), allocatur denied, 518 Pa. 613, 540 A.2d 535 (1988).

Under 42 Pa.C.S.A. § 5524(2), an action to recover damages for personal injuries is governed by a two-year statute of limitations. Generally, the two-year period begins to run on the date the injury is sustained. However, when an injury is not readily apparent, the discovery rule applies. Stauffer v. Eversole, 385 Pa.Super. 317, 560 A.2d 816 (1989). Under the discovery rule, the two-year time period is tolled and does not begin to run until the plaintiff knows, or in the exercise of reasonable diligence should have known, (1) that he has been injured, and (2) that his injury has been caused by another’s conduct. Levenson, supra.

Applying the above principles to the present case, we find that appellants’ claim is barred by the statute of limitations and that the trial, court was correct in granting summary judgment.

After Mrs. MacCain was told that her mammogram was normal and that she had nothing to worry about, she admitted that she felt the lump increasing in size. In fact, she went to Dr. Pedano, her gynecologist, four months after the first mammogram was taken in order to have the lump checked. He told her he did “not like the looks of it” and instructed her to return in six months. When she did return in September, 1984, the lump had grown larger and Dr. Pedano recommended that Mrs. MacCain undergo a biopsy.

Mrs. MacCain then sought a second opinion from Dr. Whitenack. When Mrs. MacCain was deposed, she stated that she was told by Dr. Whitenack that he observed carcinoma on the 1983 mammogram as well as the 1984 mammogram and that maybe Dr. Belasco did not see it or did not look at the mammogram right. She now argues that this statement from Dr. Whitenack was not sufficient to alert her to the existence of an injury. However, a plaintiff need not know the precise medical cause of the injury for the statute of limitations to begin running; she need only to have known that she was injured. Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986), allocatur denied, 515 Pa. 600, 528 A.2d 957 (1987). Furthermore, a plaintiff need not know that she has been injured by someone’s negligent conduct for the limitations period to begin running. Bickford v. Joson, 368 Pa.Super. 211, 533 A.2d 1029 (1987), allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988). There is no question that at the time she was told she had cancer, Mrs. MacCain should have been alerted to the fact that the earlier mammogram had been misread or that she had been misinformed.

Appellants also claim that the trial court erred in finding no issue of material fact where Dr. Whitenack’s opinion that he could see carcinoma on the first mammogram contradicted Dr. Belasco’s and Dr. DeVenney’s assertions that carcinoma was not present on the first mammogram. Furthermore, appellants assert that the trial court erred in relying on Mrs. MacCain’s testimony about what Dr. Whitenack said. The fact that Dr. Whitenack’s opinion contradicted the opinion of the other doctors, while relevant to the underlying issue of liability, is not a material fact with respect to the statute of limitations issue. Furthermore, even without Dr. Whitenack’s statement that carcinoma was present on the first mammogram, Mrs. MacCain knew in October of 1984 that she had cancer and she also knew that Dr. Belasco had told her she did not have cancer in October of 1983. Therefore, she should have been aware that a mistake was made with regard to the first mammogram.

The facts of Groover, supra, are similar to the present case. In Groover, the plaintiff received an injection in her back in 1979. She immediately felt pain and she soon began to suffer loss of control in her right leg. She saw various doctors over the next few years in response to the problems with her leg. In June, 1983, a doctor determined that the injection which she received in 1979 had caused injury to the sciatic nerve and that this was the source of her problems. The plaintiff then filed suit in September, 1983. The trial court granted summary judgment, holding that the statute of limitations barred plaintiff’s claim. The Superior Court affirmed and emphasized that the plaintiff immediately started having pain after the injection and that she should have known that she had suffered an injury. The Superior Court held that the plaintiff need not have known the precise medical cause of her injury for the statute of limitations to begin running. She need only to have known that she was injured. Id.

In the present case, by February of 1984, Mrs. MacCain was aware that the lump in her breast was growing in size and she was told by a doctor that there may be a problem. Finally, in the beginning of October, 1984, she was told that her mammogram indicated carcinoma and that a biopsy would have to be performed. On October 5, she underwent a mastectomy. By this time, she should have realized that she had suffered an injury.

Appellants also argue that the trial court erred in charging Mrs. MacCain with greater knowledge than the physicians who treated her in October of 1983. However, the trial court did not hold that Mrs. MacCain should have known about her injury in October of 1983. The trial court held that she should have known that she was injured by October of 1984 when she learned that she had cancer. Therefore, the trial court did not charge Mrs. MacCain with greater knowledge than Drs. Belasco and DeVenney.

Appellants also contend that Mrs. MacCain was unable to learn that she had suffered an injury because of the physical and emotional complications of surgery ánd that the question of the reasonableness of her conduct should have been resolved by a jury as held in Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988). The facts in Corbett, wherein the plaintiff had suffered serious knee pains for years prior to the allegedly negligent treatment, are significantly different from the present case. In Corbett, since the plaintiff had continually suffered pain in her knee for many years, the fact that she continued to suffer pain after medical treatment did not necessarily put her on notice that she had been injured by the treatment. She had no reason to suspect that the pain she felt was not simply a continuation of the pain she had been suffering for years.

In the present case, Mrs. MacCain first felt the lump in her breast shortly before the first mammogram was taken. As the lump continued to grow and as she learned that in fact it was cancerous, she had no reason, as Mrs. Corbett had, not to suspect that the original report of Dr. Belasco may have been erroneous. We therefore find Corbett to be inapplicable to the facts of this case.

Moreover, while it is true that in most cases the question of what a plaintiff should reasonably have discovered is a factual determination that should be left to the jury, in some cases “the facts will be undisputed and will lead unerringly to the conclusion that the length of time it took a plaintiff to discover the injury or its cause was unreasonable as a matter of law.” Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428, rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). In such cases, summary judgment is appropriate. Id.

While we sympathize with appellants’ situation, we still must find, as a matter of law, that she should have known that she was injured by, at least, October of 1984 when she was told that she had cancer. For months, Mrs. MacCain was concerned about the lump in her breast. She felt the lump growing larger and was told by her doctor that a problem might exist. In October of 1984, Dr. Whitenack told her that the second mammogram showed carcinoma. On October 5, 1984, this diagnosis was confirmed by the biopsy. At this point, any suspicion of cancer had been positively confirmed. Mrs. MacCain should have been aware that the earlier mammogram had been misread or that she had been misinformed. There is no issue of material fact for the jury to consider and summary judgment was appropriate.

Appellants also argue that the trial court erred in applying the statute of limitations where the evidence reveals an estoppel in that Dr. Belasco concealed information from the plaintiff until his deposition in 1988. Appellants claim that what was concealed from them was the fact that Dr. Belasco never looked at the mammogram or Dr. DeVenney’s report.

In some cases, the statute of limitations will be tolled when a physician conceals information from the plaintiff and the plaintiff is lulled into a false sense of security. DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 460 A.2d 295 (1983). However, “reliance upon the word of one physician when the patient’s own common sense should lead one to a different conclusion is unreasonable.” Id., 313 Pa.Superior Ct. at 506, 460 A.2d at 302.

It is uncontradicted that Mrs. MacCain was concerned about the lump in her breast even after Dr. Belasco informed her that there was nothing to worry about. She noticed that it was increasing in size and she went to her gynecologist to have it examined. In this situation, it was not reasonable for Mrs. MacCain to have relied on Dr. Belasco’s opinion when she herself felt that the lump was increasing in size and when she was informed by her own doctor that there could be a problem.

Finally, we do not agree with appellants’ contention that the trial court erred in deciding that the statute of limitations had run when the decisions of the Superior Court were conflicting on the issues. To commence the running of the statute of limitations, a plaintiff must know, or in the exercise of reasonable diligence should have known, that he has been injured, and that this injury has been caused by another’s conduct. Levenson, supra. A plaintiff need not know that he has a cause of action for the statute of limitations period to begin running. DeMartino, supra.

For the above reasons, appellant’s claim is barred by the statute of limitations as a matter of law.

The trial court’s grant of Summary Judgment is affirmed.

      . Because the thirty day period after the filing of the praecipe for argument had not expired with respect to defendant Bruce J. Menkowitz’ Motion for Summary Judgment, the trial court did not rule on that motion and Menkowitz is not a party to this appeal.

      . Although this issue was not raised in appellant’s statement of matters complained of, the trial court addressed it, albeit in a footnote. The omission did not interfere with our ability to exercise appellate review; therefore we address the merits of the issue. See Commonwealth v. Van Jordon, 310 Pa.Super. 516, 456 A.2d 1055 (1983).


author:
WIEAND, Judge:
      CIRILLO, President Judge,

text:
    578 A.2d 975
    John Mark RODLAND, Appellant, v. METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1990.
    Filed Aug. 31, 1990.
    Lawrence Sager, Pottstown, for appellant.

      Michael O’Hayer, Paoli, for appellee.
    Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   WIEAND, Judge:

On October 14, 1984, John Mark Rodland made application to Metropolitan Property and Liability Insurance Company (Metropolitan) for a policy of automobile insurance. In connection therewith, he certified that his answers to questions were true and correct and paid a premium for the quarterly period from October 15, 1984 to January 15, 1985. Approximately a month later, Metropolitan sent Rodland notice of cancellation, effective December 9, 1984, and included a check in the amount of $58.50, which represented a pro rata refund of the quarterly premium. The reason for the cancellation of the policy was an undisclosed prior record of traffic violations which included convictions for speeding and failure to stop for a red light. Although the cancellation notice advised Rodland that he had a right to obtain a review of the policy’s cancellation by the Insurance Commissioner, Rodland elected not to challenge the cancellation of the policy. Instead, he cashed Metropolitan’s refund check on December 7, 1984. On December 17, 1984, he was involved in a vehicular accident in which he sustained personal injuries.

Rodland then filed a civil action against Metropolitan to recover no-fault benefits. He contended that the notice of cancellation had been improper and that, in any event, Metropolitan was estopped from cancelling the policy because it had knowledge that at the time of purchasing the policy he, Rodland, had surrendered his coverage with another insurance company. Following trial, a jury found in response to special interrogatories that it had not been represented to Rodland at the time of purchasing the policy that it was non-cancellable and that Rodland had, in fact, received the written notice of cancellation sent by Metropolitan. These findings were molded into a verdict for the defendant insurer. When Rodland filed post-trial motions, however, the trial court concluded that only the Insurance Commissioner had jurisdiction to determine whether the Metropolitan policy had been properly cancelled. Therefore, the court vacated the verdict and dismissed Rodland’s complaint. Rodland appealed. He argues that the trial court erred when it determined that it lacked jurisdiction to decide the case.

The legislature has provided in the Act of June 5, 1968, P.L. -, No. 78, § 8, as amended, 40 P.S. § 1008.8(a), that

Any insured may within twenty days of the receipt by the insured of notice of cancellation or notice of intention not to renew, and of the receipt of the reason or reasons for the cancellation or refusal to renew as stated in the notice, request in writing to the Insurance Commissioner that he review the action of the insurer in cancelling or refusing to renew the policy of such insured.

The cancelling insurance company is required to give notice to its insured of this provision. See: Act of June 5, 1968, § 6, supra, as amended, 40 P.S. § 1008.6. In conducting such a review, the Insurance Commissioner can be called upon to determine whether, in cancelling the policy, the insurer acted properly and complied with the conditions for cancellation set forth in section 5 of the statute. There is nothing in the statute, however, which purports to make review by the Commissioner a condition precedent to an action to recover under a policy of insurance which has been alleged by the claimant to have been cancelled ineffectively by the insurer.

The trial court’s reliance on Metropolitan Property & Liability Insurance Co. v. Insurance Commissioner, 517 Pa. 218, 535 A.2d 588 (1987), is misplaced. There, the insurer attempted to rescind a policy of automobile insurance because the applicant had misrepresented his driving record. The opinion announcing the judgment of the Court was authored by Mr. Justice McDermott and was joined by one other member of the Court. They reasoned that the statutory procedure was the exclusive means by which an insurance company could terminate a policy of insurance and that unilateral rescission by the insurer because of a material misrepresentation by the insured was no longer an available remedy. Because this view did not gather a majority of the Court, it is not precedential. Three justices held that rescission was inappropriate in that case because the misrepresentation by the applicant had not been material. A fourth justice concurred in the result. Neither the opinion announcing the decision of the Court nor the concurring opinion suggested that the Insurance Commissioner had exclusive jurisdiction to determine whether a policy of insurance had been properly cancelled.

In the instant case, Metropolitan acted according to the terms of the statute to notify Rodland that his policy was being terminated and returned to him the unused portion of the premium which he had paid. Rodland was also given notice that he could obtain a review of Metropolitan’s decision to terminate by written request directed to the Insurance Commissioner within twenty days after receipt of the notice of cancellation. Rodland, however, elected to cash the refund check and did not request a review of the insurer’s action to terminate. Under these circumstances, the policy of insurance was validly cancelled, and the trial court had jurisdiction to make such a determination. See: Stevens v. Kemper Insurance Co., 384 Pa.Super. 263, 558 A.2d 113 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989).

It follows that the trial court erred when it held that it lacked jurisdiction to hear the instant litigation and dismissed appellant’s complaint. However, appellant has advanced no other argument in this appeal. He has not challenged in any way the special findings of the jury which resulted in a verdict for the defendant insurer. That verdict, being jurisdictionally proper, will be reinstated.

The order of the trial court dismissing appellant’s complaint for lack of jurisdiction is reversed, and the verdict in favor of the defendant is reinstated.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting.

I respectfully dissent. I believe that the legislature, by establishing a comprehensive statutory scheme to regulate the cancellation of automobile insurance policies, and by creating an insurance commission, intended to vest exclusive initial jurisdiction to determine the propriety of an insurance company’s cancellation of automobile insurance with the Insurance Commissioner. Therefore, contrary to the majority, it is my opinion that the trial court was without jurisdiction to determine whether Metropolitan properly cancelled Rodland’s insurance.

Act 78, 40 P.S. § 1008.1 et seq., governs all aspects of an insurer’s cancellation of an insured’s automobile insurance policy. Section 1008.4 enumerates the grounds on which the insurer can cancel an insured’s policy. 40 P.S. § 1008.4(1)—(3). The proper procedures to effectively cancel an automobile insurance policy are set forth in section 1008.5. 40 P.S. § 1008.5(1)-(7)- Act 78 also provides for review of a decision to cancel an automobile insurance policy. 40 P.S. § 1008.8. Section 1008.8 states, in pertinent part:

Any insured may within twenty days of the receipt by the insured of notice of cancellation or notice of intention not to renew, and of the receipt of the reason or reasons for the cancellation or refusal to renew as stated in the notice, request in writing to the Insurance Commissioner that he review the action of the insurer in cancelling or refusing to renew the policy of such insured.

40 P.S. § 1008.8(a). If either the insured or the insurer is not satisfied with the Insurance Commissioner’s review, that party has the right to a formal administrative hearing. 40 P.S. § 1008.9. Act 78 also specifies how such reviews and hearings are to be conducted. 40 P.S. § 1008.9(a)-(e). Finally, if a party wishes to further challenge the review afforded in section 1008.9, he is entitled to appeal the decision to the Commonwealth Court. 40 P.S. § 1008.10(a). During this entire review process, the insurance policy remains in effect. 40 P.S. § 1008.9(e); Norwood A. McDaniel Agency v. Foster, 117 Pa.Commw. 227, 234, n. 3, 543 A.2d 155, 158 n. 3 (1988). Thus, Act 78 provides for almost every eventuality that may arise when an insurer attempts to cancel an automobile insurance policy.

Our supreme court has addressed Act 78’s impact on the remedies available to insurance companies when an insured had made misrepresentations on the application for insurance. In a plurality opinion authored by Justice McDermott, the court stated that “the General Assembly intended that in order to terminate a policy of automobile insurance an insurer must comply with Act 78.” Metropolitan Property and Liability Insurance Company v. Insurance Commissioner, 517 Pa. 218, 229, 535 A.2d 588, 594 (1987) (emphasis added). Since Metropolitan requires insurance companies to abandon the common law remedies utilized prior to Act 78 and comply with Act 78 when cancelling an insured's automobile insurance, it follows that an insured’s challenge to the appropriateness of that cancellation must also conform to the mandates of Act 78. The court considered several different factors in reaching this conclusion, but stated:

most importantly, we believe that in passing Act 78, the legislature intended that insurance questions were intended to be primarily resolved under the auspices of the Insurance Commissioner: a scheme which has the advantages of providing for expeditious resolution of claims before a body which has particular expertise, as well as eliminating from the dockets of the trial courts a host of relatively minor cases, which could be time consuming and expensive to the individual litigants.

Id., 517 Pa. at 226, 535 A.2d at 592 (emphasis added). Thus, initial jurisdiction to decide disputes within the purview of Act 78 lies solely with the Insurance Commissioner, not in the courts of common pleas.

I, like the Metropolitan court, believe that the Insurance Commissioner is an expert in matters of insurance. Her expertise further supports my opinion that she alone possesses jurisdiction to initially review cancellation notices. “Where the subject matter is within the agency’s jurisdiction and where it is a complex matter requiring special competence, with which the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter to the appropriate agency.” Schriner v. Pennsylvania Power & Light Company, 348 Pa.Super. 177, 181, 501 A.2d 1128, 1130 (1985) (emphasis original). Cancellation of an automobile insurance policy is, by section 1008.8’s own provisions, within the jurisdiction of the Insurance Commissioner and, like most insurance questions, requires special competence. Accordingly, I believe that the trial court properly found it was without jurisdiction to entertain Rodland’s claim that Metropolitan’s cancellation of his policy of insurance was ineffective.

Section 1008.8(a) states that a party “may” request review by the Insurance Commissioner. The use of the word “may” does not indicate that the forum in which review may be sought is discretionary with the petitioner and that a party may opt to file suit in the court of common pleas. An analogous situation is found in the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. Like Act 78, the Human Relations Act creates a comprehensive regulatory scheme, including an administrative agency which serves as the initial arbiter of disputes arising under its provisions. See 43 P.S. § 951 et seq. The Human Relations Act provides that “[a]ny person claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the [Pennsylvania Human Relations] Commission a verified complaint....” 43 P.S. § 959(a) (emphasis added). Our courts have definitively held that, in such cases, the exhaustion of administrative remedies by the complainant by filing a complaint with the Pennsylvania Human Relations Commission is a condition precedent to jurisdiction in our court system. See Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 89, 559 A.2d 917, 918 (1989) (supreme court held that “[b]ecause appellees failed to seek redress for their grievances through the [Pennsylvania Human Relations Commission], ... they were barred from judicial recourse”); M.A.E. v. Doe & Roe, 388 Pa.Super. 589, 566 A.2d 285 (1989) (failure to pursue administrative remedy for alleged discriminatory termination cognizable under the Pennsylvania Human Relations Act foreclosed the employee from pursuing judicial recourse). Just as the Human Relations Commission possesses particular expertise in matters arising under the Human Relations Act, Clay, 522 Pa. at 91, 559 A.2d at 919, the Insurance Commissioner has particular expertise in the insurance field. Metropolitan, 517 Pa. at 226, 535 A.2d at 592. Given the parallel use of the word “may” in both Acts and the expertise possessed by the respective administrative agencies, it is my view that disputes arising under Act 78, like those arising under the Human Relations Act, must first be reviewed by an administrative agency before the Commonwealth Court has jurisdiction to review the controversy.

Also, section 1008.8’s use of the word “may” has been interpreted as being mandatory by the Commonwealth Court. In Erie Insurance Exchange v. Foster, 121 Pa. Commw. 500, 551 A.2d 3 (1988), the Commonwealth Court stated that the twenty day period in which to request that the Insurance Commissioner review a cancellation was mandatory. The court reasoned that the “timeliness of the appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of the court to hear and decide the appeal.” Id., 121 Pa. at 503, 551 A.2d at 4. The policy behind the twenty day rule, which argues strongly in favor of making it mandatory, is that “it is manifestly unfair to allow insureds to indefinitely sit on their rights, to the detriment of the insurer.” Id., 121 Pa. at 505, 551 A.2d at 5. As discussed earlier, if the insurers must comply with the provisions of Act 78, so too should insureds. As the trial court in this case cogently stated:

[i]f Rodland is allowed to ignore the administrative remedy available by waiting until the time for review passes and then seeking damages in [the court of common pleas], he will be doing just what the Metropolitan court refused to allow insurers [to do]—choosing his own forum and thereby divesting the Insurance Commissioner of jurisdiction.

The majority states: “[t]here is nothing in the statute, ... which purports to make review by the [Insurance] Commissioner a condition precedent to an action to recover under a policy of insurance which has been alleged by the claimant to have been cancelled ineffectively by the insurer.” Majority op. at 426-428. This statement is technically correct, but I cannot agree with the conclusion the majority draws from it. First, as already outlined, the comprehensive regulatory scheme established by Act 78, as well as subsequent judicial decisions, clearly contemplates that initial review is to be conducted exclusively by the Insurance Commissioner. Second, while in form, Rodland’s complaint sought recovery of no-fault benefits for an accident that occurred after his policy was cancelled, an action over which the Montgomery County Court of Common Pleas had jurisdiction, it was, in effect, an attempt to collaterally attack the cancellation. Having failed to timely follow the procedure outlined in section 1008.8, Rodland should not be able to vitiate the consequences of his failure to comply with Act 78 by now framing his challenge to the cancellation in the form of a suit for damages.

Hence, I agree that Rodland could file suit for no-fault benefits. However, the only issue the trial court was competent to decide was whether the denial of benefits was a breach of an active insurance policy. It had no power, once Metropolitan raised the defense of policy cancellation, to inquire into the validity of the cancellation or the circumstances surrounding it. Accordingly, once Metropolitan showed that it had cancelled the policy, the trial court was required to dismiss the complaint for failure to state a cause of action upon which relief could be granted. This would be true in any suit for benefits in which the effectiveness of the policy cancellation had been put in issue unless the time for review by the Insurance Commissioner had not yet run. If the twenty days specified in section 1008.8 have not expired, the trial court should stay the proceedings and order the plaintiff to seek review by the Insurance Commissioner.

The legislature, in enacting Act 78, provided a comprehensive regulatory scheme which included review of automobile insurance cancellations by the Insurance Commissioner. Accordingly, those procedures must be followed. Rodland failed to avail himself of the administrative remedy provided in section 1008.8, and therefore is precluded from seeking judicial recourse. The trial court order dismissing Rod-land’s complaint should be affirmed.

      . Act of June 5, 1968, P.L. 140, No. 78 § 1 et seq., as amended.

      . I am mindful that Justice McDermott’s plurality opinion did not command a majority of the supreme court. His rationale, however, was subsequently adopted by this court in Klopp v. Keystone Insurance Companies, 378 Pa.Super. 605, 549 A.2d 221 (1988) allocatur granted 522 Pa. 577, 559 A.2d 38 (1989). See Stevens v. Kemper Insurance Company, 384 Pa.Super. 263, 267-268, 558 A.2d 113, 115 (1989). Accordingly, I consider Justice McDermott’s opinion and rationale controlling, and conclude that the trial court did not err in relying on it. Judge Wieand, concurring and dissenting in Klopp, stated that "[i]n the absence of a controlling decision by the [sjupreme [c]ourt, I would adopt and follow the reasoning of the Concurring Opinion authored by Chief Justice Nix in Metropolitan Property and Liability Insurance Company v. Insurance Commissioner, 517 Pa. 218, 535 A.2d 588 (1987)....’’ Klopp, 378 Pa.Super. at 611, 549 A.2d at 224 (Wieand, J. concurring and dissenting). Judge Wieand’s majority opinion in the instant case appears to follow Chief Justice Nix’s concurring opinion, and not Justice McDermott's opinion as subsequently adopted by this court.

      . Act of October 27, 1955, P.L. 744 § 1 et seq., as amended.

      . Our supreme court’s decision in Clay was based on its interpretation of 43 P.S. § 953, which recognizes an individual's civil right to obtain employment without discrimination and states that the right "shall be enforceable as set forth in [the Act].” Id. The supreme court emphasized that the word “shall” indicated that this section should be considered mandatory. However, the section that describes the procedures to be followed, states that an aggrieved party "may” file a complaint. See 43 P.S. § 959. Like section 959, section 1008.8 of Act 78 also uses the word “may.”

      . The majority’s disposition of this case allows Rodland to twice evade the statutory scheme for dispute resolution of insurance cancellation cases. First, it permits Rodland to by-pass the Insurance Commissioner as required by section 1008.8 and seek review of the propriety of the cancellation in the court of common pleas. See 40 P.S. § 1008.8. Second, Rodland’s appeal from the order of the court of common pleas is before our court instead of the Commonwealth court as specified by section 1008.10(a). See 40 P.S. § 1008.10(a).

      . Proper compliance with the provisions of section 1008.8 would have obviated the need for the present suit. Rodland presently seeks damages for an accident which occurred after the policy was can-celled. However, under Act 78, Rodland’s policy would have remained in effect during the review process. 40 P.S. § 1008.9. Therefore, quite possibly, Rodland’s policy would have been in force when the accident occurred, just ten days after the cancellation became effective. In this appeal Rodland asserted that since he was seeking damages, a remedy not provided by section 1008.8, section 1008.8 was inadequate and therefore should not be applied to his case. The fallacy of this argument is that if Rodland had complied with section 1008.8 his policy might still have been in effect and provided him with benefits for the accident in question.
      One is left to speculate whether Rodland would ever have challenged the cancellation if no accident had occurred. Clearly, however, once the policy was cancelled, both parties’ contractual rights were extinguished. For example, it is beyond cavil that after cancellation, Metropolitan could not choose to require Rodland to pay premiums in accordance with the policy and enforce that choice by a suit on the contract. Similarly, Rodland could not, based on events occurring after cancellation, choose to sue for benefits under the policy and win. See generally Klingensmith v. Klingensmith, 375 Pa. 178, 184, 100 A.2d 76, 79 (1953) ("[o]bligations under a contract must be mutual and not merely unilateral, and both sides must be provided with the weapon of legal redress in the event either defaults on his obligations").

      . Filing suit for no-fault benefits during the period in which an appeal to the Insurance Commissioner is available may be a tactic utilized by an over-cautious plaintiff who fears the statute of limitations on the no-fault action may run before the Insurance Commissioner makes her decision.

      . Although the complaint should have been dismissed for failure to state a cause of action upon which relief could be granted and not for lack of subject matter jurisdiction, we can affirm a trial court order for any reason. O’Callaghan v. O’Callaghan, 389 Pa.Super. 319, 323, 567 A.2d 308, 310 (1989).