author: FORD ELLIOTT, Judge:

text:
    676 A.2d 1205
    Charmaine REYNOLDS v. THOMAS JEFFERSON UNIVERSITY HOSPITAL and Daniel Anthony Beneski, M.D. Appeal of THOMAS JEFFERSON UNIVERSITY HOSPITAL, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1995.
    Filed April 17, 1996.
    Reargument Denied June 21, 1996.

      M. Kelly Tillery, Philadelphia, for appellant.
    Thomas J. Duffy, Philadelphia, for Reynolds, appellee.
    Before HUDOCK, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order entered May 24, 1995 and docketed June 15, 1995, denying appellant’s post-trial motions and entering judgment in the amount of $600,000. Because we find a material variance between appellee’s pleadings and her proof at trial, which set forth a new cause of action and was thus barred by the applicable statute of limitations, we reverse.

As a reviewing court on a motion for a new trial or judgment n.o.v., we must consider the evidence, and all reasonable inferences which may be drawn therefrom, in the light most favorable to the verdict winner. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992), allocatur denied, 533 Pa. 601, 617 A.2d 1275 (1992). With that standard in mind, we shall briefly review the facts. Appellee was admitted to appellant hospital on August 1, 1986, at which time she gave birth to her third child by Caesarean section. She was released from the hospital on August 6, 1986, but returned on August 7, 1986, complaining of pain at the site of the incision. (R.R. at 16a.) The following day, appellee suffered massive congestive heart failure. Because she was unable to breathe on her own, an emergency intubation was performed by Daniel Beneski, M.D., an anesthesiologist, who inserted an endotracheal tube through appellee’s nose and down her throat. (R.R. at 16a-17a.) On August 9, 1986, the tube was extubated (removed). Following the extubation, appellee’s throat was sore, and she could only whisper. Appellee was released from the hospital on August 14, 1986. (R.R. at 16a.)

Prior to her release, on or about August 12, 1986, appellee’s case was assigned to Dr. Christopher Chambers, a specialist in family practice. (R.R. at 343a.) According to appellee, she asked Dr. Chambers about the hoarseness and sore throat almost immediately following her extubation. (R.R. at 137a.) Dr. Chambers, advised appellee that her hoarseness could continue for a week to a month, and that she should wait two weeks to see what happened. (R.R. at 137a.)

Following her release from the hospital, Dr. Chambers visited appellee at her aunt’s home on two occasions because she was unable to come to the hospital. The first of these home visits occurred on August 21, 1986, during which the focus of the visit was appellee’s infected incision and her response to the heart medication. (R.R. at 357a-358a.) Appellee testified that she again asked Dr. Chambers about her voice during this visit. (R.R. at 139a.) A second home visit occurred on August 28, 1986, with the focus once again on appellee’s heart and the wound infection. (R.R. at 359a-360a.) Appellee again also asked Dr. Chambers about her voice, which, she admitted, was worse then than it was at trial. (R.R. at 140a.) Subsequent follow-up care occurred at appellant hospital throughout the months of October to December 1986. When appellee’s voice still had not returned to normal by December 15, 1986, Dr. Chambers scheduled an appointment for appellee with an ear, nose, and throat specialist. (R.R. at 143a, 370a.) Eventually, appellee was diagnosed with a dislocated right arytenoid. She then underwent surgery, which was considered successful; however, her voice is still “airy,” and she has not been able to continue her part-time, occasional employment as a singer, from which she earned from $50 to $100 per week in cash, supplemented by public assistance. (R.R. 150a-160a.)

On July 22, 1988, appellee filed the complaint which is the subject of the instant appeal. In it, she alleged the following:

1. Plaintiff is an individual.
2. Defendant, Thomas Jefferson University Hospital is a Corporation.
3. Defendant, Daniel Anthony Beneski, M.D. is an individual medical doctor.
4. At all times relevant to this complaint, Defendant, Thomas Jefferson University Hospital acted through its agents, servants and/or employees.
5. At all times relevant to this complaint, Defendant, Daniel Anthony Beneski, M.D. was a resident or intern at Defendant, Thomas Jefferson University Hospital and was acting as the agent, servant and/or employee of Defendant, Thomas Jefferson University Hospital.
6. On or about August 8, 1986, Plaintiff, Charmaine Reynolds was a patient in Thomas Jefferson University Hospital.
7. On or about August 8, 1986, while a patient at Thomas Jefferson University Hospital, plaintiff Charmaine Reynolds was caused to undergo a procedure where she was intubated by Defendant, Daniel Anthony Beneski, M.D. and/or other agents, servants and/or employees of Defendant, Thomas Jefferson University Hospital.
8. The intubation performed by Defendant, Daniel Anthony Beneski, M.D. and/or other agents, servants and/or employees of Defendant, Thomas Jefferson University Hospital was performed in a negligent manner consisting of:
a) failure to use the proper size intubation tube;
b) failure to retract the tube after there was difficulty;
c) failure to promptly retract the tube after its improper position was noted;
d) failure to position the plaintiff properly before intubation;
e) failure to properly prepare the plaintiff for intubation;
f) failure to obtain proper assistance for nurses or other medical personal [sic] during the intubation procedure;
g) failure to properly watch and/or monitor the plaintiff;
h) failure to review records prior to intubation;
i) failure to properly train Defendant, Daniel Anthony Beneski, M.D. and or [sic] other medical personal [sic] in the proper method of intubation;
j) failure to position the intubation tube properly;
k) failure to perform treatment on plaintiff once it was apparent that the intubated [sic] procedure had been performed in a negligent manner;
l) failure to recognize that other procedures may have been utilized;
m) failure to recognize that Defendant, Daniel Anthony Beneski, M.D. and/or other personal [sic] were fatigued and should not be performing an intubation procedure on plaintiff;
n) failure to act properly under the circumstances.
9. As a direct result of the negligence of Defendant, Daniel Anthony Beneski, M.D. and/or Defendant, Thomas Jefferson University Hospital, plaintiff Charmaine Reynolds sustained serious personal injury consisting of injury to her arytenoid, voice, throat, neck, jaw, vocal folds, larynx, other body systems and emotional distress.
10. As a direct result of the injuries caused by Defendant, Daniel Anthony Beneski, M.D. and/or Defendant, Thomas Jefferson University Hospital, plaintiff, Charmaine Reynolds, has been forced to incur expenses for treatment, great pain suffering [sic], loss of employment [sic] of life, and emotional distress.
11. As a direct result of the injuries caused by Defendant, Daniel Anthony Beneski, M.D. and/or Defendant, Thomas Jefferson University Hospital, plaintiff, Charmaine Reynolds, has been forced to incur a loss of employment at great financial loss to her.

Plaintiff/appellee’s complaint, 7/22/88 at R.R. 4a-8a. By December of 1992, when appellant still had not received an expert report against Dr. Beneski, it prepared a motion to compel such a report, which it brought to a pre-trial conference. (Notes of testimony, 8/10/93 at 5.) Appellee then asked to depose Dr. Chambers as a fact witness on the subject of Dr. Beneski’s negligence. (Id.)

On March 10, 1993, after the close of pre-trial discovery, and almost five years after the complaint was filed, appellee provided appellant with the reports of appellee’s expert, Arthur Brenner, M.D., dated September 17, 1992 and March 3, 1993. The focus of these reports was the inadequacy of the follow-up care provided by Dr. Chambers, and in particular, Dr. Chambers’ failure to refer appellee to a specialist when her hoarseness persisted beyond ten days. (R.R. at 21a, 24a.) In response to these reports, on March 24, 1993, appellant requested additional time to depose witnesses and to engage in additional discovery. (Appellee’s brief in opposition to appellant’s post trial motions, 2/28/94 at Appendix A.) Appellee did not object, and this request was apparently granted. (Id. at Appendix B.) On July 6, 1993, appellant filed a motion for summary judgment on behalf of Daniel Anthony Beneski, M.D., claiming that appellee had failed to produce an expert witness who would opine to a reasonable degree of medical certainty that Dr. Beneski was negligent, and further claiming that failure to produce such an expert precluded appellee from introducing evidence at trial relevant to Dr. Beneski’s standard of care.

On the first day of trial, August 10,1993, appellant moved to preclude Dr. Brenner from introducing evidence at variance with the pleadings contained in the complaint, which was never amended. (Notes of testimony, 8/10/93 at 3-7.) This motion was denied. (Id. at 18.) At trial, appellee’s expert, Dr. Brenner, testified that the injury to appellee’s arytenoid occurred at the precise moment of intubation. (R.R. at 215a.) In his report, however, Dr. Brenner stated that either intubation or extubation could have caused the dislocation. (R.R. at 233a.) Nevertheless, neither Dr. Brenner nor any of appellee’s other witnesses testified that either the intubation or extubation had been performed in a substandard manner. In fact, Dr. Brenner testified that the intubation, which was done on an emergency basis, saved appellee’s life. (R. 231a.) Dr. Brenner did, however, testify that Dr. Chambers deviated from the standard of care of a family practitioner by not referring appellee to a specialist when her hoarseness continued beyond ten days. (R.R. at 216a.)

When the jury retired to deliberate, it was given a verdict sheet with a set of questions. These questions addressed the negligence of Dr. Chambers as an agent of appellant hospital; none of the questions addressed the alleged negligence of Dr. Beneski. (R.R. at 575a-578a.) Following deliberations, the jury returned a verdict for appellee in the amount of $600,000.

Appellant raises three issues on appeal. We need not address the third issue, as our resolution of issues one and two, which are interrelated, moots the third. The first two issues are:

A. Did the trial court err when it allowed plaintiff to introduce a new cause of action where the applicable statute of limitations had expired over four years prior thereto?
B. Did the trial court err when it allowed plaintiff to present evidence at trial that was absolutely at variance with the cause of action pled in her complaint?

Appellant’s brief at 3. In order to address these issues, a brief review of the law of variance is appropriate.

A variance denotes difference and in reference to legal proceedings it refers to a disagreement or difference between the allegations made and the proof shown, not in the sense that there is a failure of proof, but that, contrary to the fundamental principle of good pleading and practice, the proof fails to materially correspond to the allegations. A material variance consists of a departure in the evidence from the issues on which the cause of action must depend.
[A]mong the typical and most damaging variance problems ... are those cases where the proof at trial establishes a cause of action that was not alleged in the party’s pleadings, ... in which cases the expiration of a statute of limitation in the meantime ... may be fatal to the party’s claims.
For purposes of determining whether a claimed or apparent discrepancy between pleadings and proof constitutes a variance, the entire pleadings and evidence should be considered. Generally, in order to constitute a variance, the discrepancy must exist between the allegations and proofs of the particular party, with the result that a party is not permitted to introduce evidence that is inconsistent with or fails to correspond to the allegations made by that party.
The modern rules of pleading and practice are relatively liberal---- Consequently, the impact of variance may be diminished by the preference for a liberal if not informal evaluation of pleadings emphasizing the determination of cases based upon their merits rather than based on mere technicalities, which policy, for example, may allow a party to cure a variance by offering, during or after trial, to amend the pleadings to conform to the proof.
General allegations of a pleading, which are not objected to because of their generality, may have the effect of extending the available scope of a party’s proof, such that the proof would not constitute a variance, beyond that which the party might have been permitted to give under a more specific statement.

Standard Pennsylvania Practice 2d, §§ 33:1, 33:6, 33:7, 33:8 (1994), citing, inter alia, 61A Am.Jur.2d, Pleading § 368; Nelson v. Damus Bros. Co., 340 Pa. 49, 16 A.2d 18 (1940), (footnotes omitted); Freeman v. Pittsburgh R. Co., 301 Pa. 490, 152 A. 546 (1930); Pennsylvania R. Co. v. Pittsburgh, 335 Pa. 449, 6 A.2d 907 (1939); Horowitz v. Universal Underwriters Ins. Co., 397 Pa.Super. 473, 580 A.2d 395 (1990), allocatur denied sub nom. Horowitz v. John’s Chevrolet, Inc., 527 Pa. 610, 590 A.2d 297 (1991), and allocatur denied sub nom. Petition of Universal Underwriters, 527 Pa. 611, 590 A.2d 298 (1991); King v. Brillhart, 271 Pa. 301, 114 A. 515 (1921). Finally, Pennsylvania courts have held that a variance is not material if the alleged discrepancy causes no prejudice to the adverse party. Standard Pennsylvania Practice 2d § 33:10 (1994), citing Stewart v. Uniroyal, Inc., 72 Pa.D. & C.2d 179 (1974), affirmed, 233 Pa.Super. 761, 339 A.2d 815 (1975), affirmed, 238 Pa.Super. 726, 356 A.2d 821 (1976).

With the relevant law before us, we may thus rephrase appellant’s issue as follows: did the expert report alleging Dr. Chambers’ negligence in failing to refer appellee to a specialist ten days after her extubation set forth a cause of action different from the one alleged in her complaint? If it did not, then the trial court did not err in allowing appellee to introduce the expert report at trial. Connor v. Allegheny General Hospital, 501 Pa. 306, 309-310, 461 A.2d 600, 602 (1983), quoting Schaffer v. Larzelere, 410 Pa. 402, 406-07, 189 A.2d 267, 270 (1963) (“if the proposed amendment [to the pleadings] does not change the cause of action but merely amplifies that which has already been averred, [the amendment] should be allowed even though the Statute of Limitations has already run.”); Laursen v. General Hospital of Monroe County, 494 Pa. 238, 241-44, 431 A.2d 237, 239-40 (1981) (amendments of pleadings to conform to the evidence presented at trial should be liberally allowed to secure a determination of cases on their merits, provided that the granting of the amendment would not introduce a new cause of action after the statute of limitations had run). If, however, the expert report sets forth a new cause of action, then the trial court erred in allowing appellee to introduce the report after the applicable statute of limitations had run.

The Pennsylvania Supreme Court has never adopted a comprehensive definition of “cause of action”; however, relevant to negligence actions, this court has previously stated:

A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought. Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939); Martin v. Pittsburgh [sic] Railways Company, 227 Pa. 18, 20, 75 A. 837, 837 (1910). A new cause of action does not exist if plaintiffs amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 460, 219 A.2d 676, 678-79 (1966); Arner v. Sokol, 373 Pa. 587, 591, 96 A.2d 854, 855-56 (1953); 3 Standard Pennsylvania Practice .682. A new cause of action does arise, however, if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed. 2B Anderson Pennsylvania Civil Practice, §§ 1033.28 and 1033.31.

Junk v. East End Fire Dept., 262 Pa.Super. 473, 490-91, 396 A.2d 1269, 1277 (1978) (emphasis added).

Support for this definition is found in Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965), in which our supreme court stated, “[a]n amendment of the complaint under Rule 1033 which adds or changes the theory of recovery upon which relief is sought through the introduction of new factual allegations generally constitutes a new cause of action____” Id. at 85, 208 A.2d at 767, citing Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 444 n. 2, 393 A.2d 1188, 1189 n. 2 (1978) (refusing to allow hospital to amend its negligence complaint against anesthesiologist to include vicarious liability for the negligence of a nurse/anesthetist). Stated differently, an amendment proposes a different theory or a different kind of negligence if the operative facts supporting the claim are changed. See also Jaindl v. Mohr, 432 Pa.Super. 220, 229-30, 637 A.2d 1353, 1358 (1994) (refusing to allow amendment where initial complaint in defamation was based solely upon the conduct of the defendant, while amended pleadings would include the conduct of others acting as defendant’s agent), affirmed, 541 Pa. 163, 661 A.2d 1362 (1995); Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 459-61, 219 A.2d 676, 678-79 (1966) (where plaintiffs original complaint was based upon defendant’s negligence in permitting ice to form on its sidewalk, an amendment to charge defendant with maintaining a potentially dangerous picket fence next to the walkway introduces a new cause of action).

In the instant case, at no time did appellee move to amend her original complaint. In addition, appellee’s allegations in her complaint are clearly directed at the negligent acts of Dr. Beneski, the anesthesiologist, and those assisting him in performing the intubation and extubation. (See appellee’s complaint, supra, nos. 3, 5, 7, 8a-m, 9, 10, 11.) Appellee, however, cites her complaint at 8g, 8k, and 8n to support her claim that Dr. Chambers’ alleged negligent referral is a mere amplification of her complaint. (Appellee’s brief at 10.) We shall analyze these allegations together.

All of the subsections of the complaint cited by appellee are part of the broader section, which begins: “The intubation performed by Defendant, Daniel Anthony Beneski, M.D. and/or other agents, servants and/or employees of Defendant, Thomas Jefferson University Hospital was performed in a negligent manner consisting of: ----” This opening language must therefore be read as part of the allegations contained in subsections “a” through “n.” These subsections are thus clearly applicable only to the alleged negligent intubation “performed by Defendant, Daniel Anthony Beneski, M.D.” While it is true that the prefatory clause refers to agents, servants, and/or employees of appellant hospital, nevertheless, it is equally true that they are referenced solely within the context of the intubation performed by Dr. Beneski. To read “the intubation performed by Dr. Beneski [and/or other agents] ... in a negligent manner [on or about August 8]” to include Dr. Chambers’ allegedly negligent failure to refer appellee to a specialist between August 19 and September 9 is to stretch the meaning of the words far beyond that which we ordinarily give them.

In addition to the flaw in appellee’s argument just noted, another flaw exists in appellee’s attempt to apply subsection 8k to Dr. Chambers. In this subsection, appellee claims that Dr. Beneski and/or other agents of the hospital were negligent in their “failure to perform treatment on plaintiff once it was apparent that the intubated procedure had been performed in a negligent manner[ ].” (Appellee’s complaint, 7/22/88, R.R. at 8a.) No evidence was ever introduced, however, that the intubation was performed in a negligent manner. As a result, even if this subsection could somehow be read to apply to Dr. Chambers, appellant’s failure to perform treatment on this basis could not have been negligent.

Appellee argues that her pleadings instantly are analogous to the pleadings in Connor, supra, and that Connor therefore controls the outcome of the case instantly. In particular, appellee claims that the catch-all phrase in her pleadings at 8n., “failure to act properly under the circumstances[,]” sweeps so broadly that it includes Dr. Chambers’ follow-up care, in the same way that the catch-all phrase in Connor, “In otherwise failing to use due care and caution under the circumstances[,]” was held by the Connor court to include alleged negligent follow-up care. While on their surface, the two allegations appear to be almost identical, a closer inspection reveals a critical distinction. The facts of Connor follow.

In Connor, appellant Mary Connor was admitted as an emergency patient to Allegheny General Hospital complaining of abdominal distress. While a patient, she underwent a barium enema. During the procedure and for several hours thereafter, the barium solution leaked out of a perforation in her colon and into her abdominal cavity. As a result of the leakage, several surgeries were required, to remove the barium, to drain an abscess, to remove the damaged portion of the colon and one ovary, and to repair or remove adhesions which had formed on the colon. Connor, supra at 308-09, 461 A.2d at 601.

Connor and her husband subsequently filed a complaint against Allegheny General, in which they alleged that the hospital, acting individually and through its employees, was negligent:

a. In perforating the sigmoid colon during the performance of a barium enema procedure;
b. In perforating the sigmoid colon and causing extravasation of the barium into the abdominal cavity causing barium peritonitis;
f. In otherwise failing to use due care and caution under the circumstances.

Id. The allegations in the complaint were based upon the “expert” report of Dr. Cyril Wecht, M.D., in which he opined that such a leakage “does not ordinarily occur if a barium enema is performed properly and carefully.” Id. Four years after the injury, and twenty-five months after the complaint was filed, the case was called for trial; however, Dr. Wecht refused to testify, apparently because he was not an expert in the field and would be dismissed from the Pennsylvania Medical Society for testifying. Id. at 309 n. 1, 461 A.2d at 601 n. 1. As a result, the trial was postponed. The Connors then sought to file an amended complaint based upon the report of a second expert, Dr. Bernard Neff, M.D.; however, Dr. Neff was not able to say with a reasonable degree of medical certainty that the barium enema caused the perforation. Nevertheless, he did opine that the perforation should have been diagnosed more quickly, and that there was “undue delay in performing surgery on a patient with perforation and acute peritonitis.” Id. The focus of the amended complaint was, therefore, on the delay in cleansing the abdominal cavity after the perforation became or should have become apparent. Id. at 309-11, 461 A.2d at 602.

The trial court denied the Connors’ motion to amend the complaint, after which the court granted Allegheny General’s motion for summary judgment. This court affirmed, finding that the amendments “clearly involved new and different negligent acts neither contemplated by nor inferable from the original complaint____” Connor v. Allegheny General Hospital, 300 Pa.Super. 321, 327, 446 A.2d 635, 638 (1982). On grant of allocatur, the supreme court reversed, holding instead that the “proposed amendment, does, in fact, amplify one of the allegations of the original complaint____” Connor, supra at 310, 461 A.2d at 602 (referring to allegation “f,” “otherwise failing to use due care and caution under the circumstances”). As the Connor court stated, “In their original complaint, [the Connors] did not merely allege that the barium enema had been negligently performed. Rather, [the Connors] also alleged that [the hospital], acting individually and through its employees, was negligent ‘[i]n otherwise failing to use due care and caution under the circumstances.’ ” Id.

We find the instant case distinguishable for two reasons. First, in Connor, the negligence alleged in the original complaint and the negligence alleged in the amended complaint “were part of a causally related chain of events which occurred on the same day ... and at the same place____” Connor v. Allegheny General Hospital, 300 Pa.Super. 321, 330, 446 A.2d 635, 640 (1982) (Cirillo, J. dissenting). Ms. Connor was given a barium enema, the contents of which leaked into her abdominal cavity and remained there for several hours. The same cannot be said in the instant case, where Dr. Chambers had not even been assigned to appellee’s case at the time of the intubation.

A more important distinction, and one that is fatal to appellee’s argument, exists between Connor and the instant case, however. As the Connor court aptly noted, the Connors “did not merely allege that the barium enema had been negligently performed.” Id. The structure of the Connors’ complaint makes this clear. The Connors alleged in “a” and “b” that the hospital or its agents were negligent “in perforating” the colon and “in causing extravasation;” however, in a separate and equally weighted allegation, they alleged that the hospital was negligent “in otherwise failing to use due care and caution under the circumstances.” As the Connor court noted, the hospital could have filed a preliminary objection in the nature of a request for a more specific pleading or a motion to strike if it did not know to what “f ’ referred. Id. at 311 n. 3, 461 A.2d at 602 n. 3.

In the instant case, however, as we have already noted, appellee did only allege that the intubation had been negligently performed; the “catch-all” language, “failure to act properly under the circumstances,” is a clause in a sentence alleging that the intubation was performed in a negligent manner. Even if appellant had requested a more specific pleading, the only amplification that could properly have occurred under section 8 would have been in reference to the allegedly negligently performed intubation.

It is clear that Dr. Chambers’ alleged negligence is supported by an entirely separate set of operative facts from those that would have supported Dr. Beneski’s alleged negligence. See Junk, supra at 490-91, 396 A.2d at 1277 (a new cause of action arises if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed), citing 2B Anderson Pennsylvania Civil Practice, §§ 1033.28 and 1033.31. Appellee’s expert opined that Dr. Chambers was negligent for failing to refer appellee to a specialist by September 9 (one month after the extubation). The operative facts supporting Dr. Chambers’ alleged negligence relate to his failure to recognize the potential seriousness of appellee’s hoarseness and his delay in referring her to a specialist. In order to defend against this allegation, appellant would have been required to retain an expert in the field of family practice. Appellee’s complaint, however, alleged the negligence of Dr. Beneski and other hospital agents in their performance of the intubation. To defend against these allegations, appellant would have been required to, and did, retain an expert in the field of anesthesiology. If we were to allow Dr. Chambers’ alleged negligence to be read into an allegation that “the intubation was performed in a negligent manner,” simply because appellee tacked on the phrase “failure to act properly under the circumstances,” we would, in effect, be abolishing the requirement that a cause of action must be filed within the applicable statute of limitations.

As a result of the foregoing, we find a material variance existed between the claim set forth in appellee’s complaint and the claim proven at trial. Because the claim against Dr. Chambers set forth a separate and distinct cause of action, based upon a separate set of operative facts, it was barred by the statute of limitations. Schaffer, supra at 407, 189 A.2d at 270 (“An amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant: ... This would constitute ‘resulting prejudice’ to the adverse party.”).

We therefore vacate the orders entering judgment in favor of appellee and enter judgment in favor of appellant. Jurisdiction is relinquished.

      . Another order was entered June 6, 1995, granting appellee’s motion for delay damages and molding the verdict to reflect the addition of $299,239.72, for a total award of $899,279.72. While appellant raised the propriety of delay damages in its post-verdict motions, the issue is not before us on appeal.

      . Appellee had been told she was likely to be bedridden for the rest of her life as a result of the cardiomyopathy, and that she should apply for Social Security Disability. (R.R. at 139a.)

      . The arytenoid is a small cartilage located in the larynx/voicebox. The arytenoid controls the movement of the voicebox and helps in the formation of words. (Appellant's brief at 6, citing R.R. at 195a, 201a, 205a, 207a.)

      . While this motion is a part of the original record, it is not listed on the docket and was apparently never ruled upon.

      . At some point, appellee apparently dismissed Dr. Beneski as a defendant in the case. (See notes of testimony, 1/23/95 at 11.)

      . Appellant’s third issue concerns the alleged error of the trial court’s charge to the jury that it should find Dr. Chambers negligent if he failed properly to diagnose, treat, or refer appellee for her hoarseness.

      . The applicable statute of limitations as set forth at 42 Pa.C.S.A. § 5524 is two years.

      . Because Dr. Brenner opined that Dr. Chambers should have referred appellee to a specialist when her hoarseness had not subsided within ten (10) days, we infer that August 19, ten days after the extubation, would be the earliest point at which Dr. Chambers'■could have been negligent.

      . In fact, this cause of action was barred by the statute of limitations in March of 1993, when appellee first provided appellant with Dr. Brenner’s expert report containing allegations of Dr. Chambers’ negligence.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    676 A.2d 1214
    COMMONWEALTH of Pennsylvania, Appellant, v. Roseann CRAMUTOLA.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1996.
    Filed April 23, 1996.
    Reargument Denied June 21, 1996.

      Anthony Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Before CIRILLO, President Judge Emeritus and BECK, J. and CERCONE, President Judge Emeritus.
   BECK, Judge:

The Commonwealth appeals the trial court’s order suppressing 200 grams of methamphetamine, drug paraphernalia, two loaded weapons and cash. We reverse, finding that the trial court erred when it suppressed the evidence on the grounds that police had not sufficiently corroborated the citizen’s information.

On May 13, 1993, Officer Richard Brown, a member of the Philadelphia Police Narcotics Field Unit, received a call from a concerned citizen that appellee was running a drug operation from her home. The citizen stated he had seen numerous people entering from the front and back doors. Officer Brown set up a surveillance on the same day and observed several males knock on the rear door which was answered by appellee, enter, stay for approximately two minutes and then leave by the rear door. After the surveillance, a member of the surveillance team, Officer Trappier, went to appellee’s rear door. Appellee answered the door and the officer asked if she had any “powder.” When appellee questioned Officer Trap-pier about who had sent him, he left.

On May 18, 1993, Officer Brown set up another surveillance and observed a male enter the house and then leave five minutes later. When Officer Brown tried to detain the male he fled. On May 20, a confidential informant working for Officer Brown (different from the concerned citizen) knocked on appellee’s door. She told him that she would not sell drugs to him because she did not know him and that he could be a cop.

On May 27, Officer Trappier returned to appellee’s residence and again asked appellee for some “powder.” Appellee replied that she did not have any, but told him to call in advance the next time. She gave him her name, Rose, and phone number. Subsequent investigation confirmed that the phone number was registered to the appellee, Roseann Cramutola.

On June 8, 1993, the concerned citizen told Officer Brown that appellee feared she was being watched by police. On June 22, the concerned citizen told Officer Brown that while inside appellee’s residence he saw clear plastic baggies containing a white chunky substance which he believed were drugs.

On July 20, 1993, Officer Brown set up another surveillance and saw a male and female enter by the rear door and leave five minutes later. The confidential informant was then admitted into the house by appellee. She told him she did not have anything at the time, but while in the kitchen, the confidential informant saw a triple beam scale, numerous unused vials and caps, a plate, and razor blades. On July 27, 1993, the concerned citizen told Officer Brown that he had seen the triple beam scale and a plate with razor blades while in appellee’s kitchen.

On July 30, 1993, Officer Brown called appellee’s number and asked for Roseann. The person who answered the phone identified herself as Roseann. He asked if she had any powder. Appellee stated, “[w]hy did you say that, you could get me locked up,” and hung up the phone.

Based on the above information, Officer Brown swore out an affidavit of probable cause before Judge Cosgrove. Judge Cosgrove found probable cause and issued a warrant to search appellee’s residence. Officer Brown, accompanied by other officers, executed the warrant. They discovered over 200 grams of methamphetamine in the kitchen, outside trash can and outside stairwell. They also discovered a triple beam scale, clear plastic packets, U.S. currency and two loaded weapons inside appellee’s home. The police found no indication that anyone other than appellee lived in the house.

Appellee was charged with possessing over one hundred grams of methamphetamine with intent to deliver, knowingly possessing methamphetamine, possessing drug paraphernalia, and possessing an instrument of crime. Appellee filed a motion to suppress the physical evidence which was granted. The trial court found there was no probable cause to support the affidavit giving rise to the warrant. The court, relying on Commonwealth v. Singleton, 412 Pa.Super. 550, 603 A.2d 1072 (1992), and Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987), held that the information provided by the concerned citizen was simply suspicions that were not sufficiently corroborated by the police officers and confidential informant. The court stated that the affidavit did not show that the officers had probable cause. The court noted that the finding of criminal activity after the fact did not cure the defect. The Commonwealth appeals.

To determine whether the court’s suppression order stands, we must determine whether the record supports the court’s factual findings. Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992). When the evidence supports the court’s factual findings, we may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Elliot, 416 Pa.Super. 499, 611 A.2d 727 (1992). Where, as here, the Commonwealth is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as, fairly read in the context of the record as a whole, remains uncontradicted.

It is important to note that in reviewing the validity of a search warrant, the trial court may not undertake a de novo review of whether the warrant was supported by probable cause. The reviewing court is limited to determining whether there is substantial evidence supporting the issuing authority’s decision to approve the warrant. Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990), quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the issuing magistrate is to consider the information contained within the warrant affidavit in a common sense, nontechnical manner and to determine whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Commonwealth v. Miller, 334 Pa.Super. 374, 483 A.2d 498 (1984). The standard for determining whether probable cause exists is the “totality of circumstances” test set forth in Illinois v. Gates, supra and adopted by the Pennsylvania Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). We find the trial court’s legal conclusion that the warrant was not supported by probable cause erroneous. Under the totality of the circumstances test there is substantial evidence supporting Judge Cosgrove’s decision to issue the warrant.

The trial court relied on the statement in Commonwealth v. Singleton, supra that the credibility of the declarant and reliability of information is difficult to evaluate when information is supplied by an anonymous citizen, as opposed to a confidential informant. However, information provided to the police by an anonymous source can establish probable cause if it is corroborated. In the present case there is a concerned citizen rather than an anonymous informant, and the information provided by the concerned citizen was sufficiently corroborated by Officer Brown’s investigation and by information provided by the confidential informant.

The law is clear that information provided to the police by an anonymous source can establish probable cause so long as it is corroborated by police investigation. Commonwealth v. Silverman, 373 Pa.Super. 274, 541 A.2d 9 (1988); Commonwealth v. Gray, supra; Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984). This court has held that police surveillance and observation of frequent, short visits by individuals is indicative of drug activity and corroborates an informant’s tip concerning drug activity. See Commonwealth v. Woods, 404 Pa.Super. 432, 590 A.2d 1311 (1991) (informant’s tip was corroborated by police surveillance of frequent visitors to defendant’s home who stayed for short periods of time plus the discovery of cocaine in the possession of one of the visitors); Commonwealth v. Corleto, 328 Pa.Super. 522, 477 A.2d 863 (1984) (report of first time informant that he saw defendant conduct a drug transaction was corroborated by surveillance where officers observed several individuals enter, stay a few minutes and then leave). Officer Brown, after receiving information from the concerned citizen about appellee’s alleged drug activity, conducted three separate surveillances. During each surveillance, the officers observed individuals enter appellee’s residence, stay two to five minutes and then leave. Therefore, there was corroboration of the citizen’s report that drug activity was occurring at appellee’s residence. Officer Trappler’s encounter with appellee where she told him to call in advance the next time he wanted drugs further corroborates the concerned citizen’s report and makes it more probable than not that appellee was running a drug operation from her residence.

The law is also clear that corroboration by an additional informant can provide the reliability necessary for probable cause. Commonwealth v. Jones, supra (statements of different informants may corroborate each other). In the present case, both the concerned citizen and the confidential informant reported to the police that they had seen a triple beam scale, and a plate with razor blades in appellee’s kitchen. Furthermore, the confidential informant reported to police that he had approached appellee and she refused to sell him drugs because she did not know him. Therefore, while the information provided by the concerned citizen does not in and of itself establish that drugs and drug paraphernalia would be found in appellee’s home, the confidential informant’s information makes it more probable than not that appellee was distributing drugs from her home.

The trial court erred when it concluded that the police and confidential informant were unsuccessful in corroborating the concerned citizen’s reports. The trial court also misstated the law when it stated that “the police and informant were unsuccessful in their efforts to discover any contraband or prove any criminal activity.” The standard for probable cause does not require the police to prove criminal activity. Probable cause is based on a finding of the probability of criminal activity, not a prima facie showing of criminal activity. Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23 (1992). Under the totality of the circumstance test we find that the concerned citizen’s report which was corroborated by police surveillance and an independent reliable informant provides substantial evidence to support the magistrate’s finding of probable cause.

Order Reversed.

      . The Commonwealth met the requirement of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) by certifying that the lower court’s order suppressing the physical evidence substantially handicapped their prosecution.

      . The identity of the concerned citizen is known to the police; however, for the protection of the citizen's safety and privacy, the individual’s identity was not disclosed.

      . An informant's reliability is demonstrated by previous investigative leads that proved accurate. In the Interest of Bond, 434 Pa.Super. 303, 643 A.2d 106 (1994). In the present case, the confidential informant used by police provided information on three prior occasions which led to the arrest of persons and confiscation of drugs.

      . In concluding that the citizen’s tip was not sufficiently corroborated, the trial court relied on Commonwealth v. Lemanski, supra. However, Lemanski does not support its conclusion. In Lemanski, the police received a citizen tip that defendant was growing marijuana in his green house. The police using zoom lens binoculars verified the tip. The court held that since the binocular search violated defendant’s right of privacy, the police failed to sufficiently corroborate the citizen’s tip and as a result, struck the warrant. In the present case, the police properly corroborated the concerned citizen’s report through surveillance and the use of the confidential informant.


author: HOFFMAN, Judge: BECK, Judge,

text:
    676 A.2d 1217
    COMMONWEALTH of Pennsylvania v. James YEDINAK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed April 11, 1996.
    Reargument Denied June 21, 1996.

      John R. Sobota, Assistant Public Defender, Wilkes-Barre, for appellant.
    Peter Paul Olszewski, Jr., District Attorney, Nanticoke, for Commonwealth, appellee.
    Melissa A. Berlot, Assistant District Attorney, Nanticoke, for Commonwealth, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a March 9, 1995 judgment of sentence for driving under the influence of a controlled substance and possession of a small amount of marihuana. Appellant, James Yedinak, raises the following issues for our review:

I. [WHETHER] THE COURT ABUSED ITS DISCRETION IN DENYING [APPELLANT’S] MOTION TO SUPPRESS EVIDENCE IN THAT NO PROBABLE CAUSE EXISTED TO JUSTIFY A SEARCH OF [APPELLANT’S] VEHICLE AND THE SEARCH CONDUCTED BY [THE] POLICE OFFICER WAS BEYOND THE SCOPE OF [APPELLANT’S] CONSENT?
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING AND CONSIDERING THE TESTIMONY OF OFFICER ROBERT J. WEISS, A NON EXPERT WITNESS WHO OPINED THAT [APPELLANT], JAMES YEDINAK, WAS UNDER THE INFLUENCE OF MARIHUANA TO A DEGREE [THAT] HE WAS INCAPABLE OF SAFE DRIVING WHEREIN THE POLICE OFFICER LACKED SUFFICIENT EXPERTISE TO PROVIDE SUCH AN OPINION?
III. [WHETHER] THE COMMONWEALTH OF PENNSYLVANIA DID NOT PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT], JAMES YEDINAK, WAS UNDER THE INFLUENCE OF MARIHUANA TO A DEGREE THAT RENDERED HIM INCAPABLE OF SAFE DRIVING AND AS SUCH THE COURT’S VERDICT WAS BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE WEIGHT OF THE EVIDENCE IN THAT NO COMPETENT EVIDENCE WAS PRESENTED TO PROVE THAT [APPELLANT] WAS UNDER THE INFLUENCE OF MARIHUANA AND THAT [APPELLANT’S] DRIVING ABILITY WAS IMPAIRED BECAUSE HE WAS UNDER THE INFLUENCE OF MARIHUANA?

See Appellant’s Brief at 3.

On April 20, 1994, at approximately 7:00 p.m., Officer Robert Joseph Weiss observed appellant walk with great difficulty from a public telephone to his vehicle. Once appellant began driving, he hit two construction barrels in a closed lane, and then drove in the middle of the roadway. As a result of appellant’s erratic driving, Officer Weiss ordered appellant to pull over his vehicle. During the subsequent questioning, appellant was very disoriented and unable to understand instructions. Officer Weiss then tried to administer field sobriety tests, but had to discontinue the tests because appellant was unable to walk and repeatedly collapsed. Officer Weiss then arrested appellant for driving under the influence of a controlled substance. After arresting appellant, Officer Weiss requested and received appellant’s consent to search his vehicle for drugs. During the search, Officer Weiss discovered marihuana in a cigarette pack and in a cough drop box, and the remains of a marihuana cigarette in the ashtray. At trial, Officer Weiss testified that, in his opinion based upon his training and experience, appellant was unable to operate his vehicle in a safe manner.

Sergeant Michael A. Moravec also observed appellant during the field sobriety tests and testified that appellant fell out of his car and required Officer Weiss’ assistance to stand up. In addition, Sergeant Moravec testified that “[i]t was obvious [appellant] was under the influence of something and he reaked [sic].” N.T. 1/27/95 at 19-20. Mr. George Hockenbury, a medical technician, testified that the urine sample obtained from appellant on the night of the incident tested positive for marihuana.

Thereafter, appellant was charged with driving under the influence of a controlled substance and possession of a small amount of marihuana. Appellant filed a motion to suppress the marihuana, which the trial court denied following a hearing on January 23, 1995. After a bench trial on January 27, 1995, appellant was found guilty of both charges. On March 9, 1995, appellant was sentenced to thirty (30) days to one (1) year incarceration. This timely appeal followed.

Appellant first argues that the trial court improperly denied appellant’s motion to suppress the marihuana because no probable cause existed to conduct a search of appellant’s car, and because the search conducted was beyond the scope of appellant’s consent.

When reviewing an order entered by the suppression court, we must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Burnside, 425 Pa.Super. 425, 429, 625 A.2d 678, 680 (1993). Where the evidence has not been suppressed, it is our duty to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as fairly remains uncontradicted. Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). When evidence supports the trial court’s findings of fact, we will not reverse unless the conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 156, 619 A.2d 291, 292 (1993) (en banc).

Appellant first claims that the search of his vehicle after his arrest was not supported by probable cause and exceeded the scope of his consent.

It is well established that the government may search a vehicle without a warrant or probable cause if the owner of the vehicle voluntarily consents to the search. Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013, 1022 (1990), appeal granted, 526 Pa. 647, 585 A.2d 467 (1990), affirmed sub nom., Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992). Furthermore, the scope of a search is generally limited to the areas where the object of the search may be found, but the party consenting to a search may restrict authorization to defined areas. Commonwealth v. Parker, 422 Pa.Super. 393, 401, 619 A.2d 735, 739 (1993). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297, 302 (1991).

In the present case, both Officer Weiss and Sergeant Moravec smelled a strong odor of marihuana in appellant’s vehicle and on appellant. After Officer Weiss informed appellant that the officers wished to search his vehicle specifically for drugs, appellant consented to the search. With appellant’s general consent, the officers were free to search any containers within the vehicle that could reasonably contain narcotics, such as the cigarette pack and the cough drop container in which marihuana was found. See Jimeno, supra (suspect’s general consent for an officer to search his vehicle for nareotics included permission to open a closed brown paper bag on the floor of the car); United States v. Snow, 44 F.3d 133, 135 (2d Cir.1995) (one who consents to a search of a car “should reasonably expect that readily-opened, closed containers discovered inside the car will be opened and examined”); United States v. Kim, 27 F.3d 947 (3d Cir.1994) (suspect’s consent for an officer to search his luggage for drugs included authorization to open sealed containers within the luggage), cert. denied, — U.S. —, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995). Consequently, as the marihuana in appellant’s vehicle was discovered within the scope of a lawful search, we will not upset the trial court’s decision to deny appellant’s motion to suppress.

Appellant next contends that the trial court erred in admitting Officer Weiss’s testimony that appellant was under the influence of marihuana to a degree that he was incapable of driving safely. Specifically, appellant asserts that this testimony was improper because the officer was not an expert witness.

We note that the admissibility of evidence is a matter addressed to the sound discretion of the trial court, and we may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Steele, 522 Pa. 61, 73 n. 23, 559 A.2d 904, 910 n. 23 (1989). Moreover, this Commonwealth has adopted Federal Rule of Evidence 701, which allows testimony by a lay witness in the form of an opinion, where the opinion is (1) rationally based on the perception of the witness and (2) helpful to the determination of a fact in issue. Commonwealth v. Neiswonger, 338 Pa.Super. 625, 627, 488 A.2d 68, 69 (1985). In Neiswonger, we held that a police officer may testify to his or her opinion as to a suspect’s alcohol-induced intoxication and the suspect’s ability to drive safely when the officer has observed the suspect’s appearance and acts. Id. at 628, 488 A.2d at 69. Although this Court has never addressed whether lay opinion testimony is admissible to prove drug-induced intoxication, we find no basis upon which to distinguish opinion testimony of drug-induced intoxication from opinion testimony of alcohol-induced intoxication where the witness is personally familiar with the effects of narcotics. See, e.g., People v. Williams, 44 Cal.3d 883, 245 Cal.Rptr. 336, 751 P.2d 395 (1988) (if sufficient foundation is laid, lay opinion testimony as to whether a person is under the influence of narcotics is admissible), cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 237 (1988); see also 21 ALR 4th 905 (collecting cases).

In the instant case, Officer Weiss based his opinion that appellant was under the influence of a controlled substance on specific and articulable observations of appellant’s physical appearance and behavior. Moreover, Officer Weiss’s perceptions at the scene were informed by his narcotics training, prior drug arrests, and knowledge of the effects of marijuana. N.T., 1/27/95 at 14, 24-25, 32. We conclude that Officer Weiss’s opinion was rationally based on his perceptions and helpful to the determination of a fact in issue and, therefore, the trial court did not err in admitting the officer’s opinion testimony. Neiswonger, supra; see Harris v. District of Columbia, 601 A.2d 21, 24 (D.C.App.1991) (lay opinion testimony on drug impairment may be admitted at trial for driving under influence of narcotics where officer had reasonable amount of experience observing people under influence of drugs); State v. Lesac, 231 Neb. 718, 437 N.W.2d 517 (1989) (same); State v. Adkerson, 90 N.C.App. 333, 368 S.E.2d 434 (1988) (same).

Finally, appellant asserts that his conviction for driving under the influence of a controlled substance was based on insufficient evidence and against the weight of the evidence.

Preliminarily, we note that the test for evaluating the sufficiency of the evidence in a criminal case is the following:

whether the evidence admitted at trial, and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all the elements of the offense beyond a reasonable doubt.

Commonwealth v. Wilson, 538 Pa. 485, 495, 649 A.2d 435, 440 (1994). Moreover, a verdict will be found to be against the weight of the evidence only when it appears from the record that the verdict was so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Parker, 387 Pa.Super. 415, 422, 564 A.2d 246, 250 (1989), appeal denied, 526 Pa. 632, 584 A.2d 315 (1990).

In the instant case, Officer Weiss observed appellant operate his vehicle in an erratic manner. Moreover, both Officer Weiss and Sergeant Moravec testified that appellant was so impaired he could barely stand. The odor of marihuana was detected in appellant’s car and on his person. Finally, a partially smoked marihuana cigarette was recovered from the ashtray in appellant’s car, and appellant’s urine tested positive for the presence of marihuana. Consequently, we find that there was sufficient evidence for the trial court to find appellant guilty beyond a reasonable doubt. See Harris, supra (circumstantial evidence could suffice to support conviction for driving under influence of drugs). Moreover, we do not find that the verdict was against the weight of the evidence, because it was not so contrary to the evidence so as to shock one’s sense of justice. Parker, supra.

Accordingly, for the above reasons, we affirm.

Affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

I dissent from the majority’s conclusion that the trial court properly admitted Officer Weiss’ testimony that in his opinion appellant was under the influence of a controlled substance to a degree which impaired his ability to drive safely. I also dissent from the majority’s determination that the evidence was sufficient to support appellant’s conviction of driving under the influence of a controlled substance.

In deciding that Officer Weiss’ testimony was admissible, the majority disregarded the results of the urinalysis revealing the presence not just of marijuana but also of Alprazolam, Hydrocodone and Benzodiazepine in appellant’s urine. Given that Officer Weiss clearly testified that he had no knowledge whatsoever as to the nature of these additional chemicals or their possible effects upon appellant’s ability to drive safely, N.T. at 45-47, Officer Weiss was not in a position to give an opinion that the source of appellant’s impairment was a controlled substance.

In State v. Rifkin, 140 Vt. 472, 438 A.2d 1122 (1981), the Vermont Supreme Court reversed a conviction for driving; under the influence of a controlled substance because the non-expert arresting officer was improperly permitted to testify that in his opinion defendant was under the influence of a controlled substance, and to a degree which impaired his ability to drive safely. The Court explained that since chemicals, unlike alcohol, can cause''a wide array of symptoms unknown to laypersons, only an expert could testify as to whether a defendant is under the influence of controlled substances and impaired thereby to the extent that he or she is unable to drive safely. Id., 438 A.2d at 1124-1125.

I agree with the Vermont Supreme Court and would require expert testimony at least in those cases, such as the case at bar, involving chemicals in the defendant’s system other than controlled substances. In such cases, after a proper foundation has been laid, a lay witness may testify as to his or her observations. However, a qualified expert is required to provide the connection between the symptoms observed and the drug allegedly influencing the defendant’s driving. See Rifkin, supra, 438 A.2d at 1125.

Because I would find that the officer’s opinion that appellant’s impairment was due to a controlled substance should not have been admitted, I conclude that the evidence presented at trial was insufficient to sustain the appellant’s conviction. The statute, 75 Pa.C.S. § 3731, does not criminalize driving in an impaired state and does not criminalize the use of controlled substances. Rather, 75 Pa.C.S. § 3731 explicitly requires a finding that the defendant’s ability to drive be impaired by a controlled substance. The causation element of this statute which is explicit and necessary has not been proven in the instant case.

In my view, the Commonwealth failed to offer admissible testimony from which the fact finder could conclude beyond a reasonable doubt that appellant’s driving was impaired by the use of marijuana, as opposed to one of the other drugs that were in his system. Thus, I would reverse the judgment of sentence for driving under the influence of a controlled substance.

      . 75 Pa.C.S. § 3731(a)(2).

      . 35 P.S. § 780-113(a)(31).

      . Appellant’s urine also tested positive for Benzodiazepine, Alprazolam, and Hydrocodone. However, the Commonwealth did not offer any evidence regarding the effect of these drugs on appellant.

      . Appellant does not maintain that his consent was given involuntarily.

      . The Pennsylvania Supreme Court recently held that the Pennsylvania Constitution provides greater protection than the United States Constitution with regard to automobile searches in Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995). While White substantially curtails the government’s ability to search an automobile without a warrant, the decision did not alter the principle that police officers may search an automobile after obtaining valid consent, and our decision in the present case is not contrary to White.

      . I agree with the majority's conclusion that the appellant’s car was lawfully searched pursuant to appellant’s consent and that, therefore, the fruits of the search need not be suppressed.

      . The Commonwealth’s expert testified that Alprazolam and Benzodiazepine are tranquilizers and Hydrocodone is an opiate pain killer or "narcotic analgesic.” He also testified that each of these are available only by prescription.

      . The majority states that Officer Weiss testified that in his opinion appellant was under the influence of marijuana; however, my review of the record indicates that in fact Officer Weiss testified that he had no idea which controlled substance was influencing appellant, just that appellant appeared to be under the influence of some controlled substance. N.T. at 39-40.

      . The signs of a person driving under the influence of alcohol are readily known to law enforcement personnel. They are the same whether the individual has ingested beer, wine or hard liquor. They derive from the alcohol content in the individual’s body. Drugs, on the other hand, contain different chemicals, and the reaction to each of the chemicals varies markedly depending on the combination and quantity of chemicals ingested, and the individual’s sensitivity to them. Thus, law enforcement personnel are not so readily able to detect the signs of a person driving under the influence of a controlled substance, and distinguish those signs from the effects of a drug which is not a controlled substance. Therefore, I find the majority’s reliance on case law relating to driving under the influence of alcohol to be misplaced.

      . The Commonwealth’s urinalysis expert testified that no tests were conducted to determine the quantity of marijuana in appellant’s body, despite the availability of such tests. He further testified that the presence of marijuana could be detected in a marijuana user for up to thirty days after use.


author: POPOVICH, Judge.

text:
    676 A.2d 1223
    ESTATE OF Lynn S. WITTHOEFT, Appellant, v. James C. KISKADDON, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1996.
    Filed May 15, 1996.

      Mark D. Frankel, York, for appellant.
    Jayson R. Wolfgang, Harrisburg, for appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge.

We are asked to review the order of the Court of Common Pleas of Franklin County granting the preliminary objections in the nature of a demurrer of the defendant/appellee, James C. Kiskaddon, by the plaintiff/appellant, Estate of Lynn S. Witthoeft, by Henry G. Witthoeft. We affirm.

In reviewing the grant of preliminary objections in the nature of a demurrer, “we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom.” Dercoli v. Pa. Nat’l Mutual Ins. Co., 520 Pa. 471, 554 A.2d 906, 908 (1989). In his complaint, the plaintiff alleged that the defendant was an ophthalmologist who had cared for Helen S. Myers as of March, 1993, and he was aware that her vision of 20/80 combined rendered her “legally not authorized to drive.”

Notwithstanding such a fact, alleged the plaintiff, the defendant failed to inform Ms. Myers of her condition, nor did he notify the Pennsylvania Department of Transportation (Penn-DOT) of the severity of Ms. Myers’ condition so that steps could be taken to preclude her from operating a vehicle under 67 Pa.Code § 83.3(c), which provides:

(c) Visual acuity of less than 20/70. A person with visual acuity of less than 20/70 combined vision with best correction is not authorized to drive.

In light of such a regulation, the plaintiff argues that Ms. Myers was allowed to operate a vehicle which collided with the decedent as she road a bicycle on July 3, 1993. The cyclist was transported to a local hospital where she was pronounced dead as a result of the accident. Suit was initiated against the defendant on grounds of wrongful death, a survival action and punitive damages for his alleged negligence in permitting Ms. Myers to operate a motor vehicle while knowing of her “grossly impaired” visual acuity and failing to notify PennDOT of Ms. Myers’ condition so as to withhold her operating privileges, all of which constituted a direct and proximate cause of decedent’s death and rendered the defendant hable to the plaintiff in damages.

The defendant filed preliminary objections contending, essentially, that he “owed no duty to a third person such as Plaintiffs decedent as Plaintiffs decedent was not a foreseeable victim of Defendant’s] ... alleged acts and omissions.” The lower court agreed holding that no special relationship existed between the defendant and the plaintiffs decedent, rendering her an “unforeseeable party” of the defendant’s failure to report Ms. Myers’ impaired vision to PennDOT.

In this Commonwealth, we have had occasion to examine a physician’s liability to third parties injured by their patient’s malady left undisclosed to the public in general and the complainant in particular. In Dunkle v. Food Service East Inc., 400 Pa.Super. 58, 582 A.2d 1342 (1990), this Court held that a treating psychologist was not liable in damages for failing to warn a non-patient of a patient’s dangerous proclivities. Nor was there any allegation that the non-patieni/victim relied to her detriment upon erroneous advice from physician to patient.

In contrast, our Supreme Court in DiMarco v. Lynch Homes-Chester County, 525 Pa. 558, 583 A.2d 422 (1990) affirmed this Court’s reversal of the lower court’s grant of preliminary objections in the nature of a demurrer entered in favor of a physician. The doctor was held to owe a duty of care to a third party with the physician’s failure to advise properly a patient of a communicable disease, and the patient, relying upon the advise, spread the disease to a third party. More specifically, the patient had been exposed to hepatitis and was told by her physician that if she remained symptom free for six weeks, she was not infected.

However, the patient was not told to refrain from having sex for any period of time. After eight weeks of sexual abstinence, the patient resumed sexual relations with the plaintiff, to whom she was not married. The plaintiff was diagnosed with hepatitis identical to that of the patient. The plaintiff sued the patient’s doctors and a duty was held to be owed the plaintiff pursuant to Restatement (Second) of Torts, § 324A; to-wit:

When a physician treats a patient who has been exposed to or who has contracted a communicable and/or contagious disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease. Communicable diseases are so named because they are readily spread from person to person. Physicians are the first line of defense against the spread of communicable diseases, because physicians know what measures must be taken to prevent the infection of others. The patient must be advised to take certain sanitary measures, or to remain quarantined for a period of time, or to practice sexual abstinence or what is commonly referred to as “safe sex.”
Such precautions are taken not to protect the health of the patient, whose well-being has already been compromised, rather such precautions are taken to safeguard the health of others. Thus, the duty of a physician in such circumstances extends to those “within the foreseeable orbit of risk of harm.” Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 207, 199 A.2d 875, 878 (1964). If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, the third person has a cause of action against the physician, because the physician could recognize that the services rendered to the patient are necessary for the protection of the third person.

525 Pa. at 561-62, 583 A.2d at 424-25 (Footnote omitted; emphasis added).

Lastly, in Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991), a panel of this Court held that the defendantydoctor breached no duty of care to the plaintiffs, who were pedestrians injured when the patient lost consciousness while operating a motor vehicle because of a diabetic condition known to the defendant. Nonetheless, the defendant’s failure to advise PennDOT of the patient’s condition did not render foreseeable injury to third parties coming in contact with the patient. More specifically, this Court wrote:

... it is not the physician’s job to protect all third parties who might come into contact with the affected individual. Clearly, the provisions implicated here [ — 67 Pa.Code §§ 83.1, 83.6 & 75 Pa.C.S.A. § 1518(b) — ] do not mention a duty to report his patient’s medical deficiency to any specified third party. Rather, the physicians’ only responsibility is to evaluate (within the confines of the legislative language) the patient’s ability to operate a motor vehicle and to notify the Department of Transportation if the patient is unable to drive in a safe manner. Reporting the patient to the proper authorities when necessary is very different from imposing upon a treating physician the duty of protecting the entire public from any harm that might result from his/her patient’s actions.
:}c íJí j}: :}: í¡í sjj
Even if Dr. Sultz did have a duty to disclose Jackson’s name to the Department of Transportation, we can find no logical connection between that obligation and a duty of care to the Crosbys. The Crosbys were not foreseeable victims of Dr. Sultz’s action or inactions. See Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332 (1985) (scope of duty is limited to those risks that are reasonably foreseeable by the actor under the circumstances); Alumni Ass’n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987) (accord), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990). See also Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 207, 199 A.2d 875, 878 (1964) (duty extends to those “falling within the foreseeable orbit of risk of harm.”). To discount the important element of foreseeability here is effectively to overrule well-established and precedential tort law, as well as to extend liability limitlessly to treating physicians vis-a-vis third party victims.
******
While we fully appreciate the policy concerns underlying the enactment of the Motor Vehicle Code, we cannot condone, under the guise of promoting public policy, sustaining a cause of action against Dr. Sultz. To do so would not be to promote and facilitate the safety of the public highways. It would be to hold a doctor strictly liable for the conduct of his/her patients----

405 Pa.Super. at 538-41, 541-43, 543-45 & n. 13, 592 A.2d at 1343-44, 1345, 1346 & n. 13 (Emphasis in original).

The question that evolves from the preceding cases is whether the patients’ illness made the injury “foreseeable” to a third party/complainant, and, therefore, assignable to the treating physician as a breach of a duty to disclose the infirmity and its effect. We answer the question posed in the negative.

We find the present case to be more akin to Crosby than either Dunkle and DiMarco. To explicate, in Crosby, even though the attending physician may not have disclosed his patient’s diabetic condition, the Court held that there was no nexus between the duty to disclose the condition to PennDOT and a duty of care to the victim because there was no foreseeability of the victim being the object of the physician’s (in)action.

Likewise, here the physician’s obligation to diagnose his patient’s ability to operate an automobile and report the same to PennDOT is “very different from imposing upon a treating physician a duty of protecting the entire public from any harm that might result from his/her patient’s actions.” Crosby, 405 Pa.Super. at 540, 592 A.2d at 1344.

Even with the present regulations promulgated under the Pennsylvania Code by the Medical Advisory Board, the arm of government which formulates the criteria rendering a citizen ineligible to operate a motor vehicle in this Commonwealth, an individual with a 20/70 visual acuity may still be permitted to drive if his/her vision has not been examined “with best correction” to see if he/she obtains improved vision. There is no mention in the pleadings that Ms. Myers’ vision tested “with best correction” and still remained at 20/70. See 67 Pa.Code § 83.3. Given this regulation, there is no guarantee that Ms. Myers would not have been driving on the day of the accident; her license may not have been revoked, it may have been subject to restricted conditions allowing operability. See Appellee’s Brief at 13-14 (driving without a license).

Albeit the doctor should have reported Ms. Myers’ condition to PennDOT, the failure to act does not expose him to liability for injuries caused by a patient’s operation of a vehicle. Rather, we hold that the plaintiff failed to plead facts sufficient to forestall the grant of preliminary objections in the nature a demurrer.

Order affirmed.

      . For the first time, the appellant raises the claim that the doctor is subject to liability pursuant to Restatement (Second) of Torts, § 324A. The lateness of the argument renders it waived for appeal purposes. See Pa.R.App.P. 302(a).

       For the sake of clarity and continuity, we again note that it would be an absurd result to hold Dr. Sultz liable for resultant injuries to third parties due to Jackson's condition. At most, and at best, Dr. Sultz should be made to answer to the Department of Transportation for his failure to report Jackson’s diabetes. Even under this analysis, however, we would be reluctant to impose a duty on the doctor where it is unclear that he had reason to believe that Jackson’s ability to drive was impaired by virtue of his illness.


author: CIRILLO, President Judge Emeritus.

text:
    676 A.2d 1226
    SNYDER BROTHERS, INC., and Drilling Partnership 1992, a Pennsylvania Limited Partnership v. The PEOPLES NATURAL GAS COMPANY v. Paul F. YOHE and Pauline Yohe, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 29, 1996.
    Filed May 15, 1996.

      George A. Conti, Jr., Greensburg, for appellants.
    George W. Lamproplos, Greensburg, for Snyder Brothers, appellee.
    Patrick S. Cassidy, Greensburg, for Peoples Natural Gas, appellee.
    Before CIRILLO, President Judge Emeritus, and SAYLOR and EAKIN, JJ.
   CIRILLO, President Judge Emeritus.

Appellants Paul F. Yohe and Pauline Yohe, husband and wife, appeal from the final decree entered in the Court of Common Pleas of Westmoreland County enjoining the Yohes from interfering with the appellees’ rights to operate and maintain gas and oil wells pursuant to lease agreements between the parties. We affirm.

Snyder Brothers, Inc. and Snyder Drilling Partnership 1992 [collectively referred to as “Snyder”] are engaged in the business of drilling and operating wells for the production and sale of gas and oil. Snyder filed an action against the Yohes pursuant to a lease agreement between the Yohes and Snyder. In its complaint, Snyder sought equitable relief in the form of an injunction to restrain the Yohes from interfering with the operation and maintenance of a gas well located on the Yohes’ property. Snyder sought, in addition to maintaining its well, to connect the well, pipeline and meter site to the transmission line of The Peoples Natural Gas Company. The transmission line was located on the Yohes’ property.

After Snyder filed the original complaint, Peoples was added, without objection, as an additional plaintiff [hereinafter collectively referred to as Plaintiffs]. The trial court made the following findings of fact.

In 1991, Agnes Yohe owned approximately 99 acres of land located in the City of Lower Burrell in Westmoreland County. Agnes Yohe’s son, Paul, and his wife, Pauline, lived on the adjoining 16 acre tract of land. This latter property was subject to a right of way granted to Peoples in 1941. Pursuant to the terms of the right of way agreement, Peoples had installed a pipeline; this pipeline has been in continuous operation for the. transmission of natural gas.

Early in November of 1991, John B. Maxwell, a Snyder employee, approached the Yohes to obtain oil and gas leases on the properties. Paul Yohe, as spokesman for the family, indicated a willingness to enter into the leases. Maxwell reviewed the lease terms with Paul Yohe, and made available to him a copy of a lease entered into by an individual named Marion Coward (the Coward lease), as a prototype to which Yohe could refer.

Thereafter, Maxwell presented Paul Yohe with two documents. Paul Yohe reviewed the documents. Agnes Yohe signed one lease, and Paul and Pauline Yohe signed the other. The leases, in fact, were not identical to the Coward lease, but no objections were made. The leases were recorded on November 15,1991.

On April 27, 1992, the total acreage of the two Yohe leases was “unitized,” or pooled in accordance with the terms of the agreements. In September and October of 1992, Snyder drilled and completed a producing well, Well No. 2. Two months later, in June of 1992, Agnes Yohe conveyed her interest-in the unitized real estate described in the agreement to Paul and Pauline Yohe.

Since October of 1992, at the time of the completion of the drilling of the initial well, the Yohes attempted to convince Plaintiffs to drill additional wells. Plaintiffs refused to make this commitment. Beginning at that time, the Yohes precluded Plaintiffs from accessing the property; the Yohes erected barriers on access roads and made physical and verbal threats to Plaintiffs’ employees. A year later, in October of 1993, Plaintiffs attempted to install a lock on the gas well as a safety device. The Yohes refused to allow the Plaintiffs’ employees to leave, however, until the lock was removed. As a result of these actions, Snyder averred that it was unable to complete the connecting pipeline from the well to the existing Peoples’ pipe line, and, consequently, lost certain federal tax credits.

After a hearing on Plaintiffs’ complaint, the trial court entered an adjudication and decree nisi which enjoined the Yohes from, inter alia, interfering with Plaintiffs’ right to “drill, mine, produce, maintain, operate and/or transport the gas and oil produced from their well located on the Defendants’ property,” and interfering with the connection of the Snyder well to the existing pipeline. The Yohes filed post-trial motions, which were denied. A final decree was entered and this appeal followed. The Yohes raise the following issues for our review:

1. Did the oil and gas agreements create a fee simple title interest in the oil and gas estate?
2. Were the Yohe leaseholds properly unitized?
3. Did the oil and gas agreements set forth the agreement of the parties?
4. Does the pipeline right of way of the Peoples Natural Gas Company authorize the installation of a meter site and the receiving of gas into the pipeline?

Our standard of review in equity actions is well established. A chancellor’s finding of fact will not be disturbed absent an abuse of discretion, a capricious disbelief of the evidence, or a lack of evidentiary support on the record for the findings. Sorace v. Sorace, 440 Pa.Super. 75, 77-79, 655 A.2d 125, 127 (1995) (citing Jersey Shore Area School District v. Jersey Shore Education Association, 519 Pa. 398, 548 A.2d 1202 (1988)). A chancellor’s conclusions of law are subject to stricter scrutiny. Unless the rules of law relied upon are palpably wrong or clearly inapplicable, however, a grant of injunctive relief will not be reversed on appeal. Sorace.

The Yohes argue that the interest granted by the lease agreements is neither a valid leasehold interest nor a valid fee title interest in the gas and oil estate. Instead, the Yohes claim, the interest is merely a tenancy at will in and to the oil and gas. We disagree.

The trial court concluded that Plaintiffs are the owners of the gas under the lessors’ lands, and that the Plaintiffs’ right in the surface of the land is in “the nature of an easement of entering and examination, with the right of possession arising where a particular place of operation should be selected, and the. easement of ingress, egress, storage, transportation, etc. during the continuance of the operation.” Westmoreland etc. N. Gas Co. v. Ira DeWitt, et al., 130 Pa. 235, 18 A. 724 (1889). Interests in land can be severed and owned by different persons. The bundle of rights held by the owner of the fee can be broken into various other bundles such as the land, buildings on the land, easements, and leases and subleases. See generally 6 Standard Pennsylvania Practice § 5.2.

The Yohes own the land in fee simple, the largest estate in land implying absolute dominion. The Yohes, as owners in fee simple, granted a lease to Plaintiff for the minable gas and oil. A lease of minerals in the ground is a sale of an estate in fee simple until all the available minerals are removed; this leaves the lessor with only an interest in the royalties to be paid under the lease, which are personal property. See Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227 (1943). Specifically, the interest granted to lessee is a fee simple determinable; the lessor retains a reversionary interest. The interest reverts to the grantor upon the occurrence of a specified event. See Higbee Corp. v. Kennedy, 286 Pa.Super. 101, 428 A.2d 592 (1981); see also Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227 (1943) (a reversion is the undisposed remnant of an estate continuing in the grantor after a grant of a part of the grantor’s interest).

Here, the specified event or events which must occur in order for the interest to revert back to the Yohes are set forth in the lease in paragraph 3.

3. Term. Lessee has the right to enter upon the Property to drill for oil and gas at any time within 90 days from the date hereof and as long thereafter as oil or gas or either of them is produced from the Property, or as operations continue for the production of oil or gas, or as Lessee shall continue to pay Lessors $5.00 per acre per year as delayed rental, or until all oil or gas has been removed from the Property, whichever shall last occur.

The trial court, therefore, correctly determined that Plaintiffs were the owners of fee title interest and not, as the Yohes claim, a tenancy at will. Smith, supra. See also Barnsdall Appellant v. Bradford Gas Co., 225 Pa. 338, 342, 74 A. 207 (1909) (“the land itself is granted and demised, and not simply the right to enter upon and prospect ... for oil or gas.”).

The Yohes also contend that the lease is void as it creates an interest in land which violates the rule against perpetuities. The Yohes point to paragraph 3, set forth above, and contend that the third and fourth disjunctive conditions transform this lease into a “no term” lease which is not enforceable under the law and violates the rule against perpetuities. The Yohes maintain that the third condition has no definable termination point and is effected solely at the discretion of the Plaintiffs/Lessees. We note, first, that this claim is waived. It was not presented in post-trial motions, and, consequently, was not addressed by the trial court. See Pa.R.C.P. 227.1; Yeager v. Long, 284 Pa.Super. 76, 425 A.2d 426 (1980); see also Puleo v. Thomas, 425 Pa.Super. 285, 624 A.2d 1075 (1993). Nevertheless, we find the argument merit-less.

The rule against perpetuities prohibits restraints on alienation or the fettering of the marketability of property over long periods of time by indirect restraints on alienation. See Re Estate of Mather, 410 Pa. 361, 189 A.2d 586 (1963). The rule against perpetuities applies only to the vesting of the interest, not to the enjoyment of it. The rule, therefore, does not apply to the interest granted to the Plaintiffs, the fee simple determinable, because that interest is a vested interest. Higbee, supra. Upon the occurrence of certain events specified in paragraph 3 of the leases, the grantees’ interest will automatically divest. Id.

Additionally, upon closer examination of the lease language, we find that the Yohes’ contention that the third and fourth disjunctive conditions in paragraph 3 of the lease create a “no-term” lease is meritless. That language is clarified by paragraph 19 of the lease and, in fact, at the conclusion of paragraph 3 the parties added the following: “(See # 19 on back).” Paragraph 19 provides:

19. Additional Terms. This lease shall become null and void should Lessee fail to commence drilling operations within one year[] of the first delayed rental payment. Lessee agrees to reclaim and remove all wellhead equipment, buildings, etc., along with plugging said well or wells at the completion of production upon Lessor’s written request.

This language, along with the language of paragraph 3, indicates that the interest remains for so long as the Plaintiffs are drilling and/or producing gas and/or oil. It offends reason and the clear intent of the contract to surmise that the agreement may allow Plaintiffs to hold the land without engaging in drilling or production.

Next, the Yohes claim that the leaseholds were not properly “unitized.” The Yohes argue that the unitization was improper and effected only to hold onto the Paul and Pauline Yohe lease because drilling had not yet commenced on that 16 acre plot. The Yohes maintain that unitization was in bad faith, and carried out only to evade voiding the lease under paragraph 19.

Unitization is specifically provided for in paragraph 4 of the agreements. It reads:

4. Unitization. Lessee is hereby granted the right to pool and unitize all or any part of the Property with any other lease or leases, land or lands, mineral estates, or any of them whether owned by Lessee or others, so as to create one or more drilling or production units----

Here, the leases for both properties were recorded on November 15,1991. The total acreage, the 16 acre Paul and Pauline Yohe lease and the 99 acre Agnes Yohe lease, was unitized on April 27, 1992. Drilling commenced in September of 1992. The voiding clause of paragraph 19, therefore, is not applicable here.

In their next issue, the Yohes argue that their leases differ from the Coward lease, that Maxwell led them to believe that their leases would replicate the Coward lease. Upon delivery of the leases for signature, the Yohes contend that they complained about the differences. The Yohes argue that Maxwell “was putting one over on Mr. Yohe.” Notwithstanding, the Yohes signed the agreements.

Where parties, “without any fraud or mistake have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of this agreement[.]” Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 323, 126 A. 791 (1924). “All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.” Union Storage Co. v. Speck, 194 Pa. 126, 133, 45 A. 48 (1899).

Furthermore, the lease agreements contained an integration clause, which provides, in pertinent part:

13. Entire Contract. No presumption shall be deemed to exist in favor of or against either party hereto as a result of the preparation and/or negotiation of this agreement. No . inference or covenant shall be implied as to either party hereto since the full contractual obligations and covenants of each party [are] hereby fully and expressly set forth, (emphasis added).

The trial court aptly noted that the Yohes failed to produce clear and convincing evidence of fraud, accident or mistake. Consequently, the parol evidence rule barred any evidence of prior oral agreements or negotiations. Gianni, supra; see also Bardwell v. The Willis Company, 375 Pa. 503, 100 A.2d 102 (1953); LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978) (a party cannot justifiably rely upon prior oral representations, yet sign a contract denying the existence of those representations). The fully integrated written agreements here supercede any prior oral agreements or representations, and the parol evidence rules bars any evidence which may alter or vary the terms of the written agreements. Bardwell, supra.

In their final claim, the Yohes argue that the right of way held by Peoples did not authorize either the installation of a meter site nor the receiving of gas into the pipeline. We disagree. The right of way agreement held by Peoples provides for a

right of way to lay, maintain, operate, change and remove pipe lines with necessary fittings and appliances for the transportation and regulation of water, oil or gas, and/or their constituents or products similar thereto, ...

Peoples sought to connect its transmission line to the Snyder pipeline for the purpose of transporting natural gas. Peoples was required to fit its transmission line with what is known in the industry as a “saddle” in order to transport natural gas through the transmission line. If the connection is not made, Peoples is prevented, in part, from providing a public service in accordance with current public utility regulations. The Yohes’ claim is contrary to the express terms and purposes of the right of way agreement; it is contrary also to public policy and the public utility regulations and purposes. See 52 Pa. Code § 60.1 et seq.

As a final point, appellee Snyder states in its brief that “this matter should be remanded to the Lower Court for its consideration and decision as to attorney’s fees and costs.” Snyder does not state that it sought fees in the trial court, nor does it make any further statement or argument to this court on this matter. This court may on its own motion award further costs “if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious.” Pa.R.A.P. 2744. Appellee has not established conduct of this type, nor do we find evidence of such on the record. Accordingly, we deny Snyder’s request for further costs.

Affirmed.

      . Peoples is a public utility engaged in the business of buying, transporting and selling natural gas. Peoples is regulated by the Pennsylvania Public Utility Commission.

      . Though not an issue of concern to the Yohes, we note that the rule against perpetuities does not apply to their interest, a possibility of reverter, because a reversion is a vested interest. See Graybill v. Manheim Cent. School Dist., 175 Pa.Super. 415, 106 A.2d 629 (1954).

      . We note that appellants' brief on this issue is devoid of relevant law. The argument merely states the distinctions between the leases at issue and the Coward lease and summarily concludes that this illustrates a lack of mutual assent. The appellants, therefore, are in clear violation of Pa.R.A.P. 2119(b). See Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989); Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Curson v. Conshohocken Mun. Auth., 148 Pa. Commw. 386, 611 A.2d 775 (1992).