text:
    511 A.2d 1356
    David W. KRAFT, Administrator of the Estate of John J. Kraft, Deceased, et al.; and all Others Similarly Situated v. ALLSTATE INSURANCE COMPANY. (Two Cases) Appeal of David W. KRAFT, Administrator of the Estate of John J. Kraft; Eileen C. Venegas, Administratrix of the Estate of Julio C. Venegas, Deceased; and Dennis R. Shoemaker, Sr. and Donna Lee Shoemaker, Administrators of the Estate of Dennis R. Shoemaker, Jr. Appeal of Clyde J. BELL, Administrator of the Estate of Alice Lorraine Bell, Deceased; and Barbara Bergbauer Shields, Administratrix of the Estate of Michael Bergbauer, Deceased.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed June 19, 1986.
    Reargument Denied Aug. 1, 1986.

      Richard C. Angino, Harrisburg, for appellants.
    William T. Barker, Harrisburg, for appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

These appeals stem from a class action brought under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act), 40 P.S. §§ 1009.101-1009.701, (West Supp. 1984-1985), repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984, in which payment of post-mortem work loss benefits was sought. In the court below, the Honorable Warren G. Morgan issued the following Order on May 20, 1985 in response to defendant’s motion for summary judgment, and petitions to intervene (plaintiff’s motion for certification was granted and two subclasses were defined).

ORDER
AND NOW May 20, 1985, defendant’s motion for summary judgment with respect to the claims of representative plaintiffs Kraft, Venegas, and Shoemaker are granted.
The petitions to intervene are denied.
Plaintiffs’ motion for certification is granted, with two subclasses to be defined as follows:
(1) The first subclass shall consist of the estates of all decedents insured under policies of no-fault insurance issued by Allstate Insurance Company whose deaths occurred as the result of the maintenance and use of a motor vehicle within Pennsylvania during the period from August 21, 1980 to final disposition of this action. The subclass shall also include the estates of such decedents who were residents of Pennsylvania and who died as the result of the maintenance and use of a motor vehicle outside of Pennsylvania during that period.
(2) The second sub-class shall consist of the estates of all decedents insured under policies of no-fault insurance issued by Allstate Insurance Company whose deaths occurred as the result of the maintenance and use of a motor vehicle during the period from June 23, 1978, to August 20, 1980. The sub-class shall also include the estates of such decedents who were residents of Pennsylvania and who died as the result of the maintenance and use of a motor vehicle outside of Pennsylvania during that period.
The subclasses shall further be limited to those estates which have not yet been paid wage loss benefits. The subclasses shall further be limited to those estates whose decedents did not recover work loss benefits to the amount of $15,000.00 prior to their deaths.
Defendant is directed to search its files and provide to plaintiffs a list of all members of the two subclasses. Such provision must be made within 30 days of today’s date.
Furthermore, the parties shall make best efforts to agree on a form of notice to class members and a plan for distributing such notices. The agreement shall be submitted to the court for approval within 30 days from today’s date.
If the parties are unable to agree, each side shall submit proposed forms and plans to the court, along with an explanation as to why they were unable to agree. The court will then determine the form and manner of notice.
All members of the class as certified shall be included in the class unless a written election to be excluded is filed as of record within thirty (30) days of the date of notification.

On May 31, 1985 Judge Morgan issued a modified supplemental Order as follows:

ORDER
AND NOW, this 31st day of May, 1985, upon consideration of plaintiffs’ Petition to Sever and Enter a Modified Supplemental Order, the following Supplemental Order is hereby entered:
1. The claim of Blyde (sic) J. Bell, Administrator of the Estate of Alice Lorraine Bell, Deceased, is dismissed.
2. The claim of Barbara Bergbauer Shields, Adminis-tratrix of the Estate of Michael Bergbauer, Deceased, is dismissed.
3. The claims of the estates of decedents who died as a result of motor vehicle accidents between July 19, 1975 and June 22, 1978, who were covered by no-fault automobile insurance policies issued by Allstate Insurance Company are dismissed.
These appeals bring three issues for our consideration:
A. Was the statute of limitations tolled for decedents whose deaths occurred prior to June 23, 1978, by § 106(a)(5) of the No-fault Act, 40 P.S. § 1009.101, et seq., and by the various other class actions that were brought on behalf of those decedents in 1979 and 1981 seeking identical relief against the same defendant?
B. Did the Trial Court err in refusing to certify a class of plaintiffs’ decedents’ estates where death occurred prior to June 23, 1978?
C. Did the Trial Court err in dismissing the claims of four of the representative plaintiffs, Kraft, Venegas, Shoemaker, and Bell, as well as dismissing the claim of the Petitioner to Intervene, Shields, where fatal accidents occurred prior to June 23, 1978?

Brief for Appellants at 5.

Post-mortem work loss benefits, like ordinary work loss benefits and medical benefits are “benefits ... for loss arising otherwise than from death” governed by the statute of limitations provided by Section 106(c)(1) of the No-fault Act. Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 170, 455 A.2d 101, 103 (1982). Section 106(c)(1) provides, in part, as follows:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced no later than two years after the victim suffers the loss ... or not later than four years after the accident, whichever is earlier.

The Pennsylvania Supreme Court has construed this statute to mean that:

where no-fault benefits arising otherwise than from death have not been paid, an action for recovery of work loss benefits, for the benefit of a victim who was not self-employed, must be commenced within two years of each occurrence of work loss, and not later than two years after the victim’s accrued economic detriment from work loss reaches the statutory maximum amount recoverable, $15,000, and, in any case, not later than four years after the accident.

Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 503 Pa. 547, 550-51, 469 A.2d 1388, 1389 (1983) (citation omitted), restating the holding in Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983).

The background of this specific case is presented through Brief for Appellants at 8-13 (emphasis omitted) as follows:

Lawsuits to establish entitlement to no-fault decedent work loss benefits were started by potential claimants as early as 1976 and 1977. One of the first such lawsuits was brought against the instant defendant, Allstate Insurance Company. Heffner v. Allstate Ins. Co., No. 3406 Nov. Term 1976 (C.P.Phila.), 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980); Pontius v. United States Fidelity & Guaranty Insurance Company, No. 2702 S 1977 (C.P.Dauph.), aff'd, 491 Pa. 447, 421 A.2d 629 (1980); Reynolds v. Nationwide Mut. Ins. Co., No. 1096 S 1977 (C.P.Dauph.), 303 Pa.Super. 31, 449 A.2d 62 (1982), 504 Pa. 232, 470 A.2d 966 (1983).
******
Anticipating the statute of limitations defense, plaintiffs’ counsel commenced, on November 15, 1979, a class action suit on behalf of potential claimants against the thirty-one carriers which wrote the bulk of auto insurance in Pennsylvania. Nye v. Erie Ins. Exchange, No. 5349 S 1979 (C.P.Dauph.). On February 4, 1981, preliminary objections based upon the lack of standing were sustained by the lower Court. On December 10, 1982, your Court reversed, and on December 30, 1983, the Supreme Court reversed your Court. Nye v. Erie Ins. Exchange, 504 Pa. 3, 470 A.2d 98 (1983).
A second class action, a combination assumpsit, trespass, anti-trust action, was brought on February 24,1981. Seibel v. Aetna Casualty and Surety Co., No. 653 S 1981 (C.P.Dauph.). That class action was dismissed on defendants’ preliminary objections more than three years after it was instituted. Your Court affirmed the lower Court dismissal, No. 242 Hbg. 1984. An allowance of appeal has been sought from the Supreme Court. Additionally, numerous separate class actions with representative plaintiffs who clearly had standing were filed. One such suit was Seibel v. Allstate Insurance Co., No. 2183 S 1982 (C.P.Dauph), aff'd, No. 474 Hbg. 1984, commenced by the filing of a class action Complaint on June 22, 1982, a precursor suit directly against Allstate.
* $ * * * *
The instant action was commenced by the filing of a class action Complaint on August 20, 1984. David W. Kraft, Administrator of the Estate of John J. Kraft, Deceased ... and all others similarly situated, sought to recover from defendant no-fault work loss benefits pursuant to the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, et seq. On September 26, 1984, defendant filed an Answer to the Complaint.
# * }ji # # >K
On October 26, 1984, defendant filed Motions for Summary Judgment against representative plaintiffs Kraft and Venegas. On November 5, 1984, defendant filed a Motion for Summary Judgment against representative plaintiff Shoemaker. All three Motions for Summary Judgment allege the bar of the statute of limitations. On November 15, 1984, plaintiffs filed responses to defendant’s Motions for Summary Judgment alleging that previously filed class actions against defendant seeking to recover the same no-fault decedent work loss benefits had tolled the statute of limitations on the representative plaintiffs’ claims. Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983); Seibel v. Aetna Cas. & Sur. Co., No. 653 S 1981 (C.P.Dauph.); Seibel v. Allstate, No. 2183 S 1982 (C.P.Dauph.).
Additionally, on January 11, 1985, a Petition to Intervene was filed by Barbara Bergbauer Shields, Executrix of the Estate of Michael Bergbauer, Jr., Deceased. On February 5,1985, defendant filed objections to the Shields Petition to Intervene.
Affidavits were filed in this action by Barbara Berg-bauer Shields in support of her Petition to Intervene and by Clyde J. Bell, David W. Kraft, Eileen Venegas, and Dennis and Donna Lee Shoemaker in opposition to defendants’ Motion for Summary Judgment and in support of Plaintiffs’ Motion for Class Certification.
After hearing on Plaintiffs’ Motion for Class Certification, Defendants’ Motions for Partial Summary Judgment and the Shields Petition to Intervene, on May 20, 1985, the Trial Court issued an Opinion and Order ...
Plaintiffs’ Motion for Class Certification was granted as to two sub-classes of plaintiffs. The first sub-class consists of the estates of decedents insured under policies of no-fault insurance issued by Allstate Insurance Company, whose deaths occurred from August 21, 1980, to final disposition of this action. The second sub-class consists of the estates of all decedents insured under policies of no-fault insurance issued by Allstate Insurance Company whose deaths occurred from June 23, 1978, to August 20, 1980. The first certified sub-class represents decedents whose deaths occurred in the four years prior to the filing of the instant class action. The second sub-class represents decedents whose deaths occurred from four year prior to the filing of Seibel v. Allstate, supra, until four years prior to the filing of the instant action. The Court granted Defendant’s Motions for Summary Judgment with regard to representative plaintiffs Kraft, Venegas, and Shoemaker, reasoning that since their decedents died before the time periods of the certified classes, their actions were time-barred. Additionally, the trial Court dismissed the claim of Clyde J. Bell sua sponte because his decedent died prior to June 23, 1978.
Because of certain unclear portions of the Court’s Order of May 20, 1985, plaintiffs filed a Petition to Sever the Dismissed Claims and requested that the Court enter a Modified Supplemental Order. That Order was entered by the Court on May 31, 1985. It clearly dismisses the claims of all decedents whose deaths occurred prior to June 23, 1978. Final judgment was entered by the Pro-thonotary.
Timely appeal was taken to your Court. The first appeal, to No. 393 Hbg. 1985, appeals the Order of the Court entered May 20, 1985. The second appeal to No. 394 Hbg. 1985 is an appeal from the Supplemental Order of the Court entered May 31, 1985. By Stipulation of the parties, these two appeals have been consolidated for briefing and arguing.
The issue presented to your Court is one of fairness: whether or not the pre-1978 decedents’ estates should recover the same benefits as the post-1978 estates on the basis of tolling by legislative intent, 40 P.S. § 1009.-106(a)(5), or by the previously filed class actions.

In his opinion of May 20, 1985 Judge Morgan reasoned that:

In the present case defendant has moved for summary judgment with respect to the claim of David W. Kraft, administrator of the estate of John J. Kraft, his eight-year-old son. John died as the result of a motor vehicle accident that occurred on May 25, 1978. Defendant has moved for summary judgment arguing that § 1009.-106(c)’s 4-year ultimate statute of limitations bars the Kraft claim. That provision states:
If no-fault benefits have not been paid for loss arising other than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.
We agree with defendant that the Kraft claim is barred by this provision.
Plaintiffs, however, argue that the statute of limitations was tolled by the filing of Seibel v. Allstate Insurance Co., 2183 S. 1982 (Dauphin County, Pa. filed June 22, 1982); Seibel v. Aetna Casualty & Surety Co., 653 S. 1981 (Dauphin County, Filed Feb. 24, 1981); and Nye v. Erie Insurance Exchange, 5349 S. 1979 (Dauphin County, Pa. filed Nov. 15, 1979). Seibel v. Allstate, however, was not filed within four years of the Kraft accident and thus could not toll that claim. Seibel v. Aetna did not seek the relief sought here but was instead an antitrust claim; it therefore could not toll the statute as to Kraft’s post-mortem work loss claim.
Finally, we have already held that Nye (in which an Erie insured sued Erie and thirty other insurance companies) did not toll the statute of limitations for insureds of companies other than Erie, for Nye had no standing with respect to them. See Kruth v. Liberty Mutual Insurance Co., 3004 S. 1983 (Dauphin County, Pa.) (slip op. dated Aug. 3, 1984) in which we cited American Pipe & Construction Co. v. Utah, 414 U.S. 538 [94 S.Ct. 756, 38 L.Ed.2d 713] (1974), and stated:
There is a fundamental distinction between actions that are not maintainable because of “considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court’s docket,” American Pipe, supra [414 U.S.] at 553 [94 S.Ct. at 766], (footnote omitted) and those that are not maintainable because of a plaintiffs lack of capacity to maintain the suit in the first place. Indeed, the United States Supreme Court in American Pipe felt it important to note that maintenance of that class action “was denied not for ... lack of standing of the representative. .., Id. at 553 [94 S.Ct. at 766] (quoting lower court opinion) (emphasis added), but rather solely because of failure to satisfy the numerosity requirement under the federal class action rules.
We understand the principles behind a statute of limitations and agree that here the harm feared (i.e., stale claims and notice to the defendant) is less because the defendant has been put on notice through initiation of the lawsuit. However, it is equally important to a defendant to be able to properly defend against any such lawsuit and failure to have a proper plaintiff with concrete injury diminishes greatly his ability to prepare such a defense.
We also fear that a disregard of the basic principles of standing would encourage parties and their counsel to sue any and all persons, without regard for injury, in an attempt to buy time to secure and intervene proper party plaintiffs with true standing. Accordingly, we find that the initiation of suit[ ] in Nye did not serve to toll the statute of limitations for the present plaintiff Kruth, and as the suit was filed five and one half years after her death it is barred by Section 1009.106(c)(l)’s four-year “ultimate limitation,” Myers v. USAA Casualty Insurance Co., 298 Pa.Super. 366, 373, 444 A.2d 1217.
Id. at 12-13.
We will therefore grant defendant’s motion here.
Defendant has also moved for summary judgment with respect to the claim of Eileen C. Venegas, administratrix of the estate of Dr. Julio C. Venegas. Dr. Venegas was killed in a motor vehicle accident that occurred on May 18, 1976. We find that this claim is also barred under § 1009.106(c)’s 4-year provision and we therefore grant defendant’s motion.
The defendant’s final summary judgment motion is to the claim of Dennis R. Shoemaker, Sr., and Donna Lee Shoemaker, Administrators of the estate of Dennis R. Shoemaker, Jr. Young Dennis, six weeks old, died on March 4, 1976, as a result of injuries sustained in an automobile accident that had occurred the previous day. This claim, like the prior two, is barred by § 1009.106(c)’s 4-year statute of limitations. We therefore grant defendant’s motion for summary judgment.

Lower ct. op. at 2-5.

Quite recently in Miller v. Federal Kemper Insurance Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986) a panel of our court considered the nearly identical question.

Leonard C. Miller and Beverly R. Miller, the administrators of the estate of Diane K. Miller, deceased, commenced a class action to recover post-mortem work loss benefits under the No-fault Act on behalf of their decedent and all others similarly situated. They appealed from an order of the Court of Common Pleas of Dauphin County which denied class certification and granted a motion by the appellee, Federal Kemper Insurance Company (Kemper), for summary judgment. The Millers also challenged that portion of the same order which denied the petitions of Regina Kotchin and Drexel R. Bradley to intervene as representatives of the class.

On April 29, 1978, Diane Miller sustained fatal injuries as a result of an automobile accident. She was covered by a policy of no-fault insurance which had been issued by Kem-per. Kemper refused to pay work loss benefits to Diane Miller’s estate. On June 22, 1982, the Millers commenced a class action on behalf of their deceased daughter and “all insureds of [Kemper] who were covered by the Pennsylvania No-Fault Act with respect to their fatal injuries ... since the time of the passage of the No-Fault Act.” The Millers subsequently moved, inter alia, for class certification and for partial summary judgment on their individual claim. The trial court, after hearing, denied both motions. Later, however, the court granted a petition by the Millers for reconsideration of class certification. In the meantime, the petitions of Kotchin and Bradley to intervene in the class action had been filed. Kemper subsequently filed its own motion for summary judgment on the ground that the Millers’ claim was barred by the statute of limitations contained in the No-fault Act. After a second hearing, the trial court denied the Millers’ petition for class certification as well as the petitions for intervention. The court also granted Kemper’s motion for summary judgment, thereby disallowing the Millers’ claim. An appeal by the Millers followed.

In Miller, Judge Wieand wrote:

[U]nder this statutory provision, the greatest period within which to file an action for post-mortem work loss benefits is four years from the date of the fatal accident. Here, the accident which caused Diane Miller’s death occurred on April 29, 1978. The complaint in the instant class action was not filed until June 22, 1982, more than four years following the accident. Thus, unless the limitations period was tolled in the interim, the Millers’ class action suit is time barred.
$ * * * * *
[T]hus, the question presented here is ... whether the commencement of a class action by a representative plaintiff who lacks standing to sue a named defendant tolls the statute of limitations for a purported class member who subsequently brings an action against that defendant.
Kemper argues that because the class representative in Nye lacked standing, Nye was a nullity and ineffective to toll the period of limitations for the Millers’ claim. We reject this argument. When a class action complaint is filed, the asserted members of the class are considered to be parties to the action until properly excluded. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 229, 348 A.2d 734, 736 (1975). See: Pa.R.C.P. 1701 Explanatory Note. “In that interim period, unnamed class members do have certain interests in the lawsuit. They may challenge the adequacy of representation by the plaintiff; in some circumstances, they may have a right to be informed of, or to be included in, a settlement; and, perhaps most importantly, the statute of limitations may be tolled during this period.” In re Fine Paper Litigation State of Washington, 632 F.2d 1081, 1087 (3d Cir.1980).
[I]t can hardly be said that a suit commenced by one who lacks standing is in any literal sense a “nonexistent” suit. It may be a defective suit, subject to a motion to dismiss or perhaps even to the court’s dismissal sua sponte, but it is for all that no less the judicial assertion of a claim, functioning to give a defendant notice of whatever causes of action are asserted therein.
Rose v. Arkansas Valley Environmental & Utility Authority, 562 F.Supp. 1180, 1193 (W.D.Mo.1983). Having concluded that the Nye action was not a nullity, we nevertheless must determine whether it operated to toll the statute of limitations applicable to the Millers’ claim.
******
We conclude that the rationale of the foregoing decisions is in harmony with the principle of American Pipe. Therefore, we adopt the same rationale as our own. We conclude that a class action commenced by a representative plaintiff who lacks standing is sufficient to toll the statute of limitations for the purported members of the class who later file their own actions so long as the original action provided the defendant with adequate notice of the substantive nature of their claims and the number and generic identities of the potential plaintiffs who might assert them. In the instant case, the Nye action provided Kemper with timely notice of the nature of the Millers’ claim, i.e., for post-mortem work loss benefits on behalf of their deceased daughter.
******
The Millers were included in the class defined in the Nye action. We hold, therefore, that the commencement of the Nye action tolled the statute of limitations for the estate of Diane Miller. The Nye action was also adequate to toll the statute of limitations for class members whose decedents had sustained fatal injuries after November 15, 1977. By virtue of the class defined in Nye, Kemper was put on notice of the number and generic identity of those in this purported class who might later bring suit against it. Were we to extend the tolling effect of Nye beyond the parameters of the narrow class there defined, however, we would defeat the objective of the legislature that the statutorily imposed period of limitations was designed to achieve, i.e., to protect insurers such as Kemper from the need to defend unforeseeable, stale claims.
The limitations period for the class defined in Nye remained tolled from the date of filing the Nye complaint on November 15, 1979 until December 30, 1983, when the Supreme Court conclusively determined that Nye lacked standing to sue Kemper and twenty-nine other insurance companies named as defendants.
3jC j]C * S}C * *
The Millers commenced their action during the four year period in which the statute of limitations was suspended by the pendency of the Nye action. As such, their action was timely. Kemper’s motion for summary judgment with respect to the Millers’ individual claim should have been denied.

Id. 352 Pa.Super. at 587, 594, 596-597, 599, 508 A.2d at 1225, 1228, 1229-30, 1231 (footnote omitted).

Instantly, following the Miller rationale, we find that the Nye action was adequate to toll the statute of limitations for class members whose decedents had sustained fatal injuries after November 15, 1977. By virtue of the class defined in Nye, Allstate was put on notice of the number and generic identity of those in this purported class who might later bring suit against it.

The limitations period for the class defined in Nye remained tolled from the date of filing the Nye complaint on November 15, 1979 until December 30, 1983, when the Supreme Court ultimately determined that Nye lacked standing to sue Allstate and twenty-nine other insurance companies named as defendants.

The Krafts commenced their action during the four year period in which the statute of limitations was suspended by the pendency of the Nye action. As such, their action was timely. The Nye action was commenced within two years of the date of death of plaintiff Kraft’s decedent.

We affirm the grant of summary judgment as to plaintiffs Venegas and Shoemaker, both plaintiffs’ decedents having died in 1976. See Himmelright v. United States Fidelity & Guaranty Co., 352 Pa.Super. 517, 508 A.2d 594 (1986) (affirming grant of summary judgment in a nearly identical case). The decedent David H. Himmelright was killed in an automobile accident on August 15, 1976. We said:

An action to recover post-mortem work loss benefits, to be timely, must in any event be commenced within four years after the date of the fatal accident giving rise to the claim. See: 40 P.S. § 1009.106(c)(1). Appellant concedes that nearly eight years elapsed between the date of her husband’s death and the commencement of the present action for work loss benefits. She argues that her action was not time-barred, however, because the period of limitations had been tolled by a previously filed class action for work loss benefits. The class action, she contends, included the claim for work loss benefits resulting from her husband’s death. That action, Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.), was instituted on November 15, 1979. It was brought against thirty-one insurance companies, including USF & G, on behalf of “all previously employed Pennsylvania residents who were insured by any of the defendants under No-Fault insurance coverage and who sustained a fatal injury within the past two years____” (emphasis added).
In Miller v. Federal Kemper Insurance Co., 352 Pa. Super. 581, 508 A.2d 1222 [(1986)], we held that the Nye action tolled the statute of limitations only for claims made on behalf of members of the class defined therein, i.e., those previously employed insureds who had died in auto accidents after November 15, 1977 (two years prior to the commencement of Nye in 1979).
The decedent in the instant case, having been fatally injured on August 15, 1976, does not fall within the class described in Nye. The present appellant, therefore, may not benefit from the tolling effect of the Nye action. Because the present action was commenced nearly eight years after the accident which caused David Himmel-right’s death, it is barred by the No-fault Act’s statute of limitations. There being no genuine issue of material fact, the trial court properly entered summary judgment in favor of USF & G.

Id., 352 Pa.Super. at 519-520, 508 A.2d at 595-96.

As previously pointed out, plaintiff’s motion for certification as a class action was granted by the learned Judge Morgan and no appeal was taken by defendant from that order of May 20, 1985. We will remand for an expansion of the sub-class consistent with this opinion. We reverse the trial court’s grant of summary judgment as to the plaintiff Kraft’s claim.

Affirmed as to grant of summary judgment against Vene-gas and Shoemaker.

Reversed as to grant of summary judgment against plaintiff Kraft.

Remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . In Miller the trial court had denied certification because of the failure of the Millers to establish the adequacy of their representation, and we affirmed that ruling on appeal as not being an abuse of discretion.
      In Pennsylvania, an order permitting a suit to proceed as a class action is a nonappealable interlocutory order, since it still allows the defendant the opportunity to demur to plaintiffs complaint and, if necessary, to defend the merits at trial.
      16 Standard Pennsylvania Practice 2d § 86:20.

        See Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974); Piltzer v. Independence Fed. Sav. & Loan Assoc. of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974).

      . We do not address the intervention issue. Appellants lack standing to raise this argument. See Miller v. Federal Kemper, supra, 352 Pa.Super. at 603, 508 A.2d at 1234 and cases cited therein.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: BROSKY, Judge,

license: Public Domain

text:
    511 A.2d 1365
    INSURANCE COMPANY OF NORTH AMERICA v. Judith E. HIPPERT v. Tom W. BUTTS t/d/b/a Tom W. Butts Agency, and Allstate Insurance Co., Inc. a Corporation. Appeal of ALLSTATE INSURANCE CO., INC., a Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1986.
    Filed June 16, 1986.
    Reargument Denied July 31, 1986.

      Daniel R. Gigler, Pittsburgh, for appellant.
    Theodore F. Huckestein, Jr., Pittsburgh, for Ins. Co., appellee.
    Karl W. Wiedt, III, Pittsburgh, for Hippert, appellee.
    David M. Neuhart, Pittsburgh, for Butts, appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This appeal comes before us as the result of the order of the Court of Common Pleas of Allegheny County, in which the motion for summary judgment made by appellee, Insurance Company of North America (INA), was granted and the motion for summary judgment made by appellant, Allstate Insurance Co., Inc. (Allstate), was denied. Accordingly, Allstate is to be held responsible for payments made to an accident victim even though it did not insure the victim or the vehicle involved but did insure another vehicle owned by appellee Judith Hippert. In the appeal sub judice, we are presented with a new and somewhat unusual factual situation involving the complex rules of the Pennsylvania No-fault Motor Vehicle Insurance Act (hereinafter the Act or No-fault Act). Once again, this Court must interpret the intricate law in light of the applicable facts, most of which are undisputed. As with many no-fault insurance cases, this is no easy task.

We make note that this appeal is the result of a summary judgment. The law in this area is well settled. “Summary judgment is (proper) when the pleadings, depositions, answer to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party and any doubts must be resolved against the entry of judgment.” (citations omitted). Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976); Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975).

The essential facts, to which the parties stipulated, are as follows:

1. Michael P. Hippert is the brother-in-law of defendant, Judith E. Hippert.
2. For a period of three to four months prior to June . 17, 1980, Michael P. Hippert resided with Judith E. Hip-pert, her husband and daughter at 100 Country Club Drive, Oakdale, Pennsylvania.
3. On June 17, 1980 Michael P. Hippert was injured while driving a 1974 Dodge truck owned by Judith E. Hippert.
4. Michael P. Hippert had Judith E. Hippert’s express or implied permission to operate her 1974 Dodge truck at the time of the accident on June 17, 1980.
5. At the time of the accident Michael P. Hippert was not the registered owner of a motor vehicle and was not identified by name as an insured in any other contract of insurance complying with the Act.
6. On August 7, 1980 Michael P. Hippert applied to the Pennsylvania Assigned Claims Plan for basic loss benefits as a result of the injuries sustained by him in the accident on June 17, 1980.
7. Michael P. Hippert’s claim under the Pennsylvania Assigned Claims Plan was subsequently assigned to INA.
8. Pursuant to its obligation under Section 108 of the Act, INA paid basic loss benefits to or on behalf of Michael P. Hippert and incurred loss adjustment costs in the amount of $54,141.70.
9. The following payments and expenses incurred by INA were a direct result of Michael P. Hippert’s injuries suffered in the motor vehicle accident on June 17, 1980 and are reasonable in amount:
(a) Mercy Hospital in-patient from June 17, 1980 to July 11, 1980 $30,075.10
(b) Mercy Hospital in-patient from May 28, 1981 to May 30, 1981 1,096.05
(c) Three Rivers Orthopedic Associates, Inc. 3,366.00
(d) Pittsburgh Anesthesia Associates, Ltd. 1,354.50
(e) Ronald L. Boron, M.D. 865.00
(f) Stephen A. Lorenz, III, M.D. 4,155.00
(g) Lanza Pharmacy 190.00
(h) Work loss from June 17, 1980 to September 18, 1981 at $736.67 per month 11,250.05
(i) Loss Adjustment Cost 2,000.00
10. The amounts paid by INA on behalf of Michael P. Hippert set forth in No. 9 are “basic loss benefits” as such are defined in the Act.
11. On June 17, 1980 Allstate had in force and effect a policy of insurance for a 1977 Oldsmobile owned by Judith E. Hippert.

The specific subject of the instant appeal is an exclusion clause in the Allstate insurance policy, which reads:

This coverage DOES NOT APPLY TO BODILY INJURY TO:
(a) the NAMED INSURED or any RELATIVE resulting from the maintenance or use of the NAMED IN-

SURED’S MOTOR VEHICLE which is NOT an INSURED MOTOR VEHICLE. (Emphasis in original). There are no Pennsylvania Supreme or Superior Court decisions determining the validity of this exclusionary clause. Several courts of common pleas have, however, dealt with this issue. Unfortunately, the various decisions are not in agreement and the reported cases conflict in their holdings. It is against this procedural backdrop that we must resolve the issue.

Appellant Allstate argues that the exclusionary clause relieves it of any liability for Michael Hippert’s accident since the 1974 Dodge truck involved was not the motor vehicle insured by the policy. Appellant also contends that the exclusion is valid and cites the clause’s approval by the Insurance Commissioner as support. INA, appellee, argues that the exclusion is contrary to the No-fault Insurance Act despite its approval and is therefore invalid. The lower court agreed; we do not.

We will immediately dispose of appellant’s reliance on the Insurance Commissioner’s approval of the exclusionary clause. This does not per se establish the validity of this provision despite the requirement that the forms must be approved before they can be used. See Insurance Company Law of 1921, as amended, 40 P.S.Sec. 477b. A court can determine that a challenged clause is void as being contrary to law, which then invalidates the approval as well. Brader v. Nationwide Mutual Insurance Company, 270 Pa.Super. 258, 411 A.2d 516 (1979); Wilbert v. Harleysville Mutual Insurance Co., 254 Pa.Super. 217, 385 A.2d 987 (1978). As such, the Commissioner’s approval cannot enter into our considerations.

In dealing with any statute, we must be mindful of its purpose. When the No-fault Act was enacted, the General Assembly declared as its purpose:

Purposes — Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

40 P.S.Sec. 1009.102(b). Additionally, we must liberally construe the No-fault Act in order to assure that its purpose is given effect. Sheppard v. Old Republic Life Ins. Co., 21 Pa.Cmwlth. 360, 346 A.2d 383 (1975). In so doing, this Court is obliged to take care so that any interpretation does not yield “a result that is absurd, impossible of execution or unreasonable.”

After disposing of the preliminary background applicable to the instant case, we turn now to the validity of the exclusion clause in the policy.

We first address the possible effects of ruling the exclusionary clause invalid. If that is done, it is quite obvious that Judith Hippert, as owner of both the uninsured vehicle involved in the accident and the second vehicle insured by Allstate reaps the benefits. Such a holding would allow her to pay premiums on insurance for one vehicle while actually receiving coverage on two vehicles. Therefore, she is being rewarded by violating the express mandate of the Act since she escapes economic liability for the accident involving an uninsured vehicle.

Furthermore, the Act provides definite penalties for the owner of an uninsured vehicle involved in an accident. The sanctions are both civil and criminal. Even the most liberal statutory interpretation could not allow us to hold the exclusionary clause invalid without weakening the impact of the Act’s purpose. Adhering to the unambiguous language of the statute, INA should be reimbursed by Judith Hippert, not Allstate. Any other result, such as forcing Allstate to reimburse INA and then seeking reimbursement from Judith Hippert, is absurd and circuitous. The excess litigation caused by following this route is unnecessary.

It stands to reason, then, that the most prudent course of action is to effectuate a direct method of satisfying the provisions of the No-fault Act. Leaving the exclusionary clause intact places the risk on the intended party and does not contravene the Act. The major elements of the Act are: (1) a requirement that each vehicle be insured if it is to be registered and operated in the Commonwealth; and (2) a scheme for determining the victim’s source of no-fault benefits and to compensate the victim, rehabilitate him, and get him back into a productive life without regard to fault. We fail to see how these provisions are violated by upholding the exclusionary clause. Indeed, it is easier to see that by upholding the clause we are also upholding the intent of the Act.

The effect of validating the Allstate proviso relieves it of the burden of reimbursing INA placed upon them as a consequence of the summary judgment granted by the lower court. This in turn places the burden on the intended party, Judith Hippert, as owner of the uninsured vehicle. The ensuing result is in keeping with the spirit of the Act: Judith Hippert is penalized and not rewarded for failing to comply with the Act; the applicable source acquires the costs of the accident; and the victim is justly compensated without delay. Furthermore, this Court need not strain to reach this conclusion nor is the conclusion the outcome of an absurd or unreasonable interpretation.

Because the appellees and the lower court placed much emphasis on the argument that Michael Hippert satisfied the definition of “insured,” we are constrained to address that issue.

The Act defines “insured” as:

(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative of a named insured ... if—
(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
(ii) in a residence in the same household with a named insured.

As such, there can be no doubt that Michael Hippert qualifies under subsection (B). It does not necessarily follow, however, that Michael is automatically covered by Allstate in any and all accidents in which he may become involved. To allow such a broad definition would máke absolute the belief that “the security follows the person, not the vehicle.” We know, however, that this rule is not absolute. There are at least two exceptions, one statutory and one judicial, needed to follow the intent of the statute. While the situation at present does not fall into either exception, and it is not our objective to create a new exception, given the nature of the circumstances before us, we are obligated to rule that in this instance the security does not follow the person. To hold otherwise would be contrary to the Act.

In conclusion, Judith Hippert paid premiums on a 1977 Oldsmobile through Allstate. There is no doubt that Michael is an insured with respect to that vehicle. We decline, however, to allow those premiums to be extended to any vehicle driven by Michael. As noted previously, this is an unreasonable expectation. Therefore, we reverse the summary judgment granted INA against Allstate and denied Allstate against INA. This decision does not affect the rights of INA against Judith Hippert as owner of the uninsured vehicle.

Order vacated. Judgment reversed. Jurisdiction is relinquished.

BROSKY, J., files dissenting opinion.

BROSKY, Judge,

dissenting:

Michael Hippert, while residing in the home of a relative, Judith Hippert, was driving Mrs. Hippert’s uninsured Dodge pickup truck when it was involved in an accident. Pursuant to the assigned claims plan, No-fault § 108, INA paid basic loss benefits to or on behalf of Michael Hippert. INA brought suit against Mrs. Hippert under § 501 of the Act, which provides that an insurance company shall be entitled to recover from the owner of an uninsured motor vehicle when the company has been obligated to pay basic loss benefits to a relative of the owner of the uninsured motor vehicle when the relative, while residing with the owner, is injured while occupying the owner’s uninsured motor vehicle. Mrs. Hippert joined Allstate as an additional defendant, along with the owner’s insurance agent, under the theory that lack of coverage was due to the agent’s failure to notify Allstate of the owner’s desire to add the uninsured motor vehicle to the owner’s existing policy, which covered the owner’s other automobile (a 1977 Oldsmobile). Realizing that under § 204(a)(2) of the Act another insurance company, Allstate, was the security liable for the payment of basic loss benefits to Michael Hippert, INA filed a motion for summary judgment against Allstate for reimbursement of the basic loss benefits paid, which motion was granted by the trial court. (Allstate filed its own motion for summary judgment, which was denied). Allstate appealed judgment for INA, arguing that an exclusion clause in its policy covering the Oldsmobile precluded recovery of basic loss benefits from Allstate by Michael Hippert (or, to be more precise, precluded reimbursement of INA by Allstate for benefits previously paid by INA to Michael Hip-pert).

It is clear, as the majority notes, that the exclusionary clause in question cannot prevail if contrary to the No-fault Act. It also appears clear, as the majority concedes, that Michael Hippert, the injured party to whom basic loss benefits were paid, comes within the definition of “insured” contained in § 103 of the No-fault Act, since Mr. Hippert is a relative residing in the same household as an individual, Judith Hippert, who is named as an insured in a contract of basic loss insurance (the Allstate policy covering Mrs. Hip-pert’s 1977 Oldsmobile). Since § 204(a)(2) of the Act provides that “[t]he security for the payment of basic loss benefits applicable to an injury to ... an insured is the security under which the victim ... is insured ...,” the security applicable to this accident is therefore clearly the Allstate policy covering the Oldsmobile, notwithstanding the exclusionary clause of the policy. What is not clear is how the majority is able to find that INA, the company that paid basic loss benefits under the assigned claims plan to Michael Hippert, should find itself obligated to pay benefits, rather than Allstate, the insurer of the 1977 Oldsmobile. Under § 204(a)(5) of the Act, the assigned claims plan only comes into play when there is no other security applicable to the accident.

The majority concludes that setting aside the exclusionary clause in the Allstate policy could result in Judith Hippert escaping economic liability for the accident and being “rewarded” for violating the requirement that all motor vehicles be insured. In connection with this discussion, the majority cites § 301(a)(1) of the Act which abolishes tort liability, with certain enumerated exceptions including for owners of unsecured vehicles involved in accidents. Since Judith Hippert did not provide security for the Dodge pickup in accordance with § 104 of the Act, the vehicle is not a “secured vehicle” and § 301(a)(1) would not relieve Mrs. Hippert of tort liability should she be involved in an accident while driving her Dodge pickup. The concern of the majority that a result different from the majority’s would have untoward effects in a future case involving tort liability is therefore totally unwarranted. As for the majority’s concern that Mrs. Hippert will be “rewarded” for failing to insure her vehicle, it should be noted that § 501 of the Act provides for suspension or revocation of both the motor vehicle registration and the operator’s license for failure of the owner of an uninsured motor vehicle to reimburse the appropriate obligor.

The majority states that giving effect to the exclusionary clause of the Allstate policy would result in placing the risk on the intended party, the party that neglected to insure a vehicle, in this case, Mrs. Hippert. The majority’s desire to place the ultimate burden on the party failing to insure a vehicle is entirely in keeping with the Act, but this result is achieved regardless of whether INA or Allstate is obligated to initially bear the expense of Michael Hippert’s basic loss benefits. Either insurance company may attempt to recover this expense from Judith Hippert under § 501 of the Act. The obvious intent of this section is to permit any obligor paying basic loss benefits to recover its expenses from the party who violates the Act by failing to insure his motor vehicle. The majority recognizes this, but finds that it would be “absurd and circuitous” to force Allstate to reimburse INA and then seek reimbursement from Mrs. Hip-pert. Certainly INA will not find such a result to be absurd and circuitous if it is forced to try a prolonged case against Mrs. Hippert and prevails, only to find that Mrs. Hippert is judgment-proof.

The intent of § 204 of the Act is to set forth which of various insurers potentially at risk in a particular situation will be obligated initially to pay basic loss benefits to parties injured in motor vehicle accidents. According to the scheme set forth in § 204, under the facts of the case before us, Allstate, as opposed to INA, should be obligated to provide the basic loss benefits, then bear the burden of attempting to recover from the owner of the uninsured vehicle. The trial court acted properly in granting summary judgment against Allstate in favor of INA. The judgment should be affirmed, and the case should be returned to the trial court to permit a determination of: (1) whether Allstate will be permitted to recover from Judith Hippert the basic loss benefits initially paid by INA and reimbursed to INA by Allstate (assuming that this claim has been properly raised by Allstate), or (2) whether Judith Hippert will prevail on the theory that Allstate’s agent failed to list the Dodge pickup on the existing policy. Although the majority believes that this result will cause excess litigation, I fail to see how this result will cause any more litigation than the majority’s reversal, which will return the case for further action by INA against Judith Hippert, who will in turn pursue her claim against Allstate under the agency theory.

I respectfully dissent.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S.Secs. 1009.101-701, repealed Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984. (Hereinafter, the prefix "1009” will be eliminated when citing to section numbers in the textual material, e.g., section 101, not section 1009.101).

      . The Statutory Construction Act of 1972, 1 Pa.C.S.A.Sec. 1921(a) states:
      (a) the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

      . 1 Pa.C.S.A.Sec. 1922(1).

      . The potential for abuse is staggering. Should this result, there is nothing that would prohibit a family with three, four or more vehicles from insuring one at the most favorable rate and then extend coverage by virtue of this Court’s ruling. We cannot imagine that the legislature intended the No-fault Act impose such a heavy burden on the insurance companies.

      . Section 104(a) in pertinent part provides:
      Every owner of a motor vehicle which is registered or which is operated in this Commonwealth by the owner or with his permission, shall continuously provide security covering such motor vehicle while such vehicle is either present or registered in the Commonwealth. Security shall be provided for the payment of basic loss benefits ...

      . Section 301(a)(1) of the Act, in pertinent part, clearly provides for the burden to fall on Judith:

        An owner of a motor vehicle involved in an accident remains liable if, at the time of the accident, the vehicle was not a secured vehicle.
      Any action taken by this Court cannot conflict with this provision.

      . Section 501 provides:
      The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this Act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator's license.

      . Section 601. OPERATION OF A VEHICLE WITHOUT SECURITY.
      Any owner of a passenger vehicle, for which the existence of security for basic loss benefits and tort liability insurance is a requirement for its legal operation upon the public highways of this State, under either section 104 or 110 of this act or sections 418, 419 or 420, Act of April 29, 1959 (P.L. 58, No. 32), known as The Vehicle Code, who operates such motor vehicle or permits it to be operated upon a public highway in this State without having in full force and effect security complying with the terms of section 104 is guilty of a misdemeanor. And any other person who operates such a motor vehicle upon a public highway in this Commonwealth with the knowledge that the owner does not have such security in full force and effect is guilty of a misdemeanor. And each person convicted of a misdemeanor under the terms of this section may be fined not less than one hundred dollars ($100) or more than five hundred dollars ($500) or may be imprisoned for not more than six months or both.

      . See 40 Pa.C.S.A. Sec. 1009.104, 110.

      . See 40 Pa.C.S.A. Sec. 1009.204.

      . See 40 Pa.C.S.A. Sec. 1009.102.

      . Section 501, supra note 6.

      . Michael was Judith’s brother-in-law and had lived in her household for several months prior to the accident. Since he did not own a vehicle he was not required to carry any insurance. Hence, he was not identified by name in any insurance contract.

      . Schrager: The Pennsylvania No-fault Motor Vehicle Insurance Act Sec. 1:15.3 (1979), as cited in Occidental Fire and Casualty Insurance Company v. Nationwide Insurance Company, 24 Pa.D & C3d 276, 278 (1982), states:
      The No-fault Act generally provides that when a person is named in an insurance policy, he and his relatives are covered by that policy regardless of the vehicle they are using at the time of the accident. The Act envisions that “the security follows the person, not the vehicle.”

      . The statutory exception is found in Section 204(a)(1), pertaining to the situations in which the victim is in his employer’s vehicle. The judicially created exception encompasses the cases when a victim is driving his uninsured vehicle. It was first expounded in Walburn v. Nationwide Mutual Insurance Company, 98 Dauphin 166 (1976).


author: CIRILLO, President Judge:

text:
    511 A.2d 1371
    Jane and Marcello FESTA, v. Steven J. GREENBERG, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued April 8, 1986.
    Filed June 30, 1986.

      Brian M. Peters, Philadelphia, for appellant.
    Michael Bloom, Philadelphia, for appellees.

      Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   CIRILLO, President Judge:

Appellees initiated this action against appellant-physician asserting that the surgery he performed upon appellee-wife was done in a negligent manner and without proper consent. The trial court originally entered a compulsory non-suit in appellant-physician’s favor because appellees failed to introduce expert testimony to support either of their claims. Subsequently, the trial court granted appellees’ motions to remove nonsuit and for a new trial stating that expert testimony is not required to establish a physician’s duty to disclose information in informed consent cases. This timely appeal followed.

Appellant, Dr. Steven Greenberg, contends that the trial court erred in removing the compulsory nonsuit in an action in informed consent when: 1) appellees failed to introduce expert medical evidence identifying the actual risks associated with tubal ligation by cauterization; and 2) appellees failed to introduce expert medical evidence demonstrating that the sterilization procedure was the proximate cause of her infection, her pregnancy and the lump in her scar area. We reverse on the basis of the first issue raised by appellant; therefore, we will not address appellant’s remaining issue.

I

In March 1979, shortly after the birth of her third child, appellee, Jane Festa, contacted appellant regarding a possible sterilization operation. During this consultation, appellant discussed a number of different methods of sterilization with appellees: hysterectomy, tubal ligation, cut and tie procedure, and a vasectomy for appellee-husband. Mrs. Festa testified that she knew what a hysterectomy and vasectomy involved and that Dr. Greenberg explained the remaining procedures. According to Mrs. Festa’s testimony, Dr. Greenberg described the tubal ligation procedure as a burning process: the tube is burnt shut. The final alternative discussed was the cut and tie procedure. Dr. Greenberg informed Mrs. Festa that the instrument used to cut the tubes gave off sparks which in some instances burned vital organs. Mrs. Festa testified that this was the procedure she originally wanted; however, Dr. Greenberg advised her that the tubal ligation method was two times safer and involved a shorter hospital stay than the cut and tie procedure.

Additionally, Dr. Greenberg apprised Mrs. Festa of the failure rate for the tubal ligation, one out of seven hundred, and the cut and tie procedures, one in three hundred to three hundred and fifty. Dr. Greenberg also reported to appellees that no pregnancy resulted in any of the cases in which he had performed tubal ligations. He further reported that in those rare situations when a woman becomes pregnant after a tubal ligation the pregnancy occurs a few years after the operation because the tubes sometimes re-open.

After this discussion, Dr. Greenberg performed a routine gynecological examination upon Mrs. Festa. Upon completion of this exam, Dr. Greenberg provided Mrs. Festa with a consent form to sign. Mrs. Festa testified that she only read the first paragraph and then just glanced at the remaining paragraphs for a minute or two before signing the form.

Approximately two weeks after this consultation, Mrs. Festa entered Rolling Hill Hospital to undergo sterilization by tubal ligation. The week following the operation Mrs. Festa returned to Dr. Greenberg’s office where one of his associates examined her and discovered blood clots in her incision. The incision was drained and Mrs. Festa was given antibiotics to ward off infection. Six days later, Mrs. Festa entered Rolling Hill Hospital’s emergency room; at this time, her incision was again drained and a rubber tube inserted and sewn into place to ease the draining problem.

Mrs. Festa testified that it took her a full month to recover from the operation despite Dr. Greenberg’s assurances that she would be fine after a few days. Five months after the sterilization procedure, Mrs. Festa discovered that she was again pregnant. Additionally, she claimed that a lump the size of a nickel protruded about one-half inch at the site of her incision. Mrs. Festa stated that she still has the lump below her navel as a result of the operation.

II

The central issue with which we are presented in this appeal is whether expert medical testimony is required to establish the existence of medically technical risks, the feasibility of proposed alternative treatments and the effect of disclosure upon the patient under the circumstances. Resolution of this question necessitates a discussion of the doctrine of informed consent.

The underlying premise of this doctrine is that a physician is precluded from administering to or operating upon a mentally competent adult patient in non-emergency situations without his consent. “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” Schloendorff v. Society of N.Y. Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Judge Cardozo). See also Dooley, 2 Modern Tort Law: Liability and Litigation, § 34:49 et seq. (19); Louisell and Williams, 2 Medical Malpractice: Physicians and Related Professions, §§ 22:01 et seq. (1985). In order for the consent to be valid, the physician is duty bound to apprise the patient “of such important matters as the nature of the therapy, the seriousness of the situation, the disease and the organs involved and the potential results of the treatment.” Salis v. United States, 522 F.Supp. 989, 997 (M.D.Pa.1981) (summarizing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).

Imposition of this duty of full disclosure upon the physician is predicated upon the sentiment “that unlike the physician, the patient is untrained in medical science, and therefore depends completely on the trust and skill of his physician for the information on which he makes his decision.” Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1020 (1977) (citations omitted). While all jurisdictions agree that a physician is indeed obligated to fulfill this duty, there is significant debate over the scope of the physician’s duty and whether expert medical testimony is required to prove the standard of care. The dispute regarding the scope of the physician’s duty to disclose focuses on whether this duty should be judged by the reasonable physician/professional standard or the prudent patient standard.

Under the professional standard, the physician’s duty to disclose in a particular situation is restricted to the disclosure which the reasonable medical practitioner in the community would have made in a similar situation. The determinative factor is the standard of disclosure to which the medical community adheres for the recommended procedure. Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980) (physician’s duty to disclose risks is measured by the customary practice of physicians in the community); Moore v. Underwood Memorial Hospital, 147 N.J.Super. 252, 371 A.2d 105 (1977) (plaintiff has the burden of proving what a reasonable medical practitioner of the same school and same or similar community, under the same or similar circumstances, would have disclosed to his patient); Coleman v. Garrison, 327 A.2d 757 (Del.Super.1974) (plaintiff must establish the custom of the medical community regarding the duty to warn of risks in an informed consent action).

Those jurisdictions which adopted this professional standard of care have advanced a number of arguments to justify their choice:

(1) Only a physician can effectively estimate the psychological and physiological impacts that risk would have on a particular patient. In determining the extent of disclosure, the physician must consider the state of the patient’s health, and whether the risks involved are mere remote possibilities or real hazards which occur with appreciable regularity.
(2) A general standard of care, as required under the prudent patient rule, would require a doctor to waste unnecessary time in reviewing with the patient every possible risk, thereby interfering with the flexibility a physician needs in deciding what form of treatment is best for the patient.

Louisell and Williams, 2 Medical Malpractice: Physicians and Related Professions, § 22:06 (footnotes omitted) (emphasis provided).

Champions of the professional standard contend that while the “prudent patient” standard may allow some plaintiffs to recover more easily, it does so at the cost of good medical practice. They assert that a physician’s primary duty during consultation is the advancement of the patient’s best interests; a physician should not have to concern himself with the possibility of a lay jury, untrained in medicine, subsequently deciding that he acted improperly. Woolley v. Henderson, 418 A.2d 1123 (Me 1980); Ross v. Hodges, 234 So.2d 905 (Miss.1970).

Until the early 1970’s, the vast majority of those jurisdictions which recognized the doctrine of informed consent abided by this professional standard. However, in recent years, a growing number of jurisdictions recognized “that protection of the patient’s fundamental right of physical self-determination — the very cornerstone of the informed consent doctrine — mandates that the scope of a physician’s duty to disclose risks and alternatives be governed by the patient’s informational needs.” Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1021 (1977). Accord, Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.1972); Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982); Cross v. Trapp, 294 S.E.2d 446 (W.Va.1982); Revord v. Russell, 401 N.E.2d 763 (Ind.App.1980); Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (1974), aff'd per curiam, 85 Wash.2d 151, 530 P.2d 334 (1975).

Pennsylvania adopted the prudent patient standard in the seminal case on informed consent, Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). In Cooper, our Court held that a patient’s right to know all material facts pertaining to proposed treatment cannot be dependent upon the self-imposed standards of the medical profession. Only under the prudent patient standard is the “maximum effect [given] to the patient’s right to be the arbiter of the medical treatment he will undergo without either requiring the physician to be a mindreader into the patient’s most subjective thoughts or requiring that he disclose every risk lest he be liable for battery.” Cooper, 220 Pa.Super. at 267, 286 A.2d at 650. In determining whether a physician breached his duty to his patient to apprise him of material risks involved in a recommended medical procedure and available alternatives, the standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment. In this state, a patient’s consent to medical treatment is valid if

the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s would deem significant in making a decision to undergo the recommended treatment ... The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.

Id., 220 Pa.Superior Ct. at 267-68, 286 A.2d at 650.

Proponents of the prudent patient standard in Pennsylvania, and other jurisdictions, advance a number of theories to support rejection of the professional standard. Initially, these detractors of the reasonable physician standard claim that a custom regarding disclosure of risks and alternatives is not readily discernible in the medical community. Even if such a custom does exist, they assert that “it appears so nebulous that doctors become, in effect, vested with virtual absolute discretion.” Cobbs v. Grant, 8 Cal.3d 229, 243, 104 Cal.Rptr. 505, 514, 502 P.2d 1, 10 (1972). Secondly, these supporters of patient’s rights contend that inasmuch as a physician relies on non-medical factors, such as the emotional state of the patient, in determining what risks and alternatives should be disclosed, the medical community’s custom regarding disclosure is irrelevant since it would necessarily vary from case to case. The custom of the medical community is only germane when the case requires resolution of a purely medical or technical question. Defulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972). Lastly, adherents to the prudent patient standard posit that the expert medical testimony required under the professional standard imposes an insurmountable burden upon the petitioner in informed consent cases. Patients interested in maintaining such an action encounter great “difficult[ies] in finding a physician who would breach the ‘community of silence’ by testifying against the interest of one of his professional colleagues.” Cooper, 220 Pa.Super. at 260, 286 A.2d at 650. Accord, Sard v. Hardy, supra (possible conspiracy of silence).

This brings us to the second major area of disagreement regarding the cause of action maintained under the doctrine of informed consent: whether expert medical testimony is required to prove the standard of care. Those jurisdictions which have adopted the professional standard approach ordinarily require the petitioner in informed consent cases to offer medical testimony to establish: 1) whether a reasonable medical practitioner in the same or similar community would make the disclosure, Taber v. Riordan, 83 Ill.App.3d 900, 403 N.E.2d 1349 (1980); and 2) that the physician did not comply with the community’s standard of disclosure, Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980).

Expert testimony is viewed as a necessity under the professional standard. The determination of what information a patient needs to be informed about proposed medical treatment is considered a medical decision. Only a competent medical practitioner would be capable of establishing a physician’s duty to disclose and whether that duty was breached. Thomas v. Berrios, 348 So.2d 905 (Fla.App.1979); Rodriquez v. Jackson, 118 Ariz. 13, 574 P.2d 481 (1977).

Under the reasonable man standard, the focus is on what data the patient requires to make an intelligent decision. Therefore, jurisdictions which have adopted this standard routinely waive the expert testimony requirement in respect to the establishment of the scope of a physician’s duty to disclose. Cross v. Trapp, 294 S.E.2d 446 (W.Va.1982); Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978); Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). See also, Annot., 1973, 52 A.L.R.3d 1084; Halligan, The Standard of Disclosure by Physicians to Patients: Competing Models of Informed Consent, 41 La.L.Rev. 9 (1980); Katz, Informed Consent — A Fairy Tale? Law’s Vision, 39 U.Pitt.L.Rev. 137 (1977).

It is well-established in Pennsylvania that in informed consent cases, expert testimony is not necessary to establish the medical community’s standard of disclosure. Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971); Comment, Informed Consent in Pennsylvania — The Need for a Negligence Standard, 28 Vill.L.Rev. 149 (1982-83). The question of whether a physician disclosed risks which a reasonable man would deem material is for the trier of fact. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976). “Although we have a high regard for the professionalism of the medical community, the standard of disclosure exercised therein bears no inherent relationship to the amount of knowledge that any particular patient might require in order to make an informed choice.” Cooper, 220 Pa.Super. at 266, 286 A.2d at 650. In Cooper, this Court stated that “[t]here is no need to extend the requirement of expert testimony into areas where no technical expertise is necessary.” Id., 220 Pa.Superior Ct. at 268, 286 A.2d at 651.

Ill

In the present case, appellant is not arguing in contravention of the reasonable man standard in informed consent cases. Appellant agrees that this standard allows the aggrieved patient to present his case absent expert medical testimony establishing the physician’s standard of care. Appellant’s argument is nothing more than that Cooper and its progeny do not relieve petitioners in these cases from offering expert testimony to establish the nature of the risks of a proposed medical treatment, the frequency with which those identified risks occur, the nature of available alternative methods of treatment and the feasibility of those alternatives for the particular patient. Appellant concedes that medical testimony is not necessary to establish a patient’s informational requirements; he merely asserts that medical testimony is necessary to establish the existence of medically technical risks of which the average juror has no knowledge. We agree.

Although expert medical testimony is not mandatory to set forth the scope of a physician’s duty to disclose material risks to a patient under the reasonable man standard, we conclude that such testimony is required to establish the existence of risks in a specific medical procedure, the existence of alternative methods of treatment and the existence of risks attendant with such alternatives. In reaching this decision, we are not retreating from the line of reasoning espoused by Cooper, and the cases decided subsequent to it; rather, we are interpreting this line of cases as narrowly as they are drawn.

On the question of whether expert testimony is required to prove an action sounding in informed consent, Cooper merely rejected the need for such testimony to establish the materiality of risks. Under Cooper, materiality is determined by the reasonable man standard. Clearly, “determinations of what a reasonable man would do or consider significant within the context of a particular set of facts is standard fare for jurors, for which they need no expert assistance.” Cooper, 220 Pa.Super. at 268-69, 286 A.2d at 651 (emphasis added) (citations omitted).

Confusion reigns in this area because Cooper has been viewed as entirely dispensing with the need for expert testimony in informed consent cases; this is not the case at all. Cooper merely exempted petitioners in such cases from presenting expert testimony to establish the materiality of the risks. Such testimony is still required to establish the existence of risks in a particular medical procedure, the existence of alternative procedures and the feasibility of these alternatives in the patient’s case. Expert medical testimony is essential in this limited context because the average lay juror does not possess the requisite technical or medical knowledge to determine if the facts are true as alleged by the petitioner.

Our holding today is merely an attempt to clarify this Court’s position in respect to the need for expert testimony in informed consent cases as originally promulgated in Cooper; we find that expert testimony is necessary to establish the existence, magnitude and other relevant scientific characteristics of the risks of a recommended medical procedure and viable alternatives. This decision in no way modifies the rule in this jurisdiction that expert medical testimony is not required to establish the scope of a physician’s duty to disclose; it remains for the trier of fact to determine the materiality of these risks.

We are not the first reasonable patient jurisdiction to adopt this qualified approach to the need for expert testimony in informed consent cases. The seminal case on this approach is Sard v. Hardy, supra. In this well-reasoned decision, the Maryland Court of Appeals' determined that while neither the scope nor the breach of the physician’s duty to disclose need be established by expert medical testimony, “such expert testimony [is] required to establish the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to a patient.” Id. 379 A.2d at 1024. Accord, Cross v. Trapp, 294 S.E.2d 446 (1982); Getchell v. Mansfield, 260 Or. 174, 489 P.2d 953 (1971); Small v. Gifford Memorial Hospital, 133 Vt. 552, 349 A.2d 703 (1975). The Court’s rationale behind this decision is clear: foregoing the need for expert testimony on the question of materiality vindicates the patient’s right to determine what shall be done with his own body and when, while requiring such testimony on the question of whether certain risks exist and the probability of their occurrence insures that the trier of fact is presented with sufficient information to enable it to make a reasoned decision. See Comment, Court Disregard For the Standard of the Profession — The Legislative Response, 51 Wash.L.Rev. 167 (1975).

In Smith v. Shannon, 100 Wash.2d 26, 666 P.2d 351 (1983), the Washington Supreme Court reaffirmed its commitment to the need for expert medical testimony to establish the existence of risks and the probability of their occurrence. Accord, Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (1974), aff'd per curiam, 85 Wash.2d 151, 530 P.2d 334 (1975). Quoting Miller, the Smith Court stated that “once it has been established by expert medical testi mony that a risk existed, then the existence of the risk is the patient’s business; and it is not for the medical profession to establish a criteria [sic] for the dissemination of information to the patient based upon what doctors feel the patient should be told.” Smith, 100 Wash.2d at 30, 666 P.2d at 354 (citation omitted) (emphasis added). The Smith court set forth the determination of materiality as a 2-step process.

Initially, the scientific nature of the risk must be ascertained, i.e., the nature of the harm which may result and the probability of its occurrence. The trier of fact must then decide whether that probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment. ... While the second step of this determination of materiality clearly does not require expert testimony, the first step almost as clearly does.

Smith, 100 Wash.2d at 33, 666 P.2d at 356 (citations omitted) (emphasis added). The court reasoned that only a physician is qualified to determine whether a risk exists and the likelihood of occurrence. “Just as patients require disclosure of risks by their physicians to give an informed consent, a trier of fact requires description of risks by an expert to make an informed decision.” Id. See Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L. Rev. 628 (1970).

We are in full agreement with the decisions and rationalizations espoused in these cases. The paramount purpose of the doctrine of informed consent is to allow patients to decide for themselves, after considering all the material information provided, whether to submit to a particular medical treatment or procedure. To accomplish this goal, it is clear that the trier of fact has to be the arbiter of what constitutes a material risk for a patient. However, the trier of fact must be given information as to whether the risks as alleged by the patient actually exist and the likelihood that such risks will actually arise. Only a physician, or other qualified expert, can provide such information.

It is accepted that the lay standard is the prescribed standard in Pennsylvania by which to measure a physician’s duty to disclose the material risks inherent in a proposed medical procedure and that such a standard exempts a petitioner in informed consent cases from offering expert medical testimony regarding the physician’s duty to disclose risks. In clarifying the Cooper decision, we merely hold that expert testimony is still necessary to prove the existence of a risk, its likelihood of occurrence, and the nature of the harm involved.

Therefore, in the case sub judice, the appellees were required to produce expert testimony to establish the various types of sterilization procedures, the nature of the procedures employed to effect these methods, the failure rates for each respective method and the risk of harm to the patient in each available procedure. Absent expert testimony, appellees failed to introduce sufficient evidence to establish the elements necessary to maintain an action in informed consent. An order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Agriss v. Roadway Exp., Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). Without expert testimony on the question of what risks exist and the probability of their occurrence, the jury would be left to speculate in their attempts to reach an informed decision; this cannot be permitted. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Therefore, the trial judge properly determined at the conclusion of appellees’ case in chief that a compulsory nonsuit should be entered.

The trial court erred in subsequently removing the non-suit and granting a new trial. Accordingly, we reverse and reinstate the original order of the trial court.

      . The negligence cause of action is not in issue on this appeal. Appellees conceded that their failure to present expert medical testimony to support this claim effectively precluded maintenance of this claim on appeal.

      . The case which propelled the patient need standard to the forefront was Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.1972), cert. den. 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). In Canterbury, the Court held that whether the surgeon’s nondisclosure of potential risks relating to a specific medical procedure was reasonable was for the jury to decide. The Court recognized that it is the prerogative of the patient, not the physician, to determine the patient’s own best interests.

      . In Miller, the Court reasoned that in requiring expert medical testimony to establish the existence of risks and the probability of their occurrence it was simply applying general rules regarding expert testimony: expert medical testimony is required on only those matters "strictly involving medical science." 2 J. Wigmore, Evidence § 568 (Rev.1979).


author: BROSKY, Judge:

text:
    511 A.2d 1379
    Earl T. BOBB, Appellant, v. Eugene KRAYBILL, Individually and also in his capacity as an agent, Servant and Employee of Lancaster Newspapers, Inc., t/d/b/a the Intelligencer Journal, Frederick Cusick, Individually and also in his capacity as an Agent, Servant and Employee of Philadelphia Newspapers, Inc., t/d/b/a Philadelphia Inquirer, Philadelphia Newspapers, Inc., t/d/b/a Philadelphia Inquirer, Lancaster Newspapers, Inc., t/d/b/a Intelligencer Journal.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed July 16, 1986.
    Petition for Allowance of Appeal Denied Jan. 9, 1987.

      Spero T. Lappas, Harrisburg, for appellant.
    George C. Werner, Jr., Lancaster, for Kraybill, appellee.
    Kerry L. Adams, Williamsport, for Cusick, appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from the order granting appellees’ motions for summary judgment in this defamation action. The sole issue for our determination is whether the trial court erred in finding no genuine issue of material fact as to the truthfulness of the articles published. The trial court found that appellant did not and could not contest the substantial truth of the articles and, therefore, granted appellees’ motions for summary judgment. We agree with the trial court and, accordingly, affirm its order.

The record reveals that appellant was a marketing manager with the Pennsylvania Bureau of State Lotteries. In the course of his employment with the Bureau, appellant came into contact with Bernie Alimenti, a tobacco store owner and authorized lottery ticket sales agent.

In late December 1982, appellant told Alimenti that he needed $1,000.00 for a short term and asked if Alimenti could help. Appellant offered Alimenti an undated, personal check as collateral for what appellant intended to he a personal loan. Alimenti, fearing the loss of his lucrative lottery machine if he refused appellant’s request, was uneasy about the encounter and contacted the local police. The police, in turn, alerted agents of the Attorney General’s Office about appellant’s request. The agents outfitted Ali-menti with a recording device and a second meeting with appellant was arranged. Alimenti, now wearing the recorder, told appellant that he did not have $1,000.00 and that the only way he could accommodate appellant’s loan request was by drafting a check from his lottery “winner’s account.” Lottery agents are required to maintain two lottery bank accounts, one of which is a “float” account from which winners can be paid. Appellant was aware that as a sales agent, Alimenti could withdraw funds from the float account. The two men agreed to the transaction and Ali-menti wrote a check for $1,000.00 which they presented at a nearby bank. While cashing the check, Alimenti stated to the teller, “this man’s a winner.” Appellant took the cash and departed. Shortly thereafter, appellant was fired from his job for “misrepresentation of [his] position with the Bureau of Lotteries” in connection with the loan transaction.

Appellant did repay the $1,000.00 on January 12, 1983 when Alimenti deposited appellant’s personal check. The Attorney General’s Office declined to prosecute appellant for lack of a clearly defined prosecutable offense.

Reports of these events appeared in the February 5th, 1983 edition of the Lancaster Intelligencer Journal and the February 7th, 1983 edition of the Philadelphia Inquirer. The articles were authored by appellees Kraybill and Cusick respectively. Appellant filed the instant action in May 1983. Finding no genuine issue of material fact as to the truthfulness of the articles published, the trial court granted summary judgment and this appeal timely followed.

When reviewing an order granting summary judgment, our function is to determine whether there exist genuine issues of triable fact. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). As we stated in Harris by Harris v. Easton Publishing Co., 335 Pa.Super. 141, 152, 483 A.2d 1377, 1382-83 (1984):

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Id. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

Truth is an absolute defense to defamation in Pennsylvania. Hepps v. Philadelphia Newspaper, Inc., 506 Pa. 304, 485 A.2d 374 (1984), reversed and remanded on other grounds, - U.S. -, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); 42 Pa.C.S. § 8342. Appellees raised the defense of truthfulness in their pleadings and in their briefs in support of the motions for summary judgment. Thus, our inquiry becomes whether, in viewing the evidence relevant to a motion for summary judgment most favorably toward appellant as the non-moving party, there exists a genuine issue of material fact as to the substantial truth of the stories reported.

Since the trial court found that appellant’s issues did not contest the substantial truth of the articles, it granted the motions for summary judgment. After carefully reviewing the record and briefs submitted by the parties, we agree with the trial court’s determination.

The record shows that appellant was unable to specify anything reported that was misquoted or false. Appellant’s primary contentions were that the stories were “not printed in the proper way”; were one sided; were too detailed; and did not present the proper perspective of the situation. At his deposition, appellant’s answers were evasive when asked what specific items in the articles were in dispute. In fact, each of appellant’s contentions regarding the stories actually concern the appellees’ degree of care in publishing the stories, which question is not germane to the resolution of this appeal in light of the truthfulness of the articles. See, Hepps, supra, (whether defamatory statements are made negligently or willfully, a civil action in libel is only actionable when the statement is false).

Unable to claim that the articles contained any falsehoods, appellant’s true dispute with the appellees is based on appellant’s dissatisfaction that reports of the episode were printed at all. The record reveals that, prior to publication, appellant unsuccessfully attempted to persuade reporter Cusick not to print the story. Further, appellant’s testimony reveals that he was angered that the story was “all over the state.” When asked during his deposition why he chose not to sue the television stations that reported the story, appellant answered that the television stations did not reveal his name. Our review of the record convinces us that appellant’s real complaint is not with the substance of the articles, but with the fact that the story was printed at all.

Certainly in many news stories about issues of public concern there will be some party involved who would rather not see the story printed. However uncomfortable the publication of a story might prove to such an individual, we cannot abridge a publisher’s First Amendment rights to placate the peculiar sensitivities of a party. Thus, the courts of this Commonwealth do not grant relief to a plaintiff in a defamation action simply because he found the publication personally objectionable.

After carefully reviewing the pleadings, depositions and affidavits presented in support of the summary judgment motions, we agree with the trial court that appellant did not and could not sustain his burden of proving the statements false and that there is no possibility of a legally sustainable verdict in his favor. See, Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982). Thus, because appellant does not contest the truthfulness of the defamatory matter and the evidence in support of a summary judgment motion shows that the publication is substantially true, there is no genuine issue of material fact and summary judgment was properly granted.

Order affirmed.

      . Since truth is an absolute defense to a claim of defamation in Pennsylvania, Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984), the issue of truthfulness is dispositive of the instant appeal. Therefore, we need not consider the collateral issues raised on appeal concerning appellant’s status as a private figure or public official or the resulting standard of proof imposed on appellant in either case.

      . 42 Pa.C.S. § 8342 provides in pertinent part:
      In all civil actions for libel, the plea of justification shall be accepted as an adequate and complete defense, when it is pleaded, and proved to the satisfaction of the jury, ... that the publication is substantially true____ (emphasis added).

      . The United States Supreme Court has recently held that whether a plaintiff in a defamation action is a private or public figure, the burden of proving falsity is on the plaintiff. This decision was rendered in the case of Philadelphia Newspapers, Inc. v. Hepps, _ U.S. _, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) which reversed our own Supreme Court’s allocation of the burden of proof in defamation cases in Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984).