source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    652 A.2d 1382
    Charles EDWARDS, Appellant, v. BRANDYWINE HOSPITAL and Aimee M. Waters, Michael J. Margolies, and Richard Price Margolies, Personal Representatives of the Estate of M. Price Margolies, M.D. and M. Price Margolies Associates, Appellees, Charles EDWARDS, Appellee, v. BRANDYWINE HOSPITAL and Aimee M. Waters, Michael J. Margolies, and Richard Price Margolies, Personal Representatives of the Estate of M. Price Margolies, M.D. and M. Price Margolies Associates, Appeal of Brandywine Hospital.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1994.
    Filed Jan. 25, 1995.

      Roger E. Legg, Coatesville, for Charles Edwards.
    R. Bruce Morrison, Philadelphia, for Brandywine Hosp.
    Before McEWEN, OLSZEWSKI and JOHNSON, JJ.
   OLSZEWSKI, Judge:

In 1986, Charles Edwards was a 69-year-old retired steel worker with an artificial hip. He • arrived at the Brandywine Hospital emergency room on August 25, complaining of hip pain. The hospital admitted him, and the nursing staff installed a heparin lock on his left hand. A heparin lock is a device which allows multiple intravenous fluids to be introduced at a common point.

Mr. Edwards stayed at the hospital for five days. The heparin lock was left in place for either three or four days, in apparent violation of standards promulgated by the Pennsylvania Department of Health. The day after his discharge from the hospital, Mr. Edwards noticed a red spot on the back of his hand where the heparin lock had been. He returned to the hospital that day for physical therapy, and his therapist referred him to the emergency room. An ER physician checked Mr. Edwards’ hand, took a sample of pus for analysis, and sent him home with a prescription for oral antibiotics. The lab results came back the next day showing a staphylococcus aureus (staph) infection. The ER physician placed the lab results and diagnosis in Mr. Edwards’ chart, as required by hospital rules.

A few days later, Mr. Edwards returned to the hospital with leg pains. Somehow, his treating physicians did not notice the recent diagnosis of a staph infection in his chart. After a week, Mr. Edwards’ treating physicians ordered a second lab test, which again showed the presence of a staph infection. Now Mr. Edwards’ doctors put him on intravenous antibiotics. By the end of September Mr. Edwards’ doctors believed they had wiped out the infection, and discharged him. He was back again a week later with pain and a fever. This time his doctors suspected that the obviously-not-yet-defeated staph infection had spread to Mr. Edwards’ artificial hip.

Mr. Edwards stayed in the hospital for a month. He claimed he was discharged not for medical reasons, but because his Medicare hospitalization coverage was about to expire. He endured more treatment and hospitalizations over the next two years, until his doctors decided to remove his artificial hip and wipe out the staph infection with massive doses of antibiotics. Without his hip prosthesis, Mr. Edwards now needs crutches or a walker to get around.

Mr. Edwards sued the hospital and the doctors who treated him there for professional negligence. The trial court took notice of the Health Department regulation regarding catheter site changing, and ruled that the hospital’s admitted failure to move the heparin lock for at least three days constituted negligence per se. After this ruling, Mr. Edwards’ treating physicians settled, leaving only the hospital as a defendant.

At the close of Mr. Edwards’ case, the trial court granted the hospital’s motion for a directed verdict. The court held that while the negligence per se ruling established the hospital’s breach of a duty of care, Mr. Edwards could not prove causation as a matter of law. The court also held that the hospital could not be found liable under the theory of corporate negligence adopted in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). Mr. Edwards has appealed these rulings, and the hospital has taken this opportunity to cross-appeal the trial court’s negligence per se ruling, in the event that we should grant a new trial.

In reviewing a trial court’s decision to direct a verdict in favor of a defendant, we must view the evidence presented in the light most favorable to plaintiff and determine whether plaintiff failed to prove his case as a matter of law. Lattanze v. Silvestrini, 302 Pa.Super. 217, 448 A.2d 605 (1982). Because we disagree with the trial court’s analysis that Mr. Edwards failed to establish causation, we must reverse and remand for a new trial.

Before launching into a discussion of causation and the other questions presented, it would be helpful to review the theory of this case, and how it unfolded at trial. Mr. Edwards claimed that his doctors and the hospital made á number of mistakes in treating him which led to his severe bacterial infection and the removal of his hip prosthesis. The big mistake was allowing him to develop a staph infection. Mr. Edwards sought to prove that the hospital was negligent for leaving the heparin lock in his hand for too long, which allowed the staph infection to develop. Mr. Edwards also sought to prove that a series of lesser mistakes exacerbated the initial infection, leading to the ultimate result of his hip loss: the ER doctor should have prescribed intravenous antibiotics, not oral antibiotics; the diagnosis of staph infection should have been noted by his treating physicians immediately upon his return to the hospital; his treating physicians should have consulted with an infectious disease expert early on; and the hospital should not have discharged him so soon, without a prescription for more antibiotics, and without adequate follow up.

The trial court took note of the Department of Health regulation which referred to a rule that intravenous catheter sites should be changed every 48 hours. The hospital was prepared to argue that this standard was never mandatory, and by 1986 was superseded by a 72-hour standard promulgated by the Centers for Disease Control. The trial court held that the Department of Health regulation, even if outdated and superseded, was still the applicable standard. It ruled that the hospital was negligent per se in leaving the heparin lock in the same place for over 48 hours. S.R.R. at 325a-29a.

The trial court then held that while duty and breach were established as a matter of law, Mr. Edwards had failed to prove causation as a matter of law, and that none of the other alleged mistakes by the hospital could constitute negligence. The court therefore directed a verdict in favor of the hospital.

I.

We begin with the causation question. In order to focus solely on causation, we will presume arguendo that duty and breach were properly established; that is, that the trial court’s negligence per se ruling was correct. Thus, we accept as a premise that the hospital left the heparin lock in Mr. Edwards’ hand longer than it should have, and that this oversight constituted a breach of the hospital’s duty of reasonable care. Now we must determine whether the trial court correctly concluded that this breach of duty could not, as a matter of law, have caused the staph infection.

Mr. Edwards presented an array of evidence that leaving the heparin lock in his hand for too long caused the staph infection. He had the Department of Health regulation itself, which referred to the American Hospital Association’s publication, Infection Control in the Hospital (1979). In describing why intravenous catheters should be moved every 48 hours, the publication states: “The frequency of sepsis resulting from intravenous fluid therapy is directly related to the length of time a catheter is left in place.” R.R. 223a. We cannot understand how the trial court could admit this regulation as irrebuttable evidence of a 48-hour standard for moving catheter sites, but at the same time ignore the reason why catheters need to be moved so frequently: the longer a catheter stays in the same place, the greater the likelihood of infection. The standard gives no other reason for moving the site, but states quite plainly that leaving the catheter in one spot for too long causes infection. How long is too long? More than 48 hours. It makes no sense to recognize a legal duty but then ignore the sole reason for imposing that duty.

Mr. Edwards offered more than just the standard. His expert on infectious diseases testified to this same causal relationship. R.R. 155a; appellant’s brief at 18. Mr. Edwards also introduced into evidence the discharge report from his second hospitalization. This report noted that Mr. Edwards’ staph infection was thought to be secondary to an abscess at the heparin lock site, which was evident following his first discharge from the hospital. R.R. 273a.

Despite all this evidence, the trial court held that the issue of causation could not even go to the jury, but had to be decided against Mr. Edwards as a matter of law. The court reasoned that to establish legal causation, Mr. Edwards had to prove that staphylococcus bacteria entered his body at the heparin lock site at least 48 hours after the lock was installed, because it was only after 48 hours that the hospital became negligent in not moving the catheter. Trial court opinion 5/5/94 at 6-8. The court held that “[t]here is simply no evidence as to when this organism entered Mr. Edwards even if I assume that it did enter through the heparin lock site.... The jury would have had to speculate as to when the organism entered the body and this I would not permit.” Id. at 7, 8.

Causation is always a difficult concept. In cases involving interactions of what physicists would call macroscopic, rigid bodies, we can think of causation as a chain of events, one. physically entailing the next — a sort of Rube Goldberg contraption at work. But in many medical malpractice cases, we find ourselves dealing with organic reactions at a microscopic level. The kind of causation evidence the trial court expects cannot be produced. No witness could possibly testify that she saw a staphylococcus aureas bacterium crawl into Mr. Edwards’ hand through the heparin lock site on his third day in the hospital, and then multiply into the infection which spread to his artificial hip. Yet the trial court’s ruling implied that such showing was necessary to get to the jury.

Fortunately, we do not apply such a standard in medical malpractice cases. Our Supreme Court outlined the proper approach in the seminal case of Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978):

Once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in the plaintiffs position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.

Id. at 269, 392 A.2d at 1286 (emphasis added).

Applying this standard, we see that the causation issue should have gone to the jury. The trial court established the first prong, a breach of a duty, with its negligence per se ruling. Mr. Edwards then introduced evidence that leaving a catheter in the same place for too long increases the risk of infection. He also put on evidence that an infection in fact resulted from this precise negligent act and increased risk. That is all he can do to establish causation, and all Hamil requires to make a legally cognizable claim. A jury might choose to reject it, or they might find some superseding cause, but we must recognize that the claim is sound enough to go to the jury.

II.

Mr. Edwards next claims that the trial court erred in directing a verdict against him in his other allegations of negligence which contributed to his staph infection and hip loss. Specifically, Mr. Edwards claims that he presented enough evidence of negligence to establish a jury question under the theory of corporate liability recently set forth in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). Since this Court has had little opportunity to interpret Thompson, we will take a moment to examine this case.

To understand what this theory of corporate liability means, we must take a careful look at Thompson’s discussion of the evolution of hospitals’ tort liability. Hospitals once enjoyed complete tort immunity as charitable institutions. As hospitals evolved into sophisticated corporate entities which expected fees for services, their tort immunity receded. Courts first recognized that hospitals could be held liable for their employees’ negligence under respondeat superior. Later, liability was extended for non-employees who acted as a hospital’s ostensible agents. Id. at 336-40, 591 A.2d at 706-07.

Thompson recognized that hospitals are more than mere conduits through which medical professionals are brought into contact with patients. Rather, a hospital owes some nondelegable duties directly to its patients, and can be found liable for a breach of these duties independently of the negligence of its employees or ostensible agents. Hospitals have:

(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;
(2) a duty to select and retain only competent physicians;
(3) a duty to oversee all persons who practice medicine within its walls as to patient care; and
(4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients.

Id. at 339-40, 591 A.2d at 707 (citations omitted).

We agree with the trial court that on the surface, these enumerated duties might appear broad and somewhat nebulous. But when contrasted with the well-established theories of vicarious liability, we can better discern their outlines. The Thompson theory of corporate liability will not be triggered every time something goes wrong in a hospital which harms a patient. Acts of malpractice occur at the finest hospitals, and these hospitals are subject to liability under theories of respondeat superior or ostensible agency. To establish corporate negligence, a plaintiff must show more than an act of negligence by an individual for whom the hospital is responsible. Rather, Thompson requires a plaintiff to show that the hospital itself is breaching a duty and is somehow substandard. This requires evidence that the hospital knew or should have known about the breach of duty that is harming its patients. Id. at 340, 591 A.2d at 708.

Thus, a hospital is not directly liable under Thompson just because one of its employees or agents makes a mistake which constitutes malpractice. Just as regular negligence is measured by a reasonable person standard, a hospital’s corporate negligence will be measured against what a reasonable hospital under similar circumstances should have done. Thompson contemplates a kind of systemic negligence, such as where a hospital knows that one of its staff physicians is incompetent but lets that physician practice medicine anyway; or where a hospital should realize that its patients are routinely getting infected because the nursing staff is leaving catheters in the same spot for too long, yet the hospital fails to formulate, adopt or enforce any rule about moving catheters. Thompson does not propound a theory of strict liability, a theory that Mr. Edwards’ brief argues and the trial court found so disturbing. Though broadly defined, Thompson liability is still fault based. Cf. Walls v. Hazleton State General Hospital, 157 Pa.Cmwlth. 170, 175, 629 A.2d 232, 235 (1993) (expert testimony that defendant doctor was negligent did not show that defendant hospital was also negligent under Thompson ); Cafazzo v. Central Medical, 430 Pa.Super. 480, 484, 635 A.2d 151, 153 (1993) (Thompson presented a question of negligence, not strict liability).

Turning to Mr. Edwards’ specific claims, we see that most of them can amount to no more than individual acts of negligence for which the hospital, as a corporate entity, could not be held directly liable.

Mr. Edwards’ first Thompson claim is that the ER doctor who examined his hand should have immediately put him on intravenous antibiotics instead of just prescribing oral antibiotics. The trial court held that such a course of treatment “would probably be overkill in the majority of cases” and that the hospital in any event could not be charged with actual or constructive notice of such an error. Trial court opinion at 16, 17. We need not express any opinion on the quality of the ER doctor’s treatment of Mr. Edwards. We simply agree with the trial court that even if the ER doctor was negligent, Mr. Edwards introduced no evidence that the hospital as an entity knew or should have known about this mistake, or that a reasonable hospital would have intercepted and corrected it.

The second Thompson claim is that the hospital’s laboratory notification procedure was deficient, because Mr. Edwards’ personal physicians treated him for a week during his second hospitalization without noticing the lab report which indicated a staph infection. Again, Mr. Edwards may have a claim against his treating physicians for not reading his chart when he came in the second time. But the hospital did have a notification procedure in place: the ER doctor put the lab report in Mr. Edwards’ chart, where it should have been noticed. Mr. Edwards has not provided any evidence that a reasonable hospital would require its ER staff or lab technicians to personally notify every patient’s treating physician of every test result, even when the patient has been discharged.

Mr. Edwards next claims that the hospital was deficient for adopting a rule allowing its physicians complete discretion in deciding when to consult with experts. R.R. 246a-47a. If Mr. Edwards’ treating physician should have consulted with an infectious disease expert earlier in his case, then his treating physician may have been negligent. But to make out a viable Thompson claim, Mr. Edwards would have to prove that the hospital knew or should have known that his doctors were not seeking expert advice when they should have.

The discharge claim is similar. Mr. Edwards may have been able to prove that his physicians discharged him prematurely. He may have been able to convince a jury that he was discharged because his medicare hospitalization coverage was exhausted. But the decision to discharge Mr. Edwards was made by a single physician, not the hospital as a corporate entity. R.R. 271a. Thus, the hospital cannot be held liable for a discharge error absent proof that it knew that Mr. Edwards’ discharge was premature, or that its physicians were regularly making bad discharge decisions.

The only properly developed Thompson claim concerned the hospital’s rule for moving intravenous catheters. Mr. Edwards introduced evidence that a 48-hour rule was appropriate, but the hospital had adopted a different rule allowing catheters to be left in place for as long as 72 hours. R.R. 241a. This situation implicates not just an individual mistake, but the hospital’s “duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients.” Thompson, supra at 339-40, 591 A.2d at 707. If Mr. Edwards could prove that the 72-hour rule was inadequate, that the hospital should have known better, and that following this rule caused him harm, then he has made out a proper Thompson claim. The trial court apparently acknowledged that its negligence per se ruling (recognizing the 48-hour standard as a Department of Health regulation) constituted negligence on the part of the hospital itself. The trial court then fell back on its causation ruling to dismiss this claim. Opinion, 5/5/94 at 20-21.

This particular claim helps to illustrate the difference between individual negligence and corporate negligence. If Mr. Edwards’ nurse should have known to change the heparin lock site after 48 hours but failed to, then Mr. Edwards could sue the hospital for this individual’s negligent act under respondeat superior. If the hospital itself (through its official committee on infection control) adopts a substandard rule for changing intravenous catheter sites, then it may be liable in its corporate capacity. A nurse following hospital rules cannot be faulted, but the hospital can if it knew or should have known that its catheter rule was inadequate. Our above causation analysis applies to both theories of liability. Thus, we must hold that the trial court erred in directing a verdict on this claim.

III.

This finally brings us to the issue which the hospital has prudently raised in its cross-appeal: did the trial court err in holding that leaving the heparin lock in the same spot for over 48 hours constituted negligence per se?

The trial court arrived at this ruling by examining a Pennsylvania Department of Health regulation:

(a) A multidisciplinary committee made up of representatives of the medical staff, the administration, the microbiology laboratory, and the nursing staff shall establish effective measures for the control and prevention of infections.
(b) The multidisciplinary committee described in subsection (a) shall do the following:
(1) Develop written standards for hospital sanitation and medical asepsis. Copies of the standards shall be made available to all appropriate personnel. Adequate standards should comply with those described in Infection Control in the Hospital, published by the American Hospital Association, Chicago, Illinois.

28 Pa.Code § 146.1 (emphasis added); R.R. 222a. Page 166 of Infection Control states that intravenous catheter sets should be changed and moved to a different site every 48 hours. R.R. 222a-23a.

The hospital was prepared to argue at trial that Infection Control in the Hospital (1979) was an outdated publication, and that the 48-hour standard had been superseded by a 72-hour standard promulgated by the Centers for Disease Control. The trial court ruled that even if the 48-hour standard was outdated, the Pennsylvania Department of Health expressly adopted it by reference in its regulation, so the hospital had to follow the 48-hour rule until the Department got around to changing it. S.R.R. at 325a-29a.

We see no need to determine whether the 48-hour standard was current or outdated, because the regulation only referenced the standard, and did not require its adoption. The regulation merely states that whatever standards a hospital’s infection committee chooses to adopt should be in line with Infection Control. The regulation did not require Brandywine Hospital to follow in lock step with the 48-hour rule, so its decision to adopt a 72-hour rule is not necessarily negligent. We do not express any opinion about what the correct standard should be, or whether the hospital’s actions were negligent. We merely hold that the hospital’s failure to move Mr. Edwards’ heparin lock after 48 hours did not constitute negligence per se.

Mr. Edwards attempts to characterize the 48-hour rule as mandatory by arguing that the word “should” is the past tense of word “shall,” and since by principles of statutory construction the past tense includes the future tense, “ ‘should’ equals ‘shall’.” Appellant’s reply brief at 8-9. This argument is grammatically unpersuasive. In statutory or regulatory language, “shall” and “should” are modal auxiliaries which are used in conjunction -with other verbs to express imperative and aspirational conditions, respectively. See, e.g. Rules of Professional Conduct, Scope, 42 Pa.C.S.A. The regulation’s alternating use of “shall” and “should” clearly show the Health Department’s appreciation of the difference between the mandatory and the aspirational.

To sum up, we hold: the trial court improperly directed a verdict against Mr. Edwards for failing to establish causation; the trial court correctly directed verdicts on most of Mr. Edwards’ Thompson claims; however, the claim regarding the hospital’s 72-hour rule properly implicates the hospital’s corporate liability under Thompson and should not have been dismissed, and; the trial court’s negligence per se ruling was in error. We therefore reverse and remand for a new trial.

Order reversed and remanded for a new trial. Jurisdiction relinquished.

      . 28 Pa.Code § 146.1. The regulation requires hospitals to develop written standards, regarding such antiseptic practices as changing intravenous catheter sites. The regulation states that these standards should comply with those described in the American Hospital Association’s publication entitled Infection Control in the Hospital (1979), which recommends that intravenous catheter sites be changed every 48 hours in order to avoid infection. The longer the catheter remains in the same site, the greater the risk of infection. Id. at 166; R.R. 222a. Mr. Edwards testified that the heparin lock stayed in his hand for four days; his hospital records indicate that it was changed after three days.

      . Indeed, the trial court cited the Thompson dissent with approval, and opined that these nebulous duties were "nothing more than job security for the plaintiff's bar which will further clog the appellate and trial courts while we try to divine Justice Zappala’s intent.” Trial court opinion, 5/5/94 at 14, 16. While we can appreciate the trial court’s difficulties with Thompson, we must keep in mind that lower courts are bound to try to figure out what the duties mean and apply them, rather than dismiss them or distinguish them away.

      . Mr. Edwards does not argue on appeal that any of these claims should have gone to the jury on theories of respondeat superior or ostensible agency, so we express no opinion on these questions.


author: CIRILLO, Judge:

text:
    653 A.2d 1
    Luis OLMO and Antonio Disla v. Pedro MATOS and Magdalia Matos, h/w. Luis OLMO and Antonio Disla v. REALTY WORLD-CARBERRY & HAAS, INC. Appeal of Pedro MATOS and Magdalia Matos.
    Superior Court of Pennsylvania.
    Agreed Oct. 20, 1994.
    Filed Dec. 2, 1994.
    Reargument Denied Feb. 9, 1995.

      Jay Meyers, Philadelphia, for appellants.
    Mark D. Mungello, Clementown, NJ, for Olmo, appellees.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying appellants Pedro and Magdalia Matos’ post-trial motions. We affirm.

On July 15, 1988, appellants Pedro and Magdalia Matos (the Sellers) executed an Agreement of Sale (the Agreement) with Luis Olmo and Antonio Disla (the Buyers) for property located at 1840 South 5th Street, Philadelphia. The purchase price of the property and buildings situated thereon was $40,000.00. On the date of execution, Buyers paid to Sellers a deposit in the amount of $4,000.00, to be held in an interest bearing escrow account with Realty World-Carberry and Haas, Inc. (the Realtor). The Agreement stated that time was of the essence, and, particularly, that settlement was to be made on or before October . 14, 1988. On or about August 2, 1988, Buyers made a payment to Sellers personally in the amount of $20,000.00 on accoúnt of the purchase price.

Via an oral lease between Buyers and Sellers, Buyers were permitted to occupy the subject premises prior to settlement in order to commence the operation of a general/food store. In return, Buyers were required to make rental payments to the Sellers in the amount of $350.00 per month.

The parties did not complete the sale of the property pursuant to the terms of the Agreement, and Buyers filed separate actions against Sellers and Realtor in the Court of Common Pleas of Philadelphia County, seeking to recover the $4,000.00 deposit held in escrow by Realtor, and the $20,000.00 paid on account of the purchase price to Sellers, respectively. Sellers filed a counterclaim for compensation for breach of the Agreement, and damages caused to the property while it was in possession of Buyers pursuant to the oral lease agreement. The two matters were consolidated for purposes of trial.

A two-day bench trial was held before the Honorable John J. Chiovero. With respect to the monies tendered by Buyers, Judge Chiovero awarded $20,000.00 to Buyers, and $4,000.00 to Sellers. With respect to Sellers’ counterclaim for damages, Judge Chiovero awarded Sellers $7,357.63. In sum, Judge Chiovero’s order required Sellers to refund $12,642.37 to Buyers, approximately one-half the amount Buyers tendered to Sellers. Sellers filed post-trial motions, which were denied. This timely appeal followed. On appeal, Sellers present four issues for our consideration:

(1) Where the buyers fail to complete the purchase by failing to pay in the money required, may the sellers retain the deposits as liquidated damages?
(2) Where the [buyers] fail[ ] to appear in Court, are they entitled to an award?
(3) May the [buyers] assign their interest in the real estate and agreement of sale to one of their wives?
(4) Did the [sellers] establish the damage done by [buyers] and the loss of rents incurred?

Initially, we note our standard of review in this case. The role of an appellate court in reviewing the trial court’s final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law; findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992); Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991); Porter v. Kalas, 409 Pa.Super. 159, 597 A.2d 709 (1991). When this court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Short v. Metropolitan Life Ins. Co., 339 Pa.Super. 124, 488 A.2d 341 (1985).

Generally, there are three remedies available to a seller when a buyer defaults under an agreement of sale for real property. Bafile v. Borough of Muncy, 527 Pa. 25, 30, 588 A.2d 462, 464 (1991) (citing Trachtenburg v. Sibarco Stations, Inc., 477 Pa. 517, 384 A.2d 1209 (1978)). First, a seller can sue for damages, measured by the contract price minus the fair market value at the time of the breach, less any payments already tendered. Second, a seller may sue for specific performance of a contract, provided that the seller can demonstrate that without this equitable relief he or she will not be in the same position as if the buyer had not breached the contract. Third, a seller can sue for the purchase price of the property as stated in the agreement and other damages, conditioned upon the transfer of the property. Id.

Paragraph 14 of the Agreement is entitled DEFAULT-TIME OF THE ESSENCE, and provides in pertinent part:

Should the Buyer:

(a) Fail to make any additional payments as specified in paragraph #3, or
# * 5jC * # * then in such case, all deposit money and other sums paid by the Buyer on account of the purchase pnce, whether required by the agreement or not, may be retained by the Seller:
(1) On account of the purchase, or
(2) As monies to be applied to the Seller’s damages, or
(3) As liquidated damages for such breach,
as the Seller may elect, and in the event that the Seller elects to retain the monies as liquidated damages ..., the Seller shall be released from all liability or obligations and this agreement shall be NULL AND VOID and all copies shall be returned to the Seller’s agent for cancellation,

(emphasis added). For reasons that are not readily apparent, Buyers failed to tender the balance of the purchase price on the date scheduled for settlement. The Sellers retained the amounts already tendered, $4,000.00 and $20,000.00, as liquidated damages.

Traditionally, a seller may elect to retain deposit money as liquidated damages pursuant to a contractual stipulation, as did Seller in this case, insofar as the amount retained was the sum agreed upon. Tudesco v. Wilson, 163 Pa.Super. 352, 60 A.2d 388 (1948). In fact, “ ‘[n]o rule in respect to the contract (for the sale of real estate) is better settled ... than this: that the party who has advanced money, or done an act in part performance of the agreement, and then stopped short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done.’ ” Sanders v. Brock, 230 Pa. 609, 614, 79 A. 772, 773 (1911) (quoting Hansbrough v. Peck, 72 U.S. (5 Wall.) 497, 506, 18 L.Ed. 520 (1866)).

A liquidated damages clause is not enforceable, however, where such enforcement would amount to a penalty. See, e.g., Laughlin v. Baltalden, Inc., 191 Pa.Super. 611, 159 A.2d 26 (1960); Kraft v. Michael, 166 Pa.Super. 57, 70 A.2d 424 (1950). Whether a provision for the retention of cash payments amounts to a penalty must be determined from the language of the contract, the intentions of the parties, the subject of the contract and its surroundings, the ease or difficulty in measuring the amount of damages, and the sum stipulated. Laughlin, 191 Pa.Super. at 618, 159 A.2d at 29; Kraft, 166 Pa.Super. at 58-60, 70 A.2d at 425-26.

Here, the Agreement provided that, in the event of a default, the Seller may retain as liquidated damages “all deposit money and other sums paid by the Buyer on account of the purchase price.” As stipulated, Buyers paid the initial deposit in the amount of $4,000.00 at the execution of the Agreement. Shortly thereafter, Buyers tendered to Sellers $20,000.00 in cash, on account of the purchase price. It would be unreasonable and unconscionable to conclude that the parties intended the whole amount tendered, sixty percent of the total purchase price, to be retained as liquidated damages in the event of default: Cf. Laughlin, supra, 191 Pa.Super. at 618, 159 A.2d at 29 (holding that retention of deposit amounting to nine percent of purchase price is not a penalty); Kraft, supra, 166 Pa.Super. 57, 70 A.2d 424 (holding that retention of deposit and payment amounting to ten percent of purchase price is not a penalty). We find, therefore, that the trial court did not err or abuse its discretion in ordering Sellers to return the unused portion of the $20,000.00 payment to Buyers. Stahli, supra, 412 Pa.Super. 281, 603 A.2d 583.

Next, Sellers contend that Buyers failed to appear in court and improperly assigned, their interests to Rose Olmo, wife of Luis Olmo. We disagree.

Although the Buyers commenced the underlying action(s) in their names, Rule 2004 of the Pennsylvania Rules of Civil Procedure permits a plaintiff to transfer his or her interest therein to another, and continue the action in the name of the original parties. Pa.R.C.P. 2004. Here, both Buyers assigned their respective interests in this case to Rose Olmo via a written assignment, which was notarized and filed with the Prothonotary of Philadelphia County. These actions amount to an “equitable assignment” of the Buyers’ causes of action.

An “equitable assignment” is any order, writing, or act by the assignor which makes an absolute appropriation of a chose in action or fund to the assignee’s use with the intention to transfer a present interest, though not amounting to a legal assignment. In re Furman’s Estate, 358 Pa. 187, 56 A.2d 86 (1948). Because of their unavailability, the Buyers chose Rose Olmo to stand in their stead. Contrary to Sellers’ beliefs and contentions, consideration for such an assignment is not necessary, because a chose in action may be the subject of a gift. See Ertel v. McCloskey, 167 Pa.Super. 120, 74 A.2d 652 (1950).

Finally, in the “Statement of Questions Involved” portion of their brief, Sellers claim that the damages awarded on their counterclaim are inadequate. Sellers, however, completely fail to develop this argument in the “Argument” portion of their brief. Sellers fail to set forth the relevant facts and any relevant authority in support of their last claim. As such, Sellers have waived their last issue. Pa.R.A.P. 2119(b). See also Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989); Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Curson v. West Conshohocken Mun. Auth., 148 Pa.Commw. 386, 611 A.2d 775 (1992).

Order affirmed.

      . This fact is evidenced by a receipt dated August 2, 1988, and signed by one of the Sellers, Pedro Matos.

      . Judge Chiovero based this award on the following:
      $5,000.00 - lost rental income
      + $2,357.63 - stipulated amount of materials purchased _ by Sellers
      $7,357.63

      . Although paragraph 3 of the Agreement reads that $36,000.00 was to be paid on the date of settlement, this figure clearly does not reflect the
        $20,000.00 already tendered by Buyers to Sellers on account of the purchase price.

      . As noted above, the net result of the trial court’s awards amounted to a judgment in favor of Buyers in the amount of $12,642.37: $20,000.00 (amount tendered to Sellers) less $7,357.63 (amount awarded to Sellers on their counterclaim for damages and loss of rental income). Via a separate order, Realtor was ordered to relinquish the $4,000.00 being held in escrow to Buyers to partially satisfy the judgment against Sellers.


author: HESTER, Judge:

text:
    653 A.2d 5
    Sarah T. HARRITY, Appellant v. MEDICAL COLLEGE OF PENNSYLVANIA HOSPITAL, Ellen C. Maitin, M.D., Richard C. Smith, M.D., Medical College of Philadelphia Orthopedic Associates. Sarah T. HARRITY, Appellant v. Anthony J. PALMACCIO, Jr., M.D., Individually, Randall N. Smith, M.D., Individually t/a Palmaccio and Smith Associates.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed Dec. 8, 1994.
    Reargument Denied Feb. 9, 1995.

      Joseph J. Schafle, Jr., Philadelphia, for appellant.
    Charles B. Burr, II, Philadelphia, for appellees (at 2606).
    Francis McGovern, Plymouth Meeting, for appellees (at 2607).
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

This is a consolidated appeal involving summary judgment entered in two separate civil actions based upon the finding that appellant, Sarah T. Harrity, had released all the defendants from liability. We reverse and remand.

The relevant facts follow. On June 22, 1986, appellant fell at the Claridge Hotel in Atlantic City, New Jersey, and fractured her wrist. She subsequently instituted an action in federal court against Claridge Hotel for her injuries (“Claridge action”).

On June 21, 1989, appellant instituted an action at June Term, 1988, No. 3219 in the civil division of the Court of Common Pleas of Philadelphia County against Doctors Anthony J. Palmaccio, Jr., and Randall N. Smith, and Palmaccio & Smith Associates (“Palmaccio action”).

We summarize the allegations contained in that complaint. On June 23, 1986, appellant sought treatment with Dr. Palmaccio for the wrist fracture. The next day, Dr. Palmaccio placed a cast over the fracture, and appellant immediately began to suffer severe pain and numbness, of which she informed Dr. Palmaccio on at least three occasions. As a result of his medical malpractice in regard to treatment rendered including improperly setting the fracture and misdiagnosing its extent, appellant sustained permanent injury to her left arm, wrist, and hand. She now suffers from carpal tunnel syndrome, restricted range of motion, persistent pain, numbness, and reduced strength and function. Appellant has undergone four separate surgeries to repair the condition.

On October 2, 1989, appellant instituted an action at September Term, 1989, No. 5609 in the civil division of the Court of Common Pleas of Philadelphia County against The Medical College of Pennsylvania Hospital, The Medical College of Pennsylvania Orthopedic Associates, and Doctors Ellen C. Maitin and Richard Smith (“Maitin action”). In this lawsuit, appellant seeks recovery for damages caused by an allegedly negligent surgery performed on her wrist by Dr. Maitin on December 8, 1986. The record indicates that appellant retained an expert witness with regard to the Palmaccio action, and the expert opined that some of the permanent injuries to the wrist were exacerbated or caused by the surgery performed by Dr. Maitin. Hence, appellant instituted the Maitin action.

On February 13, 1990, appellant executed a release in the Claridge action. In this release, appellant released Claridge Hotel and any other person or corporation from all actions or claims arising out of an accident which occurred June 22, 1986 “and for which suit was brought in the United States District Court for the Eastern District of Pennsylvania at Civil Action No. 88-4913, styled: Sarah T. Harrity vs. Claridge at Park Place, Inc.____” (emphasis added).

On January 3, 1992, the defendants in the Palmaccio action filed a request for summary judgment, contending that the release executed in the Claridge action operated to release them. On February 19, 1992, Judge Albert W. Sheppard, Jr., granted summary judgment to the Palmaccio defendants' based on the release. Appellant petitioned for reconsideration, and on March 19, 1992, Judge Sheppard vacated his own February 19, 1992 order “pending reconsideration” and determined that the “matter may be submitted to any motions court judge.” Trial court order, 3/19/92, at 1. On April 16, 1992, due to the following described events in the Maitin action, Judge William J. Manfredi issued an order denying summary judgment to the Palmaccio defendants based upon the release. On May 12, 1993, the Palmaccio action was consolidated with the Maitin action for purposes of discovery. The Palmaccio defendants presented a second motion for summary judgment, again based solely upon the language of the release, and Judge Sandra Mazur Moss entered an order granting summary judgment to the Palmaccio defendants. A timely appeal in that action followed.

In the Maitin action, the following occurred. On January 17,1991, the Maitin defendants filed a motion for judgment on the pleadings, arguing that the release in the Claridge action operated to release them. On March 18, 1991, Judge Samuel M. Lehrer denied the motion for judgment on the pleadings, concluding that the release language was “not unambiguous.” Trial court order, 3/18/91, at 1. The Maitin defendants filed a motion for reconsideration. On May 15, 1991, Judge Lehrer denied the Maitin defendants’ motion for reconsideration of his March 18, 1991 order.

On December 17, 1991, the defendants in the Maitin action filed a second motion for reconsideration, which relies upon an allegedly controlling Superior Court decision, Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 598 A.2d 1296 (1991). This second motion for reconsideration was denied by Judge Lehrer on February 24, 1992.

On March 6, 1992, the Maitin defendants filed yet another motion, this time for summary judgment, again based on the release. The motion for summary judgment then was denied by Judge Manfredi on April 16, 1992. Judge Manfredi also issued an order denying the Maitin defendants permission to file an interlocutory appeal from the April 16, 1992 order.

The next document contained in the record is an order issued on July 6, 1993, by Judge Moss granting summary judgment to the Maitin defendants. The text of that July 6, 1993 order is as follows:

AND NOW, this 6th day of July, 1993, upon consideration of the Motions of all Defendants for Summary Judgment, Plaintiffs response thereto, and Oral Argument had thereon, be it and it hereby is
ORDERED
that Summary Judgment is granted in favor of all Defendants and against Plaintiff on the authority of Dublin vs. Shuster, [410] Pa.Super. [1], 598 A.2d 296 [1296] (1991), Buttermore vs. Aliquippa Hospital, [522] Pa. [325], 561 A.2d 733 (1989) and Smith vs. Thomas Jefferson University Hospital, [424] Pa.Super. [41], [621] A.2d [1030] (464 PHL 92; March 16, 1993).

A timely appeal in the Maitin action followed.

Initially, we discuss whether Judge Moss had the power to overrule the interlocutory orders entered by other judges of the same court in the same case. Our Supreme Court admonished in Yudacufski v. Commonwealth of Pennsylvania Department of Transportation, 499 Pa. 605, 454 A.2d 923, 926 (1982), that “absent the most compelling circumstances, a judge should follow the decision of a colleague on the same court when based on the same set of facts.” The rule is applied strictly when a second order overrules an interlocutory order issued in the same action. “As a general rule it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by a judge of the same court in the same case.” Turner v. Kohl, 420 Pa.Super. 507, 509, 617 A.2d 20, 21 (1992), quoting Reed v. Reed, 354 Pa.Super. 284, 288, 511 A.2d 874, 876 (1986). Where a motion has been presented and decided and where no new facts are presented in a motion seeking the same relief, the first order should be followed based on considerations of judicial economy and efficiency. Id. Equally important, however, is that the rule prevents forum shopping; if the rule were not in place, the same issue could be raised again and again before different judges of the same court until the litigant finds a judge sympathetic to his position. Id.

This issue was discussed in Golden v. Dion & Rosenau, 410 Pa.Super. 506, 600 A.2d 568 (1991), where preliminary objections were denied by a trial judge, and another trial judge of the same court granted the preliminary objections after the defendants requested reconsideration. The second trial judge had granted similar preliminary objections in two other actions and then based its decision to reconsider the decision of the first trial judge on the fact that the cases all should be treated consistently.

We reversed, noting that the prevailing party, who had been unsuccessful before one judge, had been able to convince another judge on the same court that the relief should be granted. We held, “That is not how our system of justice is intended to operate. It is a well-recognized principle that ‘judges of coordinate jurisdictions sitting in the same court and in the same case should not overrule the decisions of each other.’ Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 831 (1989).” Id., 410 Pa.Super. at 510, 600 A.2d at 570. We ruled that once an interlocutory order has been entered, the party in whose favor the decision was rendered must be permitted to rely upon it, stating:

To allow the opposing party to continue to attack that decision by seeking the same relief from a different judge, as if the order were somehow appealable within the trial court system, is not fair to the successful party. The proper avenue of redress for the opposing party is to wait until it can appeal the allegedly objectionable ruling once a final appealable order has been entered in the case.

Id., 410 Pa.Super. at 511, 600 A.2d at 570-71.

Herein, the defendants in the Maitin case continued to petition to have the release construed to release them. This was decided adversely to the Maitin defendants four times and by two different judges of the Court of Common Pleas of Philadelphia' County. There is no question that Judge Moss had before her the same set of facts which were before Judges Lehrer and Manfredi. The language in the release did not change, and no affidavits were filed by the moving parties when the new motion was presented to Judge Moss. Without new evidence and as discussed in more detail infra, based upon the same case law, Judge Moss overruled Judge Manfredi’s decision in the Palmaccio action and then granted judgment to the defendants in the Maitin action based on her disposition of the Palmaccio action. This was improper. Turner v. Kohl, supra, 420 Pa.Super. 507, 617 A.2d 20; Golden v. Dion & Rosenau, supra, 410 Pa.Super. 506, 600 A.2d 568. In addition, Judge Lehrer stated clearly that he refused the grant of judgment to the Maitin defendants based upon the release because the release was not unambiguous. Judge Lehrer’s decision in the Maitin action was reaffirmed on three separate occasions; the last time by Judge Manfredi. Judge Lehrer’s decision also was used as the basis for Judge Manfredi’s denial of summary judgment in the Palmaccio action.

Appellees counter that the case of Smith v. Thomas Jefferson University Hospital, 424 Pa.Super. 41, 621 A.2d 1030 (1993), represented new, controlling case law authorizing reconsideration and vacation of the previous orders. Our examination of the decision in Smith establishes that it does not in any way extend established case law in this area. Smith is nothing more than the continued application of the case law brought to the attention of, and rejected by, Judge Lehrer.

Smith applies the decisions rendered in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), and Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 598 A.2d 1296 (1991). Buttermore was used by all appellees in their first motions asking that the release be applied to them. Dublin was used as a basis for the second petition for reconsideration of the denial of judgment on the pleadings in the Maitin action.

We examine whether Smith represents a significant development in this area of the law. In Buttermore, the plaintiff was involved in an automobile accident on December 3, 1981, suffering cuts on his head and a broken neck. He executed a general release, without the benefit of a lawyer, in favor of the driver of the other automobile involved in the accident. He subsequently initiated suit against the medical providers who had treated his injuries and who argued that the release applied to them. The plaintiff argued that it was not his intent to release the medical providers; however, since the release clearly released all entities from liability for any injuries arising from the automobile accident and since there was no allegation of fraud, accident or mutual mistake as to the scope of the release, the Supreme Court held that it applied to the medical providers even though the providers were not specifically named therein.

Dublin applied the holding of Buttermore. In Dublin, plaintiff was involved in a bicycle accident and executed a general release in favor of the driver of the vehicle. Minor-plaintiff, through his parents, subsequently instituted a medical malpractice action against the medical providers who had treated his injuries. We held that Buttermore was controlling despite the fact that the release had been negotiated by the parents of the minor plaintiff and despite the fact that the subsequent medical malpractice represented a distinct tort, not discussed in the release.

In Smith, plaintiffs decedent was injured in an automobile accident, and plaintiff executed a general release in favor of the driver of the automobile. Applying the release, the trial court dismissed the action brought against the medical providers. We affirmed. The appellant, in Smith presented the same argument as the plaintiff in Buttermore, i.e., she never “intended to release” the medical providers. Smith v. Thomas Jefferson University Hospital, supra, 424 Pa.Super. at 44, 621 A.2d at 1031. Although the appellant in Smith also contended that both parties were mutually mistaken as to the scope of the release, the only evidence as to this issue was that she had not intended to release anyone other than the first tortfeasor. We, therefore, held the appellant had failed to demonstrate the existence of mutual mistake. Smith thus did not clarify Buttermore in any manner, as suggested by appellees. It contains no new law. The plaintiff in Smith then argued that the trial court improperly dismissed the action against the medical providers since that action rested upon a separate and distinct tort. We stated, “This same argument, however, was advanced in a case similar to the one at bar and rejected by this court.... Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 598 A.2d 1296 (1991)....” Id. at 46, 621 A.2d at 1032.

Where a new case is merely an application or reaffirmation of previous case law, the new case may not provide a basis upon which a judge of concurrent jurisdiction may overrule the decision of his colleague rendered in the same action. Turner v. Kohl, supra, 420 Pa.Super. 507, 617 A.2d 20. The Smith case does not clarify or overrule existing case law. Compare Vincent v. Fuller Co., 400 Pa.Super. 108, 582 A.2d 1367 (1990), rev’d on other grounds, 532 Pa. 547, 616 A.2d 969 (1992) (since our Supreme Court had issued two cases which clarified law, judge was permitted to reconsider interlocutory order of another judge entered in the same action). As Dublin and Smith merely applied previous case law, there was no basis upon which Judge Moss should have overruled her colleague. Turner v. Kohl, supra, 420 Pa.Super. 507, 617 A.2d 20.

In addition, we believe that Judge Moss’s decision is in error. Preliminarily, we note that our scope of review from a grant of summary judgment is plenary. See Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224 (1994); Mellon v. Barre-National Drug Co., 431 Pa.Super. 175, 636 A.2d 187 (1993); American States Insurance Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 628 A.2d 880 (1993). Now, we examine the body of the release:

KNOW ALL MEN BY THESE PRESENTS that Sarah T. Harrity, (hereinafter referred to as Releasor) for and in consideration of the sum of six hundred dollars ($600.00) in hand paid does hereby for herself and her administrators, successors and assigns, remise, release, acquit and forever discharge Claridge Hotel and Casino, their heirs, executors, administrators and assigns as well as their insurance carriers, and/or any other person, firms, corporations or entities (Releasees) of and from all, and all manner of, actions and causes of actions, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or equity arising out of an accident which occurred June 22, 1986 and for which suit was brought in the United States District Court for the Eastern District of Pennsylvania at Civil Action No. 88-4913, styled: Sarah T. Harrity vs. Claridge at Park Place, Inc., which against the releases, Sarah Harrity ever had, now has, for, or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date of these presents.

In construing the release, we are guided by the following law. A release is interpreted according to general contract principles. Flatley by Flatley v. Penman, 429 Pa.Super. 517, 632 A.2d 1342 (1993); see also Vaughn v. Didizian, 436 Pa.Super. 436, 648 A.2d 38 (1994).

When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties’ understanding. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992) (en banc). The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). When the terms of a written contract are clear, this Court will not re-write it to give it a construction in conflict with the accepted and plain meaning of the language used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). Conversely, when the language is ambiguous and the intention of the parties cannot be reasonably ascertained from the language of the writing alone, the parol evidence rule does not apply to the admission of oral testimony to show both the intent of the parties and the circumstances attending the execution of the contract. Dewitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984).

Acme Markets, Inc. v. Federal Armored Express, Inc., 437 Pa.Super. 41, 45-46, 648 A.2d 1218, 1220-21 (1994) quoting Creeks v. Creeks, 422 Pa.Super. 432, 435, 619 A.2d 754, 756 (1993).

Furthermore, a written contract must be construed as a whole and the parties’ intentions must be ascertained from the entire instrument; effect must be given to each part of a contract. Wrenfield Homeowners Ass’n, Inc. v. DeYoung, 410 Pa.Super. 621, 600 A.2d 960 (1991); Walton v. Philadelphia National Bank, 376 Pa.Super. 329, 545 A.2d 1383 (1988); accord Vaughn v. Didizian, supra, 436 Pa.Super. 436, 648 A.2d 38 (intent of parties must be ascertained from a reading of the entire release).

Finally:

In order to ascertain the intention of the parties, “the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement.” International Organization Master, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, 497 Pa. 102, 109, 439 A.2d 621, 624 (1981). The court will adopt an interpretation that is most reasonable and probable bearing in mind the objects which the parties intended to accomplish through the agreement....

Wrenfield Homeowners Ass’n, Inc. v. DeYoung, supra, 410 Pa.Super. at 627, 600 A.2d at 963; accord Vaughn v. Didizian, supra, 436 Pa.Super. 436, 648 A.2d 38 (release must be construed in light of the conditions and circumstances surrounding its execution).

Herein, appellant released persons and entities from claims, actions, et cetera “arising out of an accident which occurred June 22, 1986 and for which suit was brought in the United States District Court, for the Eastern District of Pennsylvania at Civil Action No. 88-1913, styled: Sarah T. Harrity vs. Claridge at Park Place, Inc.____” (emphasis added). Thus, the release, on its face, applies only to causes of action, et cetera for which suit was brought in the Claridge action. In other words, the release applies only to that action. This is extremely clear limiting language.

A copy of the complaint in the Claridge action, which was appended to appellant’s responses to appellees’ numerous motions, indicates that Claridge action was not brought for the malpractice of appellees. In the Claridge action, appellant sought recovery solely for the negligence of Claridge in maintaining its hotel lobby and for the injuries directly connected to the fall. Reproduced Record (“R.R.”) at 12a-16a. No mention in the complaint is made of any of appellees’ actions in connection with the treatment of these injuries, appellant’s resultant four surgeries, or appellant’s carpal tunnel syndrome. Thus, suit was not brought in the Claridge action for the malpractice at issue in these two actions, and the release does not apply here.

The fact that the release was not intended to apply to the present actions is confirmed by the affidavit of the lawyer who negotiated the release. R.R. at 109a-13a. The affidavit indicates, in complete conformity with the above-emphasized language, that the release was intended to apply to the “Claridge case only.” R.R. at 112a.

The circumstances surrounding the execution of the release also support this interpretation. Appellees paid no consider-' ation for the release and were not involved in negotiating it. See Vaughn v. Didizian, supra, 436 Pa.Super. 436, 648 A.2d 38 (where release was executed prior to occurrence of malpractice of defendant, defendant’s actions could not have been contemplated by parties as being within scope of release; release not applicable in action instituted for malpractice). The release is for a nominal amount, commensurate with the limited liability of Claridge Hotel. In explaining why the Claridge action was settled for a small amount of money, the attorney states that his discovery in the suit against Claridge established that it was not negligent and thus not responsible for the fall.

The fact that this release contains the limiting language renders the cases relied upon by appellees inapposite. In Buttermore v. Aliquippa Hospital, supra, 522 Pa. 325, 561 A.2d 733, Smith v. Thomas Jefferson University Hospital, supra, 424 Pa.Super. 44, 621 A.2d 1031, and Dublin by Dublin v. Shuster, supra, 410 Pa.Super. 1, 598 A.2d 1296, there was no such limiting language. The releases therein applied to all entities liable for all injuries resulting from the initial accident. The issue in those cases was whether the release was intended to apply to any one other than the tortfeasor named in the release. In concluding that it did, reliance was placed on the fact that “any and all” entities had been released from “any and all” injuries resulting from the initial accident.

In seeking to apply that case law, appellees posit that the release applies to them, although they are not named in it. However, that is not the issue in this case. The issue is whether the language in question renders the release applicable only to the Claridge action. The issue is not who or what is released. The issue is from what are they released. Appellant did not release every entity from liability for any tort that was committed on her in the past, present, and future. She released entities from liability arising from the June 22, 1986 accident “and for which” appellant brought suit against Claridge Hotel in the federal action named. Appellant did not bring suit in the Claridge action against appellees for their malpractice.

The release at issue clearly applies only to Claridge action and improperly was construed as releasing appellees in these two actions. See also Flatley by Flatley v. Penman, supra, 429 Pa.Super. 517, 632 A.2d 1342 (where release released only one tortfeasor in multi-tortfeasor suit and not “any and all” entities responsible for injuries, non-settling tortfeasors were not released in the document).

Order reversed; case remanded; jurisdiction relinquished.

      . Appellees’ attempt to apply the exception to this doctrine contained in Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 611 A.2d 1280 (1992), petition for allowance of appeal granted, 533 Pa. 660, 625 A.2d 1193 (1993), also is misguided. In Hutchison, we ruled that the doctrine did not apply for two reasons not present in this case. First, in Hutchison, the judge who issued the first order had retired and was not available to reconsider his order. Second, and significantly, a good deal of new evidence on the issue had been developed subsequently. In fact, there was a new party, an intervenor, interested in the issue, and a hearing had been conducted on the matter. We noted in Hutchison that the record was replete with evidence that circumstances had changed between the date of the first order and the date of the order reversing the first order. Herein, no new evidence on the issue was presented to Judge Moss.


author: McEWEN, Judge:

text:
    653 A.2d 12
    Bernard SHAW and Evelyn Shaw, Appellees, v. Michael KIRSCHBAUM, D.O., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1994.
    Filed Dec. 30, 1994.

      R. Bruce Morrison, Philadelphia, for appellant.
    Benjamin Kuby, Philadelphia, for appellee.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   McEWEN, Judge:

This is an appeal by Michael Kirschbaum, D.O., (hereinafter appellant) from the judgment in the amount of $631,676.52 entered in favor of appellees, Bernard and Evelyn Shaw, on the verdict of the jury in this medical malpractice case following the dismissal of the post-trial motions filed by appellant. Appellant contends that he is entitled to judgment n.o.v. based upon the failure of appellees to present sufficient evidence to establish a cause of action upon which relief could be granted. We are constrained to agree and, accordingly, reverse and remand for the entry of judgment n.o.v. in favor of appellant.

Appellee, Evelyn Shaw, was first seen by appellant, a cardiologist, in 1982 and, at that time, she had experienced two heart attacks and was suffering from a number of medical problems including congestive heart failure, high blood pressure, and chronic kidney disease. Appellant, having first treated Mrs. Shaw when she was admitted to Osteopathic Hospital, via the emergency room, with an episode of chest pain in April of 1982, subsequently acted as Mrs. Shaw’s attending cardiologist. Physicians at Hahnemann Hospital thereafter in January of 1983 diagnosed Mrs. Shaw as suffering from an aortic aneurysm. This condition was monitored during three subsequent hospitalizations at Hahnemann Hospital in 1983 for heart and kidney problems, but the physicians at Hahnemann declined to advise surgical repair of the aneurysm because of Mrs. Shaw’s overall physical condition.

Mrs. Shaw was subsequently admitted to Osteopathic Hospital in December of 1983 for congestive heart failure and acute pulmonary edema. During this visit, appellant evaluated the aneurysm and determined that it had increased in size but could not be treated surgically. Mrs. Shaw returned to Osteopathic Hospital less than one month later suffering from acute respiratory distress. Appellant at that time concluded, following surgical consultation by Dr. Edward Silverman, and communicated to Mrs. Shaw his belief that, absent surgical repair of the aneurysm, Mrs. Shaw could die in a matter of weeks.

Appellant recommended to Mrs. Shaw that she travel to the Texas Heart Institute located in Houston to have the dissecting aortic aneurysm surgically repaired by Doctors Michael DeBakey and Denton Cooley, based on his belief that due to the complexity and morbidity rate associated with the surgery, the expertise of these world-renowned surgeons was required. Mrs. Shaw, although reluctant to travel to Texas, eventually agreed to go to the Texas Heart Institute and Dr. Kirschbaum assisted with both the travel and financial arrangements for the Shaws.

Dr. Denton Cooley performed surgery on Mrs. Shaw on January 18, 1984, successfully resecting the aorta. Sadly, the absence of blood flow during surgery caused Mrs. Shaw to become partially paralyzed from the waist down, and unable to stand, or to walk, or to control her bladder or bowels. While paralysis as a result of the cessation of blood flow during surgery is a recognized risk inherent in repair of the aorta, the Shaws alleged that they were never informed of this risk or advised as to how or if the surgical repair of the aorta would effect Mrs. Shaw’s other medical problems. Following her return to Philadelphia, Mrs. Shaw was hospitalized for long periods of time for rehabilitation and training in the activities of daily hving as a paraplegic. After eight years of surely gallant resolve, Mrs. Shaw died of unrelated medical conditions.

Appellant first argues that he is entitled to judgment n.o.v. because, as a matter of law, the Shaws failed to present a prima facie case under any cause of action recognized in this Commonwealth. We are obliged to agree.

In reviewing a motion for judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Broxie v. Household Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). See also, Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970) and Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979). Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980) and Steward v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). Further, “a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.” Brown v. Shirks Motor Express, 393 Pa. 367, 375, 143 A.2d 374, 379 (1958).

Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). Accord: Rocker v. Harvey Co., 370 Pa.Super. 32, 36-37, 535 A.2d 1136, 1138 (1988); Foley v. Clark Equipment Co., 361 Pa.Super. 599, 604-06, 523 A.2d 379, 382 (1987), allo. denied, 516 Pa. 641, 533 A.2d 712 (1987).

Appellees alleged in their complaint that “contrary to his fiduciary duties ... [appellant] fail[ed] to give to Evelyn Shaw a full and complete disclosure of the risks and complications of the surgical procedure he coerced her to undertake [and] did use undue influence, coercion and duress to pressure said Evelyn Shaw to undergo cardiovascular surgery.” At trial, appellees sought to establish that appellant fell below the standard of care of a reasonable and prudent attending cardiologist based upon the expert testimony of Jonas Brachfeld, M.D., that appellant had a duty to advise Evelyn Shaw of all of the risks attendant to the proposed surgery and how such surgery would affect each of her pre-existing conditions as well as her overall physical condition. The trial court denied a motion for compulsory nonsuit,' and in its 1925(b) opinion explained that, although appellant could not be liable to appellees based upon the doctrine of informed consent, the jury could find that appellant had negligently failed to fully inform appellees of the potential side effects of the surgery:

Plaintiffs theory of recovery [was] based on Dr. Kirschbaum’s breach of a duty which was not imposed upon him by the law but which he himself sought to undertake. See § 323 of the Restatement of Torts 2d.
Dr. Kirschbaum gratuitously expanded the scope of his duty to Mrs. Shaw when he undertook the ‘service’ of persuading his patient to travel to the Texas Heart Institute for corrective surgery rather than merely referring her to the thoracic surgeon for an evaluation.
* >{« if: sjs s}:
The evidence introduced at trial unequivocally established that Dr. Kirschbaum’s actions went much further than simply advising a patient to seek a consultation or a second opinion regarding the advisability of surgery to correct her aneurysm. Rather, the testimony reveals that he urged, persuaded and actively participated in convincing the Shaws to go to the Texas Heart Institute to undergo the surgery. He made necessary travel arrangements. Once he undertook the advocacy of surgery at the Texas Heart Institute, he was required to perform this duty non-negligently. Under these facts, Dr. Kirschbaum was required to advise his patient to the best of his ability about the effects of the proposed surgery upon her pre-existing medical conditions as well as the complications associated -with the surgery. It is his failure to fulfill this duty which results in liability in negligence. u

A breach of a legal duty is a condition precedent to a finding of negligence, and, unlike the trial court, we are unable to find the breach by appellant of any legal duty owed to Mrs. Shaw. Submission of the issue to the jury was, therefore, error.

I. The Doctrine of Informed Consent

The appellate courts of this Commonwealth have historically interpreted the doctrine of informed consent as applying only to the surgeons who perform operations without first securing the informed consent of the patient. Friter v. IOLAB [Iolab] Corp., 414 Pa.Super. 622, 626, 607 A.2d 1111, 1113 (1992). In determining whether the patient’s consent to a surgical operation was “informed,” one must consider whether the physician disclosed to the patient all of the facts, risks, and alternatives, which a reasonable person would deem significant in making a decision to undergo the recommended procedure. Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992); Doe v. Dyer-Goode, 389 Pa.Super. 151, 156, 566 A.2d 889, 891 (1989), appeal denied, 527 Pa. 587, 588 A.2d 509 (1990); Rogers v. Lu, 335 Pa.Super. 595, 485 A.2d 54 (1984). An operation performed without the patient’s informed consent constitutes a battery upon the patient, thus making the physician or physicians liable for any injuries regardless of whether the surgery was negligently performed. Moure v. Raeuchle, supra, 529 Pa. 404, 604 A.2d at 1008; Doe v. Dyer-Goode, supra, 389 Pa.Super. 155, 566 A.2d at 891. Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989), appeal denied, 524 Pa. 621, 571 A.2d 383 (1989); Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165 (1987), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988). See also Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Smith v. Yoke, 412 Pa. 94, 194 A.2d 167 (1963).
Under normal circumstances only the physician who performs the operation on the patient has the duty of obtaining the patient’s informed consent. Therefore, Dr. Clough, who only performed the appellant’s pre-surgery physical examination, and Nurse Lockerman, who is not a physician, were under no duty to obtain the appellant’s informed consent to the operation.

Foflygen v. Zemel, 420 Pa.Super. 18, 33, 615 A.2d 1345, 1352-1353 (1992), allo. denied, 535 Pa. 619, 629 A.2d 1380 (1992) (emphasis added).

Appellees in the instant case, recognizing that there was no touching and thus no battery by appellant, sought to plead and prove that appellant was negligent in failing to adequately inform them of the possible complications associated with the recommended surgical procedure which was ultimately performed by Dr. Cooley. In effect, appellees sought to plead and prove an informed consent cause of action based on negligence. Such a theory does not constitute a viable cause of action in Pennsylvania.

As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court. In Gray v. Grunnagle, supra, and Smith v. Yohe, supra, 412 Pa. 94, 194 A.2d 167, our Supreme Court held that the patient’s consent is a prerequisite to a surgical operation and an operation without the patient’s consent is a battery. Recently, the Supreme Court has re-affirmed this longstanding precedent in Moure v. Raeuchle, supra, 529 Pa. 404, 604 A.2d 1008. Moreover, there have been numerous decisions of this Court, both panel and en banc, which have applied the rule set forth in Gray v. Grunnagle, supra, 423 Pa. 144, 223 A.2d 663, and Smith v. Yohe, supra, 412 Pa. 94, 194 A.2d 167, to informed consent cases. Levenson v. Souser, supra; Doe v. Dyer-Goode, supra, 389 Pa.Super. 155, 566 A.2d 891; Sagala v. Tavares, supra, 367 Pa.Super. 573, 533 A.2d 165; Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Thus, we are compelled to analyze informed consent cases under a battery theory until and unless our Supreme Court decides to recognize an informed consent cause of action grounded in negligence. Levenson v. Souser, supra, 384 Pa.Super. 132, 557 A.2d 1081.

Foflygen v. Zemel, supra 420 Pa.Super. at 34, 615 A.2d at 1353. See, e.g.: Sinclair v. Block, 534 Pa. 563, 568-70, 633 A.2d 1137, 1140 (1993); Stover v. Association of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11, 25-27, 635 A.2d 1047, 1054 (1993); Dible v. Vagley, 417 Pa.Super. 302, 308-10, 612 A.2d 493, 496 (1992), allo. denied, 535 Pa. 619, 629 A.2d 1380 (1993); Malloy v. Shanahan, 280 Pa.Super. 440, 442-43, 421 A.2d 803, 804 (1980). Thus, under well-settled principles of tort law, appellant could not, as a matter of law, be found liable to appellees on any cause of action based upon lack of informed consent. The trial court, however, found that

[ajlthough Pennsylvania law imposes no duty upon Dr. Kirschbaum, a non-operating physician, to discuss the medically established risks associated with the surgical repair of her aneurysm, he voluntarily assumed this duty when he undertook to advocate that Mrs. Shaw travel to the Texas Heart Institute for the specific purpose to undergo the operation. Dr. Kirschbaum gratuitously expanded the scope of his duty to Mrs. Shaw when he undertook the “service of persuading his patient to travel to the Texas Heart Institute for corrective surgery rather than merely referring her to the thoracic surgeon for an evaluation.

The trial court has, however, provided no legal basis upon which to find that appellant owed Mrs. Shaw a duty “to discuss the medically established risks” associated with the proposed surgery. The law of this Commonwealth imposes this duty only upon the surgeon actually performing the procedure and neither the trial court nor this Court is free to expand that duty.

II. Section 323 of the Restatement (Second) of Torts

The trial court found that pursuant to Section 323 of the Restatement (Second) of Torts, appellant had gratuitously assumed an undertaking, i.e. assisting in the scheduling of the surgical procedure, and had negligently failed to properly perform that undertaking. Section 323 of the Restatement (Second) provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

While Section 323 has been applied in numerous medical malpractice actions, it has never been utilized in a context similar to the instant case. See, e.g.: Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984) (failure of hospital to act reasonably in permitting doctor to remove patient from emergency room); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980) (failure to diagnose bone cancer); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (failure to diagnose heart attack).

Section 323 does not obviate the traditional components of a prima fagie case sounding in negligence, but rather substitutes a gratuitous undertaking for the element of duty. A prima facie case of medical malpractice based upon a negligent act or omission requires the plaintiff to establish:

(1) the existence of a duty owed by the physician/defendant to the plaintiff/patient;
(2) a breach of that duty;
(3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the plaintiff/patient; and
(4) damages suffered by the plaintiff/patient that were a direct result of the harm.

See: Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990); Accord: Morena v. South Hills Health System, 501 Pa. 634, 641, 462 A.2d 680, 684 (1983).

The trial court found that by undertaking the “advocacy of surgery”, appellant assumed a duty on his part to advise Mrs. Shaw of “the effects of the proposed surgery upon her pre-existing medical condition as well as the complications associated with the surgery”. This conclusion is unsupportable under both the law of this Commonwealth and the facts of this case. The trial court concluded that, when appellant recommended that the surgery be performed at the Texas Heart Institute of Drs. DeBakey and Cooley, appellant gratuitously accepted a duty to advise her in conformity with principles of informed consent. Appellant, who had communicated to appellees his belief that Mrs. Shaw would die in the near future without the recommended surgery, undertook to assist in travel and financial arrangements but did not expressly or by implication undertake to obtain her informed consent. While one could engage in an academic discussion of the factual scenarios under which the gratuitous acts of assisting in the travel and financial arrangements could result in exposure to liability if those acts were negligently undertaken and harm thereby occurred, appellant did not undertake to obtain the informed consent of Mrs. Shaw to surgery which he did not and could not perform. While appellant strongly urged that Mrs. Shaw undergo surgery, there is no duty in Pennsylvania, and we decline the invitation to create one in this case, to impose upon an attending or referring physician the obligation to provide all of the information necessary for the patient to provide an informed consent to the surgeon.

As heretofore noted, a recovery on a cause of action based on lack of informed consent is predicated upon a technical battery. The trial court in an exercise of creative discernment attempted to expand that doctrine from the battery rationale to a negligence-based rationale, but such , refashioning of the law may only be undertaken by our Supreme Court. Thus, we are obliged to direct that, upon remand, judgment n.o.v. be entered in favor of appellant.

Judgment vacated. Case remanded. Jurisdiction relinquished.

      . The jury awarded Mrs. Shaw $200,000.00 in compensatory damages and awarded Mr. Shaw $300,000.00 on his loss of consortium claim. The trial court, in response to the motion of appellee, molded the verdict to $631,676.52 to reflect $131,676.52 in delay damages.

      . Appellant has set forth the issues as follows in the brief presented in support of this appeal:
      Whether the learned trial Judge erred in denying defendant's motion for judgment n.o.v. where plaintiff failed to present a prima facie case under any cause of action recognized in this Commonwealth, and instead the court effectively created a duty of informed consent imposed upon referring physicians who do not participate in the surgery involved?
      Whether the learned trial Judge abused her discretion in denying defendant’s motion for remittitur of Mr. Shaw's consortium claim, particularly where the amount of that consortium award ($300,000) exceeded the late Mrs. Shaw's compensatory award ($200,000)?
      The latter issue is rendered moot by our ruling that judgment n.o.v. must be entered in favor of appellant.

      . The testimony of Dr. Denton Cooley established that the decision as to the advisability of surgery and the duty to obtain the informed consent of appellee was solely that of Dr. Denton Cooley:
      Q. As a general rule, when a doctor such as Dr. Kirschbaum refers a patient to you, is it your practice to make your own diagnosis of the patient’s medical condition before deciding on a specific course of treatment?
      A. Yes.
      Q. And did you do so with Mrs. Shaw?
      A. Yes.
      Q. And can you tell us again what your diagnosis of Mrs. Shaw was?
      A. It was an expanding dissecting aneurysm of the thoracic aorta.
      ******
      Q. Did you alone make the final decision to operate on Mrs. Shaw?
      A. Yes. •
      Q. As a referring physician, was Dr. Kirschbaum asking you to make the final evaluation whether Mrs. Shaw needed the surgery or not?
      A. Let me make it clear. I am not a technician, and I don't respond to an order from some referring physician to do an operation. It is my judgment as to whether it is indicated to do. So if somebody calls up and says, "Fix that man’s aneurysm,” it is my decision whether to fix the aneurysm or not. It was my opinion which was sought, and I make this therapeutic judgment.
      Q. And in this case, your opinion was sought by Dr. Kirschbaum.
      A. Yes.


author: CERCONE, Judge.

text:
    653 A.2d 17
    Charles E. HAGEL, Appellant, v. UNITED LAWN MOWER SALES & SERVICE, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1994.
    Filed Jan. 10, 1995.

      Stephen W. Edwards, Philadelphia, for appellant.
    Mark C. Clemm, Plymouth Meeting, for appellee.
    Before ROWLEY, P.J., and KELLY and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal as of right from an order which dissolved an attachment on a bank account, and inter alia, opened a confessed judgment. We reverse as to that portion of the trial court’s order which dissolved the attachment without providing adequate substitute security, we quash the appeal as to the petition opening the confessed judgment, and we remand with instructions.

In June of 1992, appellant Charles E. Hagel sold a business, now called United Lawn Mower Sales & Service, Inc., to its current owner, George Emery. The buyer notified appellant in September of 1993 that he would make no further installment payments toward satisfying the total contract price owed. Mr. Emery’s letter stated that events had demonstrated that the value of the assets purchased was considerably lower than the value Mr. Hagel had warranted in the sales negotiations and in the written contract. The buyer therefore demanded a set-off pursuant to the agreement of sale. Appellant treated the buyer’s action as a default, filed a confession of judgment, and levied against United Lawn Mower’s assets and business bank account.

United sought bankruptcy protection in November of 1993. However, the bankruptcy petition was dismissed after only a few weeks, and appellant thereafter obtained the contents of. the corporation’s bank account. On December 7,1993, United filed and served a petition seeking to open the confessed judgment, to dissolve the attachment against its bank account, and to gain the return of funds already seized. United also filed a petition alleging new matter and raising a counterclaim. The next day, the Honorable Samuel Salus entered an order which opened the confessed judgment, stayed all proceedings and dissolved the attachment against United’s account at Madison Bank, as well as any levies or other attachments filed or implemented pursuant to the confessed judgment. The order also directed appellant to return the seventeen thousand dollar sum already seized by appellant. The trial court did not require United Lawn Mower to post a bond.

Appellant filed a motion for reconsideration on December 17, 1993, which Judge Salus ultimately denied on January 11, 1994. Appellant’s timely notice of appeal was docketed by this Court January 5,1994. On February 28,1994, the lower court denied appellant’s application for stay pending appeal. Thereafter, appellant petitioned this Court for a stay. The Superior Court entered the following per curiam order on February 28, 1994:

AND NOW, this 28th day of February, 1994, after hearing upon Petition of Appellant, Charles E. Hagel for Stay of Injunction IT IS HEREBY ORDERED that the Orders of the Common Pleas Court in this case dated December 8, 1993 and February 18, 1994 are HEREBY STAYED, and the balance of the fund in dispute (said to be approximately Eleven Thousand ($11,000.00) Dollars) shall remain in escrow pending disposition of appeal in this Court.

Order docketed February 28, 1994 in the Superior Court; docketed March 2, 1994 in the Court of Common Pleas.

This appeal essentially presents two issues: (1) whether the lower court erred in dissolving the attachment without requiring a bond or adequate substitute security; and (2) whether the trial court committed an abuse of discretion in granting the petition to open the confessed judgment. Additionally, appellee, United Lawn Mower Sales & Service, Inc., argues that the appeal of Charles E. Hagel should be quashed for failing to designate, prepare, or file a reproduced record in violation of Rules of Appellate Procedure 2101, 2152, and 2154.

We agree with appellee that failure to comply with relevant procedural requirements is a serious matter. Noncompliance with the rules relating to the content of reproduced records on appeal may result in the imposition of sanctions. Pennsylvania Human Relations Commission v. Ammon K. Graybill, Jr., Inc., Real Estate, 482 Pa. 143, 147 n. 3, 393 A.2d 420, 422 n. 3 (1978). This Court has not hesitated to quash even appeals from criminal convictions where an appellant has neglected his or her duty under the Rules of Appellate Procedure thereby substantially impeding the review process. See, e.g., Commonwealth v. Drew, 353 Pa.Super. 632, 510 A.2d 1244 (1986); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). However, in the instant case, the defects in the reproduced record are not so serious as to preclude our ability to properly evaluate and address the substantive arguments advanced by the parties. For this reason, we decline to either quash the appeal or to impose any other type of sanction on this basis.

Appellant first contends that the trial court’s order of December 8, 1993 must be deemed invalid, and therefore ineffective under Pennsylvania law, on the grounds that it was in the nature of an injunction and thus required a bond to be posted. The disputed order contains the following language:

ORDER
AND NOW, this 8th day of December, 1993, upon consideration of the Petition of United Lawn Mower Sales and Service, Inc. to strike or open judgment, to stay execution, and to dissolve attachment, and any response thereto, it is hereby Ordered and Decreed that:
b. the judgment confessed by Charles E. Hagel against United [Lawn Mower] Sales & Service, Inc. on September 15, 1993 is hereby opened; all proceedings meanwhile shall be stayed; the attachment of United’s bank account at Madison Bank is hereby dissolved, and any and all levies or attachments filed or implemented by Hagel pursuant to the 9/15/93 confessed judgment are also hereby dissolved, and Hagel and Hagel’s attorneys shall return the sum of $17,-188.25 to United’s bank account at Madison Bank within two (2) days of the date from this Order.

Order dated December 8, 1993, docketed December 9, 1993 (omission in original). While we do not accept appellant’s characterization of this order as a mandatory injunction, we agree with appellant that the lower court should have required appellee to post a bond before dissolving the attachment.

The Pennsylvania Rules of Civil Procedure govern the enforcement of money judgments, and explicitly contemplate the release of property and/or funds from levy and attachment. When a confession of judgment has been entered, liens of the judgment or of any levy or attachment shall be preserved while proceedings to strike off or open the judgment are pending. Pa.R.C.P. No. 2959(f), 42 Pa.C.S.A. An order of court striking a confessed judgment annuls any liens or executions issued thereupon. Explanatory Notes, Rule 2959(f). By way of contrast, an order of court which merely opens a confessed judgment does not impair the lien of the judgment nor of any execution issued on it. Id. See Macioce v. Glinatsis, 361 Pa.Super. 222, 225-26, 522 A.2d 94, 96 (1987) (judgment does not lose its status by being opened and is still a lien).

Upon cause shown, on petition of any person or party in interest, the Court of Common Pleas may release specific property from a levy. Pa.R.C.P. No. 3119(1). However, any such release must be premised upon the filing of a bond or security approved by the court in an amount based upon the lesser of either the value of the property, or the amount of the judgment, interest, and probable costs. Id. An order granting a judgment debtor access to a garnished bank account without the substitution of an equivalent security is improper. Macioce v. Glinatsis, 361 Pa.Super. at 227-28, 522 A.2d at 96-97 (discussing the requirements of McIlvain v. James L. Leeds Co., 189 Pa. 638, 42 A. 307 (1899), Adams v. James L. Leeds Co., 189 Pa. 544, 42 A. 195 (1899), and Highway Equipment Company v. Hamlin Coal Company, 230 Pa.Super. 311, 326 A.2d 570 (1974)). We therefore conclude that, because the December 8th order effectively released bank account funds already seized under appellant’s levy and execution, the lower court either should have required appellee to post bond pursuant to Rule 3119 or directed appellee to provide some other form of security. Upon remand, the trial court is instructed to require appellee to either post bond or to provide appellant with an appropriate form of equivalent substitute security.

Appellant’s second identified issue questions the propriety of the lower court’s action in opening the judgment. No appeal as of right may be taken from the trial court’s order opening a confessed judgment. Joseph Palermo Development Corp. v. Bowers, 388 Pa.Super. 49, 51, 564 A.2d 996 (1989) (citing Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A.). Under the version of Rule of Appellate Procedure 311 which became effective on July 1, 1989, only an order refusing to open, vacate, or strike off a judgment is immediately appealable. Id. We must therefore quash as interlocutory that portion of the appeal which challenges the trial court’s decision to open the confessed judgment.

The appeal from the order opening confessed judgment is quashed; the order of December 8,1993 is reversed insofar as it dissolves the attachment on appellee’s bank account without providing adequate substitute security. The case is remanded with instructions. Jurisdiction relinquished.

      . An order confirming, modifying or dissolving an attachment is appealable as of right. Pa.R.A.P., Rule 311(a)(2), 42 Pa.C.S.A.

      . Judge Salus crossed out subsection (a) on the original order which has been placed in the certified record. Subsection (a) would have stricken the confessed judgment rather than opening it.

      . A court may also release part of the property if its value is excessive compared to the amount of the judgment, interest, and probable costs. Pa.R.C.P. No. 3119(2), 42 Pa.C.S.A.