author: WICKERSHAM, Judge: WIEAND, Judge,

text:
    445 A.2d 140
    Maria L. HOEKE and Jonathan Hoeke, her husband v. MERCY HOSPITAL OF PITTSBURGH, Pennsylvania, Dr. Leo R. Kairy and Dr. William J. Cushing v. Dr. Hassan Jamil TABBARAH. Appeal of William J. CUSHING, MD. Appeal of Dr. Leo R. KAIRYS.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed April 30, 1982.
    Petition for Allowance of Appeal Denied Sept. 14, 1982.

      Patrick R. Riley, Pittsburgh, for appellant (at No. 1270) and for appellee (at No. 1271).
    John D. Rhodes, Pittsburgh, for appellant (at No. 1271) and for appellee (at No. 1270).
    James F. Manley, Pittsburgh, for Dr. Tabbarah, appellee.
    Neil Rosen, Pittsburgh, for Hoeke, appellees.
    George M. Weis, Pittsburgh, for Mercy Hospital, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WICKERSHAM, Judge:

This is a professional negligence case filed by the appellees (plaintiffs) against the appellants (defendants) as a result of the care and treatment which was rendered to the woman plaintiff in June of 1971 and thereafter. The essence of this case was that as a result of the negligent performance of an abdominal hysterectomy and negligent postoperative care, Mrs. Hoeke sustained the loss of her right kidney and an above-the-knee amputation of her right leg. The case was tried in the Court of Common Pleas of Allegheny County before the Honorable Marion K. Finkelhor and a jury.

After 19 days of trial during which multiple expert witnesses testified, a verdict was rendered in favor of Maria Hoeke in the amount of $500,000 and Jonathan Hoeke, her husband, in the amount of $50,000 and against defendants Kairys, an obstetrician/gynecologist, and Cushing, a cardiovascular surgeon. The Mercy Hospital, original defendant, and Dr. Hassan Jamil Tabbarah, additional defendant, were exonerated by the jury.

During the course of the trial, plaintiffs testified in their own behalf and called as witnesses in their case Doctors Kairys and Cushing (for cross-examination); Dr. William Stewart, the anesthesiologist at the time the operation was performed; Dr. Jerry S. Wolkoff, a vascular surgeon and expert witness; Dr. I. Biskind, an obstetrician/gynecologist, and expert witness; Dr. John R. Perri, the orthopedic surgeon who amputated plaintiff’s leg; Dr. Martin Cohen, a pathologist at Mercy Hospital; and additional defendant Dr. Hassan Jamil Tabbarah. On the side of the defendants, there was the direct testimony of Drs. Kairys, Cushing and Tabbarah; Dr. Terry Hayashi, an obstetrician/gynecologist and expert witness for the defendant Kairys; Dr. Douglas McDonald, a surgical resident at Mercy Hospital who was present during the operation; Dr. Jessica Lewis, a hematologist; and Dr. Mitchell Webster, a cardiovascular surgeon and expert witness. From this complex record, only the testimony of Drs. Kairys, Cushing and Tabbarah and an excerpt from the testimony of Dr. Wolkoff have been transcribed and reviewed by this court of defendants’ issues on appeal is accordingly limited.

Mrs. Maria Hoeke, a citizen of the Netherlands and presently a resident of the United States for the past fourteen years, was a patient of Dr. Leo R. Kairys and had used the services of Dr. Kairys in the birth of her child on September 13, 1966. On or about April 28, 1971, Mrs. Hoeke consulted Dr. Kairys with complaints of excessive bleeding and, after discussion, it was his recommendation that Mrs. Hoeke undergo a hysterectomy.

Mrs. Hoeke entered the hospital in June, 1971, for the operation which was performed by Dr. Kairys on June 25, 1971. He was assisted by Dr. McDonald, an obstetrical resident of Mercy Hospital at that time.

The allegations and proof of negligence in these proceedings divide between operative and postoperative procedures.

During the operation itself, excessive and profuse bleeding occurred in the operative area and, in the middle of the operation, Dr. Kairys sent for Dr. Cushing, a cardiovascular surgeon. Drs. Kairys and Cushing attempted to ligate the arteries involved to stop the massive bleeding and a right hypogastric artery ligation was performed. Some damage apparently occurred to the ureter and kidney in the course of surgery. The cause of the bleeding was at issue at the trial and Drs. Kairys and Cushing presented diverse testimony on the cause of injury to the ureter and kidney. It was conceded by all parties that damage to the ureter and the kidney were related to the operative procedure. There was no testimony on postoperative negligence on this issue.

It was the testimony of plaintiffs’ experts that other operative procedures could have reduced the risk of harm to the leg. After surgery, plaintiff was placed in an intensive care unit. The blood supply was diminished to her right leg and, subsequently, the leg was amputated. Dr. Cushing, who had performed the cardiovascular surgery, left for vacation at the end of June (30th) and Dr. Tabbarah, his associate, was not alerted by Dr. Cushing or called on the case by Dr. Kairys until, in the opinion of Dr. Tabbarah, irreversible damage had already occurred. There was considerable controversy in the testimony as to the symptoms exhibited by the leg and when diagnosis of the diminished blood supply was possible. At issue in the postoperative care of Mrs. Hoeke was whether the leg was properly monitored and procedures taken to determine the status of the blood supply. The kidney, which appeared to be perforated, was removed at a later date.

APPEAL OF DR. WILLIAM J. CUSHING

The single issue raised by William J. Cushing, appellant, relates to the court’s charge to the jury and whether or not the court, in effect, directed a verdict in favor of the plaintiff and against himself.

In his brief Dr. Cushing concedes that having been charged with negligent performance of an undertaking to render services to another, the law set forth by the Restatement, Second, Torts, § 323(a) applies:

§ 323. Negligent Performance of Undertaking to Render Services
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 .. .

The theory under Section 323(a) against Dr. Cushing in this case is that his failure to act in the postoperative period was a proximate cause of the plaintiff’s harm. The court’s charge on this aspect of the case is contained on pages 54 and 55 of the original record, and reads as follows:

However, when a defendant physician negligently fails to act, or negligently delays in employing indicated diagnostic or therapeutic measures, and his negligence proximately causes injuries to his patient, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injuries in question. If a defendant physician’s negligent action or inaction has effectively terminated his patient’s chances of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of avoiding injuries and the defendant has destroyed that possibility, he is liable to the plaintiff.
Now, this is particularly true in this case as it relates to the post-operative care. Plaintiff does not have to establish that—plaintiff does not have to prove to a certainty that an arteriogram ... or some of the other procedures that were discussed would have saved her leg but what the plaintiff has to establish is that the defendant physician’s careless action or inaction has effectively terminated the patient’s chances of avoiding injury and if there was any substantial possibility of avoiding injury and the defendant destroyed that possibility, plaintiff has established causation and there is liability.
A causal connection between the injuries suffered and the defendant’s failure to exercise reasonable care may be established by evidence that the risk of incurring those injuries was increased by the defendant’s negligent conduct. In other words, was the risk increased?

Conflicting testimony on both sides of the issue of medical causation was presented. The lower court acknowledged that a jury question as to causation was presented. Dr. Cushing argues in the instant case, however, that while the words “direct a verdict” were not specifically used by the court, the clear import of the court’s charge on causation for postoperative care directed a verdict against him on that point.

We do not agree.

The defendant Cushing calls into question the following language in the lower court’s charge on the issue of causation:

If a defendant physician’s negligent action or inaction has effectively terminated his patient’s chances of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization.

Record at 54.

This language is taken almost verbatim from the supreme court’s opinion in Hamil v. Bashline, 481 Pa. 256, 271-72, 392 A.2d 1280, 1288 (1978) (hereinafter referred to as Bashline III). The issue in Bashline III was the degree of certainty of proof required before a physician may be held liable for professional negligence. The supreme court resolved this issue by adopting Section 323(a) of the Restatement of Torts, Second and held that evidence would be sufficient to support a finding of proximate causation if it appeared that the defendant’s negligence increased the risk of harm to his patient and that the increased risk of harm was in turn a substantial factor in bringing about the injuries to the plaintiff. In reaching this holding, the court quoted with approval the statement that:

When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the .defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.

Id., 481 Pa. at 271-72, 392 A.2d at 1288 (quoting from Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1968)).

Bashline III did not deal with the defendant’s right to present expert testimony on the issue of causation but, rather, dealt with the plaintiff’s burden of proof on causation in a professional negligence case. Prior to Bashline III, a plaintiff had to prove, to a reasonable degree of medical certainty, that the defendant’s negligence was the sole cause of the plaintiff’s injuries. After Bashline III, a plaintiff is entitled to have his case submitted to the jury on evidence, from an expert witness, that the defendant’s negligence “increased the risk of harm” to the plaintiff. Once the plaintiff has developed such testimony, a defendant may present expert testimony to the opposite effect which, of course, was the law even prior to Bashline III.

In determining whether or not a statement of law given in a charge is erroneous, the charge of the court must be considered in its entirety. Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978). Moreover,

‘[appellate courts are disinclined to reverse a judgment of a trial court for alleged inadequacy of the charge unless the inadequacy is such that the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said. . . . ’

Voitasefski v. Pittsburgh Railways Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). We believe that the language cited by the defendant Cushing in the lower court’s charge, when taken in the context of the charge as a whole, is merely an explanation of the plaintiff’s burden of proof on the issue of causation.

Recently, in Jones v. Montefiore Hospital, 494 Pa. 410, 416, 431 A.2d 920, 923 (1981), Justice Kauffman said:

Proximate cause is a term of art, and may be established by evidence that a defendant’s negligent act or failure to act was a substantial factor in bringing about the harm inflicted upon a plaintiff. Pennsylvania law has long recognized that this substantial factor need not be, as the trial court incorrectly charged, the only factor, i.e., ‘that cause which . . . produces the result.’ Gradel v. Inouye, 491 Pa. 534, 542, 421 A.2d 674, 678 (1980); Hamil v. Bashline, 481 Pa. at 266, 392 A.2d at 285; Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965). A plaintiff need not exclude every possible explanation, and ‘the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.’ Majors v. Brodhead Hotel, 416 Pa. at 273, 205 A.2d at 878.
In Hamil v. Bashline, supra, we noted that Section 323(a) of the Restatement (Second) of Torts (1965) has long been recognized as part of the law of Pennsylvania, and then held that the effect of that section was to relax the degree of certainty ordinarily required of a plaintiff’s evidence to provide a basis upon which a jury may find causation.

APPEAL OF DR. LEO R. KAIRYS

In his second argument advanced in his appellate brief, Dr. Kairys maintains that the lower court erred by precluding the jury from distinguishing injuries pertaining to the leg from those involving the kidney and ureter and awarding damages accordingly. Again, we do not agree.

Due to the complex factual context of this case, negligence could have been found at a number of different points in the care and treatment of Mrs. Hoeke—1) the decision to perform the hysterectomy; 2) the operative procedure of Dr. Kairys; 3) the operative procedure of Dr. Cushing; 4) the postoperative care of the leg by Drs. Kairys, Cushing or Tabbarah. Under the facts, it is impossible to distinguish the negligence of Dr. Kairys and Dr. Cushing in causing the injuries to the leg from their negligence in causing the injuries to the kidney and ureter.

The first argument advanced in Dr. Kairys’ appellate brief is that the lower court erred in refusing to instruct the jury as to primary and secondary liability as between Dr. Cushing and himself. We do not agree.

Both Doctors Kairys and Cushing participated in postoperative vascular care of Mrs. Hoeke. Most importantly, Doctor Kairys testified that he was the physician who ultimately ordered the arteriogram, a vascular procedure, for Mrs. Hoeke which was a crucial issue insofar as the postoperative liability aspect of this case was concerned. Further, Doctor Tabbarah, the additional defendant in this case, testified that Doctor Kairys was “commander in chief of this patient”, Reproduced Record at 1167a, that Doctor Kairys was the primary physician in this case and had overall responsibility for the patient and, that Doctor Kairys “wanted to really play as a cardiovascular surgeon in the case.” Reproduced Record at 1282a.

Doctor Kairys’ testimony reflects that he knew Mrs. Hoeke was suffering from vascular insufficiency, that he did not need vascular consultants to assist him in the diagnosis of this problem and that he recognized and appreciated the risk of the vascular insufficiency which was of course, the cause of the loss of Mrs. Hoeke’s right leg. Further, plaintiffs’ expert, Doctor Jerry S. Wolkoff, testified that Doctor Kairys, as an obstetrician/gynecologist, fell below the standard of care in his postoperative treatment of Mrs. Hoeke in not detecting and ordering diagnostic procedures in order to correct the vascular insufficiency from which Mrs. Hoeke was suffering.

The issue, therefore, is not primary versus secondary responsibility. The issue is whether the defendant, Doctor Kairys, fell below the standard of care in his duties owed to Mrs. Hoeke as attending physician. In the present case, the respective duties, insofar as standards of care were concerned, were submitted to the jury based upon the testimony presented at the time of trial. Based upon the charge, as well as this testimony, the jury found that both Doctors Kairys and Cushing were responsible for the loss of Mrs. Hoeke’s right leg and right kidney.

The defendant Kairys cites Builders Supply Company v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) for the proposition that when one actor’s negligence is passive in comparison to the other actor’s active negligence, that the passive tort-feasor is entitled to indemnification from the active tort-feasor. Doctor Kairys could hardly be termed a passive tort-feasor. On the contrary, Doctor Kairys at all times participated in the postoperative vascular care of Mrs. Hoeke and realized the risks involved based upon the symptoms which Mrs. Hoeke displayed in the immediate postoperative period. As such, Doctor Kairys was a joint tort-feasor and, hence, was not entitled to indemnification. Accordingly, the lower court did not err in not submitting the issue of indemnification to the jury.

We have carefully reviewed the entire record as submitted to us, the briefs of counsel and have given full consideration to oral argument and applicable legal authority and we find no merit in the refnaining contentions of Dr. Kairys in this appeal and will not further discuss them.

Judgment affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

In this appeal from judgment in a complex, medical malpractice case, an able trial judge inadvertently gave incorrect jury instructions against a cardiovascular surgeon whose operative assistance and post operative care were unable to prevent very unfortunate consequences of a negligently performed hysterectomy. Because the court’s instructions were incorrect and deprived the cardiovascular surgeon of a fair trial, I must respectfully dissent from the majority’s decision to affirm judgments against the gynecologist and the cardiovascular surgeon.

During performance of a hysterectomy by the appellant, Leo R. Kairys, M.D., on the person of appellee, Maria Hoeke, the patient began to bleed excessively. Dr. Kairys summoned assistance, and Dr. Cushing, a cardiovascular surgeon, responded. In order to stop the bleeding, the common iliac artery and the common iliac vein were repaired, and the internal iliac artery, also known as the hypogastric artery, was ligated. There was a significant factual dispute concerning the external iliac artery, which is a major source of blood to the right leg. Dr. Cushing contended and Dr. Kairys denied that it had a gynecological clamp on it and was contused at the time Dr. Cushing had been summoned. Following surgery, appellee was placed in an intensive care unit. Amputation of the leg became necessary at a subsequent date, however, because of diminished blood supply. There was evidence, if believed, that the amputation of the leg had been made necessary by a complete occlusion of the right, common iliac artery occurring during surgery and not timely diagnosed.

There was a conflict in the testimony concerning the monitoring of appellee’s condition post operatively. There was also a dispute regarding the time when and the symptoms by which the diminished blood supply should have been diagnosed. Five days after appellee had been placed in intensive care, Dr. Cushing commenced a planned vacation. There was evidence, also disputed, that his associate, Dr. Hassan Jamil Tabbarah, had not been alerted to appellee’s condition and, in any event, did not examine appellee until after irreversible damage had occurred.

Appellee also sustained a loss of her right kidney. The majority incorrectly states that there was no evidence of post operative negligence regarding the loss of the kidney. In fact, appellee contended throughout the trial, as a theory in support of recovery, that the failure to employ adequate diagnostic and therapeutic measures post operatively had been a direct cause of the loss of both the leg and the kidney. It was uncontested at trial, however, that an original insult to the ureter and kidney had occurred during the operative procedure. Both Kairys and appellee’s expert agreed that this damage could have been repaired by the seasonable insertion of a catheter through the injured ureter.

There was additional dispute about which physician had primary responsibility for appellee’s post operative care. Appellee contended that Dr. Kairys’ negligence during the operative procedure in injuring the right common iliac artery and the ureter, as well as his negligence post operatively, in failing to diagnose and treat the injuries in a timely fashion, had caused the loss of Mrs. Hoeke’s right leg and right kidney. Appellee also contended that Dr. Cushing’s negligent post operative care of Mrs. Hoeke in not diagnosing and treating the occluded artery and damaged ureter had been a substantial factor in causing the loss of both the right kidney and the right leg.

With respect to the operative and post operative care intended to correct the excessive bleeding which had occurred during the hysterectomy, the trial court charged the jury, in part, as follows:

However, when a defendant physician negligently fails to act, or negligently delays in employing indicated diagnostic or therapeutic measures, and his negligence proximately causes injuries to his patient, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injuries in question. If a defendant physician's negligent action or inaction has effectively terminated his patient's chances of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of avoiding injuries and the defendant has destroyed that possibility, he is liable to the plaintiff. (Emphasis supplied.)

The foregoing portion of the charge was taken verbatim from the Pennsylvania Suggested Standard Civil Jury Instructions, Pa. SSJI (Civ.) 10.03(b) (PBI, 1981), and includes, as the majority notes, language from Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), which our Supreme Court quoted with approval in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (Bashline III). However, in Bashline III, the issue before the court was the degree of certainty of expert medical testimony required to establish a prima facie case of medical malpractice under Section 323(a) of the Restatement (Second) of Torts. Having quoted from Hicks v. United States, supra, the Hamil court stated, “We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.” Id., 481 Pa. at 272, 392 A.2d at 1288 (emphasis supplied) (footnote omitted).

The jury instructions in the instant case suggested that once the jury had found that Dr. Cushing’s conduct had terminated the chances of avoiding further injury to the patient, his liability was conclusively established. He could not then be heard to contend that alternate medical or surgical procedures would have had little or no chance for saving the patient’s leg and/or kidney under the conditions found when he was summoned to assist. This is not the law.

In Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981), the plaintiff had requested the following instruction: “A person who undertakes to render services to another is liable for physical harm resulting from his failure to exercise reasonable care, if that failure increased the risk of harm.” Id., 494 Pa. at 415, 431 A.2d at 923. The Supreme Court held:

Although appellants’ submission generally paraphrased Section 323(a), the specific wording requested would unduly restrict the discretion of the jury, since it instructs that once a defendant’s negligence is found to have increased the risk of harm suffered by a plaintiff, liability must follow. This misconstrues the function of the jury as contemplated by Section 323(a). Once the medical testimony has demonstrated, with a reasonable degree of medical certainty, that a defendant’s conduct increased the risk that the harm sustained by a plaintiff would occur, even though it has not demonstrated that such conduct alone caused that harm, Section 323(a) requires the jury to decide whether or not “to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm.” Hamil v. Bashline, 481 Pa. at 272, 392 A.2d at 1288.

Jones v. Montefiore Hospital, supra, 494 Pa. at 417 n.8, 431 A.2d at 924 n.8 (emphasis omitted and supplied).

The jury in the instant case was instructed that a defendant physician “may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization.” While a plaintiff is entitled to submit a case to the jury if he or she can establish a prima facie case of malpractice which increased the risk of injury, a defendant is not precluded from presenting evidence that the defendant’s chances for avoiding harm were non-existent even in the absence of the alleged negligence. After a plaintiff has established “. . . ‘that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm.’ . . . [A] defendant may present expert testimony to the opposite effect, i.e., the unlikelihood of [avoiding injury] even had the defendant exercised due care; as always, resolution of conflicting testimony is for the jury.” Hamil v. Bashline, supra, 481 Pa. at 272 n.9, 392 A.2d at 1288 n.9, quoting Comment (a) to Section 433 B of the Restatement (Second) of Torts (emphasis supplied).

The challenged portion of the trial court’s instructions to the jury was taken verbatim from Hicks v. United States, supra, as quoted in Hamil v. Bashline, supra. However, in neither instance was the court discussing jury instructions. “Not every statement of the law even if relevant to the issues should, or even properly may, be read to a jury. Statements in opinions are often couched in argumentative language and may be formulated in words expressive of policy. As such they may mislead a jury. It is better to charge a jury in terms of legal standards and rules.” Slavish v. Ratajczak, 277 Pa.Super. 272, 277, 419 A.2d 767, 770 (1980).

The effect of the trial judge’s charge was to instruct the jury to disregard Cushing’s evidence pertaining to causation as speculative. If the members of the jury found that Cushing had been negligent in failing to follow post operatively the condition of the patient and thereafter followed the court’s instructions, they would disregard as conjecture Cushing’s evidence on the issue of causation and would not resolve the conflicting evidence on that issue. “In determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory: Riesberg v. Pittsburgh & Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962).” Jones v. Montefiore Hospital, supra, 494 Pa. at 420, 431 A.2d at 925, quoting Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965) (emphasis in original).

From the foregoing review of the law and the trial court’s erroneous jury instructions, I am forced to conclude that Dr. Cushing is entitled to a new trial. The more difficult question is whether a new trial should be a general new trial or should include only Dr. Cushing. Dr. Kairys contends that Dr. Cushing was primarily responsible for appellee’s post operative care but agrees that the trial court’s instructions concerning causation were erroneous. The appellees, which include Maria Hoeke, who was awarded damages, and also Mercy Hospital and Dr. Tabbarah who were exonerated by the jury, contend that they have won the verdict and should not be submitted to the rigors and expense of another trial. The issue of causation was so fundamental, however, and so closely contested between the appellee and Drs. Cushing and Kairys that the erroneous instruction thereon can only be viewed as permeating the entire deliberative process. Therefore, I would grant a new trial involving these parties. See: Smith v. Flannery, 383 Pa. 526, 119 A.2d 224 (1956); Mains v. Moore, 189 Pa.Super. 430, 150 A.2d 549 (1959).

As to Mercy Hospital and Dr. Tabbarah, however, no error in the charge was alleged by any party. The jury’s verdict, based upon evidence presented without objection, absolved them from any negligence. Under these circumstances, I perceive no proper reason for subjecting them to a new trial. See: Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978).

For these reasons, I respectfully dissent.

      . We had to carefully review the briefs of appellees and appellants as well as the opinion of the lower court in order to develop a composite of the facts since, as stated, a limited record on appeal was presented to us. We add, however, that there is very little difference between the factual assertions of all the parties.

      . Dr. Cushing frames the statement of question involved as follows: Did the Court, in its charge to the jury, under Hamil v. Bashline, in effect, direct a verdict in favor of the plaintiff vis-a-vis this defendant?
      Brief for Appellant-Cushing at 3.

      . The first two questions propounded by Dr. Kairys in his appellate brief are set forth as follows:
      1. Did the lower court commit reversible error by refusing to instruct the jury so that it could either return a finding on the issue of primary and secondary liability or make factual determinations enabling resolution of this issue and by incorrectly summarizing the testimony about the responsibilities of the doctor-defendants.
      2. Did the lower court commit reversible error by precluding the jury from distinguishing injuries pertaining to the leg from those involving the kidney and ureter and awarding damages accordingly-
      Brief for Appellant-Kairys at 3.

      . The remaining issues raised by Dr. Kairys were as follows:
      3. Did the lower court commit reversible error by misstating defendant’s contentions?
      4. Did the lower court commit reversible error by refusing to offer responsive answers and appropriate instructions when questions were submitted by the jury?
      5. Did the lower court commit reversible error by refusing to withdraw a juror or issue specific instructions after plaintiffs’ counsel made inflammatory and prejudicial remarks while closing?
      6. Should a new trial be granted to both defendants if granted to one defendant?
      Brief for Appellant-Kairys at 3.

      . In Hicks v. United States, supra, non-jury trial, the plaintiffs introduced expert testimony, not contradicted by defense experts, that if the decedent had been operated upon, she would have survived. The trial court, however, dismissed the complaint following testimony. On appeal, the government argued unsuccessfully that the trial court was correct, as it was mere speculation to assume that the operation would have been successfully performed.

      . Section 323(a) of the Restatement (Second) of Torts is as follows: § 323. Negligent Performance of Undertaking to Render Services 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


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    445 A.2d 149
    COMMONWEALTH of Pennsylvania, v. Theodore SANFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 1, 1982.
    Filed April 30, 1982.

      Methuselah Z. O. Bradley, IV, Philadelphia, for appellant.
    Deborah Fox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

This appeal from judgments of sentence for burglary, robbery, conspiracy and terroristic threats has been submitted on briefs without oral argument. The brief filed by appellant violates numerous appellate rules and does not permit a determination of those rulings or issues which he wishes to have reviewed. Because appellant’s inadequate brief impairs our ability to conduct meaningful appellate review of the trial, we quash the appeal without reaching the merits.

Pa.R.App.P. 2116(a) requires that a brief contain a statement of the questions involved. Specifically, the rule provides:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby ....

Appellant’s brief contained the following statement of questions involved:

Was the Appellant denied his Constitutional rights to a fair trial when:
(1) The court committed reversable [sic] error in it’s [sic] rulings and/or
(2) Prosecutional [sic] misconduct and/or
(3) The incompetary [sic] of trial counsel:
That would warrant reversable [sic] error, mistrial and/or double jeopardy grounds for a bar to a new trial? (Answered in the negative in the court below)

This statement of questions involved, it will be observed, identifies no specific ruling of the trial court and defines no specific issue for appellate review or determination.

Pa.R.App.P. 2118 requires that the brief contain a summary of argument as follows:

The summary of argument shall be a concise summary of the argument of the party in the case, suitably paragraphed. The summary of argument should not exceed one page and should never exceed two pages. The summary of argument should not be a mere repetition of the statement of questions presented. The summary should be a succinct, although accurate and clear picture of the argument actually made in the brief concerning the questions.

Appellant’s brief contains no summary of argument.

Pa.R.App.P. 2119(a) requires that the argument “be divided into as many parts as there are questions to be argued; and shall have at the head of each part . . . the particular point treated therein . .. . ” Appellant’s brief contains no such divisions. Instead, the “argument” contains a general, rambling discourse with innuendos of unfairness but few citations of authority. Its import seems to be an invitation to conduct a total general review of the trial, which, of course, appellant implies was error filled and unfair so as to require his discharge.

We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof. See, e.g., Commonwealth v. Jackson, 494 Pa. 457, 459 n.1, 431 A.2d 944, 945 n.1 (1981); In Re Estate of Smith, 492 Pa. 178, 181, 423 A.2d 331, 332 (1980); Commonwealth v. Pounds, 490 Pa. 621, 630 n.11, 417 A.2d 597, 601 n.11 (1980); Commonwealth v. Gigli, 287 Pa.Super. 347, 348, 430 A.2d 319, 320 (1981); Keller v. Old Lycoming Township, 286 Pa.Super. 339, 343 n.3, 428 A.2d 1358, 1360 n.3 (1981); Commonwealth v. Miller, 283 Pa.Super. 411, 415, 424 A.2d 531, 533 (1981); Czitrom v. Com., Unemployment Compensation Board of Review, 52 Pa.Commonw. 537, 541, 416 A.2d 109, 110 (1980).

The Rules of Appellate Procedure clearly provide that an appeal may be quashed “if the defects are in the brief ... of the appellant and are substantial . . .. ” Pa.R.App.P. 2101. See Commonwealth v. Holcomb, 261 Pa.Super. 532, 396 A.2d 29 (1978); Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978). See also Commonwealth v. Jackson, supra, 494 Pa. at 459 n.1, 431 A.2d at 945 n.1. The defects in appellant’s brief are substantial. Here, as in Commonwealth v. Holcomb, supra, the brief is so defective as to preclude effective, appellate review.

The appeal is quashed.


author: WIEAND, Judge: SPAETH, Judge, JOHNSON, Judge,

text:
    445 A.2d 151
    COMMONWEALTH of Pennsylvania v. Lloyd C. PARKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 25, 1981.
    Filed April 30, 1982.
    Petition for Allowance of Appeal Granted Oct. 15, 1982.

      David L. Pollack, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from an order dismissing Lloyd Parker’s P.C.H.A. petition without hearing and without any consideration of the merits of the issues raised therein. The petition is the fourth P.C.H.A. petition filed by appellant following his 1966 convictions for robbery and carrying a concealed deadly weapon. Appellant contends that trial counsel and all subsequent counsel were ineffective for failing to assert a claim that the victim’s identification testimony was tainted by a suggestive pre-trial identification procedure. We are constrained to reverse and remand for an evidentiary hearing and consideration of the issue which appellant has raised.

The trial court dismissed appellant’s P.C.H.A. petition without considering the merits of appellant’s averment because it was of the opinion that the suggestiveness of the pre-trial identification procedure had previously been litigated. Our review of the record does not support this conclusion. It is true that appellant previously contended that a one-on-one confrontation with the victim three days after commission of the robbery had been invalid because he had not then been represented by counsel. It is also true that when an issue has been heard and decided, re-litigation may not be achieved by advancing a different theory. Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972). However, in Commonwealth v. Barnes, 248 Pa.Superior Ct. 579, 375 A.2d 392 (1977), this Court held that the issues of suggestiveness of pre-trial lineup and failure to be represented by counsel at such lineup are separate issues, and that the prior litigation of one is not a bar to a claim that counsel was ineffective for failing to raise the other.

Moreover, by asserting the ineffectiveness of trial counsel and all subsequent counsel for failing to raise the issue of the suggestiveness of the pre-trial one-on-one confrontation, appellant has alleged “extraordinary circumstances” which justify the failure to raise the issue in prior P.C.H.A. petitions. Thus, the issue has not been waived. Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980).

Substantively, we are unable to resolve appellant’s claim on the present state of the record. When appellant was displayed one-on-one to the victim three days after the robbery, she was unable to identify him. At the preliminary hearing, however, she unequivocally identified appellant as one of the robbers, and this testimony was repeated during appellant’s trial. Under these circumstances, appellant’s contention appears to have arguable merit. At least, a contrary finding cannot be made summarily.

For these reasons we reverse the order of the court below and remand for an evidentiary hearing at which the merits of the issues raised in appellant’s P.C.H.A. petition should be considered.

Reversed and remanded for proceedings consistent with the foregoing opinion.

SPAETH, J., files a concurring opinion.

JOHNSON, J., files a dissenting opinion.

SPAETH, Judge,

concurring:

I agree that the lower court’s order should be reversed and the case remanded for an evidentiary hearing at which the merits of the issues raised in appellant’s PCHA petition may be considered. I write separately because of Judge WIEAND’s comments in footnote 2 of his opinion.

It is indeed “vexing” that we are reviewing appellant’s fourth PCHA petition and I agree with Judge WIEAND that post-conviction procedures have become too complex and therefore often unduly protracted. A review of those procedures could do no harm, and might prove valuable. As part of that review, I too should like to see a consideration of whether it would not be better to return to the doctrine of “fundamental error,” abolished by Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Beyond this, I am unable to agree with Judge WIEAND. Of course it is “offensive” “[t]o permit unlimited and largely unfounded claims of ineffective assistance [of counsel].” But the fact is that all too often persons accused of crime do indeed receive ineffective assistance of counsel; their claims are by no means “unfounded.” See, e.g., Commonwealth v. Hoetzel, 284 Pa.Superior Ct. 623, 426 A.2d 669 (1981) (failure to request charge relating to constructive possession and failure to object to erroneous simple possession charge); Commonwealth v. Candia, 286 Pa.Superior Ct. 282, 428 A.2d 993 (1981) (“grossly inappropriate” questioning of defendant by defense counsel opened door and subjected defendant to ridicule regarding past drug-related activities); Commonwealth v. Stiefel, 286 Pa.Superior Ct. 259, 428 A.2d 981 (1981) (failure to produce crucial witnesses); Commonwealth v. Lennox, 286 Pa.Superior Ct. 41, 428 A.2d 228 (1981) (filing of boiler-plate post-verdict motions resulting in waiver); Commonwealth v. Russo, 283 Pa.Superior Ct. 421, 424 A.2d 536 (1980) (failure to object to prosecutor’s open challenge to defendant to take witness stand); Commonwealth v. Zaborowski, 283 Pa.Superior Ct. 132, 423 A.2d 1023 (1980) (failure to file amended PCHA petition or brief); Commonwealth v. Parker, 281 Pa.Superior Ct. 360, 422 A.2d 509 (1980) (failure to file brief as ordered by Superior Court); Commonwealth v. Johnson, 280 Pa.Superior Ct. 309, 421 A.2d 737 (1980) (failure to file post-verdict motions properly and to protect defendant’s right of appeal). The limitations suggested by Judge WIEAND would, I fear, often result in excusing careless counsel. Our time might be saved. But justice would not be served.

JOHNSON, Judge,

dissenting:

When confronted with a claim of ineffective assistance of counsel this court undertakes a two-step analysis. First, we must determine whether the issue underlying the claim has arguable merit. If we find such arguable merit, then we inquire whether there was a reasonable basis for counsel’s action or inaction. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, 285 Pa.Super.Ct. 295, 427 A.2d 231 (1981). In this case the claim is that counsel was ineffective for not “raising the issue” of a one-on-one confrontation between the victim and the defendant three days after the defendant robbed the victim at gunpoint. The police brought two suspects in a car to the victim’s store and asked her if they were the robbers. The victim responded that she couldn’t be sure. At the preliminary hearing she did identify the defendant. At trial she testified that she recognized him as the robber because he had been a customer.

Firstly, at trial the jury knew of her earlier equivocation, and could therefore accord to her identification of the defendant what weight it chose. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Boone, 287 Pa.Super.Ct. 1, 429 A.2d 689 (1981). Secondly, the identification of the defendant at the preliminary hearing had a basis independent of any recognition tainted by the earlier confrontation. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971); Commonwealth v. Townsend, 280 Pa.Super.Ct. 155, 421 A.2d 452 (1980); Commonwealth v. Perdie, 249 Pa.Super.Ct. 406, 378 A.2d 359 (1977). Thirdly, two customers in the store also identified the defendant.

The test of the validity of the pre-trial confrontation is whether, considering the totality of the circumstances, the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973). ,

Based on the totality of the circumstances surrounding this case, there would have been no due process violation found and hence counsel was not ineffective for not “raising the issue.”

I therefore would affirm the denial of the PCHA petition.

      . The convictions were affirmed on direct appeal in Commonwealth v. Parker, 208 Pa.Superior Ct. 760, 223 A.2d 136 (1966).

      . Although we adhere to and follow the holding of a majority of the Court in Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) and the decision of the Superior Court in Commonwealth v. Barnes, 248 Pa.Superior Ct. 579, 375 A.2d 392 (1977), the fact that we are here reviewing appellant’s fourth P.C.H.A. petition suggests the urgent need to find the procedural means by which the number of collateral attacks upon the same criminal conviction can be limited. This is a vexing problem. “[Vjirtually any claim, no matter how insignificant, is cognizable on collateral review as long as that claim is cloaked with an allegation of ineffectiveness of counsel. No claim may be truly waived, nor may any criminal conviction become final, subsequent counsel may always generate new litigation by alleging the ineffectiveness of his predecessor.” Commonwealth v. Watlington, supra, 491 Pa. at 250, 420 A.2d at 436 (Dissenting Opinion by Flaherty, J.).
      The first step in finding a solution may well be to remove the confusion which now exists between “waiver” and “forfeiture.” Waiver of a right requires a defendant’s knowing and intelligent decision to surrender that right. Forfeiture, however, “refers to a forfeiture of remedies and is a facet of the procedural law of judgments; it is a principle concerned with the finality of judgments. Many remedies may be forfeited without anyone’s conscious decision.” Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems, 19 Arizona Law Rev. 443, at 475. When we acknowledge that rights can be forfeited without a considered, personal decision by the defendant, then we will be able to focus more clearly on counsel’s inactivity or tactical decision producing such forfeiture.
      Secondly, and perhaps more importantly, we need to draw a distinction between simple counsel error, on the one hand, and ineffective assistance of counsel, on the other. This requires that we re-define that ineffective assistance of counsel which deprives a defendant of the constitutional right to fair trial and requires collateral relief. To permit unlimited and largely unfounded claims of ineffective assistance is offensive to our adversary system; will have a debilitating effect on the criminal, trial bar; will continue to prove tremendously wasteful of judicial resources; and will enhance public discontent with a criminal justice system which is perceived, whether rightly or wrongly, as being overly solicitous of rights of criminal defendants which are largely irrelevant to the issue of guilt or innocence. Perhaps a new definition might hold counsel constitutionally ineffective only in circumstances demonstrating “basic and fundamental error.”
      Only when we limit collateral relief to instances in which counsel’s misfeasance or nonfeasance has been so egregious as to deprive a defendant of his constitutional right to a fair trial, and only when we are willing to recognize that substantive and procedural rights can be “forfeited” by counsel without a prior, knowing and intelligent waiver by the client, can we confidently expect to find a solution. Only then can we impose a realistic and fair limitation upon the seemingly interminable, collateral attacks and appeals which follow convictions because of claims of ineffective assistance of counsel.
      To such a goal, by these or other means, we ask the Supreme Court to lend its supervisory and rule making powers.


author: MONTEMURO, Judge:

text:
    445 A.2d 154
    HOUSEHOLD CONSUMER DISCOUNT COMPANY, Appellant, v. EXTENDED CARE CENTER, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1981.
    Filed April 30, 1982.

      Stephen H. Hutzelman, Erie, for appellant.
    J. Gregory Moore, Erie, for appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

The city treasurer of Erie, Pennsylvania sold the property in dispute in this case on June 7, 1976 for a tax lien which had attached on January 1,1972. Appellee, purchaser of the property, received a City Treasurer’s Deed, No. 1-399, conveying the property to it for the sum of $2,600.00 in delinquent taxes.

On May 4, 1972, approximately four months after the lien had attached, appellant recorded a mortgage executed in its favor on the same property.

Appellant filed a complaint for declaratory judgment praying the court to enter an order declaring its mortgage to be valid. Appellee filed an answer and new matter requesting dismissal of that complaint and a declaratory judgment that the deed received was free and clear of the lien of the subsequently filed mortgage lien. Appellant demurred to the new matter, claiming that the city treasurers tax sale could not divest its mortgage on the property. The demurrer was denied by the lower court, which also granted appellee’s motion for summary judgment.

This appeal was taken by appellant from the order of the lower court denying the demurrer.

Erie is a city of the third class, and the property in question was sold pursuant to the provisions of 53 P.S. § 37541, the Act of June 23, 1931, P.L. 932, Art. XXV, § 2575, renumbered § 2541 and amended by the Act of June 28, 1951, P.L. 662 § 25.2 appearing under the heading “Sale of Real Estate For Delinquent Taxes” and stating as follows:

§ 37541. Public sale of property to satisfy tax claims
In addition to other remedies provided for the collection of delinquent city taxes, the city treasurer may sell at public sale, in the manner hereinafter provided, any property upon which the taxes, assessed and levied, have not been paid and have become delinquent, unless such property has already been purchased and is held for the benefit of all the tax levying authorities concerned. (Emphasis supplied)

Appellant argues that the statute does not state that “any liens of any nature are divested by the sale,” that the statute must be construed strictly on its wording and where no divestiture is provided, none can be assumed.

We disagree, and we affirm the lower court’s holding for the following reasons:

At common law the rule was that a Sheriff’s sale automatically divested all liens, and statutes have therefore been necessary to change the common law and preserve the lien of a mortgage where it is prior to the lien under which a tax sale is made. 24 P.L.E. “Mortgages” § 112 at p. 549.

We cannot conclude therefore that a statute must contain wording as to the effect of a sale for delinquent taxes in order to divest a mortgage; on the contrary, wording which preserves the lien of a prior mortgage would be necessary to provide the right.

The statute which currently does provide protection to mortgage holders is found at 42 Pa.C.S.A. § 8152, and it states in pertinent part:

§ 8152. Judicial sale as affecting lien of mortgage (a) General rule.—Except as otherwise provided in this section, a judicial or other sale of real estate shall not affect the lien of a mortgage thereon, if the lien of the mortgage is or shall be prior to all other liens upon the same property . . .

Such wording does not aid the appellant, however, since the mortgage it wishes to preserve was filed subsequent to the tax lien that led to the sale of the property. The language at § 37541 supra does indicate that additional remedies may be considered as provided in law. Unfortunately for appellant, the additional remedy protects liens of mortgages filed prior to a tax lien, but not those which are filed subsequent.

We affirm the Order of the court below.


author: POPOVICH, Judge: HESTER, Judge,

text:
    445 A.2d 156
    COMMONWEALTH of Pennsylvania v. Lee Roy SWIFT, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed April 30, 1982.

      Steve P. Leskinen, Uniontown, for appellant.
    Gerald Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order dismissing appellant’s PCHA petition after a hearing. We vacate the order and remand for further proceedings consistent with this opinion.

Originally, appellant entered a plea of not guilty and moved for the suppression of statements which he had given to the police subsequent to his arrest. The suppression court denied the motion. Appellant then withdrew his plea of not guilty.

On June 8, 1977, appellant then entered guilty pleas to multiple counts of burglary, arson, and related crimes, and he subsequently was sentenced to a period of incarceration. No direct appeal was taken from the judgment of sentence.

Some two and a half years later, appellant filed a pro se PCHA petition alleging primarily that his citizen’s arrest was accomplished unlawfully; that subsequent statements given by him and evidence obtained from his home were procured in violation of his constitutional rights; that his original counsel was ineffective for failing to appeal the denial of his suppression motion, all of which motivated him to enter guilty pleas and thus rendering such pleas defective.

Counsel was appointed for appellant and a hearing was held on the petition on August 14, 1980. The petition was dismissed, and this appeal followed.

Appellant contends that the court below improperly restricted the post conviction hearing to a review of the guilty plea colloquy, and should have allowed appellant to present evidence in support of his claim that his guilty plea was induced improperly because of the existence of constitutionally infirm evidence (i.e., his arrest, statements given by him and other physical evidence was illegally obtained), and because counsel was ineffective for advising him to enter a plea of guilty rather than to stand trial.

We agree, and therefore, the matter is remanded for an evidentiary hearing.

To begin with, appellant’s allegations that he should be permitted to withdraw his guilty plea because it was motivated primarily by illegally obtained evidence and was entered on the ineffective advice of counsel, if proven, would justify the relief sought. See Commonwealth v. Williams, 485 Pa. 137, 140 ftn. 2, 401 A.2d 331, 333 ftn. 2 (1979).

In Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181, 182 (1975), our Supreme Court applied the United States Supreme Court’s tripartite standard for invalidating guilty pleas. That standard requires that:

“A defendant who wishes to set aside a guilty plea must successfully demonstrate all of the following: (1) the existence of constitutionally infirm evidence; (2) that his guilty plea was primarily motivated by such evidence; and (3) that defendant was incompetently advised by counsel to plead guilty rather than stand trial.” Id. (Emphasis Added). Accord Commonwealth v. Miller, 494 Pa. 229, 235, 431 A.2d 233, 236 (1981); Commonwealth v. Maute, 263 Pa.Super. 220, 225, 397 A.2d 826, 829 (1979); See Also Commonwealth v. Velez, 455 Pa. 434, 440 ftn. 2, 317 A.2d 252, 253 ftn. 2 (1974) (the same criteria apply whether the attack is through a collateral proceeding or on direct appeal).

The PCHA court denied appellant’s petition because it felt that the “plea was freely and voluntarily given” and that “if the plea was voluntary, the issue of the suppression of evidence and ineffective assistance of counsel in connection with it is deemed to be waived. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978).” Trial Court Opinion at 1-2. This conclusion by the PCHA court was in error.

A reading of Commonwealth v. LaSane, supra, offers some insight into the issue before us. In LaSane, the defendant sought to have the statement suppressed; however, that motion was denied. Subsequently, a PCHA petition was filed alleging inter alia that LaSane’s guilty plea should be withdrawn because the record failed to show that it was knowing, intelligent, and voluntary. LaSane also alleged that counsel was ineffective because at the time the guilty plea was entered he “did not adequately prepare before advising him to plead guilty in that [counsel] did not review the . . . decision of the court on the suppression application to evaluate the chances of having the denial [order] reversed on appeal”. Commonwealth v. LaSane, Id, 479 Pa. at 634, 389 A.2d at 50 (footnotes omitted). The PCHA court dismissed appellant’s allegation. On appeal, this Court could not evaluate the adequacy of the guilty plea colloquy inasmuch as LaSane’s failure to raise the issue on direct appeal and his failure to allege any extraordinary circumstances rendered the issue waived. Nonetheless, this finding of waiver was not dispositive of the underlying issue of whether this Court could review the suppression claim advanced by LaSane in connection with the ineffective assistance of counsel claim.

Rather, this Court said:

“LaSane does not now advance any legal or factual reasons to support a conclusion that his confession was illegally obtained
Commonwealth v. LaSane, supra, Id., 479 Pa. at 635, 389 A.2d at 51. (emphasis in original).

Thus, the defendant’s failure to “advance any legal or factual reasons to support a conclusion that his confession was illegally obtained,” id., foreclosed an examination of the underlying suppression issue and the ineffective assistance of counsel claim appended thereto and not, as the PCHA court incorrectly stated below “if the plea was voluntary, the issue of the suppression of evidence and ineffective assistance of counsel in connection with it is deemed to be waived. Commonwealth v. LaSane [supra] . . . . ” Trial Court Opinion at 1-2. (Emphasis added).

Instantly, unlike in LaSane, we are confronted with a situation where appellant alleged that his citizen’s arrest, his confession, and the evidence seized from his home were all obtained in violation of his constitutional rights. Brief for Appellant, at 2. In support of his claim, appellant advanced the following facts:

“That on February 1, 1977, at approximately 5:00 p. m., Donald Zinn, James Frey and William Sackett, all private citizens came to petitioner’s residence and at gun point took him from the confines of his home and placed him in a pick-up truck. Having been detained in said truck momentarily, the police were summoned who subsequently took him into custody. The basis for this apparent ‘citizen’s arrest’ was the alleged burglary of Zinn’s Service Station. That a subsequent and warrantless search of petitioner’s home by the police uncovered five hundred dollars ($500.00) in cash and a set of automobile tires (four).”
Donald Zinn is the owner of that Service Station. This burglary and related offenses is the Commonwealth’s case at No. 137 Criminal Action, 1977. PCHA Pro Se Brief for Appellant at 1.

Thus, an examination of the suppression issue and the ineffective assistance of counsel claim appended thereto is in order because appellant “advance[d] . . . legal or factual reasons to support a conclusion that [certain evidence] was illegally obtained”. Commonwealth v. LaSane, 479 Pa. at 635, 389 A.2d at 51.

As to appellant’s claim that he has a right to be heard on the issue of “the existence of constitutionally infirm evidence and that defendant was incompetently advised by counsel to plead guilty rather than stand trial”, see Commonwealth v. Marsh, 460 Pa. at 255, 333 A.2d at 182, we must remember the following:

“If a petitioner alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.”
19 P.S. § 1180-9.
We also have said that:
“[w]hile the right to an evidentiary hearing is not absolute [Commonwealth v. Cimaszewski, 234 Pa.Super. 299, 339 A.2d 95 (1975)]; unless the PCHA court is certain of the total lack of merit of an issue raised in a PCHA petition, a hearing should be held on the issue. Commonwealth v. Laboy, 460 Pa. 466, 333 A.2d 868 (1975).” Commonwealth v. Rhodes, 272 Pa.Super. 546, 555, 416 A.2d 1031, 1036 (1979).

Thus, when the PCHA court has denied a petitioner the right to be heard on an issue, we on appeal will affirm the court’s order if upon an examination of the record we also can determine that the claims raised in the petition are patently frivolous. Commonwealth v. Taylor, 491 Pa. 205, 206, 420 A.2d 413, 414 (1980). We will remand for an evidentiary hearing on the petition only when it is impossible to tell from the record whether appellant’s petition was frivolous and without support. Commonwealth v. Payton, 253 Pa.Super. 422, 385 A.2d 410, 412, 414 (1978); Commonwealth v. Strader, 262 Pa.Super. 166, 171, 396 A.2d 697, 700 (1978).

Our own independent examination of the record reveals the following: At the suppression hearing, the only issue raised was whether the confessions were extracted from appellant in a coercive manner. As a result, the issues concerning the validity of the citizen’s arrest and the search and seizure of appellant’s home were not addressed at the suppression hearing. These issues also were not addressed at the PCHA hearing, because as stated above, the PCHA court found the issue of the validity of the arrest, search and seizure, and counsel’s ineffectiveness to have been waived because a review of the colloquy revealed that it was entered into knowingly and voluntarily.

Therefore, because “the record does not clearly refute appellant’s claim that his plea was unlawfully induced.” Commonwealth v. Strader, supra, 262 Pa.Super. at 175, 396 A.2d at 702, and “since resolution of the claim is dehors the record, a remand for an evidentiary hearing is necessary so that facts might be found by the trial court.” See also Commonwealth v. Cooke, 288 Pa.Super. 205, 210, 431 A.2d 360, 363 (1981).

The PCHA court’s order dismissing appellant’s PCHA challenge is reversed, and the matter is remanded for an evidentiary hearing to determine under Marsh: “(1) the existence of constitutionally infirm evidence; (2) that his guilty plea was primarily motivated by such evidence; and (3) that defendant was incompetently advised by counsel to plead guilty rather than stand trial.” Commonwealth v. Marsh, 460 Pa. at 255, 333 A.2d at 182.

If the allegations made under Commonwealth v. Marsh, supra, prove to be correct, appellant would be entitled to withdraw the plea and stand trial. If, on the other hand, appellant does not meet the criteria, the relief should be denied. Henceforth, any appeal must be from the order or judgment thus imposed.

The order of the court below is reversed, and the case is remanded for further proceedings consistent with this Opinion.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I dissent. I would affirm on the well reasoned opinion of Judge Cicchetti of the court below.

      . The Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S.A. § 1180-1 et seq. (1981-2).

      . A PCHA petition is the incorrect procedure by which to challenge the validity of a guilty plea. That issue, we have said, “is more properly presented by a motion filed with the sentencing court requesting leave to withdraw the plea. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975) ... Subsequent cases have made it clear, however, that if the challenge to the plea is appended to an additional allegation, such as ineffective counsel, then a PCHA petition is a proper procedure by which to bring the matter before the court. Commonwealth v. Robinson, 253 Pa.Super. 496 fn. 3, 385 A.2d 448 fn. 3 (1978) ...; Commonwealth v. Herold, 246 Pa.Super. 170, 369 A.2d 866 (1977).” Commonwealth v. Maute, supra, 263 Pa. at 224, 397 A.2d at 827-828. (footnote omitted). Accordingly, as appellant’s claim concerning the validity of his guilty plea is appended to a claim that counsel was ineffective, that issue is properly before us. See Commonwealth v. Miller, supra.

       It is not specifically claimed [that] the suppression court’s order was legally incorrect nor is any reason advanced to support such a conclusion.”

      . Appellant also argued inferentially that the “suppression court’s order was legally incorrect,” Commonwealth v. LaSane, supra, 479 Pa. at 635, 389 A.2d at 51, when he said the following:
      “At the hearing on this matter the PCHA Court sustained the District Attorney’s objection to the admission of any evidence dealing with suppression of evidence or with ineffective assistance of counsel. The Court then ruled (in the attached opinion filed December 5, 1980) that the Defendant’s guilty plea was voluntarily and intelligently entered, even though entered on the basis of evidence that may have been seized in violation of the Defendant’s constitutional rights.” Brief for Appellant, at 2. (Emphasis added).

      . We note also that the suppression court below entered an order denying the suppression motion without filing findings of fact and conclusions of law as required by Pa.R.Crim.P. 323(i). Although, this Court is aware of the fact that the appellant did not appeal directly from the suppression order, nonetheless, such noncompliance does a disservice to appellant, the Commonwealth, and the judicial system. See also Commonwealth v. Strader, 262 Pa.Super. at 170 ftn. 2, 396 A.2d at 699 ftn. 2 (1978). Without those findings and conclusions, we are unable to “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Thomas, 284 Pa.Super. 375, 381, 425 A.2d 1151, 1154 (1981). However, as discussed above, because the issue of the validity of his citizen’s arrest and the search and seizure of appellant’s home were not raised at the suppression hearing, the resolution of these issues is dehors the suppression record.

      . At the PCHA hearing below, appellant “attempted to prove at the hearing that his guilty plea was primarily motivated by the allegedly involuntary confession”. Commonwealth v. Miller, supra, 494 Pa. at 236, 431 A.2d at 236. The PCHA court rejected appellant’s claim on the basis that the confession must be “the sole motivation behind his guilty plea.” Trial Court Opinion, at 5. This short summary of the law is incorrect. The existence of the allegedly illegal confession must be a primary and not the sole consideration. See Commonwealth v. Zakrewski, 460 Pa.Super. 528, 333 A.2d 898, 900 (1975). On remand, the correct legal standard therefore, should be applied.


author: POPOVICH, Judge:

text:
    445 A.2d 160
    Ken MILLER and Jane Miller v. Samuel JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1982.
    Filed April 30, 1982.

      Robert J. Beirne, Athens, for appellant.
    Ken and Jane Miller, Sayre, appellees, in pro. per.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal filed from an order denying appellant’s petition for counsel fees and preliminary objections to appellees’ complaint. Because the appeal is interlocutory, we quash.

The facts are undisputed. On November 26, 1980, appellees filed their complaint in assumpsit demanding judgment in the amount of $1,000.00 principal, plus interest, in the amount of $1,400.00, and continuing interest at the rate of 10% per month to the date of judgment. Attached to the complaint was the following note which formed the basis of the instant dispute:

“On September 21, 1979 I Samuel D. Jackson harrowed [sic] ($1000) one thousand dallors [sic] from Ken Miller and Jane Miller.
The money will be paid back with ten percent interest (10%) in one month.
Amount paid back will be one thousand one hundred dollars ($1,100)[.]
/s/ Samuel Jackson”.

Thereafter, appellant filed preliminary objections requesting that the complaint be dismissed because it demanded usurious interest in violation of Pennsylvania’s usury statute and requesting counsel fees, as provided for by certain sections of the statute. After argument on the preliminary objections (during which counsel for appellees stipulated that he was willing to accept simple six per cent interest), appellant filed separately a “PETITION FOR COUNSEL FEES” demanding that the court award “payment of attorney’s fees in the amount of $414.00.” (Record No. 7 at 3) The lower court then issued its order of April 6, 1981:

ORDER

AND NOW, this 6th day of April, 1981, Defendants’ [sic] Preliminary Objections to Plaintiff’s [sic] complaint are hereby denied as Plaintiff’s [sic] attorney has abandoned his claim for excess interest as set forth in his statement filed January 8, 1981, Defendants [sic] petition for counsel fees is hereby denied, and Defendant shall have (20) days from the service hereof to file an answer to the complaint herein.
BY THE COURT:
/s/ Donald O’Malley P. J.
34th Judicial District
Specially Presiding
(Record No. 11) (emphasis added).

Appellant elected not to file an “Answer to complaint” and, instead, filed the instant appeal.

On appeal, appellant argues that the trial court erred in refusing to award counsel fees for the cost of defending against a claim for alleged usurious interest. However, this Court must address initially the scope of review to be applied in the case before us.

Although not raised by appellees, we raise the question of appealability of the lower court’s order sua sponte, since neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321, 322 (1981); Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338, 339 (1980) . This Court has jurisdiction over “all appeals from final orders of the courts of common pleas.” See 42 Pa.C. S.A. 742. A final order is an order which either terminates the litigation or disposes of the entire case. Mitchell v. Center City Cadillac, supra; Giannini v. Foy, supra.

Instantly, when appellant filed his appeal, he had been granted leave to file an answer to the complaint within twenty days of the order dismissing his preliminary objections. Thus, it is clear that he was not at that time “out of court.” Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981) ; Mims v. City of Philadelphia, 267 Pa.Super. 129, 406 A.2d 552 (1979). Obviously, appellant could have resumed the litigation in the court below without waiving or surrendering any issue properly preserved for appeal subsequent to the final disposition of the case in the court below.

However, because, at the time of the filing of the instant appeal, appellant was not “out of court,” the appeal is interlocutory. Additionally, we note that the lower court did not certify the appeal to this court, nor is this appeal authorized by any statute. See 42 Pa.C.S.A. § 702. Accordingly, the appeal taken to this Court is quashed.

      . 41 Pa.C.S.A. § 201 et seq. We observe that a borrower or debtor may be entitled to recover attorney’s fees under Section 503 and 504 of the Act. The Act of January 30, 1974, P.L. 13, No. 6 § 501 et seq.

      . The April 6th court order was filed on “April 20, 1981 at 10:40 a. m.” (Record No. 16). However, the docket entries show that an identical order was filed with the trial court’s opinion on June 10, 1981. The record also discloses that on May 29, 1981, a date more than twenty days beyond the issuance of the original order, judgment was entered by the Prothonotary’s Office of Bradford County against appellant in the amount of $1,100.00 with costs and interest, no answer having been filed by appellant.

      . Indeed, in his brief, counsel for appellant acknowledges that this appeal may be interlocutory but argues that the effect of the lower court’s order is final because the “defendant is denied access to legal defense”. Brief for Appellant at 5. This argument is unsupported by the record, statute, rule of court or case law.