text:
    511 A.2d 239
    Marie MIHALCIK, Administratrix of the Estate of Andrew Mihalcik and Marie Mihalcik on her own behalf, Appellant, v. CELOTEX CORP. Bell Asbestos Mines, Ltd. Carey Canadian Mines, Ltd. Johns-Manville Corp. Johns-Manville Prods. Corp. Canadian Johns-Manville Co., Ltd. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville Asbestos, Ltd. Johns-Manville Canada, Inc. Owens-Corning Fiberglas Corp. Flintkote Company Pacor, Inc. Amatex H.K. Porter Co., Inc. Kay Asbestos, Forty-Eight Insulations, Inc., Eagle-Picher Ind., Inc. George A. Rowley & Co., Empire Ace Co. Helen PETACCIO, Executrix of the Estate of Armand Petaccio and Helen Petaccio on her own behalf, Appellant, v. CELOTEX CORP., Bell Asbestos Mines, Ltd., Carey Canadian Mines, Ltd. Johns-Manville Corp. Johns-Manville Prods. Corp. Canadian Johns-Manville Co., Ltd., Johns-Manville Sales Corp. Owens-Illinois, Inc. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville, Asbestos, Ltd. Johns-Manville Canada Inc. Owens-Corning Fiberglas Corp. Flintkote Company, Pacor, Inc. Amatex, H.K. Porter Co., Inc. Kay Asbestos Forty-Eight Insulations, Inc. Eagle-Picher Ind., Inc. George A. Rowley & Co. Empire Ace Co.; Marion Dorsey STEWART, Administratrix of the Estate of David Dorsey and Marion D. Stewart on her own behalf, Appellant, v. CAREY CANADIAN MINES, LTD. Quebec Asbestos Corp. Johns-Manville Corp., Johns-Manville Prods. Corp., Canadian Johns-Manville Co., Ltd. Johns-Manville Sales Corp., Canadian Johns-Manville Mining Co., Ltd., Canadian Johns-Manville Asbestos, Ltd., Johns-Manville Canada, Inc. Cassiar Asbestos Corp. Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines Ltd. Cape Industries Ltd. Amosa (Pty) Ltd. Eloise SIMPKINS, Administratrix of the Estate of James Simpkins and Eloise Simpkins on her own behalf, Appellant, v. CAREY CANADIAN MINES, Ltd. Quebec Asbestos Corp. JohnsManville Corp. Johns-Manville Prods. Corp. Canadian JohnsManville Co., Ltd. Johns-Manville Sales Corp. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville Asbestos, Ltd. Johns-Manville Canada, Inc. Cassiar Asbestos Corp. Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines Ltd. Cape Industries Ltd. Amosa (Pty) Ltd. Bernice STEPHENS, Administratrix of the Estate of Clark Stephens, Jr., Appellant, v. CAREY CANADIAN MINES, LTD. Quebec Asbestos Corp. Johns-Manville Corp. Johns-Manville Prods. Corp. Canadian Johns-Manville Co., Ltd. Johns-Manville Sales Corp. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville Asbestos, Ltd. Johns-Manville Canada, Inc. Cassiar Asbestos Corp. Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines Ltd. Cape Industries Ltd. Amosa (Pty) Ltd. Ronald MAYKUT, Executor of the Estate of Walter Maykut, Appellant, v. CAREY CANADIAN MINES, LTD. Quebec Asbestos Corp. Johns-Manville Corp. Johns-Manville Prods. Corp. Canadian Johns-Manville Co., Ltd. Johns-Manville Sales Corp. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville Asbestos, Ltd. Johns-Manville Canada, Inc. Cassiar Asbestos Corp. Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines Ltd. Cape Industries Ltd. Amosa (Pty) Ltd. Catherine WRIGHT, Administratrix of the Estate of Charles Wright, Appellant, v. CAREY CANADIAN MINES, LTD. Quebec Asbestos Corp. Johns-Manville Corp. Johns-Manville Prods. Corp. Canadian Johns-Manville Co., Ltd. Johns-Manville Sales Corp. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville Asbestos, Ltd. Johns-Manville Canada, Inc. Cassiar Asbestos Corp. Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines Ltd. Cape Industries Ltd. Amosa (Pty) Ltd. Continental Prods. Corp. Louise BRUNO, Administratrix of the Estate of Augustine Bruno, Appellant, v. CAREY CANADIAN MINES, LTD. Quebec Asbestos Corp. Johns-Manville Corp. Johns-Manville Prods. Corp. Canadian Johns-Manville Co., Ltd. Johns-Manville Sales Corp. Canadian Johns-Manville Mining Co., Ltd. Canadian Johns-Manville Asbestos, Ltd. Johns-Manville Canada, Inc. Cassiar Asbestos Corp., Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines, Ltd. Cape Industries Ltd. Amosa (Pty) Ltd. Continental Prods. Corp. Marilyn BILLIOPS, Administratrix of the Estate of Robert Kelly, Appellant, v. CAREY CANADIAN MINES, LTD. Quebec Asbestos Corp. Cassiar Asbestos Corp. Ltd. Bell Asbestos Mines, Ltd. Asbestos Corp., Ltd. Philip Carey Mfg. Co., Inc. Glen Alden, Inc. Rapid American, Inc. Celotex Corp. North American Asb. Corp. National Gypsum Co. Cape Asbestos Fibers Ltd. National Asbestos Mines Ltd. Cape Industries Ltd. Amosa (Pty) Ltd.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed June 3, 1986.

      Joseph W. McGuire, Philadelphia, for appellees.
    Before CAVANAUGH, WICKERSHAM, and HOFFMAN, JJ.
   HOFFMAN, Judge:

These nine consolidated appeals are from the orders of the lower court granting appellees’ motions for summary judgment. In each case, an appellant brought a wrongful death and survival action grounded in negligence, strict liability in tort, and breach of warranty against appellees, asbestos companies, for asbestos-related injuries suffered by a decedent. Appellees then filed motions for summary judgment alleging that the appellant’s causes of action were barred by the applicable statutes of limitations. In orders dated November 27, 1984. and January 1, 1985, the lower court granted appellees’ motions for summary judgment in each case and dismissed appellants’ complaints with prejudice. Appellants contend on appeal that the lower court erred in finding that their complaints were time-barred. We affirm in part, reverse in part, and remand for further proceedings.

The lower court held that appellants’ complaints were untimely filed under the rule announced by our Supreme Court in Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981). In Anthony, the Supreme Court considered and rejected the application of the “discovery rule” to the statutes of limitations then in effect for wrongful death and survival actions, and held that the limitations periods began to run, at the latest, on the date of the decedent’s death.

The statutes of limitation considered in Anthony provided a one-year period from the date of death in which to bring wrongful death actions, 12 P.S. § 1603, and a two-year period “from the time when the injury was done” for bringing survival actions. Id. § 34. Both statutes were repealed by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, § 2a (310) (wrongful death), (807) (survival), effective June 27, 1978, and have been recodified at 42 Pa.C.S.A. § 5524(2). In the recodification, both forms of action have a two-year statute of limitations. Id.

In the instant cases, the lower court applied the old statutes of limitations and found that each decedent had died more than two years before the filing of the complaint. See Appendix. For that reason, it held that all of the complaints were time-barred.

Appellants first contend that the lower court erred in applying Anthony retroactively to complaints brought before that decision was filed on October 29, 1981. We disagree.

In Pennsylvania, judicial decisions are normally retroactive, and the construction placed by the court upon a statute becomes part of the act from the very beginning. ____ A court’s interpretation will be applied to cases arising from the time of the enactment of the statute unless vested rights are affected.

Baker v. Casualty and Surety Co., 309 Pa. Superior Ct. 81, 85-86, 454 A.2d 1092, 1094-95 (1982) (citations omitted). See also August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981). When deciding whether a decision should be applied prospectively only, we consider three factors:

“First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed____ Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ ... Finally, [the courts] have weighed the inequity imposed by retroactive application, for ‘[w]here a decision ... could produce substantial inequitable results if applied retroactively, there is ample basis in [the case-law] for avoiding the “injustice or hardship” by holding of nonretroactivity.’ ”

Fairbanks v. Travelers Insurance Co., 337 Pa. Superior Ct. 39, 42, 486 A.2d 469, 470 (1984) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (citations omitted)). The first factor of the Chevron test, whether the decision establishes a new principle of law, is a threshold factor that must be met before the other two factors are considered. See Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 622, 375 A.2d 1285, 1289 (1977); Baker v. Aetna Casualty and Surety Co., supra, 309 Pa.Superior Ct. at 89 n. 9, 454 A.2d at 1096 n. 9.

After reviewing our Supreme Court’s decision in Anthony, we find that it does not meet the threshold test of Chevron. The statutes of limitations at issue in Anthony were enacted in 1855 (wrongful death) and 1895 (survival) and had been applied since their enactment without applying the discovery rule. In Anthony, therefore, our Supreme Court declined to create a new legal principle and, instead, reaffirmed the traditional application of the statutes of limitations for wrongful death and survival actions.

Appellants argue, nevertheless, that a new principle of law was established in Anthony because its result was not “clearly foreshadowed.” They argue that the decision was contrary to the trend towards extending the application of the discovery rule to statutes of limitations in a variety of situations. We believe that the existence of such a trend is irrelevant where, as in Anthony, the plain language of the statutes clearly precluded the application of the discovery rule. See Anthony v. Koppers Co., Inc., supra 496 Pa. at 123, 125, 436 A.2d at 183, 184-85; Gravinese v. Johns-Manville Corp., 324 Pa. Superior Ct. 432, 439, 471 A.2d 1233, 1237 (1984). Having found that Anthony did not establish a new legal principle, and thus failed to meet the threshold requirement of the Chevron test, we hold that the lower court did not err in applying its holding retroactively. Cf. Gravinese v. Johns-Manville Corp., supra (applying Anthony retroactively without discussion).

Appellants next contend that the discovery rule should toll the statute of limitations for all wrongful death and tort survival actions filed after June 27, 1978, the effective date of the recodified statute of limitations, 42 Pa.C.S.A. § 5524(2). Appellants argue that (1) the discovery rule applies to § 5524(2) and (2) that section governs all complaints filed after its effective date. While this Court has held, in accordance with appellants' first argument, that the discovery rule is applicable to § 5524(2), see Pastierik v. Duquesne Light Co., 341 Pa. Superior Ct. 329, 491 A.2d 841 (1985), we cannot agree that the new statute of limitations applies to all wrongful death and tort survival actions filed after its effective date. The Judicial Code states: “No cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act.” Judiciary Act of July 9, 1976, P.L. 586, No. 142, § 25(G) (reprinted following 42 Pa.C.S.A. § 5524). Thus, in Symbula v. Johns-Manville Corp., 343 Pa. Superior Ct. 541, 495 A.2d 598 (1985), we held that the discovery rule will operate to toll the new statute of limitations for wrongful death and tort survival actions, but only

where the action is commenced after the effective date of the Judicial Code statute of limitations, and the decedent’s date of death was on or after June 26, 1977, with regard to wrongful death actions [where 12 P.S. § 1603 had previously supplied a one-year statute of limitations], and on or after June 26, 1976, with regard to survival actions [where 12 P.S. § 34 had previously provided for a two-year period]____

Id., 343 Pa.Superior Ct. at 545, 495 A.2d at 600.

Applying these principles to the instant cases, we find that the discovery rule is applicable only to two of the appeals before us. In No. 246 PHL 85, James Simpkins died on May 2, 1977, and the complaint on behalf of his estate was filed on November 5, 1980. See Appendix. Therefore, the discovery rule applies to appellant Simp-kins’s tort survival claim, but not the wrongful death action. In No. 247 PHL 85, Clark Stephens died on January 21, 1978, and the complaint on behalf of his estate was also filed on November 5, 1980. See id. Thus, the discovery rule applies to both appellant Stephens’s wrongful death and tort survival claims. The causes of action of the remainder of appellants were time-barred before the effective date of § 5524(2). Accordingly, we will reverse the order of the lower court, dated January 10, 1985, insofar as it granted summary judgment to appellees and dismissed the tort survival action in No. 246 PHL 85 and the wrongful death and tort survival claims in No. 247 PHL 85.

Appellants Simpkins and Stephens, Nos. 246 and 247 PHL 85, respectively, also contend that the lower court erred in dismissing their breach of warranty survival claims. The Uniform Commercial Code provides a four-year statute of limitations for breach of warranty actions. 13 Pa.C.S.A. § 2725 (formerly 12A P.S. § 2-725). See also Williams v. West Penn Power Co., 502 Pa. 557, 467 A.2d 811 (1983) (four-year statute of limitations applies to personal injury claims founded upon breach of warranty). Here, the actions in both the Simpkins’s case and the Stephens’s case were brought within four years of the date of the decedent’s death. See Appendix. We therefore reverse the order of the lower court dismissing as time-barred the survival claims for breach of warranty contained in Nos. 246 and 247 PHL 85.

Finally, appellants contend that the allegations in their complaints that appellees intentionally and negligently concealed facts giving rise to the instant causes of action, if proven, would estop appellees from invoking the bar of the statute of limitations.

“Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute.” Shaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963); McNair v. Weikers, ... 300 Pa. Superior Ct. [379,] 388, 446 A.2d [905,] 909 [ (1982) ]. It is only where the defendant, through fraud or concealment, causes the plaintiff to relax his or her vigilance or to deviate from the right of inquiry that a defendant is estopped from invoking the bar of the statute of limitations. ... In general, this requires that a defendant have done something amounting to an affirmative inducement to plaintiff to delay bringing the action. ... The party asserting estoppel, moreover, has the burden of proving fraud by evidence that is clear, precise and convincing.

Gravinese v. Johns-Manville Corp., supra, 324 Pa. Superior Ct. at 441-42, 471 A.2d at 1238 (citations omitted). As in Gravinese, we find nothing in the record here that would create an issue of concealment sufficient to estop appellees from asserting a statute of limitations defense. See id.; see also Symbula v. Johns-Manville Corp., supra, 343 Pa. Superior Ct. at 546 n. 6, 495 A.2d at 601 n. 6. We therefore find this issue meritless.

For the foregoing reasons, we affirm the orders of the lower court on appeals Nos. 3372 and 3373 PHL 84 and Nos. 245, 248-250, and 252 PHL 85; reverse the lower court’s dismissal of the survival actions in tort and breach of warranty in Nos. 246 and 247 PHL 85, and its dismissal of the wrongful death action in No. 247 PHL 85; and remand for further proceedings consistent with this opinion. Jurisdiction is not retained.

APPENDIX
Name of Appellant Date of and Docket No._ Death Date Suit Years Filed Delay
MARIE MIHALCIK, Admx. 8/26/74 1/27/81
of the Estate of
ANDREW MIHALCIK, et al. 3372 PHL 1984
Name of Appellant Date of Date Suit and Docket No. Death Filed Years Delay
HELEN PETACCIO, Ex. of 12/9/75 the Estate of ARMAND PETACCIO, et al. 3373 PHL 1984 11/17/80 5
MARION DORSEY STEWART, 1/28/74 Admx. of the Estate of DAVID DORSEY, et al. 245 PHL 1985 11/5/80 7
ELOISE SIMPKINS, Admx. 5/2/77 of the Estate of JAMES SIMPKINS, et al. 246 PHL 1985 11/5/80 3V2
BERNICE STEPHENS, Admx. 1/21/78 of the Estate of CLARK STEPHENS, JR. 247 PHL 1985 11/5/80 3
RONALD MAYKUT, Ex. 8/7/75 of the Estate of WALTER MAYKUT 248 PHL 1985 4/8/81 51/2
CATHERINE WRIGHT, Admx. 11/27/70 of the Estate of CHARLES WRIGHT 249 PHL 1985 5/1/81 10/2
LOUISE BRUNO, Admx. of 4/12/59 the Estate of AUGUSTINE BRUNO 250 PHL 1985 5/29/81 22
MARILYN BILLIOPS, Admx. 11/7/74 of the Estate of ROBERT KELLY 252 PHL 1985 11/20/80 6

      . Eight of the appellants also brought claims for damages in their own right. The claims of two of these appellants, Nos. 3372 and 3373 PHL 84, were unaffected by the lower court’s order dismissing their wrongful death and survival claims. See Lower Court,Opinion dated November 27, 1984 at 1 n. 1. The individual claims of the other seven appellants, Nos. 245-247, 249-250, and 252 PHL 85, derived from the claims on behalf of their decedents, see Lower Court Opinion dated January 10, 1985 at 1, and were apparently dismissed.

      . The order dated November 27, 1984 was filed on November 30 and dismissed the wrongful death and survival actions docketed at Nos. 3372 and 3373 PHL 84.

      . The order dated January 10, 1985 was filed on January 14 and dismissed the wrongful death and survival actions docketed at Nos. 245-250 and 252 PHL 85.

      . The discovery rule tolls the running of the statute of limitations until the person bringing the action discovered or, in the exercise of reasonable care, should have discovered, the injury and the causal connection between another party’s conduct and the injury. See

        Cathcart v. Keene Industrial Insulation, 324 Pa. Superior Ct. 123, 135-37, 471 A.2d 493, 500 (1984).

      . 42 Pa.C.S.A. § 5524 provides as follows:
      The following actions and proceedings must be commenced within two years:
      ★ •k 4c * ie •k

      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or unlawful violence or negligence of another.

      . In support of this argument, appellants rely upon Richardson v. LaBuz, 81 Pa. Commonwealth Ct. 436, 474 A.2d 1181 (1984), in which the Commonwealth Court found that Anthony did create a new principle of law. The decisions of the Commonwealth Court are, of course, not binding upon this Court, and we decline to follow the holding announced in Richardson.

      . Appellants also contend that the holding in Anthony is unconstitutional. We have already rejected this contention in Gravinese v. Johns-Manville Corp., supra, 324 Pa. Superior Ct. at 440-41, 471 A.2d at 1237-38. See also Symbula v. Johns-Manville Corp., 343 Pa. Superior Ct. 541, 546 n. 6, 495 A.2d 598, 601 n. 6 (1985).

      . We note that we are not holding that the discovery rule will toll the statute of limitations in Nos. 246 and 247 PHL 85. All that we hold here is that the discovery rule may toll the statute of limitations if appellants are able to prove that the cause of the decedents’ injuries was discovered, or only could have been discovered, within two years of the date their complaints were filed.

      . Appellees contend that this issue has been raised for the first time on appeal and is therefore waived. See Brief for Appellee Brinco Mining Ltd. (formerly Cassiar Asbestos Corp. Ltd.) at 6 n. 3; Brief for Appellees Owens-Corning Fiberglas Corp. and Asbestos Corp., Ltd. at 1 n. 3. We disagree. Both appellants raised this issue in their memo-randa of law in opposition to appellees’ motions for summary judgment. See Appellant Simpkins’s Memorandum Contra [Appellees’] Motion for Summary Judgment Based on the Statute of Limitations at 4-5 (filed September 19, 1984).

      . In Gravinese v. Johns-Manville Corp., supra, we held that the discovery rule is inapplicable to a survival action based upon breach of warranty because a breach occurs upon delivery, and delivery must occur before death. Thus, a survival action for breach of warranty must be brought, at the latest, within four years of the date of death. Id., 324 Pa.Superior Ct. at 432, 471 A.2d at 1237.

      . Of course, appellants must still prove that their causes of action for breach of warranty arose in the four-year period immediately preceding the filing of their complaints.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    511 A.2d 818
    DISTRICT COUNCIL 33, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO, by Earl STOUT, as Trustee ad litem, and Earl Stout; Albert Johnson; Harry Dargan; George Winns; John Everett; Leonard Tilghman; George Wroten; Earl Williams; Edward Simpkins; Edward Williams; and Francis Rooney, Trustees of District Council 33 Municipal Workers Health and Welfare Fund, Appellants at No. 1463 & 2016 PHL 85, v. CITY OF PHILADELPHIA, Appellant at No. 1511 & 1943 PHL 85.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1986.
    Filed April 25, 1986.
    Reargument Denied July 8, 1986.

      Robert C. Daniels, Philadelphia, for appellants (at 1463 & 2016) and for appellees (at 1511 & 1943).
    Barbara Mather, Assistant County Solicitor, Philadelphia, for appellant (at 1511 & 1943) and for appellee (at 1463 & 2016).
    Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   WICKERSHAM, Judge:

These four consolidated appeals are taken from the orders of April 26, 1985 and July 10, 1985 of the Court of Common Pleas of Philadelphia County. They arise out of a dispute between the City of Philadelphia (“the City”) and District Council 33, American Federation of State, County and Municipal Employees (“District Council 33”) concerning the meaning of the 1982-84 Collective Bargaining Agreement between the, parties.

Trustees for the District Council 33 Municipal Workers Health and Welfare Fund (“the Fund”) filed a complaint in equity and a motion for preliminary injunctive relief on January 18, 1983 against defendant-below, the City, based on allegations that the City had breached its obligation to pay certain sums of money to the Fund. A period of litigation followed which resulted in the disqualification of original counsel for District Council 33. City of Philadelphia v. District Council 33, 503 Pa. 498, 469 A.2d 1051 (1983). Subsequently, the chancellor issued a preliminary injunction in April, 1984 and made certain findings of fact after the initial hearing on this matter. After further trial proceedings in 1984 and 1985, the chancellor issued additional findings. of fact after the final hearing in April, 1985. The City filed a timely motion for post-trial relief. On April 26,1985, the court issued ari order requiring the City to pay an additional $15,879,215.36 to the Fund. Both the City and District Council 33 filed timely exceptions and motions for post-trial relief. On May 24, 1985, District Council 33 filed an appeal from the order of April 26, 1985 at No. 1463 Philadelphia, 1985. The City filed a cross-appeal at No. 1511 Philadelphia, 1985. On July 10, 1985, the chancellor denied both parties' motions in an opinionless order. The City subsequently filed an appeal from that order to our court at No. 1943 Philadelphia, 1985 and District Council 33 filed a cross-appeal at No. 2016 Philadelphia, 1985.

At the outset, we must determine which of the above appeals are properly before us. We conclude that the appeal and cross-appeal at Nos. 1463 and 1511 Philadelphia, 1985 were taken prematurely in that they were taken after the filing but before the disposition of motions for post-trial relief. We therefore quash those appeals. The appeal and cross-appeal at Nos. 1943 and 2016 however, we find properly before this court. See Pa.R.A.P. 301. Accordingly, we now turn to the issues raised therein.

Initially, we examine the claims of appellant, the City. After a thorough examination of the briefs of the parties, the relevant caselaw and the extensive record in this case, we affirm the order of the chancellor in the court below.

We begin by noting that our scope of review in such matters is closely confined. Appellate review of equity matters is limited to the determination of whether the chancellor committed an error of law or abuse of discretion; a final decree in equity will not be disturbed unless it is unsupported by evidence or demonstrably capricious. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980), decided after remand, 495 Pa. 100, 432 A.2d 971 (1981); Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 482 A.2d 1113 (1984).

Applying this standard, we now address appellant’s first issue regarding the chancellor’s interpretation of the City’s obligations to the Fund under the collective bargaining agreement in effect between the parties from July 1, 1982 to June 30,1984. Appellant argues that the chancellor erred in referring to extrinsic evidence to determine the intent of the parties regarding that obligation. We disagree.

In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). Where the words of the contract are clear and unambiguous, the intent of the parties must be determined exclusively from the agreement itself. Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957). Where the language of the written contract is ambiguous, extrinsic or parol evidence may be considered to determine the intent of the parties. In re Herr’s Estate, 400 Pa. 90, 161 A.2d 32 (1960). While courts are responsible for deciding whether, as a matter of law, written contract terms are either clear or ambiguous; it is for the fact finder to resolve ambiguities and find the parties’ intent. Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957); Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa.Super. 288, 310 A.2d 331 (1973).
A contract will be found to be ambiguous:
[I]f, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning____
Ambiguities may be either patent or latent. A patent ambiguity appears on the face of the instrument and arises from the defective, obscure, or insensible language used. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Latent ambiguities arise from extraneous or collateral facts which render the meaning of a written contract uncertain although the language, on its face, appears clear and unambiguous. Id.

Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 385-86, 476 A.2d 1, 5 (1984) (footnote omitted). In light of the facts of this case, such a latent ambiguity existed in the clause addressing health and welfare benefits under the agreement which provided:

23. HEALTH AND WELFARE PROGRAM
Sfc # Í¡C * 5f« ¡{t
B. Each full-time employee in a class or position represented by District Council # 33 shall have health and welfare benefits as such benefits are presently defined including major medical family coverage, under the Blue Cross/Blue Shield group health medical plan, with the City paying the full contribution of such benefits, to District Council 33 Health and Welfare Fund. (1975-76) (as of 1/1/81 receive $92.00 per month).

Agreement between the City of Philadelphia and District Council 33, AFSCME, AFL-CIO, July 1, 1982 — June 30, 1984 at 23.B. [emphasis added].

The chancellor properly resolved any ambiguity as to the term “as such benefits are presently defined” by considering evidence regarding its meaning as understood by the principals to the agreement, former Mayor Frank Rizzo and Earl Stout, President of District Council 33. The chancellor concluded that based on this testimony, the ambiguous phrase should be read to have the same meaning which was attached to it by both parties. See Demharter v. First Federal Savings and Loan Association of Pittsburgh, 412 Pa. 142, 194 A.2d 214 (1963). See also Restatement of Contracts 2d, § 201(1). (“Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning”).

Accordingly, the chancellor found that:

10. The City agreed to “provide 100 percent medical coverage to city employees” consistent with the 100 percent medical coverage provided by District Council 33 to its union members prior to and at the time of the contract negotiations.
* * * * * *
18. The Agreement requires that defendant pay over to the Health and Welfare Fund such amount of money per union member per month as it would cost to purchase a plan that would provide the same full level of health care benefits as provided by District Council 33 to its members immediately preceding the effective date of the current Agreement.

Findings of Fact, May 4, 1984 at 5 and 7.

Where a chancellor’s findings are fully supported by competent evidence of record, they are binding upon a reviewing court. Abraham v. Mihalich, 330 Pa.Super. 378, 479 A.2d 601 (1984). We can find neither an abuse of discretion nor error of law, which would otherwise warrant our disturbing the chancellor’s findings on this issue.

The City next challenges the chancellor’s award of damages as not calculated on a “cost” basis. Once again applying our narrow scope of review, see Sack v. Feinman, supra, Rosen v. Rittenhouse Towers, supra, we must conclude that the chancellor acted within his discretion in this finding and committed no error of law. At trial, expert witnesses for the City and District Council 33 presented opposing views of the proper measure of damages. After consideration of the testimony and the reports of the respective experts, the chancellor was persuaded by the opinion of the Price Waterhouse, expert for District Council 33. The chancellor was the trier of the facts and it was his duty to resolve the conflict in the testimony. Pirilla v. Bonucci, 320 Pa.Super. 496, 467 A.2d 821 (1983). Because his findings are fully supported by competent evidence they are binding upon this court. Abraham v. Mihalich, supra.

Finally, the City contends that the chancellor erred in certain discovery rulings and in improperly shifting the burden of proof at the preliminary hearing. Regarding these matters, we once more find the chancellor committed no error of law and acted properly within his discretion. Since a trial court must oversee the ongoing discovery between the parties during the course of the litigation, it is within the court’s discretion to determine the appropriate measures necessary to insure adequate and prompt discovery of matters permitted under the Rules of Civil Procedure. Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 473 A.2d 139 (1984).

In this case, the deposition testimony regarding the 1975 negotiations sought by the City was not relevant to the pending action and thus was undiscoverable under the rules. See Pa.R.C.P. No. 4003.1. Besides, one of the proposed deponents had previously testified and been cross-examined by the City while the other testified that he had no specific recollection concerning the 1975 negotiations. Similarly, the requested records concerning operating costs of the Fund were irrelevant since the City’s obligation was not governed by those costs. In any event, sufficient evidence was provided to the City in this regard, including trustees minutes, financial audits and other records. We do not believe that the City was entitled to further discovery of these matters. We note also that the City has failed to identify any information produced at trial which was denied to it during pre-trial discovery.

Lastly, the City argues that the court improperly shifted the burden of proof from District Council 33 to the City at the commencement of the final hearing, when the court stated that its preliminary findings of fact would be taken into account. We find the City’s burden of proof claim previously rebutted by our supreme court in Lackey v. Sacoolas, 411 Pa. 235, 191 A.2d 395 (1963), where at the final hearing of an injunction, the court properly incorporated into the record as part of the evidence to be considered, the testimony which had been presented at the preliminary hearing. Accordingly, we hold that the chancellor acted within his discretion in all respects discussed above and affirm the order of the Honorable Lawrence Prattis, dated July 10, 1985.

We now turn to District Council 33’s cross-appeal which disputes the amount of the chancellor’s award, despite his decision in its favor. Applying our narrow scope of review, we are obliged to conclude that the chancellor committed no abuse of discretion nor error of law by “misapplying” the testimony of District Council 33’s expert, a representative of Price Waterhouse. In being persuaded by that expert’s evidence, the chancellor was not required to adopt the expert’s opinion verbatim in his finding of damages. The chancellor’s finding regarding the amount of damages was based on all the evidence, including that adduced from the expert’s testimony and is not so inconsistent with his other findings so that it should be disturbed. See In re Estate of Billinger, 451 Pa. 77, 301 A.2d 795 (1973).

We therefore affirm the order of the Honorable Lawrence Prattis, dated July 10, 1985 with respect to the cross-appeal as well.

Appeals at Nos. 1463 and 1511 Philadelphia, 1985 are quashed. We affirm the order of the court below with respect to appeals Nos. 1943 and 2016 Philadelphia, 1985.

      . The City raises the following issues on appeal:

        I. Whether the Trial Court erred in interpreting the 1982-84 Collective Bargaining Agreement between the City of Philadelphia and District Council 33, AFSCME, with respect to the City’s health benefit obligation in a manner which is contrary to the plain meaning of the Agreement, contrary to the past practices of and prior usage between the parties, and contrary to the intention and understanding of the City’s chief negotiator (now Mayor)?
      II. Whether the Court, having concluded that the City is obligated to pay the costs incurred by the District Council 33 Health & Welfare Fund to provide health benefits to eligible City employees and their dependents, erred in requiring the City to pay to the Fund an amount which is not based upon actual costs, which ignores the opinion of both parties’ expert witnesses, and which generates a $12 million profit for the Fund, for the 18 month period, January 1, 1983, through June 30, 1984?
      III. Whether the Court erred in refusing to permit the City’s reasonable requests for relevant discovery and in refusing to preclude evidence offered by the Plaintiffs on matters as to which discovery had been precluded?
      Brief for Appellant at viii.
      District Council 33 presents the following issue in its cross-appeal: Did not the chancellor in equity misapply the expert opinion testimony of Price-Waterhouse (District Council 33’s expert witness in this case) and err, in part, by arriving at an internally inconsistent finding of fact as to the monthly monetary amount that the District Council 33 Health and Welfare Fund was entitled to receive from the City of Philadelphia, per union member per month, and, consequently, award a monetary amount, per union member per month, that was both inadequate and not supported by the evidence in the record?
      Brief for Cross-appellant at 3.

      . The City would instead have its obligation limited to the cost of Blue Cross A700 Plan benefits as defined by section 27.0111 of the Civil Service Regulations. We note, however, that as the chancellor found, by 1983 the figures provided under the A700 Plan were “án inappropriate guide” to the City's obligation under 23.B of the agreement because the number of employees covered by the A700 Plan was either extremely small or the plan itself had become nonexistent. While the chancellor did not speak to the issue of whether the civil service regulation otherwise governed pursuant to either the preamble or the savings clause of the agreement, we believe these clauses never became operative since 23.B. was never found to conflict with the regulation and pertained to a separate benefit package. Finally, we are not of the opinion that past practice between the parties otherwise substituted the A700 Plan for the City’s obligation as set out in 23.B. of the agreement. While the City’s payments to the Fund may have been “consistent with" the former plan, this indicates only that the City unilaterally attempted to alter the obligation previously undertaken in the agreement. District Council 33 continued to rely on the City’s obligation under 23.B. and that agreement continued to bind the parties.

      . Rule 4003.1 provides as follows:
      Rule 4003.1. Scope of Discovery Generally
      Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
      (emphasis added)


author: HESTER, Judge:

text:
    511 A.2d 824
    NORTHWEST SAVINGS ASSOCIATION, now Northwest Mutual Savings Association v. James T. DISTLER and Joan L. Distler, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 19, 1986.
    Filed June 4, 1986.
    Reargument Denied July 16, 1986.

      Thomas G. Wagner, Saint Marys, for appellants.
    Alvin B. Coppolo, Saint Marys, for appellee.
    Before BROSKY, ROWLEY and HESTER, JJ.
   HESTER, Judge:

In this appeal, appellants seek our review of the entry of judgment non obstante veredicto (hereinafter “judgment n.o.v.”) by the trial court. Appellee instituted an action in mortgage foreclosure when appellants refused to pay the alleged balance due on their mortgage. A jury returned a verdict in favor of appellants; following oral argument, however, appellee’s post-verdict motion for a judgment n.o.v. was granted. That order is the subject of this appeal.

In April of 1970, appellants applied to appellee for a second mortgage on their residence in the amount of $5,000 to construct a garage. The documents prepared for this transaction included a disclosure statement required by the Truth-in-Lending Act, a loan settlement statement, a mortgage and a mortgage note. All of the documents provided for a monthly payment of $52.00 and an interest rate of seven percent. The mortgage and mortgage note were indefinite as to the length of the installment obligation, stating that the monthly payments were to be made “until the principal, all additional advances, interest, premium and other charges ... are paid in full____” However, the disclosure statement provided:

Payments for principal and interest on this transaction shall be 120 monthly installments of $52.00 beginning on the 20th day of June, 1970, and due on the 20th day of each month thereafter. The TOTAL OF PAYMENTS on this transaction will be $6,240.00.

On May 12, 1970, appellants executed a note and mortgage securing the loan of $5,000. Appellants commenced payments on October 29,1970 and made 120 timely consecutive monthly installments thereafter. When appellants received their 1979 mortgage balance statement, it became apparent that the loan would not be discharged by the remaining payments on the ten-year schedule. Appellee admitted that an error had been made in computing the figures on the disclosure statement, but requested appellants to continue monthly payments until the balance was paid in full. After making what they considered to be their final payment, appellants discontinued all mortgage payments as of September 29, 1980.

On July 22, 1981, appellee filed an action in mortgage foreclosure against appellants, who responded by alleging satisfaction and by counter-claiming on a violation of the Truth-in-Lending Act.

At the close of trial, appellants were granted a directed verdict on the Truth-in-Lending Act violation. Appellee’s request for a directed verdict on its mortgage foreclosure claim was denied. A jury verdict was thereafter entered against appellee on its claim.

Subsequently, appellee filed a post-verdict motion requesting judgment n.o.v., alleging that the directed verdict had been improperly denied. The trial court granted appel-lee’s motion and entered judgment in favor of appellee on the mortgage foreclosure action. From that order, appellants have appealed.

The grant of a judgment notwithstanding the verdict may only be entered in a clear case where the facts are such that no two reasonable persons could fail to agree that the verdict is improper. Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985); Sperrazza v. Cambridge Mutual Fire Ins. Co., 313 Pa.Super. 60, 459 A.2d 409 (1983). Judgment n.o.v. should not be entered in cases where evidence is conflicting upon a material fact. Heffner v. Schad, 330 Pa.Super. 101, 478 A.2d 1372 (1984); Burg v. Aberman, 183 Pa.Super. 1, 128 A.2d 179 (1956). When reviewing the grant of such a motion, this court must consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. 571, 417 A.2d 1196 (1980). Moreover, in reviewing such orders, this court must consider all of the evidence actually received, whether the trial rulings were correct or not, which supports the verdict. Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982). For the reasons cited below, we conclude that the judgment n.o.v. was properly entered.

In its opinion, the trial court stated that the admission of the disclosure statement to controvert the debt was improper and that appellee’s motion for a directed verdict should have been granted. Appellants initially argue that a judgment n.o.v. may not be granted to correct an error in the admission or exclusion of evidence.

In support of their position, appellants cite Jones v. Treegoob, 433 Pa. 225, 249 A.2d 352 (1969), for the proposition than an error in the admission of evidence would not support the entry of a judgment n.o.v. The court stated therein that “a judgment n.o.v. cannot be entered on a diminished record.” Id., 433 Pa. at 226, 249 A.2d at 354.

The disclosure statement and loan settlement statement were not the only evidence offered to establish that the agreement of the parties was different from the terms expressed in the note and mortgage. Both parties testified that the calculation of the monthly payments was based upon a ten-year term. Consequently, the admission or exclusion of the ancillary documents was not critical to appellants’ defense, and the granting of a judgment n.o.v. was not in error in that the record was not diminished, still containing evidence pertinent to appellant’s defense.

Moreover, the trial court did not grant the motion on the sole basis that improper evidence was admitted, assuming arguendo that it was in error. The trial court also granted the motion based upon its conclusion that appellants were bound by the terms of the note and mortgage. Thus, the trial court held that there was no material fact at issue to be submitted to the jury and that, as a matter of law, appellants were bound by the terms of the mortgage and note. It therefore overturned the jury verdict and entered judgment in favor of appellee.

Appellants, however, assert that the terms of the mortgage and note do not reflect the true bargain of the parties and should not be controlling. The language of the mortgage and note requiring payments to continue indefinitely until the principal and interest were paid in full did not accurately portray the understanding of the parties in creating a ten-year loan.

Although a writing may appear to be complete on its face, parol evidence is admissible to vary the contents of the writing when there is proof that the writing does not reflect the true agreement of the parties. For example, if the terms of the contract are ambiguous, parol evidence may be introduced to aid in the interpretation of the agreement. Framlau Corp. v. Upper Dublin School Authority Board, 219 Pa.Super. 369, 281 A.2d 464 (1971). Likewise, if fraud, accident, or mistake is alleged, extrinsic evidence is admissible to vary or contradict the terms of a written contract. O’Brien v. O’Brien, 362 Pa. 66, 66 A.2d 309 (1949).

Evidence of mistake as to the monthly amount necessary to discharge the debt over ten years was admitted at trial through the testimony of both parties. Appellants argue that the disclosure statement constituted additional evidence of mistake and was properly admitted for that purpose. As stated above, the trial court ruled that the parol evidence rule barred the document for that purpose. This was error.

As seen above, case law permits the introduction of extrinsic evidence to support an averment of mistake. Thus, the disclosure statement was, in fact, admissible. However, whether relief is granted to the adversely affected party depends upon the nature and effect of the mistake. Loyal Christian Benefit Ass’n v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). The mistake must relate to the basis of the bargain; it must materially affect the parties’ performances, and it must not be one as to which the injured party bears the risk. Id., citing Spatz v. Nascone, 283 Pa.Super. 517, 424 A.2d 929 (1981).

In this case, the basic premise on which the contract was formed was the amount of the loan and the particular interest rate. It is beyond peradventure that both parties expected that the loan would be repaid in full. The term of the loan, ten years, was not an essential fact which formed the inducement to the contract. Appellee has performed its duties pursuant to the contract; it loaned appellants $5,000 at seven percent interest. Appellants had full use of the money, having used it to construct a garage upon their property.

Even if the term of the contract were considered to be an essential ingredient of the bargain, the parties cannot be placed in their former position with respect to the subject matter. Appellants, for whose benefit the contract was performed, would be unjustly enriched if allowed to forgo payment of the balance owing on the outstanding debt.

We find that the mistake present in this contract affords no basis for relief to appellants. They received the benefit of the bargain and must now perform their duties thereunder. Accordingly, no material factual dispute existed which warranted consideration of this matter by a jury. We therefore find that the trial court reached the correct result in granting the motion for judgment n.o.v.

Order affirmed.

      . 15 U.S.C. § 1601 et seq., as amended.

      . Appellants have received relief from appellee’s violation of the Truth-in-Lending Act; appellee was ordered to pay a $1,000 fine and attorneys fees for its erroneous computation of the disclosure statement.

      . In light of our disposition, appellants’ other issue concerning additional attorney's fees for prevailing on appeal is moot.


author: CIRILLO, President Judge:

text:
    511 A.2d 827
    COMMONWEALTH of Pennsylvania v. William RICHARDSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed June 9, 1986.
    Reargument Denied July 25, 1986.

      Edward Reif, Philadelphia, for appellant.
    Vram Nedurian, Assistant District Attorney, Newtown Square, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County denying appellant’s petition to expunge his record of arrest. We conclude that denial of the petition was improper and accordingly reverse.

Appellant was a cab driver. He picked up a young female fare who asked to be taken to her home. On the way there, appellant pulled his cab into a church parking lot, climbed into the back seat, and had sexual intercourse with the woman. He was arrested two days later and charged with rape, indecent assault, simple assault, indecent exposure, false imprisonment and reckless endangerment. Appellant maintained that the intercourse was consensual.

A prima facie case having been established at the preliminary hearing, appellant was held over on all counts. At trial, which was before a jury, the alleged victim testified on behalf of the Commonwealth. On cross-examination, the prosecution asked appellant whether he did not pull the victim to the floor of the car to avoid being seen by a passerby. To this, appellant unresponsively blurted out that he had earlier passed a lie detector test. The Commonwealth requested a mistrial, which was granted. At the subsequent bench trial, the alleged victim was not present to testify. The case was dismissed and appellant was discharged. Thereafter, he petitioned for expungement, which was denied.

Insofar as appellant was never found guilty, it was clearly the Commonwealth’s burden to demonstrate at the hearing that expungement would be improper in this case. Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983). Thus, the Commonwealth was obligated to set forth compelling reasons for denial of appellant’s petition. Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981); Rambo v. Commissioner of Police, 301 Pa.Super. 135, 447 A.2d 279 (1982). Thereafter, the hearing court must weigh the individual’s right to be free from the harm attendant in maintenance of the arrest record against the reasons given to support denial of the petition, which may include

The strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

Commonwealth v. Wexler, supra, 494 Pa. at 330, 431 A.2d at 879. However, this is not an all-inclusive list and other factors may come to bear in any given case. Id.

The Commonwealth argues, and persuasively so, that there is an interest in retaining the arrest record stemming from appellant’s employment as a cab driver; since the general public places a certain trust in common carriers, it is in society’s best interest to make available to a common carrier anything indicative of a potential employee’s propensity to commit serious crimes upon his fares. The Commonwealth also points to appellant’s advanced age, the short time between the arrest and expungement petition, and appellant’s failure to prove specific adverse consequences of the arrest record as factors supporting retention of the arrest record. It also places great weight in the strength of its case against appellant, and in this connection notes that appellant was never found not guilty, but to the contrary only had his case dismissed when the alleged victim would not appear to testify a second time.

It is true that the Commonwealth’s case was strong enough to survive a preliminary hearing and a demurrer. Beyond this, however, we can only speculate as to the strength of the case. Perhaps the prosecuting witness really was victimized and does not want to undergo the trauma of testifying again. Such would not be an uncommon occurrence. Yet myriad other possibilities are apparent, one being that the alleged victim was not telling the truth from the outset. We simply do not know, and therefore can go no further than to say there was enough evidence against appellant to go to trial.

With the exception of this limitation, the Commonwealth’s arguments are for the most part entirely valid. Nonetheless, when placed alongside appellant’s interests, we are compelled to conclude that the trial court erred in denying expungement.

Rape is an ugly, horrendous crime, one which rudely denies a woman her ability to decide for herself with whom she will share what is normally an intimate, personal act. The invasion upon the woman is more than a physical one upon her person; the often long-lasting trauma which follows can bring forth feelings of shame, rage, and fear. Accordingly, when one is even accused of committing so horrible an invasion of another’s privacy, a stigma attaches that is far-reaching and long-lived. It is á tarnish upon one’s repute that is not easily removed. Yet for having such serious ramifications, it is a taint that is easily incurred. By its very nature, rape is a simple accusation to make but a difficult charge to defend. When the crime charged is murder, there is a corpus delicti. The proof of an aggravated assault is a battered victim. Rape, however, requires only “penetration, however slight”, 18 Pa.C.S. §§ 3101, 3121, and thus will not necessarily be accompanied by tangible proof of its occurrence; ejaculation is not required. Id.; See Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985). Unfortunately, rape charges are sometimes fabricated merely to punish another, to seek revenge, or even to mask after the fact what was actually a consensual but imprudent act. The blot on a person’s character stemming from a rape charge is therefore uniquely disproportionate to the ease with which the accusation can be made.

In light of the foregoing, we cannot find any of the reasons advanced by the Commonwealth so compelling as to justify retention of appellant’s arrest record. Underscoring this conclusion is our observation that despite any discrepancy in the docket entries to the contrary, the charges against appellant were not simply dismissed. He was acquitted following a directed verdict which was entered when the Commonwealth rested without presenting the complaining witness. The trial judge states quite clearly in his opinion that appellant was acquitted. This being the case, we will not allow him to be forevermore shackled to the ball and chain of an arrest record for an unproven rape charge.

The order appealed from is reversed. The matter is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

ROWLEY and WIEAND, JJ., concur in the result.

      . The Commonwealth had no explanation at oral argument as to why a transcript of her testimony from the first trial could not be admitted at the bench trial.

      . As the trial court notes in its opinion, the docket entries reflect a dismissal of the charges, although the court did enter acquittals on the informations.

      . In light of our observation that the effect of a rape charge on an arrest record can be pervasive and dramatic, we necessarily reject the Commonwealth’s contention that appellant’s claim must fail because he has not proven specifically what adverse consequences have befallen him in his search for employment.