author: CIRILLO, Judge.

text:
    670 A.2d 190
    Gloria RICCI v. Pamela GEARY. Appeal of Glenn D. DOLFI, Esquire.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed Jan. 19, 1996.

      Glenn Dolfi, Pittsburgh, appellant, in propria personna.
    Miles A. Kirshner, Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   CIRILLO, Judge.

This is an appeal from an order of contempt entered against Glenn D. Dolfi, Esquire, by the Court of Common Pleas of Allegheny County. We reverse.

Glenn D. Dolfi represents the plaintiff in the above-referenced civil action taking place in Allegheny County (Allegheny case). At the same time that trial for the Allegheny ease was scheduled, Dolfi was also obligated to attend an arbitration in Butler County (Butler case). Realizing this potential conflict, Dolfi requested that the arbitration in Butler be continued. The arbitrators denied this request.

Dolfi was able to enter his appearance and to present opening arguments to the jury on the first day of the Allegheny trial. Due to Dolfi’s commitment to attend the Butler County arbitration on the following day, June 1, Dolfi had a colleague in his firm appear in court for the Allegheny trial. After the jury returned a $50,000.00 plaintiff verdict in the Allegheny case, the Honorable Joseph M. James held Dolfi in contempt of court for his failure to appear in court on June 1 and imposed a $300.00 fine.

Dolfi filed a motion for reconsideration which was denied by the trial court. This appeal followed. Dolfi raises the following issues for our review:

(1) Whether an attorney who had conflicting in-court commitments, and who had his law firm partner who had previously participated in the trial at issue substitute for him, was contemptuous when he failed to appear at the trial at issue;
(2) Whether an attorney’s convictions for contempt based on his failure to appear in trial due to conflicting in-court commitments, but who made arrangements for his law firm partner to substitute for him in the trial at issue, was supported by evidence establishing an intentional disobedience or intentional neglect of the lawful process of the court or a reckless disregard of the lawful process of the court; and
(3) Whether an attorney who is convicted of contempt has been denied his constitutional right to due process when he is afforded no notice for a hearing as to said contempt charges?

In considering an appeal from a contempt order, we place great reliance on the discretion of the trial judge. Commonwealth v. Worthy, 354 Pa.Super. 454, 456, 512 A.2d 39, 40 (1986) (citation omitted). “Each court is the exclusive judge of contempts against its process, and on appeal its actions will be reversed only when a plain abuse of discretion occurs.” Commonwealth v. Jackson, 367 Pa.Super. 6, 12, 532 A.2d 28, 31 (1987). The Legislature has authorized the use of summary contempt power through 42 Pa.C.S. § 4131. This statute, in relevant part, states:

The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following case []:
II. [To] disobedience or neglect by officers ... of or to the lawful process of the court

Additionally, unless the evidence establishes an intentional disobedience or an intentional neglect of the lawful process of the court, no contempt has been proven. Commonwealth v. Washington III, 466 Pa. 506, 353 A.2d 806 (1976).

Both this court and our supreme court have addressed the issue of whether there was sufficient evidence of intent necessary to sustain summary contempt holdings of lawyers under subsection II of 42 Pa.C.S. § 4131. When there is no proof that an attorney either had notice of his expected appearance in court on a specified date or that the attorney’s failure to appear in court was “an intentional or willful disregard of the lawful process of the trial court,” no contempt conviction will stand. Washington III, supra; see also In re James, 307 Pa.Super. 570, 453 A.2d 1033 (1982) (counsel overslept and arrived late at trial, delaying court’s instructions to the jury; because there was no indication of intentional disobedience or intentional neglect on the part of counsel, summary criminal contempt conviction and fíne were reversed). Because Bolfi’s conduct did not rise to the level of intentional or willful disregard of the lawful process of court, we reverse.

In In re Bernhart, 501 Pa. 428, 461 A.2d 1232 (3983), a contempt case similar to this case, an attorney notified an assistant court administrator, who was connected with a case in which the attorney was defense counsel, that he had to appear in court in another county. When the attorney failed to appear for an assigned case, the court held that the attorney was not in contempt of court because he did not have the intent to disobey an order requiring him to be available for the assignment of cases on a stand-by trial list. Specifically, the Bemhart court reasoned:

Oftentimes a lawyer finds himself in a situation whereby he must arrange his affairs to minimize the effects of an unforeseen conflict. Where time is short, it is not always possible or practical to notify the president judge personally of a conflict. In this instance, notifying an officer of the court with knowledge of the circumstances is a reasonable alternative.

Id. at 431, 461 A.2d 1232 at 1233. See also Matter of Ring, 492 Pa. 407, 424 A.2d 1255 (1981) (attorney with conflicting in-court commitments, who timely notifies one court of his inability to meet his commitment there, cannot be held in direct criminal contempt); Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977) (there was insufficient evidence to sustain a criminal contempt conviction when a defense attorney failed to appear in court on certain specified dates because trial judge in first county was told by judge in second county that attorney would not be able to be present in his court for trial, and also because the attorney had no notice of first county trial where he had been informally dismissed as defense counsel).

Here, we find that the court lacked sufficient evidence to hold Dolfi in contempt for his failure to appear at the Allegheny trial on June 1. Dolfi knew from the inception of the plaintiffs negligence suit that trial was to begin at the end of May. Accordingly, he made attempts to have his arbitration continued, which, were unsuccessful. Dolfi additionally arranged to have a qualified partner, from his firm, appear in his place for the trial on June 1. This attorney was familiar with the case, having previously conducted a deposition of one of plaintiffs witnesses. The combined success of counsels’ efforts on behalf of plaintiffs case is evidenced by the jury’s returning a rather significant verdict' for the plaintiff. These facts hardly constitute a showing of neglect in Dolfi’s duties as trial counsel and officer of the court, or an intentional neglect of the lawful process of the court. Washington III, supra.

Furthermore, Dolfi’s one day absence caused no delay or hindering of the administration of justice. Through Dolfi’s substitute counsel, also an officer of the court, the trial court was notified that Attorney Dolfi would not be able to make the June 1 court date. In re Bernhart, supra. Dolfi was neither neglectful nor disobedient of the court. See 42 Pa.C.S. § 4131(h). As such, the trial court abused its discretion by holding Dolfi in contempt. Jackson, supra. Accordingly, the order must be reversed. In re James, supra.

Dolfi also contends that he was denied the fundamental constitutional right to notice and a hearing before he was held in contempt. Because we have determined that Dolfi was -wrongfully held in contempt, we need not address this issue on appeal.

Order reversed.

      . Even if the trial court properly determined that Dolfi committed contempt, we would be compelled to reverse the order based on the denial of Dolfi’s constitutional right to due process and notice. Certain procedural safeguards are required before a summary contempt conviction will be entered. The court in Matter of Mandell, 489 Pa. 522, 414 A.2d 1013 (1980), noted that judges may warn an individual that his/her conduct is considered contumacious, or give the party prior warnings in order to "permit an individual to conform his/her conduct to expected court norms or to ensure that the elements of the offense have been established.” Id. (citations omitted); see also Commonwealth v. Jackson, 367 Pa.Super. 6, 532 A.2d 28 (1987) (due process requires that contemnor should have reasonable notice of specific charges and an opportunity to be heard on his behalf).
      When summary contempt power is exercised, there should normally be afforded at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment. Commonwealth v. Stevenson, 482 Pa. 76, 393 A.2d 386 (1978). The trial court order noted that Dolfi was given the opportunity to offer a reasonable explanation for his absence from court on June 1. Dolfi was given the opportunity to be heard, however, immediately after the jury returned its verdict for the plaintiff. The court provided no opportunity for a formal hearing where Dolfi could adduce the evidence of his charge and address the court with a well-prepared argument regarding his innocence. Stevenson, supra. This impromptu notice given to Dolfi, by the court, regarding the charge of contempt, is far from representative of a proceeding that affords an alleged contemnor his/her procedural safeguards. Mat

        ter of Mandell, supra. Such conduct by the court failed to afford Dolfi his due process rights.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    670 A.2d 193
    COMMONWEALTH of Pennsylvania, v. Robert William WRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1995.
    Decided Jan. 19, 1996.
    Lawrence W. Kustra, Pittsburgh, for appellant.
    George R. Kepple, District Attorney, Kittanning, for Com., appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   CIRILLO, Judge:

Robert Wright appeals from the judgment of sentence entered April 7, 1995 in the Court of Common Pleas of Armstrong County. We affirm.

Following a jury trial, Wright was found guilty of conspiracy to deliver drugs on August 13,1992. Wright filed post-trial motions in arrest of judgment and for new trial, which were denied. Wright’s appeal raises the following two questions:

1. Was hearsay evidence properly admitted at trial to enter the out of court statement of a co-defendant?
2. Was the defendant’s right to due process abridged by the admission of hearsay evidence of [an] out of court statement by a co-defendant?

After reviewing the record, the parties’ briefs and the relevant case law, we conclude that the Hon. Joseph A. Nickleach has properly disposed of these claims in his opinion, a copy of which is attached for purposes of allocatur.

Judgment of sentence affirmed.

      . These motions were denied on June 22, 1993, and the trial court ordered a pre-sentence report. Wright was sentenced to not less than twenty-one months and not more than forty-two months at the Diagnostic and Classification Center at Pittsburgh at the hearing on April 7, 1995. The record does not reveal why there was a two-year delay in sentencing for this charge, although there is mention of the illness and death of Wright’s son in December, 1994. The sentencing hearing also related to other charges to which Wright pled guilty. Wright then filed a motion to modify the sentence, which was denied on April 14, 1995.
      The determination of guilt, however, occurred on August 13, 1992. Wright’s appeal is therefore limited to those issues raised in his post-trial motions, pursuant to former Pa.R.Crim.P. 1123(c)(3) (rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994).


author: KELLY, Judge.

text:
    670 A.2d 646
    Kathleen A. BUTTERFIELD (Now Estate of Kathleen A. Butterfield, Deceased), Appellant, v. Robert L. GIUNTOLI, M.D., Alan Rubin, M.D., John J. Mikuta, M.D., Trustees of the Hospital of the University of Pennsylvania, Guy Benrubi, M.D., Stephen C. Rubin, M.D., Lexington Insurance Co., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1995.
    Filed Dec. 7, 1995.
    Reargument Denied Feb. 20, 1996.

      David Perry, Philadelphia, for appellant.
    Melvin R. Shuster, Philadelphia, for Lexington Insurance Company, appellee.

      Daniel F. Ryan, III, Plymouth Meeting, for Com. of PA Medical Professional Liability Catastrophe Loss Fund, amicus curiae.
    Before KELLY, FORD ELLIOTT and OLSZEWSKI, JJ.
   KELLY, Judge.

In this appeal we must determine whether the trial court properly granted summary judgment in favor of appellee, Lexington Insurance Company (“Lexington”), pursuant to the garnishment action brought by appellant-assignee, Estate of Kathleen A. Butterfield (“Butterfield”). Specifically, we must decide whether the instant insurance policy covered punitive damages in view of a Punitive Damages Amendatory Endorsement. In addition, we must determine whether punitive damages assessed on vicarious liability are insurable as a matter of law. For the reasons set forth below, we hold that the trial court erred in placing the burden of proof on assignee Butter-field and granting summary judgment in favor of Lexington. Accordingly, we reverse and remand for proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

This appeal arises from appellant Butterfield’s efforts to collect a portion of the punitive damages awarded in the underlying medical malpractice action against the Hospital of the University of Pennsylvania (“HUP”) and four physicians employed by HUP. HUP is a wholly owned and controlled separate legal entity of the Trustees of the University of Pennsylvania (“Trustees”), the named insured under the Lexington umbrella insurance policy. Lexington is the second level excess insurance carrier for the Trustees, HUP, and its physicians.

In the underlying action, plaintiff Kathleen A. Butterfield brought suit against HUP and four of its physicians for damages arising from drug-induced leukemia. Miss Butter-field’s illness and subsequent death resulted from an extended course of chemotherapy with the experimental drug Alkeran during her treatment at HUP for ovarian cancer. Miss Butterfield died while her action was pending, and her estate successfully litigated the claim to conclusion.

During the relevant time periods, the Trustees, HUP, and each of the defendant doctors carried $100,000 in primary professional liability insurance coverage with the Insurance Company of North America (“INA”), $1 million in first level excess monetary coverage with the Medical Professional Liability Catastrophe Loss Fund (“CAT Fund”), and $10 million in second level excess insurance coverage with Lexington. Approximately six months prior to trial in a letter dated May 18, 1984, Lexington wrote to Johnson & Higgins, Lexington’s insurance broker, advising that it was Lexington’s position that it is against public policy in Pennsylvania to insure for punitive damages and that, therefore, under the Lexington policy there would be no coverage for the punitive damages claim. In a letter dated July 13, 1984, Johnson & Higgins responded:

As you know, the insuring agreement is broad enough to include punitive damages, and they are not excluded. In Pennsylvania, vicariously assessed punitive damages are insurable. So we take exception to the way your position is worded.

Pursuant to the terms of the respective policies, Lexington had the right to participate with the insured in the defense and control of the underlying suit. The pertinent policy provision provides:

V. Settlement and Defense
... the Company, at its option but not being required to, shall have the right and be given the opportunity to associate with the insured in the defense or control of any claim, suit or proceeding which appears reasonably likely to involve the Company, in which event the insured and the Company shall cooperate in all things in the defense or control of such claim, suit or proceeding....

An attorney from the law firm representing Lexington’s interests was present in the courtroom every day. during the two-week trial in November, 1984. Additionally, counsel representing Lexington’s interests regularly contacted the defense attorneys handling the case. (Argument on Lexington’s Preliminary Motions, September 26, 1985, at 7-8).

In the trial court’s charge to the jury, the Honorable Curtis C. Carson instructed that the jury could find HUP either directly negligent, vicariously negligent, or both, in the diagnosis, treatment, or care of Kathleen Butterfield. None of the participants objected to the jury instructions, nor did any of the participants request specific interrogatories to determine whether the jury assessed liability to HUP directly, vicariously, or both. The jury returned a verdict for Butterfield in the amount of $5.5 million, of which $2 million was a lump-sum award for compensatory damages. In addition, the jury awarded $8.5 million in punitive damages apportioned between defendants HUP and the four physicians according to the jury’s assessment of negligence as follows:

Defendant Percent of Negligence Amount of Punitive Damages
HUP 50% $1,750,000
Dr. Mikuta 30% 1,050,000
Dr. Giuntoli 15% 525.000
Dr. Rubin 3% 105.000
Dr. Benrubi 2% 70,000
Totals: 100% $3,500,000

On March 1, 1985, the trial court approved an Agreement and Order between the parties agreeing to settle the case. The trial court entered judgment in favor of Butterfield and against all of the defendants for compensation,, delay, and punitive damages as follows:

Defendant Compensatory Delay Punitive Total
Trustees $1,000,000 $105,753.43 $1,750,000 $2,855,753.43
(for HUP) Dr. Mikuta 600.000 63,452.06 1,050,000 1,713,452.06
Dr. Giuntoli 300.000 31,726.03 525,000 856,726.03
Dr. Rubin 60.000 6,345.21 105,000 171,345.21
Dr. Benrubi 40.000 4,230.14 70,000 114,230.14
Totals: $2,000,000 $211,506.87 $3,500,000 $5,711,506.87

The Agreement provided that the Trustees would pay $450,-761.85 in compensatory and delay damages and $875,000 in punitive damages on behalf of HUP and the four physicians, and that the CAT Fund would pay $1,760,745 in compensatory and delay damages on behalf of HUP and Drs. Mikuta and Giuntoli. An attorney representing Lexington attended the initial settlement meeting on December 3, 1984. Lexington, however, subsequently refused to indemnify the Trustees. The Trustees and the CAT Fund then assigned to Butterfield any claims they may have against Lexington under Lexington’s umbrella insurance policy, which is the subject of this garnishment action.

On April 19, 1985, Butterfield filed a writ of execution to garnish and execute upon the Butterfield judgment debt. On May 13, 1985, Lexington filed preliminary objections. In an opinion and order entered November 30, 1987, the trial court dismissed Lexington’s preliminary objections and directed Lexington to answer the Butterfield interrogatories. Following discovery, the parties agreed to submit this case to the trial court on cross motions for summary judgment. The Honorable Abraham J. Gafni held that Butterfield could not meet its burden of proof on the issue of whether the Lexington policy covered the punitive damages granted against HUP because Butterfield could not show whether the damages were assessed vicariously, for which there may be coverage under Pennsylvania law, or whether the damages were assessed directly, for which coverage is precluded. Therefore, the court denied Butterfield’s motion for summary judgment and entered judgment for Lexington on June 15, 1994. This timely appeal followed.

Butterfield raises the following issues for our review:

1. DID THE LOWER COURT COMMIT REVERSIBLE ERROR BY FAILING TO APPLY THE BURDEN OF PROOF TEST SET FORTH IN RYAN V. FUREY, 437 PA. 96, 262 A.2D 305 (1970) AND BIANCO V. CONCEPTS “100”, INC., 291 PA.SUPER. 458, 436 A.2D 206 (1981) THAT IS, REQUIRING THE IN SURE D/GARNISHOR (APPELLANTS) TO PROVE THE EXISTENCE OF A JUDGMENT AND THE EXISTENCE OF A VALID POLICY OF LIABILITY INSURANCE COMPANY [SIC] COVERING THE CLAIM, AND THEN SHIFTING THE BURDEN OF PROOF TO THE INSURER/GARNISHEE (APPELLEE) WHO ATTEMPTS TO EVADE LIABILITY THROUGH AN AFFIRMATIVE DEFENSE?
2. DOES THE INSURER/GARNISHEE (LEXINGTON) HAVE THE BURDEN TO PROVE THAT PUNITIVE DAMAGES HAVE BEEN DIRECTLY RATHER THAN VICARIOUSLY IMPOSED WHEN THE INSURER ATTEMPTS TO RELY ON THE AFFIRMATIVE DEFENSE THAT PUNITIVE DAMAGES WERE DIRECTLY IMPOSED AND THAT INSURING THEM IS “AGAINST PUBLIC POLICY”?
3. IS A PARENT ENTITY WHO IS FINANCIALLY RESPONSIBLE FOR A JUDGMENT ENTERED AGAINST ITS SUBSIDIARY VICARIOUSLY LIABLE AS A MATTER OF LAW, WHEN SUCH PARENT ENTITY WAS NOT NAMED AS A DEFENDANT AND THE JURY VERDICT WAS AWARDED AGAINST THE SUBSIDIARY?
4. IS THE MEDICAL LIABILITY COVERAGE PROVIDED BY THE MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND (“CAT FUND”) AN INSURANCE POLICY?[]

Butterfield’s Brief at 4.

II. STANDARD OF REVIEW

The standard of appellate review of a grant of summary judgment states that summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 442 Pa.Super. 476, 480, 660 A.2d 83, 85 (1995) (citation omitted); Aetna Casualty and Surety Company v. Roe, 437 Pa.Super. 414, 419-20, 650 A.2d 94, 97 (1994) (citations omitted); Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 98-99, 644 A.2d 1251, 1254 (1994) (citation omitted); Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 558, 618 A.2d 945, 950 (1992), allocatur denied, 536 Pa. 630, 637 A.2d 290 (1993) (citation omitted). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Aetna Casualty and Surety Company v. Roe, supra; Accur-Weather v. Prospect Communications, supra; Stidham v. Millvale Sportsmen’s Club, supra. Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Accu-Weather v. Prospect Communications, supra (citing Overly v. Kass, 382 Pa.Super. 108, 111, 554 A.2d 970, 972 (1989)). Whether a claim is within a policy’s coverage or barred. by an exclusion is a question of law that may be decided by a motion for summary judgment. Ryan Homes, Inc. v. Home Indemnity Company, 436 Pa.Super. 342, 346, 647 A.2d 939, 940-41 (1994), allocatur denied, 540 Pa. 621, 657 A.2d 491 (1995) (citing Solcar Equipment Leasing Corporation v. Pennsylvania Manufacturers’ Association Insurance Company, 414 Pa.Super. 110, 120, 606 A.2d 522, 527 (1992)); Creed v. Allstate Insurance Company, 365 Pa.Super. 136, 140, 529 A.2d 10, 12 (1987), allocatur denied, 517 Pa. 616, 538 A.2d 499 (1988) (citations omitted). We are not bound by the trial court’s conclusions of law, but may draw our own inferences and reach our own conclusions. See Dauphin Deposit Trust Company v. World Mutual Health and Accident Insurance Company of Pennsylvania, 206 Pa.Super. 406, 409, 213 A.2d 116, 117 (1965) (reversing trial court’s erroneous holding that insured had burden of proving that her sickness commenced after effective date of policies). We will reverse a grant of summary judgment only when the trial court has committed an error of law or abused its discretion. Cosmas v. Bloomingdales Bros., Inc., supra; Aetna Casualty and Surety Company v. Roe, supra (citations omitted); Accu-Weather v. Prospect Communications, supra (citing Kelly by Kelly v. Ickes, 427 Pa.Super. 542, 547, 629 A.2d 1002, 1004 (1993)).

Butterfield contends that the trial court erred in granting summary judgment in favor of Lexington because once Butterfield proved the existence of a valid judgment and an insurance policy which covered the claim, Butterfield argues that the burden shifted to Lexington to prove that the claim was excluded. In addition, Butterfield maintains that a genuine issue of material fact remains as to whether the jury awarded punitive damages based on direct or vicarious liability. Therefore, Butterfield asserts, Lexington has not met its burden of proof. We agree.

Initially, we note that garnishment is a well-settled, viable remedy available to a judgment creditor to collect on a judgment from the judgment debtor’s insurer. Helms v. Chandler, 423 Pa. 77, 80, 223 A.2d 30, 31 (1976); Bianco v. Concepts “100”, Inc., 291 Pa.Super. 458, 462, 436 A.2d 206, 208 (1981). See also Ryan v. Furey, 437 Pa. 96, 262 A.2d 305 (1969). The insurer’s liability as garnishee is based upon the insurer’s breach of the insurance contract with its insured, the judgment debtor. Bianco v. Concepts “100” supra (citing Ryan v. Furey, supra at 103, 262 A.2d at 309). As garnishor, Butterfield is required to establish two things: (1) the judgment in favor of Butterfield and against the insured Trustees, and (2) Lexington’s obligation to the Trustees by proving the existence of a policy providing liability coverage for Butterfield’s claim of punitive damages. See Ryan v. Furey, supra; Bianco v. Concepts “100”, supra.

In general, the insurer can then assert any defenses against the garnishor that it could assert against its insured. Ryan v. Furey, supra at 104, 262 A.2d at 309. Even though coverage may not be excluded by specific terms in the insurance contract, it may be excluded as a violation of Pennsylvania’s public policy. United Services Automobile Association v. Elitzky, 358 Pa.Super. 362, 369, 517 A.2d 982, 986 (1986), allocatur denied, 515 Pa. 600, 528 A.2d 957 (1987) (citing Nationwide Mutual Insurance Company v. Hassinger, 325 Pa.Super. 484, 489, 473 A.2d. 171, 173 (1984)). Thus, the insured must show that the policy covers its claim, and then the burden shifts to the insurer to establish an exclusion. Erie Insurance Exchange v. Transamerica Insurance Company, 516 Pa. 574, 580, 533 A.2d 1363, 1366 (1987) (quoting Miller v. Boston Insurance Company, 420 Pa. 566, 570, 218 A.2d 275, 277 (1966)); Keystone Automated Equipment Company, Inc. v. Reliance Insurance Company, 369 Pa.Super. 472, 477, 535 A.2d 648, 650 (1988), allocatur denied, 519 Pa. 654, 546 A.2d 59 (1988) (citing Miller v. Boston Insurance Company, supra).

Instantly, Lexington argues that punitive damages are not covered under its umbrella policy. Secondly, Lexington proffers, even assuming, arguendo, that the policy does cover punitive damages, they are excluded from coverage in Pennsylvania as against public policy. Thirdly, Lexington maintains that even if vicariously imposed punitive damages are insurable, Butterfield has the burden of proving coverage and is foreclosed from doing so because it is impossible to determine the basis for the jury’s award against HUP. Finally, Lexington asserts that even if it had the burden of proving that punitive damages were directly awarded against HUP, Lexington has more than met that burden based upon the record below. We cannot agree.

III. THE INSURANCE POLICIES

The question of whether an insurer has the duty to indemnify depends upon the type of claim at issue. Solcar Equipment Leasing Corporation v. Pennsylvania Manufacturers’ Association Insurance Company, supra (citing Creed v. Allstate Insurance Company, supra). The construction of an insurance policy is a question of law over which we need not defer to the trial court’s findings. American States Insurance Company v. Maryland Casualty Company, 427 Pa.Super. 170, 181, 628 A.2d 880, 886 (1993) (citing United Services Automobile Association v. Elitzky, supra at 368, 517 A.2d at 985). The principles to be applied in reviewing an insurance contract are well settled.

When interpreting an insurance contract, words that are clear and unambiguous must be given their plain and ordinary meaning. Where ambiguities are found, they must be construed in the light most favorable to the insured. However, ‘a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.’ An ambiguity exists only when a policy provision is reasonably susceptible of more than one meaning.[] ... Whether a policy provision is ambiguous is a question of law to be decided by the courts.

Ryan Homes v. Home Indemnity, supra at 346-47, 647 A.2d at 941 (citations omitted). See also American States Insurance v. Maryland Casualty, supra at 181, 628 A.2d at 886 (citing Standard Venetian Blind Company v. American Empire Insurance Company, 503 Pa. 300, 305, 469 A.2d 563, 566 (1984)); United Services Automobile Association v. Elitzky, supra at 368-69, 517 A.2d at 985-86 (citation omitted). In order to decide whether a claim comes within the insurance policy’s coverage, we must first ascertain the policy’s scope. Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 280, 636 A.2d 649, 651 (1994), allocatur denied, 540 Pa. 575, 655 A.2d 508 (1994) (citing Dibble v. Security of America Life Insurance Company, 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991)). Moreover, the proper focus of this scrutiny is the reasonable expectations of the insured at the time of purchase. Id.; Vale Chemical Company v. Hartford Accident and Indemnity Company, 340 Pa.Super. 510, 522, 490 A.2d 896, 902 (1985), rev’d on other grounds, 512 Pa. 290, 516 A.2d 684 (1986) (citing Collister v. Nationwide Life Insurance Company, 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979); Blue Anchor Overall Company v. Pennsylvania Lumbermens Mutual Insurance Company, 385 Pa. 394, 123 A.2d 413 (1956)). In determining the insured’s reasonable expectations, we must examine the totality of the insurance transaction involved. Britamco Underwriters, Inc. v. Weiner, supra.

In this case, the Lexington policy is a “Following Form-Excess Policy.” Therefore, the coverage provided by the INA primary policy defines the scope of coverage for malpractice liability. The pertinent portions of the INA policy provide:

I. Coverages
With respect to coverages A, B, C, D, E, G and H, the Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay with respect to occurrences during the policy period:
* * * * *
D. Malpractice Liability
As damages because of injury, including death, sustained by any person, or property arising out of:
1. Malpractice, error or mistake committed during the policy period:
a. In rendering or failing to rendér to such person or animals, or to the person inflicting the injury, medical, surgical, dental,-nursing, tonsorial or cosmetic massage service or treatment ...

(emphasis added).

We conclude that the policy is ambiguous because this language neither specifically includes nor excludes coverage for punitive damages. Compare Creed v. Allstate Insurance Company; supra at 142, 529 A.2d at 12 (holding “We will pay all sums arising from the same loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage ..language in a homeowner’s policy did not include punitive damages) with Esmond v. Liscio, 209 Pa.Super. 200, 212, 224 A.2d 793, 799 (1966), allocatur denied (1967) (holding “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. Bodily injury * * * caused by accident ...” language in an automobile policy did not expressly exclude punitive damages). We need not determine here whether the damages are included or excluded because the Lexington policy contains a separate endorsement which provides:

PUNITIVE DAMAGES AMENDATORY ENDORSEMENT
In consideration of the premium charged, it is hereby warranted by the Insured that none of the policies listed in the Schedule of Underlying Insurance contain any exclusion(s) of any fines, penalties, punitive or exemplary damages.
It is further agreed that should any policy listed in the Schedule of Underlying Insurance or any renewal or replacement thereof be amended to exclude or contain any exclusion for any fines, penalties, punitive or exemplary damages, then such coverage as is afforded by this policy shall automatically exclude any fines, penalties, punitive or exemplary damages.
All other terms and conditions remain unchanged.

Lexington argues that its umbrella policy excludes coverage for punitive damages under this endorsement because the CAT Fund, an underlying insurer, does not insure for punitive damages claims. Although Lexington listed the CAT Fund in its schedule of underlying insurance, Lexington errs in classifying the CAT Fund as insurance. Rather, the CAT Fund is an executive agency of the Commonwealth statutorily mandated by Article VII of the Health Care Services Malpractice Act, Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 638 n. 1, 487 A.2d 817, 818 n. 1 (1985), on remand, 90 Pa.Cmwlth. 520, 496 A.2d 92 (1985), to compensate victims of a tort or breach of contract by a health care provider in Pennsylvania. See American Casualty Company v. PHICO Insurance Company, 537 Pa. 295, 643 A.2d 91 (1994) (excluding CAT Fund coverage from Court’s discussion of insurance policies’ order of application); DeVeaux v. Palmer, 125 Pa.Cmwlth. 631, 558 A.2d 166 (1989) (explaining CAT Fund is not an independent insurance carrier but an executive agency of Commonwealth in claim for interference with performance of contract); Finkbiner v. Medical Professional Liability Catastrophe Loss Fund, 119 Pa.Cmwlth. 243, 546 A.2d 1327 (1988), affirmed, 523 Pa. 101, 565 A.2d 157 (1989) (holding CAT Fund is not private insurer but rather Commonwealth agency and, therefore, cannot be liable for bad faith refusal to settle case). Thus, we need not reach the issue of the CAT Fund’s liability for punitive damages in this case.

Finding no exclusion for punitive damages in the underlying insurance policy, we hold that the Trustees reasonably expected to be covered for a punitive damages claim and were so covered under Lexington’s insurance policy provisions. Butterfield has met its burden to show coverage of its claim; therefore, the burden now shifts to Lexington to prove an exclusion. See Ryan v. Furey, supra; Bianco v. Concepts “100”, supra. There being no exclusion for punitive damages in the policies themselves, Lexington argues that punitive damages are excluded as against public policy in Pennsylvania.

IV. PUBLIC POLICY ON PUNITIVE DAMAGES

A. Direct Liability

In Pennsylvania, punitive damages are awarded to deter and punish a tortfeasor’s egregious behavior. Martin v. Johns-Manville Corporation, 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985), rev’d on other grounds, 515 Pa. 377, 528 A.2d 947 (1987) (citations omitted); Creed v. Allstate Insurance Company, supra at 141, 529 A.2d at 12; Esmond v. Liscio, supra. Punitive damages may be based on conduct that is outrageous either because of a defendant’s evil motive or his reckless indifference to the rights of others. Martin v. Johns-Manville Corporation, supra (quoting Restatement (Second) of Torts § 908(2)); Creed v. Allstate Insurance Company, supra. For these reasons, this Court has held that a claim for punitive damages against a tortfeasor who is personally guilty of outrageous and wanton misconduct is excluded from coverage as a matter of law. Aetna Casualty and Surety Company v. Roe, supra at 425, 650 A.2d at 100 (citing Creed v. Allstate Insurance Company, supra; Pennbank v. St. Paul Fire and Marine Insurance Company, 669 F.Supp. 122, 125 (W.D.Pa.1987) (quoting Esmond v. Liscio, supra at 215, 224 A.2d at 800)).

B. Vicarious Liability

In 1987, a Pennsylvania federal district court stated in Pennbank v. St. Paul Fire and Marine Insurance Company, supra, that “Pennsylvania does not preclude recovery of punitive damages from an insurer where the insured is only vicariously liable for such damages.” Id. at 125 (citing Esmond v. Liscio, supra). Relying on Esmond v. Liscio, supra, the federal court explained:

[wjhere corporate management commits an outrageous act, punishment is appropriate. Where the act is committed by ... an agent, not pursuant to corporate policy or plan, the corporation, though vicariously liable for punitive damages, is entitled to insure against such damages. We believe this holding to be consistent with Esmond v. Liscio and the underlying public policy.

Id. at 126. In both Esmond v. Liscio, supra, and Pennbank v. St. Paul Fire and Marine Insurance Company, supra, however, the respective courts held that the exception against recovering punitive damages from the insurer when the insured is only vicariously liable did not apply to the facts of either case.

Although no Pennsylvania appellate court has ruled on this precise question with the proper facts before it, we are also guided in our decision-making by other courts which have held insurers liable for indemnifying punitive damages based on vicarious liability, whereas insuring punitive damages based on direct liability is precluded. See e.g. Commercial Union Insurance Company v. Ramada Hotel Operating Company, 852 F.2d 298 (7th Cir.Ind.1988); Independent Petrochemical Corporation v. Aetna Casualty and Surety Company, 654 F.Supp. 1334 (D.C.Cir.1986), cert. denied, 503 U.S. 1011, 112 S.Ct. 1777, 118 L.Ed.2d 435 (1992); U.S. Concrete Pipe Company v. Bould, 437 So.2d 1061 (Fla.1983); Dayton Hudson Corporation v. American Mutual Liability Insurance Company, 621 P.2d 1155 (Okla.1980); Scott v. Instant Parking, Inc., 105 Ill.App.2d 133, 245 N.E.2d 124 (1st Dist.1969); Malanga v. Manufacturers Casualty Insurance Company, 28 N.J. 220, 146 A.2d 105 (1958); Ohio Casualty Insurance Company v. Welfare Finance Company, 75 F.2d 58 (8th Cir.1934), cert. denied, 295 U.S. 734, 55 S.Ct. 645, 79 L.Ed. 1682 (1935). See also Perl v. St. Paul Fire and Marine Insurance Company, 345 N.W.2d 209 (Minn.1984) (holding insurer liable to indemnify in forfeiture of fee for malpractice case based on vicarious liability of law firm and comparing public policy to that of insuring punitive damages based on vicarious liability). In both Commercial Union Insurance Company v. Ramada Hotel Operating Company, supra, and U.S. Concrete Pipe Company v. Bould, supra, the respective courts held that the insurer had the burden of proving that the punitive damages were excluded from coverage as well as the burden of establishing that the liability was direct.

Based upon the foregoing reasons, we hold that Pennsylvania public policy does not preclude recovery of punitive damages where the insured is only vicariously liable for the damages. Therefore, Lexington had a duty to indemnify its insured, the Trustees, for punitive damages awarded on the basis of vicarious liability.

Butterfield acknowledges that it is impossible to confirm the basis of the jury’s findings of punitive damages because no one submitted specific interrogatories. Lexington, however, asserts that although it is impossible for Butterfield to determine the basis for the jury’s award, Lexington has more than met its burden based upon the record. In an effort to support its assertion, Lexington points to the “devastating attack” Butterfield mounted on HUP’s failure to utilize any written guidelines or protocols to govern the administration of Alkeran. Lexington also directs our’attention to the following jury instructions by the Honorable Curtis Carson:

Members of the jury, the defendant Hospital of the University of Pennsylvania has an independent duty to its patients to supervise the practice of medicine in its facility. This means that the defendant hospital, as a corporate entity, had a duty owed to the plaintiff, Kathy Butterfield, to manage and coordinate delivery of her medical care.
Members of the jury, the defendant Hospital of the University of Pennsylvania has a duty under the law of this Commonwealth to have comprehensive policies and standards for ensuring the safety of patients and for the protection against malpractice and negligence in its institution. Members of the jury, the bylaws and Trustees of the Hospital of the University of Pennsylvania and of the medical staff bylaws of the University of Pennsylvania provide that care to a patient is to be provided by an attending physician, medical care provided by a fellow such as Dr. Benrubi and Dr. Rubin is to be provided under the supervision of an attending physician. If you find that based on the evidence, the treatment of Kathy Butterfield was inconsistent with those requirements as stated in the bylaws of the Hospital of the University of Pennsylvania and the Pennsylvania Code, then you may find the Hospital of the University of Pennsylvania was also liable for any negligence which may have occurred in the treatment of Kathy Butterfield.
* * * * * *
Now, then you consider, too, the fact that the University of Pennsylvania Hospital exercised control to the extent that they should have and that there should be some standards, written standards for the training and supervision of fellows in training, who were experts themselves to an extent. Consider the University of Pennsylvania Hospital, the type of institution it is, and you may bring in an amount that you feel would deter this type of conduct in the future.

(R. 659a-663a) (Emphasis added).

Conversely, Butterfield submits the following instructions to support its contention that the punitive damages were awarded based on vicarious liability:

The hospital operates not as an individual, it operates as an entity through individuals; and therefore their liability arises from the conduct of those persons who are its agents. They are in turn the principals.
Members of the jury, if you find that Dr. Benrubi, Dr. Rubin, and even Nurse Berganzt — and she is not a defendant in this case — were employees or agents of the Universi ty of Pennsylvania Hospital and that they were negligent in their care and treatment of Kathy Butterfield and, as I said to you, this negligence was a substantial factor in causing the injuries sustained by Miss Butterfield or increased her risk, which was a substantial factor in creating the condition which led to her death, then you have a right to find, you can find the University of Pennsylvania Hospital also negligent.
Now, remember I said to you that Dr. Mangan is not a defendant in this case but he is a part of the Gynecologic-Oncology group and also he is an agent or if you find that he was an agent of the University of Pennsylvania Hospital from the testimony in this case. Now, some of the circumstances that you are to consider in that connection in determining whether or not an agency relationship existed was that he was on a salary, that he had his office in the hospital, that he had hospital privileges, and that he was an integral part of this hospital, that is, he was in fact in charge of a division within the Gynecologic-Oncology group, and I believe the testimony was chemotherapy, that he was in charge of the Chemotherapy Division. If you find that he was negligent either in his act or omission or commission— because, you see, negligence can be either doing something that a reasonably prudent person wouldn’t do under these circumstances or the failure to do something that a reasonably prudent person would do, if you feel that he was negligent in that regard, that can be ascribed to the University of Pennsylvania Hospital.
This is all in respondeat superior, what we call superior relationship. That is, a person who is my agent does an act that injures a third party and that person is in the course of my business, doing something for me, does an act which causes an injury to a third party, I can be sued as his principal and he as my agent can also be sued. And the fact that a judgment is rendered against him, the same judgment can be rendered against me.
Now, if you find that any of the persons, the doctors involved, and they were the agents of the hospital, and you find that the agents’ conduct was outrageous, that it was exceedingly reckless, then you may bring in a sum against the principal, which would be the University of Pennsylvania Hospital. The statement is that if you find this outrageous conduct was a substantial factor in bringing about the harm the plaintiff is alleged to have suffered, and you find that the conduct was outrageous, you may award punitive damages in addition to compensatory damages.

(Trial Transcript, November 20, 1984 at 1746-50, 1764). (Emphasis added).

Based on these jury instructions, we conclude that the jury could have found HUP either directly negligent, vicariously negligent, or both in Kathleen Butterfield’s diagnosis, treatment, or care. Both Lexington and Butterfield direct our attention to the percentages of negligence the jury assigned to HUP and its doctors in support of their respective theories. Lexington proffers that the jury would have assigned one hundred percent negligence among the doctors had they found HUP only vicariously liable under respondeat superior. Conversely, Butterfield maintains that the jury’s assignment of fifty/fifty negligence between the doctors and HUP fully supports its theory of vicarious liability as the sole basis for the award. We find neither argument conclusively persuasive. Because Lexington had the burden to prove that the punitive damages award was excluded from coverage as a matter of law, Lexington had the burden to show that the jury assessed the punitive damages solely on the basis of direct liability. See Erie Insurance Exchange v. Transamerica Insurance Company, supra; Keystone Automated Equipment Company v. Reliance Insurance Company, supra. Thus, the trial court erred in granting summary judgment for Lexington. We hold that Lexington cannot sustain its burden as a matter of law. Therefore, summary judgment must be granted in favor of Butterfield.

V. NOTICE AND OPPORTUNITY

Lexington’s excess insurance policy was worded broadly enough to create potential coverage of a claim for punitive damages. Lexington was on notice from Esmond v. Liscio, supra, that punitive damages assessed on vicarious liability may be insurable under Pennsylvania law. Lexington’s own broker notified the insurer that the broker’s position was that punitive damages based on vicarious liability would be covered under the Lexington policy. Finally, the Trustees put Lexington on notice that they would be seeking indemnification for any punitive damages based on the Lexington policy and the consideration the Trustees paid for that policy.

Lexington had the right to participate in the underlying case pursuant to the terms of the respective policies. Counsel for Lexington was present in the courtroom every day of the trial. The trial court allowed Lexington’s counsel to attend all discussions held in chambers between the parties. Moreover, counsel was in regular contact outside of court with the defense attorneys handling the case. In essence, Lexington fully participated in this case short of entering their appearance. Furthermore, Lexington was in the best position to request specific interrogatories as it was their important issue of indemnification at stake. It was up to Lexington to determine whether specific interrogatories should be submitted. Having elected not to do so, Lexington is in no position now to claim that “Lexington’s attorney was, at best, an observer and not a participant....” Lexington’s Brief at 28.

While in court, in chambers, or through the defense attorneys handling the case, Lexington had the opportunity to request specific instructions on the question, specific interrogatories, or special verdict forms. Moreover, if necessary, Lexington had the option to intervene. Yet, Lexington did not pursue any means available to them at the outset of the trial, during the trial, or immediately following the verdict in order to definitively determine its duty to indemnify the Trustees. Lexington’s cavalier approach to the legal proceedings was risky because Lexington had the opportunity to resolve the issue by submitting specific instructions, specific interrogatories before or immediately after the verdict, or by seeking intervention, yet declined to do so based on its own independent assessment of the law. See Stidham v. Millvale Sportsmen’s Club, supra (holding insurer was estopped from contending insured’s claim fell outside of policy coverage based on expected or intended exclusion where insurer had opportunity to litigate issue of insured’s intent in declaratory judgment action).

VI. CONCLUSION

Because Lexington had the burden of proving that the Trustees’ claim was excluded from coverage under the Lexington policy, and Lexington cannot meet that burden as a matter of law, we hold that summary judgment must be granted in favor of Butterfield. Accordingly, we reverse the order granting summary judgment to Lexington and remand the matter for proceedings consistent with this opinion.

Order reversed. Jurisdiction relinquished.

      . Counsel at oral argument submitted that the Honorable Curtis C. Carson permitted counsel for Lexington to attend all conferences in chambers at trial.

      . On March 1, 1985, the same day that the Agreement and Order was approved by the trial court, Lexington filed an action in the Eastern District of Pennsylvania, Lexington v. Trustees of the University of Pennsylvania and the Estate of Kathleen Butterfield, No. 85-1125, alleging, inter alia, fraudulent conduct on the part of the Trustees and Butterfield in entering into the Agreement and Order. Lexington later joined the CAT Fund as an additional defendant from whom Lexington sought damages for failing to settle within the Fund’s statutory limits of coverage. In November of 1986, the Trustees and Butterfield filed a second action in the Philadelphia Court of Common Pleas, Butterfield, et al. v. Lexington Insurance Company, alleging, inter alia, fraud in the inducement against Lexington. That case was removed to the Federal District Court, No. 86-7407, where all federal litigation was subsequently stayed pending the conclusion of the instant garnishment action. (Appellant’s Brief at 8).

      . Butterfield is asking for $1,755,753.43 plus interest, costs and fees. This figure represents the difference between the $2,855,753.43 judgment against the Trustees and the $1,100,000.00 advanced by the Trustees’ underlying insurance coverage. Pursuant to the assignment agreement, the Trustees reserved the right to recover a significant portion of the funds advanced to Butterfield provided Butterfield was successful in its garnishment action against Lexington.

      . Although the CAT Fund is not a party to this garnishment action, it has filed a brief amicus curiae on this issue. For a discussion of this issue, see infra at 17-18.

      . As a preliminary matter, we note that Butterfield's brief is thirteen pages over the limit prescribed by Pa.R.App.P. 2135(a), and their reply brief is ten pages over the limit prescribed by Pa.R.App.P. 2135(a).

      . This issue was decided in Butterfield’s favor in the underlying trial and may not now be attacked by Lexington. See Ryan v. Furey, supra at 103, 262 A.2d at 309. See also Aetna Life and Casualty Company v. McCabe, 556 F.Supp. 1342, 1348 (1983) (citing Renschler v. Pizano, 329 Pa. 249, 198 A. 33 (1938); Vaksman v. Zurich General Accident and Liability Insurance Company, 172 Pa.Super. 588, 94 A.2d 186 (1953)) (explaining that insurers are collaterally estopped from litigating issue decided in underlying case so long as insurer had notice of the case and an opportunity to defend).

      . Instantly, the trial court did not reach this issue as it determined that Butterfield could not meet its burden of proving that the punitive damages were assessed vicariously against HUP, and, therefore covered under the policy as a matter of law. For the reasons discussed herein, the trial court erred in placing that burden on Butterfield.

      . Moreover, if a policy is reasonably susceptible of two interpretations, it must be construed in the insured’s favor so as not to defeat, unless clearly necessary, the claim to indemnity which the insured intended to obtain. Blue Anchor Overall Company v. Pennsylvania Lumbermens Mutual Insurance Company, 385 Pa. 394, 397, 123 A.2d 413, 415 (1956) (quoting Armon v. Aetna Casualty and Surety Company, 369 Pa. 465, 468, 87 A.2d 302, 303 (1952)); I.H. France Refractories Company v. Allstate Insurance Company, 396 Pa.Super. 185, 193, 578 A.2d 468, 472 (1990), modified, 534 Pa. 29, 626 A.2d 502 (1993); Dauphin Deposit Trust Company v. World Mutual Health and Accident Insurance Company of Pennsylvania, 206 Pa.Super. 406, 410, 213 A.2d 116, 118 (1965). See also Vale Chemical Company v. Hartford Accident and Indemnity Company, 340 Pa.Super. 510, 521, 490 A.2d 896, 902 (1985), rev’d on other grounds, 512 Pa. 290, 516 A.2d 684 (1986) (citation omitted) (in construing policy’s coverage of liability, court’s objective must be to give effect to policy’s dominant purpose of indemnity).

      . In J.H. France Refractories Company v. Allstate Insurance Company, supra, an en banc panel of this Court explained:
      If a party purchases liability insurance, that party has a reasonable expectation that it will be provided indemnification for liability imposed upon it. Although the exact scope of the protection purchased may require reference to the policy, and it may not be reasonable to expect complete freedom from liability simply because insurance has been purchased, any inclusion of provisions or interpretation of such provisions that seems to insulate the insurer from liability or to otherwise reduce the scope of coverage, which the policy as a whole purports to extend, would have to be viewed with great skepticism, lest the very nature of the contractual relationship become an illusion.
      Surely, an insurer cannot purport to provide liability coverage, collect premiums for coverage, and then expect proffered interpretations of key provisions which would have the effect of greatly reducing or eliminating indemnification for liability to be seriously entertained by the courts. The insurer simply must understand that when it holds itself out as a provider of insurance coverage, offers insurance protection and accepts a premium for such coverage, it will be made to provide such coverage within reasonable bounds of construing the policy in question.

        Id. at 195-96, 578 A.2d at 473.

      . 40 Pa.S. § 1301.701 et seq.

      . Lexington Brief at 2.

      . We also reject Butterfield’s argument that a parent entity is vicariously liable as a matter of law because the Trustees were not named as a defendant but were merely financially responsible for the judgment entered against its subsidiary. We adopt the trial court’s analysis that the “Trustees were merely stepping into the shoes of HUP in assuming liability as the parent entity.” (Trial Court Opinion, filed June 15, 1994, at 9 n. 3).

      . The insurance company could have written its contract so as to specifically exclude punitive damages; but as it did not, it is bound to a strict construction of the terms of the instrument which it drafted.

      . In Royal Indemnity Company v. City of Philadelphia, 1 P.C.R. 110 (Philadelphia County 1977), the Philadelphia County Court of Common Pleas adopted the exception reasoning of Esmond v. Liscio, supra, and held Royal Indemnity liable for the punitive damages assessed vicariously against the City of Philadelphia for the negligent acts of City employees. In that case, as here, the jury found the City negligent in their answers to interrogatories. The trial court determined, however, that the negligence could only have been through vicarious liability. Although Royal Indemnity Company v. City of Philadelphia, supra, is not precedent for this Court, its holding is precedent for the Philadelphia County Court of Common Pleas, wherein this garnishment action originated. See Yudacufski v. Commonwealth, Department of Transportation, 499 Pa. 605, 612, 454 A.2d 923, 926 (1982) (explaining that absent compelling circumstances, a judge should follow established law of that judicial district). We note that the Honorable Abraham J. Gafni would have applied that same reasoning but for an error in the trial court’s analysis of which party had the burden to show how the jury assessed the damages. See Trial Court Opinion at 7.

      . Rule 2327 provides in pertinent part:
      At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
      (1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered;
      Pa.R.Civ.P. 2327(1). See also Commonwealth v. Keystone Mutual Casualty Company, 366 Pa. 149, 76 A.2d 867 (1950) (holding court may permit intervention by “interested parties’’ where purpose of intervention is to protect parties’ interest and because proceeding may impose liability on them); Holloran v. Larrieu, 431 Pa.Super. 558, 637 A.2d 317 (1994) (holding employer entitled to intervene in employee’s medical malpractice action where employer had equitable right of subrogation); Egenrieder v. Ohio Casualty Group, 399 Pa.Super. 86, 581 A.2d 937 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 44 (1991) (explaining burden of proof necessary to support petition to intervene).


author: McEWEN, Judge:

text:
    670 A.2d 658
    Lillian BURGSTAHLER, Appellee, v. ACROMED CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued June 6, 1995.
    Filed Dec. 19, 1995.
    Reargument Denied Feb. 20, 1996.

      Louis A. Bove, Philadelphia & Mark Herrmann, Pro Hac Vice, Cleveland, Ohio, for appellant.
    Martin Heller, Philadelphia, for appellee.
    Before McEWEN, TAMILIA and KELLY, JJ.
   McEWEN, Judge:

This Court granted the motion filed by appellant, AeroMed Corporation, pursuant to Pa.R.A.P. 1311, for leave to file an interlocutory appeal from an order which denied its motion for summary judgment, thus requiring that we determine whether the trial court properly found that the state law claims of the plaintiff, Lillian Burgstahler, had not been preempted by the Medical Device Amendments of 1976 (“The MDAs”), 21 U.S.C. §§ 360c et seq.

FACTUAL BACKGROUND

Appellee, Lillian Burgstahler, suffered, a herniated disc as a result of a work-related accident on June 3, 1983. After a two-month course of bed rest and other non-surgical therapies, administered over a four-year period, failed to provide any relief, Burgstahler entered Thomas Jefferson University Hospital oh January 18, 1987, under the care of Sanford Davne, M.D., an orthopedic surgeon and Donald L. Myers, M.D., a neurosurgeon. These doctors diagnosed Ms. Burgstahler as suffering from a bulging disc between her fourth and fifth lumbar vertebrae and recommended that Ms. Burgstahler undergo surgery to remove the disc and fuse the adjacent vertebrae.

Surgery was performed on January 19, 1987, by Dr. Davne and Dr. Myers, who performed an L-4-5 bilateral decompression laminotomy, foraminotomies, and L-4-5 diskectomy and fusion with allograft, autograft, and the implantation, as spinal fixation devices, of nested bone plates and cancellous bone screws manufactured by AcroMed Corporation and sold under the trade name “VSP Bone Plates” and “VSP Bone Screws.”

Dr. Davne, who had attended in May of 1986, a two-day course conducted by Arthur D. Steffee, M.D., the inventor of the bone plate and screws, testified in a deposition that he was aware at all relevant times, that AcroMed’s VSP bone plates and bone screws had been approved by the FDA for use only in the long bones of the extremities.

The surgery performed by Dr. Davne and Dr. Myers provided appellee with only a short respite from her symptoms and on August 25, 1987, x-rays revealed that the graft had not fused and that two inferior screws had broken. The bone plates and screws were removed during surgery, performed by a different physician, on June 23, 1988, and this action was subsequently instituted by appellee.

Appellee Burgstahler alleged in her complaint that AeroMed was liable for injuries resulting from the use of the VSP nested bone plate and screws as a result of its conduct in:

(a) supplying a defective VSP plate and screws;
(b) manufacturing a defective VSP plate and screws;
(c) failing properly to fabricate the aforesaid VSP plate and screws;
(d) failing properly and adequately to inspect the aforesaid VSP plate and screws;
(e) failing to warn of the defective condition; [and]
(f) failing to provide sufficient or proper information regarding the use of the aforesaid VSP plate and screws.

Appellant filed a motion for summary judgment, contending that it was entitled to judgment in its favor on all claims asserted by appellee due to the preemption afforded by section 360k(a) of the MDAs. Appellant argued in the alternative that the claims asserted by appellee based upon failure to warn or provide appropriate information on the proper use of the device were barred by application of the learned intermediary doctrine since the parties agree that the VSP nested bone plates and cancellous screws are available only upon the prescription of a physician.

The learned Judge Sandra Mazer Moss denied the motion for summary judgment, finding that the preemption provisions of the MDAs did not preempt all state tort claims since the device at issue was a Class II rather than a Class III device. The trial court did not address the argument of appellant that appellee’s failure to warn claim was barred by application of the learned intermediary doctrine.

THE MDAs

The Medical Device Amendments of 1976 (“the MDAs”), 21 U.S.C. §§ 360c-360k (Supp.1995), to the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301 et seq., were enacted:

“To assure the reasonable safety and effectiveness of medical devices intended for human use.” H.Conf.Rep. No. 1090, 94th Cong.2d Sess. reprinted in 1976 U.S.Code Cong. & Admin.News 1070, 1103. The MDA gives the FDA broad powers to classify and regulate medical devices. Under the MDA, the FDA must assign a medical device to one of three statutorily- delineated categories. Class I devices are those devices which pose little or no threat to public health. They are subject to only general requirements concerned with their manufacture. Tongue depressors are one example of a Class I medical device. See: 21 U.S.C. § 360c(a)(1)(A); 21 C.F.R. § 860.3(c)(1). Class II devices include items such as tampons and oxygen masks. Use of Class II devices involves some risk of injury and, as a result, the FDA establishes performance standards, postmarket surveillance programs and guidelines for their use. See: 21 U.S.C. § 360c(a)(1)(B); 21 CFR § 860.3(c)(2). Class III devices are those devices which are implanted in the body or which pose a potentially unreasonable risk of injury. See: 21 U.S.C. § 360c(a)(1)(C); 21 CFR § 860.3(c)(3). They include Zyderm, as well as pacemakers, heart valves and replacement joints. Because of their inherent dangerousness, Class III devices are subject to the most stringent FDA regulation. All Class III devices are required to obtain premarket approval prior to being released for sale and use. 21 U.S.C. § 360e; 21 CFR § 814.1(c).

Kennedy v. Collagen Corp., 67 F.3d 1453, 1455 (9th Cir.1995) (emphasis supplied). Accord: Feldt v. Mentor Corp., 61 F.3d 431, 433 (5th Cir.1995); Lohr v. Medtronic, Inc., 56 F.3d 1335, 1339-40 (11th Cir.1995); Michael v. Shiley, Inc., 46 F.3d 1316, 1319 (3rd Cir.), cert. denied, — U.S.-, 116 S.Ct. 67, 133 L.Ed.2d 29 (1995); Talbott v. C.R. Bard, Inc., 865 F.Supp. 37, 42-43 (D.Mass.1994), aff'd., 63 F.3d 25 (1st Cir.1995); Green v. Dolsky, 433 Pa.Super. 556, 561, 641 A.2d 600, 603, allo. granted, 539 Pa. 678, 652 A.2d 1324 (1994).

Class III devices may not be marketed or sold until the sponsoring company obtains Premarket Approval (PMA) from the FDA. Id. § 360e. To obtain a PMA, the sponsor must submit “all information, published or known to or which should reasonably be known to the applicant, concerning investigations which have been made to show whether or not such device is safe and effective,” Id. § 360e(c)(1)(A), a statement of the intended use of the product, a description of the expected manufacturing processes for the device, and any other information requested by the FDA. Id. § 360e(c)(1)(B)-(G). After review by a panel of medical experts, the FDA may approve the PMA.

Michael v. Shiley, Inc., supra, 46 F.3d at 1320.

Although as a general rule Class II and Class III devices must obtain Premarket Approval (PMA) before they may be marketed to the public, 21 U.S.C. § 360e(c), the MDAs grandfathered into the market all devices introduced before May 28, 1976, the effective date of the Act, see: 21 U.S.C. § 360e(b)(1)(A); 21 C.F.R. § 814.1(c)(1), and permit the sale of a device without PMA where the device is the “substantial equivalent” of a device already on the market, including a device which was grandfathered into the market by virtue of having been first sold prior to May 28, 1976. 21 U.S.C. § 360e(b)(1)(B); 21 C.F.R. § 807.87. The manufacturer must submit a Premarket Notification (PMN), also known as a 510(k) notification, which includes specified information 90 days before marketing a device. The FDA must then clear the device for marketing. 21 U.S.C. § 360(k); 21 C.F.R. §§ 807.87, 807.90, 807.100; Duvall v. Bristol-Myers-Squibb Co., 65 F.3d 392, 396 (4th Cir.1995).

The Pre-Market Notification process requires applicants to submit descriptions of their devices and other information necessary for the agency to determine whether the devices are substantially equivalent. As with the Pre-Market Approval process, Pre-Market Notification applicants must also submit their proposed labeling. Id. If the FDA determines that a device is substantially equivalent to a device that was on the market prior to the enactment of the MDAs in 1976, the applicant is free to market the device.

Reeves v. AcroMed Corp., 44 F.3d 300, 303 (5th Cir.), cert. denied, — U.S.-, 115 S.Ct. 2251, 132 L.Ed.2d 258 (1995). See also: Lohr v. Medtronic, Inc., supra, 56 F.3d at 1340; 21 U.S.C. § 360(k), 360c(f)(1).

The VSP plate and screws at issue in the instant case have, as a result of proceeding through the PMN process, been designated as Class II medical devices, substantially equivalent to earlier marketed devices, and subject only to general controls regarding labeling, reporting, and manufacturing. 21 U.S.C. § 360c(a)(1)(A)-(B).

William R. Christianson, the Vice President of Regulatory Affairs and Quality Assurance for AcroMed Corporation described in his affidavit of February 16, 1994, the PMN process in which AcroMed participated prior to marketing the VSP plates and screws:

AcroMed’s nested bone plates and cancellous bone screws were submitted to the FDA pursuant to the FDA’s 510(k) pre-market notification procedure. In 1985, AcroMed submitted a 510(k) application for its nested bone plates. In 1986, AcroMed submitted a similar notification for its cancellous bone screws. These notifications included the information required by the FDA to make substantial equivalence determinations, including examples of pre1976 devices, design specifications, and proposed labeling. AcroMed’s nested bone plates and cancellous bone screws were cleared for marketing by the FDA under the 510(k) provisions in February 1986. A modified version of AcroMed’s cancellous bone screws was subsequently cleared for marketing by the FDA in January 1988.

The FDA has issued only one regulation applicable to bone plates and screws, and its purpose is to classify long bone screws and plates as Class II medical devices:

§ 888.3030 Single/multiple component metallic bone fixation appliances and accessories.
(a) Identification. Single/multiple component metallic bone fixation appliances and accessories are devices intended to be implanted consisting of one or more metallic components and their metallic fasteners. The devices contain a plate, a nail/plate combination, or a blade/plate combination that are made of alloys, such as cobalt-chromium-molybdenum, stainless steel, and titanium, that are intended to be held in position with fasteners, such as screws and nails, or bolts, nuts, and washers. These devices are used for fixation of fractures of the proximal or distal end of long bones, such as intracapsular, intertrochanteric, intercervical, supracondylar, or condylar fractures of the femur; for fusion of a joint; or for surgical procedures that involve cutting a bone. The devices may be implanted or attached through the skin so that a pulling force (traction) may be applied to the skeletal system.
(b) Classification. Class II.

21 C.F.R. § 888.3030. Other than this identification and classification regulation, the parties have not directed this Court to, nor have we found, any other FDA regulations specifically applicable to long bone screws and plates. The FDA’s own regulations provide that its acceptance of a claim that a device is “substantially equivalent to a device in commercial distribution before May 28, 1976, ... does not in any way denote official approval of the device .... ” 21 C.F.R. 807.97 (emphasis supplied). At least two federal courts have expressly found' that the “510(k) approval under the MDA, standing alone, is not a finding of safety and effectiveness and does not impose specific requirements on a device for preemption purposes.” Lohr v. Medtronic, Inc., supra, 56 F.3d at 1349. Accord: National Bank of Commerce v. Kimberly- Clark Corp., 38 F.3d 988, 998 (8th Cir.1994). See also: Brown v. Medtronic, Inc., 852 F.Supp. 717, 720-21 (S.D.Ind.1994) (general regulations for Class II devices do not rise to the level causing preemption under the MDAs).

The trial judge denied the motion for summary judgment submitted by appellant based upon her finding that the MDAs did not preempt the causes of action set forth in the complaint of appellee where the VSP bone plates and screws were Class II devices which had been marketed as substantial equivalents of devices grandfathered into the market. Our review of the applicable law compels agreement with the trial court as to the allegations of the complaint based upon negligence in the manufacture and sale of the devices. We find, however, that the preemption provisions of the MDAs preclude any state tort action based upon inadequate labeling of the product and failure to warn.

PREEMPTION

Under the supremacy clause of the United States Constitution, federal law is “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, Cl. 2. As a result, all conflicts between federal and state laws must be resolved in favor of federal law. Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir.1992). In determining whether a conflict between state and federal law exists, a court looks to congressional intent. FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990), appeal after remand, 932 F.2d 959 (1991).
Generally, preemption may be express or implied, and it is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id., 498 U.S. at 56-57, 111 S.Ct. at 407, 112 L.Ed.2d at 363. “Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.” Cipollone v. Liggett Group, Inc., [505] U.S. [504], 516, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407, 423 (1992) (holding that the Federal Cigarette Labeling and Advertising Act of 1965 and its amendment preempted some but not all of a lung cancer victim’s state law tort claims). When Congress is silent on the matter, state law will be preempted by federal law “when (a) compliance with both state and federal law is impossible or, (b) when state law stands as an impediment to a federal purpose.” Hunsaker v. Surgidev Corp., 818 F.Supp. 744, 747 (M.D.Pa.1992).

Green v. Dolsky, supra, 433 Pa.Super. at 559, 641 A.2d at 602.

The express preemption provision of the MDAs, 21 U.S.C. § 360k(a), upon which appellant relies for its argument, provides:

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

21 U.S.C. § 360k(a) (emphasis supplied).

The FDA has interpreted this statutory preemption as applicable to state common law tort claims as well as state legislation. The regulations promulgated by the FDA in response to the preemption statute provide:

[N]o State or political subdivision of a State may establish or continue in effect any requirement with respect to a medical device intended for human use having the force and effect of law (whether established by statute, ordinance, regulation, or court decision) which is different from, or in addition to, any requirement applicable to such device under any provision of the act....

21 C.F.R. 808.1(b) (emphasis supplied).

However, those same regulations further explain:

State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific Food and Drug Administration requirements.

21 C.F.R. 808.1(d) (emphasis supplied).

Many of the courts which have more recently addressed the preemption issue in the context of a Class II medical device have found that the action is not pre-empted by Section 360k of the MDAs where there is no specific FDA requirement or regulation applicable to the device at issue so that the state court ruling sought by the plaintiff would neither impose requirements different from or additional to a FDA requirement. See: Michael v. Shiley, Inc., supra, 46 F.3d at 1323; National Bank of Commerce v. Kimberly-Clark Corp., supra, 38 F.3d at 997; Moore v. Kimberly-Clark Corp., 867 F.2d 243, 246 (5th Cir.1989); Ginochio v. Surgikos, Inc., 864 F.Supp. 948, 953 (N.D.Cal.1994); Parenteau v. Johnson & Johnson Orthopedics, Inc., supra, 856 F.Supp. at 64-65; Brown v. Medtronic, Inc., supra, 852 F.Supp. at 721; Mulligan v. Pfizer, Inc., 850 F.Supp. 633, 635-37 (S.D.Ohio 1994); Elbert v. Howmedica, Inc., 841 F.Supp. 327, 331 (D.Haw.1993); Lamontagne v. E.I. DuPont de Nemours & Co., 834 F.Supp. 576, 582-86 (D.Conn.1993), aff'd., 41 F.3d 846 (2d Cir.1994); Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 14, 837 P.2d 1273, 1282 (1992).

The' Supreme Court of Hawaii, in rejecting the preemption argument urged upon it by the manufacturer of a pacemaker, concluded that the FDA’s own regulations precluded a finding of preemption:

In 1978, the Food and Drug Administration (FDA) promulgated regulations implementing § 360k. Under 21 C.F.R. § 808.1(b) (1992), § 360k applies to any state requirement “having the force and effect of law (whether established by statute, ordinance, regulation or court decision).... ” Under 21 C.F.R. § 808.1(d) (1992): “State or local requirements are preempted only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act....”
The language of § 808.1(d) is consistent with that of § 360k. An examination of the language and legislative history of the Medical Device Amendments, as they existed when § 808.1(d) was promulgated in 1978, reveals no clearly expressed legislative intent contrary to the regulation. The regulation’s somewhat restrictive reading of § 360k(a)(2) is also consistent with the legislative history of the Act, which reveals that Congress was concerned with increasing the protection afforded medical device consumers under existing law rather than with restricting or reforming the law in existence at the time of the Act. Moreover, in 1990, subsequent to FDA promulgation of § 808.1(d), Congress amended the Medical Device Amendments of 1976. The purpose of the legislation was to “modify the underlying law in ways that will result in greater protection of the public health.” H.R.Rep. No. 808, 101st Cong., 2d Sess. 13, reprinted in 1990 U.S.Code Cong. & Admin.News 6305, 6306 (emphasis added). The 1990 amendments left § 360k untouched, providing evidence that § 808.1(d) is an accurate reflection of Congressional intent under § 360k. We conclude that both § 360k and § 808.1(d) govern the scope of preemption under the Medical Device Amendments.

Larsen v. Pacesetter Sys. Inc., supra at 13, 837 P.2d at 1281 (emphasis in original). See: Mulligan v. Pfizer, Inc., supra, 850 F.Supp. at 635-36. While the Hawaii Supreme Court had under scrutiny a Class III device, the apt discussion of the regulations by that court is, nonetheless, relevant to our study of a Class II device since the regulations are applicable to both Class II and Class III medical devices.

. The parameters of the preemptive effect of Section 360k of the MDAs having been defined, we proceed to apply the general principles of preemption to each of the claims set forth in the complaint filed by appellee to determine whether it is preempted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 522, 112 S.Ct. 2608, 2621, 120 L.Ed.2d 407, 427 (1992); Lohr v. Medtronic, Inc., supra, 56 F.3d at 1347; Mendes v. Medtronic, Inc., 18 F.3d 13, 17 (1st Cir.1994); Parenteau v. Johnson & Johnson Orthopedics, Inc., supra, 856 F.Supp. at 64.

PREEMPTION OF CLAIMS BASED UPON MANUFACTURE AND SALE

A decision by either court or jury against appellant upon a claim of appellee based upon manufacture and delivery of a defective VSP nested bone plate and cancellous screws, or a claim based upon the failure to properly and adequately inspect the devices before sale, will not impose “requirement[s]” which are “different from, or in addition to” any specific requirement imposed under federal law and will not “relate[ ] to ... any matter” included in a specific MDAs requirement. 21 U.S.C. § 360k(a); 21 C.F.R. 808.1. As a result, and in recognition of the principle that “ ‘the historic police powers of the States [are] not to be superseded by ... [a] Federal Act unless that [is] the clear and manifest purpose of Congress[,]’ ” Cipollone v. Liggett Group, Inc., supra, 505 U.S. at 514, 112 S.Ct. at 2617, 120 L.Ed.2d at 422, quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947), and cognizant of the equally strong presumption against preemption if it would deny a party access to all judicial remedies, Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251-52, 104 S.Ct. 615, 623, 78 L.Ed.2d 443, 454-55 (1984); Kennedy v. Collagen Corp., supra, 67 F.3d at 1456, we find that appellee’s state claims based upon the design, manufacture, and sale of the VSP bone plates and screws have not been preempted by federal law.

It may well serve to reiterate the precise nature of this ruling — namely, the preemption of all state common law claims asserted against the manufacturer of a Class II medical device which entered the market via the 510(k) process as the substantial equivalent of a grandfathered device, is not warranted under federal or state law where there are no requirements, other than package labeling approval, imposed by federal law.

FAILURE TO WARN

The FDA regulations affecting package labeling, however, preclude any state common law action based upon the adequacy of those warnings and instructions. The FDA regulates the labeling and packaging of medical devices such as the bone plates and screws manufactured by AcroMed. See, e.g., 21 C.F.R. §§ 801.1, 801.4, 801.5, 801.6, 801.15, 801.16, 801.109; Green v. Dolsky, supra, 433 Pa.Super. at 567, 641 A.2d at 606. Any strict liability, negligence or implied warranty claims premised on inadequate warnings supplied by AcroMed are, therefore, preempted as a result of these federal requirements affecting the contents of labels and package inserts.

All of the appellate courts which have addressed this issue have found, as do we, that the labeling regulations imposed by the FDA preempt all state tort claims based upon the inadequacy or inaccuracy of those warnings since a finding of negligence based upon such labeling would establish a standard for an adequate warning which would be “in addition to” the FDA labeling regulations. Such an action is thus preempted by the express provisions of Section 360k(a). See, e.g.: Feldt v. Mentor Corp., supra, 61 F.3d at 435; Lohr v. Medtronic, Inc., supra, 56 F.3d at 1351; Michael v. Shiley, Inc., supra, 46 F.3d at 1324; Reeves v. AcroMed Corp., supra, 44 F.3d at 305; Mendes v. Medtronic, Inc., supra, 18 F.3d at 18; Stamps v. Collagen Corp., 984 F.2d 1416 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993); Moore v. Kimberly-Clark Corp., supra, 867 F.2d at 247; Brown v. Medtronic, supra, 852 F.Supp. at 720-21; Bravman v. Baxter Healthcare Corp., 842 F.Supp. 747, 760 (S.D.N.Y.1994); Rinehart v. International Playtex, Inc., 688 F.Supp. 475, 477 (S.D.Ind.1988); Green v. Dolsky, supra at 567, 641 A.2d at 606.

Thus, it is that we affirm that portion of the order which denied summary judgment as to all claims based upon the manufacture and sale of the nested bone plates and screws, and reverse only that portion of the order which denied summary judgment as to the claims of appellee based upon inadequate labeling and warning. The case is, therefore, remanded for trial upon all claims other than those concerning failure to warn. King v. Collagen Corp., 983 F.2d 1130, 1136 (1st Cir.), cert. denied, — U.S. -, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993).

Order affirmed in part and reversed in part. Case remanded. Jurisdiction relinquished.

      . "VSP” is an acronym for "variable screw placement."

      . The plaintiff in Corrigan v. Methodist Hosp., 853 F.Supp. 832 (E.D.Pa.1994), alleged that the physician defendants therein, Dr. Sanford Davne and Dr. Donald Myers "had a financial interest in AcroMed by virtue of the fact that they held stock options and served as members of AcroMed’s Medical Advisory Board.... [and had] engaged in a civil conspiracy to circumvent FDA restrictions on the marketing, labeling and use of the AcroMed VSP system____” Corrigan v. Methodist Hosp., supra, 853 F.Supp. at 833-34.

      . Class II devices may also "be subject to recommendations, guidelines, post-marketing surveillance, the development of patient registries, and even the promulgation of specific performance standards, should the FDA deem them a sufficient health hazard as to require strict product specifications or warnings." Stamps v. Collagen, 984 F.2d 1416, 1418 (5th Cir.) (citing see 21 U.S.C. § 360c(a)(1)(B)), cert. denied,-U.S.-, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993); see also 21 C.F.R. § 860.3(c)(2).

        Parenteau v. Johnson & Johnson Orthopedics, Inc., 856 F.Supp. 61, 64 (D.N.H.1994) (emphasis supplied).

      . We do not include in this analysis any claim based upon fraudulent labeling or upon labeling which fails to meet the requirements specifically imposed by federal regulations. See: Taurino v. Ellen, 397 Pa.Super. 50, 57 n. 3, 579 A.2d 925, 929 n.3 (1990), allo. denied, 527 Pa. 603, 589 A.2d 693 (1991).

      . As a result of our decision, the alternative argument of appellant that it was entitled to summary judgment as to the claims of appellee based upon the failure to warn and failure to provide sufficient information on the use of the device, due to the application of the learned intermediary doctrine, is moot.


author: CERCONE, Judge.

text:
    670 A.2d 666
    COMMONWEALTH of Pennsylvania v. Lena M. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed Jan. 5, 1996.

      Harold Gondelman, Pittsburgh, for appellant.
    Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from a judgment of sentence entered after appellant Lena M. Johnson was found guilty of prostitution following a non-jury trial. We affirm.

The trial court has accurately and aptly summarized the facts of this case:

On June 29, 1994, at approximately 8:00 pm, Detective John Fisher was on an undercover assignment to investigate alleged prostitution at a massage parlor located at 2223 Murray Avenue. The price for a half-hour massage from a topless woman was $25.00, and from a naked woman was $35.00. [For a fee of forty-five ($45.00) dollars, the nude patron could also massage the nude masseuse]. Detective Fisher purchased the totally nude option. [Appellant] asked him to pay her before she began the massage. Detective Fisher was then told to take off all his clothes and lay face down on the table. He testified that [appellant] massaged his back, buttocks and rubbed his testicles. After he rolled onto his back, he solicited [appellant] to perform either intercourse or oral sex, and might have offered her fifty dollars for either service. [Appellant] refused but told Detective Fisher to place her hands on the part of his body that he would like to be massaged the most. He placed her hands on his groin and [appellant] asked whether she should use cream or baby oil. He requested baby oil and she put some on her hands and then began to masturbate Detective Fisher. [At that point, Officer Fisher advised appellant that she was under arrest].
Ronald Wilson, who performs services for the massage parlor, testified that there are signs throughout the establishment that have been displayed since September of 1990. These signs all indicate that the clients will only receive a good massage and not sexual services. The detective did not notice any such signs. The sign in the massage room states [“Please refrain from asking for sexual favors or session will be automatically over with”]. However, [appellant] admitted she did not terminate the session when he requested sexual favors.

Trial court opinion dated March 23, 1995 at 1-2 (citations to the record omitted).

After presiding over a non-jury trial, the Honorable Lester Nauhaus found appellant guilty of prostitution and ordered her to pay the costs of prosecution. In this timely appeal, appellant has framed the issues as follows:

1. Where a police officer enters into a contract with the [appellant], which contract is for her to give him a massage while both are completely nude and with no discussion of sexual activity, can the [appellant] be found guilty of engaging in sexual activity as a business when the police officer places her hands on his genitals?
2. Where signs are posted cautioning visitors to the massage parlor that no sexual activity will be tolerated, does a police officer who enters that' establishment and pays for a massage without discussing sexual activity and who, after the contract is entered into, engages in requests for sexual activity, which are refused by the masseuse, and who then places the [appellant’s] hands on his genitals when asked where he would like to be massaged has not the police officer entrapped the [appellant]?

Brief of Appellant at 8. We shall address these claims in the order presented.

Essentially, appellant first raises a challenge to the sufficiency of the evidence supporting her conviction for prostitution. When presented with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Martin, 433 Pa.Super. 280, 285, 640 A.2d 921, 923 (1994). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Commonwealth v. Woods, 432 Pa.Super. 428, 432, 638 A.2d 1013, 1015 (1994), appeal denied, 539 Pa. 650, 651 A.2d 537 (1994). It is within the province of the fact finder to determine the weight to be accorded each witnesses’ testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa.Super. 29, 33, 631 A.2d 1040, 1042 (1993).

The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can by drawn from the combined circumstances.’ ”

Commonwealth v. Hodge, 441 Pa.Super. 653, 657, 658 A.2d 386, 387-88 (1995) (quoting Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) and Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).

An individual is guilty of prostitution if he or she “is an inmate of a house of prostitution or otherwise engages in sexual activity as a business.... ” 18 Pa.C.S.A. § 5902(a)(1) (emphasis added). Preliminarily, we note that the trial court accepted the officer’s conclusion that appellant engaged in an act of masturbation. See generally Commonwealth v. Kunkle, 424 Pa.Super. 499, 623 A.2d 336, appeal denied, 536 Pa. 621, 637 A.2d 281 (1993) (reviewing court may not substitute its judgment regarding issues of credibility and weight of the evidence based on a cold record for that of the trial court). Neither party disputes that masturbation of a male by a female for money constitutes sexual activity as a business. Commonwealth v. DeStefanis, 442 Pa.Super. 54, 61, 658 A.2d 416, 419 (1995), appeal denied, 542 Pa. 641, 666 A.2d 1051 (1995) (relying on Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988), appeal denied, 520 Pa. 581, 549 A.2d 914 (1988) and Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266 (1986), appeal denied, 515 Pa. 577, 527 A.2d 538 (1987)). Accordingly, “in order for there to be prostitution, there must not only be sexual activity (i.e., manual sexual stimulation), but a payment of money as well, in other words, ‘a prostitution business’.... ‘[B]usiness’ is ‘a commercial activity engaged in for gain.’ ” DeStefanis, 442 Pa.Super. at 62, 658 A.2d at 420. Appellant maintains that the Commonwealth failed to establish that the sexual activity was accompanied by a payment of money and thus failed to prove that appellant was engaged in sexual activity “as a business.”

In DeStefanis, supra, an undercover officer sought a massage at a fitness center. The center charged between sixty ($60.00) and sixty-five ($65.00) dollars for a legitimate massage. At the end of the massage, the masseuse advised the officer that a hand release was available but that oral sex and intercourse were not permitted.- When the detective inquired about the price, the masseuse replied that a tip would be appreciated. The officer declined the service but returned to the center for a second massage. At the completion of that massage, he stated that he was interested in the availability of specific sexual acts other than a hand release. The second masseuse confirmed that, pursuant to “house rules,” only hand releases' were permitted. A female undercover officer who interviewed for a masseuse position was informed by the proprietor of the fitness center that if she chose, she could perform hand releases but that she was not permitted to engage in sexual intercourse. The masseuses earned twenty ($20.00) dollars per hour in addition to tips. Id. at 57-60, 658 A.2d at 417-18.

A panel of this court ruled that the evidence was insufficient to show the existence of a prostitution business:

When [the detective] inquired about the price of a hand release, the vague response was, “a tip would be appreciated.” Arguably, when a client does not agree to pay for a sexual service up front, the ensuing act constitutes sexual activity between two consenting adults. [The detective’s] second masseuse, did not even make [the detective] an offer of any type of sexual activity; it was not until the massage was completed and [the detective] initiated inquiries ... about sexual options that she spoke about hand releases. There can be no assumption, therefore, that a hand release was included in the price of the massage.... [That the proprietor] indicated ... that providing hand releases was an acceptable way to make “tips” is not probative of a prostitution “business”....

Id. at 63, 658 A.2d at 420.

Appellant maintains that because she received no additional remuneration for the alleged sexual act she was not engaged in the “business” of prostitution. That appellant did not request an additional fee for the service is not dispositive. Appellant need not have specified a fee if the price of the hand release was included in the price of the massage.

One of the distinguishing factors in the instant case is the timing of the sexual act. In DeStefanis, discussion of sexual options did not occur until the end of the pre-paid massage. To the contrary, in this case, just two to three minutes into his thirty-minute massage, Officer Fisher rolled onto his back and requested sexual services. N.T. 1/10/95 at 8. As in DeStefanis, the officer, not the accused, suggested sexual activity. Although authorized to do so, however, appellant did not immediately terminate the session. Rather, she admitted to complying with her training and asking, “is there any other place you would like me to massage you. If there is, would you please place my hands there.” N.T. 1/10/95 at 33. When the officer placed her hands on his penis, again, appellant chose not to terminate the session. Instead, she asked if he preferred cream or baby oil and began to masturbate him. N.T. 1/10/95 at 8-9.

Appellant emphasizes that signs were posted in the establishment warning customers, “[I]f you are looking for anything other than a good massage, please leave.” N.T. 1/10/95 at 11. Nevertheless, she acknowledges that the price of the massage escalated with the nudity of the masseuse. Moreover, by paying a forty-five ($45.00) dollar fee, a nude patron could massage a nude masseuse. As such, we are satisfied that something other that a good massage was contemplated. We find that the “sexual activity” performed in this case was included in the price of the massage and that the Commonwealth, therefore, presented evidence of a “prostitution business” beyond a reasonable doubt.

Appellant also contends that the trial court erred in failing to conclude that she was entrapped. When the facts relating to the defense are not in dispute, the issue of entrapment may be decided as a matter of law. Commonwealth v. Phillips, 439 Pa.Super. 428, 434, 654 A.2d 591, 594 (1995). Otherwise, whether an entrapment has occurred is a question for the fact finder. Commonwealth v. Morrow, 437 Pa.Super. 584, 595, 650 A.2d 907, 912 (1994).

A public law enforcement official or a person acting in cooperation with such official, commits an act of entrapment if, for the purpose of obtaining evidence of the commission of an offense, the official:

(1) makfes] knowingly false representations designed to induce the belief that such conduct is not prohibited; or,
(2) employ[s] methods of persuasion or inducement which create a substantial risk that such offense will be committed

. by persons other than those who are ready to commit it. 18 Pa.C.S.A. § 313(a). The defense is “aimed at condemning certain impermissible police conduct which ... ‘falls below standards’ ... for the proper use of governmental power.” Morrow, 437 Pa.Super. at 596, 650 A.2d at 913 (quoting Commonwealth v. Thompson, 335 Pa.Super. 332, 342, 484 A.2d 159, 165 (1984)). The courts, therefore, employ an objective test. Commonwealth v. Weiskerger, 520 Pa. 305, 312, 554 A.2d 10, 14 (1989); Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976). Accordingly, in assessing the viability of this defense, we do not address the predisposition of the defendant. Rather, we must consider the “conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” Morrow, 437 Pa.Super. at 595, 650 A.2d at 913 (quoting Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976)). Merely affording opportunity, through police artifice and stratagem, for the commission of a crime by a person who already has the requisite intent is not entrapment. Commonwealth v. Harris, 431 Pa.Super. 222, 225, 636 A.2d 210, 211 (1994). Further, appellant must prove by a preponderance of the evidence that her conduct occurred in response to an entrapment. 18 Pa.C.S.A. § 313(b).

The officer in this case, entered the massage parlor, paid for a massage and requested sexual services. Although appellant initially refused, she immediately instructed the naked officer, who was reclining on his back, to place her hands where he most wished to be massaged. When he placed her hands on his penis, appellant began to masturbate him. She did not terminate the session. As such, the officer did no more than provide appellant with an opportunity to commit the criminal act. See Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980) (officer, by phoning massage service, paying for massage, inquiring about other services and paying appellant the requested fee for oral sex did not entrap appellant; the officer did not importune her to commit the crime and his behavior was not such as would induce an innocent person to act as a prostitute). Therefore, we find that the trial court did not err in rejecting appellant’s defense of entrapment.

Judgement of sentence affirmed.

      . 18 Pa.C.S.A. § 5902.

      . In Cohen and Robbins, the parties acknowledged that the massages given by the nude or semi-nude female masseuses to their male customers included, masturbation of the male genitalia for a set fee. As a result, the "business" element of the offense was not contested. Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988); Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266 (1986).