author: HESTER, Judge:

text:
    529 A.2d 1130
    COMMONWEALTH of Pennsylvania v. Daniel CURTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1987.
    Filed Aug. 14, 1987.

      Robert E. McBride, Jr., Erie, for appellant.

      Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellee.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order of the Court of Common Pleas of Erie County denying relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551. We affirm.

On March 12, 1982, appellant, Daniel Curtin, was found guilty by a jury of robbery, conspiracy and various firearms offenses for which the sentences imposed totaled ten to twenty years imprisonment. On direct appeal we affirmed the judgment of sentence on December 31, 1984. 488 A.2d 1162. The Pennsylvania Supreme Court denied Curtin’s petition for allowance of appeal on June 24, 1985.

Appellant filed a petition under the PCHA alleging a denial of his constitutional right to competent counsel. Following a counseled evidentiary hearing on December 11, 1986, the court denied relief on February 25, 1987. This appeal followed.

Beginning with post-trial motions, appellant has argued throughout the appeal process that the trial court erred in refusing to examine witness James Mechling outside of the presence of the jury. Appellant theorized that the Commonwealth knew that Mechling would refuse to testify, and such refusal would prejudice appellant. The trial court summarized the basis for the claim as follows.

James Mechling was originally charged with the aforementioned crimes along with the Defendant and one Larry DeFoy. In the Commonwealth’s case against Mr. DeFoy, Mr. Mechling refused to testify against the Co-Defendant and was held in contempt. Defendant argues that before Mr. Mechling took the stand in the present case the Commonwealth knew that Mr. Mechling would refuse to testify, and that the refusal and consequences thereof unfairly prejudiced Defendant in the eyes of the jury.

Trial court opinion at 2. Appellant acknowledges that this issue was considered and rejected by the trial court, this court and the supreme court. However, he now asserts that trial, direct appeal and allocatur counsel all rendered ineffective assistance when they failed to cite two specific cases in support of the above allegation of error.

Pursuant to 42 Pa.C.S. § 9543(4), a PCHA petitioner must show that the allegation of error in his petition has not been finally litigated or waived. In 42 Pa.C.S. § 9544, the legislature set forth the circumstances when a petitioner’s claim would be considered to have been finally litigated. That section provides,

(a) Issues finally litigated. — For the purpose of this subchapter, an issue is finally litigated if:
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.

As the common pleas and superior courts had both determined that the trial court had not erred in disallowing Mechling’s testimony in camera, and the supreme court denied permission to appeal, the PCHA court concluded that the issue had been previously litigated and was thus ineligible for review. We agree.

Our case law is clear that one may not relitigate a finally litigated ground for relief every time a new legal theory is advanced. Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983). As the Supreme Court of Pennsylvania stated in Commonwealth v. Slavik, 449 Pa. 424, 431-32, 297 A.2d 920, 924 (1972) (footnote omitted):

A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced. To hold otherwise would virtually emasculate Section 4(a) of the PCHA, defeat its very objective, and permit constant and repetitive relitigation of issues already finally decided on their merits. “In the main, post-conviction remedies exist to try fundamental issues that have not been tried before.” American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post Conviction Remedies, § 6.1 (Approved Draft, 1968); cf. Commonwealth v. Black, 433 Pa. 150, 249 A.2d 561 (1969).
Appellee’s attack on the validity of the guilty plea was conclusively decided by this Court in 1970. That issue, so determined, reached the procedural and substantive end-of-the-line of the state’s judicial process. Thereafter that same issue could not be subsequently reintroduced for judicial decision and again begin a tour of the state’s judicial system. Indeed, Pennsylvania has a significant and compelling jurisprudential interest in preventing the useless burdening of its judicial machinery with repetitive consideration of issues previously decided. It is evident that the orderly administration of justice requires that a criminal controversy, like any other litigation, some day come to an end. Therefore, since the determination of the guilty plea’s validity was a final decision on the merits of that issue within Section 4 of the PCHA, that issue may not be relitigated in a PCHA proceeding simply because another theory or argument is advanced.

In Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980), the supreme court held that an allegation of ineffective assistance of counsel, for failing to object to deliberation by the jury on bills of indictment on which the defendant contended he had not been properly arraigned, would not be considered. The court had examined the arraignment procedure in the defendant’s prior direct appeal and concluded that no impropriety existed. Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973). The court stated, “Since this issue was fully considered by this Court on direct appeal, it has been finally litigated and is not open to collateral attack.” Commonwealth v. Jones, supra, 488 Pa. 270, 272, 412 A.2d 503, 504 (citations omitted). The advance of a new or different theory as a basis for relitigat-ing an issue that has already been decided will not justify relitigation. Id.

In Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981), the supreme court held that Senk’s allegation that his trial counsel was ineffective for failing to challenge Senk’s illegal arrest could not be relitigated, as the issue of Senk’s arrest had been considered by a prior PCHA court and the Pennsylvania Supreme Court, as well. The court stated, “Appellant now is attempting to have this issue relitigated under the guise of ineffective assistance of counsel. An issue may not be relitigated merely because a new or different theory is posited as a basis for reexamining an issue that has already been decided.” Id., 496 Pa. at 634-35, 437 A.2d at 1220 (citation omitted).

In the present case, the trial court considered appellant’s claim that it was error for that court to refuse to permit James Mechling’s examination outside of the jury’s presence. The precise issue was rejected by our court in appellant’s direct appeal. Thereafter, the Pennsylvania Supreme Court denied Mr. Curtin’s petition for allowance of appeal.

Appellant does not advance a new or different theory as a basis for his previously adjudicated claim, he merely asserts that prior counsel’s failure to cite two specific cases constitutes ineffective assistance of counsel. We conclude, as did the PCHA court, that this issue may not be relitigated under the guise of ineffective assistance of counsel. Commonwealth v. Mileshosky, 350 Pa.Super. 127, 504 A.2d 278 (1986); Commonwealth v. Thomas, 335 Pa.Super. 323, 484 A.2d 155 (1984), rev’d on other grounds, 512 Pa. 171, 516 A.2d 328 (1986).

Appellant also argues that he is entitled to a new PCHA hearing because the judge who presided at the hearing had represented the Commonwealth at appellant’s sentencing. While we believe it would have been prudent for the PCHA court to have granted appellant’s motion to recuse, we cannot say that the court erred in not doing so.

Appellant cites Commonwealth v. Pavkovich, 444 Pa. 530, 283 A.2d 295 (1971), and Commonwealth v. Young, 439 Pa. 498, 269 A.2d 18 (1970), in support of his claim. In both of those cases, however, the judge whose recusal was sought had prosecuted the defendant at trial. In the present case, the PCHA judge had represented the Commonwealth only at appellant’s sentencing; appellant alleged no error with this aspect of his case. Significantly, he also fails to allege any prejudice which resulted from the PCHA court’s denial of his motion.

The party who requests recusal bears the burden of establishing bias, prejudice or unfairness necessitating recu-sal. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986), citing Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Further, the decision of the judge whose recusal was sought will not be disturbed except for an abuse of discretion. Commonwealth v. Reddix, supra, quoting Commonwealth v. Kane, 199 Pa.Super. 89, 91, 184 A.2d 405, 406 (1962).

In Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), the Supreme Court of Pennsylvania rejected a claim of error against a trial judge whose recusal had been sought solely on the basis of his prior prosecutorial role. The court stated:

[W]e have never held and are unwilling to adopt a per se rule that a judge who had participated in the prosecution of a defendant may never preside as a judge in future unrelated cases involving that defendant. Absent some showing of prejudgment or bias we will not assume a trial court would not be able to provide a defendant a fair trial based solely on prior prosecutorial participation.

Id., 501 Pa. at 22, 459 A.2d at 731.

As noted above, the present case does not involve any allegations of error concerning appellant’s sentence, which is the only stage of the proceedings during which the PCHA judge was involved. The judge did not participate in the case before, during or after trial, except during sentencing. Based upon the record before us, we believe the PCHA judge did not err in failing to recuse himself. Commonwealth v. Darush, supra.

Order affirmed.

      . One of the cases, Commonwealth v. Johnson, 339 Pa.Super. 96, 488 A.2d 327 (1985), was not even filed until nearly a year after we affirmed appellant’s judgment of sentence.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    529 A.2d 1134
    KEYSTONE INSURANCE COMPANY v. Joseph CAPUTO and Mary Caputo, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Aug. 19, 1987.

      Peter Goodman, Philadelphia, for appellants.
    Dennis Veneziale, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

Joseph and Mary Caputo were involved in an automobile accident in October, 1985. The Caputos sustained personal injuries in the accident and made claims for benefits from their insurer, Keystone Insurance Company, pursuant to the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S.A. § 1701 et seq. On June 26, 1986, Keystone filed a Petition for Medical Examination pursuant to § 1796 of the Act; the Caputos filed a timely answer to Keystone’s petition on July 31, 1986. The trial judge granted Keystone’s petition on October 27, 1986, and ordered Joseph and Mary Caputo to submit to a medical examination by a doctor of Keystone’s choice. This appeal followed.

Before we address the issue raised in this appeal, we must determine whether the order appealed from is a final appealable order.

The statute upon which the trial court order is based provides as follows:

Mental or physical examination of person
(a) General rule. — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.

75 Pa.C.S.A. § 1796.

A similar section appeared in the No-Fault Motor Vehicle Insurance Act, now repealed, which was the predecessor to the Motor Vehicle Financial Responsibility Act. We discussed the appealability of an order directing a person to submit to a medical examination under the analogous section of the No-Fault Act in State Farm v. Morris, 289 Pa.Super. 137, 432 A.2d 1089 (1981) and found that it was an appealable order. The rationale in the Morris case was as follows:

In the instant case, the insurer’s petition for examination of its insured was not ancillary to any pending legal or equitable action. It was a separate petition which invoked the jurisdiction of the court under Section 401 of the No-fault Insurance Act for no other reason than to consider and decide if the insured should be required to submit to a physical examination. After the court rendered its decision, the court action came to an end. Whether there will be litigation between the parties in the future is purely speculative. If there should be further litigation, however, it would be in the form of a separate action. Viewed in this manner it becomes apparent that when the order was entered in response to the separate, non-ancillary petition under Section 401, that order was a final determination of the statutorily authorized legal proceeding then before the court. The present appeal, therefore, was proper.

Morris, 289 Pa.Super. 141, 432 A.2d at 1091.

This analysis applies equally to the order in the instant case. The Court of Common Pleas of Bucks County exercised its jurisdiction pursuant to § 1796 of the new Act for no other reason that to consider Keystone’s petition. There was no other issue before this court. If there is to be further litigation between the parties it will be in the form of a separate action. We find therefore that an order granting or denying a petition to compel a medical examination pursuant to 75 Pa.C.S.A. § 1796 is a final appealable order.

This brings us to the issue raised by the Caputos in the instant appeal: whether the trial court erred in granting Keystone’s petition to compel medical examinations. The Appellants claim that Keystone failed to show good cause for the examinations, as required by the statute. We agree and accordingly reverse and remand.

Keystone’s petition alleges that the Appellant Mary Capu-to has incurred “substantial” medical expenses and that an independent medical examination is necessary to assess future exposure and to determine why the injuries are not resolving themselves. As to Joseph Caputo, Keystone seeks to determine the causal connection between Caputo’s shoulder surgery and the auto accident, as well as to determine what his future medical needs might be.

The trial judge issued a rule to show cause why the petition should not be granted and the Appellants filed a timely answer, which denied certain of the allegations made in Keystone’s petition. Factual disputes exist between the parties. No further development of the record was made however. No depositions were taken, no hearing was held. The Appellants claim in their brief that Keystone has never sought copies of their treating doctors’ medical reports.

We find that under these circumstances the trial court decision was premature. When factual disputes exist, Pennsylvania Rule of Civil Procedure 209 is called into play. We commented on the operation of this rule in Lazzarotti v. Juliano, 322 Pa.Super. 129, 133, 469 A.2d 216, 218 (1983) (citations omitted) as follows:

It is well established that when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof ... Pa.R.C.P. 209 provides the procedure for establishing such proof. Pursuant to Rule 209, the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer.

Here neither of the parties proceeded to have depositions taken or to have argument listed as provided by Rule 209. We have stated elsewhere that Rule 209 places no time limits on either party to proceed, and until either party takes action that would enable the court to make a factual determination or until some other force spurs matters along, the court cannot properly act on the petition. Triffin v. Thomas, 316 Pa.Super. 273, 279-80, 462 A.2d 1346, 1349-50 (1983). See also DiNardo v. Central Penn Air Service Inc., 358 Pa.Super. 75, 516 A.2d 1187 (1986); Shainline v. Alberti Builders, 266 Pa.Super. 129, 403 A.2d 577 (1979). We do not mean by this, as we have stated before, that a motions court must sit and wait for the parties to bestir themselves. The court itself may set the time for the argument, so long as the parties are given notice. Maurice Goldstein Co., Inc. v. Margolin, 248 Pa.Super. 162, 167, 374 A.2d 1369, 1371-72 (1977).

We hold that mere allegations contained in a petition, unsupported by a developed record, is insufficient cause to order a medical examination pursuant to 75 Pa.C.S.A. § 1796. Because the trial judge acted prematurely in this case, we reverse and remand for further proceedings. We relinquish our jurisdiction.

      . The provisions of 40 P.S. § 1009.401 are as follows:
      "Whenever the mental or physical condition of a person is material to any claim that has been or may be made for past or future basic loss benefits, a court of competent jurisdiction may order the person to submit to mental or physical examination by a physician or physicians. The order may be made only on the motion for good cause shown and upon notice to the person to be examined and to all other persons having an interest and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”
      Repealed effective October 1, 1984.

      . Rule 209. Duty of a Petitioner to Proceed After Answer Filed. If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.


author: CAVANAUGH, Judge:

text:
    530 A.2d 90
    COMMONWEALTH of Pennsylvania, Appellee, v. John F. KEENAN, Jr., and Wardel J. DeShields and James Nicholas, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1987.
    Filed Aug. 11, 1987.

      Julius E. Fioravanti, Philadelphia, for appellants.
    Andrew E. Kramer, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   CAVANAUGH, Judge:

Appellant, John F. Keenan, challenges a ruling of the lower court denying his motion for dismissal of all charges based upon principles of double jeopardy. Appellant was charged with eight counts of altered, forged, counterfeit documents, 75 Pa.C.S.A. § 7122, and one count of criminal conspiracy, 18 Pa.C.S.A. § 903. These charges grew out of appellant’s alleged involvement in the possession and transfer of counterfeit automobile inspection certificates.

BACKGROUND

The origin of this action was a presentment dated March 24, 1983 by the Pennsylvania Multi-County Investigating Grand Jury which recommended to the court, the Honorable John C. Dowling, Supervising Judge, that appellant be charged with forgery, 18 Pa.C.S.A. § 4101, tampering with records or identification, 18 Pa.C.S.A. § 4104, altered, forged or counterfeit documents and plates, 75 Pa.C.S.A. § 71.22, and conspiracy, 18 Pa.C.S.A. § 903. The presentment was accepted by Judge Dowling on April 8, 1983, and he directed Dauphih County to be the place of trial. Pretrial motions raising the issues of subject matter jurisdiction and venue were filed by appellant. Judge Dowling denied these motions on March 13, 1984. The Commonwealth strenuously urged the court to retain jurisdiction. Although all actions taken by appellant and his two co-actors were within Philadelphia County, the Commonwealth based its claim for jurisdiction in Dauphin County on the authority of the supervising judge to pick the county of trial and on the effect the defendants’ activities had in Dauphin County.

Prior to Judge Dowling’s denial of the motion to dismiss, appellant had petitioned our Supreme Court for a writ of mandamus and/or prohibition. This petition was denied on December 1, 1983.

The case in Dauphin County came to trial on May 17, 1984 and was presided over by Judge Dowling sitting with a jury. Appellant was found guilty by the jury of violating 75 Pa.C.S.A. § 7122 and 18 Pa.C.S.A. § 903. Upon post-verdict motions filed by appellant, Judge Dowling determined that Dauphin County did not have jurisdiction to try the case and on December 3, 1984 granted appellant’s motion for a new trial. 33 Pa.D. & C.2d 46 (1984).

Neither appellant nor the Commonwealth appealed from Judge Dowling’s order for a new trial.

PHILADELPHIA CHARGES

On January 18, 1985 the Commonwealth filed a complaint against appellant in Philadelphia County charging him with violation of eight counts of 75 Pa.C.S.A. § 7122 and one count of 18 Pa.C.S.A. § 903. There is no dispute between the parties that these charges are identical to the ones charged in the Dauphin County proceedings.

On January 21, 1985 appellant was arrested and was released on his own recognizance. The case was assigned for a preliminary hearing in Municipal Court before the Honorable Ronald Merriweather on April 15, 1985. Appellant waived his right to a preliminary hearing, entered a not guilty plea, and moved dismissal of the charges on double jeopardy grounds. Appellant’s motion was granted by Judge Merriweather, after submission of briefs and a hearing, on June 4, 1985.

The Commonwealth appealed to common pleas court. Upon further briefing, the Honorable Ned L. Hirsh reversed the dismissal and remanded the case to Municipal Court for trial. Notice of appeal to this court of Judge Hirsh’s order was filed on January 13, 1986.

Judge Hirsh, in an opinion filed on August 4, 1986, found that double jeopardy principles did not bar trial in Philadelphia County since appellant had not been placed in jeopardy by the Dauphin County proceedings as the court lacked jurisdiction. Judge Hirsh relied upon 18 Pa.C.S.A. § 112 as allowing retrial in a court of competent jurisdiction where a former prosecution was before a court which lacked jurisdiction. Additionally, appellant’s claim of prosecutorial misconduct in pursuing the action in Dauphin County was rejected since there was no showing that intentional misrepresentations were made by the Commonwealth or that it intended to provoke a mistrial. Although we do not totally embrace the reasoning of the lower court, we find no error in its determination that the motion to dismiss is properly denied.

APPLICABILITY OF 18 Pa.C.S.A. § 112

The lower court and the Commonwealth on appeal rely upon 18 Pa.C.S.A. § 112 for the proposition that the lack of subject matter jurisdiction of Dauphin County allows the prosecution on the same charges in Philadelphia County. This reliance, however, is misplaced since § 112 does not address the specific situation of the instant case.

Section 112 provides as follows:

Former prosecution before court lacking jurisdiction or when fraudulently procured by the defendant.
A prosecution is not a bar within the meaning of section 109 of this title (relating to when prosecution barred by former prosecution for some offense) through Section 111 of this title (relating to when prosecution barred by former prosecution in another jurisdiction) under any of the following circumstances:
(1) The former prosecution was before a court which lacked jurisdiction over the defendant or the offense.
(2) The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence which might otherwise be imposed.
(3) The former prosecution resulted in a judgment of conviction which was held invalid in a subsequent proceeding on a writ of habeas corpus, coram nobis or similar process.

18 Pa.C.S.A. § 112.

By its terms, this section relates only to former prosecutions covered by 18 Pa.C.S.A. §§ 109, 110, and 111. Section 109 enumerates four situations of a former prosecution for the same offense; Section 110 concerns a former prosecution for a different offense; Section 111 confines itself to former prosecutions in another state or by the United States. Clearly, neither Section 110 nor 111 applies to this case.

Section 109 specifies four dispositions of the former prosecution which would bar reprosecution for the same offense. Those four dispositions are as follows:

When prosecution barred by former prosecution for the same offense.
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
(2) The former prosecution was terminated, after the indictment had been found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
(4) The former prosecution was improperly terminated after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.

18 Pa.C.S.A. § 109.

Paragraph 1 relates to an acquittal, i.e., a not guilty verdict by the trier of fact or a determination of insufficient evidence. In the instant case, the appellant was found guilty by the trier of fact and there was no finding by the court of insufficient evidence. Therefore, paragraph 1 does not apply to this case.

The second paragraph relates to a terminated prosecution. The trial in Dauphin County proceeded through to verdict, and, therefore, the prosecution was not terminated. Further, the post verdict order granting a new trial did not necessarily require a “determination inconsistent with a fact or legal proposition that must be established for conviction of the offense.” Judge Dowling’s determination that the court lacked subject matter jurisdiction was a finding independent of the specific elements of the crimes with which appellant was charged. Therefore, paragraph 2 does not apply to this case.

Paragraph 3 concerns a conviction in the former prosecution. No conviction within the meaning of this provision resulted from the Dauphin County proceedings since Judge Dowling granted a new trial.

Paragraph 4 refers to improperly terminated prosecution, a circumstance which is not applicable to the instant case.

In summary, none of the four outcomes of a former prosecution which would bar retrial specified in § 109 has occurred in the instant case. Section 109 does not speak to a situation where a guilty verdict is set aside and a new trial is granted for lack of subject matter jurisdiction. Therefore, since § 109 is not implicated, the exceptions to the bar of a retrial, provided for in § 112 do not apply to this case.

Finding that 18 Pa.C.S.A. § 112 does not apply to the instant case, we do not endorse the conclusion of the lower court that § 112 allows reprosecution since appellant was never placed in jeopardy. We turn, as the lower court did in the alternative, to the constitutional protections against double jeopardy.

DOUBLE JEOPARDY PROVISIONS

Since we find that Sections 109-112 of the Crimes Code do not apply to the situation raised by this case, we must consider the state and federal constitutional prohibitions against an individual’s being placed twice in jeopardy. See U.S. Const. Amend. 5, Pa. Const. Art. 1, § 10. Consideration of the consitutional protections contained in the double jeopardy clauses is necessary where the statutory provisions relating to subsequent prosecutions are not applicable. Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984); Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983).

We employ a unitary analysis of the state and federal double jeopardy clauses since the protections afforded by each constitution are identical. Commonwealth v. Sojourner, 513 Pa. 36, 45 n. 6, 518 A.2d 1145, 1149 n. 6 (1986); Commonwealth v. Simons, 342 Pa.Super. 281, 286, 492 A.2d 1119, 1122 (1985), citing Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983).

The protections afforded by double jeopardy are generally recognized to fall within three categories — (1) protection against a second prosecution for the same offense after an acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098, 1100 (1984) citing Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

A preliminary question is whether jeopardy attaches where the court which conducted the first prosecution did not have jurisdiction over the matter. The issue is if there is no jeopardy as a result of the first trial, is there a prohibition against a second trial before a tribunal which does have subject matter jurisdiction.

Although this issue does not arise frequently, there is case law establishing the proposition that where subject matter jurisdiction is lacking no jeopardy attaches, and, therefore, there is no bar to a second prosecution. See Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972). In Simeone, defendant was charged in Bucks County with receiving stolen goods, a charge of which he had been acquitted in Philadelphia County. We held that since the crime of receiving the stolen goods had been committed in Bucks, the previous trial in Philadelphia did not bar reprosecution since Philadelphia did not have jurisdiction.

In a concurring opinion, Judge Hoffman cautioned that the rule allowing reprosecution where the first court did not have jurisdiction should not be applied to allow the Commonwealth “... to harass a defendant by multiple prosecutions in courts lacking jurisdiction____ In the instant case, there is no evidence that the Commonwealth wrongfully attempted to subject appellant to trial in a court not having jurisdiction of the offense charged.” Id., 222 Pa.Superior Ct. at 384 n. 4, 294 A.2d at 925 n. 4 (Hoffman, J., concurring.)

This qualification would essentially incorporate into the jurisdictional analysis the intentional prosecutorial misconduct exception applicable to instances where the prior prosecution ended in a mistrial.

Appellant urges us to find that such an exception is necessary to prevent abuse by the Commonwealth through successive prosecutions in counties in which it knows, or has reason to know, jurisdiction does not lie. The anxiety, insecurity, and financial burdens which successive trials cause an accused are not concerns to be lightly dismissed.

We would agree that where there is evidence of the Commonwealth’s intentionally trying a defendant in a court which it knows or should know does not have jurisdiction, a subsequent prosecution is impermissible on the basis of the constitutional guarantees against being placed twice in jeopardy. Otherwise, the Commonwealth would be free to engage in vexatious pursuit of a pattern of harassment with no legal limit to the number of prosecutions it could mount. Such a Kafkaesque scenario is not in compliance with our constitutional strictures regulating the circumstances under which an individual may be retried for the same offense.

The instant case presents a close question regarding the intent of the Commonwealth in bringing the appellant to trial in Dauphin County. We reject the facile argument of the Commonwealth on appeal that it bore no responsibility for the location of the trial as it was the supervising judge, Judge Dowling, who chose the locus of trial. While true as far as it goes, this argument ignores the fact that the Commonwealth opposed at every juncture the efforts of appellant to avoid trial in Dauphin county on the basis of lack of jurisdiction — a legal determination the Commonwealth now embraces with the certainty of Job. Without the vigorous advocacy of the Commonwealth urging him to retain jurisdiction, Judge Dowling may well have determined Dauphin County lacked jurisdiction before appellant stood trial and was adjudged guilty by the jury.

Nonetheless, evidence of the Commonwealth’s intentionally trying appellant in a forum which it knew or should have known did not have jurisdiction is not in the record before us. It was a matter of legal interpretation whether Dauphin County had jurisdiction to try a case involving defrau-dation of a Commonwealth agency. Although the Commonwealth now accepts Judge Dowling’s unappealed ruling that there was no jurisdiction in Dauphin County, we are presented no evidence showing that the Commonwealth intended ab initio to engage in a prosecution which it knew would result in an outcome favorable to the defense.

It provides appellant little comfort to have his position on the jurisdiction of the Court of Common Pleas of Dauphin County accepted by both that court and the Commonwealth after his being tried in that forum. However, “The societal interest in the avoidance of improper acquittals and in the punishment of the guilty has been viewed to require retrial notwithstanding the financial, physical and psychological burdens which may occasionally be imposed thereby.” Commonwealth v. Myers, 422 Pa. 180, 188, 220 A.2d 859, 864 (1966).

Accordingly, order of the court below is affirmed.

      . By separate order, we allow amendment of the caption to exclude DeShields and Nicholas as appellants. Hereafter, use of term "appellant” refers to Keenan only.

      . The Multi-County Investigating Grand Jury in a separate presentment recommended similar charges against six other persons, five of whom became co-defendants of appellant. Ultimately appellant, War-del J. DeShields, and James Nicholas were tried together in Dauphin County.

      . The appeal of the dismissal of a double jeopardy claim may be taken on an interlocutory basis where the claim is not frivolous. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). Absent a written finding of the lower court that the double jeopardy claim is frivolous, the court has jurisdiction over an immediate appeal, prior to the commencement of a second trial. Id., 510 Pa. at 346, 508 A.2d at 291. Since the lower court did not make a written finding that the claim was frivolous, we exercise jurisdiction over the appeal.
      The lower court specifically stated it considered the pre-trial appeal of its double jeopardy ruling to be permitted. Further, since its opinion was filed over three months after the filing of Brady, the lower court had the benefit of that decision and could have made the finding of frivolousness if it had deemed it appropriate. For these reasons, we proceed on the basis that the appeal is not frivolous, and no remand is required. Cf. Commonwealth v. Learn, 356 P.Super. 382, 514 A.2d 910 (1986) (remand required in order to afford trial court opportunity to make factual determination on frivolousness.)

      . In its brief, the Commonwealth directs us to Commonwealth v. Diaz, 235 Pa.Super. 352, 340 A.2d 559 (1975) for the proposition that jeopardy does not attach where a court lacks jurisdiction. The Commonwealth has failed to note the decision reversing Diaz, at 477 Pa. 122, 383 A.2d 852 (1978).

      . See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987).


author: WIEAND, Judge: JOHNSON, Judge,

text:
    580 A.2d 95
    Gilbert S. SOLOMON and LaRue Solomon, his wife v. PRESBYTERIAN UNIVERSITY HOSPITAL, David Wilson, M.D., Stephen Wilson, M.D., David L. Sumney, D.D.S., and James Danner, D.D.S. Appeal of PRESBYTERIAN UNIVERSITY HOSPITAL and David Wilson, M.D.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed Aug. 7, 1987.

      Larry A. Silverman, Pittsburgh, for appellants.
    Jay H. Feldstein, Pittsburgh, for Solomon, appellees.
    Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

In this medical malpractice action, it was alleged in the complaint that Dr. David Wilson, a medical intern, had been negligent in making an inaccurate diagnosis of symptoms suffered by Gilbert Solomon. This, it was alleged, had been a substantial factor in causing the myocardial infarction which Solomon subsequently suffered. In addition, it was alleged that Wilson’s employer, Presbyterian University Hospital, was vicariously liable for the negligence of its intern. The jury which heard the evidence returned a verdict in favor of the defendants. When the trial court granted a new trial, Dr. Wilson and the hospital appealed.

In the early morning hours of May 30, 1981, Gilbert Solomon awoke from sleep complaining of pain in his jaw. At the suggestion of his wife, Solomon went to the emergency room at Presbyterian University Hospital where he came under the care of Dr. David Wilson. Dr. Wilson, a first year intern at the hospital, was licensed to practice medicine pursuant to a temporary license. The medical history taken from Solomon disclosed an ongoing dental problem. Dr. Wilson performed a physical examination of Solomon’s ears, mouth, and jaw. As a result of his examination, Dr. Wilson concluded that the pain experienced by Solomon was related to his dental condition. On the basis of this diagnosis, Dr. Wilson issued three painkilling pills to Solomon and advised him to see his family physician and his dentist. Later on the same afternoon, Solomon was examined by a dentist who confirmed Dr. Wilson’s diagnosis. Two days later, Solomon sought a third opinion from a periodontist. The periodontist agreed that the pain in Solomon’s jaw had been caused by a dental disease. After leaving the periodontist’s office, however, the pain in Solomon’s jaw spread to his neck, shoulders and arms. He was immediately taken to the office of Dr. Myron Friedlander, who informed Solomon that he had suffered a myocardial infarction.

The action was tried on the issues raised in the complaint, i.e., that Dr. Wilson had negligently misdiagnosed Solomon’s condition and that the hospital was vicariously liable because Dr. Wilson had been its employee. The complaint contained no averment that the hospital had been independently negligent because of a failure to supervise Dr. Wilson; and such an issue of independent negligence by the hospital was not at any time raised at trial. After the evidence had been received, Solomon requested that the trial court instruct the jury as follows:

Unless a physician has obtained a Pennsylvania Medical License, he cannot be called a Doctor, cannot diagnose and cannot treat a patient unless he is under the direct supervision, direction or control of a licensed physician. Accordingly, if you find that Dr. Wilson was not under the direct supervision, direction and control of a licensed physician or if you find the licensed physician was not present or immediately available in the emergency room on the morning of May 30,1981, you may find Dr. Wilson, and the hospital through the agency relationship, negligent per se under Pennsylvania law. 63 P.S. § 421.3.

The trial court denied the requested instruction, and the jury returned a verdict in favor of Dr. Wilson and the hospital. Solomon filed a motion for new trial in which he alleged, inter alia, that the trial court had erred by refusing the requested instruction. The trial court agreed and awarded a new trial for the purpose of determining (1) whether Dr. Wilson had violated the provisions of the Medical Practice Act of 1974, which allegedly prohibited an intern from performing health care services without the direct and immediate supervision of a licensed physician; and (2) whether the hospital was independently liable for failing to provide necessary supervision for Dr. Wilson. We conclude that the award of a new trial was error; and, therefore, we reverse.

A plaintiff is bound by the theory upon which he submits and tries his case. See: Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 382, 19 A.2d 362, 364 (1941); In re King’s Estate, 183 Pa.Super. 190, 198, 130 A.2d 245, 249 (1957). He may not, at the post-trial motion stage, raise a new theory which was not raised during trial. See: Kramer v. Pittsburgh Coal Co., supra; Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 446 n. 5, 474 A.2d 1181, 1190 n. 5 (1984). In the instant case, Solomon did not allege in his complaint that the hospital had been independently negligent by failing to supervise Dr. Wilson. Moreover, he did not at any time request leave of court to amend his complaint to allege such a theory of recovery. In keeping with the averments of his complaint, the submitted point for charge did not ask that the jury be instructed regarding any possible act of negligence by the hospital. The requested instruction, if granted, would only have told the jury to determine whether the hospital, “through the agency relationship” with Dr. Wilson, was liable for Dr. Wilson’s alleged failure to act under appropriate supervision. It was not until after the trial had been concluded and a verdict had been entered in favor of the hospital that Solomon raised for the first time in post-trial motions the issue of the hospital’s independent negligence for failure to supervise Dr. Wilson. This was too late. After Solomon had litigated the hospital’s liability solely on the theory of respondeat superior, he could not assert post-trial an entirely different theory of recovery against the hospital. He could not, as an afterthought, contend that the hospital had been independently negligent. It was erroneous for the trial court to award a new trial against the hospital on a ground which had not been raised in the complaint or at trial.

The trial court also awarded a new trial to permit the jury to consider whether Dr. Wilson had violated a provision of the Medical Practice Act of 1974 which, according to Solomon, required that Wilson act only under close supervision. Specifically at issue was Section 421.2(6) of the Act, which defined an intern as “[a] physician receiving supervised graduate medical training at an approved hospital or its legal affiliate.” 63 P.S. § 421.2(6). Solomon argues, and the trial court agreed, that an intern with a temporary medical license, such as Dr. Wilson, was prohibited from rendering patient services unless he was subject to direct and immediate supervision by a licensed physician. The statutory provision, according to appellee, required that a physician be present or immediately available whenever an intern examined, diagnosed or treated a patient.

Whether and to what extent supervision of interns was required by the Medical Practice Act is an issue with which the appellate courts of this state have not previously been confronted. To resolve the issue, we examine the provisions of the statute and apply rules of statutory construction in order to ascertain the intent of the legislature.

The Medical Practice Act of 1974, as we have observed, defined an intern as “[a] physician receiving supervised graduate medical training at an approved hospital or its legal affiliate.” 63 P.S. § 421.2(6). A “physician” was defined as an individual “qualified to seek or [who] ha[d] acquired a license to practice medicine or surgery.” Id. § 421.1(4). An intern participating in graduate medical training could, for that purpose, acquire a temporary license to practice medicine. Id. § 421.4(2). The only restriction imposed upon an intern by such a license, in addition to the fact that it was valid for only twelve consecutive months, was that the medical practice of the intern was limited to the facility in which he or she received graduate medical training. Within that facility, however, the intern was fully qualified to practice medicine and surgery.

No express provision of the Act precluded an intern from practicing medicine unless he or she was under the immediate, physical direction of a licensed physician. If the legislature had intended to subject interns to such close supervision, it could have drafted the Act to reflect this intention. It is not without significance that the legislature chose not to do so.

Elsewhere in the Act, specific supervisory requirements were imposed upon other health care practitioners. For example, Section 421.10(Z) provided that a physician’s assistant could not practice medicine “without the supervision and direction of a licensed physician approved by the appropriate board.” 63 P.S. § 421.10(Z). See also: Id. §§ 421.-2(13), 421.3. This provision went on to state, however, that “such supervision and direction [should] not be construed to necessarily require the personal presence of the supervising physician at the place where the services [were] rendered.” Id. § 421.10(7). Moreover, Section 421.10(m) provided: “This act shall not be construed to prohibit the performance by the physician assistant of any service within his skills, which is delegated by the supervising physician, and which forms a usual component of that physician’s scope of practice.” Id. § 421.10(m). If the legislature had recognized a need to provide for personal supervision of interns, it could easily have satisfied such a need by providing in the Act for restrictions similar to those imposed upon physicians’ assistants. In the absence of language restricting the practice of interns, we are constrained to conclude that the legislature deemed intern-physicians fully capable of practicing medicine without direct and immediate supervision by other physicians. It would be truly anomolous to infer, in the absence of language expressly so providing, that the legislature intended licensed intern-physicians, with extensive and sophisticated medical training, to act only under the direct scrutiny of other licensed physicians when physicians’ assistants, with less education and training, were permitted by the Act to perform their duties without “the personal presence of the supervising physician.” Id. § 421.10(l). The legislature should not be deemed to intend a result which is absurd or unreasonable. 1 Pa.C.S.A. § 1922(1). See: Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983); Valley Forge Industries, Inc. v. Armand Construction, Inc., 38 Pa.Cmwlth. 603, 606, 394 A.2d 677, 678 (1978).

The only reference in the 1974 Act to the supervision of interns appeared in the section which defined an intern or resident as “[a] physician who is receiving supervised medical training____” 63 P.S. § 421.2(6). Solomon argues that we should interpret this definitional section to require that interns be under the “direct supervision, direction or control of a licensed physician.” Such a requirement did not appear in the language of the statute, however, and we will not rewrite the statute by inserting words which the legislature itself declined to include. See: Worley v. Augustine, 310 Pa.Super. 178, 183, 456 A.2d 558, 561 (1983); In re Township of Upper Chichester, 52 Pa.Cmwlth. 121, 125, 415 A.2d 1250, 1252 (1980).

The Medical Practice Act of 1974, supra, has been repealed and replaced by the Medical Practice Act of 1985. Although the present action is controlled by the Act of 1974, the interpretation which we, as a court, have placed thereon is consistent with the intent of the legislature which has been expressed specifically in the Act of 1985. Although the new Act eliminated a separate definition of “intern,” the definition contained in the earlier statute has been subsumed in other definitional sections of the new Act. Thus, the term “medical doctor,” as defined in section 422.2 of the 1985 statute, includes a person who has acquired a graduate license. See: 63 P.S. § 422.2. Moreover, the term “resident,” which had been defined coextensively with “intern,” is now defined in the new statute as a “medical doctor who is participating in graduate training.” Id. Although both definitions in the Act of 1985 describe practitioners who hold less than full licenses to practice medicine, the language of the statute conspicuously refrains from imposing any requirement that those with graduate licenses or those receiving graduate training be “supervised.” Nowhere in the 1985 Act is there any suggestion that physicians who possess a graduate license, as did Dr. Wilson, are subject to immediate and direct supervision. This is significant because the new Act continues to provide for direct and immediate supervision of other practitioners within the health care field. See: 63 P.S. §§ 422.11 (clinical clerks), 422.13 (physician assistants). The legislature has made clear its intent by defining specifically the holder of a graduate license as a medical doctor entitled to practice medicine.

We interpret the Medical Practice Act of 1974 in a similar manner. An intern who possessed a temporary license to practice medicine was not required by the Act of 1974 to be under the direct and immediate supervision of a licensed physician while performing health care services within a hospital where he or she was receiving graduate medical training. Much of the direct patient care provided by hospitals has been rendered by interns and residents involved in post-graduate training programs. Many of the advances in medicine have been spawned by examinations conducted and observations made by interns and residents. Were we to adopt an interpretation of the Act requiring hospitals to provide personal and direct supervision over each intern or resident practicing in a particular hospital, a result which is not compelled by any specific provision of the Act, we would not only impair the effectiveness of the present system of delivering hospital services, but we would also interfere with the education and training of tomorrow’s medical specialists.

In the instant case, Dr. Wilson was not in violation of the Act merely because he diagnosed Solomon’s complaint without the presence of a supervising physician. The trial court correctly refused a contrary point for charge submitted by the plaintiffs. Therefore, it was error to grant a new trial to enable another jury to determine whether Dr. Wilson had been negligent per se for diagnosing plaintiff’s symptoms without supervision.

The order awarding a new trial is reversed; the verdict of the jury is reinstated; and judgment is entered on the verdict.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I am obliged to dissent. The majority fails to apply the appropriate standard of review. As a result, the majority concludes the grant of a new trial to be error. This holding by the majority does not recognize the grant of a new trial as a discretionary decision by the trial court.

Our scope of review requires the appellant must be able to show: the trial court palpably and clearly abused its discretion, or committed an error of law which controlled the outcome of the case and is cited by the trial court as the sole reason for granting a new trial, before an appellate court will reverse, Westinghouse Elevator Company v. Herron, 514 Pa. 252, 523 A.2d 723 (1987). It is presumed that the trial court is justified in granting a new trial even when the reason given is insufficient, unless it is stated to be the only reason. Mohr v. Plotkin, 186 Pa.Super. 615, 142 A.2d 414, (1958). Ackerman v. Delcomico, 336 Pa.Super. 569, 486 A.2d 410 (1984). Our inquiry, then, should focus on whether the trial court’s decision finds any support in the record. Westinghouse, supra. If such support can be found, the trial court must be affirmed, for in that event, the trial court has not abused its discretion. Id.

I do not regard the trial court’s statement of reasons as a single reason for the grant of a new trial in view of the trial court’s statement that:

The plaintiffs contend that these facts also raised issues as to a violation of the Medical Practice Act of 1974, supra and as a corollary the independent negligence of the hospital as to supervision. A thorough examination of the record has convinced the Court that the plaintiffs should have had the benefit of having these two additional issues presented to the jury for determination. The jury should have been requested to determine whether there was a violation of the statute and if so was such negligence a substantial contributing cause of the husband plaintiff’s harm either on the basis of any violation of the statute by the intern and/or the hospital as to the supervision requirement, (citation omitted).

Opinion, 2/3/86 at 2.

Therefore our review should be limited to whether a clear and palpable abuse of discretion has occurred. Westinghouse, supra, 514 Pa. at 260, 523 A.2d at 727.

The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury comprehends the questions which they are to decide. The instructions must give the jury a reasonable guide for the determination of the alleged negligence required. The jury cannot determine whether a party is guilty of negligence without knowing the degree of care required of that person or entity. Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985). See, also, Crotty v. Reading Industries, 237 Pa.Super. 1, 345 A.2d 259 (1975).

In this case, the trial court, in the grant of a new trial, held that the jury should have determined whether there was a violation of the Medical Practice Act of 1974 and if negligence under the act was a substantial contributing cause of the harm to the plaintiff based upon the independent negligence as to supervision by Presbyterian Hospital, or the violation of the statute by the intern, Dr. Wilson. The ultimate question is whether the trial court has acted within the limits of its judicial discretion, when the record adequately supports the trial court’s grant of a new trial. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). I find the grant of a new trial to be supported by the record.

The Pennsylvania Legislature enacted the Medical Practice Act of 1974, P.L. 551, No. 190, 63 P.S. § 421.10 et seq., in order to license physicians and thereby protect the public from unlicensed and unqualified practitioners of medicine. The Legislative Journal-House, H.B. 760, 2795-2798, (December 4, 1973). Yet, Presbyterian University Hospital argues that no violation of the Act’s purpose occurred when Intern David Wilson examined Mr. Solomon, diagnosed his severe jaw pain as periodontal disease, and released him from the Emergency Room — all with no supervision. Mr. Solomon suffered a heart attacked two days later.

Intern Wilson did have a license, but it was a temporary license for a graduate medical trainee (N.T., Vol. II, 6/7/85 at 210). Under the Medical Practice Act of 1974, a temporary trainee license:

... shall be recognized only as conferring upon the licensee the right to participate in approved graduate medical training within the complex of the hospital to which he is assigned.

63 P.S. § 421.4. (emphasis added). The Act further limits the practice of medicine by interns by requiring hospitals to supervise said interns. The Act defines an intern as:

A physician who is receiving supervised graduate medical training at an approved hospital or its legal affiliate.

63 P.S. § 421.2(6) (emphasis added).

By limiting the type of license accorded an intern and by requiring hospitals to supervise interns, the Medical Practice Act of 1974 controls an intern’s practice of medicine. Because interns are not fully licensed physicians, they may not, under the act, present or hold themselves out as such and treat patients as though they have unlimited licenses.

It shall be unlawful for any person in the Commonwealth to engage in the practice of medicine and surgery, or pretend to a knowledge of any branch or branches of medicine and surgery, or to hold himself or herself forth as a practitioner in medicine and surgery, or to assume the title of doctor of medicine and surgery or doctor of any specific disease, ... unless he or she has first fulfilled the requirements of this Act and has received a certificate of licensure or permission from the board, ...

63 P.S. § 421.3. The Act required Intern Wilson to be supervised in order to practice medicine, 63 P.S. § 421.2(6); 49 Pa.Code § 17.15(c). Nonetheless, Intern Wilson treated Mr. Solomon without consulting a fully licensed physician or without having a fully licensed physician present during treatment. (N.T., Yol. II, 6/7/85 at 235-255). In fact, other than the triage nurse, Intern Wilson was the only person to examine Mr. Solomon. (N.T., Vol. II, 6/7/85 at 235-255, N.T., Yol. Ill, 6/7/85 at 295-297.). Intern Wilson’s supervisor, the Emergency Room resident on duty, was apparently asleep in another room during Mr. Solomon’s examination. (N.T., Vol. II, 6/7/85 at 295-297).

Therefore, a jury might find that: When Intern Wilson acted alone, he presented himself as a fully licensed physician, a clear violation of the Medical Practice Act of 1974, 63 P.S. § 421.3. The jury might also find that Intern Wilson also violated the Act because he treated Mr. Solomon without supervision. 63 P.S. § 421.2(6). 63 P.S. § 421.3. Furthermore, a jury might find that Intern Wilson violated the Pennsylvania Code which states that temporary licenses do not authorize independent practice; they only permit supervised practice.

This supervised training experience shall not be converted into an independent staff service by or for any licensed graduate medical trainee.

49 Pa.Code § 17.15(c) (Effective July 21, 1979 through February 16, 1985) (emphasis added).

Both the Pennsylvania Code, 49 Pa.Code § 17.15(c), and the Medical Practice Act of 1974, 63 P.S. § 421.2(6), require hospitals to supervise interns. Neither the Act nor the Code, however, define supervision. Whenever the legislature leaves language undefined, "... effect must be given to the plain meaning of the words used.” Rodenbaugh v. Traction Co., 190 Pa. 358, 42 A. 953 (1899), cited with approval in Commonwealth v. Cohen, 142 Pa.Super. 199, 15 A.2d 730 (1940). Certainly, supervision can never plainly mean no supervision at all. The record indicates that: Intern Wilson examined Mr. Solomon (N.T., Vol. II, 6/7/85 at 235-255); he never consulted the Emergency Room resident (N.T., Vol. II, 6/7/85 at 295-297). He acted with no one other than the triage nurse knowing that he was treating a patient. No one checked Intern Wilson’s records to see who he treated and whether the treatment was proper in view of the patient’s symptoms. A jury might therefore conclude that had a qualified and fully licensed physician reviewed Intern Wilson’s treatment of Mr. Solomon, he or she could have discovered the deficient diagnosis and recalled Mr. Solomon for proper treatment.

Furthermore, a jury might determine that Presbyterian University Hospital violated the Medical Practice Act of 1974, 63 P.S. § 421.2(6) and the Pennsylvania Code, 49 Pa.Code § 17.15(c) when it failed to supervise Intern Wilson. That result would follow if supervision means that the hospital, through its fully licensed physicians, monitors interns’ activities and either sees that a fully licensed physician is physically present and guiding the intern, or at the very least, that fully licensed physicians review the records of patients treated by interns within a reasonable period of time.

Presbyterian University Hospital argues that the Medical Practice Act of 1974 and the Pennsylvania Code could not require such direct supervision of interns because such a requirement would severely tax hospital resources. A jury might find this argument to be persuasive.

On the other hand, a jury might reason that the Pennsylvania Legislature enacted the Medical Practice Act of 1974 to protect patients and reach a contrary result. The Act specifically protects patients from unqualified practitioners of medicine. 63 P.S. § 421.3. Interns have temporary licenses because they are not qualified to be fully licensed physicians. 63 P.S. § 421.2(4). Interns are not fully qualified practitioners of medicine and the Act protects patients from unsupervised care. 63 P.S. § 421 et seq.

In the case at bar, the jury should have been given an opportunity to decide whether Presbyterian University Hospital adequately supervised Intern Wilson. The jury also should have been instructed that the plain meaning of supervision within the Medical Practice Act of 1974 and Pennsylvania Code requires the direct physical presence of a fully licensed physician who oversees all intern activities or at least reviews the treatment prescribed. The jury also should have been instructed that if it found that Intern Wilson was unsupervised, Presbyterian University Hospital and Dr. Wilson violated the Medical Practice Act of 1974. The jury should also have been instructed that violations of requirements imposed by law have been held to be negligence per se. Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982).

I also reject the statement by the majority that the hospital was unfairly surprised when the plaintiffs attempted to premise the hospital’s independent liability on the negligent supervision of Intern Wilson. Paragraph 19 of the complaint alleges inter alia; in pertinent part:

19. Plaintiffs treatment and care by Defendant(s) Presbyterian University Hospital____was negligent and not in accordance with proper medical skill and care, both generally and in the following particulars:
In failing to exercise a degree in care and treatment required by medical professionals under the circumstances.

The appropriate duty of care a hospital owes to a person seeking emergency room treatment is set forth under § 323 Restatement of Torts 2d:

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

Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), Riddle Memorial Hospital v. Dohan, 504 Pa.Super. 571, 475 A.2d 1314 (1984). We have determined that:

[T]he changing role of the hospital in society creates a likelihood that patients will look to the institution rather than the individual physician for care.
The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and interns, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action.

Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 367, 430 A.2d 647, 649 (1980).

By denying Mr. Solomon’s proposed point for charge, the trial judge took away from the jury the issue of negligent supervision and the independent liability of the hospital. This action, as the trial court has determined, was improper because the jury could reasonably conclude that the factors relevant to negligent supervision and negligence per se were present.

As Justice Hutchinson concurring in Thompson, supra, noted: “When the trial court takes the extraordinary step of granting a new trial, appellate courts in general and Superior Court in particular should defer to the trial court’s discretion.” 507 Pa. at 597, 493 A.2d at 674.

Accordingly, I would affirm the trial court.

      . Also named as defendants in the complaint were Dr. David Sumney and Dr. James Danner. Dr. Sumney was dismissed from the case by stipulation of counsel dated April 10, 1985. A verdict was returned for Dr. Danner against Solomon, and Solomon’s subsequent motion for a new trial with respect to Dr. Danner was denied by the trial court. Solomon has not appealed from this determination.

      . LaRue Solomon, the wife of Gilbert Solomon, alleged a derivative claim for loss of consortium.

      . It is suggested by the dissent that the issue of the hospital's independent negligence was raised in paragraph nineteen of the plaintiff's complaint. Nowhere in that paragraph, however, is it alleged that the hospital was independently negligent for failing to provide proper supervision of Dr. Wilson. In fact, the only allegations of negligence which are enumerated in that paragraph refer to omissions by Dr. Wilson during his examination and treatment of Mr. Solomon. Reading the inartfully drafted paragraph in its entirety, it is apparent that plaintiffs did not intend to assert the independent negligence of the hospital for failing to supervise Dr. Wilson; rather, they attempted to allege vicarious liability on the part of the hospital arising out of Dr. Wilson’s specific acts of negligence. This construction of paragraph nineteen of the complaint finds support in the next succeeding paragraph which alleged:
      20. The Defendant Presbyterian University Hospital in addition to being liable as the master of either David Wilson, M.D. or Stephen Wilson, M.D. is liable on a theory of ostensible agency.
      (emphasis added). When considered in context, the allegations of the complaint do not raise the issue of the hospital's independent negligence for failing properly to supervise its intern, Dr. Wilson. Moreover and in any event, as the author of the dissent appears to concede, the issue of the hospital’s independent negligence for failing to provide direct supervision of Dr. Wilson was not raised at trial, and no jury instruction pertaining thereto was requested.

      . Act of July 20, 1974, P.L. 551, No. 190, § 1, 63 P.S. § 421.1 et seq.

      . Like the issue of the hospital’s independent liability, the issue of whether there had been a violation of the Medical Practice Act of 1974 was not raised by the Solomons in their complaint. It was presented to the trial court for the first time as a requested point for charge. Ordinarily, jury instructions will be confined to the issues raised in the pleadings and the facts developed by the evidence in support of such issues. See: Heyman v. Electric Service Manufacturing Co., 412 Pa. 338, 345, 194 A.2d 429, 432 (1963); Hrivnak v. Perrone, 231 Pa.Super. 151, 154, 331 A.2d 507, 508 (1974), aff'd, 472 Pa. 348, 372 A.2d 730 (1977). Where a claim of negligence is predicated upon an alleged violation of statute, the complaint must allege facts which show that the case is within the statute and must disclose the duty of care created thereby. See: Goldberg v. Friedrich, 279 Pa. 572, 574, 124 A. 186, 186 (1924); Godina v. Oswald, 206 Pa.Super. 51, 55, 211 A.2d 91, 93 (1965); Sheffit v. Koff, 175 Pa.Super. 37, 39, 100 A.2d 393, 395 (1953); Commonwealth, Department of Transportation v. Shipley, 29 Pa.Cmwlth. 171, 174, 370 A.2d 438, 440 (1977). See also: 65A C.J.S. Negligence § 186(8). Appellants have not questioned whether Solomon properly raised the possible application of the Medical Practice Act; and, therefore, we do not address this issue.

      . Act of December 20, 1985, P.L. 457, No. 112, § 1, 63 P.S. § 422.1 et seq., effective January 1, 1986.

      . In light of our holding, it is unnecessary to consider appellants’ remaining argument that Dr. Wilson’s alleged violation of the Act was not the "efficient cause” of the injury sustained by Solomon.

      . Websters Third International Dictionary defines participate as: 2. a. to take part in something (as an enterprise or activity) usually with others; b. to have part or share in something. At 1646.

      . Websters Third International Dictionary defines supervise as: To coordinate, direct, and inspect continuously and at first hand the accomplishment of: oversee with the powers of direction of one’s own or another’s intentions. At. 2296.

      . We note that Administrative Regulations have the effect of law and are binding if in accord with legislative intent. Federal Insurance Co. v. Commonwealth of PA Insurance Department, 509 Pa. 1, 500 A.2d 796 (1985).

      . Websters Third International Dictionary defines supervision as 1:. The act, process or occupation of supervising: direction, inspection and criteria evaluation: oversight. At 2296.

      . The Medical Practice Act of 1974 was replaced by the Medical Practice Act of 1985, 63 P.S. § 422 et seq., effective January 1, 1986. The Medical Practice Act of 1985 is silent with regard to supervision.