text:
    550 A.2d 1019
    Donna A. WACHTER, Appellee, v. Joseph P. ASCERO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1988.
    Filed Dec. 1, 1988.

      Herbert R. Weiman, Philadelphia, for appellant.
    Fern Lynn Kletter, Assistant District Attorney, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is a direct appeal from an order denying a petition to vacate a support order which provided that Joseph P. Ascero pay $12.00 per week for the support of Joseph Michael Wachter, plus $3.00 arrears due the Department of Public Assistance.

A complaint for support was filed by Donna Wachter naming the petitioner as the defendant in 1983. Blood tests were requested but the Appellant voluntarily and in writing acknowledged paternity and entered into an agreed support order for the child.

In May of 1986 the Appellant’s petition to reopen the issue of paternity and his request for HLA blood studies were denied. Appellant then filed a motion for reconsideration of his petition requesting HLA testing. In the hearing on this motion the following colloquy ensued:

APPELLANT’S ATTORNEY: We are here, Your Honor, for reconsideration. We had filed to allow blood testing. This child was actually born in ’83. There was an order for blood testing in 1984, and at that time the parties agreed not to have blood testing. And you heard testimony at the prior hearing from both parties at least from Mr. Ascero that this was something that was done, the mother of the child was saying to him why should you do this to me and to the child because in fact he had lived together with her during the early years that this child was born and he had grown to love the child, the child had grown to love him.
Our problem, Your Honor, is simply this: Mr. Ascero in fact still visits the child, he is paying support under the order. He would like to know, because the doubts that were raised by the mother on the one hand, by someone else who admitted being the father, he is even willing to agree that he would continue paying support, but he would like to know for sure that he is the father of this child. He feels that it would be helpful for the child and for himself, because this doubt having been brought to light, he would like to know, and that’s why he wants the blood testing. And he would agree, as I say, to continue paying support even if it is determined that he is not or likely not to be the father of the child by virtue of the blood testing. So that he is here really because he would like to settle his mind ...
THE COURT: There is a great principle in the law that the Court does not order a futile act. And, of course, it would appear that the legal issues here are hammered and nailed down and cannot be subject to any reopening. However, from a humanitarian standpoint I will order blood studies and we will give the woman some time to recover, it is noted by the Court that they have no legal significance. (N.T. at 2-4, December 8, 1986).

The court then ordered the testing with the stipulation on the order that the “Defendant agrees to pay support order regardless of out come [sic] of Blood test.” (Order of 3/11/87, amending order of December 8, 1986).

The blood tests were performed and the results indicated that Appellant was excluded as the father of the child. Appellant then filed a petition to vacate the support order. The Appellant’s petition was denied and this appeal was taken.

As the trial court noted above, the legal issues in this case are indeed “hammered and nailed down.” The Appellant argues: (1) the acknowledgement of paternity is not a “knowing and intelligent” admission prior to HLA blood testing, and (2) the doctrines of equitable estoppel and/or res judicata do not bar him from attacking the finding of paternity in this case. We will consider the issues in reverse order.

It is well settled that an order for support of an illegitimate child necessarily determines the issue of paternity. Absent an appeal taken directly from the order, or the showing of fraud the aggrieved party is foreclosed from challenging this determination. The issue of paternity is established as a matter of law. Shindel v. Leedom, 350 Pa.Super. 274, 278, 504 A.2d 353, 355 (1986); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 174, 384 A.2d 1285, 1287 (1978). Furthermore, it was stated in Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 182, 199 A.2d 490, 491 (1964), that paternity is a relevant fact necessarily determined and established by the entry of a support order, and therefore, under the doctrine of res judicata, the aggrieved party to a support order may not later challenge that fact in a subsequent proceeding.

In this case, the issue of paternity was decided in 1984 when Mr. Ascero chose to enter into the support order and did not appeal that order. Furthermore, Appellant has never alleged fraud in relation to that order. Therefore, the issue of paternity is res judicata and cannot be challenged on this appeal.

Additionally, as in the similar case Manze v. Manze, 362 Pa.Super; 153, 523 A.2d 821 (1987), the decision to reject this petition may be justified under the doctrine of equitable estoppel. Under this doctrine, if the putative father has indicated by his conduct that the child is his own, he is estopped from denying paternity. Furthermore, this doctrine is compatible with this Court’s findings that parental relationships can be established constructively and that such relationships and their concomitant duties merit judicial recognition and enforcement. Id.; Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984). Our court has stated, “[T]he law cannot permit a party to renounce even an assumed duty of parentage when by doing so the innocent child would be victimized.” Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 312, 369 A.2d 416, 419 (1976).

In the instant case, Ascero lived with the child for two years and continued to visit the child after he moved out. He stated that he had grown to love the child, and would continue to visit him. He also represented to the lower court that he wanted the blood tests solely to satisfy his curiosity and for the sake of the child. For these reasons, he is now estopped from denying paternity and from denying his obligation to support the child. Manze, supra, at 362 Pa.Superior Ct. at 161, 523 A.2d at 825. Appellant’s attempt to distinguish Manze from the facts in this case is misguided. The important fact is that Mr. Ascero held himself out as the father of the child, and acknowledged paternity in writing which was approved by court and entered as an order by the court. He then pledged that whatever the results of the HLA test, he would continue to pay support. The law is clear, and Appellant is thus equitably estopped from challenging the support order.

Next, appellant argues that his agreement to support the child and his acknowledgement of paternity did not constitute a voluntary and intelligent act because blood tests had not shown that he was, in fact, the father so he could not “know” he was the father when he acknowledged paternity. Appellant cites no case law for this proposition, and furthermore, when Appellant was given the opportunity to order blood tests, prior to entering into the support order, he chose not to exercise this right and instead acknowledged paternity. This argument is thus without merit.

Under 42 Pa.C.S.A. § 6133, the Uniform Act on Blood Tests to Determine Paternity, the court has the authority to order tests if “paternity, parentage or identity of a child is a relevant fact.” In Manze, this court stated that where paternity has been established either by consent or order, paternity is not a relevant fact in a later proceeding. Manze, 362 Pa.Super. at 162, 523 A.2d at 825. Therefore, blood tests should not have been ordered in this case, even for humanitarian purposes, and should never be ordered unless it is to establish paternity in a proceeding where paternity is a relevant fact and has not already been determined in a prior proceeding.

Order affirmed. Jurisdiction relinquished.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    550 A.2d 1021
    Mary GENOVESE, Appellee, v. Joseph GENOVESE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1988.
    Filed Dec. 2, 1988.

      Paul N. Sandler, Philadelphia, for appellant.
    Arthur Robert Shuman, Jr., Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order entered in proceedings on a petition to hold appellant in contempt for failure to pay sums due pursuant to a child support order. Appellant contends that: (1) he should not be held in contempt of an order that is vague and unspecific, and (2) the trial court erred in attempting to enforce an order with which he is financially unable to comply. We quash.

The original support order in this matter was entered in August, 1985, by the Honorable Frank M. Jackson and directed that appellant make biweekly payments of support and arrearages, as well as annual lump-sum payments which were to be made within ten days of receipt of his annual bonus. Biweekly payments were made as scheduled, but appellant failed to make lump sum payments in 1985 or 1986. A petition for contempt was filed by appellee in December 1986. After a hearing at which argument was presented by counsel for both parties but at which appellant was not permitted to testify, the Honorable Mary Rose Cunningham, on January 23, 1987, entered an order which, in pertinent part, states, “defendant to pay a sum of [$]14,-300.00 within two weeks or be held in contempt” and listed the matter for further hearing on February 6, 1987. This appeal followed.

In the statement of jurisdiction included in his brief, appellant asserts that “[t]he Order of Judge Cunningham constitutes a final determination that the prior Order of the Honorable Judge Jackson ... was enforceable against the Appellant in accordance with Judge Cunningham’s interpretation of said Order.”

Unless sanctions are imposed, an order declaring a party in contempt is interlocutory. McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985); In re Grand Jury Subpoena to Kevin Koll, 311 Pa.Super. 212, 457 A.2d 570 (1983); Hester v. Bagnato, 292 Pa.Super. 322, 437 A.2d 66 (1981). Unless the order of contempt is final, this Court lacks jurisdiction to entertain the appeal. McManus, supra; Guisler v. Alexander, 307 Pa.Super. 219, 453 A.2d 4 (1982). A threat to ■ hold a party in contempt at some future time if a decree is not performed or a threat to impose sanctions in the future is neither final nor appealable. See McManus, supra; Brodsky v. Philadelphia Athletic Club, 277 Pa. Super. 549, 419 A.2d 1285 (1980).

Steel v. Weisberg, 368 Pa.Super. 590, 593, 534 A.2d 814, 816 (1987). Although the challenged order in this case does constitute a formalization of the trial court’s interpretation of the support order so as to require payment of the stated sum, it clearly does not constitute a present finding of contempt, nor does it impose a sanction. It is, therefore, interlocutory. Since we are without jurisdiction to hear this appeal, we quash. See Hester, supra.

APPEAL QUASHED.

      . It is noted that, at the conclusion of the hearing on the petition for contempt, Judge Cunningham stated on the record her conclusion that appellant was in contempt of the support order and her intention, if the ordered sum was not paid within two weeks, to impose a sentence of imprisonment. However, these statements were never effectuated by order of court and, indeed, the order which Judge Cunningham actually entered at the conclusion of the hearing delayed even a formal finding of contempt until the two week period had elapsed without payment being made. As our rules of appellate procedure render appealable only determinations which have been entered as orders or judgments on the appropriate docket, Pa.R.A.P. 301, it is clear that Judge Cunningham’s statements of her intentions in this matter cannot render final and appealable an otherwise interlocutory order.


author: ROWLEY, Judge:

text:
    550 A.2d 1320
    Joan S. PURCELL and James Purcell, Administrators of the Estate of Lindsay Hunter Purcell, Deceased, v. BRYN MAWR HOSPITAL, Marion L. Brown, D.O., Frank J. Manfrey, D.O., and Claudia Brown, R.N. Appeal of BRYN MAWR HOSPITAL.
    Superior Court of Pennsylvania.
    Argued June 3, 1988.
    Filed Nov. 23, 1988.

      Henry T. Reath, Philadelphia, for appellant.
    James E. Beasley, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN , BECK, KELLY, POPOVICH and MELINSON *, JJ.

       Judge McEwen and Judge Melinson did not participate in the decision of this case.

   ROWLEY, Judge:

This is an interlocutory appeal by permission from an order overruling the preliminary objections of appellant, Bryn Mawr Hospital, as to venue in a medical malpractice action. We affirm.

On September 20, 1985, plaintiffs Joan and James Purcell, residents of Chester County, Pennsylvania, and administrators of the estate of their daughter, Lindsay Hunter Purcell, commenced the instant medical malpractice action in Philadelphia County against Bryn Mawr Hospital (Bryn Mawr), which is located in Montgomery County. Bryn Mawr filed preliminary objections as to venue asserting that venue was not proper in Philadelphia County because Bryn Mawr does not “regularly conduct business” in Philadelphia as required by Pa.R.C.P. 2179(a)(2). The trial court ordered the parties to conduct depositions on the issue of venue.

Upon completion of the depositions, the trial court entered an order on April 23, 1986, overruling Bryn Mawr’s preliminary objections. A motion for reconsideration of the April 23, 1986, order was denied. However, in response to a subsequent petition filed by Bryn Mawr for leave to appeal the interlocutory order of April 23, 1986, the trial court vacated its April 23, 1986, order. On June 27, 1986, the court entered an order again overruling Bryn Mawr’s preliminary objections as to venue and certifying that its order involved a controlling question of law as to which there were substantial grounds for differences of opinion. On October 24, 1986, this Court granted Bryn Mawr’s petition for permission to file an interlocutory appeal. This case was listed for argument before an en banc panel of our Court.

The sole issue before us is whether or not venue is proper in Philadelphia County in the instant case. Upon carefully reviewing the arguments and briefs of all parties and upon close examination of the original record, we conclude that the trial court’s determination that venue is proper in Philadelphia is supported by the unique facts in this case and is in accord with prior precedent. We therefore affirm the order.

I. FACTS

The relevant facts in the present case, which was commenced in Philadelphia County, are as follows. The plaintiffs reside in Chester County; Bryn Mawr is located in Montgomery County; and the other defendants have professional offices or reside outside of Philadelphia County. Bryn Mawr treats all of its patients in Montgomery County and does not transfer them to other hospitals located in Philadelphia in order to provide special care. Bryn Mawr maintains a listing in the Philadelphia County Yellow and White Pages of the telephone book. Bryn Mawr also places advertisements periodically in the Philadelphia Inquirer. Bryn Mawr purchases various supplies from businesses in Philadelphia County.

Bryn Mawr also has contracts with several hospitals/medical schools located in Philadelphia County, including Jefferson Medical College, (Jefferson) University of Pennsylvania, and Temple University Hospital. The nature of the agreements with these Philadelphia County hospitals/medical schools is similar: students enrolled in residency programs in the medical schools of these Philadelphia County hospitals serve rotations, varying in duration from several months to a year, at Bryn Mawr. In exchange for the services of the residents, Bryn Mawr pays the appropriate other medical school/hospital a sum equal to the salary of the resident plus a percentage of the salary for fringe benefits. Bryn Mawr also either provides professional liability coverage to the resident or pays a fee to the appropriate hospital/medical school to cover the professional liability expense for the resident incurred by the hospital/medical school.

By the express terms of the agreement between Bryn Mawr and Jefferson in Philadelphia County, the establishment of the “cooperative academic program of medical education and training, to be known as the ‘Jefferson-Bryn Mawr Education Program’ ” was established for the following purposes:

WHEREAS Bryn Mawr desires to continue and improve the excellence of its medical and community services, desires to enlarge its educational responsibilities and believes that both can be achieved best by an affiliation with a medical school and participation in a well organized program of medical education; and
WHEREAS Jefferson operates a medical college, general hospital, College of Graduate Studies, and College of Allied Health Sciences at Philadelphia, Pennsylvania, and shares with Bryn Mawr common goals of patient care, education and research and community services; and
WHEREAS, Jefferson wishes to cooperate toward these common goals by developing joint programs for the education of undergraduate medical students and house staff, and by promoting continuing medical education and research, communications and cooperative programs of patient care and community service;
Now therefore, the parties hereto, intending it to be legally bound, agree as follows:

The agreement further provides that Jefferson “shall assign medical students to participate in the program at Bryn Mawr” in such numbers and for such periods of time as both hospitals shall agree to. Bryn Mawr must provide from its own staff a Director of Medical Education and a Program Director for each participating department of the Hospital. Furthermore, any physician at Bryn Mawr who participates in the program must be approved by Jefferson as a member of Jefferson’s faculty and the physician must accept appointment to the Jefferson Medical College faculty. When the position of Director of Medical Education at Bryn Mawr becomes vacant, the search committee for a successor Director at Bryn Mawr shall include the Dean of Jefferson or his designee.

II. LEGAL ARGUMENTS

Before examining these facts in light of the arguments of the parties and the relevant law, we note that our scope of review of an order determining whether a corporation regularly conducts business in a particular county, and, therefore, whether venue is proper under Pa.R.C.P. 2179 is limited. Such a determination depends on the individual facts of each case, and we cannot reverse a trial court’s determination when its conclusion is a reasonable one in view of the facts. Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965).

The primary issue before us is whether or not venue is proper in Philadelphia County. In an action against a corporation the Rules of Civil Procedure provide that venue lies in and only in:

(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose; or
(4) a county where a transaction or occurrence took place out of which the cause of action arose.

Pa.R.C.P. 2179(a)(l)-(4). In the present case, it is undisputed that the principal place of business of Bryn Mawr is not in Philadelphia County, that the cause of action did not arise in Philadelphia County, and that no transaction or occurrence out of which the cause of action arose took place in Philadelphia County. However, the parties dispute whether Bryn Mawr “regularly conducts business” in Philadelphia County. Therefore, we must determine whether the trial court erred in concluding that the activities of Bryn Mawr in this case come within the meaning of “regularly conducts business” in Rule 2179(a)(2).

Upon reviewing the facts of this case, which include that Bryn Mawr admittedly purchases essential materials and supplies from Philadelphia County without which it would be unable to provide medical services to its patients; that Bryn Mawr presently has and has had for many years an “affiliation” with Philadelphia County medical schools/hospitals, the express purpose of which is to “continue and improve the excellence of its medical and community services” and “to enlarge its educational responsibilities;” that because of the “affiliation” between Bryn Mawr and the Philadelphia County medical schools/hospitals, Bryn Mawr is able to improve the quality of care it can provide its patients, and thereby increase the number of patients who seek medical treatment from Bryn Mawr as well as maintain or improve the quality of treatment available in Philadelphia County hospitals as a result of the training the residents receive during their rotation at Bryn Mawr before they return to the Philadelphia County medical schools/hospitals; we find ample evidence in the record to support the trial court’s conclusion that venue in Philadelphia County in the present case is proper because Bryn Mawr “regularly conducts business” in Philadelphia County.

Bryn Mawr and the amici challenge the trial court’s conclusion that Bryn Mawr regularly conducts business in Philadelphia County for purposes of venue on three general bases. First, they contend that to find that Bryn Mawr regularly conducts business in Philadelphia County is contrary to the stated public policy behind Rule 2179. Secondly, they argue that applying established case law to the facts of this case, Bryn Mawr does not regularly conduct business in Philadelphia County. Finally, they set forth a host of policy reasons why we should not conclude that venue is proper in Philadelphia County.

A. Rule 2179 Policy

Bryn Mawr’s first basis for asserting that the trial court erred is that the trial court’s decision was contrary to the stated policy behind Rule 2179. That policy, as set forth by the Supreme Court in Burdett Oxygen Co. v. Wolfe & Sons, Inc., 433 Pa. 291, 249 A.2d 299 (1969), is:

to permit a plaintiff to institute suit against the defendant in the county most convenient for him and his witnesses and to assure that the court selected had a substantial relationship to the controversy between the parties and was thereby a proper forum to adjudicate the dispute.

Burdett, Id., 433 Pa. at 295, 249 A.2d at 302.

Bryn Mawr asserts on appeal that venue in Philadelphia County in this case is not convenient to plaintiffs or their witnesses because the plaintiffs reside in Chester County. However, Bryn Mawr’s objection to venue in this case is based on its argument that Philadelphia County is not an authorized forum in which to bring the present action. Bryn Mawr has never asserted that venue should be transferred from Philadelphia County to Montgomery County under the doctrine of forum non conveniens as provided for under Rule of Civil Procedure 1006(d)(1). On the contrary, throughout its preliminary objections to the complaint, Bryn Mawr repeatedly and exclusively asserts that venue in Philadelphia County is improper. In resolving the issue actually raised by Bryn Mawr as to whether or not venue is proper in Philadelphia County under Rule 2179(a)(2), our only concern is whether it is permissible to bring the action in Philadelphia County. Whether or not venue is more convenient in Philadelphia County is entirely irrelevant to our determination of whether or not the trial court erred in denying Bryn Mawr’s preliminary objections to venue based on Rule 2179(a)(2), and therefore would be applicable only upon consideration of a request for change of venue based on the doctrine of forum non conveniens, which request has not been made in this case.

Moreover, there is nothing in the record presently before us to support the substantive aspects of Bryn Mawr’s argument that Philadelphia County is an inconvenient forum. While there is no dispute that the plaintiffs reside in Chester County, Bryn Mawr has pointed to no evidence in the record, and we have found none, which supports its bald conclusory assertion that because the plaintiffs live in Chester County, Philadelphia County is in fact an inconvenient forum for them or their witnesses. The plaintiffs may find it more convenient to travel to Philadelphia County rather than Montgomery County where Bryn Mawr contends that the action should be brought, and Philadelphia County may be more convenient to witnesses, either expert or lay, which the plaintiffs may want to use. We therefore not only find that the claim that Philadelphia County is inconvenient to the plaintiffs and their witnesses is wholly irrelevant to the issue which Bryn Mawr has raised, but also that there is nothing in the record presently before us to support it.

Bryn Mawr and the amici also argue that Bryn Mawr’s limited contacts with Philadelphia County bear no relationship to the underlying cause of action in this case, and therefore to find that venue is proper in Philadelphia County is contradictory to that part of the public policy expressed in Rule 2179 that there be a substantial relationship between the forum and the controversy. Bryn Mawr asserts that its telephone listings and advertising did not result in the plaintiffs seeking the services of Bryn Mawr, that its purchase of supplies and materials from Philadelphia County businesses is only incidental to its corporate objective, and that no resident placed at Bryn Mawr was involved in the care and treatment which are at the heart of the malpractice action in this case. Therefore, it argues, there is no relationship between Philadelphia County and the present action.

Bryn Mawr would have us hold that whatever connections it has with Philadelphia County cannot as a matter of law be construed as “regularly conducting business” in Philadelphia County because the connections which it has with Philadelphia County have nothing to do with the underlying action in the present case. However, the test for whether a corporation “regularly conducts business” in a particular county within the meaning of Rule 2179(a)(2) is not whether the corporate acts within the county relate to the particular action sued upon. Rather, as discussed below, the courts have repeatedly examined the nature of corporate acts within a particular county from the standpoint of how the acts performed therein relate to accomplishment of the general corporate objectives. The corporation’s acts within a particular county, if related to the action sued upon, may be of sufficient quality to warrant the conclusion that the corporation is regularly conducting business in that county for purposes of venue. However, Bryn Mawr and the amici have cited no authority, and we have found none, which hold that the converse is true: that if a corporation’s acts in a particular county, regardless of the nature or magnitude of those acts, bear no relationship to the underlying action, the corporation does not regularly conduct business in that county for purposes of venue.

The first case to consider Rule 2179(a)(2) was Law v. Atlantic Coast Line Railroad Co., 367 Pa. 170, 79 A.2d 252 (1951). In Law, a foreign corporation had been sued in Pennsylvania, and the corporation filed preliminary objections challenging the service of process. The trial court set aside the service of process on the theory that the corporation was not “doing business” within the meaning of Rule 2179(a)(2) which established venue in actions against corporations. In deciding whether the corporation in Law was “doing business” in Pennsylvania, the court followed the test for “doing business” which the Supreme Court had adopted in Shambe v. Delaware and Hudson R.R. Co., 288 Pa. 240, 135 A. 755 (1927).

At issue in Shambe was whether Pennsylvania had jurisdiction over the defendant corporation. Under the applicable law, Pennsylvania only had jurisdiction over a foreign corporation if the corporation was “doing business” in the Pennsylvania county in which the corporation was sued. The court determined that to be “doing business” in a particular county, the acts of the corporation in that county must be of sufficient quality and quantity. “Quality” acts were described as being, “those directly, furthering or essential to, corporate objects; they do not include incidental acts.” Id., 288 Pa. at 247, 135 A. at 757. “Quantity” of acts was defined as “those which are so continuous and sufficient to be termed general and habitual.” Id.

In Shambe the defendant New York corporation had an agent’s office in Philadelphia, and the primary function of this office was to solicit business for the corporation whose primary object was shipping freight. The agent’s office would also transmit communications from customers to the New York office and vice versa. With rare exceptions, the Philadelphia agent’s office did not make contracts or settle claims. As the court noted, agencies to solicit were only used as information and advertising bureaus. The Court concluded that the mere solicitation of business was only incidental to the main purpose of the business, which was to ship freight, and therefore the corporation did not do business in Philadelphia.

The Court in Law not only applied the jurisdictional test for “doing business” set forth in Shambe, but also found that the facts in Law were materially indistinguishable from those in Shambe. In Law, the defendant corporation was incorporated under the laws of Virginia and had its principal office in North Carolina, but was sued in Pennsylvania. The corporation operated a railroad for passengers and freight in the South. It did not own or operate any railroad line, station, terminal, freight yard or any other transportation facility in Pennsylvania. Passenger and freight cars which it owned traveled through Philadelphia en route between Washington D.C. and New York City. The corporation maintained a freight and passenger office in Philadelphia to solicit business on its lines. Based on these facts, the court concluded that the foreign corporation was not “doing business” in Pennsylvania within the meaning of Rule 2179(a)(2).

Following its decision in Law, the Supreme Court next addressed the meaning of “regularly conducts business” in Rule 2179(a)(2) in Monaco v. Montgomery Cab Company, 417 Pa. 135, 208 A.2d 252 (1965). ' In Monaco, the defendant, which was a Montgomery County corporation, had been sued in Philadelphia County for damages resulting from an accident in Montgomery County. The defendant corporation challenged the propriety of venue in Philadelphia County, arguing that it did not conduct business in Philadelphia County because it was prohibited from picking up passengers in Philadelphia County.

Although the defendant taxi cab company was prohibited from picking up passengers in Philadelphia County, it regularly transported people from Montgomery County into Philadelphia County. Five to ten percent of its gross fares were for such trips. Applying the jurisdictional quality and quantity analysis adopted and followed in Shambe and Law, the court found that driving passengers into Philadelphia County was an act directly essential to and in furtherance of the corporate objectives, and that it was done habitually. Therefore the court concluded that the defendant corporation’s acts in Philadelphia County were of sufficient quality and quantity to constitute “regularly conducting business” in Philadelphia under Rule 2179(a)(2).

Especially significant in Monaco, is the fact that the court held that the cab company was regularly conducting business within Philadelphia County for purposes of venue under rule 2179(a)(2) even though no facts recited in Monaco demonstrate that the five to ten percent of the cab company’s business was directly related to the underlying action. Nothing in Monaco suggests that the plaintiff was himself a resident of Philadelphia County, or that in this particular case, the plaintiff’s ultimate destination, cut short by the accident, was Philadelphia County. The accident did not occur in Philadelphia County. Therefore, without indicating that there was any relationship between Philadelphia County and the underlying action other than the simple fact that ,the defendant corporation at times, which may all have been unrelated to the underlying cause of action, regularly conducted business in Philadelphia County, the court held that for venue purposes, the defendant corporation regularly conducted business in Philadelphia County.

The next significant appellate case to require an interpretation of Rule 2179(a)(2) was Burdett Oxygen Co. v. Wolfe & Sons, Inc., 433 Pa. 291, 249 A.2d 299 (1969). In Burdett, the plaintiff was a Montgomery County corporation which had entered into a contract with the defendant corporation (located in Dauphin County) by the terms of which the Dauphin County corporation agreed to purchase its requirements for certain types of gases from the Montgomery County corporation. When the Montgomery County corporation thought that the Dauphin County corporation had breached the contract, it sued the Dauphin County corporation in Montgomery County. The Dauphin County corporation filed preliminary objections to venue asserting that venue was improper in Montgomery County because it did not conduct business there.

The Dauphin County corporation relied primarily on a trial court decision in Gehris v. Pocmont Hotels Corp, 43 D. & C.2d 565 (1967), to support its argument. In Gehris, the trial court had held that transactions involving the furnishing of goods and services to customers was a “directly essential” transaction, whereas transactions by which a business acquired the resources to be able to serve the customers were “indirectly essential” ones. The Court in Burdett found this distinction to be artificial and contrary to the purpose of Rule 2179 which it stated as being

to permit a plaintiff to institute suit against the defendant in the county most convenient for him and his witnesses and to assure that the court selected had a substantial relationship to the controversy between the parties and was thereby a proper forum to adjudicate the dispute.

Burdett, supra, 433 Pa. at 295, 249 A.2d at 302. Without further discussion, the Court thereupon concluded that by purchasing the gases in Montgomery County which were necessary for it to conduct its distribution business, the Dauphin County corporation was doing business in Montgomery County. Furthermore, the Court also concluded that the Dauphin County corporation regularly conducted business in Montgomery County because the contract it had with the plaintiff corporation for certain gases was a requirements contract for a period in excess of ten years.

In determining that the Dauphin County corporation was doing business in Montgomery County in Burdett because its purchase of gases from a supplier in Montgomery County was necessary for carrying on its distribution business, the Supreme Court did not discuss the jurisdictional quality and quantity test which it had previously used in Law and Monaco. It nevertheless noted the relevance to a venue problem under Rule 2179(a)(2) of decisions interpreting “doing business” for jurisdictional purposes. In a footnote in Burdett, the court stated that under a new amendment to the Business Corporation Law, “doing business” for purposes of jurisdiction was defined in part as doing an act or series of acts within the Commonwealth with the intention of initiating a series of acts if the purpose is “pecuniary-benefit.” The Court recognized that the statute was not controlling in Burdett, but noted that it indicated a “liberalizing trend in an analogous area similar to the one Rule 2179 has created here.” Burdett, supra, at 296, n. 3, 249 A.2d at 302, n. 3.

Since the decision in Burdett, the Superior Court has had an opportunity to determine what constitutes “regularly conducts business” under Rule 2179(a)(2) in yet a different factual situation. In Deeter-Ritchey-Sippel Assoc. v. Westminster College, 238 Pa.Super. 194, 357 A.2d 608 (1976), Westminster College, located in Lawrence County, was sued in Allegheny County by Deeter-Ritchey-Sippel, an architectural firm, for breach of contract with regard to a new building to have been constructed on the Lawrence County campus. The College filed preliminary objections challenging venue in Allegheny County under, inter alia, Rule 2179(a)(2). The architectural firm argued that the College regularly conducts business in Allegheny County because it solicits funds there, it recruits students there, and the Board of Trustees meets there. The Court rejected all three of these factual bases of “doing business.”

Without citation to any other cases addressing'the issue of what constitutes “conducting business” under Rule 2179(a)(2), and without discussion of or citation to cases determining what constitutes “doing business” for purposes of jurisdiction, the court determined that solicitation of funds was not “conduct” of business of an educational institution even though the inflow of contributions is essential to survival of a small college. The Court noted that to hold that the solicitation of funds was “conducting business” would subject a college to defending suits in every county and state from which a friend or alumnus sent a contribution. Likewise without citation to any authority, the court determined that the recruiting of students was not “conducting business” even though it was important and necessary to the college. Finally, as to the holding of Board of Trustees meetings in Allegheny County, the court quoted the purpose of Rule 2179 set forth in Burdett, supra, and concluded that in light of that purpose “the situs of corporate policy making is insufficient alone to satisfy the standard of ‘regularly conducts business.’ The center of locations of operational activity are ... more pertinent.” Deeter-Ritchey-Sippel, supra, 238 Pa.Superior Ct. at 199, 357 A.2d at 611.

This review of the case law concerning the test for whether a corporation “regularly conducts business” in a particular county leads us to conclude that the stated policy behind Rule 2179, to “assure that the court selected had a substantial relationship to the controversy,” relates to subdivision (a)(2) of Rule 2179 by requiring that the corporation which has been sued have sufficient connection to the county, rather than that the particular corporate acts which directly relate to the underlying cause of action have a sufficient nexus to the county.

In Law, the test applied by the court to determine whether venue was proper was whether the acts of the corporation in the forum selected by the plaintiff directly furthered or were essential to the corporate objects. The Court did not address the issue of whether the particular acts of the corporation in the forum selected by the plaintiff related to the underlying cause of action. Similarly, in Monaco, the Court determined that the defendant corporation’s acts in Philadelphia County furthered the corporate goals and therefore the defendant corporation regularly conducted business in Philadelphia County for venue purposes. No mention was made as to whether the acts of the corporation in Philadelphia County which furthered its corporate goals were in any manner related to the underlying action.

Later in Burdett, the Court rejected as irrelevant any distinction between a corporation selling its products or purchasing its materials in order to sell its goods on the basis that selling is directly related to corporate goals, and purchasing the materials with which to enable the corporation to sell its goods is merely incidental to its corporate objective. Instead, the court focussed on the fact that the purchase of gasses by the defendant corporation by one of its suppliers was necessary for the defendant corporation to engage in its distribution business.

Finally, in Deeter-Ritchey-Sippel, the court rejected, as had the court in Shambe and Law, the solicitation of business, i.e., students, as well as the mere solicitation of funds as being the conduct of a college’s business. It also refused to find that the college’s Board of Trustee’s meetings and decisions alone constituted “doing business” for venue purposes.

In the present case, while the concerns of Bryn Mawr and the amici, that Bryn Mawr’s particular contacts with Philadelphia County do not relate to the underlying malpractice action, may be relevant to an inquiry under subsections (3) or (4) of Rule 2179(a) which concern where the cause of action arose and where a transaction or occurrence took place out of which the cause of action arose, they have no place here. We therefore find no merit to this part of Bryn Mawr’s argument.

B. Rule 2179(a)(2): “Regularly Conducts Business”

Bryn Mawr and the amici secondly base their contention, that the Court erred in concluding that Bryn Mawr regularly conducts business in Philadelphia County, on the fact that the circumstances in this case demonstrate that Bryn Mawr’s contacts with Philadelphia County are not directly essential to its corporate purpose and therefore the quality of Bryn Mawr’s acts in Philadelphia County are an inadequate foundation for venue. To support this portion of their argument Bryn Mawr and the amici rely primarily on Shambe and Deeter-Ritchey-Sippel. They argue that the fact that Bryn Mawr is listed in the Yellow and White Pages of the telephone directory for, and advertise in, Philadelphia County is merely incidental to its corporate purpose. Incidental acts, they assert, under Shambe are insufficient to establish venue. Similarly, they claim that Bryn Mawr’s purchase of goods and services from within Philadelphia County are matters not directly essential to the corporate purpose. As Bryn Mawr states in its brief at p. 22, “While the hospital could not function without such goods and services, its corporate objective is not the purchase and resale of such goods; it is the furnishing of medical care and treatment in Montgomery County.” Bryn Mawr also contends that where its residents come from is insignificant; the important fact is where the residents perform their acts for the corporation. Finally, Bryn Mawr asserts that under Deeter-Ritchey-Sippel, the dispositive factor in a venue case under Rule 2179(a)(2) is where the location of operational activity is.

We recognize that under the quality and quantity jurisdictional test of Shambe, adopted by the Supreme Court for application to Rule 2179(a)(2) in Law and Monaco, the mere solicitation of business in a particular county does not constitute conducting business. Therefore, in the present case, the facts that Bryn Mawr maintains listings in the Philadelphia County Yellow and White Pages of the telephone book and periodically advertises in the Philadelphia Inquirer do not alone support the conclusion that Bryn Mawr regularly conducts business in Philadelphia County.

However, in addition to the solicitation of business by Bryn Mawr in Philadelphia County, Bryn Mawr has significant contacts with Philadelphia County which, under the established case law, compel our conclusion that it regularly conducts business in Philadelphia County. First is the fact that Bryn Mawr purchases supplies and goods from businesses in Philadelphia County in order to operate its hospital. While the nature and amount of these supplies and materials we cannot determine from the original record since Bryn Mawr refused to provide a specific answer to the interrogatory which requested this information, in its brief on appeal, Bryn Mawr concedes, as quoted above, that it “could not function” without such goods and services.

In Burdett, supra, the Supreme Court specifically discussed the significance of purchasing goods and materials from suppliers and the selling of one’s products to one’s customers with regard to the question of venue. The Court concluded that any distinction between the purchasing of materials with which to carry on one’s business and the sale of one’s product was an immaterial one. While Burdett involved a corporation whose business was distribution (of some unknown product or material), and the present case involves a hospital whose primary corporate objective is to provide services in the nature of medical care to its patients in its hospital, we find that this distinction is immaterial and that the court’s analysis in Burdett is nevertheless applicable.

In Burdett, in order to carry on its business, i.e., distributing some product to its customers, the defendant corporation had to have a certain supply of particular gases. Where it obtained these gases, which were essential to operating its business, the Court held it conducted business. In the present case, Bryn Mawr claims that its primary corporate objective is the care of patients. Where it obtains the supplies and materials with which to engage in its principal corporate objective of providing health care to its patients, it is conducting business for purposes of venue. Because it concedes that it would not be able to provide the health care, which is its corporate object, without the supplies which it obtains from Philadelphia County, we conclude that it regularly conducts business in Philadelphia County.

In addition to the fact of Bryn Mawr’s purchase of essential supplies and materials from Philadelphia County to support the conclusion that venue is proper in Philadelphia County, we also find the fact and nature of the contractual relationship between Bryn Mawr and at least Jefferson Medical College in Philadelphia County to be significant. Bryn Mawr asserts that where its residents come from is immaterial and that only where the residents perform their services for Bryn Mawr is significant. However, the express purpose of the ongoing contractual relationship between Bryn Mawr and Jefferson establishes that the purpose of the contractual relationship between Bryn Mawr and Jefferson is directly to further Bryn Mawr’s corporate object of providing quality medical care. The contract between Bryn Mawr and Jefferson provides that it was entered into because Bryn Mawr wanted to improve the “excellence of its medical and community services,” and because it thought that this could best be accomplished by “an affiliation with a medical school and participation in a well organized program of medical education.” (Emphasis added.)

Contrary to Bryn Mawr’s arguments, its relationship with Jefferson in Philadelphia County is far more than the recruitment of students by Westminster College in Deeter-Ritchey-Sippel, which activity was insufficient to support a finding of regularly conducting business. In Deeter-Ritchey-Sippel, the college solicited students by sending recruiters to various high schools to talk about the schools. There is no indication in the opinion in Deeter-Ritchey-Sippel that the college had a pre-arranged, written contractual agreement with any of the high schools from which it recruited students, by which it set forth the precise terms and conditions upon which it could accept students and which sets forth mutuality of obligations and a coordinated, detailed program which would regularly benefit both the college and the high schools involved. There is not the slightest suggestion in Deeter-Ritchey-Sippel that there was any form of affiliation between the college and the high schools from which students were solicited.

In the present case, however, Bryn Mawr has a contractual affiliation with Jefferson in order to assist in Bryn Mawr’s primary corporate goal of providing quality health care. Its interaction with Jefferson is essential to the resident program (by the terms of the program itself) and the relationship with Jefferson has been continuing for over fifteen years. Therefore, the relationship with Jefferson affects the core of Bryn Mawr’s corporate objective and has been doing so continually for an extensive period.

Furthermore, in the present case, the residents of Bryn Mawr, unlike the students who are recruited to attend classes at a college as in Deeter-Ritchey-Sippel, are an integral part of the operation of the hospital providing direct patient care which is the primary purpose of Bryn Mawr. The residents’ contribution to the ability of the hospital to provide quality health care to its patients is no less essential to the corporation’s purpose than the acquisition of materials and supplies for the hospital. Just as the geographical source of those materials and supplies is a significant factor in determining whether venue is authorized in a particular county, Burdett, supra, so too is the geographical source of the hospital’s residents an important factor in determining where venue can properly lie. The fact that in the present case no resident actually was involved in the treatment which forms the basis of this malpractice action is irrelevant.

We also find significant that one of the purposes of Bryn Mawr’s affiliation with Jefferson and its acceptance and employment of residents from Philadelphia County medical schools is to upgrade the quality of the care which Bryn Mawr can provide to its patients. The improvement in the quality of healthcare which Bryn Mawr is able to provide its patients would also have the effect of attracting more patients to its hospital thereby directly furthering its primary corporate objective. Similarly, just as Bryn Mawr is improving the quality of care available in its hospital in Montgomery County through development of the residency program with Philadelphia County medical schools, so too is Bryn Mawr raising the quality of medical care for patients in Philadelphia County hospitals by providing medical training to residents who complete only part of their residency program at Bryn Mawr Hospital in Montgomery County, and who return to Philadelphia County hospitals to provide further service to hospitals and patients therein.

We conclude that under Burdett, Bryn Mawr unequivocally “regularly conducts business” in Philadelphia County not only because it obtains supplies and materials essential to the operation of its corporate objectives from Philadelphia County, but also because of the expressed purposes of the extensive residency agreement between Bryn Mawr and Philadelphia County hospitals/medical schools and the de facto benefits enjoyed by Bryn Mawr at its hospital in Montgomery County as a result of that program and the benefits which Bryn Mawr confers in Philadelphia County for Philadelphia County hospitals and patients as a result of its participation in the residency program. Furthermore, not only are we unpersuaded by Bryn Mawr that the present case is controlled by Deeter-Ritchey-Sippel because the residency program in the present case is factually distinguishable from the recruitment of college students as in Deeter-Ritchey-Sippel, but to the extent that Deeter-Ritchey-Sippel could be interpreted as being in conflict with our decision, we expressly disapprove it.

Our conclusion is further supported by our prior decision in University of Dominica v. Pennsylvania College of Podiatric Medicine, 301 Pa.Super. 68, 446 A.2d 1339 (1982). In Dominica, the plaintiff, University of Dominica (Dominica) sued the Pennsylvania College of Podiatric Medicine (PCPM) in Pennsylvania. PCPM filed preliminary objections asserting that Dominica’s averment that it was registered to do business in Pennsylvania was untrue, and therefore it was not permitted to maintain an action in Pennsylvania under either the for-profit or the non-profit corporation statutes both of which prohibit a corporation “transacting business” or “doing business” in Pennsylvania to maintain an action in a Pennsylvania court unless it is a registered corporation. Dominica in fact was not registered in Pennsylvania, and its attempts to become registered were unsuccessful. Dominica therefore argued that it was not doing business in Pennsylvania and consequently was not subject to the statutes in question.

In deciding that Dominica was doing business in Pennsylvania the Court looked at the following factors. First, in its pleadings, Dominica admitted that it was doing business in Pennsylvania. In addition, the court expressly noted that Dominica had actively solicited students in Pennsylvania and

has maintained a working business relationship with several hospitals in our State. More specifically, some of the Appellant’s students have served so-called “clinical rotations” in Pennsylvania hospitals with which the Appellant had established agreements. The Appellant was negotiating with other hospitals in the Commonwealth for clinical rotations and educational services for its students, for which the Appellant would pay the hospitals involved.

Id., 301 Pa.Superior Ct. at 72, 446 A.2d at 1340-1341. Based on these facts, the Court determined for jurisdictional purposes that Dominica was doing business in Pennsylvania.

We recognize that Dominica is distinguishable from the present case in two ways. However, those distinctions do not appear to be materially significant ones. First, Dominica involves a question of jurisdiction whereas the present case raises a question of venue. Although venue and jurisdiction are two entirely distinct concepts, the Supreme Court has nevertheless applied the same tests to determine venue as the Court has developed to ascertain when a court has jurisdiction, Law, supra, Monaco, supra, and has expressly noted that cases addressing the question of “doing business” for jurisdictional purposes are analogous to cases which require an interpretation of “regularly conducts business” for venue. Burdett, supra. Therefore, although the issue raised in the present case relates exclusively to venue and not to jurisdiction, and although Dominica involved only a question of jurisdiction, we nevertheless find Dominica to be relevant to our discussion in the present case.

Dominica is also different from the present case inasmuch as the facts are the reverse of those in the present case. In Dominica, the Court held that the foreign school conducted business in Pennsylvania when it regularly sent some of its students to Pennsylvania hospitals to serve “clinical rotations,” and was engaging in negotiations to expand the number of Pennsylvania hospitals in which its students could complete “clinical rotations.” In the present case the question is whether a hospital which receives students to perform clinical rotations “regularly conducts business” in the county from which the students have been obtained. However, this distinction is one without a difference. If the sending of students from an educational institution to a hospital where the student can perform work for the hospital constitutes “regularly conducting business” in the jurisdiction of the receiving institution for the institution providing the students, then reciprocally the institution which receives the services of the resident students “regularly conducts business” in the place from which those students are obtained.

In the present case, because the “working business relationship” between Bryn Mawr and Jefferson is similar to that between the foreign school and the Pennsylvania hospitals in Dominica, we conclude that Dominica lends further support to our determination that the trial court did not err in concluding that Bryn Mawr regularly conducts business in Philadelphia County.

C. Policy

Finally, Bryn Mawr and the amici assert that if we hold that Bryn Mawr regularly conducts business in Philadelphia County on the facts in this case and therefore that venue is proper in Philadelphia County, we will sanction blatant forum shopping by plaintiffs and will subject doctors to being required to defend suits in counties far from either their homes or offices, and will subject corporations to suit in areas remote from where they carry on their businesses. Bryn Mawr contends that the present case is an example of forum shopping because the plaintiffs have no relationship with Philadelphia County, and the case was brought in Philadelphia County because the plaintiffs expect to obtain a higher jury verdict there. Further, by bringing the action in Philadelphia County, the Philadelphia County court system will be required to bear the costs of additional litigation which is not even related to Philadelphia County, and the case will not be more speedily resolved due to the tremendous backlog of cases in Philadelphia County.

We are unpersuaded by the argument that the present case is an example of forum shopping and will result in doctors and hospitals being sued in counties far from their homes, offices, and facilities. Under the facts of the present case, the issue is not whether venue may lie in a distant county. The three counties involved in the present case, Philadelphia, Chester, and Montgomery, are all contiguous counties within the greater Philadelphia metropolitan area. Thus the hypothetical situation set forth by the Hospital Association of Pennsylvania at page 9 of its brief, that a Cumberland County Hospital could be sued in Philadelphia County by a Tioga County hospital is entirely beyond the facts of the case which we decide today.

Even more importantly, this policy argument of Bryn Mawr and the amici concerning the liability of doctors and hospitals in far distant counties completely ignores the fact that the only issue which Bryn Mawr has raised in the present case is whether venue in Philadelphia County is authorized. The only matter which we are deciding by this opinion is that under the circumstances of the present case, venue is permissible in Philadelphia County. No party to the present action has raised the issue of whether venue should lie in Philadelphia County under the doctrine of forum non conveniens, and because the issue has not been raised and facts relevant to that issue are not part of the record before us, this opinion does not decide the issue of whether Philadelphia County is more convenient to the parties than Montgomery County. In any case in which a party believes that the authorized forum selected by the plaintiff is so remote as to be inconvenient, that party can seek relief by petitioning for a change of venue under the doctrine of forum non conveniens, because the purpose for which the doctrine of forum non conveniens was developed was to move cases from one judicial district to another when the facts demonstrate that the judicial district in which the case has been brought is inconvenient to the parties. Turner v. Commonwealth, 352 Pa.Super. 154, 507 A.2d 428 (1986).

Additionally, as we have already discussed, there is no evidence in the record to support the conclusion that the present case has no relationship to Philadelphia County inasmuch as the defendant corporation regularly conducts business therein. Therefore, it is not inappropriate for Philadelphia County to bear the judicial costs of this litigation. It is possible that Philadelphia County is a more convenient forum for the plaintiffs and their witnesses, and nothing in the record demonstrates that the only reason the plaintiffs selected Philadelphia County as the forum for the present action was in order to obtain a higher jury verdict. Moreover, nothing of record establishes that a verdict by a Philadelphia County jury would in fact be higher than a verdict returned by a Montgomery County jury.

Insofar as Bryn Mawr and the amici fear that our decision will detrimentally affect physicians and hospitals and other corporations, we find little merit to their arguments. First, one must bear in mind that by our decision today we are not expanding venue in medical malpractice actions beyond areas where hospitals in fact regularly conduct business. If a hospital or corporation’s relationship with a particular county is remote and isolated, our decision will have no impact upon it.

Our decision in this case is premised on the established policy supporting Rule 2179 and on an application to the particular facts before us of the case law which has developed interpreting Rule 2179(a)(2). The Pennsylvania Supreme Court has unequivocally established that a corporation “regularly conducts business” in the county in which the corporation obtains materials, goods, and supplies essential for the corporation to accomplish its corporate objectives. In the case before us, the “materials, goods and supplies” essential to the operation of Bryn Mawr as an institution providing quality medical care includes the care which its doctors who are participating in the “JeffersonBryn Mawr Education Program” are able to provide Bryn Mawr’s patients. The long-standing relationship between Bryn Mawr and Philadelphia County medical schools/hospitals as well as the depth of interaction between those institutions with regard to their affiliation underscores the fact that the relationship exists to further the primary corporate goals of Bryn Mawr, and consequently constitutes a regular part of Bryn Mawr’s “business.” Because of the unique facts in the present case, it is unnecessary, and in fact would be inappropriate for us, to speculate whether the conclusion which we reach today would be proper and just based on facts which are not presently before us as many of the policy arguments which have been raised would have us do. Therefore, finding no merit to the arguments of Bryn Mawr and the amici as to why the trial court’s determination that venue was proper in Philadelphia County was inappropriate under the law or unreasonable based upon the unique facts of this case, we affirm the order of the trial court.

Order affirmed.

      . Marion L. Brown, D.O. who has professional offices in Montgomery County, Frank Manfrey, D.O., who has professional offices in Delaware County, and Claudia Brown, R.N., who is believed to be a resident of the State of Florida were also named as defendants but have not participated in the instant appeal.

      . The original record includes the master agreement establishing the cooperative program for residents between Bryn Mawr and Jefferson.

        A similar agreement between Bryn Mawr and the University of Pennsylvania and Temple University Hospital has not been included. However, correspondence between Bryn Mawr and the University of Pennsylvania and Temple University Hospital which has been included in the original record recite specific arrangements indicating that Bryn Mawr’s relationship with the University of Pennsylvania and Temple University Hospital is at least substantially similar to the one with Jefferson whose precise terms we know.

      . See Act of May 5, 1933 P.L. 364, art. X, § 1014, as amended 15 P.S. § 2014, and 15 Pa.C.S. § 8141.


author: Orlady, J.,

text:
    Stern v. Johnston, Appellant.

      Appeals — Errors—Granting of new trial — Judicial discretion.

    The granting of a new trial is not assignable as error, except where it is made to appear that there was a clear, manifest and undoubted abuse of judicial discretion.
    Argued April 14, 1908.
    Appeal, No. 28, April T., 1908, by defendant, from order of C. P. Crawford Co., May T., 1906, No. 74, making absolute rule for new trial in case of Samuel Stern v. W. G. Johnston.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on an agreement in writing to assume the debt of another. Before Thomas, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendant. The court subsequently granted a new trial.

      Error assigned was in granting a new trial.

      Samuel Grumbine, with him John M. Chick, for appellant.

      Frank J. Thomas, with him Otto A. Stolz, for appellee.

      December 15, 1908:
   Opinion by

Orlady, J.,

The only error assigned by the appellant is, that the court erred in making absolute the rule for a new trial. As early as Burd v. Lessee of Dansdale, 2 Binney, 80, and Burke v. Lessee of Young, 2 S. & R. 383, it was held that there was no error in the refusal of the trial court to grant a new trial of which the supreme court should take cognizance. It is the duty of the trial judge to see that the trial is conducted in a legal manner, and the exercise of his authority is discretionary. Unless this discretion is abused, the action of the court is not the subject of an appeal. The appellant urges that there was no good reason for apprehending or believing that the defendant would be prejudiced by the testimony which was excluded, even though it was commented on by counsel, for the reason that it was afterwards withdrawn from consideration of the jury.

The decision of this matter lies with the trial judge and not with the counsel who produces the proposition. Quite naturally it is urged that the verdict should be sustained, as it was recovered through the efforts of counsel, but the trial judge is the better qualified to decide whether the trial was rendered unfair by reason of the persistent reference to testimony which had been excluded as incompetent. Though the court refused to withdraw a juror upon request, and when the cause was submitted, the jury was admonished to not consider the objectionable statements, yet after a careful review of the case, the trial judge was of the opinion that the unfair influence had not been wholly eradicated, and that it was necessary, in the administration of justice, to grant another trial.

Had his conclusion been the other way, it would not change the result in this court, as the rule of law would be the same in either event, if the appellate court is not convinced that there has been an abuse of judicial discretion in making the order. In disposing of such a question, we require that the alleged abuse of judicial discretion shall be clear and manifest and not at all doubtful. We cannot reproduce the conditions attending the trial, nor accurately measure the effect of the conduct of counsel. The whole procedure of the trial is rightly committed by the decisions, to the judicial supervision of the trial judge, and when a new trial is granted for such a reason as is here presented, we are bound to presume that the trial judge was convinced as a judge that the verdict of the jury was improperly affected by the conduct of counsel. There is nothing in this case to take it out of the well established rule, which has been declared in many cases: McKenney v. Fawcett, 138 Pa. 344; Smith v. Times Pub. Co., 178 Pa. 481; Com. v. Striepeke, 32 Pa. Superior Ct. 82; Wagner v. Hazle Twp., 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226; Com. v. Valverdi, 32 Pa. Superior Ct. 241; s. c., 218 Pa. 7; Com. v. Delero, 218 Pa. 487; Com. v. Jung Jow, 219 Pa. 173.

The assignment of error is overruled and the judgment is affirmed.


author: Head, J.,

text:
    Mullen v. Wilkes-Barre Gas and Electric Company, Appellant.

      Negligence — Electric light company — Defectively insulated wire — Infant —Climbing tree.

    1. A boy of tender years who while at play climbs a chestnut tree standing upon a sidewalk of a street, and is injured by coming in contact with a defectively insulated electric wire, is entitled to recover damages for his injuries from the electric light company maintaining the wire, where it appears that the tree stood on premises not belonging to the company; that the defective insulation of the wire in the branches of the tree had continued for a period of from four to six months before the accident; that during this period sparks had been emitted by the contact of wire and branches; and that in pleasant weather the children of the neighborhood were accustomed to assemble about the tree to play, to climb into it in the progress of their sports and games, and, in proper season, to secure the nuts it bore.
    2. A company which uses such a dangerous agent, as a wire charged with an electric current, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable, to avoid injury to everyone who may be lawfully in proximity to its wires, and liable to come accidentally or otherwise in contact with them.
    Argued March 4, 1908.
    Appeal, No. 52, March T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1905, No. 530, on verdict for plaintiff in case of Edmund Mullen, by his father and next friend, Festus Mullen, and said Festus Mullen, each in his own right, v Wilkes-Barre Gas & Electric Company.
    February 26, 1909:
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court. Verdict and judgment for Edmund Mullen for $350, and for
    Festus Mullen for $150. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      R. B. Sheridan, with him John T. Lenahan, for appellant.
    The defendant was not liable: Guilmartin v. Phila., 201 Pa. 518; Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321; Hector v. Electric Light Co., 25 L. R. A. 554; Keefe v. Electric Lighting Co., 21 R. I. 575 (43 Atl. Repr. 542); Sullivan v. R. R. Co., 156 Mass. 378 (31 N. E. Repr. 128); Cumberland Tel. & Tel. Co. v. Martin, 63 L. R. A. 469; Brush Electric Light & Power Co. v. Lefevre, 93 Texas, 604 (57 S. W. Repr. 640); Swanson v. Crandall, 2 Pa. Superior Ct. 85; Rodgers v. Lees, 140 Pa. 475; Gaughan v. Philadelphia, 119 Pa. 503; Gilles v. R. R. Co., 59 Pa. 129; Thompson v. R. R. Co., 218 Pa. 444; Railroad Co. v. Schwindling, 101 Pa. 258; Hydraulic Works Co. v. Orr, 83 Pa. 332.

      M. J. Mulhall, for appellee,
    cited: Daltry v. Electric Light, etc., Co., 208 Pa. 403; Fitzgerald v. Electric Illuminating Co., 200 Pa. 540; Temple v. Electric Light & Power Co., 89 Miss. 1 (42 So. Repr. 874).
   Opinion by

Head, J.,

The defendant corporation was engaged in furnishing electric light to the borough of Ashley. Its high tension current was carried through the streets by overhead wires strung on poles, which, on Main street, were located in or near to the sidewalk. At some little distance from the curb, in the sidewalk along that street, there stood a horse-chestnut tree. It seems to be conceded that the defendant had no property right of any kind in the tree or the premises on which it stood. Two of its wires, however, passed through the upper branches of the tree. The testimony practically established that the insulation of at least one of these wires had become worn away and that for a period of from four to six months before the accident, sparks were emitted by the contact of wire and branches, especially during wet or snowy weather. It also established that, in pleasant weather, the children of the neighborhood were accustomed to assemble about this tree to play, to climb into it in the progress of their sports and games and, in proper season, to secure the nuts it bore.

On a summer afternoon the plaintiff, a boy of tender years, was playing, with some companions, about the tree and climbed up among the branches. Whether any part of his body came into actual contact with the live wire is not made clear, but there is no room to doubt that he received an electric shock of such intensity as to render him unconscious. His body being supported by the forks of the tree, he did not fall, and, aid coming quickly, he was lifted down to the sidewalk where an examination disclosed marks, as of burns, at several places on his body.

The record, as the case comes to us, does not require any discussion as to the extent of his injuries; it is sufficient to say that after his recovery this suit was brought and the trial resulted in a verdict and judgment in his favor.

It was not contended in the court below, nor is it here, that the doctrine of contributory negligence has any application to the case on account of the tender years of the plaintiff. It was not denied there, nor is it here, that, under the evidence, the defendant would be visited with at least constructive knowledge of the dangerous condition of its wire, and that, had an injury resulted therefrom to one, towards whom, at the time and place of the injury, the defendant owed any legal duty in respect to the condition of its wires, its responsibility would be made out. The single proposition urged upon us in the able printed brief of the appellant is that, conceding the obligation of the defendant to keep its wires safe as to those lawfully using the streets and sidewalks in the ordinary and usual way, as well as to those who, in the performance of some duty or the exercise of some right, might be required to approach them; no such obligation existed as to those, although children of immature age, who in the pursuit of pleasure or adventure, voluntarily placed themselves in dangerous proximity to its wires stretched twenty feet above the ground. Many cases are cited as supporting this position, among them Thompson v. R. R. Co., 218 Pa. 444, and those therein reviewed. But all of these may be broadly distinguished from the case at bar because they dealt with situations where the plaintiffs were trespassers, or at most mere licensees upon the property of the defendants. Here, as we have already observed, the tree was the private property of the owner of the premises on which it grew and the children seem to have enjoyed, at least the permissive right from that owner, to play in its branches and gather the nuts they bore.

The plaintiff therefore, in climbing the tree, was in no sense committing any trespass or infringement upon any right of the defendant; nor did his act need the aid of any invitation, permission or license from the latter to keep it in the category of wholly innocent acts. Had the tree been an apple tree bearing luscious fruit and, had the owner, whilst picking that fruit, re-' ceived the same injury as did the plaintiff here, could the defendant successfully contend it owed him no duty in respect to the condition of its wires? If the owner, instead of gathering his fruit himself, had expressly invited and authorized the plaintiff to take it for his own use or for distribution among his fellows, would the situation be materially different? Or can it be that the yoke of responsibility would be lifted from the shoulders of the defendant if the permission of the owner was general, to the boys of the neighborhood, rather than particular to one of them; was implied from his conduct rather than expressed in words?

Is it true in such cases, or in the case at bar — if the supposed ones are not ejusdem generis- — the defendant owed no duty whatever, in respect to the condition of its wires, to this plaintiff or to other children who were accustomed to use the tree as he did? In Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, Mr. Justice Mitchell, defining the obligations of those who introduce into a community that dangerous agent known as electricity, said: “The company, however, which uses such a dangerous agent [a wire charged with an electric current] is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.”

In this carefully chosen language, quoted and adopted in Daltry v. Media Electric Light, etc., Co., 208 Pa. 403, our highest judicial tribunal has plainly defined the measure of the defendant’s obligation and described the class, to every member of which the law extends the protection that would be secured by the faithful discharge of that obligation. Why was not the plaintiff in that class? Upon what theory can the defendant successfully contend that he was not “lawfully in proximity to its wires?” Upon what principle of law or reason may it rest the claim that this boy was bound to repress the natural and wholly innocent impulse to climb up among the shady branches of the tree on a summer afternoon, to the end that it should be relieved of its obligation to remove or repair its dangerous wire? We can discover none.

In Daltry v. Light, etc., Co., 208 Pa. 403, it appeared that the plaintiff, a young boy, and his companions were accustomed to play on a lawn owned by a gentleman who occupied the residence only during portions of the year. At the time of the accident the house was closed. When occupied it was lighted by electricity furnished by the defendant. The current was carried from the pole line in the street by a wire across and above the lawn to the building. Before it was vacated the company was requested to cut off its current so it would not pass into the empty house. “This was done by taking out the fuses at the transformer which rested against the side, and just beneath the eaves, of the house. The electric current was thus prevented from entering the house but not from passing through the wire extending from the house to the feed line at the street. After the current had been cut out the wire broke between the house and a tree on the lawn through which it passed and was tied to the branches of the tree. At the time of the accident it hung from the tree within twelve or eighteen inches of the ground.” The plaintiff, whilst playing on the lawn, accidentally came in contact with this live wire and was seriously injured.

One of the grounds of defense taken by the company at the trial of the action which followed the injury was that the plaintiff was a trespasser on the lawn and therefore it owed him no duty at that place. In an elaborate opinion Mr. Justice Mestrezat shows the unsoundness of such a defense and again declares the existence of the obligation of a defendant under conditions closely resembling those presented by the case at bar. “If it be conceded that the boy was technically a trespasser as against Mr. Darlington who owned the premises, he was not a trespasser as against the defendant company who had neither the possession nor right of possession of the property. . . . Assuming then, as we must assume, that the defendant company was in possession of, and using, the wire for the purpose of transmitting its electric current, and that as against it the boy was not a trespasser, its duty to the children at the place and time of the accident was to exercise such care over the wire as was demanded by the great danger to which they were exposed. Having constructed the line across the lawn to the house in proximity to the carriageway, it knew that children as well as adults might frequent the way and, hence, the necessity for keeping its wires in proper condition and repair to avoid danger. It must be presumed that the company also knew what the evidence disclosed as a fact that children used the lawn of the premises near the gateway and in the vicinity of the wire as well as the street in front of the premises as a playground. Such conditions existed for a sufficient length of time to warrant the inference of notice to the company.” So similar in principle and fact is that case to this that the language quoted might have, with equal propi’iety, been written of the case at bar.

Again in Kreiner v. Straubmuller, 30 Pa. Superior Ct. 609, this court had occasion to consider the rights of children playing . in the street and the obligations towards them of those who placed in the streets such things as would likely become dangerous to little ones thus engaged. There the defendant, for his own convenience and without objection from the municipal authorities, was accustomed to keep a number of barrels piled on the sidewalk in front of his premises. The plaintiff, a small boy, playing with his companions in the street, climbed upon the pile which was insecure and was injured by the fall of the barrels. In speaking for this court Judge Henderson uses the following: “ It is a well established rule that those controlling property on, or immediately adjacent to, a public highway must have regard to the reckless and thoughtless tastes and traits of childhood. . . . Children, wherever they go, must be expected to act upon childish instincts and impulses; others, who are chargeable with a duty of care and caution toward them, must calculate upon this and take precautions accordingly. ... It was not unlawful for the children to play upon the street, and it cannot be said that they had no business there. The owner of the premises owed them a duty to provide against the consequences of their inexperience and youthful inclination to play upon his property placed on the sidewalk in a position which might attract them.”

No one of the cases cited by the learned counsel for appellant is in conflict with the principles and rules enunciated in the cases from which we have quoted, or with the conclusion which must follow from their application to the case at bar. Of Guilmartin v. Philadelphia, 201 Pa. 518, the one nearest in principle to this one, Judge Henderson observed: “In the latter case the child was injured by a falling gate on which he had climbed. The city was not required to anticipate dangers resulting from the improper use of objects safe in themselves, and for the use for which they are designed. In the same case, however, it is said: ' If an object was in itself dangerous, or might become dangerous if a child chanced to set it in motion while playing with it, or by running against it, there was a duty on the city to take such precaution as was reasonable, under the circumstances, to prevent injury by it.’”

We are therefore led to the conclusion that the plaintiff was lawfully playing in the public street. That whilst so doing he was entitled to such protection, as against the wires of the defendant and the current they carried, as would be afforded by its performance of the obligation defined by Mr. Justice Mitchell, in the opinion we have quoted. That the learned trial court could not have declared, as matter of law, that this protection had been forfeited because he climbed into the tree, and that, in submitting the case to the jury in a charge of which there is no complaint, no error was committed.

Judgment affirmed.


text:
    Harter v. Whitebread, Appellant.

      Slander — Substance of charge — Variance—Evidence.
    1. In an action for slander the law deals with the substance of the injurious charge, rather than with the form or letter of it. Ordinarily so long as the variance between the language of the statement, and that admitted by the defendant, is not of substance, the defendant cannot be injured.

      Practice, C. P. — Trial—Charge—Exception.
    2. Where a trial judge uses language in his charge relating to testimony which is capable of being misunderstood by the jury, exception should be taken to it at the time. The fact that no special exception was taken at the time serves to indicate that the language was not misunderstood.

      Evidence — Witness—Contradiction of statement.

    3. Where a witness is called for the sole purpose of contradicting a statement imputed to him by the plaintiff in his testimony, he cannot be examined as to his entire conversation with the plaintiff. For this purpose he should be called in chief.

      Slander — Damages—Financial standing of defendant.

    4. Where in an action for slander the plaintiff has made no effort to swell her damages by showing that the defendant was rich, the latter cannot show his financial standing in mitigation of damages.
    Argued March. 4, 1908.
    Appeal, No. 29, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1903, No. 149, on verdict for plaintiff in case of Hannah L. Harter v. Albert Whitebread.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for slander. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court.
    When a witness for defendant was on the stand he was asked this question:
    “Q. Tell us what the conversation was that you did have with Milton Bittendender?”
    Objected to as irrelevant, immaterial and incompetent.
    The Court: The purpose of these questions is contradiction, and we have to confine you to the rule. Objection sustained, the question rejected, exception noted and bill sealed for defendant. [4]
    When Abram Whitebread was on the stand the following offer was made:
    Defendant proposes to prove by the witness on the stand, the financial standing of the defendant.
    Objected to as not matter of defense. That the plaintiff might have proved it in relation to the question of damages, but that it cannot be proved in mitigation of damages. Objected to as immaterial, irrelevant and incompetent.
    Objection sustained, evidence rejected, exception noted and bill sealed for defendant. [5]
    The court charged in part as follows:
    [This is an action of trespass brought by Hannah Harter against Albert Whitebread. It is based upon an allegation of slander. The plaintiff contends in the statement filed that certain words used by the defendant against her were slanderous. While on its face, the statement may not indicate absolutely, or as lawyers say per se, that the words were slanderous, it is alleged on the part of the plaintiff that they impute a slander. They are in Pennsylvania Dutch, and what their translation ;s is for you. (The court here reads the alleged slanderous statement from the declaration.) What do those words mean? Their meaning as alleged in the declaration is as follows: “Did you hear the news?” Abram Whitebread answered, “No.” The defendant then said Hannah Harter went to bed with Irving Whitebread and Calvin Eroh.
    On their face those words would not be slanderous, but under the rule of law which is known as the doctrine of innuendo, it is alleged by the plaintiff that they were slanderous and that they impute the crime of adultery to this plaintiff.
    What are the facts? Hannah Harter and her husband, Sheridan Harter, lived in Hollenback township in the year 1902. This plaintiff, the wife of Sheridan, was a member of the Lutheran church in that township, in the village of Hobbie. Some time in December, 1902, knowledge came to her that certain stories were in circulation which were injurious to her reputation. She said she was told by a lady named Mrs. Harris that these stories were in circulation, and by Mr. Hippensteal. That she went in pursuance of information derived from these two people and others, to Abram Whitebread. It was on the night of Christmas, 1902, between the hours of ten and eleven o’clock, after the close of the Ghristmas ceremonies at the church. Mr. Whitebread was in bed and through his daughter, I think, he was gotten out and came out into the road where the plaintiff, Mrs. Harter, and her husband were in a buggy. That there at that time he told her, the conversation then being in English, the story that she heard was in circulation. The conversation was in English except as to the exact words which he said he derived from Albert Whitebread. He said that some time in the month of December, about the second, Albert came to his mill, he being a sawyer, called him out, and after talking about one thing and another, finally told him in Pennsylvania Dutch certain words, what they were you must determine, and which are alleged in this declaration, as I have read. Mrs. Harter thereupon on December 27, 1902, went to the place of residence, I think, of Albert Whitebread, this defendant, and asked him about it. He said he did say it, that his mother-in-law, Malvina Whitebread, had seen her in the bed. She testified there was other conversation with reference to an allegation on the part of Albert that this plaintiff had circulated stories derogatory to the reputation of his daughter Delia, I think, or Della; and this plaintiff thereupon said, “ I will sue you,” and he said, I think, “Sue and be damned,” or “sue, just as you see fit;” that afternoon, as alleged by the plaintiff, the story was told to other people by Albert, in the blacksmith shop. Albert denies he told this in the blacksmith shop. In this connection I will state that anything I say with reference to the testimony is only for the purpose of applying the rules of law applicable to it, and is not a conclusion because it comes from the court. Your determination is conclusive as to the truth of the testimony; the court only gives you the rules of law applicable to it.
    The defendant’s testimony is substantially that of the plaintiff with the exception that Mr. Abram Whitebread said that at the time of the conversation at the house, there was no Pennsylvania Dutch used at all, that the entire conversation was in English. However, the testimony is that the conversation at the mill, was in Pennsylvania Dutch. The conversation at the house, according to the evidence of the plaintiff here, was in English with the exception of the operative words here charging this slanderous offense. As I said before, the plaintiff says these words were in Pennsylvania Dutch. Abram Whitebread says they were all in English.
    Were these words slanderous? That is for your determintion. Slander may be sufficiently defined, as a false and malicious defamation by word of mouth, tending to injure or disgrace the person of whom the words are spoken; words falsely spoken of a person, which impute to a party the commission of some criminal offense, involving moral turpitude, for which the party, if the charge is true, may be indicted and- punished. As I said to you before, these words standing alone would not be slanderous, because they would not impute any criminal offense. But then comes the doctrine of innuendo. Where words are of dubious import, the plaintiff may aver their meaning by innuendo, and the truth of the innuendo is for the jury. The plaintiff has alleged here the words used, and applying the doctrine of innuendo to them says that those words mean that the plaintiff committed the crime of adultery with Irving Whitebread and Calvin Eroh.

      February 26, 1909:
    In this connection there is another question of fact in which there is contrariety between the testimony of the plaintiff and the testimony of the defendant. Abram Whitebread says that Eroh’s name was not used at all in any of the conversations, not used in the conversation between him and Albert, not used in the conversation between him and the Harters on the night of Christmas; that the Whitebread boy’s name was used.
    It is for you to determine whether these words did impute to the plaintiff the crime of adultery.] [1]
    Verdict and judgment for plaintiff for $1,225.50. Defendant appealed.

      Errors assigned were (1) above instruction, quoting it; (2) in presenting to the jury testimony of the plaintiff and her husband respecting her conversation with Abram Whitebread as proof of what the defendant said to the latter; (3) in not presenting to the jury either the theory or evidence of the defense; (4, 5) rulings on evidence, quoting the bill of exceptions.

      D. A. Fell, with him E. A. Lynch, for appellant.

      John M. Garman with him James L. Lenahan and Miner B. Schnerr, for appellee.
   Opinion by

Head, J.,

This was an action for slander. The plaintiff alleged the utterance, by the defendant, of certain statements, “imputing the crime of adultery on the part of this plaintiff,” she being a married woman. The plaintiff testified that having heard of a story, circulating in the community reflecting on her character for chastity, she and her husband began an investigation to ascertain whence the alleged slanderous utterance had come. That after interviewing several persons, including one Abram White-bread, a relative of the defendant, they had reached the conclusion the defendant was the source of the injurious statement. That they then went to him and charged him with having given circulation to the language contained in the declaration and he admitted having done so. She then proved by two other witnesses that at different times the defendant, to them or in their presence and hearing, had made public the same story.

The defendant admitted on the stand that he had told a story, in substance like the one charged but differing in some details. It appears that he talked Pennsylvania Dutch. The testimony was all submitted to the jury without very much elabbration by the learned trial court, and we can see no reason for perpetuating it by a detailed reference to it here.

The first assignment complains that the charge was inadequate in that it did not call the attention of the jury to the difference in the language admitted by the defendant and that charged in the statement and testified to by plaintiff and her witnesses; and in assuming that the words charged were admitted or conclusively proven. The court was not asked to specially present to the jury this difference now alleged to be important. It may well be, in the absence of such request, the learned trial judge did not apprehend that, where a woman’s reputation for chastity was being attacked, it made much difference whether the locus in quo was described in the language of the declaration or of the defendant; nor that the extent of the injury done to her good name would vary, appreciably, whether the wrong doing imputed involved two men or only one. The law in such a case deals with the substance of the injurious charge rather than with the form or letter of it. Ordinarily so long as the variance is not of substance the defendant cannot be injured.

The court, after briefly sketching, in narrative style the nature of the case and the manner in which the defendant’s responsibility was ascertained plainly told the jury: “In this connection I will state that anything I say with reference to the testimony is only for the purpose of applying the rules of law applicable to it and is not a conclusion because it comes from the court. Your determination is conclusive as to the truth of the testimony.” Under these circumstances we are unable to see wherein the testimony of the defendant was improperly treated by the court and the first assignment is dismissed.

The second assignment alleges that “the court erred in presenting to the jury testimony of the plaintiff and her husband respecting her conversation with Abram Whitebread as proof of what the defendant said to the latter.”. The plaintiff and her husband were permitted, without objection, to relate their conversation with the person named in the course of the investigation which led them to the defendant. The court in the charge relates this conversation, as detailed by the plaintiff, as part of her history of the case. “She said .... that there at that time he (Abram Whitebread) told her the story she heard was in circulation. He said that Albert (the defendant) came to his mill and .... told him in Pennsylvania Dutch certain words, what they were you must determine, and which are alleged in this declaration as I have read.” The court, it is to be observed, did not undertake to give to the jury, what in fact had been there told to the plaintiff, to wit, the words charged; but only what “she,” the plaintiff, said had been told her, which was substantially the language contained in the statement. Taken in connection with what immediately followed in the charge as to the visit of the plaintiff to the defendant; her accusation of him then and there as the author of the injurious slander, and her testimony as to his admission and refusal to make any reparation, we cannot find any warrant for the assumption that either court or jury misconceived the true relation to the case of the plaintiff’s conversation with Abram Whitebread. Had counsel for the defendant so understood the charge when delivered, the attention of the court should have been called to the fact. No special exception taken to the charge indicates that it was then so understood. No such reason appears among the many advanced for a new trial. The second assignment is dismissed.

The third assignment is sufficiently answered by the charge itself and such comments as we have already made on it. Nor can we find any merit in the fourth. The witness was called for the sole purpose of contradicting a statement imputed to him by the plaintiff in her testimony. He was permitted to do so in the manner and form approved by the best practice. If the defendant desired to elicit from him his version of the entire conversation with the plaintiff, he should have been called in chief.

The learned trial judge, after explaining to the jury the difference between punitive and compensatory damages expressly instructed them that if they found for the plaintiff they should confine themselves to damages that-would be compensatory only. The injury sustained by a slandered plaintiff does not wax or wane according to the financial standing of the owner of the tongue that circulates the slander. The plaintiff had made no effort to swell her damages by showing that the defendant was rich; he could not diminish what would be compensation by showing that he could not easily pay. The refusal of the offer which constitutes the fifth assignment was therefore right. The third, fourth and fifth assignments are dismissed.

Judgment affirmed.