author: HOFFMAN, Judge.

text:
    617 A.2d 361
    Michael MARTIN, Appellant, v. PMA GROUP.
    Superior Court of Pennsylvania.
    Submitted Aug. 27, 1992.
    Filed Dec. 7, 1992.

      Phillip M. Gilligan, Flourtown, for appellant.
    Fred B. Buck, Philadelphia, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is taken from the lower court order dated December 23, 1991, denying appellant’s petition to vacate an arbitration award. Appellant presents two issues. First, appellant claims that the lower court erred in refusing to apply the standard of review for arbitration awards as set forth in 42 Pa.C.S.A. § 7302. Appellant next contends that appellee’s failure to produce a written waiver as required by 75 Pa.C.S.A. § 1791 requires that the insurance policy be reformed to reflect $1,000,000 in uninsured/underinsured motorist coverage rather than $35,000 as stated in the subject policy. For the following reasons we affirm.

On May 17, 1988, appellant was involved in a motor vehicle accident while working for S.O.S. Defender, Inc. (“S.O.S.”). The vehicle was struck by an automobile driven by Jennifer Stevenson and insured by Allstate Insurance Company. Appellant settled with Allstate for its policy limit of $100,000 and then pursued a claim against appellee, PMA Group, for under-insured motorist benefits.

At the time of the accident, the vehicle owned by S.O.S. was insured under a policy issued by appellee. The policy provided liability coverage in the amount of $1,000,000 and uninsured/underinsured (UM/UIM) coverage in the amount of $35,000. Appellant contended that appellee’s policy should be reformed to provide UM/UIM coverage equal to its liability limits of $1,000,000 because S.O.S. did not sign a waiver form as set out in 75 Pa.C.S.A. § 1791 when it purchased the policy.

Appellee’s insurance policy required all disputes concerning UM/UIM benefits to be arbitrated in accordance with the Uniform Arbitration Act. An arbitration hearing was held on September 18, 1991. At the hearing the parties stipulated that a statutory waiver form as delineated in 75 Pa.C.S.A. § 1791 was not signed by S.O.S. Appellee contended that S.O.S. had nonetheless made a knowing selection of lower UM/UIM limits, and thereby satisfied 75 Pa.C.S.A. § 1734.

After extended deliberations, the arbitration panel on October 21, 1991 refused to reform the policy and awarded appellant $35,000. Appellant filed a motion to vacate the award which was subsequently denied by the lower court. This timely appeal followed.

Appellant’s first argument is that the parties’ contract, which provides for arbitration of disputed UM/UIM claims, falls within the purview of 42 Pa.C.S.A. § 7302 requiring a court to modify or correct an award which is contrary to law. We disagree.

Appellee’s insurance policy expressly stated that a dispute over UM/UIM benefits would be arbitrated and “conducted in accordance with the Pennsylvania Uniform Arbitration Act.” This language constituted an express provision for statutory arbitration. See Bowdren v. Aetna Life and Casualty, 404 Pa.Super. 595, 600, 591 A.2d 751, 754 (1991) (citations omitted). Section 7314 of the Pennsylvania Uniform Arbitration Act delineates the circumstances under which a statutory arbitration award can be vacated by a court and an award contrary to law is not one such circumstance. Moreover, 42 Pa.C.S.A. § 7314(a)(2) expressly states that “[t]he fact that the relief awarded by the arbitrators was such that it could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award.”

Appellant cites Meerzon v. Erie Insurance Company, 380 Pa.Super. 386, 551 A.2d 1106 (1988) for the proposition that the correct standard of review from a statutory arbitration award is the “contrary to law” approach found within section 7302. Meerzon, however, is distinguishable from the instant case. In Meerzon, the insurance policy provided that if either party demanded arbitration to resolve a dispute regarding uninsured motorist coverage, the arbitration “shall be conducted in accordance with the Pennsylvania Arbitration Act of 1927.” Meerzon at 389, 551 A.2d at 1108. Although the Pennsylvania Arbitration Act of 1927 provided as grounds for modification an award contrary to the law, the 1980 Pennsylvania Arbitration Act repealed the 1927 Act, and limited the standard of review. Hence, appellant’s reliance on Meerzon is misplaced, as is his reliance on § 7302(d)(l)(iii) of the Pennsylvania Uniform Arbitration Act.

There are only two instances other than when the Commonwealth or a political subdivision submits a controversy to arbitration, when § 7302(d)(l)(iii) applies:

(1) agreements to arbitrate made prior to December 4, 1980, the effective date of the 1980 Act, expressly providing for arbitration pursuant to the laws of the Commonwealth; and (2) agreements to arbitrate, made either before or after 1980, expressly providing for arbitration under the 1927 Act.

Popskyj v. Keystone Ins. Co., 388 Pa.Super. 429, 441, 565 A.2d 1184, 1190 (1989) (en banc).

In the case at bar none of the conditions required for the broader standard of review, as mandated by § 7302(d), are met: appellee’s insurance policy was issued to S.O.S. in 1988, and the policy does not refer to the Pennsylvania Uniform Arbitration Act of 1927. Therefore, having found that no special circumstances which allow for a broad standard of review of statutory arbitration awards present, we are limited to the narrow scope of review provided in §§ 7314 and 7315.

Sections 7314 and 7315 provide for the vacating of a statutory arbitration award only upon a showing of fraudulent, irregular, or partial conduct on the part of the arbitrators, or that the award contains miscalculations or deficiencies in form. Appellant does not allege any of the above, but rather alleges that the award was contrary to law. An allegation that a statutory arbitration award is contrary to law is not a sufficient basis for vacating the award pursuant to §§ 7314 and 7315.

For the foregoing reasons we affirm the opinion of the lower court denying appellant’s petition to vacate the arbitration award.

Affirmed.

JOHNSON, J., concurs in the result.

      . 75 Pa.C.S.A. § 1731 states that:
      No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverages is optional.
      75 Pa.C.S.A. § 1734 states that a "named insured may request in writing the issuance of coverage under section 1731 (relating to availability, scope and amount of coverage) in amounts equal to or less than the limits of liability for bodily injury.”
      75 Pa.C.S.A. § 1791 provides that:
      It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required....

      . 42 Pa.C.S.A. § 7302(d) states that:
      (1) Paragraph (2) shall be applicable where:
      (i) The Commonwealth government submits a controversy to arbitration.
      (ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
      (iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.
      (2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

        Id. (emphasis added).

      . 42 Pa.C.S.A. § 7314(a)(1) states that:
      (1) On application of a party, the court shall vacate an award where:
      (i) the court would vacate the award under section 7341 (relating to common law arbitration) if this subchapter were not applicable;
      (ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
      (iii) the arbitrators exceeded their powers;
      (iv) the arbitrators refused to postpone the cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or
      (v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.

      . 42 Pa.C.S.A. § 7315 states that “the court shall modify or correct the award where:
      (1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
      (2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
      (3) the award is deficient in a matter of form, not affecting the merits of he controversy.”


source: Caselaw Access Project

author: CAVANAUGH, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    617 A.2d 364
    James and Aletha STEPHENSON, H/W, Appellants, v. Steven J. GREENBERG, M.D. and Albert Einstein Medical Center Mt. Sinai—Daroff Division, Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted June 2, 1992.
    Filed Nov. 20, 1992.

      John M. Sheridan, Media, for appellants.
    James M. Penny, Jr., Philadelphia, for Steven J. Greenberg, M.D., appellee.
    Jill E. Baratz, Philadelphia, for Einstein Medical Center, appellee.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   CAVANAUGH, Judge:

Aletha Stephenson and her husband James Stephenson appeal from the orders of the Court of Common Pleas of Philadelphia County entered on January 24, 1991 and February 22, 1991 granting summary judgment to the defendants in this medical malpractice action. For the reasons stated hereinafter, we affirm those orders.

The facts of this case are as follows. Appellant-plaintiff-wife experienced abdominal pains in connection with a ruptured ovarian cyst. While in the hospital, she was treated with the prescription drug Keflex, an antibiotic for fighting infection. Appellant-wife is allergic to Keflex, and asserts that she informed the hospital of this fact before the drug was administered. On September 22, 1985 appellant-wife had an anaphylactic reaction to the drug, exhibiting blotchy skin, nausea, and a feeling that her throat was about to close.

Appellant-wife is a nurse, and appellant-husband is a physician, and both realized on September 23, 1985 that this reaction was an allergic reaction to the administration of the medication. She alleges that she had a repeat occurrence on October 25, 1985, and has been having “panic attacks” since then. Appellants claim that these are a post-traumatic stress disorder relating back to the initial administration of Keflex, discovered in 1986 when she came under the care of one Dr. Ganime, her psychiatrist.

The plaintiffs filed a writ of summons on October 8, 1987, beginning the litigation in this malpractice action. Appellees filed preliminary objections; appellant filed an amended complaint on May 20, 1988. Appellees, in their answers to the complaint and new matter, alleged that the two-year statute of limitations on tort actions acted to bar this action.

Appellants then filed a petition to amend their complaint to add a claim for breach of warranty of fitness for a particular purpose under the Sales Article of the Uniform Commercial Code (U.C.C.). Appellants alleged that the appellee-hospital and appellee-doctor sold goods which were unsuitable for their intended purposes. This claim has a four-year statute of limitations, which had not yet run. The petition for leave to amend was denied, as was a petition to reconsider. The trial court then granted the appellee-defendants’ motions for summary judgment based on the statute of limitations. This appeal followed.

We address appellants’ claims in reverse order. Appellants lastly claim that the trial court erred in granting summary judgment because the medical malpractice action was barred by the two year statute of limitations. They argue that because appellant-wife’s was not aware that her emotional difficulties were caused or related to the administration of Keflex at an earlier time, the statute of limitations did not begin to run.

As an initial matter, we note that summary judgment is governed by the Pennsylvania Rules of Civil Procedure. Rule 1035(b) provides, in pertinent part, that summary judgment:

shall be rendered if the pleadings, depositions, Answers to Interrogatories, and Admissions on file, together with the Affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

Further, the deciding court must view all of the evidence in a light most favorable to the non-moving party Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 48, 489 A.2d 828, 833 (1985), and draw all reasonable inferences in favor of the non-moving party. Helinek v. Helinek, 337 Pa.Super. 497, 502, 487 A.2d 369, 372 (1985). Finally, summary judgment may be rendered only in cases that are free from doubt. Huffman v. Aetna Life and Casualty Co., 337 Pa.Super. 274, 277, 486 A.2d 1330, 1331 (1984).

With this background in place, we turn to our analysis of appellants’ claim. The malpractice action was filed over two years from the date of the alleged malpractice. Therefore, the “discovery rule” first enunciated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) is applicable. In Ayers, a surgeon left a surgical sponge in the patient, who did not discover the sponge until nine years later as a result of complications. There, our supreme court held that the statute is triggered when the injury is discovered, not when the causative act took place.

This court modified the Ayers rule in Shadle v. Pearce, 287 Pa.Super. 436, 430 A.2d 683 (1981). In that case, a dentist treated an abscessed tooth negligently, in 1972, causing bacterial endocarditis which required an aortic valve transplant in 1973. At that point the patient made a conscious decision not to sue the dentist, as his costs were covered and a full recovery was expected. Three years later, the patient developed an aortic aneurysm, which totally incapacitated him and severely decreased his life expectancy. In holding that the action was barred by the statute of limitations, we stated that:

If we were to hold otherwise under the facts presented here, we would create a concept in the law which would permit an injured plaintiff to have a new limitations period commence for the initiation of an action for personal injuries as of the date when each complication or change in condition arose, despite the fact that no “new” negligence has occurred which is attributable to the defendant. Such a concept would be contrary to the legislative intent inherent in our creation of periods of limitations in our law. Shadle v. Pearce, supra, 287 Pa.Super. at 441, 430 A.2d at 685-686.

In his analysis of these cases in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 599, 587 A.2d 778, 780 (1991), our esteemed colleague Judge Johnson noted that:

Taken together, Ayers and Shadle [sic] established a common-sense rule based upon the fact that certain injuries do not conveniently manifest themselves within the statutory period. At the same time, a plaintiff, once aware that damage has been sustained, may not renew an attack upon the defendant at each stage of a progressing illness.

This court had occasion to address a more similar issue in Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986). In that case a woman received an extraordinarily painful injection in her leg while in the hospital in March or April of 1979. She was in pain constantly from that point on, and gradually losing muscular control in her leg. She went to see various specialists who could not pinpoint the medical cause of her injury until June of 1983, when a specialist determined the injury to be a sciatic nerve injury, and linked it to the injection. Suit was filed in September of 1983. We stated there, given the facts of that case, that the plaintiff “knew or reasonably should have known 1) that she was injured [in 1979], and 2) the operative cause of her injury, and 3) the causative relationship between the injury and the operative conduct” and affirmed the granting of summary judgment based on the statute of limitations.

As each case has different circumstances, each must be evaluated in light of its own particular facts. In the case currently under review the trial court noted in its brief opinion that:

We found that the cause of action accrued here no later than September 23,1985. By that time Plaintiff [Appellant] Mrs. Stephenson had not only sustained her injury, she was also aware of her injury and, as a nurse, knew its source. Her knowledge had the effect of causing the statute to run, even considering the effect of the “discovery rule” recognized by our case law. Bickford v. Joson, 368 Pa.Super. 211, 533 A.2d 1029 (1987). Although a second attack induced by the drug is alleged to have occurred one month later, Plaintiffs need not know the nature and extent of their injuries in order for the statute to begin to run. Since Plaintiffs failed to file suit until over two years had elapsed since the cause of action arose, we. granted Summary Judgment ... (Opinion, at 1-2).

Post-traumatic stress disorders have been recognized by the American Psychiatric Association as distinct psychiatric disorders. However, the symptoms suffered by the appellant-wife in this particular case are identical to the symptoms suffered by the appellant-wife after the initial injection. In their complaint, at count 8, the plaintiffs contended that:

8. Soley [sic] as a result of the aforesaid negligence of Defendants herein, PATIENT PLAINTIFF was caused to suffer severe anxiety attacks characterized by anaphylactic shock-type symptoms which first manifested themselves October 24, 1985.... (Emphasis added).

The lower court found that the initial symptom signifying injury was experienced on September 23, 1985. As the continuing alleged emotional injuries are manifested as the same injury initially allegedly inflicted by the hospital, it follows that, as a matter of law, that appellant knew or reasonably should have known that she was injured on September 23, 1985.

The law allowed the appellant two full years from September, 1985 to bring an action; the law requires that those who assert claims of negligence be vigilant in bringing legal actions based thereon. During that two year period the full extent of the appellants’ alleged injuries may have became more fully known as appellant-wife’s attacks persisted; however, nothing prevented appellants from pursuing a cause of action before the limitations period had elapsed. The medical malpractice action consequently is barred by the two-year statute of limitations, and the trial court did not err in granting the defendants’ preliminary objections to the complaint.

Appellants additionally contend that the lower court abused its discretion in denying the petition to amend the complaint because there was viable cause of action in an implied warranty of fitness, the statute of limitations had not yet run, and no prejudice would result from allowing the amendment.

Initially, we note our standard of review when addressing such a claim has been succinctly established.

When reviewing a trial court’s ruling on a party’s petition to amend we must bear in mind that the trial court is granted broad discretion in evaluating amendment petitions. Newcomer v. Civil Service Comm’n of Fairchance Borough, 100 Pa.Cmwlth. 559, 564-565, 515 A.2d 108, 111 (1986). The sound discretion of the trial court will not be disturbed on appeal absent a showing of an abuse of that discretion. Ecksel v. Orleans Constr. Co., 360 Pa.Super. 119, 131, 519 A.2d 1021, 1027 (1987).

Horowitz v. Universal Underwriters, 397 Pa.Super. 473, 478, 580 A.2d 395, 398 (1990).

Pennsylvania Rule of Civil Procedure 1033 provides, in pertinent part, that a party:

either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. (Emphasis added).

Additionally:

This rule has repeatedly been interpreted as requiring the liberal evaluation of amendment requests, see Pa.R.C.P. 126, in an effort to secure a determination of cases based upon their merits, Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super. 311, 313-14, 484 A.2d 148, 150 (1984), rather than based upon a mere technicality.

Horowitz, supra., 397 Pa.Super. at 478-79, 580 A.2d at 398.

This liberality is not without its limitations, however. Pennsylvania appellate courts have repeatedly ruled that an amendment will not be permitted where it is against a positive rule of law, or where the amendment will surprise or prejudice the opposing party. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 119 fn. 6, 516 A.2d 299, 302 fn. 6 (1986).

The appellees in this matter vigorously assert that the lower court was correct in denying the petition to amend because the cause of action asserted therein was meritless. Their reasoning is twofold. First, they assert that the hospital stay was not a transaction in goods, and as such, is not governed by the UCC. Secondly, they assert that even were the transaction governed by the UCC, the appellants have not pleaded facts which would permit any recovery; specifically, that the product delivered was not defective or unsuitable for its intended purpose.

The appellants’ underlying claim appears to be one of first impression in this Commonwealth. In essence, we are called upon to determine whether a hospital in the course of administering treatment to its patients through a staff physician and dispensary may be held liable as a merchant under the Uniform Commercial Code.

Pennsylvania was the first state to adopt the Uniform Commercial Code, in 1953. The version in effect was adopted in 1979, and warranty of fitness for a particular purpose is found at 13 Pa.C.S. § 2315, and reads as follows:

Implied Warranty: fitness for a particular purpose

(1) any particular purpose for which the goods are required; and
(2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods;
there is unless excluded or modified under section 2316 (relating to exclusion or modification of warranties) an implied warranty that the goods shall be fit for such purpose.

For the Sales Article of the Uniform Commercial Code to apply there must be a “transaction in goods”. Whitmer v. Bell Telephone Company of Pennsylvania, 361 Pa.Super. 282, 288-9, 522 A.2d 584, 587 (1987). Further:

When the transaction involves predominantly the rendition of services, the fact that tangible, movable goods may be involved in the performance of the contract does not bring the contract under the code. Id.

In Whitmer, the plaintiff was injured while using the telephone. This court reasoned that placing a telephone call was not a transaction involving the sale of goods, it was the rendition of services.

In DeMatteo v. White, 233 Pa.Super. 339, 336 A.2d 355 (1975) a plaintiff sued the contractor who built his house, asserting that the bricks he used were defective. This court, vacating an order granting judgment on the pleadings, reasoned that the action did not fall under the UCC because the operation was one of building, or construction, not one of sale, within the meaning of the Sales Act. Id., 233 Pa.Super. at 346, 336 A.2d at 358 citing York Heating and Ventilating Company v. Flannery, 87 Pa.Super. 19, 23-24 (1926).

Our research reveals that other jurisdictions have addressed this issue. For example, in Easterly v. Hospital of Texas, Inc., 772 S.W.2d 211 (Tex.App.—Dallas 1989), a patient brought an action against a hospital, seeking to recover damages which resulted when a catheter, which was part of an epidural kit, broke off and was left in her spine during child delivery. The lower court granted summary judgment in favor of the defendant hospital. In affirming, our southern sister appellate court noted that:

As a general proposition, hospitals are providers of services, not merchants selling goods. Absent a specific showing of the sale of a good not intimately related to the medical service provided, summary judgment was proper on Easterly’ breach of warranty cause of action. Id., at 214. (Emphasis added).

The Texas statute is similar to the Pennsylvania version of the UCC.

And in Foster v. Memorial Hospital Association of Charleston, 159 W.Va. 147, 219 S.E.2d 916, 921 (1975), another sister court stated that the transfer of dangerous or experimental drugs is technically a sale but not the type where there is the passing of title from seller to the buyer for a price, therefore, the law of warranties does not apply.

While these cases are not binding authority on this court, we find their reasoning to be more persuasive than the jurisdictions that permit a more expansive interpretation of the UCC. The essence of a hospital stay is the furnishing of the hospital’s healing services. The services rendered necessarily require certain goods or products (among them, frequently, medication), and these goods are usually incidental to the primary purpose of the hospital’s function, which is to heal.

In the present case, appellant was admitted to the hospital complaining of pain, and it was determined that she had a ruptured ovarian cyst. In the course of her treatment there, she was given Keflex to fight infection from her ailment. This was directly related to the reason for her stay in the hospital and an intimate part of her medical care. The hospital was not acting as a “merchant”, and this was not a “transaction in goods” governed by the Sales Article of the UCC. Therefore, there exists no cause of action upon which the appellants could recover. Compare M. Leff Radio Parts, Inc. v. Mattel, Inc., 706 F.Supp. 387 (W.D.Pa.1988). (To recover for breach of implied warranty of merchantability, plaintiff must show both that the seller was a “merchant” and that the goods were not “merchantable at time of sale”).

As there is no possibility of recovery under this theory, the lower court was correct in denying appellants’ petition to amend the complaint. This claim therefore fails.

Orders affirmed.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring.

I join the Majority in all areas and write only to state that rejection of the breach of warranty claim is consistent with this court’s treatment of similar 402A claims. Podrat v. Codman-Shurtleff, Inc., 384 Pa.Super. 404, 558 A.2d 895 (1989).

      . 13 Pa.C.S. § 2315 et seq.

      . 13 Pa.C.S. § 2725, which provides as follows:
      (a) General rule.—An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued ...

      . 42 Pa.C.S. § 5524.

      . See Diagnostic and Statistical Manual of Mental Disorders, (3d. Ed. 1980).

      . Appellant’s complaint belies her contention that it took over a year for her psychiatrist to determine the cause of her alleged symptoms. They were, according to the complaint, “anaphylactic shock-type” symptoms. Therefore, the appellants themselves have established in their complaint that they should have reasonably have been aware that the initial injury suffered (anaphylactic shock) was the cause of the alleged emotional symptoms.

      . This rule, provides, in part, that "[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126.

      . An agreement between a hospital and patient for the performance of a ventral hernia repair operation was a transaction involving "both a service transaction and a transaction in goods” thereby giving rise to an implied warranty of fitness for a particular purpose under the UCC. M.C. Skelton v. Druid City Hospital Board, 459 So.2d 818 (Ala.1984); the breach of implied warranty theory does apply to a service organization who maintained staff of physicians and whose primary purpose included birth control advice and dispensing of pills even if no sale is involved. Berry v. G.D. Searle and Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974); while it is likely that the state Supreme Court will in the future hold that the dispensing of drugs by a hospital carries with it the usual implied warrants of quality and merchantability, it is unlikely that the same Supreme Court will hold that a hospital in all cases warrants against the negligence of its employees. Mauran v. Mary Fletcher Hospital, 318 F.Supp. 297 (1970) (D.Vermont).


author: MONTEMURO, Judge: KELLY, Judge,

text:
    617 A.2d 369
    GROVE NORTH AMERICA, DIVISION OF KIDDE INDUSTRIES, INC. v. ARROW LIFT & CONSTRUCTION EQUIPMENT COMPANY, INC., Kenneth B. Patch, Donna K. Patch, Richard K. Wallace, Cynthia L. Wallace, Appellants.
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Nov. 16, 1992.

      Barbara Ann B. Townsend, Chambersburg, for appellants.
    James J. Bee, Philadelphia, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge:

In this Opinion, we are called upon to determine whether the trial court acted within its discretionary powers by requiring appellants, residents of Massachusetts with no assets in this Commonwealth, to post a bond identical to the amount of appellee’s confessed judgment, $202,942.68, within ten days or suffer the penalty of having their petition to open confessed judgment automatically stricken. We reverse.

The relevant facts and procedural history are as follows. On April 12, 1984, appellant, Arrow, granted to Manlift a security interest in all inventory, equipment, and machinery, including proceeds sold by Manlift to appellant Arrow. Pursuant to the security agreement, appellant Arrow agreed to “fully, timely, and faithfully” pay all of its obligations as defined in the security agreement to Manlift.

Appellant Arrow further agreed to secure all obligations of appellant Arrow to Manlift as stipulated in the security agreement. (R. 21a, 26a). Moreover, appellant Arrow agreed to “venue and jurisdiction of any court in the State of Pennsylvania for any matter” arising under the security agreement; and that the security agreement was to be determined by the laws of the principal place of business of Manlift, the secured party. (R. 23a, R. 25a).

On April 12, 1984, appellants Kenneth and Donna Patch and Richard and Cynthia Wallace (hereinafter the Patches and Wallaces), executed guaranty and surety agreements in order to induce Manlift to enter into the conditional sale agreements with appellant Arrow. In these agreements, appellants, the Patches and Wallaces, agreed to be “jointly, severally, directly and unconditionally liable” for the payment of present and future debts of appellant Arrow to Manlift. Moreover, they “irrevocably authorize[d] any attorney of any court of record in Pennsylvania or elsewhere to appear for and confess judgment against any [of the appellants].” (Guaranty and Security Agreement, R. 28a-32a).

On April 24, 1991, appellee confessed judgment in Franklin County Court of Common Pleas against appellants in accordance with the provisions of the security agreement and the guaranty and surety agreements. In turn, appellants filed a petition to open judgment on May 20, 1991 and requested a stay of action. On the same day, the trial court ordered that a rule be issued against appellee to show cause why the judgment should not be stricken or opened and granted appellants’ request for a stay of action. That order also stayed all proceedings in this matter.

Subsequently, on July 24, 1991, appellee filed a motion to order cause for argument pursuant to Pennsylvania Rule of Civil Procedure 209. In addition, appellee also filed a motion to strike the May 20, 1991 stay or, in the alternative, to require appellants to post a bond based upon appellants’ failure to take depositions within fifteen days after being so ordered.

On July 31, 1991, the trial court ordered appellants to post a bond within five days of the date of the order or their stay would be stricken. In response, appellants, on August 7, filed a motion to vacate the July 31 order. This motion was subsequently denied.

When- appellants failed to post the required bond, appellee filed a motion to strike the stay. The trial court subsequently ordered the stay lifted on August 22, 1991. On August 26, 1991, appellants filed a motion for a rule to show cause why depositions should not be taken and the trial court issued a rule to show cause.

On September 16, 1991, appellee filed an answer to appellants’ rule to show cause and a motion to strike appellants’ petition to open confessed judgment. After appellants contacted the trial court to express their opposition to these motions, the trial court decided to intervene. A conference between counsel for all parties and the trial court was held on October 3,1991. As a result of that conference, the trial court again directed appellants to post a bond within ten days or the confessed judgment would automatically become final. The trial court also ordered appellee to pay the cost of bond acquisition if the confessed judgment was later determined to be frivolous.

Additionally, the trial court’s order precluded the appellants from initiating any discovery until the required bond was posted. This timely appeal followed.

Appellants raise the following issue for our review:
DID THE LOWER COURT ERR IN DISPOSING OF A PETITION TO OPEN A CONFESSED JUDGMENT BY A JUDGMENT DEBTOR BY STRIKING THE PETITION, BASED SOLELY UPON THE JUDGMENT DEBTOR’S FAILURE TO FILE SECURITY FOR THE PAYMENT OF THE JUDGMENT, AND PREVENTING THE JUDGMENT DEBTOR FROM PROCEEDING TO DISCOVERY PURSUANT TO Pa.R.C.P. 209, WITHOUT REGARD TO THE MERITS OF THE CASE OR WHETHER THIS ALLOWS DUE PROCESS FOR THE JUDGMENT DEBTOR?

(Appellants’ Brief at 4). Before we may consider the merits of this appeal, we must determine whether the appellants have appealed from a final order.

Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 547 (1978). An order is generally not a “final order” unless it serves to put the litigant out-of-court either by ending the litigation or disposing of the case entirely. Bender’s Floor Covering v. Gardner, 387 Pa.Super. 531, 534, 564 A.2d 518, 520 (1989). In ascertaining what is a final appealable order, this Court must look beyond the technical effect of the adjudication to its practical ramifications. In Interest of C.A.M., 264 Pa.Super. 300, 301, 399 A.2d 786, 787 (1979). An order will be found to be final when its practical effect is to terminate the litigation by prohibiting either party from proceeding with the action. Urbano v. Meneses, 288 Pa.Super. 103, 108, 431 A.2d 308, 310 (1981).

Instantly, the trial court’s order directing appellants to post a bond within ten days or suffer the consequences of having their petition to open confessed judgment stricken is a self-executing order which has, upon appellants’ failure to post the required bond, effectively prevented them from proceeding with this action. Accordingly, this order is a final order and is properly before us on appeal.

Next, we turn to the substantive issue raised by appellants in this appeal. Appellants contend that the trial court erred in directing that their petition to open confessed judgment be stricken if they failed to post the court ordered bond. Appellants argue that the trial court abused its discretion by making its consideration of their petition contingent upon the payment of a bond.

We agree, and hold that the trial court did not have the authority to require appellants to post a bond as a prerequisite to granting their petition to open a judgment by confession.

Rule 2959 of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

(b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the day of the rule. The return day of the rule shall be fixed by the court by local rule or special order.
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(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

Pa.R.C:P. 2959, 42 Pa.C.S.A. (emphasis added). Thus, while appellee is correct in its statement that Rule 2959 does not prohibit a trial court from requiring the posting of a bond as a prerequisite to granting a petition to open, this Rule does state that if a jury question is presented the court shall open the judgment. Clearly, if this language is interpreted as mandatory, then the trial court lacked the authority to ignore it and set a bond requirement. However, if the words “shall open the judgment” are construed to be merely discretionary, then the trial court acted within its authority in requiring the posting of a bond.

The intent of the legislature determines whether a statute’s use of the term “shall” is to be deemed mandatory or discretionary. Commonwealth v. Ferguson, 381 Pa.Super. 23, 552 A.2d 1075 (1988); Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985) (word “shall” although usually mandatory or imperative when used in statute may nonetheless be directory or permissive depending on the legislature’s intent). When interpreting Legislative intent:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from doubt all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon
the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such a statute.

1 Pa.C.S.A. § 1921. Furthermore, our rules of procedure, shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Pa.R.C.P. 126, 42 Pa.C.S.A. After applying these standards, we conclude that the trial court lacked the authority to set an additional bond requirement.

The above underlined portion of Rule 2959 was added in 1973. See Pa.R.Civ.P. 2959, 42 Pa.C.S.A.—Historical Note (1992). The purpose of this addition was to lessen the burden of convincing a court to open a judgment by confession. Prior practice required a petitioner to appeal to the equitable power of the court. Pursuant to the amendment, a petitioner seeking to open a judgment by confession need only provide the court with evidence that a question of fact exists. As explained in Goodrich & Amram § 2959:1 (1977), this amendment provided a major change in Pennsylvania practice:

Historically, it has been the rule in Pennsylvania that the opening of a confessed judgment is a matter within the discretion of the Common Pleas Court and the appellate courts will not reverse unless there has been an abuse of discretion. This requires the defendant to do more than produce evidence which, if believed, would constitute a defense; it places on him the burden of persuading the court to open the judgment. The 1973 amendment meets this problem by adding a new sentence to subdivision (e) of Rule 2959, stating specifically that if the defendant produces evidence which in a jury trial would require the issues to be submitted to a jury, the court shall open the judgment.

This change in practice followed the United States Supreme Court decision in D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972). In Overmyer, the Court held that the Ohio cognivit statute did not violate the judgment debtor’s due process rights. In so holding, the Court noted that the judgment debtor was not rendered defenseless, as in Ohio the judgment court may vacate its judgment upon the showing of a valid defense. The concurring opinion contrasted the relatively easy burden of opening a confessed judgment in Ohio with the heavy burden placed on judgment a debtor in Pennsylvania. 405 U.S. at 190, 92 S.Ct. at 784 (Douglas, J., Concurring). Pennsylvania then amended its law to ease the burden of opening a confessed judgment.

The effect of the amendment is that the language “if evidence is produced which in a jury trial would require the issues to be submitted to a jury, the court shall open the judgment,” prohibits a trial court from weighing equitable considerations in determining whether to open or strike a confession of judgment. Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 237 Pa.Super. 243, 352 A.2d 165 (1975) (emphasis in original). Thus the purpose of the amendment was to decrease the discretion of a trial court. Reading the language, “shall open the judgment” as discretionary potentially increases the discretion of trial court. Since the purpose of the 1973 amendment to Rule 2959(e) was to limit the discretion of the trial court, “shall” should be read as mandatory.

In the present case, there is no dispute that appellant demonstrated that a question of fact exists. Furthermore, there is no indication that appellants failed to act promptly. Accordingly, the court must open the judgment. Adding the bond requirement as a prerequisite is contrary to the mandatory language provided in Rule 2959, and was therefore an abuse of discretion.

Although appellee does cite cases in support of its position that imposition of the bond requirement was not an abuse of discretion, these cases are not controlling precedent. For example, in Britton v. Continental Mining & Smelting Corp., 366 Pa. 82, 76 A.2d 625 (1950), the trial court allowed the defendant to open a default judgement taken by the plaintiff because the defendant did not receive notice that it had been sued. On appeal, our supreme court affirmed the trial court’s determination. However, the supreme court then went on to hold, entirely on its own initiative, that because the defendant was a foreign corporation, the opening of the judgement should be conditioned upon the defendant “enter[ing] security in such amount and with such surety as the court below shall direct.” Id. at 86, 76 A.2d at 627. Appellee argues that this holding justifies the action taken by the trial court here. However, Britton is readily distinguishable from the instant case.

Here, the trial court was asked to open a judgement by confession, not a default judgment. In addition, Rule 2959 now expressly states what conditions must be satisfied before a petition to open a judgment by confession may be granted. Thus, once the petitioner meets it burden under the rule, it is improper for the trial court to impose additional barriers to the grant of the petition. Accordingly, Britton does not control the outcome of this case.

Order reversed and case remanded for further action consistent with this opinion. Jurisdiction relinquished.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

Initially, I note my agreement with the majority that the instant appeal is from a final order. However, I disagree with the majority’s conclusion that a trial court does not have the authority pursuant to Pa.R.C.P. 2959 to require appellants to post a bond as a prerequisite to granting their petition to open a judgment by confession.

I would find that the trial court was within its discretion to require appellants to post a bond as security for the payment of appellee’s judgment. Pa.R.C.P. 2959 does not prohibit a court from imposing a bond as a requirement for proceedings with a Petition to Open Judgment. In fact, existing case law provides authority for imposing a bond requirement under the circumstances found in this case. See Britton v. Continental Mining & Smelting Corp., 366 Pa. 82, 76 A.2d 625 (1950).

In Britton, the plaintiff secured and attempted to enforce a default judgment against the defendant, an out-of-state entity. The defendant filed a petition to open judgment and the plaintiff appealed. The Pennsylvania Supreme Court affirmed the trial court’s rule to open judgment but only after imposing a surety requirement on the defendant. In imposing this requirement, the court stated:

[A]s the defendant, a foreign corporation, has apparently no assets within this state, the plaintiff is entitled to some protection in his right to collect his verdict if he obtains one. The opening of the judgment being entirely a matter of grace, should be further conditioned on the defendants entering security in such amount and with such surety as the court below shall direct. No doubt the court below would have so directed had it been so requested.

Id. at 86, 76 A.2d at 627.

The trial court in the instant case imposed a bond requirement upon appellants (who were not residents of, nor had any assets in, Pennsylvania) in order to provide some security to appellee. Thus, in accordance with Britton, supra, the trial court acted within its discretion when it imposed the bond requirement and properly directed that appellants’ petition to open confessed judgment be struck if they failed to post the required bond. See also Norristown Rug Mfg. Co. v. Mirabile, 71 Montg. 222 (1953) (court required bond to open confessed judgment); Maggs v. New Deal Lifetime Homes, 12 Lycoming 143 (1971) (defendant’s petition to open judgment was refused for failure to post bond prior to opening judgment). Hence, I dissent.

      . Manlift, Inc., subsequently assigned all of its rights and interest in the security agreement and the conditional sale contract notes to appellee, Grove North America, Division of Kidde Industries, Inc.

      . Reading Rule 2959(e) to permit a court to increase the burden of opening a confessed judgment is inconsistent with the fact that judgments by confession are looked upon with disfavor by our courts. Beckett v. Laux, 395 Pa.Super. 563, 577 A.2d 1341 (1990).

      . Appellee also cites Norristown Rug Mfg. Co. v. Mirabile, 71 Montg. 222 (1955), and Sterner v. Cope, 30 North. 358 (1946), in support of its argument. However, both cases were decided before the 1973 amendment to Pa.R.Civ.P. 2959 and therefore are irrelevant to the issue before us.

      . Rule 2959, Explanatory Notes-1979, of the Pennsylvania Rules of Court (1991) refers to the Act of July 9, 1897, P.L. 237, 12 P.S. 911 which requires the posting of a bond in certain circumstances.


author: BECK, Judge:

text:
    617 A.2d 375
    Karin R. MILLER v. Kurtz J. MILLER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1992.
    Filed Nov. 19, 1992.

      Arthur T. McDermott, Carlisle, for appellant.
    Henry O. Heiser, III, Gettysburg, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

This is the second appeal to this court in unduly protracted litigation over the distribution of marital property after a divorce. Appellant-husband Kurtz J. Miller, Jr. (“Husband”) once again seeks to overturn the trial court’s order of equitable distribution to appellee-wife Karin R. Miller (“Wife”). The first appeal was decided in Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990), alloc. den., 525 Pa. 664, 583 A.2d 794 (1990) (“Miller I ”). In this appeal, Husband challenges the triaf court’s valuation and distribution of his military pension. We affirm.

The parties were married on November 10, 1967. Husband retired from the army as a Colonel in 1973. The parties and their two sons then moved to Adams County. In 1984, Wife filed a complaint in divorce, seeking property distribution, alimony, alimony pendente lite, counsel fees and expenses. On May 15, 1989 the court entered a final divorce decree which inter alia incorporated the property division. Wife was awarded a portion of Husband’s military pension. In calculating the amount of the pension available for equitable distributton, the trial court included Husband’s veterans’ disability-benefits.

The Miller I court found error in the trial court’s inclusion of the veterans’ disability benefits in the amount of the pension available for equitable distribution. On remand the trial court was directed to: 1) determine the present value of Husband’s pension; 2) determine the amount of disability compensation currently being received by Husband; 3) redetermine the amount of Husband’s pension properly available for equitable distribution; and 4) examine the factors set forth in the Divorce Code in light of the new distribution. Miller I, 395 Pa.Super. at 261-62, 577 A.2d at 208-09.

After remand, the trial court conferenced with the parties. The trial court ordered Husband and Wife to submit new Proposed Plans for Marital Shares, including current valuations of the pension. Husband’s Proposal included a copy of his current monthly pension pay statement, dated March 1991, which listed the following information:

Net Entitlement: $4699.00
VA Disability Reduction: 1179.00
Adjusted Entitlement: 3520.00

These amounts reflect Husband’s 80% disabled status.

Wife also submitted her Proposed Plan, which included an accountant’s revised calculation of the pension’s value, omitting the amount of disability compensation, and taking into account Husband’s current life expectancy. The accountant’s computation was based on the following assumptions: the monthly pension payment, excluding disability benefits, was $3520; Husband’s life expectancy at the age of 70 was 11.00 years, resulting in 132 monthly payments, and; the pension would be adjusted for cost of living by 5%. The accountant then discounted this total amount by 7.75%, yielding a present value of $403,321.00. Applying the coverture fraction of .1915, the marital portion of the present value of Husband’s pension is $77,235.98. Appellant’s Brief at Exhibit A.

Husband agreed with the discount and cost of living allowance rates utilized by Wife’s accountant. Proposed Plan for Marital Shares at 7. However, he claimed his monthly entitlement was only $2870 and that his life expectancy was 10 years. Based on these figures he argued that the present value of his pension was $289,836. Applying the coverture fraction of .1915, Husband argued the marital portion of the pension was $55,504. Husband’s figures and therefore his calculations are not supported by the record.

The trial court held argument on the submitted Plans and issued an order and opinion adopting Wife’s expert’s valuation of the marital portion of the pension, which excluded the VA disability payment. The court granted 60% of the marital estate to Wife. Husband filed this timely appeal.

Husband raises two challenges in this appeal. He asserts that the trial court should have conducted an evidentiary hearing regarding the current status of the factors listed in Section 3502(a) of the Divorce Code (see fn. 4) and that the trial court erred in basing its award on “bare allegations of values contained only in Wife’s proposed plan for marital shares.” Appellant’s Brief at 5. Finding no merit in Husband’s arguments, we affirm the trial court.

We first note our limited scope of review from an order of equitable distribution. Awards of property distribution are within the sound discretion of the trial court, and will not be disturbed unless there has been a clear abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of discretion is not found lightly, but upon a showing of clear and convincing evidence. Miller I, supra. As a result, under the abuse of discretion standard, the appellate court does not usurp the trial court’s duty as fact finder. An abuse of discretion will be found by this court only if the trial court failed to follow proper legal procedures or misapplied the law. Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613, 615 (1985).

Husband complains that the trial court did not properly review the Divorce Code factors (23 Pa.C.S.A. § 3502(a) in light of Miller I’s instructions on remand. We disagree. Our review of the record indicates the opposite. Although the court did not hold a new hearing on the section 3502 factors, it reevaluated them before making its award. In Miller /, this court found no error in the trial court’s evaluation of the Divorce Code factors, and simply directed the trial court to reexamine the factors in making its order of a new distribution which excludes the disability payment from the marital estate. Miller I, 395 Pa.Super. at 260-61, 577 A.2d at 208. Pursuant to this instruction, the trial court recognized that Husband had decreased the marital estate by converting part of his pension into non-marital disability payments, and found that “Superior Court’s decision obviously impacts heavily on [Divorce Code] factors (6), (8) and (10). Colonel Miller will continue to enjoy substantial income with more favorable tax benefits reporting [sic] from disability treatment.” Tr. Ct Opinion at 2. The trial court therefore increased Wife’s distribution to 60% of the marital estate, in accordance with its reconsideration of the relevant Divorce Code factors.

Husband also asserts that a hearing was necessary to discover other changed factors, such as his age and his deteriorating health. However, these clearly are matters of record. Husband’s current age was considered in the expert valuation of the pension adopted by the court, as was his current disability status as set by the government at 80%. Husband provided this information to the court. We find no abuse of discretion in the trial court’s refusal to hold a hearing or on its findings which are supported by the record.

In addition, Husband argues that it was necessary for the trial court to hold a hearing because the “record does not reflect the amount of [his] military pension waived for veteran’s disability.” Appellant’s Brief at 7. We disagree and find appellant’s statement to be inaccurate. Husband’s own exhibit appended to his Proposed Plan for Marital Shares indicates the amount of disability pay he receives monthly.

Husband argues that the trial court improperly adopted the report of Wife’s accounting expert which provided a current valuation of the pension based on Husband’s age and his March 1991 pension payment statement. Husband argues that he was not given an opportunity to challenge the report, and that it was therefore “untried hearsay.” Appellant’s Brief at 9.

Husband had an opportunity to challenge the expert’s report and also to present his own expert valuation of his pension, but he chose not to do so. He merely offered an unsubstantiated alternate calculation of the present value of the marital portion of the pension.

Husband argues that the court erred in two additional respects. He alleges that the trial court accepted the expert’s pension valuation as of the date of separation instead of the date of distribution. In addition, he asserts that the court improperly accepted the expert’s calculation based on Husband’s age of 70 instead of 71. We find no error.

In June 1991, when the current valuations were prepared, Husband was still 70 years old, and his statistical life expectancy could be gleaned from the record.

Husband further argues that the date of distribution should have been used to value the pension rather than the date of separation. Husband’s argument is meritless since the pension was valued as close to the date of distribution as was possible in this case, and not at the date of separation. We underscore the principle that when using the immediate offset method of pension distribution, the valuation should be made “as close as possible to the property distribution date.” Miller I, 395 Pa.Super. at 263, 577 A.2d at 209; Braderman, supra. This is especially important when there has been a considerable passage of time since the separation date which has resulted in substantial fluctuations in the value of the asset to be divided. See, Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). In this case, the trial court acknowledged the fact that several years had passed since the parties separated in 1984, and that the present value of Husband’s pension had decreased along with his decreased life expectancy. Tr.CtOpinion at 2.

Therefore, contrary to Husband’s assertion, the trial court did not value the pension as of the date of separation. Rather, the date of valuation of the pension was as close to the distribution date as possible under the circumstances of this case. The pension valuation adopted by the trial court was made in June 1991, using Husband’s current age and pension/disability information. His life expectancy in June 1991 translated into 132 monthly pension payments over approximately 11 years. The trial court issued its order in September 1991, with the expectation that distribution would occur shortly thereafter. Of course, this appeal followed, and still more time has passed. The passage of time under these circumstances does not mandate that a new valuation be made. While we recognized in Miller I that valuation should be made as close to the date of distribution as possible, we reasoned that “[ajbsent a specific benchmark for valuation, the trial court is free to select the date which best serves to provide for economic justice between the parties. The date chosen by the trial court is reviewed under an abuse of discretion standard.” Miller I, 395 Pa.Super. at 263, 577 A.2d at 209; Aletto v. Aletto, 371 Pa.Super. 230, 237, 537 A.2d 1383, 1387 (1988).

The trial court in the instant case followed the directives of the Superior Court on remand. We note that the Miller I court already had approved the coverture fraction and immediate offset method of calculation used by the trial court in its previous distribution order, with the caveat that the disability portion of Husband’s monthly payment must be excluded. Miller I, supra. We find no abuse of discretion in the trial court’s adoption of Wife’s valuation of the marital portion of the pension at $77,235.98. The information utilized by the court to calculate this amount was current as of the proposed date of distribution.

Husband has had sufficient opportunity to present his own evidence and to challenge Wife’s arguments. The trial court properly carried out the directives set forth in Miller I and we find no error in the trial court’s determination and order.

Order affirmed.

      . The trial court used the “immediate offset” method in its computation of the present value of the pension. The immediate offset method: divides the benefits at the time the equitable distribution order is entered by assigning a present value to them ... [0]nly those benefits attributable to the period commencing with the marriage and ending on the date of separation are marital property.... The present value must be multiplied by the “coverture” fraction to reach the present value of the entitlement which was acquired during the marriage.... Next, the court must determine how the sum available for equitable distribution should be apportioned between the spouses according to the Divorce Code ... The immediate offset method has the advantage of avoiding further entanglement between the parties.... [and] it effectuates a final and immediate settlement of the distribution of the retirement benefits....

        Miller I, 395 Pa.Super. at 261-62, 577 A.2d at 208-09, quoting Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613, 619-20 (1985).
      The coverture fraction is calculated by dividing the months of marriage by the months of military service, in this case, 72 months of marriage divided by 376 months of military service, or .1915. Miller /, supra. Therefore, the marital portion of husband’s military pension equals 19.15% of its present value.

      . The six issues raised in Husband’s first appeal were: 1) did the court properly evaluate the factors set forth in 23 Pa.C.S.A. § 401(d) [now § 3502(a) ] in awarding Wife the bulk of the marital estate; 2) may the court treat that portion of Husband’s pension waived in order to receive veterans’ disability benefits as marital property; 3) should a vested, matured, and currently being received pension be distributed on an ’’actuarially based current value”; 4) was Husband’s military pension properly evaluated since service beyond thirty years does not increase the percentage of the pension; 5) if the court's decision to award "present value” of Husband’s military pension was appropriate, should the present value be determined on the date of valuation [sic] [separation] or the date of distribution; and 6) should Husband be given a reasonable opportunity to present his case. Miller I, 395 Pa.Super. at 256-58, 577 A.2d at 206.

      . Under Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), military retirement pay that has been waived to receive veterans disability benefits cannot be treated as divisible marital property. See also Martin v. Martin, 385 Pa.Super. 554, 561 A.2d 1231 (1989) (following Mansell).

        . Title 23 Pa.S.C.A. § 3502(a) sets forth several factors to be considered by the trial court when it makes an order of equitable distribution:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

        (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
      (11) Whether the party will be serving as the custodian of any dependent minor children.

      . Husband argues that he is now 100% disabled, and he apparently has requested the government to re-evaluate his status. However, he produced no evidence that the government has increased his disability payment. As of the time the trial court issued its order of marital shares, Husband’s own exhibit indicated that he is 80% disabled.

      . Husband has made this argument before. In his first appeal he claimed that he did not have an opportunity to secure expert witnesses. At that time we stated that:
      [tjhis case has been going on for five (5) [now seven] years, and, in light of the master's report filed in December of 1988, appellant was aware of the issues. Also, he failed to ask for a continuance to secure these witnesses. We do not accept that appellant was that unprepared. The court has been tolerant and has afforded him chances to present his case. Accordingly, this issue is meritless. Miller I, 395 Pa.Super. at 260-61, 577 A.2d at 208.
      If Husband had more compelling evidence to present to the trial court on the pension valuation issue, he could have done so when he submitted his Proposed Plan for Marital Shares. See Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990) (where husband did not comply with court's request for current property valuation, his objection to court’s order of distribution was waived); Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986) (valuation of husband's pension based on wife’s expert report was proper where husband did not demonstrate that such valuation was erroneous).

      . Husband based his life expectancy of approximately 10 years on the Life Tables included in the Pennsylvania Standard Civil Jury Instructions (1967) for a 71 year old white male. Husband was born on September 30, 1920, and was therefore 70 years and 9 months old when the valuations were compiled. Wife's accountant used the Male Single Life Estate Table (West 1987) to find a life expectancy of approximately 11 years for a 70 year old male. We find no abuse of discretion in the trial court's adoption of the latter figure.

      . If the present value of the pension were calculated as of the date of separation, when Husband was 64 years old, his life expectancy would have been approximately 13.52 years, yielding about 162 monthly pension payments.

      . Husband essentially argues that each time he files a Notice of Appeal he should be rewarded with a re-litigation of every issue in this case. Although it is important that a valuation be as current as possible, and that relevant changed circumstances be considered, the process must end somewhere. "A litigant cannot contest the relative value of assets on the ground that they substantially changed while the case was being further litigated.” Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534, 539 (1988) (McDermott, J., concurring).


author: KELLY, Judge:

text:
    617 A.2d 380
    Michael J. WHYTE, Appellant, v. Todd M. ROBINSON, Appellee.
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Nov. 16, 1992.

      William S. Friedlander, Waverly, N.Y., for appellant.
    Richard A. Gray, Williamsport, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   KELLY, Judge:

This direct appeal by Michael J. Whyte asks us to determine whether the trial court erred in denying appellant’s post-verdict motions for a new trial on damages or, alternatively, for a new trial on' all issues. Appellant sustained serious leg injuries as a pedestrian involved in a motor vehicle accident. Appellant argues that the trial court erroneously admitted insufficient and incompetent evidence of appellant’s alleged intoxication thereby tainting the judicial process. Because the jury may have based its verdict on improperly admitted evidence, appellant urges that the grant of a new trial is appropriate. After a careful review of the pertinent law as applied to the facts herein, we agree that the evidence of appellant’s intoxication was both insufficient and incompetent. The admission of that evidence, therefore, constitutes reversible error. Accordingly, we reverse and remand for a new trial on all issues.

I. FACTS AND PROCEDURAL HISTORY

Sometime between 10:15 p.m. and 10:45 p.m. on the night of November 7, 1987, appellant (Michael Whyte) was driving southbound on Schrader Creek Road. The weather and roads were clear and dry. While driving, Whyte spotted chrome off to his right and down an embankment bordering this country road. Whyte stopped his pickup truck in the roadway, angling the truck slightly to the right so that his headlights illuminated the embankment. Leaving his truck with the motor running and lights on, Whyte climbed down the embankment to investigate. At the bottom, he discovered an unoccupied car, left where it had collided with a tree. Whyte then climbed back up the embankment to return to his truck and drive away. As he reached his truck, he noticed that another car was stopped behind him, waiting for Whyte to get back into his truck and to drive away. Whyte walked around the front of his truck, pausing momentarily by the driver’s door in order to light a cigarette. As he was about to open the door, a car driven by appellee (Todd M. Robinson) approached from the opposite direction. Before Whyte could move, Robinson’s car struck his leg. Whyte sustained uncontroverted multiple leg fractures. Subsequently, Whyte developed a bone infection known as osteomyelitis, a painful and persistent disease. Moreover, Whyte’s chances of developing arthritis substantially increased as a result of his leg injuries. In January, 1989, Whyte commenced this suit against Robinson for damages resulting from that accident.

Prior to the commencement of the February, 1990 trial, the court denied Whyte’s pre-trial motions to exclude proposed evidence of his intoxication on the night of the accident. Following trial, the jury rendered a verdict for Whyte of $7,800.00, the amount stipulated by the parties as his lost wages. Although the jury found that Whyte was not comparatively negligent, the jury did not award any damages for pain and suffering. The trial court denied Whyte’s post-trial motions. This timely appeal followed.

II. STANDARD OF REVIEW

The Superior Court’s standard for reviewing the trial court’s denial of a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which affected the outcome of the case. Melso v. Sun Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), appeal denied, 527 Pa. 667, 593 A.2d 842 (1991); Cooper v. Burns, 376 Pa.Super. 276, 545 A.2d 935 (1988), appeal denied, 522 Pa. 619, 563 A.2d 888 (1989). We will reverse the trial court’s denial of a new trial only where there is a clear abuse of discretion or an error of law which controlled the outcome of the case. Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965); Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa.Super. 606, 595 A.2d 70 (1991). The trial court abuses its discretion when it misapplies the law or when it reaches a manifestly unreasonable, biased or prejudiced result. Girard Trust Bank v. Remick, 215 Pa.Super. 375, 258 A.2d 882 (1969). Abuse of discretion may occur through an honest, but erroneous use of discretion. Pachesky v. Getz, 353 Pa.Super. 505, 509, 510 A.2d 776, 778 (1986); Adelman v. John McShain, Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942). A new trial may not be granted merely because the evidence conflicts and the jury could have decided for either party. Hilbert v. Katz, 309 Pa.Super. 466, 471, 455 A.2d 704, 706 (1983) (citations omitted). The grant of a new trial is appropriate, however, where the jury verdict may have been based on improperly admitted evidence. Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc. v. Caladie, 348 Pa.Super. 285, 294, 502 A.2d 210, 215 (1985) (citations omitted).

III. EVIDENCE OF INTOXICATION

Questions regarding the admissibility or exclusion of evidence are also subject to the abuse of discretion standard of review. Rogers v. Johnson & Johnson Products, Inc., 401 Pa.Super. 430, 436, 585 A.2d 1004, 1007 (1990) (citations omitted). Pennsylvania trial judges enjoy broad discretion regarding the admissibility of potentially misleading and confusing evidence. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984). Relevance is a threshold consideration in determining the admissibility of evidence. Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 618, 537 A.2d 334, 338 (1988). A trial court may, however, properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Daset, supra. Generally for the purposes of this evidentiary rule, “prejudice” means an undue tendency to suggest a decision on an improper basis. Id. The erroneous admission of harmful or prejudicial evidence constitutes reversible error. Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521 (1984).

On appeal, Whyte argues that the trial court erred in admitting evidence to the effect that he was intoxicated at the time of the accident. Despite the jury’s finding that Whyte was not negligent, it failed to award any damages for his uncontroverted pain and suffering. As a result, Whyte concludes that the evidence of his intoxication was highly prejudicial because the verdict reflected the jury’s general distaste for his intoxication by completely disregarding Whyte’s obvious, compensable and uncontroverted pain and suffering.

First, Whyte argues that the trial court erred in permitting defense counsel to ask him at trial how much beer he had consumed on the night of the accident. By so questioning Whyte, defense counsel was able to elicit Whyte’s admission to consuming three beers and part of a fourth. No evidence was adduced as to the time of consumption.

Since Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927), the well-settled law of this Commonwealth is that where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication. Cusatis v. Reichert, 267 Pa.Super. 247, 249-50, 406 A.2d 787, 788-89 (1979) and cases cited therein. The rule of Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508 (1969), states that such evidence of intoxication must reasonably establish a degree of intoxication which proves unfitness to drive where reckless or careless driving is the matter at issue. This Court, in Kriner v. McDonald, 223 Pa.Super. 531, 533-35, 302 A.2d 392, 394 (1973) extended the Cntzer/Mo'rreale rules of inadmissibility to evidence tending to establish intoxication on the part of a pedestrian. According to Kriner, such evidence of intoxication is inadmissible unless it proves unfitness to be crossing the street. Furthermore, no reference should be made to a pedestrian’s use of alcohol unless there is evidence of excessive or copious drinking. Cook v. Philadelphia Transportation Company, 414 Pa. 154, 158, 199 A.2d 446, 448 (1964).

In the instant case, the defense offered, as evidence of Whyte’s intoxication at the time of the accident, the testimony of Robinson who claimed he smelled alcohol on Whyte’s breath. None of the other trial witnesses present at or about the time of the accident, including Robinson’s passengers, the driver of the vehicle stopped behind Whyte’s truck, and the police chief were able to detect the same odor of alcohol. We find, therefore, that the odor of beer as testified to by Robinson and denied by several disinterested witnesses was not evidence tending to prove the degree of intoxication rendering Whyte unfit to walk in the street. Additionally, Whyte’s treating physician, who examined him approximately three hours later, testified that he detected an odor like that of alcohol on Whyte’s breath. We find that this statement, absent more, is insufficient to prove a degree of intoxication indicating any recklessness or carelessness on Whyte’s part at the time of the accident.

Next, Whyte argues that his case was further tainted by the lay opinion testimony of Robinson and his two passengers regarding Whyte’s intoxication. All three testified that they thought Whyte was intoxicated because they had seen him drunk on prior occasions and knew how he acted when he was drunk. Moreover, they testified that, after the accident, Whyte asked for a beer and a cigarette, used loud and profane language and gave the medical personnel a “hard time.”

Where mere descriptive language is inadequate to convey precise facts or their effect on the issues of the case, a witness may supplement descriptions with opinion. Taylor v. Fardink, 231 Pa.Super. 259, 262, 331 A.2d 797, 799 (1974). When facts can be fully and accurately described to the jury, and the jury persons, •without special knowledge or training, are capable of estimating the bearing of those facts on the issues of the case, opinions of witnesses, expert or otherwise, are inadmissible. Id. (citations omitted). When the appellate court concludes that prejudicial error was manifest in the admission of lay opinion, it will reverse the trial court’s decision. McKee by McKee v. Evans, 380 Pa.Super. 120, 139, 551 A.2d 260, 269 (1988). The McKee court set forth a two-step analysis for the admissibility of lay opinion testimony.

[W]e now only require the trial court to view the proffered testimony, if based on the witness’ perceptions, in light of its helpfulness to the jury in the latter’s deliberation of the ultimate issue. If the trial court so concludes, it must further the inquiry to ensure that the lay opinion proffered will not unduly confuse or prejudice the fact finder. When this two-step analysis has been completed, the court will either admit or exclude the lay opinion testimony.

Id. at 140, 551 A.2d at 269.

Applying McKee to the facts herein, we are mindful that none of the defense witnesses, who opined Whyte was drunk, observed Whyte prior to the accident. Moreover, the record is devoid of any evidence such as staggering, stumbling, aimless wandering, glassy eyes or incoherent mumbling. See e.g. Ackerman v. Delmonico, 336 Pa.Super. 569, 486 A.2d 410 (1984) (corroborated testimony that a party had been heavily drinking prior to accident, whose breath emitted a strong odor of beer, whose speech was slurred and whose alertness was unusually low after the accident was held to be much more than a suggestion of intoxication and was properly admitted into evidence); Hannon v. City of Philadelphia, 138 Pa. Cmwlth. 166, 587 A.2d 845 (1991) (holding that the combined evidence of an admission to drinking more than a six-pack of beer, the use of abusive and foul language, screaming, loud and uncooperative behavior, smell of alcohol, incoherence and rambling, repeatedly ripping off a cervical collar after being warned of the dire consequences, and slurred speech was admissible). The tension in this case is between the relevance of the evidence and its prejudicial effects. We conclude, therefore, that even if remotely helpful, the lay opinion of Robinson and his companions as to Whyte’s intoxication was manifestly prejudicial and should not have been admitted into evidence.

Finally, Whyte argues that opposing counsel was erroneously permitted to ask if he was aware that a blood alcohol test performed on him at the hospital yielded a reading of 0.144%. Whyte submits that this admission of his blood alcohol test result was error because it was admitted without proper foundation or expert testimony. We agree.

The presumption of legal intoxication under 75 Pa.C.S.A. § 1547(d) does not apply in civil negligence cases. Suskey v. Loyal Order of Moose Lodge No. 86, 325 Pa.Super. 94, 472 A.2d 663 (1984). Moreover, the presumption has no bearing on the issue of whether a pedestrian is under the influence of alcohol to a degree which renders the pedestrian a hazard under 75 Pa.C.S.A. § 3550. Ackerman, supra 336 Pa.Super. at 582-83, 486 A.2d at 417. Furthermore, because alcohol has no effect until absorbed into the bloodstream, which occurs thirty minutes to ninety minutes after consumption, any blood test evidence that “relates back” to a time earlier than the time the test was performed is viewed with skepticism as entirely too speculative, absent explanation. Schwarzbach v. Dunn, 252 Pa.Super. 454, 462, 381 A.2d 1295, 1298 (1977).

The accident causing Whyte’s leg injury occurred sometime between 10:15 p.m. and 10:45 p.m. on the night of November 7, 1987. Whyte’s blood alcohol was drawn at 11:56 p.m. and registered an alcohol content of 0.144%. The test was performed between sixty minutes and ninety minutes after the accident. Robinson presented no expert testimony to account for the elapsed time and for the fact that the blood-alcohol content fluctuates over time. We hold, therefore, that the bare evidence of Whyte’s blood alcohol content sixty to ninety minutes after the accident was insufficient to have any probative value on the issue of his negligence at the time of the accident.

IV. CONCLUSION

The evidence presented in this case to prove Whyte was intoxicated at the time of his injury was insufficient to such a degree that the trial court erred in admitting the evidence. Moreover, we cannot ignore its highly prejudicial character. Furthermore, the evidence of Whyte’s blood alcohol level lacked probative value, when introduced without the aid of expert testimony to make the appropriate adjustments for elapsed time and normal fluctuations of the alcohol level in the blood stream. Thus, the erroneous admission of this harmful and prejudicial evidence, with its potentially pernicious effects, warrants a new trial. We need not address, therefore, Whyte’s arguments regarding the inadequacy of the jury’s damage award or his request for a new trial on the issue of damages.

Judgment reversed. Case remanded for a new trial on all issues.

      . 75 Pa.C.S.A.
      § 1547. Chemical testing to determine amount of alcohol or controlled substance
      (a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
      (1) while under the influence of alcohol or a controlled substance or both; or
      (2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
      (c) Test results admissible in evidence.—In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
      (d) Presumptions from amount of alcohol.—If chemical testing of a person’s breath, blood or urine shows:
      (1) That the amount of alcohol by weight in the blood of the person tested is 0.05% or less, it shall be presumed that the person tested was not under influence of alcohol and the person shall not be charged with any violation under section 3731(a)(1) or (4) (relating to driving under influence of alcohol or controlled substance), or if the person was so charged prior to the test, the charge shall be void ab initio. This fact shall not give rise to any presumption concerning a violation of section 3731(a)(2) or (3).
      (2) That the amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol.

        (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.

      . 75 Pa.C.S.A.
      § 3550. Pedestrians under influence of alcohol or controlled substance
      A pedestrian who is under the influence of alcohol or any controlled substance to a degree which renders the pedestrian a hazard shall not walk or be upon a highway except on a sidewalk.


author: WIEAND, Judge:

text:
    617 A.2d 715
    COMMONWEALTH of Pennsylvania v. Albert KORB, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1992.
    Filed Oct. 14, 1992.
    Reargument Denied Dec. 24, 1992.

      J. Richard Narvin, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

Albert Korb was tried by jury and, on May 27, 1981, was found guilty of first degree murder for the 1974 killing of his estranged wife. A sentence of life imprisonment was imposed, and thereafter Korb’s motion for post-trial relief was denied. The Superior Court affirmed the judgment of sentence on August 17, 1984; and, on March 8, 1985, the Supreme Court denied allocatur. A petition for writ of certiorari was denied by the United States Supreme Court on October 15, 1985. On September 24, 1990, Korb filed a petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., in which he alleged that his trial counsel had been constitutionally ineffective for failing to communicate to him an offer by the Commonwealth which would have allowed him to plead guilty to a charge of third degree murder. On April 26, 1991, Korb’s PCRA petition was denied without hearing. This appeal followed.

Appellant asserts that the post conviction hearing court erred when it denied his petition without first holding an evidentiary hearing. The Commonwealth responds with the assertion that appellant has not presented a cognizable issue under the Post Conviction Relief Act. After careful review, we reverse the order denying post-conviction relief and remand for an evidentiary hearing.

It appears that appellant has presented a claim of ineffective assistance of counsel which contains at least arguable merit. In Commonwealth v. Copeland, 381 Pa.Super. 382, 554 A.2d 54 (1988), the Superior Court remanded for an evidentiary hearing after finding arguable merit in the defendant’s claim that his trial counsel had been ineffective for failing to inform him of an offered plea bargain. Id. at 394-397, 554 A.2d at 60-61. Although the substantive issue presented in the instant case is the same as in Copeland, the Commonwealth asserts that the difference in the procedural postures of the two cases precludes our granting the same relief as was granted in Copeland. Specifically, the Commonwealth argues that appellant has not presented a cognizable claim for relief under the Post Conviction Relief Act.

In pertinent part, the Post Conviction Relief Act provides as follows:

(a) General rule.—To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.

42 Pa.C.S. § 9543(a)(2)(i), (ii) and (v).' The Commonwealth asserts that the controlling provision is § 9543(a)(2)(ii), which limits the granting of relief in cases of ineffective assistance of counsel. Appellant, on the other hand, asserts that he is entitled to relief under § 9543(a)(2)(v), because he has raised an issue under the United States Constitution for which he would be entitled to relief in a federal habeas corpus action.

To be eligible for relief under the Post Conviction Relief Act, “a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type ‘which in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.’ ” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990), quoting 42 Pa.C.S. § 9543(a)(2)(h). “[T]he purpose of the PCRA is to prevent a fundamentally unfair conviction. Therefore, we interpret the language of § 9543(a)(2)(ii) as meaning that it is not enough for appellant to show that he suffered some prejudice as a result of counsel’s action or inaction, but rather [he must demonstrate] that counsel’s action or inaction so affected the trial itself (“the truth-determining process”) that the result of the trial is inherently unreliable.” Commonwealth v. Wein der, 395 Pa.Super. 608, 626-627, 577 A.2d 1364, 1374 (1990) (citation omitted).

A claim for ineffectiveness may be raised in a PCRA petition if the ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(h). We have interpreted this to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an “innocent individual” has been convicted. See Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990) (contention of ineffectiveness for failing to preserve insufficiency of evidence issue was cognizable because it raised issue of possible innocence). We have held that the language in the PCRA referring to ineffectiveness claims constitutes “a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) (comparing PCRA provision to broader language in predecessor Post Conviction Hearing Act).

Commonwealth v. Grier, 410 Pa.Super. 284, 288, 599 A.2d 993, 995 (1991). See, e.g.: Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990) (claim that counsel ineffective with regard to discretionary aspects of sentencing not cognizable under PCRA); Commonwealth v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989) (claim that counsel was ineffective for failing to file motion to quash information based upon defective preliminary hearing did not implicate truth determining process); Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989) (failure of counsel to seek dismissal pursuant to Rule 1100 was not cognizable claim of ineffectiveness under PCRA).

The Commonwealth argues that the fact that appellant’s trial counsel may not have communicated to appellant an offer of a plea bargain in no way affected the truth determining process, in that appellant was afforded a trial at which his guilt was fairly determined. As such, the Commonwealth asserts that appellant is not eligible for post conviction relief.

After careful study, however, we have concluded that appellant has demonstrated his eligibility for relief under 42 Pa.C.S. § 9543(a)(2)(v) in that he has presented a claim under the PCRA which would “require the granting of Federal habeas corpus relief to a State prisoner.” In Caruso v. Zelinsky, 515 F.Supp. 676 (D.N.J.1981), it was determined that habeas corpus relief was warranted where the defendant had alleged that his counsel was ineffective for failing to communicate a plea offer pursuant to which the defendant would have been subjected to a maximum sentence of thirty years, rather than the mandatory life sentence which he received following a trial and conviction for murder. The District Court concluded that such an allegation of ineffective assistance required an evidentiary hearing and, therefore, ordered the state court to hold such a hearing or in the alternative to grant the defendant the benefit of the allegedly proffered plea bargain. On appeal, the Third Circuit Court of Appeals agreed with the District Court’s substantive analysis, observing that:

This court has held that “the standard of adequacy of legal services ... is the exercise of the customary skill and knowledge which normally prevails at the time and place.” Moore v. United States, 432 F.2d 730, 736 (3d Cir.1970) (in banc). The decision to reject a plea bargain offer and plead not guilty is a decision for the accused to make. It would seem that, in the ordinary case, a failure of counsel to advise his client of a plea bargain would constitute a gross deviation from accepted professional standards. The district court, in a thoughtful discussion, held that failure to communicate a plea bargain offer would deny Caruso his sixth and fourteenth amendment rights. 515 F.Supp. at 679-80. We agree.
This court has also held that the accused must be prejudiced by counsel’s incompetence before relief will be granted. See United States ex. rel. Johnson v. Johnson, 531 F.2d 169, 177-78 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). Caruso alleges the requisite prejudice, a significant additional term of imprisonment that resulted from counsel’s failure to communicate the plea offer which he would have accepted.
The State argues that because Caruso received a fair trial he is not entitled to a habeas remedy even if he could prove ineffective assistance of counsel in the manner alleged. This argument is untenable on the plea bargaining issue. Failure by defense counsel to communicate a plea offer to defendant deprives defendant of the opportunity to present a plea bargain for the consideration of the state judge and, on acceptance by the state judge, to enter a guilty plea in exchange for a lesser sentence. A subsequent fair trial does not remedy this deprivation. Cf. Rose v. Mitchell, 443 U.S. 545, 557-64, 99 S.Ct. 2993, 3000-04, 61 L.Ed.2d 739 (1979).

United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982).

Instantly, we are satisfied that appellant has presented a claim in his PCRA petition which, if proven, would in a federal habeas corpus action entitle him to relief. It follows that appellant has also presented a claim under the PCRA which, if proven, would entitle him to relief pursuant to 42 Pa.C.S. § 9543(a)(2)(v). Under these circumstances, we are constrained to reverse the order denying post conviction relief and remand for an evidentiary hearing.

Reversed and remanded for an evidentiary hearing. Jurisdiction is not retained.

      . The Third Circuit, however, vacated the District Court’s order after finding that the petitioner had failed to comply with a procedural rule in the state court. The court remanded the case for a determination as to whether the state procedural default would constitute a bar to federal habeas corpus relief.