author: DEL SOLE, Judge:

text:
    578 A.2d 441
    David FERRICKS, Margaret Ferricks, and Daryl Ferricks, a Minor, Jeffery Ferricks, a Minor, Christine Ferricks, a Minor, and Richard Ferricks, a Minor, by David Ferricks, and Margaret Ferricks, Their Father and Mother and Guardians, Appellants, v. RYAN HOMES, INC., St. Regis Corporation, Chembond Corporation a Wholly-Owned Subsidiary of Texaco Chemical Company; Borden Inc., Reichold Chemicals, Inc., Reichold, Ltd., and Potlatch Corporation.
    Superior Court of Pennsylvania.
    Argued April 5, 1990.
    Filed July 19, 1990.

      Thomas Bell Rutter, Philadelphia, for appellants.
    Edward Craig Schmidt, Pittsburgh, for St. Regis Corp., appellee.
    Robert J. Luddy, Pittsburgh, for Potlatch Corp., appellee.
    Before DEL SOLE, TAMILIA and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This is an appeal from an award of Summary Judgment entered as a result of the applicability of the “Construction Projects” Statute of Repose, 42 Pa.C.S.A. § 5536. In an opinion written for purposes of appeal, the trial court advised this court that upon “subsequent evaluation of all relevant statutory and judicial authority as well as the legislative history of the Statute of Repose, and considered rationale of the Supreme Court of Pennsylvania,” the improvidence of the court’s action was revealed. The trial court sought reversal of its decision. We too accept the .trial court’s conclusion that the Statute of Repose was inapplicable to the Appellees in this case, and we reverse the award of Summary Judgment.

Appellants commenced this action seeking to recover for personal injuries and property damage they allegedly suffered as a result of exposure to formaldehyde vapors from the building materials of their home. Named as defendants were the general contractor, Ryan Homes, as well as several manufacturers of plywood and plywood adhesive, a material alleged to contain the formaldehyde resin in question. The trial court granted a motion for Summary Judgment in favor of Ryan Homes accepting the contractor’s argument that the plaintiffs’ cause of action was extinguished under 42 Pa.C.S.A. § 5536 since the home in question was built more than twelve years prior to the commencement of this action. Although the remaining defendants joined in Ryan Homes’ motion, the court was unwilling to dismiss them prior to the completion of discovery. Later, by consent of the parties, certain defendants were dismissed from the case. Once discovery was complete the remaining defendants, Potlatch Corporation and St. Regis Corporation, who are plywood board manufacturers, renewed their motions for summary judgment. The grant of their motion is the subject of this appeal.

The statute in question, 42 Pa.C.S.A. § 5536 provides in pertinent part:

Construction projects
(a) General rule.—Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.

This statute has been said to not merely bar a litigant’s right to a remedy, as a statute of limitations does, but it completely abolishes certain causes of action relating to real property improvements 12 years after completion of the improvement. Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981). In a case such as this where more than 12 years have passed since the completion of the structure, any action seeking to recover for personal or property injuries arising out of an alleged deficiency in design, planning or construction of an improvement to the real property will be disallowed. Thus, the question in this case becomes whether the Appellees, who are manufacturers of plywood which was alleged to have been sold to Ryan Homes for incorporation into Appellants’ house, designed, planned or constructed an “improvement to real property.”

Appellees argument that the manufacturers of the plywood should be entitled to the protection of the statute of repose can be simply stated. They submit that the term improvement as it relates to property rights refers to those items, such as the plywood here, which become so affixed to the property that they cannot be removed without material injury to the real estate or to themselves. Although we cannot disagree that the plywood did become an integral part of the structure built by Ryan Homes, we do not find this factor determinative of the question of whether the plywood was itself the improvement.

The Courts of this Commonwealth have considered the applicability of § 5536, however, none of these decisions have addressed a situation such as that presented here. In two instances the courts have concluded that the construction of an elevator was the “construction of any improvement to real property” which would relieve its designer and installer from liability when more than 12 years had passed since installation. See Fetterhoff v. Fetterhoff, 354 Pa.Super. 438, 512 A.2d 30 (1986), and Mitchell v. United Elevator, 290 Pa.Super. 476, 434 A.2d 1243 (1981). This same conclusion was reached with respect to manufacturers of a skydome installed on the roof of a high school in Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985) and with respect to a party who approved the design of an electrical panel board in Goodrich v. Luzerne Apparel Manufacturing Corp., 356 Pa.Super. 148, 514 A.2d 188 (1986).

On two occasions our supreme court examined § 5536. In Freezer Storage v. Armstrong Cork Company, 476 Pa. 270, 382 A.2d 715 (1978) the court considered the constitutionality of § 5536. More recently in McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989) the applicability of the 12 year statute of repose was questioned where an individual was injured in the belt conveyor of a coal delivery system installed in a university powerhouse. There the court concluded that the manufacturer of the system was engaged in the design of an improvement to the real property which would afford him the benefit of § 5536.

The instant case is based on a different factual predicate than those previously decided by the courts of this Commonwealth. Unlike the previous cases, here the defendants were producers or manufacturers of a product which was used as a material in construction. Because the material itself, the plywood, was at one point constructed by the Appellees and then incorporated into a structure, the Appellees would assert that this constituted the construction of an improvement entitling them to the protection of the statute of repose. We disagree. Appellees were not responsible for construction or design of an improvement. The plywood manufacturers were merely furnishing a material to be used in the construction of the actual improvement. The plywood was simply a component part of a wall or floor which eventually made up the improvement on the real estate.

In McCormick v. Columbus Conveyor, supra, the supreme court looked to the definition of the term “improvement” as it is found in Black’s Law Dictionary, which defines it as:

[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes____

Id., 564 A.2d 909.

A multipurpose building material such as plywood, which is merely used as a component in the creation of a finished product, does not come within the definition of the term “improvement”. As noted by the trial court in its opinion, the inclusion of a material such as plywood under the definition of an “improvement” would create internal inconsistency within the definition. The Honorable Livingstone M. Johnson commented in his opinion:

Inclusion of plywood or other fungibles as such ‘valuable additions’ creates internal inconsistency within the definition, inviting arbitrary distinctions between building materials used in original construction, such as the plywood here in question, and those used for ‘mere repair or replacement.’ While materials used in original construction might be deemed “improvements”, the provisions of the definition as adopted clearly preclude the same treatment for those used in repair. A result which would so reward manufacturers based on the fortuity of inclusion of their product in original construction while denying protection for equally defective materials used thereafter is without logical foundation, and as such, could not reflect the intent of the legislature. Cf. Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982).

The definition of the term improvement also caused Judge Johnson to observe that a building material such as plywood which is a single component of a greater whole is recognizable as some form of “improvement” only upon the application of “labor and capital” to create the construction of a structure or fixture. He accurately observed:

Any contrary finding would serve to advance the absurd result that building materials such as plywood, plate glass, aluminum sheeting or steel supports might be merely stock piled on a given piece of real estate and be thereby subject to inclusion under the Statute of Repose, as ‘improvement[s] to real property.’

As noted by the trial court, the plywood was simply a component of a greater whole which upon its creation had a multiplicity of purpose. Plywood has many uses, only some of which are consistent with the construction of improvements on real property. In addition to its uses in building structures it could be used to build any number of items clearly unrelated to an improvement on real estate. Much like the cables of an elevator, the glass of a skydome and the individual wires of an electrical panel board, the panels of plywood are only parts of what may become a fixture; they alone are not the fixture. It is only the finished product with its singular purpose of being integrated into a structure which constitutes the fixture.

In Mitchell v. United Elevator Company, supra, the installation of an elevator system was being considered. The trial court ruled that the manufacturer could not avail itself of the bar against liability provided by the statute since “it simply supplied and installed the necessary elements for the elevator system as part of the overall construction of the complex. “Id. 434 A.2d at 1249. In reversing this decision the superior court stated:

The lower court seems to be likening the building of an elevator system with all its myriad components, motors, cables, wiring and machinery to uncrating and plugging in a television set. The fact that the basic design of the elevator may be identical in different buildings does not render the elevator system any less an improvement to real estate. Id. (emphasis added).

Likewise in Catanzaro v. Wasco Products, Inc. this court recognized a skydome installed on the roof of a building as a fixture. A skydome, which was likened to a window by the court is a finished product which is uniquely suited to be included in the construction of a structure. A finished product such as window, skydome, or elevator is meant for use solely as a fixture, as an improvement to real estate. The individual component parts of these completed products do not have such a sole purpose. It is their purchaser who controls their use.

As we have stated, in McCormick v. Columbus Conveyor Co., the supreme court’s most recent decision concerning the Statute of Repose, the court was asked to consider the applicability of this provision to the designer and manufacturer of a coal delivery system. The court ruled that the statute was applicable since the defendant was “engaged in the design of an improvement to real property.” Id. 564 A.2d 911. In reaching this determination, the court remarked:

It is abundantly clear from the record that Columbus did more than supply a standard piece of equipment, indistinguishable from any other it mass-produced, that by chance became affixed to the University’s property. Using specification and a general layout provided by Rust Engineering, Columbus devised a coal delivery system to be integrated into the construction of the new power plant that was uniquely suited to that site.

This passage calls attention to the distinction between products which are produced for incorporation into a finished product and the finished product itself which is designed to be included as a fixture or improvement in real estate. The individuals who provide these two distinct services can often be labeled as suppliers and builders. The McCormick court noted that in Freezer Storage Inc. v. Armstrong Cork Co., it examined an argument that the statute distinguished between these two groups. Therein, the court accepted arguendo that the statute applied to builders but not suppliers and commented that such a distinction would be rationally based on real differences. The court noted that suppliers produce items in large quantities and can maintain quality control standards in the controlled environment of a factory. However, the only test available to a builder is one conducted over the years following construction. Thus, while the court did not decide whether suppliers could be entitled to the protection of the statute it did provide sound rationale for the ruling we make today.

The manufacturer of plywood, a building material with many distinct purposes, only one of which is to be used as a component in the construction of an improvement on real estate, is not entitled to the protection of the statute of repose. Merely because the purchaser of this product incorporated it into the design of a structure, should provide no insulation to its manufacturer who must make its product safe for this and all other potential uses. For these reasons we conclude that Summary Judgment was improperly entered in favor of Appellees.

Summary Judgment vacated. Case remanded for further proceedings. Jurisdiction relinquished.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    578 A.2d 445
    Edward L. SOLOSKI, Appellee, v. William HETRICK, President, I.P. Shumaker, Inc., Dennis Reddinger, Majority Stockholder, I.P. Shumaker, Inc., and I.P. Shumaker, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued May 2, 1990.
    Filed July 19, 1990.

      Jeffrey Gordon, Washington, D.C., for appellants.
    Alberta Rae Beardsley, Kittanning, for appellee.
    Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Armstrong County validating 500 shares of common stock issued to the plaintiff (Edward L. Soloski) by I.P. Shumaker, Inc., one of the three named defendants/appellants in the case at bar. We affirm.

The instant suit was commenced by the filing of an Action For Declaratory Judgment by the plaintiff. Therein, he alleged that the majority stockholder of I.P. Shumaker, Inc., Dennis Reddinger, directed him to issue 10,000 shares of the corporation’s stock in the following manner: 9,000 to Reddinger, 500 to William Hetrick and 500 to the plaintiff. All three stock certificates were signed by Hetrick and the plaintiff as president and secretary, respectively, of the corporation. Thereafter, the plaintiff recounted how and when Reddinger exhibited interest in purchasing his stock, but, on reconsideration, concluded that the plaintiff’s minority interest rendered the stock worthless and not subject to being purchased.

After a shareholders’ meeting, wherein the plaintiff demanded that I.P. Shumaker, Inc. be paid interest and royalties due it under an Asset Purchase Agreement (executed by some of Reddinger’s other companies so as to justify the declaration of a dividend), the defendants disputed the plaintiff’s shareholder status. A hearing was conducted to resolve the impasse.

The following information was adduced at the February 23 & 24, 1989, hearing; to-wit: The plaintiff was a certified public accountant under the employ of Reddinger, the principal stockholder in the various family-owned businesses, some of which included Reddinger Coal Co., Terry Coal Sales, Inc., Terry R. Reddinger, Inc. and The Joy Co.—the first two dealt with mining, the third with trucking and the last had assets in real estate and personalty.

One of the plaintiff’s many duties included that of “controller” for Reddinger’s enterprises. Also, he kept Reddinger abreast of “everything” so that he was privy to what had happened and what was going to occur in the business. The plaintiff also aided Reddinger in negotiations leading to new acquisitions. For example, the plaintiff assisted in the formation of I.P. Shumaker, Inc. This commenced early in 1980 when Reddinger learned that Ernest C. Dean Contractors, Inc. had filed for bankruptcy in the Western District of Pennsylvania. Reddinger, in the company of the plaintiff, attended the bankrupt’s meetings in Pittsburgh and submitted a bid for Dean’s coal reserves. During the “very complex” negotiations which culminated on August 20, 1980, with the purchase of the reserves for approximately 6.5 million dollars, the plaintiff was the “spokesperson” along with Reddinger. Only after a tentative purchase agreement had been negotiated was an attorney for Reddinger called to scrutinize the closing agreements.

The Asset Purchase Agreement, between Terry Coal Sales, Inc., Reddinger Coal Co. and Kittanning-Freeport Co., collectively, and the bankruptcy trustee, contained provisions whereby royalty payments had to be made to I.P. Shumaker, Inc. This was to occur because Terry Coal Sales, Inc. and Reddinger Coal Co. were production companies and would be extracting the coal from the reserves. Consequently, they would have to pay monies to I.P. Shumaker, Inc., which acted as a holding company. The creditor required that such royalty payments be made to protect its interest (collateral in I.P. Shumaker, Inc). Additionally, the plaintiff and Reddinger were able to acquire $500,000 in working capital to start the business, and no cash-down payment was required in the purchase of the Dean coal reserves. As a result, on the drive back from Pittsburgh, according to the plaintiff, Reddinger stated:

... I really appreciate this and ... because of your efforts I want you to have five percent of the stock in I.P. Shumaker as a reward for your efforts.

This surprised the plaintiff. Then, Reddinger went on to say that he wanted 5% of the company to go to William Hetrick, his brother-in-law, “who ha[d] been [his] long time foreman and assistant. Without the two ..., [Reddinger didn’t] believe the companies would be in existence today.”

To effectuate Reddinger’s intention, and at his direction, the plaintiff prepared three stock certificates listing Reddinger as owning 9,000 shares. Hetrick was assigned 500 shares and he allotted himself 500 shares. Also, at Reddinger’s insistence, the plaintiff signed the three certificates as “secretary” of the corporation. Hetrick appeared at the plaintiff’s office thereafter and indicated he was there at Reddinger’s urging to sign the same certificates as “president” of I.P. Shumaker, Inc.

Although I.P. Shumaker, Inc. was formed on August 27, 1980, so as to coincide with the signing of the Asset Purchase Agreement on August 28th of the same year, none of the documents was filed until sometime during the month of October and back-dated. In other words, no actual (organizational or shareholders) meeting was ever held. This, as testified to by the plaintiff, was the “normal” practice of the Reddinger corporations. The minutes for all the Reddinger companies were referred to as “canned”, i.e., they would be prepared as time would permit ... sometimes 3 to 5 years later. The dates would be penciled in. The secretary would type them and update the information and present the minutes to the officers for signing. “This is ... or was the practice in all of the Reddinger companies”, so stated the plaintiff. This was not disputed by Reddinger.

Once the plaintiff’s tenure with Reddinger came to an end, he took his stock certificate with him. Thereafter, the plaintiff communicated with Reddinger that he wanted the annual financial statements of I.P. Shumaker, Inc. and notice of any shareholder meeting. Once the plaintiff was informed of the proposed shareholder meeting, he appeared and contended that various bookkeeping entries were in error since no royalties had been forthcoming to I.P. Shumaker, Inc. from the companies named in the Asset Purchase Agreement. Had such royalty payments been made, the plaintiff believed that dividends should/would have been declared to the stockholders.

Reddinger, upon his review of the corporate books, notified the plaintiff that the 500 shares of stock issued to him were invalid since they were not authorized over the signature of the president and secretary of I.P. Shumaker, Inc. as reflected in the organizational minutes and first meeting of the board of directors. Accordingly, the plaintiffs request to have his shares purchased at a price of $500,000 was rejected since they were “worthless” as having been improperly issued and executed by officers not listed on the books of the corporation.

The court below, after taking testimony and finding there to be a conflict in the versions of what transpired, concluded that the evidence before it justified holding that the shares in the possession of the plaintiff were issued in accordance with the corporation’s normal course of doing business. It discounted Reddinger’s and Hetrick’s account that neither ever directed the plaintiff to execute the certificate in question and entered a decree nisi legitimatizing plaintiff’s 500 shares. After the submission of proposed conclusions of law and findings of fact, in addition to briefs in support of the parties’ respective positions, the court entered an order making its decree final and ruling in favor of the plaintiff. The defendants below have perfected an appeal to this Court challenging the action of the court below. They do so in the form of two issues, the first of which is framed by the appellants thus:

I. Whether Plaintiff’s representations to third parties that corporation was solely owned by Plaintiff’s employer would estop Plaintiff from asserting shareholder status?

The defendants elaborate further in their brief to us at page 7 that the plaintiff made representations and issued financial statements to third parties, e.g., Timothy J. Cox, Vice-President of Commercial Lending, Union National Bank of Pittsburgh; Getty Oil Co.; Douglas Bell (Insurance Agency); and numerous potential investors of the Reddinger enterprises that Reddinger was 100% owner of I.P. Shumaker, Inc.

By these alleged “representations”, the defendants contend, the plaintiff caused third parties to rely “on these statements to their detriment.” Therefore, the defendants would have us hold that the plaintiff is precluded by the doctrine of equitable estoppel from denying his “representations” that Reddinger was 100% owner of I.P. Shumaker, Inc. We find this argument to be specious.

On the doctrine of equitable estoppel this Court had occasion to expound in Thatcher’s Drugs of West Goshen, Inc. v. Consolidated Supermarkets, Inc., 391 Pa.Super. 524, 571 A.2d 490 (1990). We wrote, in relevant part, that:

It must be remembered that the doctrine’s objective is to prevent the perpetuation of an injustice upon one claiming its benefits.
******
... a party by whose encouragement expenditures have been made [or forbearance had] to such extent as are not capable of reimbursement except by enjoyment, will be enjoined from disturbing possession. Equity estops him because he would wrong the other party by withdrawing his consent[.] There is no higher morality than is contained in the equitable principle that where between two innocent parties a loss occurs, it is to be borne by him whose act occasioned it. The morality of the rule which throws the loss upon him who occasions it, is certainly much less questionable where it results from bad faith or fraud.

391 Pa.Super. at 534, 571 A.2d at 495 (Citations omitted).

Although no contractual privity has to exist between parties in order to bring into play the doctrine of equitable estoppel, id., we cannot endorse the use of the doctrine by one who claims that “third parties had relied” to their detriment upon (mis)statements made by another, especially where such third parties are not even parties to the suit in which the doctrine has been invoked. It is as if the defendants are attempting to secure the benefits of the doctrine “vicariously’’ through the purported wrong/detriment incurred by someone not a party to a suit brought for reasons other than to right the wrong/detriment attributed to the grievant against “third parties”. We will not and cannot extend the doctrine to such boundaries since it was not intended to give such relief.

The aggrieved parties, if such exist, would be those made reference to by the defendants. As a consequence, it is not the defendant’s place to assert a claim of injury/wrongdoing aimed at those persona who have not seen fit to act on their own behalf as intervenors in the suit. See Pa.R.Civ.P. 2327 & 2328. Suffice it to say, the doctrine of equitable estoppel is not a vehicle by which those seeking its benefits can do so via others not even seeking its implementation. The equitable principle comes into play where a loss occurs between two innocent parties to a suit. Id. As a result, the defendants’ failure to cite any authority justifying the use of the doctrine of equitable estoppel in its case must result in the denial of equitable relief.

The last issue posed for our consideration is recited by the defendants thus:

II. Whether the Lower Court erred in upholding Plaintiffs claim of Stockholder status based on a stock certificáte which was improperly executed and not purchased for value?

The defendants are of the belief that issuance of the 500 shares of stock to the plaintiff, over his signature as secretary and William Hetrick as president, was void ab initio for non-compliance with Section 607(B) of the Business Corporation Law, 15 P.S. § 1607(B), and the by-laws of I.P. Shumaker, Inc., both of which require that stock certificates be signed by the president and secretary of the corporation.

Because the organizational minutes of I.P. Shumaker, Inc. list Reddinger as the president and Joseph Soloski (the plaintiffs son, who used to be employed by Reddinger) as secretary as of the time of the corporation’s inception in August of 1980, it is the defendants’ position that the plaintiff’s stock certificate is invalid as not adhering to the “signature-requirements” of the by-laws of I.P. Shumaker, Inc. and Pennsylvania’s Business Corporation Law. Further, even the corporation’s registry did not list the plaintiff as owning or being issued any stock. And lastly, to buttress their argument of non-ownership, the defendants point to Pennsylvania’s Uniform Commercial Code, 13 Pa.C.S. § 8205, which reads that:

An unauthorized signature placed on a security prior to or in the course of issuance is ineffective except that the signature is effective in favor of a purchase for value and without notice of the lack of authority.

The defendants assert that, because the plaintiff admitted that he was not the authorized secretary and Hetrick was not the president of the corporation at the time each signed the certificate at issue, the plaintiff “would not qualify as a purchaser for value without notice under the U.C.C. requirements.” See Defendants’ Appellate Brief at page 13 (Emphasis in original).

In finding the defendants’ contentions flawed, we look to our Supreme Court’s ruling in Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978), wherein the wife-appellant was seeking, inter alia, to recover certain shares of stock in two corporations (# 1 and # 2). The Chancellor, after a hearing, found that the appellant was not a shareholder in either corporation. On appeal from the Superior Court’s affirmance of the Chancellor’s final decree, the Supreme Court took exception to the determination of the Chancellor and reversed.

The Ashley Court found that the facts established that the husband-appellee had made a valid inter-vivos gift of the shares of stock in corporation # 1. In the course of making its decision, the Court recounted that stock certificates were prepared and signed by the secretary (appellant) of corporation # 1 whose stock was to be purchased by the appellant and the appellee. The certificates were receipted in corporation # 1’s stock certificate registry book, but they were not signed by the president (appellee) of corporation # 1 as required by its by-laws and the Business Corporation Law, 15 P.S. § 1607(B). This was so even though consideration for the subscription offer was provided by corporation # 2 with the transfer of assets to corporation # 1. The certificates were placed in the offices of corporation # 2 by the appellant.

After suit had been instituted by the wife-appellant, the husband-appellee authorized the accountant to mark “void and not issued” on the receipt stubs of corporation # 1’s stock registry book those stock certificates (# 1 and # 2) indicating that the appellant and appellee each owned 50 shares of corporation # 1’s stock. At this same time, the appellee’s accountant filled in a stock certificate # 3 to indicate that corporation # 2 owned 100 shares of corporation # 1 stock. This third certificate was back-dated pursuant to the appellee’s direction.

In addition to the Supreme Court’s conclusion that the husband-appellee’s testimony evidenced the required “donative intent” to make a gift of the 50 shares of stock in corporation # 1 to his wife, the element of “delivery” of the stock had been established “regardless of whether there ha[d] been an actual transfer on the books of the corporation (even when the corporation’s by-laws ma[d]e the certificates transferable only upon the books of the corporation)”, and even though delivery of the certificates was made without endorsement as required by the then existing Uniform Stock Transfer Act. 482 Pa. at 234, 393 A.2d at 639 (Citations omitted).

It was the Ashley Court’s finding that validation of stock certificates could be accomplished despite non-compliance with the rigors of by-laws or corporate statutes that elaborated on this issue. The Court’s manner of its exposition is informative, viz.:
The Uniform Stock Transfer Act has been replaced by Article 8 of the Uniform Commercial Code. Section 8-307 states that
“[w]here a security in registered form has been delivered to a purchaser without a necessary endorsement he may become a bona fide purchaser only as of the time the endorsement is supplied, but against the transferor the transfer is complete upon delivery and the purchaser has a specifically enforceable right to have any necessary endorsement supplied.” (Emphasis added.)
* * * * * *
“... The clearest form of a delivery of a gift of corporate shares is registration of the shares in the name of the company coupled with physical delivery to the donee of stock certificates in the name of the donee representing the shares so registered. But less formal modes of delivery have also been held to be sufficient.” (citations omitted) (emphasis added.)
* * * * * *
This conclusion [that the Chancellor erred when he determined that the formal requirements of the Business Corporation Law had not been complied with] is further supported by the language of the Business Corporation Law itself. Article VI, Section 607 (15 P.S. § 1607) outlines, among other things, the information required to be contained on the stock certificate. That section states that “[t]he shares of a corporation shall be represented by share certificates.” (emphasis added). These certificates are required by the Act to state that the corporation is organized under the laws of Pennsylvania, and to state the name of the holder of the shares, the number of shares represented by the certificate, and the par value, if any, of each share represented. If the corporation is authorized to issue shares of more than one class, the certificate is required to alert the shareholder of that fact and provision must be made to assure that the shareholder knows the relative rights of the shares of each class. The Act also provides that every certificate is to be signed by the president and secretary (or other authorized officers) and sealed with the corporate seal. Clearly, the purpose of § 607’s requirements is to protect the purchaser of corporate stock, and to fully inform that purchaser of certain information deemed pertinent by the legislature. A corporation’s failure to comply with Section 607's requirements was not intended to protect it in an action brought by a shareholder. In fact, Section 610 of Article VI (15 P.S. § 1610), states
“[t]he fact that shares are issued in violation of, or without full compliance with, the provisions of this act shall not make the shares so issued invalid.”
* * * * * *
The chancellor thus clearly erred in concluding that [corporation # 1’s] failure to fully comply with the provisions of the Business Corporation Law at the time its stock certificates Number 1 and Number 2 were purportedly issued invalidated the gift to appellant.

482 Pa. at 235-37, 393 A.2d at 639-40, 641 (Citation omitted).

At the outset, we note that shareholder status is particularly difficult to determine because of the lax method employed by Reddinger in administering I.P. Shumaker, Inc., which is consistent with the approach taken by the appellant with regard to his other corporate entities. For instance, it was not uncommon for Reddinger to back-date corporate minutes and not list in the corporate registry owners of corporate stock, the latter of which is exemplified not only by the case at bar but also with respect to the Reddinger Coal Co. Also, it was “normal” practice for the Reddinger enterprises to dispense with organizational minutes and shareholder meetings. This fact is consistent with the plaintiffs account that, when the issuance of the stock certificates was to take place, they were back-dated to a period prior to the Asset Purchase Agreement on August 28, 1980. See Plaintiffs Exhibits Nos. 5-7. And, when this was to have transpired, Reddinger informed the plaintiff that:

... when you issue these certificates I don’t want to be president. You have Bill [Hetrick] sign as president, you sign them as secretary____

Once Hetrick came to the plaintiff’s office, at the insistence of Reddinger, to affix his signature on the stock certificates as president, the plaintiff recorded their issuance on the stubs of the stock certificate book by number, date, amount of shares and to whom they were issued. See Defendants’ Exhibit No. 7. However, the plaintiff testified that he did not fill out the stock registry because “in the Reddinger operation it was so informal that the stock registry was not filled out in any of the corporations”; this included I.P. Shumaker, Inc. Further proof of this “informality” of record is evidence that for years 1980, 1981 and 1982, the plaintiff filed “U.S. Corporation Income Tax Return” (Form 1120) and signed each as “treasurer” of I.P. Shumaker, Inc. See Plaintiff’s Exhibits Nos. 8-10. To the same effect see Plaintiff’s Exhibits No. 2 (I.P. Shumaker, Inc.’s 1980 Registry Statement with the Commonwealth) and No. 11 (Pennsylvania Department of Revenue, Corporate Tax Reports, 1982). This all occurred even though the plaintiff was not listed in the organizational minutes of I.P. Shumaker, Inc. as an officer of the corporation. See Plaintiff’s Exhibits Nos. 3 & 4. Nor was Reddinger featured in the registry of Terry Coal Sales, Inc. as owning stock therein despite the fact that he was the sole stockholder. Yet Reddinger considered himself a shareholder of Terry Coal Sales, Inc. In this same vein, Hetrick was never informed that he was an officer in Terry Coal Sales, Inc. (vice-president)—this appears on record at a special meeting of stockholders, paragraph 2. Also, Hetrick was unaware that he was a member of the board of directors of Reddinger Coal Co. See Trial Transcript at pages 229-230.

From our scrutiny of the entire record, we hold that the corporation’s failure to comply with Section 607 of the Business Corporation Law was not intended to insulate the entity in an action brought by a shareholder. See Ashley, supra. As for the claimed absence of “consideration” by the plaintiff for the 500 shares of I.P. Shumaker, Inc. stock, there is testimony by the plaintiff to the effect that:

At the time the stock was issued, a single entry was made as a receivable from Dennis Reddinger, Bill Hetrick and Ed Soloski for ten thousand dollars on the one side and then the credit entry for stock issuance on the other side. Subsequently, Dennisf] nine[-]thousand dollars receivable was offset against his receivable-payable account that he had in the company wise [sic] with all of his companies. No cash on his part exchanged hand[s], but the validity of the receivable-payable entry was made and the thousand dollars, five hundred each for Bill and I was subsequently written off by way of [an] expense check.

On cross-examination, the plaintiff testified that I.P. Shumaker, Inc. had a credit issued to him, and he converted this to stock-purchase-value, i.e., the plaintiff never made a direct payment of cash, only an “indirect” cash payment. The credit was paid by Reddinger Coal Co. “through an intercompany entry.” See Trial Transcript at page 78.

This Court generally will not engage in an inquiry as to the adequacy of the exchange of shares for services rendered, and we decline to do so here. See Krosnar v. Schmidt, Krosnar, McNaughton, 282 Pa.Super. 526, 537, 423 A.2d 370, 375 (1980). The transfer being supported by proper consideration, the Chancellor’s conclusion that the plaintiff became a shareholder is supported by the evidence. Id.; see note 8, supra. This also disposes of the defendants’ argument that U.C.C. Section 8205’s requirement that an unauthorized signature is effective where shares are “purchased for value and without notice of the lack of authority”, the second prong of which is satisfied as well by the power given to plaintiff by Reddinger to act as secretary in the execution of the shares in question. This matter required a weighing of the credibility of differing versions of the conversation giving birth to the plaintiff’s authority to act. Because, as is obvious, the Chancellor credited the plaintiff’s statements, and since he was in a superior position to make that determination, we are bound by it. Id.

We affirm the decree of the Chancellor validating the 500 shares of the plaintiff in I.P. Shumaker, Inc.

Order affirmed.

      . The other party-defendants include William Hetrick, president of I.P. Shumaker, Inc. and Dennis Reddinger, majority stockholder of I.P. Shumaker, Inc.

      . See 42 Pa.C.S. § 7531 et seq.

      . The plaintiff was paid a salary by Terry Coal Sales, Inc. and a fee from the remaining corporations.

      . In 1979, Kittanning-Freeport Coal Co. was acquired by Dennis and brought into the Reddinger fold. The plaintiff was assigned the responsibility of handling the new company’s bookkeeping, and, to compensate him for the added work, he was paid an additional §23,000, boosting his salary to §80,000 a year at one point.

      . Terry Coal Sales, Inc. made the formal offer to the bank-creditor and the bankruptcy court. After the offer was accepted, the surface rights were deeded to Terry Coal Sales, Inc. (controlled 100% by Reddinger), while the mineral reserves were deeded to the about-to-be-formed I.P. Shumaker, Inc. This incorporation was to take place to appease the bank-creditor, who wanted a separate entity to whom it could look as a form of collateral.

      . Nowhere do the defendants state in specific terms how and when these "third parties” sustained a wrong that warrants vindication through and spills over to divest the plaintiff of shareholder status in I.P. Shumaker, Inc.
      As to the financial statements issued by the plaintiff, he admitted at trial that he did so at the "direction” of Reddinger and never made any affirmations as to the truth and accuracy of the contents thereof.
      As to whether the "statements’Yletters sent by the plaintiff, at the behest of Reddinger, reflective of the financial and stockholder status of I.P. Shumaker, Inc. can be considered an "admission against interest", we leave it to the trial court to assign a value to such information, i.e., it could accept all, part or none of its contents as favorable to the defendants or against the plaintiff. Given the trier-of-fact’s ultimate ruling, whatever value, if any, was attributed to the "statements’Yletters, it was not sufficient to overcome the proof of Reddinger’s authorization to the plaintiff to issue and execute the 500-share certificate and the subsequent acts of Reddinger evidencing an approbation of the plaintiffs status as a shareholder—invitation to shareholder meeting, being provided with a financial statement of corporation and meeting with the plaintiff to hear his proposed selling price of his-shares to Reddinger. We see no reason to alter that decision.

      . Once the plaintiff left Reddinger’s employ on September 30, 1984, the forms just mentioned were filed by an independent accounting firm.

      . The Chancellor’s holding that payment for the 500 shares was accomplished through the plaintiff’s efforts in closing the Dean coal reserves’ deal does not alter our conclusion. Either remuneration is adequate to sustain the exchange of something for value for the shares in question. As an appellate court, we are permitted to affirm the actions of the court below for reasons (supported in the record) other than those proffered by the initial court hearing the matter.


author: JOHNSON, Judge:

text:
    578 A.2d 453
    Margaret T. TARTER and William J. Tarter, Husband and Wife, Appellants, v. Jay G. LINN, Jr., M.D.
    Superior Court of Pennsylvania.
    Argued May 8, 1990.
    Filed July 18, 1990.
    Reargument Denied Aug. 8, 1990.

      William J. Tarter, Pittsburgh, for appellants.
    David H. Trushel, Pittsburgh, for appellee.
    Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

      Judge Del Sole recused himself from this case.

   JOHNSON, Judge:

Margaret Tarter and William J. Tarter, her husband, brought this medical malpractice action against Dr. Jay G. Linn, an ophthalmologist. Approximately three months after Dr. Linn prescribed the drug Diamox to treat Margaret Tarter’s glaucoma, she was diagnosed as having aplastic anemia, an irreversible disorder that inhibits the bone marrow’s production of blood components. The Tarters’ complaint alleged that Dr. Linn was negligent because he failed to warn Margaret Tarter that a rare incidence of aplastic anemia resulted from Diamox treatment. A jury found for Dr. Linn. On appeal the Tarters asked this Court to expand the informed consent doctrine, which applies only to surgical procedures, to cover treatment by therapeutic drugs. We certified this case for en banc consideration of this precise issue.

Unfortunately, whether the law of informed consent should apply to this case was never an issue at the trial level. Therefore, the Tarters do not and could not allege that the trial court committed any error in a ruling involving informed consent. The Tarters did not raise an informed consent issue in post-trial motions. The issue of whether the law should be changed to allow the law of informed consent to apply to this case is raised for the first time in this appeal. Under these circumstances, fundamental principles of decisional law instruct that this issue is not before us and cannot be decided by this Court. Reilly by Reilly v. SEPTA, 507 Pa. 204, 214-215, 489 A.2d 1291, 1296 (1985).

Our Supreme Court established the doctrine of informed consent in the case of Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Gray teaches that physician and patient have a contractual agreement on the scope and nature of the patient’s care. The doctor has no right to come into contact with the patient’s body except within the terms of the agreement, A surgeon who treats an individual in a manner not agreed upon—not consented to—commits a technical battery and is responsible for the consequences of the tort. The patient does not consciously consent unless he is aware of the risks and possible benefits of the treatment. Based upon these principles, the Gray court held that consent is valid only if the individual grants it after being adequately informed of the dangers to be anticipated. Gray, 423 Pa. at 166, 223 A.2d at 670.

In order to establish liability under informed consent, a plaintiff must show that:

(1) the physician fails.to disclose any risk in the recommended treatment, or the existence of any alternative method of treatment, that a reasonable person would deem material in deciding whether to undergo the recommended treatment; (2) the patient would have forgone the recommended treatment had he or she known of the undisclosed information; and (3) as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed____

Neal by Neal v. Lu, 365 Pa.Super. 464, 478, 530 A.2d 103, 111 (1987). Although the battery rationale expressed in Gray has recently been challenged, see Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989), it is still the law in this Commonwealth. Our courts have expressly held, relying upon the Gray rationale, that informed consent does not apply to cases involving therapy by administration of drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985), appeal denied 1986; Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980).

By contrast, a plaintiff who brings a medical malpractice case in negligence must prove that the act or omission of the physician fell below the standard of care owed the patient. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980). This standard must be established by expert testimony. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989). The specialist is held to a higher standard of skill, which is determined by other practitioners in his specialty, Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982), and is based upon the practice at the time of the alleged malpractice. See Incollingo v. Ewing, 444 Pa. 263, 444 Pa. 299, 282 A.2d 206 (1971).

Under the negligence standard upon which the Tarters proceeded at trial, they were required to prove that Dr. Linn’s conduct in refraining from telling Margaret Tarter of the risk of aplastic anemia when he prescribed the Diamox fell below the standard of care as established by expert testimony at trial. If the Tarters had proceeded under informed consent, they would have had to prove that a reasonable person in Margaret Tarter’s place would want to know of the risk and that Margaret Tarter would have refused the Diamox treatment had she known of the risk.

The Tarters instituted this lawsuit against Dr. Linn on August 25, 1985. The complaint alleged as follows:

8. The injuries to Wife-Plaintiff and the damages to Plaintiffs, as more fully set forth below, were directly and proximately caused by the carelessness and negligence of the Defendant, generally, and in the following particulars:
(a) in that Defendant negligently misdiagnosed and rendered a delayed diagnosis of Wife-Plaintiff’s chronic angle closure glaucoma and, due to the failure to recognize the conversion of her primary open angle glaucoma into a chronic narrow angle glaucoma Wife-Plaintiff’s condition deteriorated to the point where laser iridotomy became ineffective in reopening the angle and laser trabeculectomy was rendered impossible. As a result of said negligent misdiagnosis and delayed diagnosis, a condition evolved which prompted Defendant to prescribe the drug Diamox;
(b) in that the Defendant negligently failed to advise Wife-Plaintiff of surgical trabeculectomy as an alternative to Diamox;
(c) in that the Defendant negligently failed to warn Wife-Plaintiff of any adverse reactions associated with the ingestion of Diamox including, but not limited to aplastic anemia;
(d) in that the Defendant failed to monitor Wife-Plaintiff’s condition for detection of reactions associated with the sulfonamide derivative, which monitoring could or would have prevented the development of aplastic anemia;
(e) in that the Defendant negligently failed to obtain baseline CBC and platelet counts prior to initiating Diamox therapy and in negligently failing to do so at regular interval during the time Wife-Plaintiff was prescribed therapy;
(f) in that the Defendant negligently failed to perform or recommend to Wife-Plaintiff the alternative of iridotomy prior to prescribing Diamox therapy;
(g) in that the Defendant knew that Wife-Plaintiff was suffering from certain side effects associated with ingestion of Diamox and negligently failed to discontinue said drug or negligently failed to procure additional work-up on Wife-Plaintiff to determine the advisability of continuing said therapy in view of said adverse reactions;
(h) in that the Defendant was negligent in allowing Wife-Plaintiff’s ocular condition to deteriorate to the point where Diamox therapy became an alternative, and;
(i) in that the Defendant negligently failed to timely refer Wife-Plaintiff to a consultant or other physicians who may have been capable of adequately monitoring Wife-Plaintiff’s care and treatment both before prescribing Diamox and thereafter to monitor her reaction to the Diamox therapy initiated by Defendant.

Emphasis supplied. Despite the “failed to warn” language in part (c) above, it would be difficult, although possible, to argue that the complaint successfully pleads an informed consent cause of action.

However, counsel for the Tarters did not develop this possibility of making informed consent an issue; to the contrary, he expressly precluded it at trial. The following overview of the evidence presented and of the instances in which informed consent was discussed by counsel and the court will demonstrate this point. Dr. Linn testified that he prescribed Diamox for Margaret Tarter’s glaucoma on September 20, 1983 and that at that time he explained the following side effects of the drug: tingling in the fingers and toes, frequency of urination, mild diarrhea and loss of potassium. These conditions are not symptomatic of underlying disorder. N.T., June 7-8, 1988 at 343-345. Dr. Linn instructed Tarter to return to his office frequently for monitoring the treatment’s progress and the Diamox side effects. Dr. Linn testified that he knew of the rare incidence of aplastic anemia associated with Diamox. The expert testimony varied on the statistical incidence, placing it between two or three per five-hundred thousand to one in a million.

Dr. Linn testified that he decided not to tell Tarter of this possible complication because the information may have caused her to decide not to take Diamox. N.T., June 7-8, 1988 at 345-346. While there was some conflicting testimony on the standard of care, Dr. Linn’s experts testified that the standard of care at the time of treatment was not to inform the patient of this risk. Throughout trial, the court properly sustained objections to the attempts of Tarter’s counsel to establish the standard of care by introducing information on Diamox appearing in the Physician’s Desk Reference. See N.T., June 1, 2 and 6, 1988 at 216. The Physician’s Desk Reference, prepared with information provided by drug manufacturers, contains discussions of possible adverse reactions to the drugs catalogued.

Tarter testified that on her November 14, 1983 visit to Dr. Linn she told him that she had bruises without apparent cause. N.T., June 1, 2 and 6 at 106. Bruising is not a side-effect of Diamox as are the above-mentioned signs but rather is a symptom of aplastic anemia. However, Dr. Linn testified that Tarter never reported bruising to him. His office records for Tarter's visit that day recorded that Tarter mentioned having the tingling sensations. They made no mention of bruising. Further, in interrogatories she answered in 1985, Tarter stated that she had told Dr. Linn about tingling; her interrogatory answer did not state that she told Dr. Linn about bruising. N.T., June 1, 2 and 6 at 108.

Early in the proceedings, during direct examination of Margaret Tarter, Tarter’s counsel asked, “What, if anything, did you learn about Diamox ... on the day that Dr. Linn prescribed it?” N.T., June 1, 2, 6, 1988 at 44. Defense counsel objected because “informed consent is not part of the drug case, and that’s where we’re heading.” Id. This exchange followed:

THE COURT: ... [Addressing Tarter’s counsel, Mr. Gordon]: you have indicated in chambers that you are proceeding on—
MR. GORDON: Not informed consent.
THE COURT: Then why is this question proper?
MR. GORDON: Well, I can’t try this in a void. I think the issue of what she knew isn’t [sic] going to be important because, as he raised in chambers, she reports it anyway. The whole—I think we’re allowed to talk about everything surrounding the administration of the doctor’s conduct and—
MR. TRUSHEL: You’re not allowed to talk about things that are irrelevant, and the law is very clear that the law of informed consent is not applicable to a physician prescribing a drug.
THE COURT: Well, I’m—
MR. GORDON: You keep saying that, and I agree.
THE COURT: Let’s go beyond that. You have indicated to the Court that you are not proceeding in this case on informed consent theory.
MR. GORDON: Correct.
What our experts are going to testify is that Dr. Linn did not adhere to acceptable standard in medical care and treatment, number one. Prescribed this drug without giving these warnings to the patient and tell her that be on the lookout for these danger signs or signals of these reactions.

N.T., June 1, 2, 6 1988 at 45-46.

Following the close of testimony the court ruled on both parties’ proposed points for charge. Counsel and the court conducted the following discussion:

MR. TRUSHEL: Can I ask a question or a couple of questions. Is the Court going to charge on informed consent?
THE COURT: I’m trying to figure out how to answer that question.
MR. TRUSHEL: I can understand your dilemma.
THE COURT: I find in this case that although he’s not suing on informed consent, there are a number of things that I would charge in an informed consent case that I’m going to charge that—I’m not going to charge that this is a case that involves informed consent.
MR. TRUSHEL: Well, for whatever it’s worth—
THE COURT: You want me to make that any clearer?
MR. TRUSHEL: Well, it’s been my position throughout this case, and in order to be consistent, it is still my position and I believe it that informed consent—and I don’t want to repeat what I said 15 times. Under the law of this Commonwealth it is not applicable to drug cases, and I don’t care whether just because you call a tomato a carrot doesn’t make it a carrot, and Mr. Gordon keeps saying it is not informed consent, it is negligence, and I couldn’t agree more violently.
MR. GORDON: Your Honor, just I agree with what you said, and I agree with when Mr. Trushel said about informed consent not being a part of this case____

N.T., June 7, 8 1988 at 486-488. The court decided to charge the jury by putting the failure to warn factor into the context of a negligence standard. N.T., June 7, 8 at 488-489.

The court charged the jury as follows:

It is also medical malpractice when the physician shows the lack of proper care and skill in the performance of a professional act. You have heard a great deal in this case about what the physician knew about the risks. You have heard a great deal about what was said or what was not said about risks. I want to talk to you a little about that.
A physician is bound to disclose those risks which a reasonable person would consider material in arriving—in considering the conduct that a physician proposes. Now, this does not mean that the doctor is required to give the patient a complete course in anatomy and to explain every risk no matter how remote before he prescribes something. The determination of what a reasonable person would do or consider significant is for the jury to decide.
A physician is not liable if you find that the furnishing of the information in question to the patient would have resulted in some serious adverse effect on the person or in the therapeutic process. It means he tells him so much that a patient would not undertake the medication, he doesn’t have to scare the patient to that extent. A physician does not have to disclose every risk no matter how remote in order to perform his skill as a physician. And that is [sic] what should be disclosed is a matter for the jury.

N.T., June 7, 8 1989 at 541-542. We reject Dr. Linn’s suggestion to this Court that the jury was actually charged on informed consent because language in the second paragraph quoted above suggests the informed consent standard. The charge when read as a whole instructs on negligence only. Neither party objected to the charge as given, which substantially corresponded to what the court told counsel that it would charge in the review of points for charge, part of which was reproduced above.

On June 9, 1988, the jury returned a general verdict for Dr. Linn. Subsequently, Tarter filed a motion for post-trial relief alleging numerous errors, none of which included any of the three issues presented to this Court on appeal. In addition to the informed consent issue, Tarter claims on appeal that the trial court demonstrated bias and that the verdict was against the weight of the evidence. None of these issues are properly preserved; they were neither raised at trial nor raised in post-trial motions. Issues not preserved for appellate review cannot be considered by an appellate court. Reilly by Reilly v. SEPTA, supra. Nevertheless, a thorough review of the record belies a claim that the verdict shocks the conscience, Hreha v. Benscoter, 381 Pa.Super. 556, 554 A.2d 525 (1989), cross-appeals denied, 524 Pa. 608, 569 A.2d 1367 and 524 Pa. 621, 571 A.2d 383 (1989), or that the Honorable Maurice Louik conducted this trial in any but an exemplary manner.

There is no dispute that Margaret Tarter has sustained serious damage to her health and lifestyle, and that this damage is a result of the drug Diamox. We may not create a new cause of action, however, when no foundation for our doing so had been developed and preserved at trial. By this opinion, we do not seek to give any indication of how we may view this proposed theory of liability. This court will pronounce upon the viability of such a cause of action only when the question comes squarely before it. Hence, we affirm the judgment entered on May 2, 1989.

Judgment affirmed.


author: HESTER, Judge:

text:
    578 A.2d 459
    David L. GRAHAM, Appellant, v. Judy A. GRAHAM.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed July 19, 1990.

      George M. Lynch, Latrobe, for appellant.
    James T. Farrell, McKeesport, for appellee.
    Before FORD ELLIOTT, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

David L. Graham (“husband”) appeals from the January 9, 1990 divorce decree entered by the Court of Common Pleas of Westmoreland County. The decree granted appellant’s divorce from Judy A. Graham (“wife”) and ordered equitable distribution of the marital property. Husband contends that the trial court improperly attempted to attach his pension by providing for a Qualified Domestic Relations Order (“QDRO”) to divide his Pennsylvania State Employees Retirement Plan, or an alternative of an immediate award to wife of $51,915.70, representing 40.17% of the current value of his pension benefits in the event the state refused to honor the QDRO. Husband does not contest that part of his pension is marital property, but asserts that the pension may not be attached and implicitly argues that the court erred by distributing the pension in the alternative through an immediate award to the wife.

The record reveals that the parties married June 4, 1966, and separated November 30, 1985. Husband was a public school teacher for many years but elected to take voluntary sabbatical leave for a year following the separation and moved to eastern Pennsylvania. Wife worked intermittently during the marriage and currently is employed part-time by the Westmoreland County Motor Club. The parties have one minor daughter who has emotional and medical problems. The marital home, other real estate, and pension are the only substantial assets of the parties.

Husband raises the sole argument that the trial court improperly awarded wife an interest in his pension. Husband concedes that a portion of the pension is marital property, 23 P.S. 401(e), but argues that provisions in the act governing retirement for school employees preclude attachment. He cites 24 Pa.C.S. § 8533 for the proposition that his pension may not be attached and presumably asserts that an offset should be made elsewhere.

In support of his argument, husband contends that the legislature’s intent was clear in its all-inclusive statement in 24 Pa.C.S. § 8533 that the pensions are “exempt from levy and sale, garnishment, attachment or any other process whatsoever.” Husband contends that 24 Pa.C.S. § 8533 was amended on October 5, 1980, six months after passage of the Divorce Code on April 2, 1980, without modification of the quoted language. Husband consequently argues that consistent with principles of statutory interpretation, the later and more specific legislative statement set forth in 24 Pa.C.S. § 8533 should control and prevent any attachment of his pension. See 1 Pa.C.S. § 1921(b) and (c). We note that the provisions of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq, as amended by the Retirement Equity Act of 1984 (“REA”), 29 U.S.C. § 1056 (Supp. III 1985), do not apply since a state pension is involved.

Husband also distinguishes an earlier supreme court case on this issue, Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985), by contending the reasoning used by the majority in that case is inapplicable. He asserts that the ambiguity and full faith and credit issues relied upon by the majority in Young do not apply to this case. In Young v. Young, supra, our supreme court reversed a decision by this court denying attachment of a police pension pursuant to a decree of equitable distribution. Young v. Young, 320 Pa.Super. 269, 467 A.2d 33 (1983) (principles of legislative interpretation require that the legislature meant to exempt state and municipal pensions from attachment, even in divorce cases). Justice Larsen, speaking for the majority in reversing, relied upon the statutory principle that the legislature would avoid an unreasonable result in favoring public convenience over private vital interests and would seek to promote justice. The majority also based their reasoning on ambiguities that they perceived in the language used by the legislature which husband contends is not present in the statutes at issue in this case.

We find husband’s argument to be without merit. First, the Divorce Code subsequently was amended on February 12, 1988, after enactment of 24 Pa.C.S. § 8533. 23 P.S. § 401 was inserted, including subsection (k), governing remedies for failure to comply with an order of equitable distribution. It provides in pertinent part:

(k) If, at any time, a party has failed to comply with an order of equitable distribution, as provided for in this section ... after hearing, the court may, in addition to any other remedy available under this act, in order to effect compliance with its order:
1) enter judgment;
2) authorize the taking and seizure of the goods and chattels and collection of the rents and profits of the real and personal, tangible and intangible property of the party;
3) award interest on unpaid installments;
4) order and direct the transfer or sale of any property required in order to comply with the court’s order;
5) require security to insure future payments in compliance with the court’s order[.]

(Emphasis added).

We conclude that this is a clear subsequent expression of intent by the legislature directly contrary to the position and interpretation advocated by husband. Even though it addresses enforcement rather than entry of orders for equitable distribution, 23 P.S. § 401 contemplates attachment of pensions.

Second, we determine that the resolution of the issue raised by husband is indeed dictated by the supreme court’s holding in Young v. Young, supra. The supreme court set forth two reasons why it did not perceive the legislature as intending to exclude state or municipal pensions from equitable distribution. The court stated:

[First], “Retirement funds ... are created for the protection of not only the employee, but for the protection of his family as well. Hence, the provisions exempting assignments and attachments contained therein are to relieve the person exempted from the pressure of claims that are hostile to his and to his ’dependents’ essential needs”, citing Fowler v. Fowler, 116 N.H. 446, 362 A.2d 204, 205, 93 A.L.R.3d 705 (1976).
[Second], we note that a family loses its ability to spend a portion of its income when that income is deferred and placed in a pension. It would be terribly unfair to read an exemption statute, which was created to protect a pension for the benefit of a retired employee’s family, in such a way that the exemption would bar children or a former spouse from receiving support from the very fund created for their benefit, and would once again deny them the benefits of the income they sacrificed to a pension years before.

Id., 507 Pa. at 47-50, 488 A.2d at 267-269 (emphasis added).

We conclude that both the supreme court’s reasons apply to the instant case. Finally, we note that the supreme court’s reversal in Young specifically concerned whether a court could attach a pension in an order of equitable distribution. Consequently, we conclude that the supreme court has spoken directly on this issue raised by husband when it reversed this court in Young and that we are bound to follow that precedent and reasoning in the instant appeal. Accord: Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988); Vaughn v. Vaughn, 370 Pa.Super. 333, 536 A.2d 431 (1988).

Order affirmed.

      . 24 Pa.C.S. § 8533 provides:
      (a) General rule.—Except as provided in subjection (b), the right of a person to a member’s annuity, a State annuity, or retirement allowance, to the return of contributions, any benefit or right accrued or accruing to any person under the provisions of this part, and the moneys in the fund are hereby exempt from any State or municipal tax, and exempt from levy and sale, garnishment, attachment, or any other process whatsoever, and shall be unassignable.
      (b) Forfeiture.—Rights under this part shall be subject to forfeiture as provided by the act of July 8, 1978 (P.L. 752, No. 140), known as the "Public Employee Pension Forfeiture Act.” 1975, Oct. 2, P.L. 298, No. 96 § 1, imd. effective. As amended 1980, Oct. 5, P.L. 693, No. 142, § 210(a), effective in 60 days.
      (Emphasis added).

      . We note that courts have refused to consider an alimony award in isolation; the earnings received from investments funded by an equitable distribution award have been considered when determining the adequacy of the dependent spouse's income.


author: ROWLEY, Judge:

text:
    578 A.2d 461
    COMMONWEALTH of Pennsylvania v. Janies BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 19, 1990.
    Filed July 24, 1990.

      Robert F. Simone, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before ROWLEY, MCEWEN and JOHNSON, JJ.
   ROWLEY, Judge:

This is an appeal by James Brown from the judgment of sentence entered January 12, 1989. Appellant raises the following four issues on this appeal: 1. whether the trial court erred in allowing appellant to be extradited to New Jersey against his wishes when more serious charges were pending against him in Pennsylvania resulting in a violation of appellant’s right to a speedy trial; 2. whether the trial court erred in excluding lay and psychiatric testimony highly relevant to and probative of appellant’s defense of diminished capacity; 3. whether the trial court improperly failed to suppress statements made in clear derogation of appellant’s Sixth Amendment rights; and 4. whether appellant’s constitutional rights were violated by selection of an array of potential jurors which failed to accurately reflect the minority population of the city. We have reviewed these issues and affirm the judgment of sentence.

Appellant was arrested in North Carolina on a federal fugitive warrant on April 16, 1985 for murder in the first degree, conspiracy, aggravated assault, and robbery. He was extradited to Philadelphia in the company of two Philadelphia detectives. On October 23, 1985, appellant appeared before Judge Richette and entered a plea of guilty to murder; however, appellant was permitted to withdraw that plea on November 1, 1985. On February 5, 1986, appellant appeared before Judge Richette and waived his right to a speedy trial under Pa.R.Crim.P. 1100 until June 4, 1986. On May 13, 1986, appellant once again waived Rule 1100 until October 22, 1986. At this time, the court set a trial date of September 22, 1986. New defense counsel was unavailable or unprepared for this date, as well as for subsequent trial dates, and appellant requested numerous continuances. On January 7, 1987, appellant waived Rule 1100 until June 30, 1987.

To further confuse matters, Governor’s warrants from New Jersey were lodged against Brown for a murder committed in that state on June 2, 1984. The Governor of Pennsylvania had no objection to delaying extradition until the Pennsylvania charges were settled. A habeas corpus hearing was held on May 20, 1987 at which time Judge Hirsh ordered a stay of extradition pending disposition of the Pennsylvania charges.

On May 11, 1987, appellant’s counsel was permitted to withdraw and a third attorney had to be appointed. On May 26, 1987, the Commonwealth then filed a petition to extend the time limitations of Rule 1100 until October 28, 1987 and Judge Durham granted the extension on May 29, 1987. Trial was set for September 29, 1987. Also on May 29, the order staying extradition was lifted and appellant was turned over to the State of New Jersey. Appellant pled guilty to manslaughter in New Jersey on June 3, 1987 and was sentenced on July 30, 1987. Appellant then fought extradition from New Jersey and was not returned to Pennsylvania until March, 1988. The Commonwealth filed Petitions to Extend under Rule 1100 during this time because of the unavailability of appellant. On March 29, the Commonwealth filed a petition to extend the run date of February 25 until June 24. The petition was granted and the case was placed in the ready pool. Appellant was brought to trial the following month.

On May 6, 1988, appellant was convicted on all counts. The jury could not unanimously agree to impose the death penalty; therefore, the trial court sentenced appellant to life imprisonment. Appellant filed post-verdict motions and supplemental post-verdict motions which the trial court denied. The trial court sentenced appellant to five to ten years imprisonment for criminal conspiracy, ten years reporting probation for the assault charges, ten to twenty years imprisonment for robbery and the life imprisonment sentence for first-degree murder. These sentences were to run concurrently with appellant’s New Jersey sentence. Appellant then filed a Motion to Reconsider Sentence which the trial court denied. Appellant filed this appeal on January 23, 1989 raising the four issues set forth below.

I. The trial court erred in allowing appellant to be extradited to New Jersey against his wishes when more serious charges were pending against him in Pennsylvania resulting in a violation of appellant’s right to a speedy trial.

Appellant first claims that his right to a speedy trial was violated because the trial court did not view the withdrawal of his guilty plea as triggering the 120 day period the Commonwealth had in which to bring him to trial. When discussing this issue in the trial court opinion, the trial judge viewed appellant’s plea withdrawal as a game that appellant was playing with the court system. In addition, the trial judge stated the following:

[f]or us, the single most important feature is the fact that Brown already had his trial in Pennsylvania when he was assigned to the court of Judge Lisa Richette for trial on October 23, 1985 [when appellant's guilty plea was accepted]____ Since defendant actually had his trial in Philadelphia, he has no legitimate complaint that his speedy trial rights were violated because of his extradition to another state.

Trial court opinion at p. 16.

Because of this discussion, appellant infers that the trial judge considered the withdrawal as a factor to be weighed against him and that the trial court failed to view the withdrawal of the guilty plea as triggering another 120 day period. We do not agree that the above discussion means the trial judge did not view appellant’s withdrawal of his guilty plea as triggering the 120 day period; however, even assuming that the trial judge did mean this, we may affirm the trial court’s decision on a basis other than that relied on by the trial court. Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989). Regardless of the trial judge’s unfavorable opinion of appellant’s motives, we have reviewed the record and have found that appellant’s Rule 1100 rights were not violated.

Appellant was arrested on April 16, 1985. Because appellant’s whereabouts had been unknown and he could not be apprehended, the 180-day period provided for in Pa.R.Crim.P. 1100 commenced on this date, rather than the date the written complaint was filed. Pa.R.Crim.P. 1100(c)(1). On July 1, 1985, appellant waived his Rule 1100 rights until November 6, 1985. Any period of time for which a defendant waives Rule 1100 is excluded from the applicable time period. Pa.R.Crim.P. 1100(c)(2). On October 23, 1985, appellant pled guilty to murder before Judge Richette, who found him guilty beyond a reasonable doubt. On November 1, 1985, appellant withdrew that guilty plea. For Rule 1100 purposes, trial commences when a guilty plea is entered by a defendant and accepted by the trial court. Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981). Furthermore, when a defendant subsequently withdraws his guilty plea, the Commonwealth has 120 days to commence new trial, as dictated by Rule 1100(d)(1). Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982) (en banc). Therefore, the Commonwealth had 120 days after November 1, 1985 in which to begin another trial. On February 5, 1986, within that 120 day period, appellant himself requested a continuance and waived his Rule 1100 rights until June 4, 1986.

Subsequently, both appellant and the Commonwealth requested various continuances over a two-year period and trial was eventually set for June 26, 1987. In his brief, appellant notes that the purpose of these extensions was to allow both the prosecution and the defense to prepare for trial. Apparently, appellant has no complaint with these extensions.

On May 29, 1987, a hearing was held before Judge Durham to determine whether another extension should be granted to the Commonwealth so that appellant could be extradited to New Jersey to stand trial on the charges which were pending there. Although appellant wished to stand trial in Pennsylvania first, Judge Durham granted the extension and appellant was extradited to New Jersey. Appellant now claims that this extension was improperly granted.

At the hearing, the judge was informed that new defense counsel had just been appointed and had not yet received discovery from previous counsel. New counsel did not contend that he could have been prepared for trial by the time of the then existing run date which was June 30, 1987. Furthermore, trial was scheduled in New Jersey for the following week. A grant of an extension will not be overruled on appeal absent an abuse of discretion by the trial court. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). Based on the above facts, we find that the trial court did not abuse its discretion in granting the extension so that appellant could be extradited to New Jersey to stand trial there first.

When appellant was extradited to New Jersey, the trial date for the Pennsylvania charges was set for September 29, 1987 and the Rule 1100 run date was October 28, 1987. On June 3, 1987, appellant pled guilty to aggravated manslaughter in New Jersey and on July 30, 1987, he was sentenced for that crime. Appellant then fought extradition from New Jersey back to Pennsylvania and was not returned until March, 1988. While the proceedings against appellant in New Jersey were concluded almost two months prior to the September trial date, and appellant admits in his brief that this trial date was well within the 120 day limit, he now claims that his Rule 1100 rights were violated by his extradition to New Jersey.

Rule 1100(c)(3)(i) provides that the unavailability of a defendant or his attorney tolls the running of the 120 days which the Commonwealth has to bring a defendant to trial. A defendant who is incarcerated in another state will be considered unavailable for the purposes of Rule 1100 for the period of time that he is absent despite the Commonwealth’s diligent efforts. Commonwealth v. Lloyd, 370 Pa.Super. 65, 535 A.2d 1152 (1988), appeal denied, 518 Pa. 637, 542 A.2d 1367 (1988); Commonwealth v. Maxwell, 355 Pa.Super. 575, 513 A.2d 1382 (1986), allocatur granted, 513 Pa. 633, 520 A.2d 1384 (1987), appeal dismissed, 569 A.2d 328 (1990).

. While appellant was in New Jersey fighting extradition back to Pennsylvania, the Commonwealth filed petitions for extensions of Rule 1100. Because of appellant’s unavailability, these extensions were granted. We find that the trial court did not abuse its discretion in granting the Commonwealth’s petitions to extend when appellant was absent from Pennsylvania by his own doing.

On March 29, 1988, the Commonwealth was granted a petition to extend the Rule 1100 run date until June 24, 1988. Appellant’s trial began on April 29, 1988. This trial date was within the original 120 day period, as properly extended.

Appellant contends that the Commonwealth was not diligent in bringing him to trial because it knew or should have known that he would not waive extradition back to Pennsylvania. This contention is meritless. Furthermore, even had the Commonwealth failed to exercise due diligence, charges will not be dismissed without a finding that the extension of time prejudiced the defendant. Commonwealth v. Tyler, 382 Pa.Super. 384, 555 A.2d 232 (1989), allocatur denied, 523 Pa. 631, 564 A.2d 1260 (1989). Appellant claims he was prejudiced in that, as a result of his conviction of voluntary manslaughter in New Jersey, his diminished capacity defense to the Pennsylvania charges was rendered useless. To support this contention, appellant points to 42 Pa.C.S.A. § 9715 which provides:

Any person convicted of murder in the third degree in this Commonwealth who had previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

Appellant asserts that had his diminished capacity defense been successful, the jury would have found him guilty of murder in the third degree as opposed to murder in the first degree, but he would have still been sentenced to life imprisonment because of § 9715. Therefore, the extradition and conviction in New Jersey prejudiced his later trial in Pennsylvania. Appellant overlooks one important factor in making this analysis, i.e., his diminished capacity defense was not successful and the jury found him guilty of first-degree murder, not third-degree murder. Appellant then received a life sentence because the jury could not unanimously agree to impose the death penalty. The earlier conviction in New Jersey had no bearing on appellant’s conviction in Pennsylvania; therefore, appellant was not prejudiced by his extradition to New Jersey.

II. The trial court erred by preventing testimony during the verdict phase of the trial by appellant’s expert psychiatrist and appellant’s mother regarding certain past schizophrenic episodes that directly related to his defense of diminished capacity. The court also erred in not allowing the court appointed psychiatrist to testify as to the competency of the appellant prior to jury selection.

A defendant who raises a diminished capacity defense concedes general criminal liability, but challenges his capacity to premeditate and deliberate at the time of the criminal act. Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). It is an extremely limited defense and psychiatric testimony is only competent “on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent. Where ... it does not, it is irrelevant and hence inadmissible.” Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344, 1347 (1982). See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Furthermore, personality disorders or schizoid or paranoid diagnoses are not relevant to a diminished capacity defense. Id.

The defense called both a psychologist and a psychiatrist who testified extensively about appellant's mental history. The trial judge permitted testimony as to appellant’s psychiatric history as long as it related to appellant’s capacity for premeditation and deliberation at the time of the murder. Appellant now argues that because the psychiatrist and his mother were not permitted to detail specific incidents of past schizophrenic episodes, his diminished capacity defense was severely limited. We agree with the trial court that a detailed description of appellant’s past bizarre behavior is not relevant to appellant’s alleged diminished capacity at the time of the criminal act.

III. Appellant neither made any of the incriminating statements claimed by the prosecution, nor did he waive his rights to silence and counsel. Therefore, any evidence regarding any alleged confession by appellant must be suppressed.

At the Suppression Hearing, Detective Cohen, who escorted appellant from North Carolina to Philadelphia, testified that appellant made incriminating statements after a knowing and voluntary waiver of Miranda rights. Appellant contends that the police fabricated these statements as evidenced by the fact that appellant did not sign the statements. The trial court made a factual finding that appellant did make the statements and admitted these statements into evidence at trial. When reviewing a suppression issue, we are bound by the trial court’s findings of fact if they are supported by the record. Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988), allocatur denied, 519 Pa. 653, 546 A.2d 57 (1988). Furthermore, questions of credibility will be resolved by the suppression court as fact-finder. Id. Because there is support in the record for the trial court’s finding that appellant did make the statements, such as Detective Cohen’s testimony, we will not disturb that finding.

IV. The trial court did not select an array of potential jurors that accurately reflected the minority population of the city. Therefore, the court deprived appellant of his rights granted by the Sixth Amendment to the United States Constitution.

Appellant claims that, because the array of potential jurors was drawn from voter registration lists which do not accurately reflect the percentage of minorities residing in Philadelphia, his right to a fair trial under the Sixth Amendment was violated.

Pa.R.Crim.P. 1104 provides as follows:

(b) Unless opportunity did not exist prior thereto, a challenge to the array shall be made not later than five days before the first day of the week the case is listed for trial of criminal cases for which the jurors have been summoned and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge.
(c) A challenge to the array may be made only on the ground that the jurors were not selected, drawn or summoned substantially in accordance with law.

Without claiming that the opportunity did not exist earlier, appellant’s counsel raised the objection during the third day of jury selection in violation of the time provisions of Rule 1104(b). Also, the objection was made orally, and not in writing as required by Rule 1104(b). In Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984), a similar objection was made after several potential jurors had been questioned. The Superior Court held that the objection was untimely and any objection appellant may have had was waived.

The trial court in this case held that, because the objection was not in accordance with the procedure set out in Pa.R.Crim.P. 1104, the issue was waived. We agree.

In addition, assuming, without deciding, that this objection was not waived, selecting prospective jurors from voter registration lists is not unconstitutional “simply because one identifiable group of individuals may vote in a proportion than lower that of the general population.” Commonwealth v. Jones, 465 Pa. 473, 479, 350 A.2d 862, 866 (1976).

For the abovementioned reasons, we find no merit to appellant's arguments.

The judgment of sentence is affirmed.