text:
    665 A.2d 4
    Stanley STRUBLE, III v. VALLEY FORGE MILITARY ACADEMY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Sept. 21, 1995.

      Charles W. Craven, Philadelphia, for appellant.
    Harry M. Roth & A. Roy DeCaro, Philadelphia, for appellee.
    Before CIRILLO, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Valley Forge Military Academy (sometimes referred to as the “Academy”) appeals following a jury’s determination that it is partially liable for injuries sustained by Stanley Struble, III, appellee, when he fired a ceremonial cannon during an Academy event. We reject appellant’s claim that appellee assumed the risk of his injuries as a matter of law. We also conclude that once the trial court determined that appellant was not entitled to a compulsory non-suit on the basis of that doctrine, it correctly refused to charge the jury on the doctrine of assumption of the risk in this negligence action. We therefore affirm.

Appellee instituted this negligence action to recover damages for injuries sustained on April 7, 1991. At trial, his testimony was as follows. Appellee, eighteen years old at the time, was attending the Academy. Two years prior to the incident, he became involved in the motor pool, which is the student organization responsible for firing the school cannon at dinner formation, football games, and parades.

Appellee described the cannon as a “toy cannon” two feet in length and weighing between ten to fifteen pounds. Reproduced record (“R.R.”) at 49a. The cannon works by sliding a door on the barrel, which is brass, loading the barrel with blank cartridges, and re-closing the door. Then, the operator must pull a lanyard, which is a round string with knots about the thickness of a shoelace that has a wooden ball at the end.

The cannon was designed to set off blanks and was “mainly for the noise.” Id. at 50a. Nothing was to be projected from the barrel other than smoke and a small flame visible only at night. In appellee’s experience, the cannon never had fired unless he first pulled the lanyard vigorously. He had used the cannon over 200 times prior to the April 1991 incident.

The blank cartridges were kept in Lee Hall and were available as needed. At times, no officer was present in Lee Hall when appellee arrived, and he would remove cartridges from their location in a closet without anyone knowing. Furthermore, unlike firearms, students were permitted to keep the cannon in their rooms.

Appellee had been trained to use the cannon by another student. There were no safety instructions, and no one ever warned or alerted him against a hazard in the event the lanyard became stuck during firing. The only trouble he experienced with the cannon prior to the incident was that it occasionally would not fire after the lanyard was pulled. Appellee then would pull the lanyard vigorously a second time, and the cannon would discharge.

On April 7, 1991, the Academy had scheduled a parade, and appellee was in charge of preparing the cannon. Appellee loaded the cannon and began to untangle the lanyard, which had become wedged between the wheel and body of the cannon. While he was attempting to free the lanyard from this position, the cannon discharged. The cannon never had discharged prior to that time with such little force applied to the lanyard.

Appellee testified that he knew better than to stand in front of the muzzle while firing the cannon and that his leg was approximately six inches off to the side of the muzzle and not directly in front of it when he was freeing the lanyard. A segment of appellee’s calf was torn off, his bone was exposed, he was taken to the hospital where he spent three and one-half weeks, and he has undergone two operations. He remained on crutches for two months and was not able to work that summer, losing approximately $300 to $400 a week based upon his prior summer’s earnings. He has scars on his calf and his hip where doctors took skin grafts used in repairing the calf. The injuries to the calf have affected his ability to jump and walk for long distances. Appellee incurred $76,695.82 in medical bills.

Following appellee’s testimony, appellant moved for a compulsory non-suit based on its position that appellee had voluntarily assumed the risk of his injuries. Non-suit was denied. At the close of the evidence, appellant requested a charge on the doctrine of assumption of the risk. The trial court concluded that a charge on comparative negligence was the only instruction necessary, which was submitted to the jury on special interrogatories. The jury determined that appellant was negligent and its negligence was a substantial factor in causing appellee’s harm, that appellee was comparatively negligent and his comparative negligence was a substantial factor in causing the harm, and that appellant’s proportional negligence was sixty percent. The jury awarded $200,000 in damages. After the trial court denied appellant’s post-trial motions, judgment was entered. This appeal followed.

Appellant first contends that it is entitled to judgment notwithstanding the verdict due to the fact that appellee voluntarily assumed the risk of his injuries. When reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, “[t]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). We should not reach a decision based on how we would have voted but on the facts as presented in light of the jury’s determinations. Id. A judgment n.o.v. is proper if the movant is entitled to judgment as a matter of law or if the evidence was such that no two reasonable minds could disagree that the verdict was improper. Id.; Wasserman v. Fifth & Reed Hospital, 442 Pa.Super. 563, 569, 660 A.2d 600, 604 (1995).

In two cases, our Supreme Court has affirmed a trial court’s determination that as a matter of law, the plaintiff voluntarily proceeded in the face of a known risk and absolved the defendant from his duty to protect against the injuries sustained. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) (four justices concurring in this portion of holding); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). However, a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries. Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995).

In Carrender, an invitee parked on a sheet of ice even though the rest of the parking lot was clear. The invitee became aware of the ice before exiting her car and slipped when she re-entered her car. The Court indicated that a landowner owes no duty to an invitee who proceeds to face an obvious and avoidable dangerous condition of the land since, by his conduct, the invitee has agreed to accept the risk and to undertake to look out for himself. Similarly, in Howell, a licensee of the landowner was socializing with the landowner and asked to ignite a homemade cannon that shot fireworks. He injured himself in the process.

There was no question that the risks at issue in both cases were dangerous, known, and obvious and that the plaintiff voluntarily proceeded to encounter them. See also Kotovsky v. Ski Liberty Operating Corp., 412 Pa.Super. 442, 603 A.2d 663 (1992) (when one skis, which carries the near certainty of a fall, one voluntarily assumes the risk of injuries from a fall).

However, in the within situation, the evidence as to appellee’s knowledge was vastly different. He stated that the cannon, armed with blanks, never fired unless he had applied significantly more pressure on the lanyard than was applied when he attempted to untangle it. Second, only smoke and a small flame, visible only at night, came from the muzzle. Thus, appellee testified, he did not know that he could injure himself if he kept his leg more than six inches to the side of the muzzle, which is where it was located at the time of the accident.

Appellant claims that the reasoning of Howell is directly applicable since both cases involve cannons. We cannot agree. Howell involved a homemade cannon that shot fireworks. The cannon in the present case was a toy, ceremonial cannon, which was used to fire blanks. Furthermore, the Academy’s treatment of the cannon could not have alerted appellee to its potential danger. No one supervised his training on or firing of the cannon, and students were permitted to keep the cannon in their rooms. The Academy’s treatment of real firearms included faculty training and supervision of use of the firearms.

In this case, appellee never observed anything being projected from the cannon other than a small flame, and he testified that he was not aware that the danger zone from the muzzle extended laterally more than six inches. We are not dealing with fireworks in this case but a toy cannon shooting blanks.

It is impossible to accept appellant’s position that appellee knew that “the firing of the ceremonial cannon was dangerous and could injure anyone in close proximity,” appellant’s brief at 20, when the evidence included the following factors. Appellee had used the cannon over 200 times during the previous two years without incident, the only projectile from the cannon was smoke and a small flame, and cadets were permitted to take the cannon to their rooms, to use it without adult supervision, and to gain unlimited access to the blank cartridges. Finally, appellee was trained in using the small, ceremonial cannon by another student.

This type of lax supervision over use of the cannon, compared with the tight controls the Academy exercised over use of firearms, would not alert someone to the fact that the cannon would injure a body part not within the range of the small flame. Thus, the evidence was not such that no two reasonable minds would differ that appellee knew he would be injured when his body was not directly in front of the muzzle while he attempted to free the lanyard. See and compare Long v. Norriton Hydraulics, Inc., supra (where product exhibited dangerous tendencies sporadically and under conditions different from those involved in the accident, trial court improperly ruled as a matter of law that plaintiff assumed risk of his injuries), with Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) (defendant knew he ran risk of being struck by elevator when he placed his head in elevator shaft prior to looking); see also Hardy v. Southland Corp., 435 Pa.Super. 237, 645 A.2d 839 (1994) (plaintiff must actually perceive risk and then voluntarily proceed to encounter it before compulsory non-suit based on assumption of the risk may be granted in favor of defendant).

Appellant also argues that the assumption of the risk defense applies here because appellee was exercising sole control over the instrumentality of harm at the time of the accident. Application of the doctrine of assumption of the risk does not depend upon whether a plaintiff is exercising control over the instrumentality of injury. Indeed, “control” is not a factor in the applicable test.

Finally, appellant suggests that we should disbelieve appellee’s self-serving testimony that he did not know that the blast area extended over six inches laterally from the muzzle and did not know the cannon could be fired with slight force on the lanyard. Appellant correctly notes that we did this with plaintiff’s testimony in Malinder. However, the plaintiff in Malinder testified that he did not know he could be struck by an elevator if he did not look in the elevator shaft prior to placing his head in it. This is inherently incredible, and the equivalent of stating that you do not know that ice is slippery or that you might fall from skiing.

Herein, appellee testified that the only visible projectile from the cannon during firing was a small flame, visible only at night, and smoke. Additionally, this was a toy, ceremonial cannon which fired blanks and which was kept in students’ bedrooms. Thus, we find perfectly believable his testimony that he did not realize that he could be injured while his body was over six inches away from and to the side of the muzzle.

Appellant’s final argument is that it is entitled to a new trial because the jury was not charged on the doctrine of assumption of the risk. The trial court charged the jury on principles of comparative negligence, and as noted, the jury found appellant comparatively negligent in causing his injuries. The trial court, after concluding that appellant was not entitled to a compulsory non-suit on the doctrine of assumption of the risk, determined that it should charge only on comparative negligence principles. This ruling was well-reasoned and correct.

In our judgment, the within situation is controlled by Howell v. Clyde, supra. A study of the opinions of the Pennsylvania Supreme Court in that litigation leads to the conclusion that the question of whether a litigant has assumed the risk is a question of law and not a matter for jury determination. We further conclude that once the trial court decides that assumption of the risk is not the basis for a compulsory nonsuit, the jury is to be charged only on comparative negligence.

Our conclusion is buttressed by the Commonwealth Court’s recent decision in Giosa v. School District of Philadelphia, 157 Pa.Cmwlth. 489, 630 A.2d 511 (1993), wherein it ruled that since the jury was charged on comparative negligence, it properly was not charged on the doctrine of assumption of the risk and that issue was not submitted to the jury.

Judgment of sentence affirmed.

      . Appellant presented evidence to the contrary on these two points; however, appellee testified that he was trained by a student and often fired the cannon without faculty supervision. In light of our standard of review, we must accept appellee's testimony on these points.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    665 A.2d 8
    In re Joseph VICTOR. Appeal of Joseph VICTOR.
    Superior Court of Pennsylvania.
    Submitted March 28, 1995.
    Filed Sept. 22, 1995.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Charles E. Anderson, Harrisburg, for Norristown State Hospital, participating party.
    Before BECK, TAMILIA and CERCONE, JJ.
   BECK, Judge:

The issue in this case is the meaning of placement with “the least restrictions consistent with adequate treatment” under the Mental Health Procedures Act, 50 P.S. §§ 7101-7503 (“MHPA”).

After a period of in-patient treatment, appellant was subject to an order committing him to 180 days of additional involuntary treatment. Under the statute, 50 P.S. § 7103, involuntary treatment contemplates either inpatient or outpatient status. Appellee Norristown State Hospital petitioned and the court ordered that appellant be committed for an additional period of no more than 45 days of inpatient treatment. After the 45 days appellant would be placed in a long-term structured residence (“LTSR”) where he would reside and receive involuntary outpatient treatment for the remainder of the 180-day commitment.

Appellant contends that inpatient treatment for the 45 day period pending LTSR placement was not the least restrictive alternative consistent with adequate treatment. He asserts that he was entitled to outpatient status for the full 180 days.

We disagree and find that the court’s order, carefully tailored to meet appellant’s individualized treatment needs, was proper under the provisions of the MHPA.

Pursuant to Norristown State Hospital’s petition, a hearing was held at which appellant’s treating psychiatrist, Dr. Frost, testified. She stated that appellant was diagnosed with chronic undifferentiated schizophrenia. She further testified that prescribed medication was controlling most of appellant’s symptoms, that his illness was “very much in remission” with the exception of “lifetime delusions of grandeur” and that appellant had been doing rather well on the ward. As a result, Dr. Frost testified, she had been planning to recommend outpatient treatment for appellant until she learned that placement in an LTSR setting could be arranged within 45 days. Upon learning of the availability of the LTSR placement, she recommended that appellant remain an inpatient for the 45 days and then begin outpatient treatment upon placement in the LTSR. Dr. Frost testified that if immediate outpatient treatment was ordered, appellant intended to return to his own home. Dr. Frost was unable to offer an opinion as to whether appellant would continue to take his medication if he returned home, but opined that if he did not take it, he would probably revert to the behavior that had necessitated the initial involuntary inpatient commitment.

Mr. Firn, the case manager assigned to appellant, testified that he had personally observed the exterior of appellant’s home and that all of its windows were broken and the house was not in good physical shape. Mr. Firn also testified regarding the availability of the LTSR placement for appellant. He stated that appellant was number two on the priority list for such placement and that he was confident that the placement would become available within 45 days.

Appellant testified that he wished to be discharged from the hospital and that if released he would take his medication and do whatever was necessary to stay out of the hospital.

At the conclusion of the hearing, the court ordered that appellant be committed for 45 days’ inpatient treatment, to be followed by 135 days’ outpatient treatment. Appellant subsequently filed a petition for reconsideration which was denied by the court after argument. This timely appeal followed.

Appellant frames the issue in this appeal as follows:

WAS NOT THE EVIDENCE INSUFFICIENT FOR THE LOWER COURT TO ORDER FURTHER INPATIENT PSYCHIATRIC TREATMENT FOR APPELLANT, JOSEPH VICTOR, PURSUANT TO SECTION 305 OF THE MENTAL HEALTH PROCEDURES ACT OF 1976, 50 P.S. § 7305, AND WAS NOT THAT ORDER IN VIOLATION OF THE MANDATE OF THE MENTAL HEALTH PROCEDURES ACT THAT “... IN EVERY CASE, THE LEAST RESTRICTIONS CONSISTENT WITH ADEQUATE TREATMENT SHALL BE EMPLOYED,” 50 P.S. § 7102?

Appellant concedes that an order for 180 days of involuntary outpatient treatment was appropriate in this case. In doing so, he also concedes that the statutory criteria for involuntary treatment have been met. Similarly, he does not dispute the propriety of the LTSR placement. Rather, his sole contention is that the court improperly considered the condition of appellant’s home and therefore abused its discretion in ordering that appellant remain an inpatient for the 45-day period between the end of his prior inpatient commitment and the availability of his LTSR placement.

First we note that the appellee-petitioner, Norris-town State Hospital, has the burden of showing that its proposal for future inpatient treatment is the least restrictive placement consistent with adequate treatment. Appellee has satisfied that burden. Although the trial court recognized that appellant was ready for involuntary outpatient treatment, the court determined that appellant’s circumstances militated against immediate discharge. The court found that if discharged, appellant intended “to return to a residence that was unfit in which to live”. Trial Court Opinion at 4. The court therefore reasoned it was in appellant’s best interest to continue in inpatient care until the LTSR placement became available. We find that the trial court’s decision was in keeping with the procedures and purposes of the MHPA and was therefore proper under the circumstances.

Appellant correctly asserts that all treatment under the MHPA is limited by the statutory requirement that such treatment employ the least restrictions consistent with adequate treatment. 50 P.S. §§ 7102, 7107. However, we cannot agree with appellant’s further assertion in order to comply with this mandate of the MHPA, the trial court was required to release him to his home until the LTSR placement could be finalized, and that the condition of his home was irrelevant to treatment decisions.

The MHPA does not require treatment decisions to be made in a vacuum. Rather, it clearly provides that such decisions are to be made in light of the full range of facts relevant to an individual’s psychiatric condition, including environmental and social factors that may impact upon a patient’s condition. Although the MHPA clearly expresses the policy that persons in need of treatment should be subjected to as few restrictions on their liberty as possible, it also clearly makes that policy secondary to the policy of providing effective treatment. Thus the very language upon which appellant relies states that “the least restrictions consistent with adequate treatment shall be employed.” 50 P.S. § 7102 (emphasis added). “Adequate treatment” is defined as:

“a course of treatment designed and administered to alleviate a person’s pain and distress and to maximize the probability of his recovery from mental illness____ Treatment
shall include diagnosis, evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a person from mental illness and shall also include care and other services that supplement treatment and promote such recovery.”

50 P.S. § 7104. This broad definition of adequate treatment includes other services that supplement treatment and promote recovery. Its language suggests that the MHPA looks beyond psychiatric intervention to other factors that may affect a patient’s progress.

This broad focus is further borne out by the fact that the MHPA requires that for each individual treated pursuant to its provisions, the treatment team formulate an individualized treatment plan, 50 P.S. § 7106, defined as “a plan of treatment formulated for a particular person in a program appropriate to his specific needs.” 50 P.S. § 7107 (emphasis added). This language clearly establishes that the inquiry as to proper treatment is a highly fact-sensitive one, and must consider all circumstances that contribute to an individual’s mental health needs. Such circumstances include the patient’s physical and social environment.

The breadth of the proper inquiry of the treatment team in formulating its recommendations and of the court in entering an order for continuation, modification or termination of treatment in light of such recommendations is also demonstrated by section 304(f) of the MHPA, which provides:

Upon [the findings required by section 304(a) ], an order shall be entered directing treatment of the person in an approved facility as an inpatient or an outpatient, or a combination of such treatment as the director of the facility shall from time to time determine. Inpatient treatment shall be deemed appropriate only after full consideration of less restrictive alternatives. Investigation of treatment alternatives shall include consideration of the person’s relationship to his community and family, his employment possibilities, available community resources, and guardianship services. An order for inpatient treatment shall include findings on this issue.

50 P.S. § 7304(f) (emphasis added). It is thus clear that the decision as to whether inpatient treatment is appropriate includes a consideration not only of the patient’s psychiatric condition, but also of the resources that will be available outside the hospital to assist the patient upon discharge. As a necessary part to this inquiry, the court must weigh facts which might impact upon the availability of such resources and social and environmental conditions facing the patient upon discharge.

In this case, the trial court recognized the progress that appellant had made during his inpatient treatment. The court further recognized that a transition to outpatient treatment was appropriate. The court also properly considered the recommendations of appellant’s treating psychiatrist and of Norristown State Hospital that the LTSR placement would better serve appellant’s specific treatment needs than discharge to his home. Finally, the court, as authorized under the statutory provisions discussed above, evaluated environmental factors, specifically the poor physical condition of the home in which appellant would live and the fact that appellant would live alone if discharged. In light of these proper considerations, the trial court concluded that release of appellant to his home pending availability of an LTSR placement, although less restrictive than an inpatient placement, would not be consistent with adequate treatment. Under the applicable statutory standards, we conclude that this determination is amply supported by both the law and the record in this case.

Order affirmed.

      . Section 103 of the MHPA, 50 P.S. § 7103, provides that the act "establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient.” It is thus clear that the statutory requirements for continued involuntary treatment are the same whether that treatment is to be provided on an inpatient or an outpatient basis.
      The requirements for recommitment in this case are set out in section 305 of the MHPA, which provides in pertinent part:
      (a) At the expiration of a period of court-ordered involuntary treatment ..., the court may order treatment for an additional period upon application of the county administrator or the director of the facility in which the person is receiving treatment. Such order shall be entered upon hearing on findings required by sections 304(a) and
      (b) , and the further finding of a need for continuing involuntary treatment as shown by conduct during the person's most recent period of court-ordered treatment. The additional period of involuntary treatment shall not exceed 180 days.
      50 P.S. § 7305(a). Section 304(a) provides in pertinent part:
      (2) Where a petition is filed for a person already subject to involuntary treatment, it shall be sufficient to represent, and upon hearing to reestablish, that the conduct originally required by section 301 [providing for involuntary emergency examination and treatment of persons found to be severely mentally disabled, in need of immediate treatment, and to pose a clear and present danger of harm to others or to themselves] in fact occurred, and that his condition continues to evidence a clear and present danger to himself or others. In such event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.
      50 P.S. § 7304(a). Section 304(b) of the MHPA, 50 P.S. § 7304(b), sets forth the procedures by which petitions for continued treatment of those already receiving treatment under section 304 or 305 are to be initiated.


author: HOFFMAN, Judge.

text:
    665 A.2d 473
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas BEALE.
    Superior Court of Pennsylvania.
    Argued April 18, 1995.
    Filed Aug. 17, 1995.
    Reargument Denied Oct. 20, 1995.

      Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Owen Larrabee, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from an order entered July 13, 1994, denying in part and holding in abeyance in part, the Commonwealth’s motion to admit evidence regarding a composite sketch. Appellant, the Commonwealth, presents the following issues for our review:

1. Where the defense argues that a rape victim is mistakenly remembering the defendant’s features from a photo array, and that the police created the array to “frame” the defendant; is the introduction of a composite created by the victim before she saw the photo array, offered to prove that she is independently recalling the features described therein and that the police were not trying to “frame” defendant by relying on the composite, barred by the hearsay rule?
2. Is a rape victim’s composite statement describing the features of the defendant admissible under the prior identification exception defined by the Pennsylvania Supreme Court in Commonwealth v. Ly?
3. Where the defense claims throughout trial that the rape victim is fabricating her in-court identification of the defendant in order to conceal her reliance on an allegedly tainted photo array, does a composite statement made by the victim before seeing the array, identifying the defendant’s features, constitute a prior consistent statement admissible in the Commonwealth’s direct case?
4. Where the evidence from a prior trial shows that the entire defense will consist of attacking the rape victim’s veracity and memory, did the court err in ruling before retrial that a prior consistent statement by the victim, if admissible at all, would be admissible only on rebuttal, where there is no assurance that the Commonwealth would be entitled to rebuttal?
5. Where the defense argues that the rape victim’s memory is impaired, does a composite statement by the victim, made near the time of the event and based on firsthand knowledge, qualify as a recorded recollection?

Appellant’s Brief at 3-4. For the reasons set forth, we reverse.

On April 12, 1994, appellee Thomas Beale was brought to trial for involuntary deviate sexual intercourse and several other related offenses. The charges stemmed from allegations that on November 1,1992, appellee forced a sixteen year old girl, at gunpoint, into an alley to engage in fellatio.

At trial, the defense argued that a tainted photo array shown to the victim in May of 1993, had improperly influenced her in-court identification of appellee as the assailant. On rebuttal, the Commonwealth was precluded from entering evidence regarding a composite sketch of the perpetrator, which had been made on November 3, 1992. On April 18, 1994, following jury deadlock, the trial court declared a mistrial. The case was thereafter scheduled for re-trial.

On July 6, 1994, prior to the commencement of the second trial, the Commonwealth presented a motion in limine and memorandum of law concerning the admissibility of the composite sketch. At argument, on July 12, 1994, the Commonwealth requested that the court’s determination on the motion be made prior to the impaneling of the jury. Following the trial court’s denial of the Commonwealth’s request, the Commonwealth filed an emergency petition before this court requesting a stay of the proceedings below pending the final resolution of the Commonwealth’s motion. This court granted the Commonwealth’s petition and on July 13,1995, the trial court entered an order ruling the composite sketch inadmissible in the Commonwealth’s case-in-chief. The trial court’s order also reserved for later determination, the admissibility of the composite on rebuttal. On appeal to this court, appellant raises several challenges to the trial court’s exclusion of the composite sketch at trial.

First, appellant argues that the trial court erred in declaring that the sketch was not admissible as a prior consistent statement.

The prior consistent statement of a witness must be excluded from trial as hearsay if offered for the truth of the matter asserted in the statement. Commonwealth v. Rothlisberger, 197 Pa.Super. 451, 178 A.2d 853 (1962). See generally Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence § 801.6 (1987). However, where there is an allegation that the witness’ testimony is fabricated or biased or influenced by corrupt motives, the statement is admissible as non-hearsay for the purpose of rehabilitating the witness. See Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989); Commonwealth v. Swinson, 426 Pa.Super. 167, 626 A.2d 627 (1993). In order for the statement to be admissible, however, it must have been made before its effect on the case could have been foreseen or before the corrupt motive or influence existed. U.S. v. Casoni, 950 F.2d 893 (3d Cir.1991). See also Commonwealth v. Bennie, 352 Pa.Super. 558, 508 A.2d 1211 (1986) (subsequent identification is admissible where clear and convincing evidence indicates that it was based upon source independent of tainted identification); Commonwealth v. Glover, 265 Pa.Super. 19, 401 A.2d 779 (1979) (in-court identification of defendant was not tainted by illegal photographic identification where evidence demonstrated that witness had identified defendant prior to the tainted photo array). Moreover, it is not necessary that the impeachment be explicit but only that the jury be able to reasonably infer that it is occurring. Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988), appeal denied, 522 Pa. 583, 559 A.2d 527 (1989).

In the instant case, appellee contends that the photo array from which the victim identified appellee was suggestive. Appellee further argues that the victim’s in-court identification has been compromised by the suggestive photo array. However, prior to her exposure to the photo array, the victim had made a composite sketch of her assailant. Cf Commonwealth v. Scott, 270 Pa.Super. 551, 411 A.2d 1222 (1979) (admitting composite sketch as a statement under res gestae exception to hearsay rule). As the composite sketch was made before the victim viewed the photo array, it is admissible at trial as a prior consistent statement to demonstrate an independent basis for her in-court identification.

Appellant further argues that the trial court erred in ruling that a prior consistent statement may not be admitted into evidence in the case-in-chief.

Where, as here, it is apparent that the defense centers around impeaching the credibility of a witness, a prior consistent statement may, at the discretion of the trial court, be admitted before impeachment. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988). The trial court, therefore, erred as a matter of law, in concluding otherwise.

Appellant also contends that the composite sketch is admissible at trial, under the past recollection recorded exception to the hearsay rule.

The contents of a writing may be admitted at trial, as past recollection recorded only where:

1) the witness had firsthand knowledge of the event; 2) the written statement is an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness lacks a present recollection of the event; and 4) the witness can vouch for the accuracy of the written memorandum.

See Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981).

Here, appellant notes that appellee’s argument at trial is that the victim’s recollection of her assailant has been influenced by the suggestive photo array. Appellant argues that appellee’s defense, without more, is sufficient to satisfy the requisite that the witness lack present recollection of the event.

The rationale underlying the past recollection recorded exception is necessity. Packel & Poulin, supra § 803.5. The exception is therefore only available where the proponent of the statement affirmatively pleads that the witness is presently unable to recall the relevant events. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). See generally Packel & Poulin, supra § 803.5 (1987). Appellant does not, here, argue that the complainant’s memory has been impaired. Consequently, appellant is not entitled to utilize the past recollection recorded exception.

Finally, appellant contends that the composite sketch is admissible at trial under the prior identification exception rule.

Under the prior identification exception to the hearsay rule, testimony concerning a witness’ pre-trial identification of a defendant is admissible at trial to corroborate the victim’s identification testimony at trial. Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613 (1991); Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983). See generally Packel & Poulin, supra § 801.7. See also Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), superceded by statute, on other grounds, as stated in, Commonwealth v. Hanawalt, 419 Pa.Super. 411, 615 A.2d 432 (1992) (citing Commonwealth v. Dean, 300 Pa.Super. 86, 445 A.2d 1311 (1982)) (it is within the discretion of the trial court to allow the admission of corroborative evidence).

In the instant case, the complainant created a composite sketch of her assailant two days following the rape, with the aid of a police sketch artist. The Commonwealth argues that the composite should be admissible on direct examination to corroborate the complainant’s in-court identification of appellant as the assailant. Appellee, however, asserts that the prior identification exception is only applicable where the pretrial identification has taken the form of a photo array or a defendant line-up.

In defining the boundaries of the prior identification exception, Pennsylvania courts have created a distinction between an identification and a description. See Commonwealth v. Gore, 262 Pa.Super. 540, 396 A.2d 1302 (1978) (rule permit ting admission of testimony regarding prior identifications as substantive evidence does not permit admission of matters of description). Implicit in this distinction is the conception of a description as that which creates a subjective impression in the mind of each listener which cannot be verified by the person rendering the description. See, e.g., Commonwealth v. Ferguson, 327 Pa.Super. 305, 475 A.2d 810 (1984) (witness identified defendant after viewing one hundred photographs of persons matching the description witness had given of attacker). An identification, however, includes a process of verification which enables the parties to share the same impression. Cf Ferguson, 327 Pa.Super. 305, 475 A.2d 810.

Our review of Pennsylvania case law further reveals that the classification of ‘identification’ has extended far beyond the realm of photographs and visual line-ups. See Commonwealth v. Johnson, 201 Pa.Super. 448, 193 A.2d 833 (1963) (police testimony regarding the pre-trial voice identifications admissible as the victims were present in the courtroom to vouch for the accuracy of the pre-trial identifications and were subject to cross-examination); Commonwealth v. Michaux, 360 Pa.Super. 452, 520 A.2d 1177 (1987), appeal denied, 517 Pa. 605, 536 A.2d 1329 (1987) (officer’s testimony regarding a dog’s identification of defendant as burglar admissible as testimony regarding dog’s actions was equivalent to the description of the operation of an intricate piece of machinery). This line of cases illuminates that in making an identification, it is not essential that the name of the person or object in question be readily available, merely that the person or object in question be discernible from others. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954) (identification may be made through the perception of any of the senses). Further, when making an identification, it is sometimes necessary to employ artificial means in order to communicate the image to others. Michaux, 360 Pa.Super. 452, 520 A.2d 1177 (1987). The witness’ certainty in making the identification as well as the degree of similarity between the object identified and the defendant does not affect the admissibility of the identification but instead goes to the weight and credibility of the witness’ testimony. Kloiber, 378 Pa. 412, 106 A.2d 820 (it is not essential that witness should be free of doubt to the correctness of his opinion when making an identification); Commonwealth v. Turner, 237 Pa.Super. 201, 352 A.2d 68 (1975) (evidence of voice line-up was admissible despite defendants contentions that accuracy of voice identification was only 35% in view of time which had passed since alleged crime). See generally 1 Charles E. Torchia, Wharton’s Criminal Evidence § 126 (14th ed. 1985) (questions regarding the means or manner in which an identification is made ordinarily affect the weight afforded the evidence and not to its admissibility).

In creating a composite sketch, the witness supplies the artist with a verbal description of the perpetrator. The artist’s impression of the perpetrator is repeatedly altered until it matches the witness’ impression. As the witness both controls the impression created and verifies it, a composite sketch constitutes an identification. Therefore, a sketch may be admitted under the prior identification exception, at the discretion of the trial court.

Accordingly, the order of the trial court is reversed and the case is remanded for proceedings consistent with this opinion and for the commencement of trial.

Reversed and remanded. Jurisdiction relinquished.

WIEAND, J. concurs in the result.

      . At that time, and subsequently on August 18, 1994, the Commonwealth filed notices of appeal, docketed at 2347 PHL 94 and 2806 PHL 94, from an order the Commonwealth stated had been entered by the trial court on July 12, 1994. However, as no order had yet been entered by the trial court, those appeals are quashed. Pa.R.A.P. 301; 341.

      . See Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992) ("ITlhe Commonwealth may appeal pretrial orders which exclude evidence and have the effect of terminating or substantially handicapping the prosecution.... ”).

      . In support of his position, appellee refers this court to the Pennsylvania Supreme Court’s decision in Morris. Commonwealth v. Morris, 522 Pa. 533, 564 A.2d 1226 (1989). There, the court was asked to review the trial court’s admission of a composite sketch of a murder suspect which had been completed approximately three days following the crime, under the res gestae exception. Id. In concluding that the trial court had erred, the court broadly stated that the admission of the sketch violated the hearsay rule. Id. As the instant issue was not, however, before the Morris court, we do not find this case controlling. See Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986) (Superior Court may not consider dictum).

      . Although the res gestae exception remains separate and distinct from the prior identification exception, we note that recent case law admitting composite sketches for the purpose of demonstrating identity-under the res gestae exception to the hearsay rule implicitly rejects any intimation that the process of creating a composite sketch is inherently dubious. See Scott, 270 Pa.Super. 551, 411 A.2d 1222. Cf. Michaux, 360 Pa.Super. 452, 520 A.2d 1177. But see Rothlisberger, 197 Pa.Super. 451, 178 A.2d 853. Moreover, composite sketches have been used widely and effectively in criminal law enforcement to apprehend offenders. The implication of appellee’s suggestion that their creation subjects eyewitnesses to the improper influence of the artist is that subsequent identifications made by the witness are tainted. It would, therefore, be necessary to preclude their use not merely at trial, but also during criminal investigation. Cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (regarding the admissibility of photograph identification evidence at trial). See, e.g., Bennie, 352 Pa.Super. 558, 508 A.2d 1211 (subsequent identification is admissible only where evidence indicates that it was based upon source independent of tainted identification).

      . In several jurisdictions little distinction is made between composite sketches and photographic arrays with regard to their admissibility at trial. We note that in New York courts have excluded evidence regarding pre-trial composite sketches of assailants, at trial, not because of any inherent difference between sketches and photographs but because New York courts exclude all forms of extrajudicial identifications, except a witness’ testimony regarding a pre-trial identification of the defendant in the flesh. See People v. Coffey, 11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92 (1962) (excluding composite sketch as hearsay except where credibility is at issue); People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192, 133 N.E.2d 703 (1956) (photo arrays may easily be distorted to affect identification and often allow the jury to infer that the person has been in trouble with the law). New Jersey courts in admitting composite sketches as well as photographs, have however adopted the position, similar to that taken by this court in Doa, that a prior identification of an accused is generally more reliable than the witness’ identification of the accused at trial. State v. Ginardi, 111 N.J.Super. 435, 268 A.2d 534 (App.Div.1970), affirmed 57 N.J. 438, 273 A.2d 353 (1971). Cf. Commonwealth v. Doa, 381 Pa.Super. 181, 553 A.2d 416 (1989) (quoting People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960)).

      . Appellee suggests that a composite sketch comprises a picturing not of the defendant but of the assailant and therefore should be inadmissible under the prior identification exception. See also Ginardi, 111 N.J.Super. 435, 268 A.2d 534, 545 (App.Div.1970) (Concord, P.J.A.D. dissenting). We note, however, that it is the intent of the law, not to convict a defendant but the assailant. Pre-trial identifications are able to capture an impression of the assailant as he or she was perceived by the witness at the time the crime was committed, best ensure that the two are one and the same.


author: DEL SOLE, Judge. BECK, Judge,

text:
    665 A.2d 478
    I. Leonard HOFFMAN, Appellant, v. Robert A. MOGIL, M.D., F.A.C.S. P.C. and Albert Einstein Medical Center, Appellees.
    Superior Court of Pennsylvania.
    Argued March 7, 1995.
    Filed Aug. 18, 1995.
    Reargument Denied Oct. 27, 1995.

      Edward H. Rubenstone, Bensalem, for appellant.
    George L. Young, Jr., Francis J. McGovern, Plymouth Meeting, for appellees.
    Before DEL SOLE, BECK and CERCONE, JJ.
   DEL SOLE, Judge.

This is an appeal from an Order denying Appellant’s request, contained in his post-trial motions, seeking removal of a non-suit.

In the fall of 1986, Appellee, Robert A. Mogil, M.D., diagnosed Appellant, I. Leonard Hoffman, as suffering from an enlarged prostate. After monitoring Appellant’s condition for a couple of months, Appellee recommended that Appellant undergo a trans-urethral prostatectomy, commonly referred to as a “TURP” procedure, and gave him a pamphlet describing what it entailed. Within a week of their discussion, Appellant called Appellee and told him that he was unable to urinate. Appellee met Appellant at the emergency room where he catheterized Appellant and once again recommended that Appellant undergo the TURP procedure.

Appellant was admitted to the hospital a few days later and signed a written consent form authorizing Appellee to perform the procedure. Appellant was taken into the operating room, anesthesia was administered and just as the procedure was to begin, Appellant developed an erection making the procedure impossible. Appellee then decided to perform an alternate form of treatment, a perineal urethrotomy, which required making incisions in Appellant’s scrotum and urethra. The procedure was completed and Appellant was catheterized. Approximately one week following the surgery, the catheter was removed and Appellant began to bleed profusely from his penis. Appellee informed Appellant that he was bleeding from the site of his incision and that he would have to undergo a cauterization procedure the next morning to stop the bleeding. Following the cauterization, Appellant was once again catheterized and was released one week later from the hospital with the catheter still in place. The catheter was removed in Appellee’s office two days after Appellant’s release from the hospital but several days later, Appellant began to bleed again and he was catheterized for another week. The catheter was then removed and Appellant testified that he has not suffered any further bleeding.

Within a couple of months, Appellant began to experience problems with his urinary stream again and Appellee determined that the problems were caused by strictures, i.e. scarring, that had developed in Appellant’s urethra. This diagnosis was confirmed by another physician who performed a cystoscope procedure and a couple of dilations in an effort to alleviate Appellant’s problem. Appellant then sought treatment from his expert medical witness, Dr. Joseph Davis, who testified at trial and who performed two in-patient dilations on Appellant. Thereafter, Appellant was treated regularly by a Dr. Rosenthal who continued dilation therapy and performed another cystoscope.

In 1989, Appellant filed suit against Appellee claiming that Appellee’s action in performing the perineal urethrotomy and resulting cauterization caused Appellant to develop a stricture and that Appellee acted without Appellant’s informed consent in performing the procedures. The trial court granted a non-suit at the close of Appellant’s case, post-trial motions were denied and this appeal followed.

Appellant raises the following issues for our review:

1. Did the Court err in granting a non-suit against the Plaintiff based upon a finding that the Plaintiffs proof of the proximate cause of his injuries as a result of the negligent performance of two surgeries on Plaintiff and the performance of one of the surgeries without the Plaintiffs consent, failed to meet the legal standard of proof for submission of the case to a jury?
2. Did the Court err in granting a non-suit against the Plaintiff, in view of the fact that the Defendant exceeded the proper bounds of cross-examination, and thereby waived his right to a non-suit by eliciting matters constituting a legal defense to the Plaintiffs case upon which the lower court relied in granting the non-suit against the Plaintiff?
3. Did the Court err in dismissing Plaintiffs claim that both of the surgeries performed by the Defendant were performed without Plaintiffs informed consent?

Appellant’s brief at page 3.

A nonsuit may only be granted where “the plaintiff has failed to establish a right to relief.” Pa.R.C.P. No. 230.1 See also Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). In reviewing [a nonsuit] ... we must view “the evidence adduced on behalf of the plaintiff as true; reading it in the light most favorable to [plaintiff]; giving [plaintiff] the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in [plaintiff’s] favor.” Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980) (quoting Auel v. White, 389 Pa. 208, 210, 132 A.2d 350, 352 (1957)). experience or comprehension of even non-professional persons.” Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970). Since plaintiffs claims are based upon complex medical procedures and treatment such an exception is not applicable in the case at bar.

Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993).

In the present case, the trial court held as follows: In the case at bar, plaintiff failed to present expert testimony establishing any causal connection between the conduct of Dr. Mogil and plaintiffs injury. It is axiomatic that the plaintiff must prove that the defendant’s conduct was the proximate cause of the plaintiffs injuries.
‡ ‡ ‡ ‡
It is incumbent upon the expert to present testimony of sufficient quality and weight as to reflect reasonable medical certainty of the causal nexus. The only exception to the requirement of expert testimony is “where the matter and investigation is so simple and the lack of skill or want of care is so obvious as to be within the range of ordinary
Plaintiff contends in his Complaint that defendant was careless and negligent in his care and treatment and failed to provide plaintiff with medical care in accordance with accepted medical standards for physicians and specialists in the area of urologic surgery, but expert testimony is necessary to prove that a physician’s care is substandard because, absent guidance of an expert, jurors are unable to make a decision with sufficient certainty so as to enable them to make legal judgments. While it is true that plaintiff has developed strictures, it is also true that strictures can develop from a urinary tract infection as Mr. Hoffman had prior to the surgery or they can develop from Foley catheters or simple endoscopic assessment.
Moreover, it was established at trial that plaintiffs expert could not locate the site of the surgical incision made during the perineal urethrotomy or the cauterization, so he could not opine within a reasonable degree of medical certainty that plaintiff’s injury is located at the surgical site or that either procedure was the proximate cause of plaintiffs strictures, and expert opinion must not be an “unfounded guess”. Peerless Dying (Dyeing] Co. v. Industrial Risk Co., (Insurers], 392 Pa.Super. 434 [573 A.2d 541 (1990)]. The Court cannot presume, or accept as true, inferences that are unwarranted or argumentative. Greer v. Bryant, [423 Pa.Super. 608] 621 A.2d 999 (1993). In the instant case, plaintiff failed to meet his burden of providing the necessary causation testimony to relate plaintiff’s harm to the conduct of Dr. Mogil, to wit: that plaintiff’s stricture is at the site of the surgery, and that the injuries incurred by plaintiff are the direct result of defendant’s negligent performance of non-consensual surgeries.
... In the case at bar, the plaintiff failed to introduce evidence sufficient to establish the necessary elements to maintain a case of medical malpractice. A plaintiff cannot establish a prima facie case of medical malpractice without, inter alia, establishing a causal connection between the defendant’s alleged negligence conduct and plaintiffs injury.

Trial Court Opinion at pages 10-14.

Expert testimony is vital to establishing a medical malpractice claim.

[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. Branna [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 general rule in this Commonwealth is that in order to establish a cause of action for medical malpractice, the plaintiff must present expert testimony establishing variance from accepted medical practice and that this deviation from community standards caused the plaintiffs injuries____ As in other negligence cases, the plaintiff in a medical malpractice case bears the burden of proving a causal nexus between the wrongful conduct and the injury as part of the prima facie case. The plaintiffs burden of proof on this issue encompasses two separate and distinct burdens____ The first burden, the burden of production, refers to the responsibility of the plaintiff to present evidence of sufficient quality and weight that reasonably intelligent men could believe in the existence of a causal link sought to be established. If the plaintiff fails to satisfy this initial burden, it becomes incumbent upon the trial judge to remove the issue from consideration by the jury, since any decision reached by the jury based on consideration of this evidence would involve an inordinate amount of speculation and conjecture--- Bowser v. Lee Hospital, 399 Pa.Super. 332, 340-341, 582 A.2d 369, 373 (1990), allocatur denied, 527 Pa. 614, 590 A.2d 755 (1991).
After thoroughly reviewing the record before us, it is clear that the trial court did not err in granting Appellee a compulsory non-suit as it related to Appellant’s negligence claim. Appellant failed to establish a causal nexus between his injuries and Appellee’s conduct. While Appellant’s expert testified that he was able to locate the area of the stricture and that it was his belief that Appellant’s injuries stemmed from the operation and subsequent cauterization performed by Appellee, Appellant’s expert was unable to identify the site of the surgery, thereby failing to establish the necessary element of causation. Furthermore, as the trial court noted, the testimony offered established that strictures can be caused by a number of factors. Accordingly, we find no error in the trial court’s ruling.
Appellant also claims that the trial court erred in granting a non-suit because Appellee waived his right to a non-suit when his counsel exceeded the proper bounds of cross-examination by introducing matters constituting a legal defense upon which the lower court relied in granting the non-suit. Appellant argues that during cross-examination, Appellee’s counsel improperly asked Dr. Davis whether he could locate the site of the surgery and cauterization. Under direct examination, Dr. Davis testified as follows:
Q. Do you have an opinion — well, before I get to that, from reviewing Doctor Mogil’s records of that cauterization surgery, can you determine where the cauterization occurred?
A. Yes.
Q. Wfiiere?
A. At the site of the incision in the bulbous urethra.
Q. So, that’s the incision that’s made after the doctor cuts the skin and he then goes into the urethra, it’s that incision, right?
A. According to his operative notes, that’s where the bleeding was.

N.T. 10-15-93, pp. 89-90.

Under cross-examination, Dr. Davis engaged in the following discussion with defense counsel:

Q. Now, you said in direct examination, Doctor, that in your opinion, first of all, with the cystoscope you actually went up with a cystoscope and saw the stricture; is that right?
A. I saw it by X-ray.
Q. And was it in the bulbous urethra?
A. It was.
Q. Now, you did this in 1990; is that right?
A. Yes.
Q. Surgery was in 1986, right?
A. Yes.
Q. Surgery was in 1986, right?
A. Yes.
Q. Some three and half years later in July of 1990; is that right?
A. Yes.
Q. How are you able to say that the stricture is in the area of the surgery?
A. I could not see the area of the surgery at all because that was a skin incision that I’m sure had healed by then. I could only tell endoscopically and by X-ray.
Q. So, in other words you’re saying that generally urologists such as yourself and Doctor Mogil, when you do the perineal urethrotomy, right, you enter the bulbous urethra, right?
A. Yes.
Q. And which is an inch and a half to two inches long?
A. Approximately.
Q. And the stricture was also in the area of the bulbous urethra?
A. Yes.
Q. So, therefore, you are concluding that the stricture was in the area of the surgery?
A. I am concluding that on the basis of the endoscopic appearance, the X-ray, the history, what I knew about this case in terms of his previous surgery, I have to pull it all together.
Q. Well, was there anything that you saw in 1990 that could tell you where the surgery was, that was an objective indication of where the surgery was?
A. Do you mean based on my visualization only without nothing, anything else about the case?
Q. Yes.
A. No, I can’t.
Q. Now, you can’t tell where the surgery is?
A. I see a scar in a certain particular location. If I knew nothing else about the case, I would have to say that it was a scar in a certain area.
Q. Scar and stricture are the same thing?
A. Yes, sir.

N.T. 10-15-93, pp. 114^116.

Q. Doctor, in his note of 5/13/87, Doctor Mogil makes a note, “Bulbous stricture proximal to urethrotomy.” Now, doesn’t that mean that the stricture was above where the urethrotomy was done, doesn’t it?
A. If he’s using the term proximal meaning above, that is on the bladder. There’s a distinction between the bladder side and distal side, that’s the way the urologist would do it. In this case, proximal meaning closer to the bladder, distal meaning further away.
Q. Proximal, closer to the bladder, distal meaning further away?
A. In other words, closer to the prostate, meaning proximal, and distal, further away. I don’t want to confuse anybody. So, he’s saying here bulbous stricture proximal to urethrotomy meaning that he felt or he looked and saw that the stricture was on the prostate side or closer to the bladder side of the opening.
Q. Isn’t that what the note says by the surgeon that when he looked in in 1987, now this is the surgeon who actually did the perineal urethrotomy, that when he looked in and scoped that man, he saw a stricture, and the stricture was above the area where the surgery was? Isn’t that what it says?
******
Q. Yes or no, isn’t that what that indicates?
A. He means that it’s on this side of the site where he did the urethrotomy.
Q. Didn’t you say meaning closer to the bladder?
A. Yes.
Q. So, the bulbous stricture is proximate or closer to the bladder or above the urethrotomy?
A That’s what he is saying.
Q. So that when he looked at it in 1987, the stricture was not where the surgery was done, the stricture was above the surgery?
A. According to that note, yes.

N.T. 10-15-93, pp. 118-119.

Appellant argues that the trial court’s Order was based solely on Dr. Davis’ testimony during cross-examination where he stated that he could not locate the site of the prostatectomy and that, therefore, the court erred in granting the non-suit. Our supreme court has held: “where the defendant exceeds proper bounds of cross-examination so as to elicit matters constituting a defense to the cause of action, the trial court is without authority to enter a non-suit.” Atlantic Richfield v. Razumic, 480 Pa. 366, 382-383, 390 A.2d 736, 744 (1978) [additional citations omitted].

After reviewing Dr. Davis’ testimony offered during cross-examination, we are not persuaded that the testimony elicited by defense counsel from Dr. Davis regarding his inability to locate the site of the prostatectomy and cauterization exceeded the bounds of cross-examination. During direct examination, Dr. Davis testified regarding the area in which he believed the surgery occurred and the location of the stricture. Defense counsel’s question of whether or not Dr. Davis was actually able to determine the actual site of the surgery was in keeping with the nature of the questions and answers given during his direct examination. Accordingly, we hold that defense counsel did not introduce defense evidence during his cross-examination of Appellant’s witness and, therefore, Appellee did not waive his right to seek a non-suit at the close of Appellant’s case relating to negligence. In addition, it is clear that Dr. Davis’ inability to locate the site of Appellant’s surgery was not the only information relied upon by the trial court in granting the non-suit. The court also considered the fact that other factors may have played a role in the stricture’s development.

Finally, Appellant alleges that the trial court erred in precluding Appellant from presenting any evidence pertaining to the alleged lack of informed consent.

[I]n determining whether a physician breached his duty to his patient, “the standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.” Festa, supra. [Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986) ]. Materiality is established by a two step process. First the trier of fact must be supplied with expert information as to the nature of the harm and the probability of it occurring. However, it is the trier of fact, not the expert, who must decide the materiality of the risk involved and whether the probability of that type of harm is a risk which a reasonable patient would consider in rendering a decision on medical treatment. Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606, 608 (1987).

Clemons v. Tranovich, 403 Pa.Super. 427, 432, 589 A.2d 260, 262 (1991) citing Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165, 167-168 (1987).

In the present case, the trial court granted Appellee’s motion in limine to preclude introduction of evidence relating to informed consent. Dining an in-chambers discussion, the court ruled that the reports supplied by Appellant’s expert failed to address the probability of harm resulting from the perineal urethrotomy or the cauterization, and that in the absence of such evidence, it would be error to leave the jury to speculate on the probability of such risks.

While the parties and the trial court analyze this claim as involving a question of informed consent, it is really a question of whether Appellant consented at all to the surgery that was ultimately performed. It is clear from the record that the only surgery that was recommended by Dr. Mogil and consented to by Appellant was the TURP procedure, and accordingly, the only risks that would have been discussed between doctor and patient were those associated with that procedure. To hold, as the trial court did, that a plaintiff should be precluded from presenting evidence to a jury regarding an alleged lack of consent to a surgery that was admittedly not discussed with plaintiff prior to its performance, leads to a ridiculous result and negates the importance of obtaining a patient’s consent prior to proceeding on an undiscussed non-emergency procedure. For instance, under the trial court’s analysis, a female or male patient who consented to sterilization by means of a tubal ligation or vasectomy would be precluded from presenting a claim of a lack of consent to the jury where, in the absence of any life threatening circumstance and after surgery had begun, the patient’s physician chose to accomplish the sterilization by performing a hysterectomy or castration. While sterilization was the ultimate goal of the surgery, it was essential that the patient be informed about the specific procedures, and their attendant risks, that would be undertaken to achieve the desired result. This is consistent with our holding in Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991), aff'd, 533 Pa. 410, 625 A.2d 641 (1993), where we stated: “it is imperative to rule that a physician does not have the authority to extend surgical procedures to areas outside the initial consent unless additional consent was expressly obtained, or was implied, or unless an emergency situation existed requiring immediate action to preserve the life or health of the patient.” Id. at 388, 587 A.2d at 15.

Accordingly, we affirm the trial court’s Order granting a compulsory non-suit as it relates to Appellant’s claim of negligence and, because we find merit to Appellant’s argument regarding lack of consent, we remand this matter back to the trial court for a trial on that claim.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting.

I agree with the majority’s conclusion that appellant failed to establish the necessary element of causation in his negligence case against appellee, and therefore join in that portion of the majority opinion affirming the nonsuit on this claim. I also concur in the majority’s holding that appellee did not introduce defense evidence during cross-examination of appellant’s witness.

I must dissent, however, from the majority’s decision to remand this matter for further proceedings on the informed consent claim. Without even addressing the question of whether appellee obtained appellant’s informed consent prior to performing the challenged perineal urethrotomy, I would affirm the nonsuit on this claim for the same reason we affirm the nonsuit on the negligence claim. Where surgery is performed without informed consent a technical battery occurs and the physician is liable for “any injuries resulting from that invasion.” Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165, 169 (1987), app. den., 518 Pa. 626, 541 A.2d 1138 (1988) (emphasis added). A plaintiff in an informed consent action is required to show that he sustained an injury that was caused by the operation; without medical expert testimony establishing the causative element, any jury award in the informed consent action would be speculative and improper. Maliszew ski v. Rendon, 374 Pa.Super. 109, 542 A.2d 170, 173 (1988), app. den., 520 Pa. 617, 554 A.2d 510 (1989).

I therefore would affirm the trial court’s grant of nonsuit on the entire case, including the informed consent claim.

      . The pamphlet given to Appellant by Appellee entitled, “So You’re Going to Have a Prostatectomy”, by Robert S. Waldbaum, M.D. defines a TURP procedure as, removal of excess prostate tissue through the urethra (i.e. without external incision).


author: POPOVICH, Judge.

text:
    665 A.2d 485
    Kevin GALLAGHER, Appellee, v. John SHERIDAN, Appellant. (Two Cases.)
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Aug. 24, 1995.
    Reargument Denied Oct. 27, 1995.

      L. Rostaing Tharaud, Philadelphia, for appellant.
    Michael J. D’Aniello, Norristown, for appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the judgments of October 20, 1994, and January 9,1995, entered in the Court of Common Pleas of Philadelphia County. Herein, John Sheridan (“Appellant”) contends that the lower court erred in refusing to mark the judgment from an arbitration proceeding as satisfied. Appellant also asserts that the court below erred in awarding delay damages to Kevin Gallagher (“Appellee”). Upon review, we affirm.

The history of this case was aptly summarized by the lower court as follows:

Plaintiff [appellee] and defendant [appellant] were involved in an auto accident on January 11, 1991. In addition to the filing of this suit for personal injuries allegedly sustained as a result of the accident, [appellee] filed an under-insured motorist claim against his own automobile insurance carrier, Commercial Union Insurance Companies [Commercial Union]. This latter action proceeded to a hearing first, resulting in an arbitration damage award to [appellee] in the amount of $110,000. [Appellant’s] insurance carrier, Prudential, ultimately tendered to [the lower court] the policy limits of [appellant’s] coverage in the amount of $15,000. [Appellee’s] under-insured carrier, Commercial Union, has paid the remainder of the outstanding arbitrator’s award, $95,000, to [appellee]. However, Commercial Union has not waived its subrogation lien with reference to the present third-party action.
On October 19, 1994, [the lower court] granted that portion of [appellant’s] motion in limine seeking preclusion on the issue of the amount of damages since [appellee] already had fully litigated this issue in the earlier under-insured motorist arbitration proceeding. Indeed, [appellee] conceded the correctness of such a result and, instead, contested only that portion of [appellant’s] motion seeking satisfaction of the judgment against him based upon Prudential’s having tendered payment of its $15,000 policy limits.
Because the issues of liability and the actual amount of damages were already determined, [the lower court’s] order of October 19, 1994 further ordered entry of judgment against [appellant] in the amount of $110,000, based on the belief that [appellant] was not entitled to credit for the collateral payment made to [appellee] by his under-insured motorist carrier, especially while the latter’s subrogation lien remained outstanding.

Trial Opinion 12/15/94 at 1-2.

The trial court has the discretion to mark the judgment as satisfied, and an appellate court will not disturb its determination absent an abuse of discretion. Compare Beck v. Beck, 435 Pa.Super. 449, 451, 646 A.2d 589, 590 (1994), alloc. denied, 540 Pa. 575, 655 A.2d 508 (1995) (a petition to strike the entry of satisfaction of judgment is addressed to the discretion of the trial court). “Under Pennsylvania law, generally, an appellate court will find an abuse of discretion if the record shows that, ‘the law has been overridden or misapplied, or that the judgment exercised by the Court was manifestly unreasonable or motivated by partiality, prejudice, bias or ill-will.’ ” Buchanan v. Century Federal Sav. & Loan Ass’n, 259 Pa.Super. 37, 47, 393 A.2d 704, 709 (1978), quoting Rosenberg v. Silver, 374 Pa. 74, 77, 97 A.2d 92, 94 (1953).

The crux of appellant’s argument is that by not marking the judgment of $110,000 from the arbitration proceeding as satisfied ($15,000 paid by appellant; $95,000 paid by Commercial Union), the lower court has improperly allowed appellee to acquire a windfall or double recovery. To buttress his assertion, appellant relies chiefly upon our court’s decisions in Incollingo v. Maurer, 394 Pa.Super. 352, 575 A.2d 939 (1990); Sterling v. Fineman, 428 Pa.Super. 233, 630 A.2d 1224 (1993); and Johnson v. Beane, 420 Pa.Super. 193, 616 A.2d 648 (1992).

In Incollingo, 394 Pa.Super. at 358-62, 575 A.2d at 942-43; and in Sterling, 428 Pa.Super. at 243, 630 A.2d at 1230, our court held that plaintiffs were collaterally estopped from litigating the issue of damages, as that matter had been fully litigated in the arbitration proceedings. Here, appellee concedes that he is barred from re-litigating the amount of damages. In Incollingo, supra, and in Sterling, supra, our court did not rule upon the question of whether judgment should be marked as satisfied.

In Johnson, 420 Pa.Super. at 195-96, 616 A.2d at 650, the plaintiff brought a garnishment action against defendant’s insurance carrier for acting in bad faith in failing to settle the claim arising from an automobile accident. We find that Johnson, supra is not dispositive nor instructive of our assessment of the issue in this case. Here, unlike the circumstances in Johnson, supra, we are not presented with a garnishment action against the insurance carrier of the defendant. In the case at bar, the underlying action involves defendant-appellant’s liability to plaintiff-appellee, and plaintiff-appellee did not waive his right of recovery against defendant-appellant.

The specious nature of appellant’s contention is that he is liable only for his insurance policy limit and not liable for the judgment. We note that appellant does not assert that he is “judgment proof’. If we were to embrace appellant’s position, we would essentially make the injured party’s underinsured motorist carrier an insurer of the tortfeasor. We decline to allow the tortfeasor to reap the benefits from the injured party’s under-insured protection. “In interpreting the MVFRL [Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701 et seq.], cases of doubt will be resolved in favor of the insured to afford the greatest possible coverage to injured claimant.” Panichelli v. Liberty Mut. Ins. Co., 435 Pa.Super. 290, 295, 645 A.2d 865, 867 n. 3 (1994) (citation omitted) (injured claimant not overcompensated where he recovered benefits he paid with premiums). We find that the lower court correctly rejected the argument that failure to mark the judgment as satisfied permits appellee to acquire a double recovery or a -windfall. Consequently, we hold that the court below did not abuse its discretion in denying appellant’s motion to mark the judgment as satisfied with respect to appellee and his underinsured motorist carrier, Commercial Union.

Appellant also maintains that the lower court erred in granting appellee’s motion to mold the verdict for delay damages. “The argument shall be ... followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a), 42 Pa.C.S.A. Arguments that are not appropriately developed are waived. Nimick v. Shuty, 440 Pa.Super. 87, 100, 655 A.2d 132, 138 (1995); Smith v. Penbridge Assoc., Inc., 440 Pa.Super. 410, 427, 655 A.2d 1015, 1024 n. 12 (1995). Appellant has failed to cite any authority in support of his contention that the lower court erred in awarding delay damages to appellee. Thus, we deem that claim waived.

Having scrutinized appellant’s points of error and finding that they do not avail relief to appellant, we, accordingly, affirm the judgments entered by the lower court.

Judgments affirmed.

      . The order dated October 19, 1994, was entered on October 20, 1994, and was subsequently reduced to judgment. By order dated November 21, 1994, the lower court granted appellee’s motion to mold the verdict for delay damages. That order was entered on December 19, 1994, and was reduced to judgment on January 9, 1995. Appellant timely filed notices of appeal from both judgments.

      . We note that appellant’s counsel has failed to include a statement of the scope and standard of review in the brief. We direct counsel's attention to Pa.R.A.P. 3518(a), 42 Pa.C.S.A.

      . Even if we found that appellant did not waive his challenge to the court’s award of delay damages to appellee, we would conclude that it lacked merit. The viability of this contention hinges upon the finding that the lower court erred in failing to mark the judgment as satisfied.