author: OLSZEWSKI, Judge.

text:
    614 A.2d 699
    Margaret HARKINS, Appellant, v. CALUMET REALTY COMPANY and Magoune Holding Corporation, d/b/a North Towne Investors, Anthony J. Palmaccio, Jr., M.D., Randall Smith, M.D., Frankford Hospital Torresdale Division and Codman and Shurtleff, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 13, 1992.
    Filed Sept. 3, 1992.

      Louis S. Fine, Philadelphia, for appellant.
    Alan K. Cotier, Philadelphia, for appellee Codman and Shurtleff, Ine.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the order of the Philadelphia County Court of Common Pleas dated January 31, 1991, which denied appellant’s post trial motions. Appellant brought this action in negligence, medical malpractice, and products liability. At the time of trial, all actions had settled except the action for products liability against the manufacturer of a medical device used in appellant’s treatment. We take up appellant’s arguments below.

Appellant was injured in a slip and fall on the common walkway at her apartment complex. Appellant’s injury was a herniated disk. Appellant was treated for the problem with a surgical procedure called a laminectomy. During the surgery a small sponge, referred to as a “cottonoid,” was left in appellant’s body. The sponge was designed with a string that would be used to facilitate locating and removing the cottonoid after its use during surgery. The cottonoid became separated from the string during the operation and, as a result, was left in appellant’s body. In an attempt to locate the cottonoid, the doctors performing the operation caused injuries to appellant’s nervous system. The cottonoid was designed with a structure that allowed it to be located with an X-ray. The doctors attempted this procedure, but the X-rays were of such poor quality that the cottonoid could not be located. The cottonoid remains in appellant’s back. Appellant filed a cause of action against the owners of her apartment building and a medical malpractice action against the doctors and hospital. Appellant further filed a products liability action against the manufacturer of the cottonoid — Codman & Shurtleff, Inc. [hereinafter “Codman”]. All defendants settled except Codman, and the trial proceeded on the products liability action. After a defense verdict and the denial of post-trial motions, appellant filed this appeal.

Appellant has set forth thirteen questions presented covering almost two pages. This is in violation of Pa.R.A.P. 2116(a), 42 Pa.C.S.A. Further, appellant’s questions presents ed in no way coincide with her argument. Rather, the questions are a murky conglomeration of possible arguments that provide no guidance to this Court regarding the issues in this case. The statement of questions presented is one of the most important parts of any appellate brief. Questions not presented are deemed waived. Id. Issues in the statement of questions presented and not developed in argument are also deemed waived. We will address only those issues properly presented and argued.

We have reviewed appellant’s brief and find the following issues have been presented and argued. First, appellant argues that the trial court erred by excluding from evidence certain reports of other problems with cottonoids similar to the cottonoid at issue here. Second, appellant argues that the trial court erred by not properly instructing the jury regarding the malfunction theory of products liability. Third, appellant argues that the trial court erred by failing to charge the jury with certain enumerated points for charge proposed by appellant. Fourth, appellant argues that the trial court erred by charging the jury on superseding cause. Fifth, appellant argues that the trial court erred in an instruction it gave to the jury regarding the liability of the defendant doctors. Sixth, appellant argues that the trial court erred in not sustaining her objections to defense counsel’s statements regarding the claims against other defendants. Seventh, appellant argues that the trial court erred in allowing the admission of expert testimony that went beyond the scope of the expert’s pre-trial report. We consider each of appellant’s issues below.

Appellant’s first argument is that the trial court erred by excluding reports of other problems with cottonoids manufactured by Codman.

Our standard of review for rulings on the admission of evidence is well settled. “It has long been clear that questions regarding the admissibility or exclusion of evidence are within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. An abuse of discretion requires prejudice, bias, ill-will, or misapplication of law.” Rogers v. Johnson & Johnson, 401 Pa.Super. 430, 436, 585 A.2d 1004, 1007 (1990) (citation omitted). “In assessing the propriety of the trial court’s actions, a fundamental consideration in determining the admissibility of evidence is its relevance. Evidence is relevant if it tends to make a fact at issue more or less probable.” Majdic v. Cincinnati Machine Company, 370 Pa.Super. 611, 618, 537 A.2d 334, 338 (1987) (citation omitted).

Appellant has presented a broad argument that these reports should have been admitted under various rules of evidence. Our analysis must begin with whether these reports were relevant to the issues in this case. In order to determine the relevancy of this evidence, we must determine exactly what type of evidence we are dealing with. The reports in question are of other prior similar occurrences. The admission of this type of evidence is considerably limited.

Initially, we begin with examining the relevance of this type of evidence in a products liability case. It is well established that a defective condition is not limited to a defect in manufacture or design. A product can be defective due to a failure to provide a warning or instructions regarding the product’s proper use. Berkebile v. Brantley Helicopter, 462 Pa. 83, 337 A.2d 893 (1975).

A product’s “defective condition” may be proven through circumstantial evidence such as the occurrence of similar accidents. Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822, 827 (1976). Evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances is generally admissible to prove a manufacturer’s constructive notice of a dangerous or defective condition. However, the admission of such evidence is tempered by judicial concern that the evidence may raise collateral issues which confuse both the real issue and the jury. These matters are vested within the sound discretion of the trial court. Whitman v. Riddell, 324 Pa.Super. 177, 471 A.2d 521, 523 (1984). To constitute reversible error, a ruling on evidence must be shown to be erroneous and harmful to the complaining party. Id., 324 Pa.Superior Ct. at 471 A.2d at 521, quoting Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789, 791 (1965).

Majdic, 370 Pa.Super. at 623-624, 537 A.2d at 340-341 (footnote omitted). The precise issue we are called upon to decide in this case is whether the trial court abused its discretion by excluding the reports under the standard set forth above.

The trial court found that in this case the prior incidents reported did not meet the standard set forth above. Clearly, the burden was on appellant as the proponent of the reports to establish the reports were “... comprised of similar accidents occurring at substantially the same place and under the same or similar circumstances.” Majdic, at 625, 537 A.2d at 341. The trial court’s opinion on this point indicates that the reports were not sufficiently specific with regard to how the cottonoid became detached. Our review of the reports indicates that it is difficult to determine from many of the reports exactly why the string became detached. Clearly, there must be some similarity between the prior incidents and the incident at issue for this evidence to be admissible. The reports discuss other detached cottonoids. The reports, however, give little indication regarding the circumstances in the operating room. Without knowing the circumstances in the operating room, it is difficult to find a substantial similarity.

We find further support for our decision in the case of Rogers v. Johnson & Johnson, supra. Rogers involved a claim that plaintiff was burned by defective plaster of paris used to set his broken leg. In Rogers, the trial court allowed the admission of evidence of a report of a prior incident of a patient being burned by similar plaster of paris. A panel of the Superior Court affirmed the trial court stating, “[ijnstantly, ample support exists in the record for the trial court’s decision to admit this report for the limited purpose of demonstrating notice.” Rogers, at 436, 585 A.2d at 1007. In Rogers, the Court found that it was a matter of judgment for the trial court to determine that the prior incident was substantially similar. The products in Rogers were similar plaster of paris products. The Court found that although the products and circumstances were not identical, there was sufficient evidence of record to allow the trial court to conclude that the similarities outweighed the differences for the purposes of establishing notice. Judge Beck dissented, finding the evidence of similarities was not sufficient.

In the case before this Court, the trial court found the similarities between the incidents insufficient. We are compelled to agree. A review of the reports indicates that the reports are lacking in detail regarding the circumstances surrounding the detachment of the cottonoid from the string. There could be considerable speculation by the jury regarding the reason why the cottonoid became detached in these other incidents. It is not a matter of finding exact similarity between the incidents, but some similarity must be shown to prevent speculation. Here, the only sure similarity is that a cottonoid became detached dining surgery. Evidence of prior occurrences is admitted with considerable caution because such evidence has a great tendency to present collateral and irrelevant matters to the jury. Majdic, at 623-624, 537 A.2d at 340-341; Rogers, at 442, 585 A.2d at 1010 (Beck, J., dissenting). The burden in this case was upon appellant to demonstrate that the prior incidents involved the same or similar circumstances. The trial court found that appellant failed to carry this burden. Considering the lack of detail presented surrounding the other prior incidents, we find no abuse of discretion in this decision. Since this decision affirms the decision of the trial court that this evidence was not relevant, we do not reach appellant’s other evidentiary arguments regarding this evidence. Appellant’s first argument is without merit.

Appellant’s second, third, fourth and fifth arguments all deal with alleged errors in the trial court’s charge to the jury. Before addressing these issues, we set forth our standard of review for challenges to the trial court’s charge. “In reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” Reilly by Reilly v. SEPTA, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985) (citation omitted, emphasis added). We will review each of appellant’s alleged errors with the above standard in mind.

Appellant’s second argument is that the trial court erred by not properly instructing the jury on the malfunction theory of products liability. Appellant argues in this regard that although the court gave an instruction on this point, the instruction was not sufficient because the remainder of the trial court’s charge underemphasized this theory of recovery. Specifically, appellant insists in her brief that the trial court repeatedly emphasized that appellant was required to prove a defect in order to recover. Appellant’s argument is that under the malfunction theory, she was not required to establish a defect. Appellant’s argument is based upon a false assumption regarding the nature of the malfunction theory in products liability.

The Pennsylvania Supreme Court adopted the malfunction theory of products liability in Rogers v. Johnson & Johnson, 523 Pa. 176, 565 A.2d 751 (1989) (The Superior Court decided the Rogers decision cited earlier on remand from the Supreme Court decision cited here.). Our Supreme Court summarized the theory in that case:

A plaintiff presents a prima facie case of strict liability by establishing that the product was defective and that the product caused the plaintiffs injury. In most instances the plaintiff will produce direct evidence of the product’s defective condition. In some instances, however, the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the “malfunction” theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes.

Rogers, at 182, 565 A.2d at 754 (citations omitted, emphasis added). Appellant has argued that the trial court erred by instructing the jury that she had the burden of proving a defect because she did not have that burden under the malfunction theory. Appellant is mistaken. The malfunction theory allows a plaintiff an additional means of proving a defect, it does not relieve the burden of establishing a defect. Appellant’s argument that the trial court should not have instructed the jury that she had the burden of establishing a defect is misplaced. A review of the trial court’s charge indicates no error of law in instructing the jury that appellant had the burden of establishing a defect. Accordingly, we find the charge overall provided a correct statement of the law of this Commonwealth. Appellant’s second argument is without merit.

Appellant’s third argument is that the trial court erred by not instructing the jury with six of appellant’s proposed points for charge. The six points are appellant’s points 40, 45, 54, 56, 73, and 104. We have reviewed the court’s jury instruction as a whole and find that it adequately summarized the applicable law. We will address each point below.

Appellant’s point for charge 40 misstates the law. The point states that if the jury found that the doctor did not cut the string then the jury must find for appellant. This is incorrect. If the doctor did not cut the string, one could conclude that a defect caused the cottonoid to detach. Clearly, however, this is not a required conclusion. There are other possible explanations. The only way Codman would be liable is if the jury found all the elements of products liability. A finding that the doctor did not cut the string does not fulfill the requirements of a cause of action in products liability.

Appellant’s point for charge 54 deals with requirements of the malfunction theory. The point was adequately covered by the trial court’s charge. (N.T. December 6, 1989, at 27-28.) The trial court was not required to accept a party’s wording in its charge; rather, the court was free to formulate its own presentation so long as the charge adequately represents the law.

Appellant’s point for charge 56 states that the jury was allowed to presume that the cottonoid would not normally detach from the string in the absence of a defect. This is essentially a charge on circumstantial evidence. The point was adequately addressed in the trial court’s charge. (N.T. December 6, 1989, at 29-30.) The trial court discussed the fact that a defect could be proven by circumstantial evidence. Further, the trial court gave the usual extensive charge on the definition of circumstantial evidence. Again, the trial court was not required to accept a party’s wording of the charge so long as the charge adequately represents the law.

Appellant’s point for charge 104 deals with the standard of care placed upon the doctors. The point was adequately addressed in the trial court’s charge. (N.T. December 6,1989, at 33-42.) The standard of care of the doctors was relevant in this case to whether any defect was a substantial factor in bringing about appellant’s injuries and whether there was a superceding intervening cause. The trial court extensively discussed the standard of care of the doctors. Again the trial court was not bound to accept a party’s wording of the charge so long as the charge adequately represents the law.

Appellant’s point for charge 45 lists what appellant believed to be the defects in the cottonoid. Appellant’s point for charge 73 discusses the warning or instruction theory of defect. The court explained in responding to appellant’s objections to the charge that no such instructions were required because appellant did not present evidence of a specific defect or of a warning or instruction defect.

As stated previously, a defect can be a defect in design, manufacture or in failure to warn or instruct. The question with regard to appellant’s points 45 and 73 is whether appellant presented evidence to support a charge on those defects. Point 45 lists as defects whether the marking string was properly attached, whether the marking string was properly protected from being cut and whether the manufacturer put the product on the market without a proper warning that the string should be tested prior to use. Point 73 specifically charges on the law regarding failure to warn. Appellant was clearly not entitled to any instruction that was not relevant to the issues supported by the evidence. In this case, our review of the testimony indicates a complete lack of testimony regarding any specific defect. The entire case presented at trial centered around a theory that a defect can be inferred circumstantially from the fact that there was a malfunction. As was described above, this is a viable theory of recovery in a products liability case. We find, however, that in a case built upon a malfunction theory, plaintiff is not necessarily entitled to an instruction on any specific defect.

Addressing appellant’s claimed defects, we find appellant was not entitled to an instruction on any specific defect. The question is whether appellant was prejudiced by the trial court’s failure to specifically direct the jury regarding each alleged defect. We believe she was not. First, regarding a defect that the string was not properly attached, we find this was apparently the defect appellant wished to prove circumstantially through the malfunction theory. It is apparent from even a cursory review of this case that appellant was alleging that the string was not properly attached. We find no prejudice in the trial court’s failure to reiterate what was obvious from the evidence presented. Further, there was no direct evidence presented that the cottonoid was not properly attached to the marking string. Second, regarding a charge that the string was not properly protected from being cut, we find that there was no evidence presented by appellant to support such a theory. Clearly, the jury could not determine how a marking string should be constructed to protect it from being cut without some testimony on this subject. Finally, regarding any charge on a defect in warning or instruction, we find that appellant completely failed to present any evidence to support such a theory.

Appellant’s arguments regarding instructions on specific defects are very questionable in another regard. Appellant presented no expert testimony regarding a specific defect. Appellant had the right to proceed under a malfunction theory. The difficulty is that the court could not instruct the jury that evidence of a specific defect was presented without evidence supporting such a finding. We do not see how appellant could expect the jury to find a specific defect in the design, manufacture or warnings/instructions of this product without expert testimony on these subjects. The design, manufacture and necessary warnings/instructions associated with surgical cottonoids are not within the knowledge of the average layperson. See Dion v. Graduate Hospital, 360 Pa.Super. 416, 425, 520 A.2d 876, 881 (1987). Appellant not only failed to present testimony of an expert opinion of a defect, appellant completely failed to present any background into the specific details she alleged. Appellant’s third argument is without merit.

Appellant’s fourth argument is that the trial court erred in charging the jury on superceding cause. Appellant is entitled to no relief, however, because the jury never reached the issue of superceding cause. The jury found that the-product was not defective. (N.T. December 6, 1989, at 101-104.) The jury never went on to determine whether there was a superceding cause. Appellant’s fourth argument is without merit.

Appellant’s fifth argument is that the trial court erred in giving an instruction regarding the liability of the defendant doctors. To address this issue, some background is required. First, the action against the doctors had been settled at the time of trial. Second, appellant’s counsel, during closing argument, made an argument that was objected to by opposing counsel to the extent that the doctors who testified had no liability. Appellant’s counsel stated “[t]hey would not lose anything. They would not have lost a single thing if they came into you (sic) and said they cut the string. They would not have to pay money if they said that ...” (N.T. December 5, 1989, at 26.) At this point, opposing counsel objected and the objection was sustained. The court responded to this comment with a curative instruction.

Also, there was a comment made Dr. Palmaccio and Dr. Smith would not have to pay money and somehow or another this had some connection with their taking the witness stand, coming to testify in this case.
Well, if they were parties to this action, and you found they were liable and responsible to the plaintiff, then Drs. Palmaccio and Smith, if so determined, would have to compensate the plaintiff.

(N.T. December 6,1989, at 57.) This is not an instruction that the court would have given absent the comments of appellant’s counsel. Our review of appellant’s counsel’s closing argument indicates that the comments surrounding the liability of the doctors were an unsupported attack on the doctors’ credibility. The trial court could have handled this by simply instructing the jury that the liability of the doctors was not at issue, except insofar as the doctors’ conduct might constitute a superceding cause. We find that the trial court’s curative charge sufficiently directed the jury that this was not a proper inquiry. We find that the entire charge directed the jury to the proper issues. Appellant’s fifth issue is without merit.

Appellant’s sixth argument is that the trial court erred in not sustaining her objections to defense counsel’s statements regarding the claims against the other defendants. Appellant’s argument is that the trial court allowed evidence of a settlement. That is not what occurred in this case. Appellant argues that although the word settlement was not used, the impact on the jury of the evidence of the other claims was that a settlement had occurred. Of course, this is one inference that could be made in any case where there are multiple defendants and the jury is not deciding the case against all of the defendants. It is quite clear, however, that cases involving multiple defendants in which some but not all the defendants have settled are tried in the courts of this Commonwealth on a regular basis. In those cases, the trial courts are in a difficult position because they must carefully guard against any reference to a settlement while allowing evidence to apportion liability and pursue defenses. Appellant has raised numerous meritless arguments in this regard; we address each below.

Appellant is correct that evidence of a settlement would be impermissible. In this case, however, appellant mischaracterizes the evidence in question. A review of appellant’s causes of action indicates that they are somewhat inconsistent. This is most clearly shown by appellant’s malpractice action against the doctors alleging that they cut the string. If the doctors cut the string, a jury could find that this was a superceding cause relieving Codman of liability. Further, the malfunction theory of products liability allows a jury to circumstantially find a defect by finding a malfunction, no improper use and no reasonable secondary causes. If the doctors cut the string, this could be found by the trier of fact to be misuse or a reasonable secondary cause. Thus, this is a viable defense that the defense was entitled to pursue with admissible evidence at trial.

The defense was not allowed to present any inadmissible or irrelevant matters. Appellant presented the existence of the other claims to the jury when reading portions of depositions to the jury. Appellant apparently had no objection to being open regarding the litigation at trial. Information regarding the nature of related settled causes of action, although of questionable relevance, does not violate the rule against admission of settlements unless the settlement is introduced. In this case, the settlement was not introduced.

Appellant next complains that defense counsel argued that she sued the hospital and doctors. Defense counsel was stating true facts, relevant to the defenses described above. Further, appellant was introducing the same information.

Appellant next complains that defense counsel referred to one of the experts as “plaintiffs expert.” Although appellant did not call the expert at trial, the expert was acquired by appellant. Clearly, which party retained an expert is extremely relevant to the expert’s credibility.

Appellant also complains that defense counsel used her complaints in the actions against the doctors against her on cross-examination, and further that defense counsel introduced admissions of appellant that were made in response to requests for admission filed by the other defendants. Our review of the testimony indicates that these matters were relevant and admissible. First, pleadings are admissible as admissions of the verifying party. Tops Apparel v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968). In this case, the matters admitted in the complaints were directly relevant to the defenses described above. Second, regarding the admissions, the admissions were of record in this case. Admissions of a party opponent are admissible. The admissions were also relevant to the defenses described above. Appellant’s argument in this regard rambles on for several pages on the basis that the defense used plaintiffs case preparation against the other defendants to develop the defense case. This argument is ridiculous. The defense used relevant, admissible matters of record to develop its case. Appellant’s sixth argument is without merit.

Appellant’s final meritless argument is that the trial court erred in admitting expert testimony that went beyond the scope of the expert’s pre-trial report. Appellant complains that in Dr. Fager’s video trial deposition, Dr. Fager’s testimony went beyond the scope of his pre-trial report. Specifically, appellant complains that in his pre-trial report Dr. Fager did not state the reason that the cottonoid became detached, but that in his trial deposition Dr. Fager testified that the eottonoid marking string was cut by one of the doctors. The difficulty here is that appellant never raised this objection at trial. The record is devoid of any objection by appellant to the introduction of the video trial deposition in its entirety. Accordingly, appellant’s argument in this regard is waived. Appellant’s final issue is without merit.

For all of the foregoing reasons, the judgment of the court of common pleas is affirmed.

Order affirmed.

WIEAND, J., concurs in the result.

      . We note that a final judgment was entered from this order on February 4, 1991.

      . We note here that there is a rising trend toward establishing a post-sale duty to warn. See Majdic, at 639-640, 537 A.2d at 348-349 (Wieand, J., dissenting).

      . Appellant argues to some extent on this point that at trial she was pursuing a theory that the cottonoid was defective in that it could not be visualized on an X-ray. We have reviewed the record and find that appellant effectively waived any cause of action in this regard by admitting that the cottonoid could be visualized on an X-ray. (N.T. December 4, 1989, at 79-80.) Appellant admitted that had the X-ray been properly taken, the cottonoid would have been visible on the X-ray. Appellant thereby effectively waived her right to any claim that the cottonoid was defective because it could not be visualized on an X-ray. Appellant has admitted that the cottonoid could be visualized on an X-ray. In this regard, we find that any reports regarding the fact that the cottonoid could not be visualized on an X-ray were irrelevant.

      . We note here that, although the trial court technically misstated the definition of superceding cause at one point in the charge, a reading of the entire charge presents a correct statement of the law on superceding causation. If, therefore, the jury had reached this issue, we would have little difficulty affirming on this basis.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    614 A.2d 709
    Rodney JAMES, Executor of the Estate of Patricia James, and Rodney James, in his own right, Appellant, v. Maeve NOLAN, M.D., An Individual, Firm Labs Service, P.C., A Corporation.
    Superior Court of Pennsylvania.
    Argued May 19, 1992.
    Filed Sept. 9, 1992.

      Paul F. Laughlin, Pittsburgh, for appellant.
    David R. Johnson, Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and MONTEMURO and HESTER, JJ.
   ROWLEY, President Judge:

In this appeal from the judgment entered on the jury verdict in favor of appellee Maeve Nolan, M.D., and Firm Labs Service, P.C. (hereinafter “appellees”), appellant Rodney James (hereinafter “appellant”) seeks a new trial based on his contention that the trial court erred in several respects and that the jury’s verdict was inconsistent with the law and the facts of this case. The following four issues have been raised for our consideration: (1) whether the jury’s finding that appellee was negligent but that her negligence was not a substantial factor in causing appellant’s harm was inconsistent; (2) whether the trial court should have admitted the Pennsylvania Blood Bank statute into evidence; (3) whether the trial court’s jury instructions adequately addressed the concept of “substantial factor;” and (4) whether the trial court erred in permitting testimony and argument regarding various factors, rather than just the one advanced by appellant, which could have caused appellant’s harm. Having thoroughly reviewed the record and considered the arguments of the parties, we affirm.

Recently, this Court reiterated the standard of review which we utilize in evaluating the appellant’s claims in the instant appeal:

When assessing the denial of a motion for new trial, the Superior Court will reverse only where the [trial] court has clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.

Lilley v. Johns-Manville Corporation, 408 Pa.Super. 83, 95, 596 A.2d 203, 209 (1991).

The factual and procedural history of this case is as follows: Appellant filed a negligence suit against various defendants in his own name and as executor of the estate of his wife, a deceased blood technician (Patricia James) who was employed by the McKeesport Hospital’s blood bank prior to her demise. In his action, he claimed damages which resulted from his wife’s contraction of Acquired Immune Deficiency Syndrome (hereinafter’ “AIDS”) in the course of her performance of an apheresis procedure on a patient whose blood had not been tested for the human immunodeficiency virus (hereinafter “HIV”) prior to the procedure, but which would ultimately reveal the presence of HIV. By the time of trial, appellees were the only defendants remaining in the case. Following a jury trial, a verdict was returned in favor of appellees. Post-verdict motions were denied in a comprehensive twenty-eight page memorandum opinion by the trial judge, whereupon the instant appeal was taken.

Patricia James, appellant’s decedent, was employed by the McKeesport Hospital in the capacity of assistant supervisor of the blood bank when the events involved in this case took place. As a result of her position, she was required to act as supervisor in the absence of the blood bank’s regular supervisor, Marilyn McDonough. At all times relevant to this action, Ms. McDonough was on vacation and Patricia James was acting as supervisor of the blood bank.

At the time that this cause of action arose, appellee, Dr. Maeve Nolan, was medical director of the McKeesport Hospital blood bank, but she was not an employee of the hospital. Appellee Nolan owned a professional corporation, appellee Firm Labs Service, which billed the hospital for the professional services of Dr. Nolan.

On December 3,1986, a patient at McKeesport Hospital was in desperate need of a platelet transfusion from a family member. The patient’s attending physician advised appellee Nolan of the immediate need for platelet apheresis because Dr. Nolan, as director of the blood bank, was the only person who could schedule an apheresis procedure. A relative was located and told to report to the blood bank for preliminary blood work in preparation for the potential donation of his blood.

That afternoon, the potential donor arrived at the lab and blood was drawn for tests routinely performed on a prospective donor’s blood. The hemoglobin, hematocrit and white blood cell levels in his blood were tested immediately to ascertain whether the donor could withstand the apheresis process without harming his own health. Within an hour, the results were returned as normal and appellee Nolan scheduled the apheresis procedure for the next day, December 4, 1986.

As a matter of routine, prior to the ultimate transfusion of the platelets into the patient, additional tests (including tests for hepatitis and HXV) were to be performed on the donor’s blood in order to determine whether his platelets would be suitable for transfusion. These tests were to be performed by a lab technician assigned to the task by the blood bank supervisor, or in her absence, the acting supervisor. As the physician in charge of the blood bank, appellee Nolan never did the actual testing of potential donors’ blood. McKeesport Hospital protocol mandated that the blood be tested for HIV during the morning shift because the test requires about four hour’s time and the morning shift is the most heavily staffed.

In the instant case, the donor’s blood was drawn on the afternoon of December 3rd and the apheresis procedure was scheduled for the next morning, December 4th, due to the patient’s urgent need for the platelets. Therefore, due to the medical urgency of the situation, the donor’s blood had not been tested for HIV prior to commencement of the procedure, but was to be so tested prior to ultimate transfusion of the platelets.

During an apheresis procedure, the donor is attached to a centrifuge with a needle in each arm. The donor’s blood continuously flows from one arm into the machine and back into the other arm while the machine separates out the platelets from the other components of the donor’s blood. The procedure requires the participation of two healthcare workers — one to operate the machine and the other to assist the patient.

In the instant case, the decedent, Patricia James, operated the machine with the assistance of Georgia Gentile. In the course of the procedure, technical difficulties ensued with the machine’s tubing, automatically causing the machine to stop. Mrs. James attempted to remedy the problem by removing and replacing the tubing, rather than terminating the process or contacting the blood bank director, appellee Nolan. No reference was made by the two technicians to the machine’s manual.

According to the trial testimony, Mrs. James removed the clogged segments of tubing containing the donor’s blood without clamping them or restricting the flow of blood in any manner. The donor’s blood spurted on the machine and all over Mrs. James’ hands and arms. In violation of the hospital’s infection control policy, and despite the availability of a sink and gloves within several steps of the machine, Mrs. James’ did not wash the blood off herself, but rather, cleaned the machine and mopped up the blood around the area of the machine without wearing gloves.

While Mrs. James was still covered with blood, forty-five minutes elapsed as she re-tubed the machine and set it back into operation. Finally, at the suggestion of her assistant, Mrs. James washed off the blood which had accumulated on her hands and arms. Several experts testified at trial that the length of an exposure to infected blood increases the risk of infection.

The apheresis procedure was completed and the donor was discharged. Subsequently, the tests remaining to be run on the donor’s blood sample were conducted and the HIV test revealed a positive result. Due to her exposure to the donor’s blood during the apheresis procedure, Mrs. James was tested immediately for HIV. Initially, she tested negative, but she later developed a positive HIV test and eventually died of AIDS in October of 1989.

Appellant subsequently filed suit alleging that appellee Nolan negligently caused Mrs. James to become infected with the AIDS virus. The allegations of negligence included the following: (1) a complaint that appellee Nolan had improperly scheduled the apheresis procedure before the results of the donor’s HIV test were known, (2) a claim that appellee Nolan had failed to warn Mrs. James, as operator of the machine, that the test results were not yet known, and (3) a complaint that appellee Nolan should have required the apheresis technicians to wear gloves either at all times, or in this particular instance because the results of the test had not yet been determined. On appeal, appellant claims that he abandoned the second two theories of negligence prior to trial. However, the record reveals that evidence was introduced by appellant at trial which was relevant to those theories and a great deal of appellees’ case was relevant in rebutting those two theories.

During the trial, it was established that as of December 4, 1986, there was no evidence that HIV had ever been transmitted to a healthcare worker by way of a so-called “splash” like the one involved in this case. The state of the art testimony was that a healthcare worker was subject to contracting the virus from a patient only from a blood-to-blood transmission through a needle prick or by being cut with some other sharp object which was contaminated with HIV. Various theories were then presented at trial as to how the blood encountered by Mrs. James in the apheresis procedure could have infected her.

At the conclusion of the trial, the court denied appellees’ motion for a directed verdict and advised the parties’ attorneys that the case would be submitted to the jury on the basis of special interrogatories. Those questions were presented to counsel for approval and counsel for appellant did not object to them. An objection to them was made, however, by appellees’ counsel because they failed to include any questions concerning assumption of the risk.

The jury’s verdict was in response to the first three questions on the verdict form. They found by a fair preponderance of the evidence that Mrs. James became infected with HTV as a result of the blood exposure on December 4, 1986. Also by a fair preponderance, the jury found that appellees negligently breached a duty of care owed to Mrs. James but that appellees’ negligent breach of the duty owed to Mrs. James was not a substantial factor in causing her harm.

After the verdict was read, the jury was polled and all twelve jurors indicated that they agreed with the verdict as returned. At no time prior to, during, or after this poll did appellant object to the verdict or indicate any desire to address the court and consequently, Judge Wettick cleared the courtroom of all persons, other than the jury. Thereafter, appellant moved for a new trial on several grounds. The motion was denied and this timely appeal was taken.

In seeking a new trial, appellant first contends that the jury’s verdict in this case was inconsistent with the facts adduced at trial. In reviewing this contention, we note that:

It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict.

Goldmas v. Acme Markets, Inc., 393 Pa.Super. 245, 251, 574 A.2d 100, 103 (1990); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 440, 539 A.2d 871, 875 (1988). It is also firmly established that strict form is not required in a verdict. All that is essential is that a jury’s intention be clearly understood and free of ambiguity. Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 211, 380 A.2d 451, 453 (1977).

With those considerations firmly in mind, we turn to appellant’s argument that only one theory of negligence was submitted to the jury and therefore, because the jury found that appellees were negligent, they were then compelled by the evidence in this case to find further that appellees’ negligence was a substantial factor in causing Mrs. James to become infected with HIV. We disagree.

As argued by appellees, a review of the trial court’s charge to the jury, on reasonable man common law negligence and the role that contributory negligence plays in the “substantial factor” analysis of legal cause, reveals that the jury could have decided the way that it did for at least two reasons; either because they found appellees’ failure to warn Mrs. James that the blood had not yet been tested was negligent but that her own knowledge of that fact mooted that negligence as a substantial factor or because they found that Mrs. James’ own conduct was the sole substantial factor of her harm, notwithstanding any negligence on the part of appellees. There is voluminous evidence of record which would fully support either finding and therefore, we conclude that the verdict was neither improper nor ambiguous.

In sole support of his argument, appellant cites us to Chiaverini v. Sewickley Valley Hospital, 409 Pa.Super. 630, 598 A.2d 1021 (1991) where this Court upheld a trial court order granting a new trial where an inconsistent verdict was returned by the jury. However, as the appellant himself states in his brief, the jury in that case returned the following answers on a verdict form containing interrogatories:

1. Did you find that the Defendant was negligent? Yes.
2. Was the Defendant’s negligence a substantial factor in bringing about the Plaintiff's harm? No.
3. State the amount of damages, if any, sustained by the Plaintiff as a result of the occurrence. $50,000.00

Id., 409 Pa.Superior Ct. at 632, 598 A.2d at 1022. Obviously, the Chiaverini case is entirely different from the instant case. There, the jury found that the defendant’s negligence was not a substantial factor in causing plaintiffs harm but nevertheless went on to find that the defendant was liable to plaintiff for damages. In sharp contrast, the jury in the instant case exercised its judgment after reviewing all of the evidence presented and found that the events which occurred after the blood spilled were too attenuated from appellees’ negligence to have been legally caused by such negligence.

We find support for our conclusion on this issue in Goertel v. Muth, 331 Pa.Super. 179, 480 A.2d 303 (1984). See also, Goldmas v. Acme Markets, Inc., 393 Pa.Super. 245, 574 A.2d 100 (1990); Hilbert v. Katz, 309 Pa.Super. 466, 455 A.2d 704 (1983). In Goertel, as in the instant case, the jury found that the defendant had been negligent but that the negligence was not a substantial factor of plaintiffs harm. However unlike the case we now consider, the jury in Goertel went on to apportion the amount of negligence they attributed to each party, finding the plaintiff 90% negligent and the defendant only 10% negligent. There, as in the instant case, the jury was polled and, as in the case before us, they unanimously indicated that they intended to find that the defendant was negligent but that the defendant’s negligence was not a substantial factor in causing plaintiffs harm.

In Goertel, this Court did not perceive confusion in the jury’s conclusions, but instead concluded that the 90-10% allocation of liability actually served to buttress the jury’s intention to find that the negligence was not the legal cause of any harm suffered. In so concluding, the Court emphatically stated that:

“... we cannot become so enmeshed in language that we ignore the clear expression of a conscientious lay jury. The record demonstrates without question that they exerted every effort to perform their duties in accordance with the instructions given and to convey to the court and litigants with all the clarity they could summon the results of their deliberations. No more can be reasonably required [from] those not trained in the law. Nor can we discard their diligent effort because of an asserted lack of precision in legal expression.”

Id. 331 Pa.Super. at 186, 480 A.2d at 307. For the same reasons as enunciated in Goertel, we conclude that the jury’s verdict rendered in the instant case must stand.

We note that our conclusion on this issue is buttressed by the fact that the trial judge specifically charged the jury on the various results which they could reach in their “substantial factor” analysis of legal cause. In the context of an automobile accident, the court specified that the jurors could return the precise verdict which they did. In that regard, the court stated:

Let us assume in this case that the defendant, Dr. Nolan, was a driver and let’s assume the plaintiff, Patricia James, was a pedestrian who was hit by Dr. Nolan while she was driving. Okay, the first question — let’s go back to the example that I gave you first, if you will remember, in the opening statement.
In the first example we had Mrs. James crossing the street with the light, having looked both ways and what we have is Dr. Nolan’s car coming down, speeding, goes against the red light, crashes through the intersection and hits Patricia James.
Let me give you a variation on that. Let’s suppose that Dr. Nolan is supposed to drive with eyeglasses but that she wasn’t wearing her eyeglasses but she was proceeding slowly and Mrs. James leaps out in front of the car.
In that case, the first thing you’d say is well, yes, she did breach a duty of care because she is supposed to be wearing eyeglasses. Then you have to move on to Question 3 [on the verdict form] and suppose you found, look, it is quite clear she saw Mrs. James the minute Mrs. James jumped out because Mrs. James jumped out so close to her, so it didn’t matter that she wasn’t wearing her eyeglasses, the same accident would have occurred.
In that case, then you would check [No. 3] no, that it wasn’t a substantial factor. So you come back to court saying her negligence or failure to wear the eyeglasses isn’t what caused this injury so, therefore, she is not legally responsible.

Reproduced Record, p. 606a (emphasis added).

In light of this jury charge, it is beyond question that the jury could reasonably have found that Dr. Nolan was negligent in some manner but that Mrs. James legally caused her own harm. The jury may well have found that Patricia James “jumped out too close in front of the oncoming car” when she took it upon herself to fix the apheresis machine rather than terminate the procedure or seek assistance, when she cleaned up the blood spill without gloves, and/or when she allowed the donor’s blood to accumulate on her arms and hands for some forty-five minutes as she replaced the machine’s tubing. Because these are all reasonable theories, we conclude that the verdict is supported by the record and is therefore, consistent with the law and the facts of this case.

The second issue presented by appellant is whether the trial court should have admitted the Pennsylvania Blood Bank statute into evidence. Appellant contends that the legislation and regulations are relevant to the issue of whether appellee Nolan’s negligence was a substantial factor in causing Mrs. James’ harm. It is argued that the jury may have been confused as to the relative roles played by Mrs. James as acting supervisor and appellee Nolan as blood bank director and that therefore, as a result of their “possible” confusion, they may have believed that it was Mrs. James’ responsibility to postpone the apheresis procedure until the testing was completed. We conclude that this argument is without merit. This point was given detailed coverage in the trial court’s opinion, at pages 27-28, and we adopt the trial court’s reasoning on this issue as our own. In addition, we note that the court’s charge fully apprised the jury, over the objection of appellees, that appellee Nolan, who had approved the patient as a donor, owed a duty of care to Mrs. James because of her position as medical director of the blood bank. Therefore, the jury could not, as appellant suggests, have found the way they did on the basis that Mrs. James should have rescheduled the procedure herself.

In considering the third issue, as to whether the trial court’s jury instructions relating to proximate cause and substantial factor were adequate, we adhere to the following standard of review.

In reviewing a trial court’s instruction to the jury, it is well settled that we must review the court’s charge in it’s entirety to determine whether any prejudicial error has been committed. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). “A trial court is not required to accept the precise language of points for charge submitted by counsel so long as the issues are defined accurately and the applicable law is correctly reviewed.” Spearing v. Starcher, 367 Pa.Super 22, 29, 532 A.2d 36, 40 (1987). See also: Geyer v. Steinbronn, 351 Pa.Super. 536, 554, 506 A.2d 901, 911 (1986); Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983).

Cooper v. Burns, 376 Pa.Super. 276, 283, 545 A.2d 935, 938 (1988), alloc. denied, 522 Pa. 619, 563 A.2d 888 (1989). Appellant argues that the trial court failed to properly instruct the jury on the issue of proximate cause because it refused appellant’s points for charge 9, 10, and 11. Points 9 and 10 relate to forseeability where the jury has found negligence and that the negligence was a substantial factor in bringing about harm. The jury did not find that appellee Nolan’s negligence was a substantial factor in James’ contraction of AIDS and therefore, even if it was trial court error to refuse the requested points, it was harmless inasmuch as appellants were not prejudiced by it. Further, the trial court’s instructions did not suggest that forseeability was an additional requirement for establishing a substantial factor, and therefore, it would have been confusing and unnecessary to instruct the jury on the immateriality of forseeability in a substantial factor analysis.

Point 11 of appellant’s proposed jury instructions deals with various considerations which are important in deciding whether an actor’s conduct is a substantial factor in bringing about another’s harm. All these considerations were covered in the trial court’s explanation of substantial factor in the context of various automobile accident examples. Reproduced Record, pages 597a-607a. As stated above, there is no precise language which must be used in charging the jury. We therefore conclude that the charge in the instant case correctly reviewed the applicable law.

And, finally, we turn to appellant’s claim that the trial court erred in permitting testimony to the effect that Mrs. James’ infection was caused by factors other than the failure of appellees to ascertain the results of the HIV testing prior to scheduling the apheresis procedure. Appellant offers no legal or evidentiary authority for this assertion, and our research of the record and the law reveals none. Consequently, in rejecting appellant’s argument, we rely upon the trial court’s reasoning as to this issue, as follows:

[T]he initial issue in this case was whether Ms. James became infected with the AIDS virus as a result of the December 4,1986 blood exposure. Consequently, testimony as to how the December 4, 1986 blood spill could have caused the infection was relevant. Also, Ms. James’ activities throughout the apheresis procedure were relevant to the issue of whether Ms. James was comparatively negligent.

Trial Court Opinion, p. 26. The trial court did not abuse its discretion in permitting the challenged testimony.

In short, appellant’s first two arguments, although earnestly presented, are based on mere speculation as to what the jury might have thought or what they could have found. Despite the tragic nature of this case, we cannot invade the province of the jury absent definitive proof that the verdict was without a reasonable basis in fact. The rest of appellant’s arguments speculate as to the possible effect the trial court’s exercise of discretion might have had on the jury in admitting certain testimony and in charging the jury. Again, absent substantive evidence that an abuse of discretion or error of law was made during the trial, we cannot invade the discretionary province of the trial court.

Accordingly, the trial court’s denial of appellant’s request for a new trial and the judgment entered upon the jury’s verdict are affirmed.

Judgment affirmed.

      . Appellees argue that this issue has been waived by appellant's failure to raise the issue in the trial court. The courts of this Commonwealth have a long-standing rule prohibiting the introduction of new issues at the appellate level. Lancaster County Tax Claim Bureau v. Valenti, 144 Pa.Cmnwlth. 238, 240, 601 A.2d 445, 446 (1991).
      The trial court ruled that the issue had not been waived since all persons but jurors, including counsel, were ordered from the courtroom immediately after the jury was polled. In deference to the trial court, we will consider the appellant’s inconsistency argument. However, we believe that the issue was waived.
      Appellant did not object to the verdict form proposed by the court even though it was obvious that the form permitted the jurors to find negligence on the part of appellee Nolan, in response to the second question, and an absence of proximate cause, in response to the third question. Further, although the judge asked individuals to leave the courtroom after accepting the verdict, we believe that counsel had an opportunity to rise at the point when the jury was being polled, and request a conference with the court so that any inconsistency in the jury's verdict could be clarified. Normally, such inaction constitutes waiver. See Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376 (1984); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1964).

      . For the reasons given in footnote 1 above, we will consider the merits of the issue. However, we note that normally this issue would be waived because appellant’s counsel made no attempt to preserve it for appeal. No objection was made after the jury charge regarding the court's failure to read the precise language of the Blood Bank Act. See Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).


author: BROSKY, Judge.

text:
    614 A.2d 717
    Michael WINKELMAN, Appellant, v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed Sept. 10, 1992.

      Barry S. Yaches, Jenkintown, for appellant.
    Thomas P. Kelly, Philadelphia, for appellee.

      Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a declaratory judgment entered in favor of appellee, Pennsylvania Financial Responsibility Assigned Claims Plan (hereinafter PFRACP). Appellant, Michael Winkelman, presents the following issues for our review: (1) whether the Motor Vehicle Code requires a motor vehicle, which is not exempted from the registration provisions of the code, to be registered even though the vehicle is not driven or moved upon a highway, and if so, (2) whether the vehicle must be insured pursuant to the financial responsibility provisions of the Motor Vehicle Financial Responsibility Law. For the reasons set forth below, we affirm the declaratory judgment.

Before addressing the issues raised by appellant, we will briefly recount the relevant facts of this case. In the early morning hours of September 14, 1989, appellant was riding as a passenger in an uninsured motor vehicle owned and operated by his former brother-in-law, Thomas Connelly, when Mr. Connelly’s vehicle suddenly collided with a bus operated by the Southeastern Pennsylvania Transportation Authority (SEPTA). Appellant sustained injuries to his hand and lower back as a result of this incident. Although appellant owned an automobile, this vehicle was neither registered nor insured. Consequently, appellant applied to appellee for benefits. Appellee denied appellant’s claim because he did not meet the eligibility requirements of 75 Pa.C.S.A. § 1752(a)(3). Appellant thereafter filed a complaint seeking declaratory relief as to his entitlement to benefits under the assigned claims plan. Cross-motions for summary judgment were filed by both parties but were denied by the lower court. An opinion announcing the decision of the trial court in favor of appellee was subsequently issued. This timely appeal followed.

As a preliminary matter, we are compelled to comment upon the procedural irregularities in this case as they affect our ability to reach the merits of the appeal. We must first ascertain whether appellant has preserved his claims for review despite the fact that no post-trial motions were filed in the lower court. With regard to this question, we observe that appellant initiated a declaratory judgment action. The procedural rule governing actions of this type directs that the practice and procedure in such cases shall follow, as nearly as may be, the rules governing an action in equity. Pa.R.C.P., Rule 1601(a), 42 Pa.C.S.A.

In describing the equity practice and procedure, the applicable rules require the lower court to make an adjudication which consists of: (1) a statement of the issues; (2) a closely condensed chronological statement of the findings of fact which are necessary to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law; and (4) a decree nisi Pa.R.C.P., Rule 1517(a), 42 Pa.C.S.A. After the adjudication and decree nisi have been filed, the parties may then challenge the decree and the factual findings by filing appropriate post-trial motions. See Pa.R.C.P., Rule 227.1, 42 Pa.C.S.A. (governing post-trial practice following the entry of a decision by the trial court in a trial without a jury or in an equity trial). Upon the disposition of post-trial motions, the decree nisi is entered as a final decree. See Pa.R.C.P., Rule 227.4, 42 Pa.C.S.A. The order providing for the entry of the final decree is the final order which can then be reviewed on appeal.

As applied here, we observe that the trial court filed an opinion instead of the adjudication and decree nisi required by Rule 1517(a), supra. Under similar circumstances, this court has excused the parties’ failure to file post-trial motions. See Daley-Sand v. West American Insurance Co., 387 Pa.Super. 630, 636, 564 A.2d 965, 968 (1989) (holding that the appellant’s failure to file exceptions did not defeat appellate review where the trial court filed an order and opinion rather than an adjudication and decree). We therefore conclude that appellant’s failure to file exceptions or post-trial motions does not prevent us from reaching the merits of his claims.

In addition to the lack of a proper adjudication and decree, the trial court failed to enter a final order or decree which expressly directs the entry of judgment in favor of appellee. Ordinarily, we would remand to the lower court for the entry of a proper final order or decree. See Pa.R.A.P., Rule 902(a), 42 Pa.C.S.A. (permitting an appellate court to remand for the completion of a procedural step which has been omitted). However, our Supreme Court has indicated that for procedural omissions of this type, the interests of justice require us to “ ‘regard as done that which ought to have been done.’ ” McCormick by McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989) (citation omitted). Because it is clear from the record that the trial court intended to enter a final judgment in favor of appellee but inadvertently neglected to do so, we will overlook this technical defect. Summit Fasteners, Inc. v. Harleysville National Bank & Trust Co., Inc., 410 Pa.Super. 56, 59 n. 1, 599 A.2d 203, 205 n. 1 (1991) (in which this court applied the directives of McCormick and proceeded to entertain the appeal despite the fact that a final order had not been entered).

Because a declaratory judgment action follows as nearly as may be the practice and procedure in an equity action, we will review the lower court’s determination in the same manner as we would an equity decree. Clearfield Volunteer Fire Department v. BP Oil, Inc., 412 Pa.Super. 29, 31, 602 A.2d 877, 878 (1992), citing Supp v. Erie Insurance Exchange, 330 Pa.Super. 542, 544, 479 A.2d 1037, 1038 (1984). Our scope of review is as set forth as follows:

A [declaratory] judgment of a trial court will not be reversed absent a clear abuse of discretion or error of law. The test is not whether we would have reached the same result on the evidence presented, but whether the trial court’s conclusion can reasonably be drawn from the evidence. Where the trial court’s factual determinations are adequately supported by the evidence, we may not substitute our judgment for that of the trial court.

Clearfield Volunteer Fire Department v. BP Oil, Inc., 412 Pa.Super. at 31, 602 A.2d at 879 (citations omitted). Accord Supp v. Erie Insurance Exchange, 330 Pa.Super. at 544, 479 A.2d at 1038. We will evaluate appellant’s claims and the decision of the lower court in accordance with these principles.

In his first and second issues, appellant contends that he was not required to register his vehicle and that he was not required to insure his properly unregistered vehicle. These claims are actually sub-issues of the larger question as to whether appellant is eligible to receive benefits from appellee. Because the analysis of these matters is inextricably intertwined, they will be addressed together.

We begin with a review of the relevant provisions of the Motor Vehicle Financial Responsibility Law (MVFRL), codified at 75 Pa.C.S.A §§ 1701-1799.7. Subchapter E of the MVFRL relates to the assigned claims plan which provides benefits to individuals who are injured in an automobile-related accident and who are not otherwise entitled to receive insurance benefits. Jackson v. Travelers Insurance Co., 414 Pa.Super. 336, 338, 606 A.2d 1384, 1385 (1992). Section 1752(a) of subchapter E defines the class of individuals who are eligible to receive benefits under the assigned claims plan and provides, in relevant part, that

[a] person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements: ... (3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles)____

75 Pa.C.S.A. § 1752(a)(3). As made clear by this particular provision, an eligible claimant cannot be an owner of a motor vehicle that is required to be registered. Thus, appellant would be eligible for benefits if he could demonstrate that he was not the owner of a motor vehicle that was required to be registered. In this case, there is no question that appellant was the owner of a motor vehicle. Trial Court Opinion, filed 11/18/91, at 3. Appellant does not dispute this finding. Rather, appellant argues that his motor vehicle was not of the type that was required to be registered. We will therefore confine our discussion to this particular claim.

In interpreting the phrase “required to be registered” this court has indicated that it refers to all vehicles which have not been exempted from registration under 75 Pa.C.S.A. § 1302. Riley v. Travelers Insurance Co., 390 Pa.Super. 179, 183, 568 A.2d 253, 255 (1990), allocatur denied, 527 Pa. 649, 593 A.2d 421 (1990). Although this interpretation was made with respect to § 1752(a)(7), it is a well-settled principle of statutory construction that a word or phrase used in one place in a statute will be construed to mean the same when it is used elsewhere in the same statute. Delaware County Mortgage & Finance Co. v. Board of Commissioners of Delaware County, 168 Pa.Super. 143, 149, 77 A.2d 746, 749 (1951); Commonwealth v. Saul, 346 Pa.Super. 155, 161, 499 A.2d 358, 360 (1985). Accordingly, we will interpret the phrase “required to be registered” found in § 1752(a)(3) in the same manner as that found in § 1752(a)(7). We must therefore turn to Chapter 13 of the Motor Vehicle Code to examine the registration requirements.

The Motor Vehicle Code provides that “[n]o person shall drive or move and no owner shall knowingly permit to be driven or moved upon any highway any vehicle[] which is not registered in this Commonwealth unless the vehicle is exempt from registration.” 75 Pa.C.S.A. § 1301(a) (footnote added). Section 1302 identifies nineteen different types of vehicles or classes thereof which are exempt from the registration requirement. None of these categories applies to appellant’s vehicle and appellant does not argue that his vehicle falls within any of the identified exceptions. Instead, appellant suggests that he was not required to register his vehicle because he did not use his car on the highways and refers us to Edkins v. Travelers Insurance Co., 18 Lycoming County Reports 10 (1989) in support of this proposition.

The holding expressed in Edkins, which appellant now urges us to adopt, is that a vehicle need not be registered or insured where it is neither actually driven nor intended to be driven on a highway. Edkins, at 11-12. Edkins is not binding precedent on this court and we do not find the conclusion set forth therein to be particularly persuasive because the trial court reached its disposition without any attempt to analyze the relevant provisions of the MVFRL or the authorities which interpret it. Further, the result reached in Edkins and similar cases is contrary to the decisions of this court in which we have repeatedly rejected similar arguments. See, e.g., Riley v. Travelers Insurance Co., 390 Pa.Super. at 183, 568 A.2d at 254-255 (concluding that a motorized pedalcycle was a motor vehicle that was required to be registered, and that the inoperability of the motor did not affect this requirement). See also Kresge v. Keystone Insurance Co., 389 Pa.Super. 548, 551-552, 567 A.2d 739, 740-741 (1989) (finding that lack of use or inoperability of a registered vehicle did not absolve a claimant from obtaining insurance for that vehicle) and Allen v. Erie Insurance Co., 369 Pa.Super. 6, 12, 534 A.2d 839, 841 (1987) (holding that the driveability or operability of a vehicle is not a relevant consideration in determining whether a claimant is eligible to receive first-party benefits). Notwithstanding appellant’s reliance upon Edkins, we find the correct approach to be set forth in Blair v. Travelers Insurance Co., 8 Pa.D. & C.4th 157, 160 (1990), affirmed — Pa.Super. —, 613 A.2d 25 (1992) (per curiam unpublished memorandum) (in which the trial court examined the relevant provisions of the Motor Vehicle Code and the MVFRL, as well as this court’s prior decisions in Kresge and Allen, and concluded that vehicles which were inoperable or not actually driven were not exempt from the registration requirements).

More importantly, if the legislature had clearly intended to excuse inoperable or unused vehicles from the registration requirements it could easily have done so. The fact that these items have not been specifically included among the nineteen enumerated exceptions leads us to conclude that the legislature did not intend to exempt inoperable motor vehicles or vehicles which their owners do not intend to drive or move on the highways from registration. See, e.g., Henrich v. Harleysville Insurance Companies, 403 Pa.Super. 98, 103-104, 588 A.2d 50, 52-53 (1991), allocatur granted, 528 Pa. 611, 596 A.2d 157 (1991) (applying the maxim of statutory construction “expressio unius est exclusio alterius,” i.e., the mention of one thing in a statute implies the exclusion of others not expressed).

We therefore reject appellant’s suggested interpretation of the Motor Vehicle Code and hold that all vehicles must be registered and insured by their owners, regardless of their operability or intended usage by their owners, unless they specifically fall within one of the duly authorized exemptions. Because appellant’s vehicle was of the type that was required to be registered under the registration provisions of Chapter 13 of the Motor Vehicle Code and because appellant owned the motor vehicle at the time his claim arose, he is ineligible to receive benefits under the PFRACP.

Judgment affirmed.

      . Specifically, appellant cut his hand in the accident. Deposition of Michael Winkelman, 1/8/91 at 14. Appellant additionally claims that he has suffered from chronic lower back pains which require him to constantly wear a back brace while he works. Id. at 18-22.

      . The certified record indicates that appellant purchased the car prior to the accident and that he merely held title to the car. Deposition of Michael Winkelman, 1/8/91, at 33-34. After he bought the vehicle, appellant discovered that it would require a substantial amount of work and sold it to a junk dealer. Id. 31 and 36-37. Appellant did not register the car with the Commonwealth and indicated that he never drove it after its purchase. Id. at 36. Appellant was uncertain as to whether he still had this car in his possession when he was injured. Id. at 30-31.

      . An owner is defined under the Motor Vehicle Code as ‘‘[a] person, other than a lienholder, having the property right in or title to a vehicle....” 75 Pa.C.S.A. § 102. A motor vehicle is classified as "[a] vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” Id.

      . The Motor Vehicle Code defines a vehicle as "[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” 75 Pa.C.S.A. § 102.

      . See, e.g., Mengel v. Travelers Insurance Co., 80 Berks County Law Journal 160, 161 (1988) (in which the trial court determined that a vehicle which is not being moved upon the highway is not required to be registered).

      . Our conclusion is further supported by the amendments to the eligibility requirements of the assigned claims provision of the MVFRL. As originally enacted, § 1752(a)(3) provided that a person was eligible to recover benefits from the assigned claims plan if he or she was “not an owner of a currently registered motor vehicle subject to this chapter.” Act of February 12, 1984, P.L. 26, No. 11, § 3. Under this version of the statute, an individual who owned an unregistered vehicle would have been eligible for benefits under the assigned claims plan. However, a companion bill enacted on the same day amended this language to its present form by specifically deleting the reference to "a currently registered vehicle” and replacing it with "a motor vehicle required to be registered under Chapter 13.” See Act of February 12, 1984, P.L. 53, No. 12, § 3.
      Although the legislative history is silent as to the General Assembly’s reasons for amending this provision, the remarks reveal that the legislature was concerned with the problem of motorists failing to purchase insurance and that the companion bill was enacted to correct deficiencies in the MVFRL. See Senate Legislative Journal, No. 72, 167th General Assembly, Vol. II, at 1142-1154 (October 4, 1983) and No. 4, 168th General Assembly, Vol. I, at 1582-1587 (January 25, 1984); House Legislative Journal, No. 98, 167th General Assembly, Vol. III, at 2138-2191 (December 13, 1983), No. 99, 167th General Assembly, Vol. III, at 2232-2251 (December 14, 1983) and No. 10, 168th General Assembly, Vol. I, at 165-171 (February 8, 1984). Further, it is a rule of statutory construction that "[a] change in the language of a statute ordinarily indicates a change in legislative intent.” Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977) (citations omitted). Accord Lookenbill v. Garrett, 340 Pa.Super. 435, 443, 490 A.2d 857, 861 (1985). We must therefore presume that by amending the statute the legislature intended to exclude individuals who own an unregistered vehicle from receiving benefits from the assigned claims plan.