author: BECK, Judge:

text:
    622 A.2d 1388
    E.J.M. and H.M. and E.M. v. ARCHDIOCESE OF PHILADELPHIA, the Church of Christ the King, and Franciscan Fathers of Green Bay, A/K/A Order of Friars Minor of the Roman Catholic Church and Father Terrance Pinkowski C/O Franciscan Fathers of Green Bay, A/K/A Order of Friars Minor of the Roman Catholic Church. Appeal of E.J.M.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1992.
    Filed April 7, 1993.

      Laurence S. Berman, Philadelphia, for appellant.
    Martin G. Malloy, Philadelphia, for Franciscan Fathers, appellee.
    Bruce W. McCullough, Philadelphia, for Archdiocese of Philadelphia, appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   BECK, Judge:

This appeal requires us to decide whether, under the circumstances of this sexual assault and battery case, the discovery rule should be applied to toll the running of the applicable statute of limitations.

The appeal is taken from the trial court’s order granting summary judgment in favor of defendant-appellee, Franciscan Fathers of Green Bay, on the ground that the action was instituted after the expiration of the statute of limitations and that the discovery rale should not be applied to toll the running of the statute of limitations. We find no error in this determination and affirm.

In August 1989, appellant E.J.M. instituted suit against the Archdiocese of Philadelphia, The Church of Christ the King, the Franciscan Fathers of Green Bay, and Father Terrance Pinkowski. The complaint alleged that appellant, a member of a devoutly Catholic family, began to attend weekly prayer groups at defendant Church of Christ the King in late 1976. At that time, appellant was fourteen years old. Defendant Father Pinkowski was the leader of the prayer group. Father Pinkowski was also a teacher at Archbishop Ryan High School, an institution operated by defendant Archdiocese of Philadelphia and attended by appellant. Father Pinkowski lived at the Friary of defendant Franciscan Fathers of Green Bay, the order to which Father Pinkowski belonged.

The complaint further alleged that shortly after appellant began to attend Father Pinkowski’s prayer group, he also began attending a weekly mass at the Friary and soon formed an intention to become a Catholic priest. Father Pinkowski then undertook the role of spiritual leader to appellant and became intimately acquainted with appellant’s family. Appellant alleges that he both admired and trusted Father Pinkowski. Tragically, appellant also alleges that Father Pinkowski abused this trust by sexually molesting appellant on countless occasions in the period from 1976 through 1981.

Although appellant reached the age of majority in 1980 and concedes that the alleged abuse ended in 1981, he did not institute suit against any of the defendants until late 1989. Appellant’s proffered reason for his delay is that he did not become aware of the psychological and emotional injuries he suffered as a result of the alleged abuse until late 1988. Appellant alleges at that time he realized the psychological damage that had been inflicted on him. Because appellant’s contentions regarding what he knew and did not know concerning his injuries at the time the abuse was occurring are crucial to our decision, we quote those portions of appellant’s affidavit in opposition to summary judgment that are relevant to this issue:

In the course of preparing me for the priesthood defendant Father Pinkowski committed against me (what I now know to be) sexual abuse. At the time of the acts he told me that this therapy was necessary for my spiritual growth and preparation for ordination, and that it would rid me of pride unpleasing to God.
5. Because of the aspiration I had to be a priest and the exalted position in which priests were regarded within my family, I did not believe or consider that defendant Father Pinkowski’s actions with me were wrong. My mindset was that — because he was a priest — he had to be right about this therapy and training being necessary for me to become a good priest. I dealt with my confusion about this therapy by rationalizing that there was something wrong with me. I thought I had a problem.
6. I was married on June 25, 1988. In late April or early May 1988 I began making wedding preparations. My parents expected that defendant Father Pinkowski would be invited. They were shocked when I told them that I did not want him to attend my wedding. They told me that if he was not invited to the wedding that they would not come. I then revealed to them that I did not want him to come to the wedding because of what he had done to me, which I then explained to them.
7. Prior to this time I had never told anyone what had happened and I never considered that defendant Father Pinkowski’s actions were abusive and injurious to me. I felt I was at fault. I felt guilty and sinful.

A little over a year after appellant’s alleged realization concerning the damage he had suffered as a result of Father Pinkowski’s actions, he filed the instant lawsuit. He pleaded causes of action for sexual assault and battery, clergy malpractice, and intentional infliction of emotional distress against Father Pinkowski. He also sought to hold appellee Franciscan Fathers liable for Father Pinkowski’s actions on a theory of respondeat superior. Finally, he pleaded a separate cause of action for negligent hiring and supervision against appellee.

On October 24, 1991, appellee filed a motion for summary judgment, alleging that the applicable statute of limitations had expired long before appellant filed suit. Appellant responded by arguing that the discovery rule should be applied to toll the statute of limitations until 1988 when he allegedly first became aware of the psychological injury he had suffered as a result of Father Pinkowski’s actions. On February 19, 1992, the trial court granted summary judgment in favor of appellee, having rejected appellant’s discovery rule argument. This timely appeal followed.

Our standard of review of this appeal is as follows:
On review of an order granting summary judgment, we must determine whether the moving party has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b). Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 468-69 (1979). In making this determination, we must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983). All doubts as to the existence of a factual dispute must be resolved in favor of the non-moving party and the entry of summary judgment is appropriate only in the clearest of cases. Thompson Coal, supra.

Mentzer v. Ognibene, 408 Pa.Super. 578, 597 A.2d 604, 607 (1991).

Appellant’s action against appellee is controlled by the statute of limitations contained in 42 Pa.C.S.A. § 5524, which provides in pertinent part:

The following actions and proceedings must be commenced within two years:
(1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

Our Supreme Court has very recently described how the discovery rule can operate as an exception to the application of a statute of limitations, as follows:

It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period. Shaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). “Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).
Generally, once the prescribed statutory period has expired, the complaining party is barred from bringing suit. The “discovery rule,” however, is an exception to that rule, and its application tolls the running of the statute of limitations. The “discovery rule” provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Schaffer [410 Pa.] at 406, 189 A.2d at 270. The “discovery rule” arises from the inability of the injured party, despite the exercise of reasonable diligence, to know of the injury or its cause. Pocono [503 Pa.] at 85, 468 A.2d at 471. Its purpose is to exclude the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury. Pounds v. Lehman, 384 Pa.Super. 358, 363, 558 A.2d 872, 874 (1989).
Whether the statute has ran on a claim is usually a question of law for the trial judge, but where the issue involves a factual determination, the determination is for the jury. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Sadtler v. Jackcson-Cross Co., 402 Pa.Super. 492, 501, 587 A.2d 727, 732 (1991).

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040, 1042-43 (1992).

The question of how the discovery rule operates specifically in the context of a sexual abuse case has been closely considered by the courts of several jurisdictions. However, there is only one reported Pennsylvania appellate court decision on the subject and that decision does not deal with the precise issue presented here. In Bowser v. Guttendorf, 373 Pa.Super. 402, 541 A.2d 377 (1988), plaintiff sued her former foster parents for sexual assault and battery and negligent and intentional infliction of emotional distress. She alleged that she had been sexually molested by her foster father when she was a minor and that her foster mother had negligently permitted the abuse to continue. A panel of this court affirmed the trial court’s grant of judgment on the pleadings for the foster mother, finding that the action had not been commenced until six years after the alleged abuse and, therefore, four years after the expiration of the statute of limitations.

The Bowser court specifically rejected plaintiffs arguments that the statute of limitations should be tolled because she was rendered incapable of communicating the events contained in her complaint as a result of a physical disability and because of fraud and concealment by her foster father. The court cited longstanding Pennsylvania precedent establishing that the physical disability of the plaintiff did not toll the limitations period, e.g. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967), and found no fraud by the foster mother, in whose favor judgment had been granted. Id., 373 Pa.Super. at 404-06, 541 A.2d at 379.

The panel also rejected plaintiffs argument that the discov- ' ery rule should be applied because she was unable to discover her injury and the culpability of her foster parents during her minority. The panel found that plaintiff had alleged clearly discoverable physical injuries and that under the law as it existed at the time plaintiffs cause of action had accrued, see fn. 2, supra, her minority alone did not alter her responsibility to discover who was culpable and sue them within the statutory limitations period. Id. at 406-08, 541 A.2d at 380.

Unfortunately, as this summary of the Bowser holding reveals, Bowser is not sufficiently analogous to the instant case to provide guidance in resolving the issues before us. Here, appellant does not argue that he suffered from a physical disability or that his minority at the time of the abuse prevented him from discovering his injury or its cause. Instead, appellant’s precise argument is that although he always knew what Father Pinkowski had allegedly done to him, i.e. the actual physical acts performed, and never repressed his memories of those acts, he nevertheless did not know until approximately one year before filing suit that those acts were “abuse” and had caused him psychological and emotional harm. Appellant contends that his failure to realize that he had been “abused” and harmed thereby resulted both from his own respect for and trust in Father Pinkowski and Father Pinkowski’s assurances to appellant that the sexual acts being performed were necessary for appellant’s spiritual development. We must decide whether the trial court erred in finding that these allegations are insufficient as a matter of law to exempt appellant from the normal operation of the statute of limitations.

Faced with this lack of directly applicable Pennsylvania precedent, the trial court relied on the recent federal court decision in Baily v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), aff'd mem., 950 F.2d 721 (3d Cir.1991), where the court engaged in a thoroughgoing analysis of the applicability of the discovery rule in sexual assault and battery cases under Pennsylvania law. Although we recognize that Baily involved a factual setting somewhat different from that presented in the instant case, in that the Baily plaintiff alleged that he had repressed all memory of having been abused for fifteen years, we nevertheless also find the Baily court’s analysis highly instructive.

The Baily court began by summarily reviewing how other jurisdictions had applied the discovery rule to civil sexual abuse cases. The court noted that plaintiffs in such cases generally raised one of two claims in support of application of the discovery rule. Such plaintiffs alleged that they could not sue within the limitations period either because they had repressed all memory of the abuse and were, therefore, unaware of it or because, despite the fact that they did remember that the abuse had occurred, they nevertheless did not know it had harmed them or was wrongful. As the Baily court indicated, a survey of cases decided by courts across the nation reveals that courts are split in deciding both types of cases. Id. at 805-06.

Some courts find that considerations of equity mandate application of the discovery rule in repression of memory cases because the abuse itself caused the repression. See, e.g., Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988) (applying Illinois law); Mary D. v. John D., 216 Cal.App.3d 285, 264 Cal.Rptr. 633 (6 Dist.1989), review dismissed,-Cal.3d-, 275 Cal.Rptr. 380, 800 P.2d 858 (1990). Other courts refused to apply the discovery rule to such cases, however, relying on the general principles underlying statutes of limitation, such as the risk of stale claims and problems of proof. See, e.g., Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986) (overruled by statute, Wash.Rev.Code ch. 144 S.S.B. No. 6305).

As to cases involving plaintiffs who did not repress the memory of the abuse yet who did not realize the harm it had caused them or the wrongfulness of the defendant’s actions, courts once again are divided. Whereas some find that the emotional trauma suffered by abuse victims justifies tolling the statute of limitations, see, e.g., Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23, 27 (1987), others find that plaintiffs who remember the abuse are on notice that they might have been harmed and have a duty to investigate whether they have a cause of action. See, e.g., Hildebrand v. Hildebrand, 736 F.Supp. 1512, 1521 (S.D.Ind.1990) (applying Indiana law).

Having considered the analyses pursued by those jurisdictions that had considered this issue, the Baily court determined that even in a repression of memory case, the Pennsylvania Supreme Court would not permit application of the discovery rule to toll the statute of limitations. The court based this conclusion on several crucial aspects of the Pennsylvania discovery rule and on the strong policy of Pennsylvania courts favoring the strict application of statutes of limitation. Baily, 763 F.Supp. at 806.

First, the court found that Pennsylvania courts applied the discovery rule in only the most limited of circumstances, where the plaintiff could not, despite the exercise of reasonable diligence, discover his or her injury or its cause. Id. at 806-07. In many Pennsylvania discovery rule cases, the inability of the plaintiff to discover his or her injury arose from the nature of the injury itself. For example, the rule has been applied in medical malpractice cases where the plaintiff has no reason to suspect anything is amiss and the physician’s malpractice is not discovered by the plaintiff until it begins to manifest itself in perceptible symptoms. See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). In contrast, in a case such as this where the underlying cause of action is fundamentally one for battery, which basically is defined as an intentional unconsensual harmful contact, a plaintiff will ordinarily know all he or she needs to know concerning the injury and its cause at the moment the battery occurs. See Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081, allo. denied, 524 Pa. 621, 571 A.2d 383 (1989). It is the rare battery case where such knowledge is not readily discernable. Id. at 147, 557 A.2d at 1088 (in lack of informed consent case involving surgical procedure, technically a battery action, plaintiff may not know of the non-consensual touching until injury caused thereby manifests itself).

Second, the Bally court correctly observed that under Pennsylvania law, “[t]he standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective one.” Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 435, 520 A.2d 883, 886, allo. denied, 516 Pa. 635, 533 A.2d 93 (1987). In other words, Pennsylvania law does not permit the tolling of a statute of limitations on account of an incapacity of the particular plaintiff which allegedly impaired his or her ability to discover the injury or its cause. For example, Pennsylvania statutory law specifically does not permit tolling during a period of insanity or imprisonment of the plaintiff. 42 Pa.C.S.A. § 5533(a). As a panel of this court has very recently confirmed, “[ijnclusion of a plaintiffs mental incapacity as a factor to be considered in determining the reasonableness of plaintiffs diligence runs counter to [the reasonable person standard.]” A. McD. v. Rosen, 423 Pa.Super. ——, -, 621 A.2d 128, 131 (1993), (quoting Barren by Barren v. United States, 839 F.2d 987, 994 (3d Cir.1988)). See also Bowser, supra; Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967).

Lastly, the Baily court determined that under Pennsylvania law, the fact that a plaintiff is not aware that the defendant’s conduct is wrongful, or legally actionable, is irrelevant. The plaintiff need only know that he or she has been injured and the cause of the injury — once this is known the plaintiff must investigate to determine if the defendant’s actions give rise to a legal remedy. Id. at 806-07. See also Brunea v. Gustin, 775 F.Supp. 844 (W.D.Pa.1991); Citsay v. Reich, 380 Pa.Super. 366, 370-71, 551 A.2d 1096, 1098 (1988).

Reasoning from these principles, the Baily court concluded that the fact that the plaintiff had repressed the memory of the abuse did not toll the statute of limitations, since the only relevant question was whether she knew that the abuse was occurring at the time it was occurring and knew the identity of the perpetrator. The fact that she thereafter suffered from a mental incapacity to remember the abuse was, in the court’s view, irrelevant to the discovery rule analysis. Baily, 763 F.Supp. at 810.

We concur in the Baily court’s statements regarding the general parameters of the Pennsylvania discovery rule and the principles that have guided Pennsylvania courts in applying the rule. Since the facts presented in this case are not the same as those presented in Baily, we need not and do not opine on whether we agree with the Baily court’s application of those principles to a repression of memory case. Rather, we need only decide how those principles are properly applied in a case where the plaintiff allegedly did not know that the acts being inflicted upon him were “abuse” and would result in psychological harm.

In our view, this factual distinction greatly facilitates our decision, since it is perfectly clear that this case does not fall within the extremely limited applicability of the Pennsylvania discovery rule. This is simply not a case where the plaintiff, despite the exercise of objectively measured reasonable diligence, could not know of his injury and its cause within the limitations period. Appellant admits that he knew the abuse was occurring and who was inflicting it, both when it happened and throughout the eight years after the abuse ended and before appellant sued. What appellant did not know, i.e. that the physical acts allegedly performed on him by Father Pinkowski were “abuse” and were causing psychological harm, is not relevant to a discovery rule analysis.

As the Baily court correctly indicated, appellant need not have known that what was happening to him was “abuse,” i.e. was wrongful, or precisely what type of psychological or emotional harm he would suffer as a result. Once he knew what was happening and who was doing it, he had the duty to investigate these questions and to institute suit within the limitations period.

Moreover, the affidavit submitted by appellant in opposition to summary judgment, from which we have quoted at length hereinabove, clearly reveals that appellant was aware, if not that he had been “abused,” nevertheless that something very troubling and extraordinary was happening to him. Appellant states that he felt “confused” about what Father Pinkowski was doing to him, thought “something was wrong with me,” and “felt guilty and sinful.” Clearly, appellant not only knew all the relevant facts regarding the abuse and the abuser, but he also knew that something was very wrong with the situation in which he found himself.

The foregoing sections of appellant’s affidavit also constitute a sufficient response to appellant’s argument that Father Pinkowski fraudulently concealed the abusive nature of the acts he was performing on appellant by assuring him that these acts were necessary for appellant’s preparation for the priesthood. It is true that Pennsylvania law recognizes that fraudulent concealment by the potential defendant can result in the tolling of the statute of limitations. The Supreme Court has described the fraudulent concealment doctrine as follows:

Where, “through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry,” the defendant is estopped from invoking the bar of the statute of limitations. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). Moreover, defendant’s conduct need not-rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964). Mere mistake, misunderstanding or lack of knowledge is insufficient however, Schaffer v. Larzelere, supra; and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party. Nesbitt v. Erie Coach Company, supra.

Molineux v. Reed, 516 Pa. 398, 532 A.2d 792, 794 (1987).

We find appellant’s allegations regarding Father Pinkowski’s assurances that the physical acts being performed on appellant were necessary for his spiritual development insufficient to constitute fraudulent concealment. We have previously held that a defendant’s general assurances that a situation or condition being experienced by the plaintiff is normal do not rise to the level of fraudulent concealment where the plaintiffs own common sense should inform him that he has been injured. DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 460 A.2d 295 (1983).

This is precisely the situation presented here. The alleged abuse in this case continued for years and only ended when appellant was twenty years old. It is beyond comprehension that appellant would not or should not have questioned whether his relationship with Father Pinkowski was truly aimed solely at appellant’s preparation for the priesthood. In fact, appellant’s own affidavit belies such a conclusion, for therein appellant indicates that he in fact was not completely lulled into a sense of security by Father Pinkowski’s assurances. Appellant did recognize that something was amiss, and although he allegedly blamed himself for these feelings, that alone does not relieve him of the duty to investigate and bring suit within the limitations period.

The order of the trial court is affirmed.

      . Although appellant was initially joined by his parents as co-plaintiffs in this action, by praecipe filed March 1, 1990, the claims of appellant's parents were voluntarily dismissed as to all defendants. Moreover, by court order dated December 30, 1989, appellant’s count alleging clergy malpractice was dismissed for failure to state a cause of action.

      . In Bowser, we found that the provisions of 42 Pa.C.S.A. § 5533(b), which tolls the statute of limitations during a plaintiff’s minority, could not be applied retroactively to revive Ms. Bowser’s claim, which had already been barred at the time section 5533(b) became effective. Id. at 404-06, 541 A.2d at 379.
      We note that the provisions of section 5533(b) are equally of no avail to appellant herein, albeit for a different reason. Section 5533(b) permits a plaintiff whose cause of action accrues during minority to bring suit within the applicable limitations period, calculating that period as beginning when the plaintiff reaches majority. In the instant case, appellant would have had two years from the age of majority to institute suit for any cause of action that accrued during his minority. However, appellant did not sue until nine years after he had reached majority.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    623 A.2d 1
    Harvey W. GROSSMAN, Trading as Grossman & Company, and Harvey W. Grossman, Individually (Heretofore Trading as Silver and Company, and Lewis P. Silver and Harvey W. Grossman, Individually), Appellant, v. Paul R. ROSEN, and Spector, Cohen, Gadon & Rosen, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1992.
    Filed April 13, 1993.

      Charles Sovel, Philadelphia, for appellant.
    Ann Miller, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

The present appeal derives from a suit brought by an accounting firm against an attorney who allegedly sent fraudulent letters to the clients of the firm. The trial court, concluding that the action was barred by the prohibition against double recovery and principles of collateral estoppel, granted the attorney’s motion for summary judgment. Following careful review, we conclude that the grant of summary judgment was improper and must be reversed.

The relevant facts are as follows. In the latter part of 1980, Attorney Paul R. Rosen, acting on behalf of Alan Grossman (“A Grossman”), began directing letters to clients of the accounting firm of Grossman and Company. These letters were captioned “Notice of Dissolution.” They stated that A. Grossman had withdrawn as a partner of the firm of Gross-man and Company and had assumed the position of “liquidating partner,” assigned to winding up the affairs of the firm. Clients were advised that the firm would be terminated and that they were to forward outstanding fees to a dissolution account, in which the funds would be held in escrow.

Upon learning of Rosen’s letters, the accounting firm filed an action against A. Grossman, defendant, in which it alleged that A. Grossman was not a partner in the firm, that the firm was not being dissolved, and that A. Grossman had never been authorized to assume the role of “liquidating partner.” The complaint alleged that Grossman’s conduct had constituted libel, injurious falsehood and interference with contractual relationships. Compensatory and punitive damages were sought, together with counsel fees and injunctive relief. This action against A. Grossman was eventually removed to the United States District Court for the Eastern District of Pennsylvania, where, following trial by jury, a judgment was recovered for compensatory damages of $365 and punitive damages of $12,000. No portion of the judgment was paid, however, and A. Grossman later died.

In the meantime, the firm of Grossman and Company had filed the present action against Rosen in which it made essentially the same claims which it had made against A. Grossman and in which it sought to recover compensatory and punitive damages, as well as counsel fees. After the verdict had been entered in the federal action against A. Grossman, Rosen filed a motion for summary judgment, contending that the accounting firm was seeking a double recovery and that the action was barred by principles of collateral estoppel. The trial court agreed and granted Rosen’s motion for summary judgment. Grossman and Company appealed.

Summary judgment is proper where the moving party demonstrates that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. See: Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991); Okkerse v. Howe, 405 Pa.Super. 608, 612, 593 A.2d 431, 432-433 (1991), allocatur denied, 529 Pa. 651, 602 A.2d 861 (1992), quoting Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). An appellate court’s review of an entry of summary judgment is plenary. Therefore, we must apply the same rules of law utilized by the trial court in making its determination. See: Briggs v. Erie Ins. Group, 406 Pa.Super. 560, 566, 594 A.2d 761, 764 (1991).

Appellant’s action against Rosen is not barred by principles of collateral estoppel. Collateral estoppel, or issue preclusion, “ ‘operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.’ ” Schultz v. Connelly, 378 Pa.Super. 98, 102 n. 4, 548 A.2d 294, 296 n. 4 (1988), quoting Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983).

“ ‘[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party ... to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in ... question in a prior action.’ ”
Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 237, 464 A.2d 1313, 1319 (1983) (quoting In re Estate of R.L.L., 487 Pa. 223, 228 n. 8, 409 A.2d 321, 323 n. 8 (1979), quoting Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975)).

Schultz v. Connelly, supra 378 Pa.Super. at 102-103, 548 A.2d at 296.

Here, the parties are not identical to the ones in the prior federal litigation.. The defendant in the prior action was A. Grossman, the principal; the defendant in the instant action is Paul R. Rosen, the attorney. Because of the relationship between A. Grossman and Paul R. Rosen, the issues pertaining to liability will also be different. Therefore, the trial court erred when it held that the present action was barred by principles of collateral estoppel or res judicata.

The trial court also erred when it concluded that appellant could not maintain the present action because, if successful, there would be a double recovery. Appellant could assert its cause of action against as many parties as were separately liable to it and recover a judgment against all of them. See: Restatement (Second) of Judgments § 49 (1980). However, it is entitled to only one satisfaction. See: 20A P.L.E. Judgment § 442 (1990). Here, appellant has already recovered a judgment against A. Grossman, the principal, but the judgment has not been satisfied. Under these circumstances, appellant is not barred from pursuing an action against the attorney. See: Hilbert v. Roth, 395 Pa. 270, 272, 149 A.2d 648, 650 (1959).

Because this action must be remanded, it would be inappropriate to express any opinion regarding the damages potentially recoverable therein. Therefore, we do not now consider whether the plaintiff-appellant has stated a valid claim for counsel fees and expenses.

We also express no opinion regarding the liability of a lawyer for damages under the circumstances alleged in the complaint. We hold only that appellant’s cause of action against the lawyer-agent is not barred by an unsatisfied judgment recovered by appellant in an action against the client-principal.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . At this time, the accounting firm was operating under the name of "Silver and Company."

      . "Res judicata” is the doctrine which bars an action based on the same claim or cause of action asserted in a prior action. As res judicata also requires the identity of parties, see: City of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 54, 559 A.2d 896, 901 (1989), it, too, is inapplicable here.


author: BECK, Judge.

text:
    623 A.2d 3
    Robyn LUBOWITZ and Jordan Lubowitz, H/W, Appellants, v. ALBERT EINSTEIN MEDICAL CENTER, NORTHERN DIVISION and Dr. Martin Freedman.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1992.
    Filed April 13, 1993.
    Theodore M. Schaer, Philadelphia, for appellants.
    Jill B. Clarke, Philadelphia, for appellees.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   BECK, Judge.

The issue is whether plaintiffs-appellants, Robyn and Jordan Lubowitz, stated a cause of action against defendantsappellees Albert Einstein Medical Center (the “Hospital”) and Dr. Martin Freedman for “fear of AIDS.” The trial court found they did not and granted appellees’ motion for summary judgment. We affirm.

In August 1985, appellants participated in the Hospital’s in vitro fertilization program. An egg was removed from Robyn Lubowitz and was placed with a sample of her husband’s sperm into a placental serum provided by an anonymous donor. The embryo was then implanted, and Robyn Lubowitz became pregnant; she later suffered a miscarriage which is unrelated to this action.

On or about November 18, 1985, Dr. Freedman informed the appellants that the Hospital had performed an enzyme linked immunosorbent assay (“ELISA”) test of the donated placental blood which had been used in their in vitro fertilization procedure. The blood had tested positive for the Acquired Immune Deficiency Syndrome (“AIDS”) antibody, HTLV-III. After receiving this information, appellant Robyn Lubowitz allegedly experienced mental distress and various physical ailments, including recurrent nausea, vomiting and diarrhea.

The Hospital then conducted additional blood tests on the placental donor and appellant. An ELISA test of appellant’s blood was returned negative for the AIDS antibody on November 23, 1985. The Hospital also sent blood samples from appellant and the placental donor to Washington, D.C., so that another AIDS test, the Western Blot analysis, could be performed. On January 29, 1986, the placental donor’s blood tested negative for the AIDS antibody, and on February 7, 1986, appellant’s blood also tested negative.

In answers to requests for admissions, appellants conceded that they “are aware of no facts, with the exception of the [results of the initial ELISA test], to support that the placental serum was infected with the AIDS virus” or that Robyn Lubowitz “was exposed to the AIDS virus during the [in vitro fertilization procedure].” Appellants have never tested positive for the AIDS antibody, nor has the child born to them on October 6, 1988. Appellees have maintained that the single positive result, obtained in the ELISA test performed on or about November 18, 1985, on the placental blood, was a false positive, and that Robyn Lubowitz was never exposed to the AIDS virus.

Appellants brought this action charging the appellees with: 1) negligent infliction of emotional distress; 2) intentional infliction of emotional distress; 3) negligent performance of undertaking to render services; 4) loss of consortium by both husband and wife; and 5) punitive damages. Appellees filed a motion for summary judgment based on appellants’ inability to prove actual exposure to the AIDS virus, and the motion was granted. This timely appeal followed.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b). When ruling on a motion for summary judgment, the trial court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the movant. Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991). With this standard in mind, we must decide whether appellants have stated a legally cognizable cause of action.

The two remaining counts in appellants’ complaint are negligent performance of an undertaking to render services and negligent infliction of emotional distress. To prevail against a summary judgment motion under either count appellants must show that their claim is cognizable under the law. We conclude that under existing case law appellants have not suffered a compensable injury, and therefore their claim is not cognizable.

It is undisputed that appellants have never tested positive for the AIDS antibody. Moreover, although Robyn Lubowitz alleges that she suffered physical manifestations of emotional distress, the actual injury at issue is the “fear of AIDS.” Whether such fear is a compensable injury is an issue of first impression in this Commonwealth. However, we are guided by decisions which involve similar “risk of contracting disease” claims. See, e.g., Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992); Altiere v. Fibreboard Corp., 421 Pa.Super. 297, 617 A.2d 1302 (1992); Marinari v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992).

In Ottavio, the plaintiff filed an action against numerous manufacturers of asbestos products to recover for injuries allegedly sustained as a result of workplace exposure to asbestos. Id. at 286, 617 A.2d at 1297. Ottavio sought damages for pleural thickening and a fear of developing future diseases, including cancer, allegedly caused by exposure to asbestos. Id. An en banc panel of this court held that “Ottavio was entitled to recover compensation only for that disease, if any, which existed at the time of trial. He could not recover in an action for asymptomatic pleural thickening monetary damages for the risk of a future disease such as cancer.” Id. at 296, 617 A.2d at 1302.

Likewise, the most that Robyn Lubowitz could aver in this case was that she “has a rational basis to believe she was exposed to the AIDS virus” because of the positive results of the initial test performed on the placental donor’s blood. Appellants’ Brief at 14. This simply is not enough. As in Ottavio, Robyn Lubowitz cannot recover, in her asymptomatic state, monetary damages for a risk or fear of developing AIDS in the future.

We realize that there are factual questions with respect to the appellees’ negligence and Robyn Lubowitz’ actual physical harm. Nonetheless, these factual issues are irrelevant under the circumstances of this case, where appellant’s symptoms were not caused by the AIDS virus itself. Because there is no legally cognizable injury, there can be no recovery for the alleged negligence. We therefore affirm the trial court’s grant of summary judgment in favor of appellees.

Order affirmed.

      . The Hospital used placental serum (blood) obtained from women who had given birth at the Hospital. The "donors" were not told of the Hospital’s use of the placenta in the in vitro fertilization program; it is not clear whether the Hospital had in place a formal screening process for choosing which placental serum would be utilized.

      . The claims for intentional infliction of emotional distress and punitive damages, and Robyn Lubowitz’ claim for loss of consortium, were dismissed on preliminary objections.

      . Appellants argue that “there is no evidence on record to suggest that Lubowitz will never test positive for the HTLV-III antibody as a result of defendant’s conduct.” Appellant’s Brief at 14 (emphasis in original). As was noted in Burk v. Sage Products, Inc., 747 F.Supp. 285 (E.D.Pa.1990), "it is a medically accepted fact, however, that a person who has been infected will still test positive for the [AIDS] antibody during the latency period when no symptoms are evident, assuming the accuracy of the [AIDS] test.” Id. at 288, citing Morbidity and Mortality Weekly Report, July 21, 1989, Vol. 38, No. S-7. Moreover, if Robyn Lubowitz eventually were to contract AIDS as the result of the events outlined in this case, she would have a cause of action for a compensable injury at that time. See Ottavio, supra; Marinari, supra.

      . Viewed in the light most favorable to appellant, her allegations of physical ailments tend to show that they were not merely "transitory, non-recurring physical phenomena, harmless in themselves,” but rather "long continued [symptoms which] may amount to physical illness, which is bodily harm.” Restatement (Second) of Torts § 436 A, comment c. However, for the reasons discussed above, we do not reach this issue.


author: WIEAND, Judge: HOFFMAN, Judge,

text:
    623 A.2d 322
    Christine FITZPATRICK, Individually and as Administratrix of the Estate of Kevin Fitzpatrick, Deceased, and Lisa Fitzpatrick, v. Michael MADONNA and Outboard Marine Corporation. Appeal of OUTBOARD MARINE CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 14, 1992.
    Filed Feb. 23, 1993.
    Reargument Denied April 29, 1993.

      Harry A. Short, Jr., Philadelphia, for appellant.
    Stephen R. Bolden, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

In this action to recover damages for the death of a swimmer who was struck by a carelessly operated motorboat, the principal issue is whether the outboard motor on the boat was defective because it lacked a propeller guard or shield. After careful review of the evidence in this case, we conclude that there was no basis for finding the motor defective.

On the afternoon of August 10, 1980, while swimming with his sister and several friends at Pat Cong Creek Cove, near Ocean City, New Jersey, sixteen year old Kevin Fitzpatrick was struck and killed by a motorboat operated by Michael Madonna. Fitzpatrick and a friend, Lisa Wolfington, were swimming in fairly deep water when the motorboat, which was being accelerated to permit “skipping” along the water’s surface by friends of Madonna, passed over the area in which Fitzpatrick was swimming. As it did the sound of the motor deepened and Fitzpatrick’s body momentarily came to the surface. There, Lisa Wolfington attempted unsuccessfully to hold a bleeding Fitzpatrick above water. When his body was found approximately fifteen minutes later, mouth-to-mouth resuscitation was unsuccessful, and upon removal to a nearby hospital, Fitzpatrick was declared dead.

His mother, Christine Fitzpatrick, as administratrix of her deceased son’s estate, commenced wrongful death and survival actions against Michael Madonna, the operator of the boat, and against Outboard Marine Corporation (OMC), the manufacturer of the 1978 outboard motor used to propel the boat through the water. The decedent’s sister, Lisa Fitzpatrick, who witnessed the accident, filed a separate count to recover for her emotional distress. Prior to trial, the claims against Michael Madonna were settled for the sum of one million, two hundred twenty-five thousand ($1,225,000.00) dollars. During a subsequent trial, a jury found that Madonna (40%) and OMC (60%) were both negligent in contributing to Fitzpatrick’s death and that OMC was also liable strictly for a defectively designed outboard motor. The motor was defective, the jury determined, because the propeller blades were not encased in a protective guard. Damages of one million ($1,000,000.00) dollars were awarded in the survival action and $15,316.99 in the wrongful death action. A separate award of ninety thousand ($90,000.00) dollars was made to Lisa Fitzpatrick for her individual claim of emotional distress. Post-trial motions were denied, and OMC appealed from the judgment entered on the verdict.

In Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court of Pennsylvania wrote the law applicable in this Commonwealth to strict liability claims for defectively designed products. The Court held that “[i]t is a judicial function to decide whether, under plaintiffs averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint.” Id. at 558, 391 A.2d at 1026. The initial issue, therefore, is a question of law whose resolution depends upon social policy. Id., 391 A.2d at 1026. When a judicial determination has been made that recovery would be justified, a “jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Id. at 559, 391 A.2d at 1027. See also: Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 46-53, 485 A.2d 408, 420-424 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985).

It has been said that in making a products liability social policy analysis, a court must possess the qualities of both a social philosopher and a risk-utility economic analyst. See: Carrecter v. Colson Equip. Co., 346 Pa.Super. 95, 101 n. 7, 499 A.2d 326, 330 n. 7 (1985). The court in such cases must balance “the utility of the product against the seriousness and likelihood of the injury and the availability of precautions that, though not foolproof, might prevent the injury.” Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 450, 467 A.2d 615, 618 (1983), citing Schell v. AMF, Inc., 567 F.2d 1259 (3d Cir.1977). In Dambacher by Dambacher v. Mallis, supra, the Court attempted to identify additional factors for a court to consider when it observed as follows:

The California Supreme Court has identified the following factors: the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; the financial cost of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design. Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 237, 573 P.2d 443, 455 (1978). Dean Wade has formulated a similar list:
(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
(2) The safety aspects of a product — the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe;
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance.
Wade, supra at 837-38 (footnote omitted).

Id., 336 Pa.Super. at 50 n. 5, 485 A.2d at 423 n. 5.

After reviewing the evidence in the instant case, it seems clear that a shroud which covers the propeller of an outboard motor will, at best, reduce one type of risk while creating other undesirable effects. For instance, a propeller guard would reduce a vessel’s speed and would thereby reduce its efficient use of fuel. In addition, a propeller guard will affect the maneuverability of a boat. The plaintiffs expert said that technology may have been available prior to 1978 that would enable him to envision a feasible propeller protection device, but he conceded that, in fact, no device existed prior to 1984 that he could recommend. He said that he had reviewed sixteen patented propeller guard systems and that none of them were practical, because all had a substantial degrading effect on boat performance. He also reported on tests conducted by OMC between 1969 and 1981 on suggested propeller guards. All contained aspects which affected adversely the speed and fuel efficiency of boats moving through the water.

An outboard motor is designed to move a boat through water. It has not been designed to allow motorboats to move among swimmers. The risk inherent in such movement is readily apparent. Moreover, it cannot be said with any degree of certainty that the risk of injury will be reduced by a safety guard, for the presence of a shroud over the propeller presents its own risks to swimmers. For example, a shroud creates a larger target area. In addition, the possibility exists that human limbs may become wedged between a shroud and the propeller, exposing a swimmer to even greater injury.

From recreation to transportation, the open screw propeller has proven its utility for its intended purpose, i.e., powering a boat through the water. When used for its intended purpose, the open screw propeller functions safely and well. It must be conceded, nevertheless, that open screw propellers possess inherently dangerous qualities. The public, however, is aware of those qualities. A competent person knows that he or she must stay clear of the churning blades of an outboard motor in the same way as a person avoids airplane propellers, chain saw teeth, and lawn mower blades.

Some products, by their nature, (or, in modern parlance, by their conscious design), place both users and bystanders in some measure of danger. A knife or an axe may cut persons, as well as their intended targets. Fish hooks can wound; saws can maim, and revolving propellers can cause fearful damage.

Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir. 1990). When a boat powered by an outboard motor is handled in a common sense manner, the likelihood that bystanders will be injured by the rotating blades of the motor is not great.

Those courts which have considered this issue have refused to impose strict liability for design defect on manufacturers that have not covered their outboard motors with a protective device. In Elliott v. Brunswick Corp., supra, the United States Court of Appeals for the 11th Circuit said:

At trial ... the experts called by both parties agreed that no feasible guard existed that could be adapted readily to existing motors. For example, one of plaintiffs witnesses, Dr. Arthur Reed, a naval architect, estimated that Mercury might develop an appropriate guard after a total of ten or eleven years of effort by biomechanical engineers, hydrodynamic engineers, structural engineers, and materials engineers, followed by an additional four years of prototype testing. Dr. Reed frankly conceded, in short, that, in his view, “all of these guards need technical development before they are ready to really be marketed.”'
Both parties’ witnesses, moreover, testified regarding potential difficulties that these devices might engender. Both groups of experts, for example, testified that the use of these guards can result in a boat’s substantial loss of power and speed, due to their added drag. Both parties’ experts also testified that ring guards would create handling and steering problems; they stated that these guards, due to their circular shape, add new rudder areas in entirely new planes, thus inducing dangerous handling characteristics. Mercury’s experts, moreover, testified that guards could create safety hazards. They stated that some consumers would be likely to remove the guard to gain power and promote fuel economy; a guard’s removal would cause the boat to exceed its power rating, and thus would create handling difficulties.
Both parties’ experts also explained that guards themselves can become a danger as they move through the water. Experts from both sides agreed that guards can entrap human limbs, increasing the risks of mutilation, amputation and drowning. One of Elliott’s experts acknowledged that if a boat were moving in the 30-35 mph range, a blow to the head by one of its guards would be fatal; he also conceded that serious injuries would occur even at lesser speeds.
In short, although Elliott’s experts promoted the use of propeller guards, they agreed that companies could not yet market them for general use. Both sets of experts, moreover, discussed the problems that these devices engender. Elliott’s nearest approach to evidence on their utility was her videotape of the boat that struck her equipped with such a guard; Elliott’s own experts, however, agreed that a satisfactory guard of this type was not available. Elliott, therefore, failed to produce evidence that Mercury had access to a safe, practical design for propeller guards at the time of her accident.

Elliott v. Brunswick, 903 F.2d at 1509. See also: Beach v. Outboard Marine Corp., 584 So.2d 447 (Ala.1991) (following Elliott in a case involving a 1988 outboard motor). So, too, in the instant case, the evidence failed to show that in 1978 there was available for use a safe, practical design for a propeller guard.

We take judicial notice that the United States Coast Guard, acting on recommendation of a subcommittee of the National Boating Safety Advisory Council convened to study the use of propeller guards, determined on February 1, 1990, that it would continue to refrain from issuing any regulation that would require propeller guards on open screw propellers.

The plaintiff-appellee urges, however, that if technology existed in 1978 from which her expert could envision the development of a practical propeller guard, we should hold OMC strictly liable in order to encourage manufacturers to design safe outboard motors. We decline to do so. As a matter of policy there is no good reason for imposing strict liability on OMC merely because, at the time of manufacturing the motor in this case, OMC did not encase the propeller in a protective device. No practical devices were then available, and none had been developed which would have improved the safe operation of the boat in the instant case. In 1978, an outboard motor was not defectively designed merely because the propeller was not enshrouded in a protective device.

Because the outboard motor was not defective, there also can be no liability on OMC for negligence.

[I]n a negligence case the plaintiff must prove, not only that the product was defective and that the defect caused his injury, but in addition, that in manufacturing or supplying the product the defendant failed to exercise due care. The defendant is liable neither as an insurer nor guarantor but rather only for failing to act as a reasonable man would have acted. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980).

Dambacher by Dambacher v. Mallis, supra 336 Pa.Super. at 53, 485 A.2d at 424 (emphasis added).

Because of our holding, we find it unnecessary to determine whether there was evidence to show that the- absence of a protective device was a substantial factor in causing Fitzpatrick’s death or whether Fitzpatrick would, in any event, have been killed by being struck by an encased rotor. Similarly, it is unnecessary to decide whether Lisa Fitzpatrick, under the circumstances, was entitled to recover damages from OMC for the infliction of emotional distress and whether the trial court committed those trial errors assigned to it by appellant.

Judgment reversed and now entered in favor of the appellant, Ocean Marine Corporation.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting.

As I do not believe that the lower court erred in submitting the issue of a design defect to the jury, I must respectfully dissent.

In a design defect case, the court is required to engage in a risk/utility analysis prior to submission of the case to the jury Azzarello v. Black Brothers, 480 Pa. 547, 391 A.2d 1020 (1978). This “threshold” inquiry requires that the trial judge make an initial determination whether as a matter of social policy the case is appropriate for treatment under the rubric of products liability. Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 228 n. 6, 545 A.2d 906, 910 n. 6 (1988). In making this determination, moreover, the trial court is to consider the following factors:

(1) the product’s usefulness and desirability — its usefulness to the user and to the public as a whole; (2) the safety aspects of the product — the likelihood that it will cause injury and the potential severity of such injury; (3) the mechanical feasibility of a safer design; (4) the availability of a safer substitute product which meets the same need; (5) the economic feasibility of a safer design; (6) the manufacturer’s ability to reduce or eliminate the unsafe character of the product without impairing its usefulness or rendering it too expensive to maintain its utility; (7) the user’s or public’s ability to avoid the danger posed by exercising care in exposure to or use of the product; (8) the user’s or consumer’s anticipated awareness of the dangers inherent in the product’s design and their availability resulting from general public knowledge of the obvious condition of the product or of the existence of appropriate warnings or instructions; (9) the adverse consequences to the product and to the consumer resulting from a safer design; and (10) the feasibility of permitting or requiring the manufacturer to spread the risk of loss by carrying liability insurance or by self insurance and setting the price of the product accordingly.

See Dambacher v. Mallis, 336 Pa.Super. 22, 50-51, 485 A.2d 408, 423 (1984).

At this preliminary stage, however, the lower court is required to view the evidence in a light most favorable to the plaintiff. Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 450-451, 467 A.2d 615, 618-619 (1983). Although the Majority espouses a commendable social philosophy in support of its decision, I do not believe proper weight was given to the plaintiffs evidence. I agree with the trial court that, as plaintiffs presented several alternate design options for consideration as well as expert testimony in support of the mechanical and financial feasibility of these designs, the issue of a design defect was properly submitted to the jury. Therefore, I respectfully dissent.

      . Once the motorboat attained a certain speed, Madonna’s companions would jump from the boat and "skip” like pebbles along the water’s surface.

      . An additional twenty-five thousand ($25,000.00) dollars was paid to the decedent’s sister in settlement of her separate claim for emotional damages.

      . The Azzarello rule has been criticized and is not followed by the courts of other states. See: McKay v. Sandmold Sys., Inc., 333 Pa.Super. 235, 239-245, 482 A.2d 260, 263-266 (1984). Nevertheless, it continues to be the rule which the courts of this Commonwealth apply in resolving design defect cases.

      . Recently, in Shields v. Outboard Marine Corp., 776 F.Supp. 1579 (M.D.Ga.1991), it was held that the Coast Guard's refusal to adopt regulations requiring the use of propeller guards was preemptive and barred plaintiff's products liability claim.


text:
    623 A.2d 327
    COMMONWEALTH of Pennsylvania v. Aun THUY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed April 13, 1993.

      Jules Epstein, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

Aun Thuy was tried by jury and was found guilty of first degree murder and possession of an instrument of crime in connection with the stabbing death of James Bischoff in Philadelphia on Christmas Day, 1989. After post-trial and supplemental post-trial motions were denied, Thuy was sentenced to serve a term of life imprisonment for murder and a concurrent term of imprisonment for not less than one (1) year nor more than five (5) years for possessing an instrument of crime. On direct appeal from the judgment of sentence, Thuy is represented by his third lawyer, who argues that trial counsel was constitutionally ineffective in at least six (6) specific instances and that post-trial counsel was also ineffective for failing to assert trial counsel’s ineffectiveness in post-trial motions. Because this is the first occasion at which appellant is no longer represented by counsel alleged to be ineffective, these issues are properly before this Court for review. See: Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978). It is significant, however, that these issues have not been specifically addressed in prior evidentiary hearings.

The killing in this case occurred during an altercation between groups of white men and Asian men. During a verbal exchange between the groups, Arnold Bischoff punched appellant in the face. In the ensuing melee, additional punches were thrown by others in the two groups, and, according to the Commonwealth’s evidence, appellant fled into a nearby house, where he obtained a knife and then returned to the fray. Meanwhile, James Bischoff had come to the aid of his brother. The Commonwealth contends that the two brothers were assailed by appellant bearing a knife and by another Asian armed with a sledgehammer. James Bischoff was thus stabbed while his brother, Arnold, was almost simultaneously struck in the head with a sledgehammer. James Bischoff died shortly thereafter. Appellant was identified at the scene and later at the police station as the killer.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986). The standard used to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). “To establish prejudice under this standard ‘requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Commonwealth v. Carter, 409 Pa.Super. 184, 187-188, 597 A.2d 1156, 1157 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See also: Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975 (1987). Moreover,

“[bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 421 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). See also: Commonwealth v. Akers, 392 Pa.Super. 170, 190, 572 A.2d 746, 756 (1990); Commonwealth v. Hamer, 377 Pa.Super. 229, 243-244, 546 A.2d 1241, 1247-1248 (1988).

At trial, there was evidence that type A blood had been found on appellant’s sneakers. There was also evidence that the victim had type A blood. The prosecuting attorney argued to the jury, therefore, that the blood found on appellant’s sneakers had come from the victim. Appellant, however, testified that he had been struck in the nose during the altercation with the white men, causing him to fall to the ground unconscious and to bleed onto his shirt and down his legs. Appellant argues in this appeal that trial counsel was ineffective because he failed to discover and present evidence that appellant also had type A blood. Because of counsel’s dereliction, it is argued, the Commonwealth’s contention that the blood on appellant’s sneakers was that of the victim remained unchallenged.

A lawyer has a duty “to assure that his client’s cause is presented in the most favorable light.” Commonwealth v. Saxton, 516 Pa. 196, 201, 532 A.2d 352, 354 (1987). Accordingly, counsel may be deemed ineffective for failing to present evidence of an exculpatory nature. See: Commonwealth v. Haynes, 395 Pa.Super. 322, 330, 577 A.2d 564, 568 (1990); Commonwealth v. Guerrisi, 297 Pa.Super. 245, 250, 443 A.2d 818, 821 (1982). See also:. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Adams, 465 Pa. 314, 350 A.2d 412 (1976). Similarly, counsel may be found ineffective for failing to investigate a potentially meritorious defense. See: Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983); Commonwealth v. Carter, supra at 197, 597 A.2d at 1162. However, “[a] decision by counsel not to take a particular action does not constitute ineffective assistance if that decision was reasonably based, and was not the result of sloth or ignorance of available alternatives.” Commonwealth v. Collins, 519 Pa. 58, 65, 545 A.2d 882, 886 (1988). See also: Commonwealth v. Christy, 511 Pa. 490, 501, 515 A.2d 832, 837 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987); Commonwealth v. Twiggs, 460 Pa. 105, 110-111, 331 A.2d 440, 443 (1975). The United States Supreme Court has observed:

[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Strickland v. Washington, supra 466 U.S. at 690-691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. See also: Commonwealth v. Peterkin, 511 Pa. 299, 317-318 and n. 11, 513 A.2d 373, 382 and n. 11 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Commonwealth v. Mickens, 409 Pa.Super. 266, 280, 597 A.2d 1196, 1203 (1991).

After careful review, we are persuaded that there is arguable merit to appellant’s contention that trial counsel was ineffective when he failed to discover and present evidence of appellant’s blood type. Such evidence would have tended to corroborate appellant’s testimony regarding the source of the blood on his sneakers and may also have nullified one of the Commonwealth’s principal contentions at trial, i.e., that the victim’s blood was found on appellant’s sneakers. Indeed, the trial court, in responding to this issue after it had been raised as part of the instant appeal, observed that, “[t]here is no question that this evidence would have benefitted the defendant, at least to the extent that it corroborated the defense argument concerning the source of the blood.”

We conclude, therefore, that there is arguable merit to appellant’s contention. Because counsel has not had an opportunity to explain his conduct, however, it is essential that we remand for an evidentiary hearing to determine whether a reasonable basis existed for counsel’s failure to discover and present evidence that appellant’s blood type was also type “A.” We also find arguable merit in appellant’s contention that trial counsel was ineffective with respect to his handling of appellant’s alibi defense. At trial, there was defense testimony that appellant had been rendered unconscious during the altercation with the white men and had been carried into a nearby house. Appellant, himself, testified that he had been knocked unconscious prior to the stabbing and later regained consciousness inside the house. He said he had no knowledge that a stabbing had occurred. His sister said that she had found her brother unconscious and had taken him into the house, but the time of this, in relation to the stabbing, was not established. In an affidavit appended to the appellate brief filed on appellant’s behalf, she states that trial counsel did not ask her whether she carried her brother into the house before the stabbing. She also states that, if asked, she would have responded that “at the time we carried [appellant] into the house there was no white person bleeding or looking like he had been stabbed.” At trial, another witness, appellant’s sister-in-law, also testified that she found her brother-in-law lying on the ground and helped him into the house. However, no attempt was made to fix the time of this in relation to the stabbing. Moreover, defense counsel made no attempt to argue the defense of alibi and did not request an instruction thereon.

In Commonwealth v. Roxberry, 529 Pa. 160, 602 A.2d 826 (1992), the Pennsylvania Supreme Court, while considering the effectiveness of counsel in handling an alibi defense, observed as follows:

“The long-accepted definition of alibi is “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Jones, 529 Pa. 149, 602 A.2d 820 (decided today); Commonwealth v. Pounds, 490 Pa. 621, 631, 417 A.2d 597, 602 (1980); Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963).
There is no minimum or threshold quantum of physical separation necessary for a defense to constitute an alibi, so long as the separation makes it impossible for the defendant to have committed the crime. It is theoretically possible to assert an alibi even when a crime occurs in the same building where the accused is located. If a convict is accused of stabbing a guard in the basement of a penitentiary and claims he was locked in a cell on the fourth floor when the crime was committed, he has asserted an alibi defense, because he was “in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.”

Id. at 163-164, 602 A.2d at 827-828. Where evidence establishing an alibi has been presented and defense counsel fails to request a jury instruction on the defense, counsel can be found constitutionally ineffective. See: Commonwealth v. Roxberry, supra; Commonwealth v. Gainer, 397 Pa.Super. 348, 580 A.2d 333 (1990) (en banc); Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985) Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985).

In the instant case, it cannot be ascertained whether counsel failed to perceive the availability of an alibi defense or whether, having recognized the defense, he ignored it for strategic reasons. The only thing clear, therefore, is the need for an evidentiary hearing to determine whether counsel’s handling of a potential alibi defense was reasonable. If there was evidence available that appellant had been knocked unconscious and carried into his house before the stabbing, then an alibi defense was available. In that event, counsel may have been ineffective for failing to present this evidence and have the jury, after proper jury instructions, deliberate thereon. On the other hand, if counsel, after reasonable investigation, determined for strategic reasons that he could not or should not pursue an alibi defense, it may be that his decision can be supported.

There is no merit in appellant’s remaining contentions. He contends that trial counsel was ineffective for failing to impeach James Fantom, a Commonwealth witness, by introducing evidence of prior convictions and Fantom’s probationary status at the time of trial. These facts, although relevant to attack the witness’s credibility, see: Commonwealth v. Evans, 511 Pa. 214, 224-225, 512 A.2d 626, 631-632 (1986); Commonwealth v. Culmer, 413 Pa.Super. 203, 212, 604 A.2d 1090, 1094-1095 (1992), were not of such a nature that their absence was so prejudicial as to render the jury’s verdict unreliable, as required by Strickland v. Washington, supra. At trial, three witnesses testified they had observed appellant holding a knife. One of these witnesses was James Fantom. However, James Fantom did not testify that he saw the victim stabbed by appellant. Thus, James Fantom’s testimony was merely cumulative. It went no further than the testimony of two additional witnesses in identifying appellant as an Asian who had a knife in his possession. Under these circumstances, it cannot be said that counsel’s failure to discover that James Fantom was .on probation rendered his assistance constitutionally ineffective so as to require a new trial.

Arnold Bischoff, the victim’s brother, had identified appellant as his brother’s killer on the day of the stabbing.On cross-examination at trial, however, the witness conceded that he had not actually witnessed the stabbing of his brother. Appellant contends that trial counsel should have impeached the witness’s direct examination testimony by introducing an allegedly prior inconsistent statement, made by the witness at a pre-trial suppression hearing, that his identification of appellant had been based upon that which he had been told. The absence of this impeachment, however, did not render defense counsel ineffective. Indeed, his cross-examination of the witness was quite effective, for he was able to establish, in fact, that the witness had not seen appellant stab his brother. We will not second guess strategic decisions made by trial counsel.

Immediately prior to the trial court’s charging of the jury in this case, the following occurred outside the presence of the jury:

THE COURT: We’re at sidebar and I’ve raised the issue to Mr. Meglio that it was not my recollection — that it was my recollection that there was no testimony as to the reputation of the defendant. Mr. Meglio advised me that he had spoken to his client and members of the family and that there was no one in the neighborhood that was willing to come in and testify. Is that in effect what you said, Mr. Meglio?
MR. MEGLIO: What I really said is that they had people in the neighborhood who knew of my client’s good reputation but because of business reasons and other reasons they hesitated coming in. They didn’t really think it was important for them to come in.
THE COURT: Now, as a result of our sidebar discussion the Commonwealth has agreed that a stipulation be introduced by Mr. Meglio to the effect that if the defendant’s brother were to testify, he would testify that he had spoken to other people in the neighborhood and if they were called — and from his conversation with them that his brother has a reputation for being a peaceful and law-abiding citizen.

Thereafter, the jury was informed of the stipulation and, with respect thereto, the trial court said:

THE COURT: Ladies and Gentlemen, before I begin my charge, you have just heard that counsel have entered into a stipulation, agreement, that this defendant’s reputation in the community for being a peaceful and law-abiding citizen is good. That would be based upon the testimony that could be offered by his brother which would be based upon his conversations with other people in the community.
I have told you frequently and will tell you again that statements made by counsel are not evidence. However, with every rule there are exceptions, and one of the exceptions to that rule is when counsel agree to a set of facts you may accept those facts as being facts in this case and you may consider them in your deliberations as evidence in this case.
That is an exception to the rule that statements made by counsel are not evidence. That statement is evidence for your consideration.

During its final charge, the court instructed the jury as follows:

The defendant has offered evidence tending to prove that he is a person of good character.- I’m speaking of the stipulation which was made earlier in this case to the effect that the defendant’s reputation was good for truthfulness and law-abiding — being a law-abiding citizen. The law recognizes that a person with good character is not likely to commit a crime which is contrary to his nature. Evidence of good character may by itself raise a reasonable doubt and justify a verdict of not guilty. You must weigh and consider the evidence of good character along with the other evidence in the case. If on all of the evidence you have a reasonable doubt of the defendant’s guilt, you must find him not guilty. However, if on all of the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty, you should find him guilty.

Appellant argues on appeal that trial counsel was ineffective for failing to obtain and present character witnesses at his trial. In support of this contention, he has submitted affidavits signed by members of his own family who state that trial counsel did not at any time discuss with them the significance of character evidence or otherwise make any effort to obtain character witnesses on appellant’s behalf. Affidavits of several persons in the community have also been submitted to the effect that such persons were aware of appellant’s good reputation and would have been available and willing to attest thereto if they had been asked to testify at his trial.

It has been observed that “a lawyer who fails to use character evidence on a defendant’s behalf can indeed be deemed constitutionally ineffective if there is no reasonable basis for such failure.” Commonwealth v. Mickens, supra at 280, 597 A.2d at 1203. See, e.g.: Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992); Commonwealth v. Gillespie, 423 Pa.Super. 128, 620 A.2d 1143 (1993); Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983). In the instant case, however, counsel did not fail to present character evidence. Instead, evidence of appellant’s good reputation was introduced via stipulation, and the jury was fully instructed as to the proper use to be made of the evidence. The jury, moreover, was specifically told by the trial court that the stipulation was to be considered as evidence. Under these circumstances, trial counsel will not be deemed constitutionally ineffective. Whether to use live witnesses or place before the jury appellant’s good character by stipulation is nothing more than a strategic decision. It cannot be said that no competent lawyer would proceed as did defense counsel in this case.

There was testimony at trial that, on the date of the stabbing, appellant had a moustache, but that prior to his preliminary hearing he had shaved it off. Based upon this evidence, the trial court instructed the jury as follows:

There was evidence in this case, including the testimony of the defendant and some of the witnesses, which tended to show that the defendant altered his appearance between the time of the incident and the time that he had his preliminary hearing in City Hall. The defendant testified that he did this because he frequently grows a moustache and cuts it off. The credibility, weight and effect of this evidence is for you to decide. Generally speaking, when a crime has been committed and a person thinks he is or may be accused of committing it and he changes his appearance, this may be considered as a circumstance tending to prove that that person is conscious of guilt. Such change of appearance does not necessarily show consciousness of guilt in every case. A person may make that change for some other motive and may do so even though innocent. Whether the evidence of change of appearance in this case as tending to prove guilt depends upon the facts and circumstances of this case, and especially upon the motives which may have prompted that change of appearance. You may not find the defendant guilty solely on the basis that he changed his appearance.
Now further, for a defendant’s consciousness of guilt to arise, you must first find that he changed his appearance to avoid prosecution.

Appellant argues that trial counsel was ineffective for failing to object to this “change of appearance” instruction.

Appellant’s reliance upon the Supreme Court’s decision in Commonwealth v. Horwat, 511 Pa. 398, 515 A.2d 514 (1986) is misplaced. In that case, the Court observed that “where the prosecution establishes, by direct or circumstantial evidence, that an alteration in appearance has been made by a defendant who knew that he was wanted for a crime and the jury finds as a fact that the change was effected with the intention of avoiding subsequent identification, an inference of consciousness of guilt may thereby arise, which, in connection with other proof, may form a basis upon which guilt may be inferred.” Commonwealth v. Horwat, supra at 401, 515 A.2d at 516. See also: Commonwealth v. Colson, 507 Pa. 440, 464-465, 490 A.2d 811, 823-824 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Holland, 480 Pa. 202, 217-218, 389 A.2d 1026, 1033 (1978). In Horwat, however, defense counsel was deemed ineffective for failing to object to a “change of appearance” instruction which erroneously had permitted the jury to infer guilt solely from the defendant’s change of appearance, and, which did not make it clear that, in order for an inference of consciousness of guilt to arise, the jury first had to find that the defendant had changed his appearance intentionally for the purpose of avoiding prosecution.

In the instant case, there was evidence that appellant had changed his appearance after his arrest and before his preliminary hearing; and the jury was expressly instructed that a finding of guilt could not be based solely upon appellant’s change of appearance but that consciousness of guilt could be inferred only if appellant had changed his appearance for the purpose of avoiding prosecution. This instruction was a correct statement of the law. None of the defects which had been present in the charge in Horwat were present in the trial court’s instructions in this case. Because the trial court’s jury instruction on appellant’s change of appearance was a correct statement of the law and was fully supported by evidence introduced at trial, there was no basis for trial counsel to make an objection. Counsel will not be found ineffective for failing to make a useless objection. See: Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Thomas, 372 Pa.Super. 349, 353, 539 A.2d 829, 831 (1988).

Appellant’s final allegation of ineffectiveness on the part of trial counsel is that counsel was so lacking in knowledge of Pennsylvania criminal law and trial procedure as to be incapable of providing competent representation in a first degree murder case. In this regard, appellant asks this Court to accumulate his prior specific claims of ineffectiveness and find that trial counsel’s overall representation was generally deficient. This we decline to do. In order to establish ineffectiveness of counsel, as we have already observed, a defendant is required to demonstrate a specific instance in which counsel’s error or omission had no rational strategic basis and caused demonstrable prejudice to the defense. We have already considered carefully each claim of ineffective assistance by trial counsel made by appellant and will not reconsider the same claims in the aggregate.

We cannot conclude, however, without considering appellant’s contention that the lawyer representing him during the post-trial stage of these proceedings was ineffective for failing to raise the specific allegations of ineffective assistance by trial counsel which have been argued in this appeal. With respect to claims which we have considered and found lacking in arguable merit, there is no need for further discussion. Post-trial counsel will not be deemed ineffective for failing to raise and preserve meritless challenges to the effectiveness of trial counsel. See: Commonwealth v. Hubbard, 472 Pa. 259, 281, 372 A.2d 687, 697 (1977); Commonwealth v. Tanner, 410 Pa.Super. 398, 407-408, 600 A.2d 201, 206 (1991). With respect to appellant’s claims that trial counsel was ineffective for failing to obtain and present evidence of his blood type and for failing to establish an alibi defense, we have found these allegations to be of arguable merit. With respect to these issues, further inquiry is necessary to determine also whether post-trial counsel was ineffective. “ ‘When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.’ ” Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990), quoting Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987).

The judgment of sentence is vacated, at .least for the time being, and the case is remanded for an evidentiary hearing to determine whether trial counsel and post-trial counsel were ineffective with respect to appellant’s claims that evidence of his blood type and an alibi defense should have been presented to the jury. If counsel are found to have been ineffective, a new trial must be granted. If counsel were not ineffective, however, the judgment of sentence may be reimposed. Jurisdiction is not retained.

      . The alibi issue was not raised in appellant’s post-trial or supplemental post-trial motions. At the hearing thereon, however, appellant’s trial counsel testified that he thought he had offered alibi testimony and had proved that appellant was carried into the house prior to the stabbing. Our own review of the trial record reveals that counsel was mistaken. No such evidence was offered at trial.

      . At the time of trial, Fantom was on probation for the crime of simple assault.