author: HOFFMAN, Judge: McEWEN, Judge,

text:
    446 A.2d 651
    Eleanore STINNER v. Donald E. STINNER and Sonja Stinner. Appeal of Sonja STINNER.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed June 4, 1982.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      James R. Fiorentino, Bethlehem, for appellant.
    Michael P. Shay, Jackson M. Sigmon, Sigmon & Ross, P.C., Bethlehem, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in permitting appellee to garnish a joint checking account; and, alternatively, that it erred in ignoring a stipulation concerning the amount in controversy. Because we hold that the garnishment was proper, but that the amount in controversy was only $4,200, we modify the order of the lower court, and, as modified, affirm.

Appellee divorced Donald E. Stinner in 1977. Subsequently, she commenced an action in assumpsit against him to enforce a property settlement agreement and recovered a $8,666.72 judgment on February 5, 1980. This Court affirmed without published opinion. Stinner v. Stinner, 296 Pa. Superior Ct. 645, 440 A.2d 1262 (1981). In March of 1981, appellee garnished a checking account held jointly by Mr. Stinner and his second wife, appellant Sonja Stinner. Appellant timely objected to the garnishment, asserting her entireties interest in the account. The sheriff subsequently determined that she was a prima facie owner of the account as tenant by the entireties. Following a hearing on appellee’s objection to the sheriff’s determination, the lower court permitted appellee to execute against the whole account, holding that the direct deposit of Mr. Stinner’s paycheck into the joint account was fraudulent under section 4 of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P.L. 1045, No. 379, 39 P.S. § 354. This appeal followed.

“[I]t is well settled that Pennsylvania subscribes to the majority view which regards entireties property as unavailable to creditors of one of the tenants.” Patterson v. Hopkins, 247 Pa. Superior Ct. 163, 171, 371 A.2d 1378, 1382 (1977). However, when a spouse conveys individual property to a tenancy by the entireties in fraud of creditors, the creditor may nevertheless execute against the property so conveyed. See, e.g., First National Bank of Marietta v. Hoffines, 429 Pa. 109, 239 A.2d 458 (1968); Patterson v. Hopkins, supra; 9 Goodrich-Amram 2d §§ 3101:3, 3111(b):4.2 (1976). See generally 39 P.S. § 359. “Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.” 39 P.S. § 354. A person is insolvent for the purposes of the Uniform Fraudulent Conveyance Act if “the present, fair salable value of his assets is less than the amount that will be required to pay his probable liability on existing debts as they become absolute and matured.” Id. § 352(1). Under section 4 of the Act, 39 P.S. § 354, when the creditor establishes that the grantor was in debt at the time of a conveyance, the burden shifts to the grantees to establish, by clear and convincing evidence, either that the grantor was then solvent and not rendered insolvent by the conveyance, or that he received fair consideration for the conveyance. First National Bank of Marietta v. Hoffines, supra, 429 Pa. at 114, 239 A.2d at 462; Patterson v. Hopkins, supra 247 Pa.Super. at 170, 371 A.2d at 1382. “[WJhere a husband conveys [property] to his wife or to his wife and himself as tenants by the entireties for a nominal or inadequate consideration, at a time when the husband is insolvent or thereby rendered insolvent, the conveyance is presumptively fraudulent as to the husband’s creditors.” First National Bank of Marietta v. Hoffines, supra, 429 Pa. at 115, 239 A.2d at 463 (citations omitted).

The record reveals the following: Appellant and Mr. Stinner married and opened a joint checking account in 1978. They jointly own a 1973 Cadillac and a $62,000 home that is subject to a mortgage having an outstanding balance of $47,000. Mr. Stinner individually owes approximately $54,-000 to various creditors and nearly $8,700 to appellee. He is employed by Bethlehem Steel Corporation and receives a net annual salary of $61,338. His paychecks and all bonuses are directly deposited to the joint account. He maintains no investments, owns no valuable paintings, and has no other significant assets. The subject account is used to pay household expenses, Mr. Stinner’s loans, and his children’s college tuition. Appellant is a full-time homemaker, who has occasionally deposited personal funds in the joint account. Appellant generally maintains the account, writing almost ninety per cent of the checks. In addition to Mr. Stinner’s direct deposits and appellant’s sporadic deposits, they deposited their joint tax refund check and the proceeds of a $5,000 joint loan in the account. From this evidence, the lower court concluded that Mr. Stinner conveyed his salary into the joint account by direct deposit and that he was insolvent at the time. We are bound by those findings. See, e.g., Bales v. Bales, 280 Pa. Superior Ct. 96, 99, 421 A.2d 422, 424 (1980); Patterson v. Hopkins, supra 247 Pa.Super. at 172, 371 A.2d at 1383.

Appellant contends that the lower court erred in finding that the conveyances lacked fair consideration. We disagree. Appellant had the burden of establishing, by clear and convincing evidence, that she had given fair consideration. First National Bank of Marietta v. Hoffines, supra.

Fair consideration is given for property or obligation:

(a) When, in exchange for such property or obligation, as a fair equivalent therefor and in good faith, property is conveyed or an antecedent debt is satisfied; or
(b) When such property or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared to the value of the property or obligation obtained.

39 P.S. § 353. Appellant’s vague testimony concerning her irregular contributions to the joint account was contradicted by Mr. Stinner’s testimony that she did not contribute. The deposit slips admitted into evidence afford no basis for an inference that she was the source of the cash deposits. Her belated argument in her brief about the source of the funds is not evidence, and does not cure the inadequacy. See Marine Bank v. Huhta, 279 Pa.Superior Ct. 130, 139 n.5, 420 A.2d 1066, 1070 n.5 (1980). Thus, the lower court found that her contributions were minor by comparison to those of Mr. Stinner. Cf. United States ex rel. Marcus v. Morris, 360 Pa. 298, 303, 62 A.2d 43, 45 (1948) (when wife provided $22,000 of her own money toward construction of a family home, husband’s conveyance of property into entireties estate was supported by fair consideration). We are not free to disregard this finding by the court below. Appellant argues also that her performance of domestic services are adequate consideration for the transfer. However, our Supreme Court rejected such a contention in First National Bank of Marietta v. Hoffines, supra 429 Pa. at 116, 239 A.2d at 463. Consequently, because appellant failed to satisfy the heavy burden of proving fair consideration for the conveyance, the lower court properly concluded that the conveyance was fraudulent. Accordingly, appellee could garnish the subject account.

Appellant contends, however, that the lower court erred in ignoring the stipulation that the amount in controversy was only $4,200. We agree. During the hearing the following exchange occurred between counsel and the court:

[Appellee’s counsel]: The [appellee] limits [her] rights to seek a judgment against the defendant on garnishment to the extent of forty-two hundred dollars, which indicates the amount of deposit of money made from the wages of Mr. Stinner.
THE COURT: All right. So stipulated?
[Appellant’s counsel]: I have no problem with that.

Oral stipulations made in open court and receiving the imprimatur of the judge are binding upon the individual rights of the parties inter se and have the same effect as though reduced to writing and executed formally. Zvonik v. Zvonik, 291 Pa.Superior Ct. 309, 323, 435 A.2d 1236, 1243 (1981). Absent evidence of fraud or overreaching, appellee’s stipulation, concurred in by appellant, should have been accepted by the court below. Strickler v. Strickler, 138 Pa.Superior Ct. 34, 36, 10 A.2d 69 (1939) (stipulation as to reduction of amount of alimony should have been accepted). Accordingly, we hereby modify the order of the court below to permit appellee to garnish only $4,200 of the subject account. As modified, the order is affirmed.

So ordered.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

I concur in the result. I do so even though I find it most difficult to accept the determination that the regular routine deposit of salary and bonuses by a husband, into a household checking account owned by himself and his wife as tenants by the entireties, is a conveyance of individual property in fraud of creditors—even where, as here, the creditor is a predecessor tenant of one of the tenant owners of the entireties account. The majority opinion of our colleague, the venerable Judge J. Sydney Hoffman, provides the following recitation of the pertinent facts:

The record reveals the following:

Appellant and Mr. Stinner married and opened a joint checking account in 1978. They jointly own a 1973 Cadillac and a $62,000 home that is subject to a mortgage having an outstanding balance of $47,000. Mr. Stinner individually owes approximately $54,000 to various creditors and nearly $8,700 to appellee. He is employed by Bethlehem Steel Corporation and receives a net annual salary of $61,338. His paychecks and all bonuses are directly deposited to the joint account. He maintains no investments, owns no valuable paintings, and has no other significant assets. The subject account is used to pay household expenses, Mr. Stinner’s loans, and his children’s college tuition. Appellant is a full-time homemaker, who has occasionally deposited personal funds in the joint account. Appellant generally maintains the account, writing almost ninety per cent of the checks. In addition to Mr. Stinner’s direct deposits and appellant’s sporadic deposits, they deposited their joint tax refund check and the proceeds of a $5,000 joint loan in the account. From this evidence, the lower court concluded that Mr. Stinner conveyed his salary into the joint account by direct deposit and that he was insolvent at the time. We are bound by those findings.

These facts do not portray a conveyance in fraud of creditors. In fact, it would be difficult to invent a more compelling factual basis for a decision that this entireties account should be unavailable to any creditor of either tenant.

Our eminent colleague Judge Gwilym A. Price, in his very careful and deliberate opinion in Patterson v. Hopkins, 247 Pa.Super. 163, 371 A.2d 1378 (1977), addressed this very issue of the garnishment of a checking account funded by the salary of the debtor-tenant. That decision is controlling and it is for that reason that I concur.

I deem it further advisable to express my view with regard to that portion of the opinion of the majority that restricts the garnishment by appellee of the subject account to the sum of $4,200. I join in the view of the majority opinion that the oral stipulation in open court that had received the imprimatur of the trial judge binds the parties and restricts the judge to a finding that is consistent with the stipulation. I wish to emphasize that the garnishment should be restricted to the sum of $4,200 for a further reason, namely, the said sum is the amount of the particular salary payment of the debtor-tenant. Our courts must provide careful scrutiny of the facts and employ extreme care when permitting entireties property to be available for execution to creditors of one of the tenants and, in this instance, the garnishment is limited to but a portion of the garnished account.

I concur in the result.

       Appellant raises three other contentions that we note here and reject.
      She contends that the conveyance was not fraudulent because it was a payment for necessary household expenses. See, e.g., Watters v. DeMilio, 16 Pa.D. & C.2d 747 (C.P. Carbon County 1957); Welker v. Strohmeyer, 45 Berks 21 (C.P. Berks County 1952). Assuming, arguendo, that Watters and Welker are accurate statements of the law, appellant’s analysis is suspect. First, appellee garnished a bank account containing funds subject to Mr. Stinner’s control and not yet disbursed to merchants, mortgagor, or other creditors in payment for family necessities. Second, as the lower court properly found, appellant failed to establish adequately that the funds were actually used for supplying necessities. See Watters v. DeMilio, supra at 752-53.
      Appellant contends also that the conveyance was supported by fair consideration because Mr. Stinner’s salary is “marital property” under the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 101
        et seq., 23 P.S. § 101 et seq. We disagree. One of the purposes of the Divorce Code was to achieve economic justice for divorcing spouses inter se. See 23 P.S. § 102(a)(6), (b). The Divorce Code was not intended to affect the rights of third parties to the marriage. Surely, the legislature did not intend spouses to use the Divorce Code as a vehicle to perpetrate a fraud upon a stranger to the marriage. See 1 Pa.C.S.A. § 1922(1) (legislature presumptively does not intend absurd result). Consequently, the mere fact that the Divorce Code may provide appellant with an opportunity to share equitably in the fruits of her husband’s labor upon the dissolution of their marriage simply does not alter appellee’s right to execute against the joint checking account.
      Appellant argues also that appellee should not be permitted to execute against the account because it would be an indirect garnishment of Mr. Stinner’s wages in violation of 42 Pa.C.S.A. § 8127(a). That claim is patently frivolous because the statutory ban against garnishment of wages applies only “while [the wages are] in the hands of the employer.” Id. When appellee effectuated the garnishment, the funds were no longer in the employer’s hands; rather, they were in a bank account subject to Mr. Stinner’s control. The garnishment was thus one step removed from the statute’s protection.


source: Caselaw Access Project

author: VAN der VOORT, Judge:

license: Public Domain

text:
    446 A.2d 655
    Sabina STEFANIK, Mary Matkowski v. Thomas MATKOWSKI and Anna Matkowski, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1981.
    Filed June 4, 1982.
    Petition for Allowance of Appeal Denied Sept. 30, 1982.

      Arnold L. Wainstein, Philadelphia, for appellants.
    Lewis Kates, Philadelphia, for appellees.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is a dispute between an aged mother, Mary Matkowski, and her daughter, Sabina Stefanik, plaintiff-appellee, with her son and daughter-in-law, Thomas and Anna Matkowski, defendants-appellants, over title to the house in which the mother and daughter have lived since 1950. The mother conveyed title to the property to her son in 1975 under circumstances which the mother and daughter contend amounted to fraud and the exercise of undue influence by the son while in a position of trust and confidence with his mother. The lower Court sustained this contention and ordered reconveyance of the property to the mother. The son and daughter-in-law have appealed from that Order. A review of the record leads us to affirm the ruling of the lower Court.

The plaintiff-appellee in this litigation is Sabina Stefanik, the daughter, who occupies the second floor of the disputed property. Mrs. Stefanik is 56 years of age and the mother of two grown sons. She is afflicted with cerebral palsy and is a paraplegic confined to a wheel chair. She brought suit on behalf of her mother, Mary Matkowski, who signed an Affidavit to the daughter’s Complaint in Equity in which she consented to the action and averred that the facts set forth in the Complaint were true and correct.

At the conclusion of the appellee’s case in the Court below, the appellants moved for dismissal of the Complaint on the ground that the appellee did not have standing to bring the action and that Mary Matkowski, the mother, was a necessary party plaintiff. The Court reserved judgment. At the conclusion of all the testimony, the appellee and her mother filed a joint Petition requesting permission to add the mother as an additional party plaintiff. The Court below ruled on neither of these Motions. The appellee and her mother renewed their Petition in this Court for the joinder of Mary Matkowski as an additional party plaintiff/appellee.

Mary Matkowski has participated in this case from its inception, first by Affidavit in support of the Complaint and then by testimony at the trial. Her testimony has been subjected to cross-examination by the appellants and they will be prejudiced in no way by joining her as a plaintiff/appellee at this time. Consequently, we have this day entered an Order adding Mary Matkowski as a party plaintiff/appellee in this action, nunc pro tunc, pursuant to authority vested in us by P.R.C.P. 2232(c) and sustained by decisions of our Supreme Court extending back over 100 years. Dodd v. Stewart, 276 Pa. 225, 229, 120 A.2d 120 (1933); Hewitt v. Democratic Publishing Co., 271 Pa. 546, 549, 115 A. 838 (1922); and Patton v. Pittsburgh-Cincinnati-St. Louis Railway Co., 96 Pa. 169, 173-4, (1880).

Mary Matkowski, the mother, was 79 years of age when the conveyance to the appellants was made on March 10, 1975. At that time, she was recovering from a serious case of influenza and had been ill for approximately a month prior to that date. The mother is of Ukranian extraction and speaks the Polish language. She is unable to read, write or speak the English language and her comprehension of it when spoken to in English is slight and quite imperfect. She is the mother of three children, Sabina, the appellee, Tom, the appellant and Emilian, a son who plays no role in this litigation.

A short time prior to the execution of the deed, Mary Matkowski testified that she asked her son, Thomas Matkowski, to help her take care of the home property while she was ill and that he agreed to do so. He testified that she said she wanted to give him the property. Thomas Matkowski followed up on his mother’s request by engaging a neighborhood realtor to draw up a deed to his mother’s property in which title was conveyed to the appellants. He then had his mother brought to the real estate office on March 10, 1975, where she was told to sign the deed by affixing an “X” as her signature, and did so. Thomas Matkowski conceded in his Answer to the Complaint that he “occupied a position of trust and confidence” with his mother and the evidence corroborates that fact.

It is not clear what representations were made to the mother when she signed the deed. The son testified that no explanation was made to her at the time of signing because she knew what she was doing. The realtor who drafted the deed testified that he told her a few days before the deed was signed that he was preparing a deed conveying her property to her son. He spoke to her only in English and was not sure she understood him.

At or about the same time that the deed was signed, Mary Matkowski changed the beneficiary in three small policies of insurance from Sabina Stefanik to the appellants, and added appellant Anna Matkowski as a joint owner of her $12,000 bank account. It would appear from the testimony of Thomas Matkowski and his wife, Anna, that these changes were made after talks with Anna.

The mother testified that she did not know until 1978, three years after the fact, that she had signed a deed conveying the property to the appellants. She then hired a lawyer, made demands for restitution of her property, and upon refusal brought this suit.

The trial Court made findings of fact that at no time did Mary Matkowski intend to convey ownership of her home property to the appellants and that she signed the deed with her mark due to the abuse by the son of a position of trust and confidence that the son enjoyed with his mother. The Court also found that Mary Matkowski is unable to read, write or converse in the English language, and that she does not understand it fully when spoken to in English. Further, the Court found that on the day she signed the deed, she was ill with influenza and in a weakened condition, and that she signed the document without having it explained to her and without knowledge or understanding of what she was signing. The Court also found that there was no consideration for the conveyance.

The issue before us is whether those findings are adequately supported by evidence. If they are, the Order that the property be reconveyed by Thomas Matkowski to his mother is clearly justified.

It is undisputed that the appellant, Thomas Matkowski, occupied a position of trust and confidence with his mother. He conceded as much in his Answer to the Complaint, and the testimony of the mother, the daughter, and Thomas Matkowski himself, established a long course of dealings in which he acted as his mother’s consultant and advisor. She paid most of her bills in cash, and he was often her messenger in making the payments.

Where a confidential relationship exists between grantor and grantee, as established in this case, the burden of proof shifts to the party asserting the validity of the deed to prove that it was obtained by the free, voluntary and intelligent act of the grantor. Thomas v. Seaman, 451 Pa. 347, 353, 305 A.2d 134 (1973); Dzierski Estate, 449 Pa. 285, 289-90, 296 A.2d 716 (1972); Bieranowski v. Bieranowski, 345 Pa. 447, 449, 29 A.2d 11 (1943).

The only factual issue in dispute is whether the mother knew she was signing a deed and voluntarily consented to do so. The appellant, Thomas Matkowski, testified that his' mother told him that she wanted him to have title to the property and requested him to have a deed prepared. This was supported by the testimony of the realtor who prepared the deed that he called on the mother a few days before the deed was signed and told her that he was preparing a deed at the request of her son. He said that she nodded and smiled and he assumed at the time that she understood what he was saying. He spoke to her only in English and conceded that he did not know whether she understood what he had said.

The mother’s testimony was emphatic to the effect that at no time had she knowingly signed a deed. She had asked her son to help her in the management of the house while she was ill, but had not given him the property. It was her intention that the property should go to her three children upon her death.

Her testimony finds considerable corroboration in surrounding circumstances which are not in dispute. Each member of her family who testified agreed that she was aged and in poor health and that her understanding of the English language was imperfect at best. It is undisputed that there was no consideration for the transfer. The transfer to the appellants was inconsistent with her repeated statement that it was her intention to leave the property to her three children. And it is particularly inconsistent with the concern which she had shown for her paraplegic daughter, the appellee herein, over a long period of time. She had shared the home property with her daughter. Also, suspicions are justified by the fact that the mother’s life insurance benefits were changed from her daughter to her son, and her bank account put in a joint account with her daughter-in-law, at approximately the same time that the deed was signed.

The Court below heard the witnesses and observed their demeanor. We see no reason to disturb its findings of fact, which are amply supported by the testimony of the mother and corroborated by the undisputed circumstances just enumerated. Pittsburgh Advertising Co. v. Virginia Manor Apartments, 436 Pa. 350, 353, 260 A.2d 801 (1970); Dzierski Estate, supra, 449 Pa. 285, 290, 296 A.2d 716. It follows that the Order directing a reconveyance was appropriate.

The appellants have raised other issues, such as laches, lack of standing by the appellee, Sabina Stefanik, and the claim that the appellee was barred by the Statute of Frauds, but we find these issues to be without merit.

Order affirmed.


author: PER CURIAM:

text:
    446 A.2d 658
    COMMONWEALTH of Pennsylvania v. James E. CLARKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed June 4, 1982.
    James E. Clarke, in pro. per.
    Albert Nichols, District Attorney, Greensburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

Appellant was tried before a jury and was convicted of aggravated assault and endangering the welfare of children. Post-trial motions were denied by the court en banc and appellant was sentenced to a term of imprisonment of five (5) to ten (10) years. A direct appeal was taken to this court at No. 874, April Term, 1977. This court affirmed the judgment of sentence in a Per Curiam Order. Commonwealth v. Clarke, 265 Pa.Superior Ct. 642, 404 A.2d 1358 (1979).

On April 2, 1979, appellant filed pro se, a Post Conviction Hearing Act petition. In that petition appellant contended he was denied the effective assistance of counsel by counsel’s failure to seek an appeal before the Supreme Court. New counsel was appointed and a hearing was held. The court dismissed the petition as being frivolous. No appeal was taken from the denial of PCHA relief.

Appellant filed a second pro se PCHA petition on April 14, 1980. He claimed that counsel on his first petition was ineffective in not appealing the dismissal of the first petition. The court denied the second petition finding that the issues had been raised in the prior PCHA proceedings. Appellant here appeals from the order denying relief on the second petition.

On this appeal appellant argues that the court below improperly denied relief without conducting a hearing. It is his contention that his petition alleging that prior PCHA counsel was ineffective in not appealing the denial of his first petition in which he alleged trial counsel was ineffective in not seeking allocatur before the Supreme Court, required the court to grant him allowance to seek allocatur nunc pro tunc.

Appellate counsel, by letter dated March 1, 1979, had informed appellant that this court had affirmed the judgment of sentence in his case. Counsel indicated that he would not petition the Supreme Court for allocatur. Counsel further advised appellant to contact the Public Defender should he wish to appeal this court’s affirmance.

In Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980) our Supreme Court was faced with a somewhat identical factual situation, the only real difference being appellant’s intervening PCHA petitions; in Daniels the appellant raised his claim immediately after counsel refused to seek review in the Supreme Court. In the context of this appeal, the PCHA petitions do not require a different result as appellant’s claim was raised in both of them. We believe Daniels is controlling in the instant case and requires that the appellant be granted permission to seek a further appeal.

The order of the court below is reversed and appellant is granted leave to file a petition for allocatur nunc pro tunc to the Supreme Court of Pennsylvania. The lower court is directed to appoint counsel to assist appellant in properly filing such petition. The petition shall be filed within 30 days of the appointment of counsel. Case remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

Order reversed.

      . Appellant, in his brief explicitly “abandons” the other issues he raised in his second petition.


text:
    446 A.2d 660
    COMMONWEALTH of Pennsylvania v. John NASTARI, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed June 4, 1982.

      John P. Liekar, Canonsburg, for appellant.
    Herman J. Bigi, District Attorney, Charleroi, for Commonwealth, appellee.
    Before CERCONE, President Judge, and MONTGOMERY and VAN der YOORT, JJ.
   PER CURIAM:

On February 16, 1976, appellant pleaded guilty to second degree murder at No. 955 a of 1975. On July 29, 1977, he was sentenced to a term of imprisonment of ten (10) to twenty (20) years. Prior to his plea, he had entered into discussions with the Commonwealth regarding the prosecution of his co-actors. An agreement was reached. The district attorney would proceed to nolle prosse the charges of burglary and robbery at No. 955 b of 1975 if appellant would testify against his co-defendant. As appellant refused to testify at his co-defendant’s trial, the Commonwealth did not proceed to nolle prosse the remaining charges. On September 6, 1977, appellant entered a guilty plea to the remaining charge.

On September 21, 1974, when appellant was before the court for sentencing on No. 955 b, but prior to the actual imposition of sentence, defense counsel orally moved for allowance to withdraw appellant’s guilty plea. (N.T. 9/21/79, p. 11). Such motion was denied and appellant was sentenced. On October 12,1979, appellant filed a petition to withdraw his guilty plea and a hearing was held thereon on October 24, 1979. By opinion and order filed November 26, 1979, the court denied the motion. No appeal was taken from the court’s denial of this motion.

On May 5, 1980, appellant filed a petition with this court requesting permission to file an appeal nunc pro tunc. The basis for appellant’s request was that the Opinion and Order of October 24,1979 was “inadvertently . . . misplaced” within the Office of the Public Defender until April 28,. 1980. Such request was denied as this court was without the authority to extend the time for appeals. Subsequently, appellant filed a Post Conviction Hearing Act petition requesting permission to file an appeal nunc pro tunc. The lower court denied the petition, without a hearing, on July 16, 1980, finding that the Pennsylvania Rules of Appellate Procedure were to be strictly adhered to.

Neither party has succinctly stated the issue that must be resolved: was appellant’s failure to perfect an appeal a knowing and voluntary waiver. In fairness to both the Commonwealth and appellant, we must note that the parties did not have at the time briefs were filed, the guidance of recent opinions of this court. In Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982) this court laid out the procedure to be followed when a PCHA petition alleges that the petitioner was denied his right to appeal. The hearing court must determine whether the failure to take an appeal was a knowing and intelligent waiver of such. If the failure to appeal was not a result of an informed choice then the petitioner should be granted the right to appeal nunc pro tunc. The hearing court should not address the issues to be raised on appeal, except where the record is inadequately developed. In that situation an evidentiary hearing should be held so to create a complete record for purposes of review.

Even more recently this court addressed a situation very similar to appellant’s. Here appellant contends that the order denying his petition to withdraw his plea was inadvertently misplaced resulting, in counsel’s unawareness of that decision, and therefore counsel’s failure to appeal the order. In Commonwealth v. Johnson, 298 Pa.Superior Ct. 493, 444 A.2d 1291 (1982) the PCHA petitioner claimed that his failure to take an appeal resulted from counsel’s associate’s misbelief that the appeal period was 45 days and the actual appeal period of 30 days was mistakenly allowed to expire. A petition for permission to appeal nunc pro tunc was denied by this court. The appellant then filed his PCHA petition which the lower court denied.

In Johnson, this court reversed and remanded the case for an evidentiary hearing. The court was directed to determine whether there was a knowing and voluntary waiver of appellate rights. If the court found there was not, then the appellant was to be permitted to file an appeal nunc pro tunc. If a valid waiver was found, the court was directed to reinstate its original order or to make such other order as may be appropriate.

We reverse the lower court’s order and direct it to proceed in accordance with Johnson, supra. We do not retain jurisdiction.

      . All charges arose from the same criminal episode. The court resolved appellant’s claim under Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) against him. This issue is not before this court.

      . As the matter had been raised prior to imposition of the sentence, the court deemed the motion to have been filed prior to sentencing and treated it accordingly. See Opinion, November 26, 1979, fn. 1.

      . In Commonwealth v. Clark, 296 Pa.Superior Ct. 315, 442 A.2d 786 (1982) this court applied Miranda, supra, to a guilty plea situation and held a petitioner should first be permitted to petition to withdraw his guilty plea nunc pro tunc. In the current appeal as appellant has been heard on his petition to withdraw his plea, Clark is not applicable.


text:
    446 A.2d 661
    COMMONWEALTH of Pennsylvania v. Jeffrey GAUS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1982.
    Filed June 4, 1982.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from an order of the Court of Common Pleas of Montgomery County revoking appellant’s term of probation and sentencing the appellant to a minimum term of imprisonment of six months and a maximum term of twelve months at the Montgomery County Prison.

On January 19,1976, pursuant to a plea agreement, appellant pleaded guilty to Criminal Mischief and Possession of a Small Amount of Marijuana only for Personal use. Appellant was placed on probation for a period of two years with the Pennsylvania Board of Probation and Parole and ordered to pay the costs of prosecution and make restitution within sixty days. On January 30, 1976, a Gagnon I hearing was held and probable cause was established to warrant the filing of a Petition to Revoke appellant’s probation. On February 13, 1976, the lower court continued the Gagnon II hearing pending the disposition of the then present charge of bürglary. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thereafter, the appellant absconded until again apprehended by the Pottstown Police on January 9, 1981 on other charges. On March 17, 1981 a Notice of Probation Violation was received by the appellant. A Gagnon I hearing was held on March 26,1981 and probable cause to revoke the appellant’s probation was established. A Gagnon II hearing was held on April 10, 1981 and appellant was found to have violated the terms of his probation of January 9, 1976. Appellant was sentenced to a term of imprisonment of not less than six months nor more than twenty-three months. Appellant filed a Motion for Reconsideration and the lower court modified the sentence to not less than six months nor more than twelve months imprisonment and this appeal followed.

On appeal, appellant raises two arguments: (1) the sentence of six to twelve months was illegal since the court lacked jurisdiction because defendant’s original probationary period expired on January 19, 1978; and (2) the sentence imposed was unduly harsh and excessive under the circumstances. Though the court properly asserted jurisdiction, we must remand this case for the following reasons.

Appellant contends that the court below lacked jurisdiction to sentence the appellant because appellant received notice of his probation violation more than three years after his probation period expired in violation of his right to a speedy revocation hearing. Pa.R.Crim.P. 1409; Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979). While appellant does not dispute that probation may be revoked within a reasonable time after the expiration of a probationary period for a violation which occurred within the probation period, Commonwealth v. Ballard, 292 Pa.Super. 129, 436 A.2d 1039 (1981), appellant argues that the three year delay in the present case was unreasonable and in violation of his right to a speedy probation violation hearing.

In determining whether the hearing has indeed been held with reasonable promptness, the length of time between the conviction and the hearing is not the sole determinative factor. Commonwealth v. Young, 262 Pa. Super. 253, 396 A.2d 741 (1978); Commonwealth v. Diaz, 258 Pa.Super. 346, 392 A.2d 827 (1978); Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977). Rather, the critical issue is whether the delay was reasonable under the circumstances of the specific case, with such reasonableness being evaluated in the light of three factors: the length of the delay, the reasons for the delay, and the prejudice suffered by-the defendant as a result of the delay. Commonwealth v. Young, supra; Commonwealth v. Waters, supra.

Commonwealth v. Ruff, 272 Pa.Super. at 55, 414 A.2d at 666.

In the present case, the delay between the probation violation and the revocation hearing was four years and eight months. On its face, a delay of four years and eight months is excessive due to the length of the delay and because the hearing was held after the probation period had expired. Commonwealth v. Honeyblue, 276 Pa.Super. 107, 419 A.2d 118 (1980). However, we agree with the lower court that only two months of the delay was attributable to the Commonwealth since appellant concealed his whereabouts for the other four years and six months.

Appellant argues that he did not purposely avoid probation authorities but rather thought that his probation period had ended and thus, did not have to report. The record contradicts this argument. Exactly eleven days after having been placed on probation, appellant had a Gagnon I hearing where probable cause to revoke his probation was established. His Gagnon II hearing of February 13, 1976 was continued pending disposition of the robbery charge. Thus contrary to his argument, appellant had notice of his violations before he concealed his whereabouts after six months of probation.

Further, since appellant was already in prison on new charges while awaiting his revocation hearing, appellant was not prejudiced by the Commonwealth’s two month delay. Commonwealth v. Diaz, 258 Pa.Super. 346, 392 A.2d 827 (1978). Thus because the appellant has suffered no prejudice and the unreasonable delay was caused by the appellant concealing his whereabouts, the lower court properly revoked the appellant’s term of probation. Cf. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978) (delay caused by defendant concealing his whereabouts not attributable to the Commonwealth under Rule 1100).

Appellant also argues that the sentence imposed by the court below was unduly harsh and excessive under the circumstances. Commonwealth v. Riggins, 474 Pa.Super. 115, 377 A.2d 140 (1977). But if the sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973). Since the sentence is within statutory limits, appellant argues that the sentence is manifestly excessive so as to amount to an abuse of discretion by the lower court.

The Supreme Court in Commonwealth v. Riggins, supra, made clear that a trial court at the time sentence is imposed, must articulate the reasons for the imposition of its sentence. In Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), the same court mandated that such statement of reasons, or at least the record of the sentencing proceeding itself, must reveal that the court considered and accorded weight to the statutory guidelines set forth in the Sentencing Code. Id., 475 Pa. at 91-93, 379 A.2d at 887-88.
The requirements of Riggins and Kostka are equally applicable when a court imposes sentence following the revocation of probation. Commonwealth v. Plutko, 286 Pa.Super. 400, 428 A.2d 1390 (1981); Commonwealth v. Cappiello, 284 Pa.Super. 476, 426 A.2d 146 (1981); Commonwealth v. Steward, 276 Pa.Super. 64, 419 A.2d 96 (1980); Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669 (1980); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979); Commonwealth v. Reggie, 264 Pa.Super. 427, 399 A.2d 1125 (1979); Commonwealth v. Cottle, 260 Pa.Super. 85, 393 A.2d 1024 (1978).
Thus, at the time the trial judge imposes sentence following the revocation of probation, he or she must articulate on the record the reasons for the particular sentence imposed, and those reasons,
“. . . should reflect the judges consideration not only of those sentencing criteria enumerated in the Sentencing Code . . . but also the circumstances of the offense and the character of the offender . .. [citations omitted]”. Commonwealth v. DeLuca, supra, 275 Pa.Super. at 179, 418 A.2d at 671.
This Court has not, however, required the trial judge to list those criteria of the Sentencing Code and detail his or her response to each. Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). We insist only that the record indicate the trial judge’s cognizance and consideration of these factors at the time of sentencing. Commonwealth v. DeLuca, supra, 275 Pa.Super, at 179, 418 A.2d at 671.

Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981). (Emphasis added).

At the conclusion of the hearing, the lower court stated the following:

THE COURT: And now this 10th day of April, 1981, on criminal action number 638.1 of 1975, that sentence is revoked and the following sentence is imposed: On criminal action 638.1 of 1975, the defendant appearing in open court with counsel is sentenced to pay the cost of prosecution and undergo imprisonment for not less than six months nor more than twenty-three months in Montgomery County Prison to date from March 17th, 1981. He is to make restitution and pay the costs within six months of his release from prison

N.T., April 10, 1981, p. 24.

No other statement concerning the reasons for imposing sentence appears of record. The record and the court’s opinion fail to indicate any cognizance or consideration of the sentencing criteria. 42 Pa.C.S.A. § 9721 et seq.; Commonwealth v. Plutko, 286 Pa.Super. 400, 428 A.2d 1390 (1981).

For appellant’s liberty to be taken away and for the length of his confinement to be proper, there must be an explicit, on the record, compliance with 42 Pa.C.S.A. § 9721. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

Sentence vacated and case remanded for resentencing and articulation of the reasons for the sentence imposed. Jurisdiction is not retained by this Court.

      . Appellant was given credit for the time he was incarcerated following his rearrest.

      . 18 Pa.C.S.A. § 3304. Criminal Mischief as a misdemeanor of the third degree is punishable by a term of incarceration of not more than one year. 18 Pa.C.S.A. § 1104(3).

      . 35 Pa.C.S.A. § 780-113(a)(31)(i). Possession of a controlled substance as a misdemeanor is punishable by a term of imprisonment not exceeding thirty days or a fine not exceeding five hundred dollars ($500.00), or both. 35 Pa.C.S.A. § 780-113(g).

      . The sentence was modified because the original sentence was illegal. 18 Pa.C.S.A. § 3304(b); 18 Pa.C.S.A. § 1104(3). Although the appellant’s original order of probation was excessive, because the violation of probation occurred within one year of the order of probation, the mistake constituted harmless error.

      . Pa.R.Crim.P. 1409 provides as follows:
      Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole. In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.

      . See footnotes 2 and 3.


author: SHERTZ, Judge:

text:
    446 A.2d 905
    Marian M. McNAIR, Administratrix of the Estate of Earl P. McNair, Deceased, v. Norbert WEIKERS, Hirsch Wachs, Paul Richter and Allegheny General Hospital, Appellants. Marian M. McNAIR, Administratrix of the Estate of Earl P. McNair, Deceased v. Jules PUSCHETT and Rahat Chaudhry, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1981.
    Filed Feb. 19, 1982.
    Reargument Denied July 2, 1982.
    Petition for Allowance of Appeal Denied Oct. 12, 1982.

      John D. Rhodes, Pittsburgh, for appellants at No. 487 and for appellees at No. 488.
    John C. Conti, Pittsburgh, for appellants at No. 703.
    Kenneth W. Behrend, David M. Moran, Pittsburgh, for McNair, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

In the first of these consolidated appeals, Appellants challenge the lower court’s grant of a new trial. The decision of the court en banc rested on two grounds: (1) the trial court abused its discretion in that it improperly refused Appellee’s request to present rebuttal evidence, and (2) the trial court abused its discretion in that it improperly prohibited Appellee from filing a supplemental pretrial statement and from presenting certain expert medical testimony. Appellants contend the court en banc erred in granting a new trial. We disagree and therefore affirm.

In the second appeal, Appellants contend that the court below erred in denying their motion for summary judgment. We agree and therefore reverse.

I.

The facts of this case can be summarized as follows. Appellee brought wrongful death and survival actions alleging that medical malpractice on the part of Appellants caused the death of her husband. The decedent, who had a prior history of hypertension, contracted Guillian-Barre syndrome. In April, 1974, he was admitted to Allegheny General Hospital, an Appellant herein, where he was treated by several physicians, including Appellants Weikers, Wachs, and Richter. During the course of this treatment, the decedent was given the drug Aldomet in an attempt to lower his blood pressure. Although this treatment proved successful in lowering the blood pressure, decedent contracted a high fever and died several days after entering the hospital. The cause of his death is the dispute underlying this lawsuit.

At trial, Appellee offered into evidence, without objection, those sections of the Physician’s Desk Reference pertaining to Aldomet, in order to prove that the decedent had received negligent care. That is, Appellee attempted to demonstrate that, in failing to give due consideration to the procedures and precautions set forth in the aforementioned publication, Appellants negligently caused the death of her husband.

Appellants, on the other hand, undertook to prove that the decedent had received proper medical care during his hospitalization. To this end, they presented the testimony of Dr. Puschett, a specialist in renal-electrolyte medicine, who was primarily responsible for the treatment of decedent’s hypertension. Dr. Puschett testified on cross-examination, as follows, with regard to Aldomet and its proper administration:

Q Well, sir, earlier you said that you did not necessarily agree with what the manufacturer said in the Physician’s Desk Reference?
A Yes. I based that on my clinical judgment and experience with the agent (Aldomet) and the work of others.
Q Well, you say you used this on patients and you found from your observations that it worked differently than the manufacturer’s recommendations?
A Not the recommendations, what we found, for example, was that whereas the Physician’s Desk Reference which, by the way, I don’t think is holy in any way, whereas the Physician’s Desk Reference says that the drug’s onset is quite different from what I mentioned to you earlier, that those of us with a lot of clinical experience find that it works more rapidly, much more rapidly under actual clinical settings. And, we found that it might be biologically effective in a shorter period of time than the time given by the manufacturer.

N.T. at 438-39. (parenthesis added).

Q It (the Physician’s Desk Reference) does not say what you said, to try to determine if the fever is from something else?
A Well, the book (Physician’s Desk Reference) does not take over for the clinical judgment, sir. The book does not tell you how to practice medicine, sir.

N.T. at 442. (parenthesis added)

Q Now, let’s assume that the time lag for the Aldomet was exactly as the manufacturer’s recommendation for the 4 to 6 hours, and that the carry-over is 10 to 16 hours as the manufacturer described, let’s assume that as a fact. Now, at 8 o’clock a. m. on the 8th of May, how far back would we still be getting the effects of the Aldomet?
A Well, you see, you have asked me to make an assumption. I don’t have all the facts of the matter and there is no way I can do that. I just cannot assume that .... That is why I mentioned to you earlier in the day that this type of evidence suggests to me very clearly that the indications in the Physician’s Desk Reference to which you are referring is inaccurate.
Q Well, you assumed that the Physician’s Desk Reference is inaccurate at the point it says that there is a four to six-hour lag and the carry-over to 10 to 16 hours, you will not accept that assumption?
A No, that does not agree with the other authoritated (sic) things on the subject.

N.T. at 481-82.

At the conclusion of Appellants’ case-in-chief, Appellee sought to introduce rebuttal evidence, in the nature of expert medical testimony and medical publications, to impeach the medical testimony presented by Appellants, most especially the testimony of Dr. Puschett. The trial court refused to admit this evidence. Following a jury verdict in favor of all four Appellants, Appellee filed a Motion for New Trial, which was granted, and this appeal followed.

It is axiomatic that, absent a clear abuse of discretion or an error of law which controlled the outcome of a case, this Court will not reverse the grant of a new trial by the lower court. Izzi v. Philadelphia Transportation Company, 412 Pa. 559, 195 A.2d 784 (1963). In the instant appeal, Appellants first argue that the trial court properly precluded the proffered rebuttal evidence and that the court en banc’s action in granting a new trial therefore constituted a clear abuse of discretion. That is, Appellants contend that Appellee, as part of her case-in-chief, was bound to establish the proper administration and dosage of Aldomet and she attempted to do so through the use of the Physician’s Desk Reference. Dr. Puschett’s testimony, Appellants argue, merely contradicted the evidence presented by Appellee on this point and it therefore did not afford a basis for allowing rebuttal testimony.

While we agree that Appellee was required to establish the proper use of Aldomet, we reject Appellants’ contention that the proposed testimony was not proper evidence for impeachment. As pointed out by Appellee, Appellants “placed in issue, and used as a grounds for a defense, the clinical experience and superior knowledge of Dr. Puschett in the use of Aldomet over those standards established by the plaintiff in her case in chief through the Physician’s Desk Reference.” Brief for Appellee at 22. Although the decision whether to admit rebuttal testimony is within the discretion of the trial court, See, Mishkin v. Redevelopment Authority, 6 Pa.Cmwlth. 97, 293 A.2d 135 (1972), Murphy v. Philadelphia, 420 Pa. 490, 218 A.2d 323 (1966), the exercise of that discretion is subject to certain well-established limitations. One such limitation, as pertinent hereto, was described by our Supreme Court as follows:

A litigant has the privilege of offering rebuttal testimony, and where the evidence proposed goes to the impeachment of the testimony of his opponent’s witnesses, it is admissible as a matter of right. Rebuttal is proper where facts discrediting the proponent’s witnesses have been offered. Wigmore on Evidence (2d Ed.) vol. 4, p. 20 § 1873. “For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court.” Id., p. 25, § 1873.

Schoen v. Elsasser, 315 Pa. 65, 66, 172 A.2d 301-02 (1934).

Insofar as the proffered rebuttal evidence in this case is concerned, Appellee sought thereby to impeach evidence introduced in defendant’s case in chief, to wit, Dr. Puschett’s asserted superior knowledge and clinical expertise concerning the use and characteristics of Aldomet. The court en banc therefore properly concluded that Appellants had produced evidence which Appellee should have been permitted to rebut with at least some of the proposed evidence and that the trial court’s disallowance of same was improper.

Finally, Appellants argue the proferred evidence was properly excluded because it was offered as substantive, rather than impeachment, evidence. A review of the record, in context, simply does not support this proposition.

Order affirmed and case remanded for further proceedings. Jurisdiction relinquished.

II.

The wrongful death and survival action against Appellants, Puschett and Chaudhry, was commenced by Complaint on May 30, 1979, more than five years after the death of Earl McNair. In substance, Appellee averred that, while decedent was a patient at Allegheny General Hospital during April and May, 1974, Appellants negligently caused Aldomet to be so improperly administered as to cause hypertensive shock resulting in the death of Earl McNair on May 10, 1974. Appellants filed an Answer and New Matter and Appellee filed a Reply thereto. Appellants thereupon moved for summary judgment on the grounds that the action was barred by the Statute of Limitations and by the principles of res judicata and collateral estoppel. The court below denied Appellants’ Motion and this appeal followed.

Appellee acknowledges that this action was initiated more than one year after decedent’s death and more than two years after the injury occurred. She contends, however, that Appellants concealed material facts essential to Appellee’s recognition of the potential existence of a cause of action against Appellants and they are thereby estopped from asserting the Statute of Limitations.

It is unquestionably correct, as Appellee asserts, that 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); Plazak v. Allegheny Steel Co., 324 Pa. 422, 188 A. 130 (1936). Moreover, the defendants’ 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); Schwab v. Cornell, 306 Pa. 536, 160 A. 449 (1932); Acker v. Palena, supra. Mere mistake, misunderstanding or lack of knowledge is insufficient however, Schaffer v. Larzelere, supra; Keating v. Zemel, 281 Pa.Super.Ct. 129, 421 A.2d 1181 (1980); 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; Bonfitto v. Bonfitto, 391 Pa. 187, 137 A.2d 277 (1958); Hertz v. Hardy, 197 Pa.Super.Ct. 466, 178 A.2d 833 (1962).

In considering the foregoing principles instantly, within the context of a motion for summary judgment, we are mindful of the heavy burden Appellants must meet. As we recently stated in Acker v. Palena, supra:

The law on summary judgment is well-settled. “Summary judgment is made available by Pa.R.C.P. 1035, 12 P.S. Appendix, when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of judgment.” (citations omitted). Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975). See also, Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). The moving party bears the burden of demonstrating clearly that there is no genuine issue of material fact. LeGrand v. Lincoln Lines, Inc., 253 Pa.Super. 19, 384 A.2d 955 (1978). See also, Prince v. Pavoni, 255 Pa.Super. 286, 302 A.2d 452 (1973); Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968).

Id. 260 Pa.Super. at 218, 393 A.2d at 1232.

Further, Pa.R.C.P. 1035(d) provides that:

. . . When a motion for summary judgment made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Viewing the record in the foregoing light, it is clear beyond peradventure that there is no genuine issue as to any material fact relating to fraud or concealment on the part of Appellants. In actuality, Appellee’s evidence on the issue is utterly devoid of any showing of fraud or concealment by either Appellant. To the contrary, that evidence, consisting of the affidavits of Appellee and Dr. Theodore Rodman, rather demonstrates that Appellee failed to institute a timely action due to her own mistake, misunderstanding or lack of knowledge.

Appellee’s affidavit, submitted in opposition to Appellants’ motion for summary judgment, consisted solely of two documents she had filed in connection with her lawsuit against Allegheny General Hospital, Norbert Weikers, Hirsh Wachs and Paul Richter; a Petition seeking leave to file a second amended complaint, and a motion for leave to present expert medical testimony or for a continuance to file expert report. These documents disclose the following pertinent facts.

Appellee commenced her first action by Writ of Summons on April 18, 1975; she had received the hospital records sometime prior to January 27, 1976, on which date she forwarded them to Dr. David Beal for review; by March, 1976, Appellee had received a complete legible copy of the hospital records and a medical opinion from Dr. Donald Soxman which indicated, inter alia, that hospital personnel had failed to follow physicians’ orders in the administration of Aldomet; during August, 1976, Appellee submitted the hospital records and pathology slides to Dr. Cyril Wecht and on August 30, 1976, she filed a complaint, wherein she averred that the physician defendants therein had administered Aldomet “beyond the time of appropriate therapy ... (and) when it was not safe or proper to do so”; on December 27, 1976, Dr. Wecht submitted his report which stated, in part:

There appears to be a discrepancy in the records between the physicians’ orders and the nurses’ notes regarding the administration of Aldomet, with a serious question related thereto concerning the possible injudicious use and adverse effects of this drug.

(emphasis added); in February, 1979, Appellee, through discovery proceedings, obtained the defendants’ experts’ medical reports and, based upon the information contained therein, Appellee submitted the records and slides to Drs. C. Maynard Guest, Joshua Perper and Theodore Rodman; Dr. Perper suggested that the management of Aldomet be examined; Drs. Guest and Rodman, upon a review of the medical records, both indicated that the method and the amount of administration of Aldomet was a deviation from the standard of care and was a substantial factor in the shock which led to decedent’s death.

Dr. Rodman’s affidavit, also offered by Appellee in opposition to Appellants’ motion for summary judgment, states: he was contacted by Appellee’s counsel on May 20,1979; his initial review of the records indicated that the manner of the administration of Aldomet was improper (emphasis added); the nurses’ notes in the hospital record relating to the administration of Aldomet designated a varying rate of microdrops per minute; these notes raised serious questions as to the amount of Aldomet administered but this could not be known for certain without converting the entries to the amount of the drug actually given; such a conversion formula was provided by the trial testimony of one of the defendant-physicians (Dr. Paul Richter); the total quantity of Aldomet administered was discernable by the utilization of the conversion formula and review of the nurses’ entries; in Dr. Rodman’s opinion, the manner in which the Aldomet was administered, as thus discerned, was highly improper and caused hypertension and shock resulting in decedent’s death.

We have not set forth the foregoing detailed factual information to demonstrate, as Appellants’ contend, that Appellee failed to exercise due diligence, nor to demonstrate, as Appellee contends, that she did. Neither contention is pertinent to the issue before us. Rather, the purpose of our careful review is to illustrate that there is not a scintilla of evidence to prove Appellee’s contention that Appellants, the defendants herein, concealed anything. Taking a view of the evidence most favorable to Appellee and resolving all doubts in her favor, the most that can be said is that, if any concealment has been shown, it was effected by the nurses, and not by the Appellants.

As is evident from Appellee’s brief, the “concealment” consisted of the particular nomenclature employed by the nurses and the manner in which they recorded the administration of Aldomet. Appellee states:

“The physicians’ order sheets in Mr. McNair’s medical records indicate that Mr. McNair was first ordered to be given* 250 Milligrams every six hours which was then increased to 500 milligrams every six hours . . . Dr. Chaudhry, who was a resident working under the direction of Dr. Puschett, ordered 2 grams of Aldomet however it was to be given by continuous intravenous drip infusion and the nurses were directed to titrate or regulate the infusion rate of the Aldomet according to the diastolic blood pressure.
While the order for the administration of the Aldomet is thus on its face proper, there was in fact hidden information within the hospital chart which would indicate that the drug was in fact not properly administered. This information ... consisted of notations by the nurses interspersed among the nurses notes that referred to the rate of the infusion of the Aldomet through the intravenous apparatus. These notes were such entries as “30-35 mgtts/min” . .. now know to refer to 30-35 microdrops per minute ... These entries are not at fixed locations within the chart but are interspersed throughout the nurses’ notes . . . The most important factor is that the notation of microdrops per minute does not in and of itself give any evidence of the actual amount of the drug contained in each of the microdrops.

Appellee’s brief at 18-19. (emphasis added). Appellee thereafter continues:

It was through the testimony of Dr. Richter illicited (sic) at the time of trial that a conversion was obtained.. . This is the first indication as to the exact amount of Aldomet being given to the plaintiff’s decedent.... it is absolutely clear that this information concerning the amount of the administration of Aldomet was concealed, albeit unintentionally, within the medical records... .

Id. at 21. (emphasis added).

Appellee’s reliance on Schaffer v. Larzelere, supra, and Acker v. Palena, supra, is misplaced inasmuch as, in both cases, it was alleged that the concealment which operated to toll the Statute of Limitations was effectuated by the defendants therein. The distinction is a most significant one. In order to relieve a party from the bar of the Statute, the concealing screen must have been erected by his adversary. Nesbitt v. Erie Coach Company, supra, 416 Pa. at 96, 204 A.2d at 477. Such has not been shown to be the case here. Accordingly, we conclude that Appellants’ Motion for Summary Judgment should have been granted.

The Order of the court below is reversed and case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

This case was decided prior to the expiration of SHERTZ, J.’s, commission of office.

DiSALLE, J., did not participate in the consideration or review of this case.

      . Since we conclude that the grant of a new trial was warranted on the first of these grounds, we need not and do not address the second.

      . Although an order denying a motion for summary judgment is interlocutory, the court below made the certification specified in, and we granted permission to appeal pursuant to, the Act of July 9, 1976, effective June 27, 1978, as amended, 42 Pa.Con.Stat.Ann. § 702(b). See Rule 1311, Pa.R.A.P.

      . Dr. Puschett is an Appellant in the second of these consolidated appeals.

      . The applicable Statute of Limitations for wrongful death actions provided that, “the action shall be brought within one year after the death and not thereafter.” 12 Pa.Stat.Ann. § 1603 (Purdon 1953) (repealed) 42 Pa.Cons.Stat.Ann. § 5524 (Purdon Pamphlet 1981). The applicable Statute of Limitations for survival actions was “two years from the time the injury was done.” 12 Pa.Stat.Ann. § 34 (Purdon 1954) (repealed) 42 Pa.Cons.Stat.Ann. § 5524 (Purdon Pamphlet 1981).

      . In the court below, Appellee sought to avoid the bar of the Statute of Limitations by relying on the so-called “discovery rule”. See Acker v. Palena, 260 Pa.Super.Ct. 214, 393 A.2d 1230 (1978). The trial court, as its Opinion in support of the order denying Appellants’ motion for summary judgment indicates, also considered the “discovery” rule” applicable. The court, stating that whether a key factor was discoverable within the time frame of the Statute of Limitations was a question of fact, which it could not permissibly resolve, understandably denied Appellants’ Motion.
      Both the trial court and Appellee were in error in their reliance on the “discovery rule”, inasmuch as the rule has recently been held to be inapplicable to wrongful death and survival actions. Anthony v. Koppers Company, Inc., 496 Pa. 119, 436 A.2d 181 (1981). Consequently, any issue of fact bearing upon the applicability of the “discovery rule” is irrelevant and affords no basis for the denial of Appellants’ motion for summary judgment.


author: LIPEZ, Judge:

text:
    446 A.2d 912
    Richard PENDRAK v. KEYSTONE SHIPPING COMPANY and Robert Hawthorne, Inc. and A. Moe & Company, Inc. Appeal of ROBERT HAWTHORNE, INC.
    Superior Court of Pennsylvania.
    Argued May 6, 1981.
    Filed May 28, 1982.
    Reargument Denied June 15, 1982.
    Petition for Allowance of Appeal Denied Sept. 28, 1982.

      Charles W. Craven, Philadelphia, for appellant.
    Jeanne Ward Ryan, Philadelphia, for appellees.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   LIPEZ, Judge:

In this personal injury action we are required to interpret the meaning of the word “date” as set forth in Section 303(b) of the Pennsylvania Workmen’s Compensation Act, 1974, December 5, P.L. 782 No. 263, § 6, 77 P.S. § 481(b), (the Act). It provides:

In the event injury or death to an employee is caused by a third party, then such employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions, or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

(emphasis supplied).

The plaintiff, Richard Pendrak (Pendrak) was injured on January 18, 1978, about 3 p.m. while in the employ of the additional defendant A. Moe and Company, Inc. (Moe). At the time of the injury, Pendrak was on a vessel owned by the Keystone Shipping Company (Keystone). Pendrak alleged in his Complaint that he was struck by a hatch cover which fell from a crane owned by the defendant, Robert Hawthorne, Inc. (Hawthorne) that had been leased to Moe. Hawthorne sought to join Moe as an additional defendant based upon a contract of indemnity executed on January 18, 1978, the same date on which the accident to Pendrak occurred (but some hours after its execution) wherein Moe agreed unconditionally to indemnify Hawthorne from all personal injury claims arising from the operation of the equipment.

Moe filed preliminary objections contending essentially that it was totally immune because the indemnity contract was not entered into, within the meaning of Section 303(b) prior to the date of the occurrence which gave rise to the action in this matter. The lower court sustained the preliminary objections. Hawthorne appeals. We affirm.

The issue here is whether the fact that the contract of indemnity was signed on the date of the injury to the plaintiff Pendrak, even though entered into prior to the injury, precludes the joinder of Moe, Pendrak’s employer, as an additional defendant by the defendant Hawthorne. We think that it does.

“The date in its ordinary meaning imports the day, month and year, and this is also the legal significance of the word, and unquestionably is the popular as well as the technical meaning, the day of the month being quite as much a part of the date as the month or year ...” 15 A.C.J.S. 472. “When the words of a statute are clear and free from all ambiguity, the letter of it is' not to be disregarded under the pretext of pursuing its spirit.” Statutory Construction Act of 1972. 1 Pa. C.S.A. § 1921(b). “[T]he language of a statute must be construed according to common and approved usage.” Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978).

We think it is clear and so conclude, that “date” as used in § 303(b) means “day, month and year,” excluding any lesser period of time (hour, minute). While we recognize that this interpretation would require such contracts to be executed on a day prior to the occurrence, nevertheless, not only are we convinced that the plain meaning and approved usage of the word mandates it, but it also promotes greater certainty and less likelihood of dispute.

Affirmed.

      . Keystone does not appeal.

      . Prior to the 1974 amendment to the act, in suits brought by employees against a third party, the employer could be joined as an additional defendant. This amendment granted employers total immunity from third party actions, (See Lee v. U. S. Plywood, et al., 299 Pa.Superior Ct. 165, 445 A.2d 506 (1982), Hefferin v. Stempkowski, 247 Pa. Superior Ct. 366, 372 A.2d 869 (1977)), except where otherwise expressly provided by written contract “prior to the date of the occurrence.”

      . Cases from other jurisdictions are in accord. See, Schoonover v. Arizona Title Insurance and Trust Company, 126 Ariz. 438, 616 P.2d 898 (1980). Anderson v. State Personnel Board, 103 Cal.App.3d 242, 162 Cal.Rptr. 865, 868 (1980).


author: CAVANAUGH, Judge:

text:
    446 A.2d 914
    Andrew WOYTEK and Helen Woytek, Appellants, v. BENJAMIN COAL COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Filed June 4, 1982.

      Anthony S. Guido, DuBois, for appellants.
    Carl A. Belin, Jr., Clearfield, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

The appellants in this case, Andrew Woytek and Helen Woytek were the owners of real estate in Clearfield County, Pennsylvania. In 1973 the appellants leased some two hundred acres of land to Benjamin Coal Company, the appellee herein, to be used for coal mining. The term of the lease was for three years or until exhaustion of the coal “whichever event shall last occur.” Paragraph Eighth of the lease, which was on a printed form, provided as follows:

EIGHTH: The Lessee agrees that upon completion of mining operations it will restore the leased premises in the manner required by the Pennsylvania Bituminous Coal Open Pit Mining Conservation Act then in force.

The agreement also provided in paragraph Twelfth as follows:

TWELFTH: The Lessee does further agrees that after termination of this lease for the purpose of backfilling and planting in compliance with the mining laws of the State of Pennsylvania, tree planting would be of the species of hybrid poplar or hardwood if soil samples are compatible with such species and if such species are available from the State Nursery of the Department of Forest & Waters of the Commonwealth of Pennsylvania.

After the lease expired the appellee attempted to restore the land and planted various trees. The appellee was advised by the Director of the Bureau of Surface Mine Reclamation of the Commonwealth of Pennsylvania that backfilling, leveling and planting had been accomplished in accordance with the Surface Mining Conservation and Reclamation Act. The appellants were not satisfied that the land had been properly restored or new trees planted in accordance with the lease and in 1979 commenced an action in assumpsit against the appellee in the court below. The appellee filed a motion for summary judgment on the grounds that the Commonwealth of Pennsylvania, Department of Environmental Resources, had exclusive jurisdiction. The court below in an order by Reilly, Jr., J. granted the motion and summary judgment was entered in favor of the appellee.

The court below found that the lease involved merely required the appellee to comply with the Surface Mining Conservation and Reclamation Act, Act of November 30, 1971, P.L. 554, No. 147, § 1 et seq., 52 P.S. § 1396.2. The court decided that the Department of Environmental Resources has exclusive jurisdiction relying on Elkin v. Bell Telephone Company of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980).

In the Elkin case the telephone customer filed a complaint in trespass against Bell Telephone of Pennsylvania alleging that the telephone company negligently failed to provide reasonable, rapid and efficient telephone service. Bell Telephone filed preliminary objections on the ground that the matter was within the exclusive jurisdiction of the Pennsylvania Utilities Commission. Subsequently, the Pennsylvania Public Utilities Commission held a hearing which found that The Bell Telephone Company had rendered adequate telephone service to the plaintiff. The lower court refused to grant Bell’s motion for summary judgment. The Bell Telephone Company appealed to the Superior Court which reversed the lower court and entered judgment for the telephone company. Elkin v. Bell Telephone Company, 247 Pa.Super. 505, 372 A.2d 1203 (1977). An appeal was taken to the Supreme Court which affirmed the order of the Superior Court. The Supreme Court stated at 491 Pa. 128, 129, 420 A.2d 374:

This case requires accommodation of the respective spheres of adjudicatory authority of the PUC and the Courts of Common Pleas where each has jurisdiction over some facet of the controversy. The PUC has long been recognized as the appropriate forum for the adjudication of issues involving the reasonableness, adequacy and sufficiency of public utility services.

The Supreme Court held that under the doctrine of primary jurisdiction the determination of the adequacy of telephone service was properly referred to the Pennsylvania Public Utilities Commission and that its determination of adequacy was binding and not subject to collateral attack. The Superior Court pointed out in Elkin v. Bell Telephone Company of Pennsylvania, 247 Pa.Super. 505, 510, 372 A.2d 1203, 1205, that “it is well-settled that the P.U.C. has exclusive jurisdiction over the reasonableness, adequacy and sufficiency of public utilities services.” See also Bell Telephone Company of Pennsylvania v. Uni-Lite, Inc., 294 Pa.Super. 89, 439 A.2d 763 (1982).

We believe that the court below erred in its interpretation of the lease in this case and in its application of Elkin v. Bell Telephone of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980) to the lease. The lease in Paragraph Eighth, which was part of the printed lease apparently prepared by appellee merely required that the appellee comply with the requirements of the Pennsylvania Bituminous Coal Open Pit Mining Conservation Act (now the Surface Mining Conservation and Reclamation Act). However, the lease in Paragraph Twelfth, which was not part of the printed lease and was typewritten, required more than mere compliance with the Act. It required that the lessee plant hybrid poplar and other hardwood trees under certain conditions. In their complaint in assumpsit the appellants alleged noncompliance with Paragraph Twelfth of the lease. In interpreting contracts the intention of the parties must be determined. In a written contract the intent of the parties is manifested by the writing, and when the words are clear and unambiguous the intent is to be determined only from the express language of the agreement. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973). See also Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3 Cir. 1979). Further, a contract must be interpreted as a whole and effect must be given to all its provisions. Central Dauphin School District v. American Casualty Co., 493 Pa. 254, 426 A.2d 94 (1981); Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d. 736 (1978). Finally, the restoration required by. the terms of Paragraph Eighth which was in the printed portion of the lease are not as stringent as those set forth in Paragraph Twelfth which was inserted by typewriter. “Where written and printed portions of a contract are repugnant, printed matter must yield to written clauses, as written clauses presumably constitute deliberate expression of the real intent of the parties.” Onofrey v. Wolliver, 351 Pa. 18, 21, 40 A.2d 35, 38 (1944). See also Mailey v. Rubin, 388 Pa. 75, 130 A.2d 182 (1957); Gormley v. Colonial Gas Coal Company, 24 Lawrence L.J. 1 (1972).

In the instant case, if the contract only contained the language set forth in printed Paragraph Eighth then the court below would have properly entered a summary judgment in favor of the appellee. It appears that the leased premises were restored in accordance with the requirements of The Surface Mining Conservation and Reclamation Act. In October, 1975, and May, 1977, W.E. Guckert, who was then Director of the Bureau of Surface Mine Reclamation, wrote to the president of Benjamin Coal Company. In the October, 1975, letter the director stated that the mine inspector advised the Department of Environmental Resources that backfilling and leveling had been accomplished in accordance with the Surface Mining Conservation and Reclamation Act. The May 4,1977, letter stated that the forester had advised the department that planting had been accomplished according to the Act. Letters from Mr. Ercole who was then the Director of The Bureau of Surface Mine Reclamation on July 7, 1978, and August 1, 1978, to the appellee again advised the appellee that back-filling, leveling and planting had been accomplished in accordance with the Act and that the appellee and its bonding company were relieved of further liability under specifically identified bonds. These letters indicate full compliance with the requirements of the Act and fulfillment of the appellee’s obligation under Paragraph Eighth of the agreement. There were further obligations on the part of the appellee under Paragraph Twelfth which required the planting of certain types of trees if they were available. Nothing was presented to the court below to indicate that the requirements of Paragraph Twelfth of the agreement were complied with and appellant’s complaint in assumpsit alleges that they were not.

Unless Paragraph Twelfth placed a greater burden on the appellee than mere compliance with The Surface Mining Conservation and Reclamation Act as required by Paragraph Eighth, there was no reason for the parties to add Paragraph Twelfth. However this paragraph did add additional obligations and in fact stated that “The lessee does further agree. .. ”

Summary judgment may be entered only in a clear case and the requirements for entering such judgment were succinctly set forth in the recent opinion of President Judge Cercone in Community Medical Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 437 A.2d 23, 25 (1981):

Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Pa.R.C.P. 1035. And see Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970); Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa.Superior Ct. 341, 361 A.2d 676 (1976). Furthermore, summary judgment is only proper in cases which are clear and free from doubt as to the existence of a disputed factual question. See Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967); Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 247 A.2d 629 (1968). In ruling on a motion for summary judgment the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom. See Hankin v. Mintz, 276 Pa.Superior Ct. 538, 419 A.2d 588 (1980); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Superior Ct. 198, 280 A.2d 570 (1971). The record as a whole should be examined in the light most favorable to the party opposing the motion and all doubts as to the existence of a genuine issue about a material fact must be resolved in that party’s favor, that is, against the entry of summary judgment. See Bowman v. Sears, Roebuck & Co., 245 Pa.Superior Ct. 530, 369 A.2d 754 (1976); Husak v. Berkel, Inc., 234 Pa.Superior Ct. 452, 341 A.2d 174 (1975); Schacter v. Albert, 212 Pa.Superior Ct. 58, 239 A.2d 841 (1968). And see Hankin v. Mintz, supra; Ritmanich v. Jonnel Enterprises, Inc., supra. In disposing of such a motion the court’s function is not to decide issues of fact, but solely to determine whether there are material issues of fact to be decided. See Hankin v. Mintz, supra; Ritmanich v. Jonnel Enterprises, Inc., supra.

In this case there is a genuine issue as to whether the planting as required by Paragraph Twelfth was performed.

In our opinion, the court below erred in its interpretation that the lease merely required the defendant to comply with the Surface Mining Conservation and Reclamation Act. The lease required more than this. In addition, appellee argues that if the Department of Environmental Resources erred in discharging it under the Act that the issue should be raised before the department and not in the courts. This argument misses the point. The issue was not whether the appellee has complied with the requirements of the Surface Mining Conservation and Reclamation Act, and it apparently has, but whether it is in breach of its contract with the appellant.

We do not believe that the Surface Mining Conservation and Reclamation Act requires that all contractual questions be referred to the Department of Environmental Resources. The Act provides only that “all surface mining operations shall be under the exclusive jurisdiction of the department...” 52 P.S. § 1396.4b. Whether certain types of trees had been planted in accordance with the terms of a lease agreement does not fall within the definition of surface mining operations.

Judgment reversed.

      . This Act replaces the Bituminous .Coal Open Pit Mining Conservation Act, Act of May 31, 1945, P.L. 1198, referred to in the lease.

      . The court based its determination that exclusive jurisdiction lay with The Department of Environmental Resources on the following provision of The Surface Mining Conservation and Reclamation Act, 52 P.S. § 1396.4b:
      § 1396.4b General rule making; health and safety
      (a) Except as otherwise provided hereunder, and subject to the provisions of section 4(a)(2) L.1 all surface mining operations coming within the provisions of this act shall be under the exclusive jurisdiction of the department and shall be conducted in compliance with such reasonable rules and regulations as may be deemed necessary by the department for the fulfillment of the purposes, and provisions of this act, and other acts where applicable, including, but not limited to the ¿ct of July 17, 1961 (P.L. 659, No. 339), known as the “Pennsylvania Bituminous Coal Mine Act.”2

      . The court also raised a warning flag concerning the referral of matters to administrative agencies. It stated at 491 Pa. 134, 420 A.2d 377:
      We must enter a caveat, however. Courts should not be too hasty in referring a matter to an agency, or to develop a “dependence” on the agencies whenever a controversy remotely involves some issue falling arguably within the domain of the agency’s “expertise.” “Expertise” is no talisman dissolving a court’s jurisdiction. Accommodation of the judicial and administrative functions does not mean abdication of judicial responsibility. The figure of the so-called “expert” looms ominously over our society-too much so to permit the roles of the court and jury to be readily relinquished absent a true fostering of the purposes of the doctrine of primary jurisdiction.

      . Appellant alleged in Paragraph 6 of the complaint in assumpsit
      6. Despite the requirements of paragraph 12 of said lease as above set forth; despite the fact that the soil was compatible for the planting of hybrid poplar or hardwood trees; and despite the fact that such species were available from the State Nursery of the Department of Forest and Waters of the Commonwealth of Pennsylvania, the Defendant did fail to properly restore the disturbed areas of said property and did fail to properly plant such disturbed areas in accordance with the requirements of said lease agreement, thereby committing a breach óf said lease agreement resulting in the damages hereinafter set forth.