text:
    471 A.2d 1233
    Stella E. GRAVINESE, Administratrix of the Estate of Victor Gravinese, Deceased and Stella E. Gravinese in Her Own Right, Appellant, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raybestos-Manhattan Inc., Owens-Corning Fiberglass Corp., Forty-Eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, Gaf Corporation, Celotex Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Amatex Corporation, Delaware Asbestos and Rubber Company, Pacor, Inc., Fibreboard Corporation, Keene Corporation, Garlock, Inc., J.P. Stevens, Inc., Turner-Newall, Ltd.
    Superior Court of Pennsylvania.
    Argued April 25, 1983.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied July 23, 1984.

      Neil R. Peterson, Philadelphia, for appellant.
    Andrew F. Susko, Philadelphia, for appellees.
    Before CERCONE, President Judge, and SPAETH, HESTER, CAVANAUGH, WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

May wrongful death and survival actions be commenced more than seven years after death if the plaintiff, who is the decedent’s widow and personal representative, is able to show that the actions were commenced within one year after she became aware that her husband’s death had been caused by prolonged exposure to asbestos? The trial court held that the actions were barred by applicable statutes of limitations and entered summary judgments in favor of all named defendants. We affirm.

Victor Gravinese died on September 8, 1971. In January, 1977, letters of administration were issued to his widow, Stella Gravinese, in New Jersey. She filed a complaint in the Court of Common Pleas of Philadelphia County on January 24, 1979. An amended complaint was filed on July 30, 1979 and contained wrongful death and survival actions grounded in negligence, strict liability in tort and breach of warranty. This amended complaint contained averments that the decedent had been a pipe insulator employed during the 1950’s and 1960’s aboard United States Navy ships, both in dry dock at the Philadelphia Navy Yard and elsewhere and on navigable waters of the United States. His death, plaintiff asserted, had been caused by cancer which, in turn, had been produced by continuous exposure to asbestos dust and fibers.

Prior to June 27, 1978, when the Judicial Code became effective, Section 2 of the Act of April 26, 1855, P.L. 309, 12 P.S. § 1603, provided that an action for wrongful death “shall be brought within one year after the death, and not thereafter.” A two year statute of limitations applicable to survival actions sounding in tort was contained in Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34. Breach of warranty actions are governed by a four year statute of limitations. Uniform Commercial Code, Act of 1959, October 2, P.L. 1023, § 2, 12A P.S. § 2-725, repealed and reenacted, Act of 1979, November 1, P.L. 255, § 8, codified at 13 Pa.C.S. § 2725. See: Williams v. West Penn Power Co., 502 Pa. 557, 570, 467 A.2d 811, 818 (1983). Unless equitable considerations compel a different result, these statutes of limitations were applicable to the present actions and barred the commencement of a wrongful death action after September 7, 1972 and the survival action in trespass after September 7, 1973. The survival action for breach of warranty would have been barred, at the latest, on September 7, 1975.

Appellant suggests that admiralty law and the doctrine of laches must be applied to determine her right to maintain the present actions. Therefore, she argues, her actions are not subject to the limitations established by the Pennsylvania statutes. In Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983), this Court stated that one who had been employed as a welder at the Philadelphia Navy Yard, where he had come into contact with asbestos products while working on ships in dry dock and on navigable waters of the United States, was not engaged in a distinctly maritime role. Absent a maritime nexus, we held, a cause of action for injury sustained by exposure to asbestos is not controlled by principles of laches under maritime law. Such an action, rather, is subject to the time constraints contained in the Pennsylvania statutes of limitations. The decision in Volpe is determinative of the instant appeal. Appellant’s decedent, a pipe coverer and insulator on ships both in dry dock and in navigable waters of the United States, was not engaged in activity that bore a significant relationship to traditional maritime activity. His work wás not the same as that which was traditionally performed by members of a ship’s crew. The dangers which he faced as a shipyard worker were not the traditional concerns of admiralty. Volpe v. Johns-Manville Corp., supra, 323 Pa.Superior Ct. at 139-140, 470 A.2d at 169-170, quoting Austin v. Unarco Industries, Inc., 705 F.2d 1, 12-13 (1st Cir.1983). See also: Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983). Contra: White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

Appellant argues next that the Pennsylvania “discovery rule” is applicable to wrongful death and survival actions so as to preclude a summary determination that her actions to recover for the death of her decedent are time barred. 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 limitation period does not begin to run until the discovery of the injury is reasonably possible.’ ” Taylor v. Tukanowicz, 290 Pa.Super. 581, 585, 435 A.2d 181, 183 (1981), quoting Schaffer v. Larzelere, 410 Pa. 402, 406, 189 A.2d 267, 270 (1963). However, in Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981), the Supreme Court held that the “discovery rule” was inapplicable to wrongful death and survival actions. Because of the express language of the statutes of limitations, the Court held, the statutory periods applicable to such actions begin to run, at the latest, on the date of the decedent’s death.

Appellant contends that Anthony v. Koppers Co., supra, has no precedential value because less than a majority of the members of the Court joined in the opinion authored by Mr. Justice Wilkinson.' This argument must fail. If the lead opinion did not command a majority of the Court, the decision that the wrongful death and survival actions were time barred did command such a majority. Any question in this regard was dispelled by the dissenting opinion of Chief Justice O’Brien. He clearly understood that the majority’s determination to enter summary judgment was based upon its conclusion that the “discovery rule” had no application to wrongful death and survival actions. Under these circumstances, the decision must be accorded precedential significance. See: Commonwealth v. Scott, 279 Pa.Super. 8, 11-12, 420 A.2d 717, 719 (1980). Indeed, this Court has already acknowledged the determinative effect of the Koppers decision in McNair v. Weikers, 300 Pa.Super. 379, 387 n. 5, 446 A.2d 905, 909 n. 5 (1982).

Moreover, the reasoning employed by the opinion writer in Anthony v. Koppers Co., supra, is persuasive. The language of the wrongful death statute of limitations is clear and free from ambiguity. A wrongful death action “shall be brought within one year after the death, and not thereafter.” (emphasis added). “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.” 1 Pa.C.S. § 1921(b). The survival statute did not create a new cause of action; it simply permitted a cause of action accruing prior to death to be enforced after death by the decedent’s personal representative. See: Harvey v.. Hassinger, 315 Pa.Super. 97, 101, 461 A.2d 814, 816 (1983). The period of limitations applicable to a survival action sounding in tort, therefore, cannot be extended more than two years beyond the date of death. Similarly, a survival action based on a breach of warranty, which occurs upon delivery, cannot be extended more than four years beyond the date of delivery of the defective product which, in all events, must occur before death. See and compare: O’Brien v. Eli Lilly & Co., 668 F.2d 704, 711 (3d Cir.1981).

Appellant implies that a statute of limitations is merely a technical defense which should be strictly construed so as not to preclude enforcement of an otherwise valid cause of action. However, “ ‘[t]he defense of the statute of limitations is not a technical defense but substantial and meritorious____ “Statutes of limitations are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extended to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.” ’ ” Schmucker v. Naugle, 426 Pa. 203, 205-206, 231 A.2d 121, 123 (1967), quoting United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 102, 67 L.Ed. 261, 270 (1922). See also: Insurance Company of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971).

Appellant argues in her brief, but did not pursue during oral argument, that to apply a statute of limitations without a “discovery rule” exception is to render the statute unconstitutional on equal protection and due process grounds. Not only did appellant fail to plead this issue, but she also failed to give notice to the Attorney General as required by Pa.R.C.P. 235(a). Where this procedure is not followed, the issue must be deemed abandoned or waived. Irrera v. Southeastern Pennsylvania Transportation Authority, 231 Pa.Super. 508, 515, 331 A.2d 705, 708 (1974). Moreover, we deem it inappropriate that an intermediate appellate court should be asked, under the guise of alleged unconstitutionality, to review the correctness of the Supreme Court’s decision in Anthony v. Koppers Co., supra.

Substantively, appellant’s argument is lacking in merit. She does not argue that the relevant statutes of limitation are unconstitutional. She argues, rather, that the decision of the Supreme Court in Anthony v. Koppers Co., supra, rendered the statutes infirm on equal protection and due process grounds. The Supreme Court there held that statutes of limitations pertaining to wrongful death and survival were applicable equally to all such actions, without exception. Appellant argues nevertheless that death action statutes of limitations, to be constitutionally valid, must be applied in the same manner as . statutes of limitations are applied to common law actions for personal injury, i.e., with a “discovery rule” exception. The law is otherwise. There is no requirement that all statutes of limitation be uniform. See: Cadieux v. International Telephone & Telegraph Corp., 593 F.2d 142 (1st Cir.1979). The Equal Protection Clause of the Constitution does not deny a state the power to treat different classes of persons in different ways; it merely requires that the classification be reasonable, not arbitrary, and rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced will be treated alike. Moyer v. Phillips, 462 Pa. 395, 400-401, 341 A.2d 441, 443 (1975).

Appellant’s reliance upon Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148; 71 L.Ed.2d 265 (1982), to support her due process argument is misplaced. There, Logan had been denied access to the courts because of the negligence of a state agency. In this manner he was denied access to the courts by state action. It was this which constituted a violation of due process. In the instant case, appellant’s failure to file a timely action in the courts was unrelated to any state action or inaction. Subject only to the rule that a reasonable time to sue must be allowed, statutes of limitations pertain to remedies and do not impair fundamental rights. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628, reh. denied, 325 U.S. 896, 65 S.Ct. 1561, 89 L.Ed. 2006 (1945). See also: 51 Am.Jur.2d Limitation of Actions § 27 (1970).

Finally, appellant argues that a jury could find that appellees were estopped from asserting a statute of limitations defense because they had not warned users of asbestos products of hazards inherent in the use thereof. Because of defendant’s secrecy, it is argued, appellant was unable to obtain knowledge which would have enabled her to file a timely action. There is no merit in this contention.

“Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute.” Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963); McNair v. Weikers, supra, 300 Pa.Superior Ct. at 388, 446 A.2d at 909. It is only where the defendant, through fraud or concealment, causes the plaintiff to relax his or her vigilance or to deviate from the right of inquiry that a defendant is estopped from invoking the bar of the statute of limitations. Schaffer v. Larzelere, supra, 410 Pa. at 405, 189 A.2d at 269; Plazak v. Allegheny Steel Co., 324 Pa. 422, 431, 188 A. 130, 134 (1936). In general, this requires that a defendant have done something amounting to an affirmative inducement to plaintiff to delay bringing the action. 22 P.L.E., Limitation of Actions § 9. The party asserting estoppel, moreover, has the burden of proving fraud by evidence that is clear, precise and convincing. McNair v. Weikers, supra, 300 Pa.Superior Ct. at 388, 446 A.2d at 909; Courts v. Campbell, 245 Pa.Super. 326, 330, 369 A.2d 425, 428 (1976). See also: Doner v. Jowitt and Rodgers Co., 299 Pa.Super. 492, 497, 445 A.2d 1237, 1239 (1982).

The record in this case discloses neither averment in the pleadings • nor evidence during pre-trial discovery proceedings that would create an issue of fraud or concealment sufficient to estop appellees from asserting a statute of limitations defense. There was no conduct by any appellee that caused appellant to deviate from her right of inquiry concerning the cause of her husband’s death. There was no conduct by appellees to suggest that the applicable statutes of limitations would not be enforced. Appellees are not estopped from asserting a limitation of actions defense merely because they failed to call to the attention of appellant those facts which would have enabled her to plead a cause of action without further investigation.

The applicable statutes of limitations and the decided cases are determinative of the instant appeal. Appellant’s wrongful death and survival actions are time barred; and the trial court properly entered summary judgment in favor of appellees.

Order affirmed.

SPAETH, J., concurs in the result.

      . Named as defendants were: "Johns-Manville Corporation, JohnsManville Sales Corporation, Raybestos-Manhattan, Inc., Owens-Corning Fiberglass Corp., Forty-Eight Insulation, Inc., Nicolet Industries, Inc., Pittsburgh Corning Corporation, GAF Corporation, Celotex Corporation, Armstrong Cork Company, Unarco Industries, Inc., H.K. Porter Co., Inc., Southern Asbestos Company, Eagle-Picher Industries, Inc., Amatex Corporation, Delaware Asbestos and Rubber Company, Pacor, Inc., Fibreboard Corporation, Keene Corporation, Garlock, Inc., J.P. Stevens, Inc., Turner-Newall, Ltd.”

      . The Act of 1855 has been repealed by Section 2a (310) of the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, effective June 27, 1978. The statute now provides a limitation of two years and appears at Section 5524(2) of the Judicial Code, 42 Pa.C.S. § 5524(2).

      . Repealed by Section 2a (807) of the Judiciary Act Repealer Act. The statute of limitations has now been codified at 42 Pa.C.S. § 5524(2).

      . The Judiciary Act of 1976 provides in pertinent part that “[n]o cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act.” Act of 1976, of July 9, P.L. 586, § 25(b) (reprinted at 42 Pa.C.S.A. § 5524 (Purdon 1981)). The new statute of limitations codified at 42 Pa.C.S. § 5524 can therefore have no applicability to the instant action.

      . The codified statute of limitations appearing at 42 Pa.C.S. § 5524(2) does not contain the same language. It contains provision for a two year period of limitations with no specific requirement that it be measured from the date of death. At 42 Pa.C.S. § 5502(a), it is provided that the period of limitations shall be computed from the time the cause of action "accrued.”


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    471 A.2d 1239
    COMMONWEALTH of Pennsylvania v. Larry HOWARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1983.
    Filed Jan. 20, 1984.
    Rehearing Denied March 16, 1984.
    Petition for Allowance of Appeal Denied Aug. 3, 1984.

      William P. James, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

Appellant was adjudged guilty on April 30, 1980 by a jury trial on the charges of assault and battery, aggravated assault and battery, assault and battery with intent to commit murder, aggravated assault and battery on a police officer, and carrying firearms on a public street. Following the denial of written post-verdict motions, appellant was sentenced on October 15, 1981 to consecutive terms of 3V2 to 7 years for the merged assault charges and 1V2 to 3 years for the firearms violation. A motion for reconsideration of sentence was denied on January 5, 1982. Appellant brings this direct appeal from the judgment of sentence. We affirm.

The facts underlying appellant’s'convictions concern his involvement in the shooting of Officer Parsons, a Philadelphia policeman, on May 30, 1972 near Holmesburg Prison. The victim observed the appellant and another man removing a large bag, which contained grappling hooks, a shotgun, and one hundred rounds of ammunition, from a vehicle. The appellant dragged the bag up an embankment while his collaborator remained near the vehicle. Officer Parsons requested the appellant to stop. As Parsons reached for his radio, the appellant shot at him from the top of the embankment. The second male also fired at the victim. Parsons radioed for assistance, but was critically wounded by a gunshot to the jaw and mouth before help arrived. Upon arriving at the scene, the police cordoned off and surrounded the area where the suspects were believed to have been hiding. The appellant was arrested the following day attempting to leave the area. Appellant was first tried and* convicted by a jury on February 7, 1973. On appeal permitted nunc pro tunc, the Superior Court vacated sentence and remanded for an evidentiary hearing on the question of whether trial counsel was ineffective. Commonwealth v. Howard, 258 Pa.Super. 440, 392 A.2d 875 (1978). Upon remand, the lower court granted a new trial. It was appellant’s conviction at this second trial that he presently appeals.

On this appeal, appellant presents four substantive issues for our review through the allegation that trial counsel was ineffective. “It is well settled that ‘[w]hen confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interests.’ ” Commonwealth v. Lewis, 314 Pa.Super. 298, 303, 460 A.2d 1149, 1151 (1983) (citations omitted). See also, Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). We will first review the merits of the claims in issues # 1, # 2, # 3, and # 4 and then discuss the validity of appellant’s ineffective assistance of counsel claims. The issues are:

1. Whether the trial court erred in denying appellant’s motion to discharge a juror for cause.
2. Whether appellant was deprived of his right to be present during the selection of the jury.
3. Whether appellant was deprived of his right to public trial when (a) the courtroom was temporarily emptied so the jury panel might be seated, (b) certain people were excluded from the courtroom for a short period of time, and (c) the trial court entered a written order to control the public’s conduct in or near the courtroom.
4. Whether certain photographs were impermissibly entered into evidence.
5. Whether trial counsel was ineffective for failing to object to the actions occurring in issues # 2, # 3 and # 4.

In the first issue, appellant contends that the trial court erred in failing to excuse juror Susan Manni for cause after she expressed antipathy for the radical group known as MOVE. Though the charges against appellant were not related to any MOVE activity, the prospective jurors were questioned on their sentiments toward the organization because the appellant felt he could not get a fair trial since he was a MOVE sympathizer.

Our standard of review has been clearly outlined.

As to the challenge for cause which is now claimed to have been improperly denied, we must bear in mind ‘that the scope of the voire dire examination rests in the sound discretion of the trial judge and his decisions, even a challenge for cause, will not be reversed in the absence of palpable error.’

(citations omitted)

Commonwealth v. Sparrow, 471 Pa. 490, 501, 370 A.2d 712, 717 (1977). The law recognizes that any initial ambivalence by a prospective juror does not warrant her dismissal where she subsequently indicates she can set aside any bias and reach a verdict based upon the evidence properly presented to the jury. Commonwealth v. Rough, 275 Pa.Super. 50, 58, 418 A.2d 605, 609 (1980). This remains true even if the juror states that some evidence would be required to change an impression already formed if the juror also indicates she would be guided by the evidence. Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467, 471 (1953).

We do not expect jurors to be free from all prejudices. Rather, the law requires them to put aside their prejudices and determine guilt or innocence on the facts presented. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973).

“Thus ‘[t]he test of disqualification is the juror’s ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence____’ Moreover, this determination is to be made by the trial judge based upon the juror’s awareness and demeanor, and we will not reverse a judge’s ruling on a challenge for cause absent a palpable abuse of discretion.” (citations omitted)

Commonwealth v. Short, 278 Pa.Super. 581, 591, 420 A.2d 694, 699 (1980).

Applying these rules to the present situation, we find no abuse of discretion occurred. Though juror Manni initially expressed doubt that she could reach a verdict fairly, we feel her subsequent responses to Judge Guarino’s questions clearly reflected her capability to put aside her prejudice and properly perform her duty as a juror. Our review shows this not to be a situation where the prospective juror was coerced into compliance by the trial judge’s chiding. Rather, Judge Guarino explained the objectivity required from a juror, and asked Ms. Manni if she could comply with this standard. Ms. Manni repeatedly indicated she could be fair and try the appellant on the evidence. We find no error with this voir dire.

In the second issue, appellant contends he was deprived of his right to be present during the selection of the jury. On April 17, 1980, the trial judge prepared to address the prospective jurors. The trial transcript shows that the appellant interrupted the trial court with what has been accurately characterized in the trial court opinion as a “vituperous avalanche”. After being warned by the trial court, the appellant continued to act in a disruptive manner. Consequently, he was removed from the courtroom for the remainder of the voir dire. Judge Guarino expressly told the appellant he could return to the courtroom when he promised to conduct himself properly. The court also ordered the appellant to be examined by a psychiatrist during the time he was removed from the courtroom to determine the basis for his irrational behavior. The appellant claims he should have been returned to the courtroom sooner than he was. Our review shows the trial court handled the situation properly.

“The purpose of a criminal trial is to determine the guilt or innocence of the accused. Any conduct not directed to this end is improper and should be controlled by the court. ‘It is ultimately the authority and responsibility of the trial judge ... to maintain the atmosphere appropriate for a fair, rational and civilized determination of the issues ... ’” Commonwealth v. Africa, 466 Pa. 603, 618, 353 A.2d 855, 862 (1976). (citations omitted) This court has previously held that a defendant may be removed from a courtroom when his conduct so disrupts the court’s ability to proceed in an orderly manner. Commonwealth v. Henderson, 275 Pa.Super. 350, 418 A.2d 757 (1980).

Our factual situation closely parallels that in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In Allen, as in the case before us, the petitioner refused court-appointed counsel and attempted to conduct his own defense. During the examination of the jurors, the petitioner began to argue with the judge in a contentious and abusive manner. The trial judge warned the petitioner that a similar outbreak would result in his removal. However, the petitioner continued his belligerent behavior. As a consequence, the petitioner was removed from the courtroom. The voir dire examination continued, and the jury was chosen in the petitioner’s absence.

The United States Supreme Court approved of this action by stating:

“[W]e explicitly hold today that a defendant can lose his right to be present at a trial if, after he had been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive and disrespectful of the court that his trial cannot be carried on with him in the courtroom ... We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.”

Illinois v. Allen, 397 U.S. at 343, 90 S.Ct. at 1060. It is clear from the record before us that appellant Howard acted in a manner which warranted the action taken by the trial court. Therefore, the appellant lost his right to be present, and the jury was properly chosen in his absence.

In the third issue, appellant argues he was deprived of his right to a public trial through three separate acts by the trial court. The first complaint concerns the propriety of Judge Guarino temporarily clearing the courtroom so that forty members of the jury panel could enter and be seated together. The appellant’s sole objection to this action is that the record does not reveal how long the public were excluded from the courtroom. The trial court opinion states “The spectators were permitted to return as soon as the veniremen were seated.” (Opinion of the Trial Court pg. 14). Yet, appellant argues this is not sufficient to indicate appellant incurred no harm through their removal, since there return is not officially noted in the record. We feel this temporary exclusion for logistic reasons is within the court’s discretion. The appellant bears the burden of providing a record which will support his contention and his corresponding claim of ineffective assistance of counsel. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979). Nothing in the record or appellant’s argument clarifies how this temporary exclusion abridged his right to a public trial.

The second allegation was that appellant’s right to a public trial was infringed when the trial court excluded recognizable members of the MOVE group from the trial on the afternoon of April 24, 1980. Judge Guarino based his decision to prevent these spectators from returning for the remaining hour of the afternoon session on his observation of how their presence affected appellant’s courtroom behavior. The trial judge stated in the record and explained in the trial court opinion that the presence of the MOVE members in the courtroom incited the appellant to be unruly and disruptive, ostensibly undertaking grandstanding outbursts to please them. Based upon the trial judge’s observations, the appellant was more behaved in the courtroom when these spectators were not in attendance. Consequently, when the appellant had engaged in a noisome outburst during the April 24th morning trial session, they were barred from the afternoon session.

Trial judges should be given sufficient discretion, when confronted with defiant defendants, to meet the circumstances of each case. Illinois v. Allen, 397 U.S. at 343, 90 S.Ct. at 1061. The right to a,public trial is not absolute and must give way to other substantial interests. “In considering such other interests, a court must assess all of the circumstances to determine if they present a situation in which an exclusion order is necessary ... [T]he exclusion order must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused’s right to a public trial either through its scope or its duration.” Commonwealth v. Knight, 469 Pa. 57, 66, 364 A.2d 902, 906 (1976). Since the trial court alone is “sufficiently close to the circumstances to apprehend fully the subtleties that may be present,” the decision to issue, the scope, and the duration of the exclusion order must be left to the sound discretion of the trial court. Therefore, as the reviewing court, we must only determine whether the trial court abused its discretion in issuing and fashioning the scope of the duration order. Commonwealth v. Knight, supra.

In light of appellant’s continued contumacious behavior and the brief time period some spectators were omitted from the courtroom, we feel the exclusion order was justified and fashioned to meet the trial court’s needs.

The third complaint relates to the trial court’s April 24, 1980 order which limited congregation outside of the courtroom. This action must be evaluated by the previously discussed standard outlined in Commonwealth v. Knight, supra, to determine if the trial court abused its discretion. We feel the circumstances warranted the contested court order. There existed the possibility that Russell Shoats and Robert Joyner, two dangerous prisoners and MOVE members, would be summoned to testify at appellant’s trial. The court’s security concerns that would attend their court appearance were amplified by the presence of MOVE supporters in the hallways outside the courtroom. Furthermore, the scope of tlje order was tailored to meet the court’s security concerns. It expressly stated no one should be denied access to the courtroom. Given these volatile conditions, we feel appellant’s right to a public trial was sufficiently considered and protected while the court addressed other important interests.

Appellant’s fourth issue is that he has been deprived of a fair trial by the introduction of certain photographs. This contention involves four black and white photographs that depicted the interior of the automobile where the police officer was shot. In reviewing the admission of photographs of a corpse in a homicide case, the Pennsylvania Supreme Court has determined the matter to be within the discretion of the trial judge, absent an abuse of this discretion. The review to be applied is a two-tiered analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance____ If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors, (citation omitted)

Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980). Applying this review, the court in Hudson found the black and white photographs including the deceased’s body not to be inflammatory and to be of probative value.

The photographs admitted in the case presently before us, though including spots purporting to be blood and teeth and bone fragments, do not contain a human corpse. Moreover, the photographs were probative to support the Commonwealth’s contention that one of the shots which hit the police officer was fired from the elevated embankment where the appellant was located. “Where black and white photographs were employed to more clearly describe the area of a crime, the mere fact that blood was visible in the pictures does not necessarily make them inflammatory so that their admission constitutes an abuse of discretion.” Commonwealth v. Sullivan, 450 Pa. 273, 281, 299 A.2d 608, 612 (1973). “Further, the potential for inflaming the minds of the jurors is greatly diminished where, as here, the photos merely depict a crime scene as opposed to photographs exhibiting a bruised and bloodied crime victim.” Commonwealth v. Miller, 268 Pa.Super. 123, 132, 407 A.2d 860, 865 (1979).

The possibility of inflaming the juror’s minds and passions with the black and white photographs admitted by the trial court is virtually non-existent. Additionally, the photographs do have evidentiary value. Our review finds that the trial court properly admitted these photographs.

The fifth issue is appellant’s ineffective assistance of counsel claim for counsel’s failure to object to the trial court’s action in issues # 1, # 2, # 3 and # 4. Since we have found none of these claims possess any merit, the trial attorney’s posture on these issues was not ineffective counsel. Counsel cannot be deemed ineffective for failing to pursue frivolous issues. Commonwealth v. Bey, 294 Pa. Super. 229, 439 A.2d 1175 (1982).

Judgment of sentence affirmed.

      . 18 P.S. § 4708; presently found in 18 Pa.C.S.A. § 2701.

      . Id. § 4709; presently found in 18 Pa.C.S.A. § 2702(a)(1).

      . Id. § 4710; presently found in 18 Pa.C.S.A. §§ 2705 and 2702(a)(4).

      . Id. § 4709; presently found in 18 Pa.C.S.A. § 2702(a)(3).

      . Id. § 4628; presently found in 18 Pa.C.S.A. § 6108.

      . The four assault convictions were merged into the aggravated assault conviction for sentencing purposes.

      . Appellant had exhausted his peremptory challenges prior to the seating of the jury. Therefore, if the challenge of this juror was improperly denied by the trial court, we would be constrained to find that the error was not harmless. Commonwealth v. Rough, 275 Pa.Super. 50, 58 n. 4, 418 A.2d 605, 609 n. 4 (1980).

      . N.T., April 17, 1980, pgs. 217-222.

      . The three cases cited in appellant's argument are distinguishable from this situation. In each of these cases — Commonwealth v. Tolbert, 246 Pa.Super. 23, 369 A.2d 791 (1977), Commonwealth v. Graves, 238 Pa.Super. 452, 356 A.2d 813 (1970), and Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981) — the defendant’s absence from the trial proceedings did not result from any disruptive action on defendant’s part. In contrast, it was appellant Howard’s courtroom behavior that compelled his removal during the voir dire.

      . The record, while not indicating when the spectators returned, likewise did not indicate when they actually left the courtroom.

      . The court’s attempt to quiet the appellant by removing these spectators was a less restrictive alternative than removing the appellant himself. This appears to be a meritorious attempt by the trial judge to control the appellant’s disruptive behavior through the least restrictive option available.

      . Appellant desired Shoats' and Joyner’s appearance to rebut the motive attributed to the appellant by the Commonwealth that the appellant was attempting to aid them in an escape attempt on the night the policeman was shot. The court initially felt their testimony was unnecessary since this motive was not an element in any crime charged to the appellant. At the time of the order in question, the court indicated that they would be permitted to appear once the relevance of their testimony was established.

      . The cases cited by appellant are distinguishable from factual situation presently before us. Appellant’s cases all concern photographs depicting gruesome displays of the bodies and wounds of victims. Again, the photographs for our review do not depict a deformed human corpse.


author: HESTER, Judge:

text:
    471 A.2d 1246
    COMMONWEALTH of Pennsylvania v. Stephen SHAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied June 7, 1984.

      John Paul Curran, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   HESTER, Judge:

At approximately 2:00 p.m. on November 9, 1977, the body of Edward Hammond was discovered lying face down in a pool of water in a heavily weeded area near 62nd Street and Woodland Avenue, in the City of Philadelphia. The victim was a male, 5'5" in height, weighing 129 lbs., and had received fifty-seven (57) stab wounds to the back, neck and shoulder areas. At approximately 3:30 a.m. on November 9, 1977, prior to the discovery of the victim’s body, appellant, who was living with his uncle less than three blocks from the murder scene, woke his uncle and confessed to the killing. Appellant admitted repeatedly stabbing an individual earlier that night. Later during the day after receiving further information which established a killing had in fact occurred, appellant’s uncle went to the police and reported what he had been told by appellant. Appellant was subsequently arrested for this crime and charged with murder, voluntary and involuntary manslaughter, and possession of an instrument of crime. Following his first trial, a jury convicted appellant of murder in the first degree and possession of an instrument of crime. Post verdict motions were denied and appellant was sentenced to life imprisonment on the murder conviction and to a concurrent term of two and one-half to five years imprisonment on the weapons offense. The judgments of sentence were appealed to our Supreme Court. The Supreme Court affirmed the possession of an instrument of crime judgment but reversed the murder judgment and granted a new trial for reasons not relevant to the instant appeal. Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589 (1981).

On July 14, 1981, appellant was retried before a jury and found guilty of third degree murder. Following denial of his post trial motions for a new trial and arrest of judgment, appellant was sentenced to imprisonment for a term of not less than ten nor more than twenty years, consecutive to any other sentence he was serving. Appellant raises three issues in this appeal.

Appellant first contends that the trial court erred in admitting testimony referring to the victim as “retarded”. The testimony of which appellant complains was elicited from the victim’s brother-in-law, Joseph Gallagher, and from appellant’s uncle, James Morrow. At trial, Gallagher testified:

Q. Okay. What was your brother-in-law’s mental condition at that time?
A. It was retarded.
Q. Now I want to — don’t just make a mental diagnosis for the jury. I want you to describe in your own words, as best you can, what you mean when you say that your brother-in-law was retarded?
MR. CURRAN: Your Honor. I’d like my objection noted, please.
THE COURT: It has been.
THE WITNESS: Well, he could neither read nor write. He had no formal education. He spent eight years from (sic) the State Mental Hospital, upstate New York.
He couldn’t count money. Just about all he was capable of doing was small tasks and going to the store.
Q. Would you describe your brother-in-law’s physical appearance; how big was he; how much did he weigh —approximately?
A. Well, he was about 5'5", 120 pounds, slender build, and real thin arms. He was about the strength of a young girl.
(N.T. 7/15/81, pp. 52-53).

Appellant’s uncle, James Morrow, testified that after he was made aware of the victim’s retarded mental condition the day following the murder he confronted appellant with this fact. He asked appellant:

Q. What did you say to [appellant]?
A. Well, he was upstairs in the front bedroom. I asked him — I said, “Is that true, you killed that guy?”
Q. Okay. Did you refer to him as “that guy?”
A. Yeah.
Q. Did you refer to him as “retarded?”
A. Retarded.
Q. What did the defendant say when you asked him that question?
A. He said, “The hell with him.”
(N.T. 7/15/81, p. 71).

Appellant insists these references to the victim’s retarded mental condition were irrelevant, prejudicial and required expert testimony.

As a general rule, the admission and exclusion of evidence is a matter within the discretion of the trial judge. Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). An abuse of that discretion may be found if it appears that a trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest decision on an improper basis. Id. Thus, we must evaluate the relevancy of the testimony admitted with regard to the victim’s mental condition and weigh its relevancy against its prejudicial impact.

Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Krajci, supra.

It will be recalled that the murder occurred in the middle of the night in a dark, weeded area near a shopping center. According to appellant’s own statements, he and his acquaintances met the victim, whom they did not know, at the top of a hill. The victim then willingly accompanied appellant and the other individuals down a ramp to a point where he was eventually stabbed to death.

The reference to the retarded, mental condition of the victim by Gallagher, the victim’s brother-in-law, describes the victim. While the description of the victim’s mental condition, or his institutional commitment, is of little probative value in and of itself, Gallagher’s reference do'es tend to explain the victim’s willing presence at the scene and how appellant may have lured the victim down the ramp behind the shopping center to where he was killed. Thus, in this respect, the description of the victim, including reference to his mental deficiencies, was relevant.

The reference to the victim as retarded, which emanated from the dialogue between Morrow and appellant, was also relevant. The reference in the context in which it was made linked the occurrence of the killing with appellant’s criminality; it also tended to establish appellant’s culpability and his callous state of mind.

Further, each reference was relevant to rebut appellant’s claim that he acted in self-defense. In each of appellant’s statements given to police prior to the first trial and admitted at the second trial, appellant stated that the victim slapped him in the face immediately prior to the stabbing (N.T. 7/15/81, pp. 97, 101, 110). Appellant’s testimony given at the first trial, which also was admitted during the second trial, indicated that appellant was punched in the back of the head by someone whom he did not see. (N.T. 7/16/81, p. 26). In defense counsel’s closing argument to the jury, these statements were argued, along with appellant’s earlier testimony that he had been stabbed a few weeks earlier while working the night shift as a security guard, to support a self-defense claim. Under these circumstances, evidence of the victim’s retarded mental condition, in addition to his diminutive size, was highly relevant to meet this claim and also the issue of provocation. On balance then, we conclude that the references respecting the victim’s mental condition were of probative value and therefore relevant. We also conclude the individual probative value of each reference outweighs any possible prejudicial impact that may have been suffered by appellant as a result of that reference.

Appellant complains that there was prejudice of the variety that may inflame or unjustly arouse the jury such that it would cause the jury to base its decision on something other than the legal propositions relevant to the case. We find no prejudice of this nature suffered by appellant by reason of the references to the victim’s mental condition. Furthermore, appellant’s counsel and the trial court were aware of this potential problem at trial and agreed that any possible prejudice could be rectified by an appropriate jury instruction. (N.T. 7/15/81, p. 51). This was done by the trial court in charging the jury, “[y]ou may not speculate or conjecture. You may not guess. You may not rely on sympathy for the defendant or the alleged victim, nor prejudice against any party involved in this case.” (N.T. 7/17/81, p. 2). Appellant’s counsel indicated no dissatisfaction with this instruction or suggested any embellishment of it. We are persuaded that any potential prejudicial harm which may have resulted was minimized by the instruction. See Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981); Commonwealth v. Watson, 269 Pa.Super. 285, 409 A.2d 891 (1979). Thus, the references to victim’s retarded mental condition were properly admitted.

Appellant complains that Gallagher’s reference to the victim’s condition as “retarded” was improper, and that expert medical testimony was required to justify characterizing the victim. We disagree. Gallagher was competent to express his opinion as to the mental capabilities and. limitations of the victim. See Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976); Commonwealth v. Young, 276 Pa.Super. 409, 419 A.2d 523 (1980).

Appellant next alleges that several remarks made by the prosecutor in his summation improperly expressed his personal opinion of appellant’s guilt and disparaged his counsel’s trial strategy. The remarks of which appellant complains, stated in appellant’s brief and in many respects taken out of context are:

I sit here and I listen to cases as I put them on and I don’t get personally involved... I listen to what Mr. Curran just said to you and I say to yourselves [sic], ‘But that’s not what the evidence was... ’ It’s sort of like a shotgun approach, throwing a psychia-trist here who never examined the defendant ... ’ throw in a woman who still loves the defendant and, obviously, has problems; make an argument for the jury to hear... (N.T. 7/16/81, p. 174).
... you found out that there is this allegation he [Morrow] was interested in the defendant’s girlfriend and therefore, “hey, what the heck. I might as well pin a murder on the guy. (N.T. 7/16/81, p. 175).
It’s like the old game, “Three-card rummy,” it is called and I’ll darn fool you. (N.T. 7/16/81, p. 176).
What in God’s name, does that show you about whether or not Stephen Shain was drunk?
... I want you to think, how a man, who was supposed to be as intoxicated as Mr. Curran wants you to believe, can find his way home ... wash the knife... (N.T. 7/16/81, p. 179).
What did Dr. Michaels say? (N.T. 7/16/81, p. 180) ... so he didn’t tell you anything, didn’t add a damn thing to this case; so why is he here? (N.T. 7/16/81, p. 181).
Why is he here, to influence you, to get you to feel sympathy for a poor man who was allegedly drunk when he knifed a man to death?
Do you believe it for one second? (N.T. 7/16/81, p. 181). Self-defense — what are you kidding? (N.T, 7/16/81, p. 181).
It was his knife. The man was stabbed in the back, ladies and gentlemen — in the back. (N.T. 7/16/81, p. 182).
Well, involuntary manslaughter ... I think, ladies and gentlemen, you would be very hard-pressed to find that a man accidentally fell on a knife fifty-seven times. That might be a little difficult for some of you people to swallow. (N.T. 7/16/81, p. 183).
If you believe that this man had any kind of belief in self-defense and that’s why he stabbed the man, raise your hand. I’ll sit still and shut up and sit down. I won’t even waste my time. (N.T. 7/16/81, p. 184).
Third degree... Now, I want to know if any one of you jurors could go back in that room and say with a straight face that Stephen Shain did not intend to kill Edward Hammond — once in the arm maybe, okay. (N.T. 7/16/81, p. 184).
Now — now, we get to first degree murder... You say to convict this man of first degree murder,, you have to believe that Stephen Shain went out that night with the intent to kill somebody? Bull. The law says ... a fraction of a second... (N.T. 7/16/81, p. 185).
We have a great system in the country where a defendant is given many, many rights.. .he’s presumed innocent. .. The cloak of innocence on his shoulders. Ladies and gentlemen, I want you to go back in that Jury Room and decide this case on the evidence, not on your feeling. Rip that cloak off of Stephen Shain and say “Mr. Shain, we know what you did... You stabbed a man to death intentionally... It’s first degree murder.” (N.T. 7/16/81, p. 187).

Appellant’s counsel objected to these statements neither during nor at the end of summation, despite the trial judge’s reminder to do so, nor for that matter, did he challenge these remarks in his written post verdict motions. Therefore, these remarks have not been preserved for our review. Commonwealth v. Butts, 495 Pa. 528, 434 A.2d 1216 (1981); Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Basile, 312 Pa.Super. 206, 458 A.2d 587 (1983); Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981).

Appellant also complains that the prosecutor impermissibly challenged the jury to return anything but a verdict of first degree murder when he stated:

Don’t compromise. Don’t come back here and say, “voluntary” or “third”. Find the guy not guilty, if your [sic] going to do it. Because if you don’t have the guts and you don’t have the courage, you don’t belong where you are. (N.T. 7/16/81, p. 188).

Appellant’s counsel also failed to preserve this objection for appellate review since he objected to this remark neither during nor at the end of summation, nor, for that matter, did he challenge it in his written post verdict motions. Commonwealth v. Butts, supra; Commonwealth v. Jarvis, supra; Commonwealth v. Basile, supra; Commonwealth v. Youngkin, supra.

Appellant’s final claim concerns the inconsistency in the verdict. After returning from its deliberation, the jury announced its verdict of third degree murder, and the court ordered the verdict to be recorded. The trial judge then requested the verdict report from the foreperson. The report indicated a finding of both murder in the third degree and voluntary manslaughter. The trial court, after ascertaining that these verdicts were not typographical errors, informed the jury that the verdict was improper. The jury then retired and returned a proper verdict, finding appellant guilty of murder in the third degree. Appellant’s counsel requested that the jury be polled. All the jurors were polled, and the verdict of third degree murder was recorded.

In essence, appellant’s claim is that the “recording” of the third degree verdict, which occurred prior to the discovery of the inconsistency with the verdict of voluntary manslaughter on the verdict sheet, dissuaded the jury from returning a verdict of voluntary manslaughter only. This issue has not been preserved for our review since any disagreement with the manner in which the verdict was rendered was neither objected to at trial nor included in appellant’s written post trial motions. Commonwealth v. Butts, supra; Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981); Commonwealth v. Austin, 484 Pa. 56, 398 A.2d 941 (1979). In any event, the trial judge, in an effort to correct any inconsistency in the verdict, acted properly when he directed the jury to retire and reconsider its verdict. Commonwealth v. Brightwell, 479 Pa. 541, 547, 388 A.2d 1063, 1066 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 664; Commonwealth v. Johnson, 369 Pa. 120, 85 A.2d 171 (1952); Commonwealth v. Micuso, 273 Pa. 474, 117 A. 211 (1922). Following their re-deliberation and the return of the verdict of third degree murder, the jury members were individually polled and the proper verdict was recorded.

Judgment of sentence affirmed.

      . Although appellant apparently contested this specific remark at the sentence hearing some eight months subsequent to the filing of his written motions; in order to preserve an issue for appellant review, a timely specific objection at trial must be made and the issue must be raised in written post trial motions. Commonwealth v. Butts, supra; Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981); Commonwealth v. Austin, 484 Pa. 56, 398 A.2d 941 (1979); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). The fact that the lower court may have considered an orally presented allegation will not suffice to preserve allegations for appellate review. Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047 (1980). See also, Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982). We further note that any issue with regard to prosecutorial misconduct on cross-examination was also waived by reason of failure to specifically raise such claim in post trial motions. The fact that the lower court gave this some consideration in its opinion in support of denying appellant’s motions is not of consequence. Commonwealth v. Philpot, supra. We further note that, notwithstanding the fact that appellant’s motions contained a notation that appellant would submit other points of error within a reasonable time after the record was completed, appellant made no effort to offer an amendment or supplement the original motions.

      . This issue was orally presented at argument of the post trial motions, and notwithstanding the lower court consideration of it in its opinion, the issue is not properly before us since it was not raised in the written post-trial motions. See Commonwealth v. Philpot, supra.


author: CAVANAUGH, Judge:

text:
    471 A.2d 1252
    John DOE and Mary Doe, His Wife, Appellants v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corp., Fibreboard Corporation, Owens-Corning Fiberglass Corp., Nicolet, Inc., Pittsburgh Corning Corporation, Celotex Corporation, Unarco Industries, Inc., Eagle-Pitcher Industries, Inc., Keene Corporation, Pacor, Inc., Brand Insulations, Inc., Armstrong World Industries, Inc., Amatex Corporation, H.K. Porter, Co., Inc., Southern Textile Corp., A.C. & S., Inc., GAF Corp., Owens-Illinois, Inc., Universal Insulation Company, Forty-Eight Insulation, Inc., Delaware Insulation Co., Crown, Cork & Seal Company, Inc., D.A.R. Industrial Products, Raybestos-Manhattan Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 25, 1983.
    Filed Jan. 27, 1984.
    Petition for Allowance of Appeal Denied June 7, 1984.

      Norman Perlberger, Philadelphia, for appellants.
    John M. Toscano, Philadelphia, for appellees.
    Before CERCONE, President Judge, and SPAETH, HESTER, CAVANAUGH, WICKERSHAM, WIEAND and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the common pleas court which sustained preliminary objections to appellants’ petition for declaratory relief. Appellants sought a determination by declaratory judgment that the statute of limitations does not begin to run in asbestos related disease cases until the injured person is actually disabled. The court, by grant of preliminary objection, refused to make such a determination and since we agree with this disposition, we affirm of the order of the trial court.

Appellants, John and Mary Doe, assert that the husband appellant has worked with asbestos products since 1955. In 1980, appellant was advised for the first time that he had a pulmonary condition in the form of calcification of portions of lung tissue which was caused by exposure to asbestos. Appellant describes this condition further as a pleural thickening, the formation of calcified tissue on the pleura, the membranes surrounding the lungs. This condition may be objectively determined in the sense that it is visible on chest x-ray. Appellant admits, however, that the presence of this condition has not caused him any substantial discomfort, nor any significant deficit in lung function or disability. He asserts, however, that his present condition is one that is highly likely to develop into parenchymal asbestosis, which may progress to the stage where it will result in severe disability and, even, death. Further, it is claimed that his present condition heightens his chance of suffering cancer of the lung and other organs. McGee’s argument here centers on the two year statute of limitations as it applies to his situation. Specifically, in his Complaint for Declaratory Relief he states:

15. Petitioners’ seek a declaration from this Court to determine when their cause of action first occurs under the [applicable statute of limitations, 42 Pa.C. S.A. §§ 5502(b) and 5524].

The problem faced by appellant is that given the commencement of the limitation period in April of 1980 when he first learned of his pleural thickening, he might be forced to file his lawsuit (as has occurred) and try his claim when he had no significant medical expense and was not disabled. His dilemma, he contends, is not resolved by the fact that under Pennsylvania law he could seek compensation for possible future related diseases, since appellant feels that his continued good health through the time of trial would likely limit the chances of recovery for future diseases. The solution which McGee seeks in the present suit by way of the Declaratory Judgment Act, 42 Pa.C.S. § 7531 et seq., is a determination that his cause of action for asbestos related disease does not accrue, and, therefore, the statute of limitations does not begin to run until he becomes disabled from his disease.

The Declaratory Judgment Act, 42 Pa.C.S. § 7531, et seq., which became effective in Pennsylvania on June 27, 1978 is broad in its scope and is to be liberally construed, but is not without its limitations. In its general provision it states:

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
42 Pa.C.S. § 7532.

The relief sought here, to construe the applicable statute of limitations for personal injury actions, 42 Pa.C.S. §§ 5502 and 5524, so that the limitations period does not begin to run in an asbestos-disease situation until the injured person is actually disabled, would involve the declaration of rights, status or other legal relationship in contravention to existing law. It would, therefore, render the Declaratory Judgment Act a vehicle for changing the law, rather than interpreting it, or defining legal relations. Declaratory judgments are nothing more than judicial searchlights, switched on at the behest of a litigant to illuminate an existing legal right, status or other relation. They may not be used to search out new legal doctrines. Pennsylvania law as it applies to plaintiff’s claim is clear. The seminal case was decided in 1959 when our Supreme Court in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) held:

[t]he injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.”

Ayers v. Morgan, supra, 397 Pa. at 290, 154 A.2d at 792.

Appellant concedes that in April of 1980 he was advised that he had a pleural thickening (“damage which is physically objective”) and that it could be identified by chest x-ray (“and ascertainable.”) Thus, without more, any attempt to delay the operation of the statute of limitations would involve a change in the law. Moreover, since Ayers the law has become more specific as it relates to what are now referred to as creeping disease cases. In Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980) rev’d. on other grounds, 496 Pa. 119, 436 A.2d 181 (1981) our court applied the discovery rule set out in Ayers to a case involving the claim of lung cancer resulting from the inhalation of emissions from coke ovens and adopted language from Judge Takiff s common pleas court decision in Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (1980):

Akers’progeny have struggled primarily with the question of the reasonableness of plaintiffs conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct. In the typical personal injury case, knowledge of the foregoing elements is gained contemporaneously with the occurrence of the liability creating events and little difficulty is presented in applying the commencement of the statute of limitations period. When time and space intervene between the several levels of knowledge, however, courts have struggled with the application of the articulated legal standard to the facts involved. An analysis of the case law compels the conclusion that when a plaintiff knows or has reason to know of his injury, its operative cause, and the causative relationship to independent occurrences, he possesses as a matter of law, the necessary information to herald a possible tort and hence commence the running of the statutory period.

Anthony v. Koppers Co., Inc., supra 284 Pa.Super. at 96-97, 425 A.2d at 436.

Here, it is clear that appellant knows of his injury, the operative cause of the injury and the causal relationship between the injury and the operative conduct. Later, in Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982) the discovery doctrine was applied to a case involving personal injuries sustained as a result of exposure to asbestos products. In Staiano, the court also rejected the argument that even if the asbestosis claim was properly dismissed under the statute of limitations, separate claims survived, (A) for the aggravating effects of inhaling asbestos dust for the two years before filing the complaint and, (B) for a different disease (as a result of the exposure) of pleural thickening. The present case does not involve a separate claim for aggravating injuries in the two year period prior to the statute, but it does ask us to declare a separate statute when there are two different disease processes as a result of asbestos exposure. However, Staiano disposed of this argument by holding:

But if we assume that the complaint should read as alleging such a claim,'the claim is nevertheless barred, for a new limitation period does not start each time a new disease develops from the same tortious conduct of the defendant.

Staino v. Johns Manville, supra, 304 Pa.Superior Ct. at 296, 450 A.2d at 688.

Actions for declaratory judgments are proceedings to determine fixed legal rights, not to modify or elucidate judicial decrees or decisions. See Ladner v. Siegel, 294 Pa. 368, 144 A. 274 (1928). Here appellant would have the trial court enhance his legal rights which are fixed by decisional law.

Thus, we conclude that appellant’s request that the trial court grant declaratory relief in the form of a declaration that the statute of limitations does not begin to run until the injured person becomes disabled is actually a request that the court change the law, a power which, under the present circumstances, neither the common pleas nor this court has the power to do.

We, add, however, that appellant’s plight does not represent an isolated circumstance. Our Supreme Court has already recognized the extensive burden that asbestos litigation has and will place upon the judicial resources of our Commonwealth. Pittsburgh Corning Corp. v. Bradley, 499 Pa. 291, 453 A.2d 314 (1982). Perhaps, even more pertinent is the reaction of the trial courts.

In dealing with the precise dilemma faced by appellant herein, the Honorable Lois Forer of the Court of Common Pleas of Philadelphia has stated:

The failure to acknowledge a separate statute of limitations for a second disease would impel every minimally injured person to rush to court to toll the statute of in the event that he might, as a result of his exposure, suffer another more serious injury. A mildly injured or minimally disabled person may well be satisfied and reasonably compensated under compensation laws. There is no need for such a party to resort to the courts. Both plaintiffs and defendants would be compelled to litigate cases in which the damages are minimal but the expenses of litigation are great. The floodgates of litigation being thus opened would inundate the courts to no useful purpose. Such a plaintiff could not recover damages for an injury not yet sustained unless the probabilities for his contracting such a second disease were more than 50%. Thus an individual such as Faix would be precluded from recovery for his fatal illness if the original action were tried promptly.
Faix, Admx. v. Johns-Manville Corp., No. 88 (94), September Term, 1978, Slip op. at 6-7 (C.P.Phila.)

Judge Forer espouses the adoption of a “second disease” doctrine which would apply a separate statute to each ■ separate and successive injury.

In another recent case, the Honorable Richard B. Klein of the Court of Common Pleas of Philadelphia concluded that under the discovery rule he was required to grant a motion for summary judgment but criticized the applicability of this doctrine to latent disease situation such as are often presented in asbestos cases. Judge Klein stated in urging the adoption of a new rule:

It is therefore respectfully suggested that Pennsylvania join other jurisdictions to review the proper application of tort principles to the latent disease situation. This review should reconsider the Statute of Limitations question and go further to review other issues of the asbestos litigation.
The review is necessary because, to put it bluntly, the present system just is not working. The civil court calendar in Philadelphia cannot cope with the volume of over 3,000 asbestos cases that have been filed. Results of jury verdicts are capricious and uncertain. Sick people and people who have died a terrible death from asbestos are being turned away from the courts, while people with minimal injuries who may never suffer severe asbestos disease are being awarded hundreds of thousands of dollars, and even in excess of a million dollars.
The asbestos litigation often resembles the casinos sixty miles east of Philadelphia more than a courtroom procedure. And just as the casinos are the winners in Atlantic City, the lawyers are the winners in asbestos litigation since the costs of litigation far exceed benefits paid to claimants.
The Philadelphia court system has focused a great portion of its civil resources on the asbestos litigation, devised methods of disposition of cases that have won national acclaim, and has processed record numbers of major civil cases. But the new cases are filed faster than any court system of Philadelphia’s size can dispose of them.
Ideally, the federal or state legislatures should address the problem. But even if legislation is enacted some time in the future, it may not solve the problems of the thousands of cases which have already been filed.
Since legislative remedies seem remote, the courts should recognize that application of traditional tort law to the “creeping disease” situation is often like trying to fit a square peg into a round hole.
Blue v. Johns-Manville Corp., No. 4001 (127) October Term 1978, Slip op. at 14-15 (C.P.Phila. October 12, 1983).

We quote from these cases in order to demonstrate our awareness that appellate disposition of this issue is earnestly sought by judges who deal with the daily problems of the mass of asbestos litigation. For the reasons stated, this case does not present the opportunity to address the problem. We note, parenthetically, that both cases, unlike the present case, are decisions which were based upon developed records.

Order affirmed.

SPAETH, and WIEAND, JJ., concur in the result.

      . The appellants have now filed suit in their own names, James and Mary McGee, since they were faced with the running of the statute in the absence of the relief sought herein. McGee v. Johns-Manville Corp., Court of Common Pleas, Philadelphia, February Term, 1982, No. 2288. Since the appellants might still benefit by success in the present appeal we do not see the pendency of the protective action as being a bar to proceeding on this appeal.

        . The facts as well as the inferences reasonably deductible therefrom are deemed admitted for purposes of considering the preliminary objections. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).

      . See 42 Pa.C.S. § 7541(a).

      . The "second disease” theory suggests that the “creeping disease” appellation may be inaccurate or even misleading when applied to asbestos disease cases. It appears that the medical picture presented by these cases is not one of slow but steady development of a diseased state by reasonably predictable progression.


author: ROWLEY, Judge: WIEAND, Judge,

text:
    471 A.2d 1257
    Dennis C. KNEPP and Karen L. Knepp, Parents and Natural Guardians of Dennis C. Knepp, Jr., a minor, and Dennis C. Knepp, Jr., as an individual, Appellants, v. NATIONWIDE INSURANCE COMPANY. Dennis C. KNEPP and Karen L. Knepp, Parents and Natural Guardians of Dennis C. Knepp, Jr., a minor, and Dennis C. Knepp, Jr., as an individual, Appellants, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted May 31, 1983.
    Filed Feb. 3, 1984.

      John R. Carfley, Philipsburg, for appellants.
    Grant H. Fleming, State College, for appellee.
    Before ROWLEY, WIEAND and CIRILLO, JJ.
   ROWLEY, Judge:

These are consolidated appeals from an order of the trial court en banc sustaining exceptions filed by Nationwide Insurance Company, and dismissing exceptions filed by the Knepps to the decision of the trial judge sitting without a jury and from the entry of judgment in favor of Nationwide.

Dennis C. Knepp, Jr., was born on December 9, 1973. At that time it was discovered that he suffered from a congenital condition known as coronal hypospadias or hypospadias of the first degree, a disorder of the urethra. The condition was diagnosed almost immediately after birth and it was noted on the hospital’s “Newborn Examination Record.” Dennis’ physician informed the Knepps of the nature of Dennis’ condition at or near the time of his birth and, over the next four years, Dennis’ parents twice inquired as to whether it was not yet necessary for corrective surgery to be performed. They were informed that surgery would not be necessary until after Dennis had begun to attend school.

On June 8, 1977, the Knepps applied to Nationwide for two policies of insurance, one denominated a “Hospital and Surgical Expense Policy” and the other a “Major Medical Expense Policy.” Nationwide approved the applications and, on September 1, 1977, issued the two policies.

On June 9, 1978, surgery was performed on Dennis in an unsuccessful attempt to correct the disorder. The Knepps submitted a claim to Nationwide for the cost of the operation and related expenses claiming that the costs were covered by the policies issued some nine months prior to the operation. By letter dated November 2, 1978, Nationwide denied the claim stating that “the policies are designed to cover only those illnesses, injuries or disorders which have their origin after the effective date of the policy [sic].” The letter also informed the Knepps that the company believed that the Knepps had wrongfully failed to disclose Dennis’ condition and labelled the failure as a “material misrepresentation.” Nationwide gave the Knepps the option of signing waivers as to Dennis with regard to “any disorder of the urethra,” or having the policies terminated and all ■premiums returned. The Knepps failed to respond. By letter dated February 9, 1979, Nationwide informed the Knepps that it presumed they would not execute the waivers and that the company was giving them formal notice of cancellation. A check was enclosed with this letter “in full refund of the premiums paid.”

The Knepps commenced this action on March 3, 1979, by filing a complaint containing two counts. Count I stated a claim in assumpsit for $1,393.70 representing the costs attendant to the surgery. In Count II, the Knepps sought a declaratory judgment in their favor “reinstating” the insurance policies without any restriction as to Dennis in order to have insurance coverage for future surgery necessary to correct the hypospadias.

The case was tried on November 6, 1979, before the Honorable Richard M. Sharp, President Judge, sitting without a jury. By an opinion and order dated January 17, 1980, Judge Sharp found in favor of the Knepps on Count I and in favor of Nationwide on Count II. Both parties filed exceptions to the decision and argument was heard by a court en banc. The court en banc sustained Nationwide’s exceptions to the decision on Count I and dismissed the Knepps’ exceptions to the decision on Count II. Judgment was subsequently entered in favor of Nationwide' on both counts of the complaint and the Knepps appealed.

Appellants present two issues for our consideration. First, whether the trial court en banc erred in concluding that appellee insurer was not required to reimburse the Knepps for the cost of the unsuccessful surgery of March, 1979. Second, whether the trial court erred in holding that Nationwide could rightfully rescind the insurance policies and return the premiums to the Knepps.

We agree with the trial court’s determination that Dennis’ disorder is not covered by the policies issued by Nationwide. Nationwide agreed, in each of the two policies, to pay benefits “in the event of injury or sickness” as those terms were defined in the policies. Sickness is defined in the policies as:

“Sickness” means sickness or disease contracted'by an Insured Family Member more than 15 days after such Insured Family Member becomes covered under this policy and while such coverage is in force____” (Emphasis added.)

Thus, coverage is not provided for sicknesses contracted prior to the effective date of the policy.

It is a rule of long standing that insurance policies may permissibly be drafted to limit coverage to illnesses arising after the commencement of insurance coverage. Myers v. Metropolitan Life Insurance Company, 152 Pa. Super. 507, 33 A.2d 253 (1943). See also: IB Appleman, Insurance Law and Practice (rev. ed., 1981), § 396. In Myers, this Court sanctioned the use of the terms “commencing” and “occurring” in drafting such valid limitations within the definitions of coverage. We perceive no difference between the two terms construed in Myers, supra, and the term “contracted” as used in the policies currently before us. The limitation to illnesses or disorders subsequent to the effective date of coverage contained in these policies is therefore valid.

It is clear, of course, that the condition for which coverage is claimed in the present case was contracted prior to the issuance of the policies. We follow Myers in holding that a congenital condition cannot qualify as an event covered by a policy with coverage drawn in the manner set forth above. “To say that a congenital condition occurred or commenced [or was contracted] more than [three] years after the birth of [an insured] is a contradiction on its face.” Id., 152 Pa.Superior Ct. at 515, 33 A.2d at 257. A congenital condition, by definition has its inception at or before the birth of the individual afflicted. It is undisputed that Dennis’ condition is congenital.

Appellants argue that they were not aware of the extent of Dennis’ condition when they purchased the policies. Whether the Knepps were aware of Dennis’ condition, or its extent, is of no moment, however, in determining whether the policy provides coverage for a pre-existing condition. Where, as here, a policy of insurance is drawn to cover only prospective illnesses the insured’s knowledge or lack of knowledge of the pre-existing illness is immaterial in a suit to recover claimed benefits. Guise v. New York Life Insurance Co., 127 Pa.Super. 127, 191 A. 626 (1937); McKown v. State Mutual Life Assurance Co., 127 Pa.Super. 117, 191 A. 621 (1937). It is therefore clear to us, and the court en banc so held, that the policies involved in this case do not provide coverage for Dennis’ condition.

We also conclude that the court en banc correctly held that the Knepps were not entitled to reinstatement of the insurance policies. There can be no real dispute that Mr. and Mrs. Knepp incorrectly answered questions on the application for insurance. They informed Nationwide that Dennis did not have, and that they had not been informed that Dennis suffered from, a “disease or disorder of the genito-urinary tract.” Moreover, when asked about whether they “or anyone proposed for coverage ever had been advised or have or contemplated having a surgical operation,” they revealed only circumstances relating to one of Mrs. Knepp’s pregnancies. By the Knepps’ own testimony, these answers were false. It is also beyond cavil that the Knepps’ misstatements and omissions were material to the insurer’s consideration of the Knepps’ application for insurance coverage.

Under such circumstances, an insurer may rightfully rescind the policies of insurance. Section 622 of the Insurance Company Law of 1921, Act of May 17, 1921, P.L. 682, Art. VI, § 622, 40 P.S. § 757, states:

The falsity of any statement in the application for any policy [of health or accident insurance] shall not bar the right to recovery thereunder, unless the false statement was made with actual intent to deceive, or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. (Emphasis added.)

As recently stated by the United States Court of Appeals for the Third Circuit in interpreting this section:

When the policy is sought to be avoided on the ground of fraud, the statute requires intent to deceive. However, recovery [on the policy] may be denied on alternate and separate grounds if false statements materially affected the risk accepted or the hazard assumed by the insurer. In these latter two instances, if the statements are false to the knowledge of the applicant but are not made with intent to deceive, they nevertheless void the policy. Connecticut Mutual Life Insurance Co. v. Wyman, 718 F.2d 63, 67 (3rd Cir.1983).

Because the statements were in fact false, because the Knepps were informed of the nature of Dennis’ condition, and because the misstatements were material to the acceptance of the risk and the hazard assumed by the insurance carrier, the trial court en banc properly refused to reinstate these policies.

The appeal at No. 642 Philadelphia 1981 is quashed. In the appeal at No. 760 Philadelphia 1982, judgment is affirmed.

WIEAND, J., filed a concurring opinion.

WIEAND, Judge,

concurring:

I agree fully with the majority’s excellent analysis of the coverage issue and join its decision holding that the cost of performing surgery upon Dennis C. Knepp, Jr., to correct a congenital abnormality was not covered by a policy of insurance purchased after his birth and indemnifying his parents for hospital and surgical expenses incurred in order to treat sickness or disease contracted by him more than fifteen days after the effective date of the policy. I also agree with the majority that the insurer may rescind the policy because the applicants, in this case the parents, failed to disclose their son’s congenital abnormality despite their knowledge of it and despite the fact that the insurer specifically requested such information. I reach that conclusion by a process of reasoning which differs only slightly from that of the majority.

With respect to this latter phase of the case, it is significant that the insurer is seeking to rescind the policy of insurance and not to avoid liability for hospital expenses already incurred by the insured. The contract of insurance which the insurer seeks to rescind is executory. Rescission of the policy will not necessarily prevent the insured from purchasing future medical coverage. In that event, however, the amount of the premiums to be paid for hospital and surgical coverage will be determined according to a correct assessment of the risk based upon an accurate statement of the physical condition of the person to be insured.

Because the contract of insurance sought to be rescinded is executory, “[f]alse representations operating to induce [the] contract are grounds for its rescission even though the person making them [was] unaware that they [were] false.” 8 P.L.E. Contracts § 314. See also: Adelman v. CGS Scientific Corp., 332 F.Supp. 137, 146 (E.D.Pa.1971), quoting General Finance Corp. v. Keystone Credit Corp., 50 F.2d 872, 878 (4th Cir.1931); Hunt v. Moore, 2 Pa. 105 (1845); Metropolitan Life Insurance Co. v. Sinett, 2 N.J. Super. 506, 64 A.2d 639 (1949); Metropolitan Life Insurance Co. v. Lodzinski, 124 N.J.Eq. 328, 1 A.2d 856, reversed on other grounds, 124 NJ.Eq. 357, 1 A.2d 859 (1938); 12 Williston on Contracts, § 1500 (3d ed.).

Even if we require a knowing misrepresentation, however, the facts of the instant case are such that rescission was properly granted. At the time the written application for insurance was made, the questions contained thereon were read to Mr. and Mrs. Knepp, the boy’s parents, and their answers were recorded before they signed the application. They do not question the accuracy of their answers as they appear on the application. The following questions were asked and answers given:

“9. Have you or any person now proposed for coverage:
c. Ever had, been advised or have, or contemplated having, a surgical operation?
Yes No
10. To the best of your knowledge and belief, have you or any person now proposed for coverage ever had, or ever been medically treated for or advised by a doctor or other practitioner that you or they had (circle applicable impairment):
b. Paralysis, dizziness, fainting spells, high or low blood pressure, disease or disorder of genito-urinary tract or gall bladder?
Yes No
11. Within the last five years, have you or any person now proposed for coverage:
b. Any disease, disorder, injury or operation which has not been previously mentioned?
Yes No
(Emphasis supplied)

Paragraph 12 called for full details to each and every part of Questions 9, 10 and 11 to which the answer was Yes. The answer appearing to paragraph 12 listed only maternity on Mrs. Knepp’s part.

These answers were incorrect. Dennis C. Knepp, Jr. had been born three and a half years earlier with a congenital condition known as coronal hypospadias, a result of adrosterone deficiency during gestation. This condition arrested the development of the urethra in the boy’s penis. At birth it was observed that the opening or meatus in the penis was not at the end of the penis but on the ventral surface or lower side of the penis at the small valley around the head of the penis. The condition had been observed at delivery by Mrs. Knepp’s physician and had been discussed with her. She was told that there was no cause for alarm but that future surgery would be necessary. Because a portion of the skin flap was to be used in the operating procedure it was recommended that the boy not be circumcised. The parents agreed, and circumcision was not performed. The parents also accepted the medical recommendation that surgery be delayed and not be performed while the child was an infant. On two separate occasions prior to making the application for insurance, the parents had inquired whether it was time for their son’s surgery to be performed. The correctness of these facts is supported by medical records and by the testimony of the parents themselves.

The trial court concluded, nevertheless, that the parents’ failure to disclose their son’s condition in the insurance application was not committed in bad faith or with a conscious intent to deceive and defraud the insurance company. Therefore, rescission was denied. The court en banc held otherwise. All the evidence, the court en banc observed, was clearly to the effect that the parents had known of their son’s disorder and had failed to disclose it to the insurer. Under such circumstances, concluded the court en banc, the parents’ misrepresentations entitled the insurer to rescind the policy after the true facts had become known.

A court en banc may reverse the hearing judge in a proper case, but if this occurs the court en banc must state its reasons for so doing; and it is the duty of an appellate court to examine carefully the court’s reasons, together with the entire record, and determine if the action of the court en banc was justified. See: Vajentic Estate, 453 Pa. 1, 6, 306 A.2d 300, 303 (1973); Billinger Estate, 451 Pa. 77, 80, 301 A.2d 795, 796 (1973). See also: Bortz v. Troth, 359 Pa. 326, 332, 59 A.2d 93, 96 (1948); Lacey v. Rutter, 358 Pa. 502, 506, 57 A.2d 679, 680-681 (1948); 16 Standard Penna. Practice 2d § 91:124. Where the trial court’s findings depend upon the credibility of witnesses whom the court heard and saw, those findings are to be accorded great weight by the court en banc. See: Lacey v. Rutter, supra, 358 Pa. at 505, 57 A.2d at 680, quoting Thorndell, Administratrix v. Munn, 298 Pa. 1, 3, 147 A. 848, 849 (1929); Jones v. Motor Sales Co. of Johnstown, 322 Pa. 492, 495-496, 185 A. 809, 811 (1936); Belmont Laboratories, Inc. v. Heist, 300 Pa. 542, 547, 151 A. 15, 16 (1930); Luria v. Robbins, 223 Pa.Super. 456, 460, 302 A.2d 361, 363 (1973). Where, however, the en banc court has stated its reasons for rejecting the trial judge’s findings, those findings cannot have the same weight as would ordinarily attach; this is particularly the case “where the issue must be determined from reasoning or inferences drawn from undisputed facts.” YMCA of Germantown v. Philadelphia, 323 Pa. 401, 408-409, 187 A. 204, 208 (1936), citing Kirmse, et al. v. Adler, et al., 311 Pa. 78, 166 A. 566 (1933), and Hamilton, et al. v. Fay, 283 Pa. 175, 128 A. 837 (1925).

In Shafer v. John Hancock Mutual Life Insurance Co., 410 Pa. 394, 189 A.2d 234 (1963), an applicant for life insurance had made statements which were false in fact and which were known to be false when made. His beneficiary argued, however, that the insurer had failed to prove an intent to deceive or defraud the insurer. The Supreme Court rejected this argument and held that where material misstatements are knowingly false, an insurer can avoid the policy. The Court said:

“In order to avoid the policy sued upon, the burden was upon the defendant to establish that the statements made by the insured in the application were material to the risk and were falsely and fraudently made by the insured: Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 186 A. 133 (1936). If the statements in fact were false and the insured knew that they were false when he made them, this constituted fraud, since a statement known to
be false when it is made is presumptively fraudulent: Kizirian v. United States Life Ins. Co., 383 Pa. 515, 119 A.2d 47 (1956). If such falsity and the requisite bad faith affirmatively appear from (a) competent and uncontradicted documentary evidence, such as hospital records, admissions in the pleadings or proofs of death or (b) the uncontradicted testimony of plaintiff’s own witnesses, a verdict may be directed for the insurer, Kizirian v. United States Life Ins. Co., supra. Inquiries in applications for life insurance as to prior medical attendance and hospitalization are material to the risk and fraudulent answers thereto must permit the insurer to avoid the policy, not only because of a failure to report the exact nature of the previous illness, but also because of a failure to furnish information from which the insurer could protect itself through further investigations. Reeder v. Metropolitan Life Ins. Co., 340 Pa. 503, 17 A.2d 879 (1941); Prevete v. Metropolitan Life Ins. Co., 343 Pa. 365, 22 A.2d 691 (1941).
In the instant case, the falsity of the answers given by the insured was established beyond question by unimpeached documentary evidence and in part by plaintiffs’ own witnesses. But argue the appellants, this does not conclusively establish that the insured knew they were false or intended thereby to deceive and defraud the company. It is speculated that the false statements were made inadvertently and unintentionally. As stated in Derr et al. v. Mutual Life Ins. Co., 351 Pa. 554, 559, 41 A.2d 542, [544] (1945) . Where it affirmatively appears from sufficient documentary evidence, that the policy was issued in reliance on false and fraudulent statements, made by or on behalf of the insured, as where false answers are shown to have been given by the insured under such circumstances that he must have been aware of their falsity, the court may direct a verdict or enter judgment for the insurer.’ ” ’ Accord, Freedman v. Mutual Life Ins. Co., 342 Pa. 404, 21 A.2d 81 (1941).”

Id., 410 Pa. at 398-400, 189 A.2d at 236-237. See also: Connecticut Mutual Life Ins. Co. v. Wyman, 718 F.2d 63, 67 (3rd Cir.1983); Wolfson v. Mutual Life Insurance Co. of America, 455 F.Supp. 82, 85 n. 3 (M.D.Pa.1978), aff'd mem., 588 F.2d 825 (3rd Cir.1978); DeBellis v. United Benefit Life Insurance Co., 372 Pa. 207, 210-211, 93 A.2d 429, 430-431 (1953); Indovina v. Metropolitan Life Insurance Co., 334 Pa. 167, 171-172, 5 A.2d 556, 558 (1939); McCloskey v. New York Life Insurance Co., 292 Pa.Super. 1, 6-7, 436 A.2d 690, 692-693 (1981); Underwood v. Prudential Insurance Co., 241 Pa.Super. 27, 32-33, 359 A.2d 422, 424-425 (1976); Glaser v. Prudential Insurance Co. of America, 157 Pa. Super. 471, 474-475, 43 A.2d 534, 535 (1945); Glaser v. Metropolitan Life Insurance Co., 139 Pa.Super. 261, 266, 11 A.2d 558, 559-560 (1940); Loder v. Metropolitan Life Insurance Co., 128 Pa.Super. 155, 160, 193 A. 403, 405-406 (1937). Cf. Ciesielski v. Prudential Insurance Co. of America, 416 Pa. 146, 205 A.2d 42 (1964); Travellers Insurance Co. v. Heppenstall Co., 360 Pa. 433, 61 A.2d 809 (1948). If an insurer can avoid liability under such circumstances, it can most certainly obtain rescission of an executory contract of insurance under similar circumstances.

For these reasons I concur with the majority in holding that the court en banc properly overruled the trial court and permitted the insurer to rescind or cancel the policy providing coverage for hospital and medical expenses.

      . The Knepps originally filed a notice of appeal on March 16, 1981, docketed at Superior Court No. 642 Philadelphia 1981. However, judgment was not entered on the trial court docket until January 18, 1982. This appeal is therefore untimely and will be quashed. On February 10, 1982, the Knepps filed a second notice of appeal which was docketed at Superior Court No. 760 Philadelphia 1982. The Knepps then filed with this court a motion for consolidation of the two appeals which was granted on March 18, 1982. While this procedure is unorthodox and not recommended, it is closely analogous to what we have ourselves directed to be done in other cases. See, e.g., Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 501-502, 464 A.2d 431, 433-434 (1983). Furthermore, Nationwide has not raised any objection to the propriety of our entertaining these appeals. We therefore conclude that this case is properly before us.

      . The Knepps do not claim coverage under the other category of insured loss, namely, "injury.” Nationwide, on the other hand, does not contend that hypospadias is not within the definition of "sickness” but only that it is not a "covered” sickness.

      . Webster's New Twentieth Century Dictionary, Unabridged Second Edition (1979), defines “congenital” as "belonging or pertaining to an individual from birth; resulting from one’s heredity or prenatal development; as, a congenital disease, a congenital deformity.”
      Dorland’s Medical Dictionary (25th ed., 1974), defines “congenital” as “existing at, and usually before, birth; referring to conditions that are present at birth, regardless of causation.”

      . We note that regulations recently promulgated by the Insurance Commissioner now require insurance policies to provide for coverage of pre-existing conditions if, inter alia, the condition was undiagnosed prior to the effective date of insurance coverage. See 31 Pa.Code §§ 88.51-88.53. We express no opinion upon the effect these regulations might have upon the law as set forth in the text. Those regulations are not applicable, however, to the policies issued in this case. See also: The Individual Accident and Sickness Insurance Minimum Standards Act, Act of May 18, 1976, P.L. 123, No. 54, 40 P.S. §§ 776.1 et seq. and the regulations issued pursuant thereto, 31 Pa. Code §§ 88.1 et seq.