author: ROWLEY, Judge: MUSMANNO, J.

text:
    490 A.2d 465
    Lois BOHN, Appellee, v. Thomas LUNGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1984.
    Filed Feb. 15, 1985.
    Reargument Denied April 22, 1985.

      Albert C. Odermatt, Jr., Pittsburgh, for appellant.
    Ronald L. Muha, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and HESTER, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Thomas Lunger appeals from the trial court’s Order dismissing exceptions to the recommendation of the hearing officer and directing that he pay child support for his minor daughter, Christy Bohn. Appellant argues that he is entitled to a new trial on the issue of paternity. We affirm the trial court’s Order.

This action commenced when Lois Bohn, appellee, filed a complaint against appellant on July 23, 1981 seeking support for her minor child. Blood tests were administered shortly thereafter and they indicated a 97.4% probability that appellant was the father of appellee’s child. Nonetheless, appellant continued to deny paternity and the case was listed for a trial by jury. The jury returned a verdict in favor of appellee on June 1, 1982. Appellant’s trial counsel did not file post-trial motions and appellant retained new counsel.

On June 24, 1982, appellant’s new counsel filed a Petition for Leave to File Post-Trial Motions Nunc Pro Tunc. The petition was granted. On July 6, 1982, appellant’s counsel filed a motion for new trial alleging numerous errors by the trial court and on November 11, 1982, a supplemental motion was filed alleging ineffectiveness of appellant’s trial counsel. On November 22, 1982, upon consideration of the briefs of counsel and oral argument, the court en banc denied appellant’s motion for a new trial and ordered that a hearing regarding support be held.

Following the support hearing, the hearing officer recommended: 1) that appellant pay $130.00 per month for the support of Christy Bohn; 2) that arrears be set at $2,210.00 to be paid at a rate of $25.00 per month; and 3) that appellant pay expert witness fees and blood test costs totaling $1,100.00. Appellant’s timely exceptions were dismissed and the hearing officer’s recommendation was entered as an Order of court on January 28, 1983. This appeal followed. Appellant does not challenge the support award, but rather claims that the trial court erred in refusing to grant him a new trial.

Appellant first argues that the trial court erred in refusing to allow appellant’s witness, Dr. Perer, to testify regarding an examination of appellant performed four months after the birth of Christy Bohn, which indicated that appellant was aspermatic. We have considered appellant’s claim and find that the trial court’s opinion thoroughly and properly resolves this issue and we need add nothing further.

Appellant next argues that the trial court erred in refusing to grant him a new trial on the ground of ineffectiveness of his trial counsel. It is now clear that an appellant may raise the issue of ineffective assistance of counsel in a proceeding involving an adjudication of paternity.

Our court has determined that due process entitles an indigent defendant to appointment of counsel in a paternity action despite the civil nature of such proceedings. Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982). We have also stated that a non-indigent defendant in a paternity action must be granted a reasonable opportunity to secure counsel. White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983).

In a recent opinion regarding the right to counsel in paternity actions, this court held that a defendant’s due process right to counsel entitles the defendant to effective assistance of counsel. Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984). In Banks, a jury trial was held on the issue of paternity at which defendant’s counsel was present but defendant was not. The jury’s verdict was in favor of the mother and defendant’s trial counsel did not file post-trial motions. Defendant then obtained new counsel, who filed a petition for leave to file a motion for new trial nunc pro tunc on the ground of trial counsel’s ineffectiveness. The petition was dismissed without hearing. A support hearing was subsequently held resulting in a support order against the defendant.

On appeal in Banks, the defendant argued that the trial court erred in refusing to grant his motion for a new trial nunc pro tunc. After reviewing the principles and decisional law governing the right to counsel in paternity actions, our court concluded:

Given the recognition of the right to counsel for paternity defendants in Corra v. Coll, supra and White v. Gordon, supra, we find it impossible to deny such a defendant the right to effective assistance of counsel. It is axiomatic that the right to the assistance of counsel means the right to the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Commonwealth v. Kale, [331] Pa.Super. [155], 480 A.2d 291 (1984). “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970). Indeed, without the guidance of competent counsel, appellant’s right to representation would be rendered worthless. In re Hutchinson, [279 Pa.Super. 401, 421 A.2d 261 (1980) ], supra. Thus, were we to hold that a paternity defendant’s right to counsel does not require the effective assistance of counsel, we would be exalting form over content.

Id., 337 Pa.Superior Ct. at 202, 486 A.2d at 977. The court in Banks further stated that ineffectiveness claims in paternity cases must be reviewed in accordance with the familiar two-prong analysis employed in criminal cases:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel has some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

Id., 337 Pa.Superior Ct., at 203, 486 A.2d at 977 citing Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983).

In applying this test, the court in Banks determined that several of defendant’s allegations regarding ineffectiveness of his trial counsel, if proved, had arguable merit. However, the court observed that it was impossible to tell from the record why defendant’s trial counsel acted as he did. Accordingly, the case was remanded for an evidentiary hearing in order to allow defendant’s trial counsel an opportunity to state his reasons for choosing his course of action.

Hence, we must analyze appellant’s ineffectiveness claims in the instant case in accordance with our decision in Banks v. Randle, supra. Nonetheless, in reviewing the record of these proceedings and applying the above-stated analysis, we find that the trial court correctly determined that appellant’s trial counsel was not ineffective.

Appellant argues that his trial counsel was ineffective because he contradicted appellant’s direct testimony by stipulating that appellant had sexual relations with appellee during a Florida vacation. This claim has no merit. A close reading of trial counsel’s proposed stipulation reveals that appellant’s counsel did not specifically offer, within hearing of the jury, to stipulate that appellant engaged in sexual relations with appellee in Florida. Rather, appellant’s trial counsel only offered to stipulate that appellant had engaged in sexual intercourse with appellee regularly from September 30, 1979 until December of 1980, including the time during which appellee was impregnated. (N.T., May 28, 1982, pp. 68-69). This stipulation was consistent with the testimony appellant had already given on cross-examination up to that point in the trial. (N.T., May 1982, pp. 66-68). More importantly, a stipulation regarding specific instances of sexual relations was never agreed to and appellant subsequently testified that he did not have sexual relations with appellee during the Florida trip, which lasted approximately five days. Thus, this claim is without merit.

Appellant also claims that his trial counsel erred in stipulating to the admission of appellee’s diary into evidence. However, appellant does not specify what portions of the diary were objectionable or how the diary adversely affected his case, especially since it was written after appellee discovered she was pregnant. Our courts have repeatedly stated that claims of ineffectiveness must be stated with specificity. We will not consider claims of ineffectiveness of counsel in the abstract. See Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981). See generally Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984) (en banc, filed November 11, 1984). Even if we were to find that appellant’s claim has arguable merit, it is clear from the record that trial counsel’s stipulation to the admission of the diary had some reasonable basis designed to promote his client’s interest. A review of trial counsel’s statements to the trial judge reveals that counsel felt that the admission of the diary as a whole was preferable to having appellee read portions of the diary aloud to the jury as a past recollection recorded. (N.T., May 28, 1982, pp. 97-99). Indeed, at trial counsel’s insistence, appellee was precluded from reading to the jury from the diary altogether, although the diary was admitted into evidence. (N.T., May 28, 1982, pp. 100-101). Thus, we need not remand this case for an evidentiary hearing as did the court in Banks v. Randle, supra. Where, as here, it is clear that the actions claimed to constitute ineffectiveness were within the realm of trial tactics and strategy, a baseless allegation of ineffectiveness must be rejected. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1977).

We have also reviewed appellant’s assertions that his trial counsel failed to adequately prepare for trial and ineptly cross-examined witnesses and we find them to be entirely without merit. Accordingly, we affirm the finding of paternity and the Order directing that appellant pay child support.

APPENDIX

OPINION

MUSMANNO, J.

On July 23, 1981, the plaintiff, Lois Bohn, filed a complaint for support against the defendant, Thomas Lunger, seeking support for her minor child, Christy Bohn, born May 20, 1981. A conference was scheduled before a support counselor on September 28, 1981, at which defendant failed to appear. The Court then issued an Order requiring the defendant to appear within ten (10) days. Blood tests were performed on November 24, 1981 and a conference to review the results of the blood tests was held on December 28, 1981. The blood test results showed the probability was 97.4% that defendant was the father of plaintiffs child. Despite this, the defendant denied paternity of the minor child and the case was ordered to a pre-trial conference before this Court.

On March 20, 1982 a pre-trial conference was held, and the defendant again denied paternity. The case was placed on the next available jury trial list, and the trial commenced on May 28, 1982. After two (2) days of trial, on June 1, 1982, the jury returned a verdict for the plaintiff.

No timely post trial motions were filed by defendant’s counsel. On June 24, 1982, defendant, by new counsel, petitioned this Court for leave to file post trial motions nunc pro tunc, which petition was granted on July 2, 1982.

The defendant filed a motion for a new trial on July 6, 1982 alleging inadequate representation by trial counsel, and errors in the admission of evidence as his bases for a new trial. After argument before the Court en banc, defendant’s motion for a new trial was denied on November 12, 1982.

The case was then ordered to a support hearing before a hearing officer on January 4, 1983. The hearing officer recommended: (1) that the defendant pay the sum of One Hundred and Thirty ($130.00) Dollars per month as child support for Christy Bohn, (2) that arrears be set at Two Thousand Two Hundred and Ten ($2,210.00) Dollars to be paid at the rate of Twenty-five ($25.00) Dollars per month and, (3) that defendant pay expert witness fees and blood test costs in the amount of One Thousand One Hundred ($1,100.00) Dollars. Defendant filed timely exceptions to this recommendation, and after argument before this Court, the defendant’s exceptions were dismissed and the recommendation of the hearing officer was entered as the Order of this Court on January 28, 1983.

On February 18, 1983, the defendant appealed this support order to the Superior Court of Pennsylvania.

In compliance with an Order of this Court, defendant, pursuant to Pa.R.A.P. 1925(b), filed a Statement of Matters Complained of on Appeal which sets forth three basic claims of error. Defendant’s first claim is that the medical report and testimony of one William A. Perer, M.D. should have been admitted as evidence at the trial.

Defendant attempted to admit Doctor Perer’s “report” and testimony concerning an examination performed on the defendant on September 15, 1981, which was four (4) months after the birth of the child. Defendant indicates that this report and testimony would reveal that he was, at that time, aspermatic, and thus incapable of fathering a child. Defendant also claims that the Court erred in excluding his own testimony concerning the results of the aforementioned test. Defendant attempted to do this to corroborate his earlier testimony that he had undergone a vasectomy in 1959. An examination of the entire record, however, indicates that neither the defendant’s testimony, nor Doctor Perer’s testimony was relevant to defendant’s condition at the time of probable conception, i.e. August-September, 1980.

The defendant testified on direct examination that a “girl,” likely a prostitute, “set it up” [the vasectomy] with, “the doctor that took care of the people at the truck stop,” at a cost of “like $50.00 or something like that.” (N.T. 206-208). Although defendant stated that he had attempted to discover the exact location and the identity of the physician who allegedly performed the operation, he was unable to provide any specifics whatsoever.

The defendant attempted to bolster his testimony, insofar as possible, with the testimony of Doctor Perer regarding two sperm tests performed on the defendant, one in the spring of 1974, and one in September of 1981. Doctor Perer testified that he was a physician for many trucking companies during his active years of practice and had known the defendant for at least twenty-five (25) years. He also testified that the defendant had been a patient of his on occasion during that time. The doctor testified that in April of 1974 he performed an examination of defendant’s semen which indicated a complete absence of spermatozoa. Significantly, he never indicated the cause of the aspermia in 1974.

On cross-examination, however, Doctor Perer indicated that he had no records of the 1974 sperm test whatsoever. (N.T. 185-186, 189-190).

Defendant, however, claims that this Court should have admitted Doctor Perer’s testimony regarding a sperm test performed on the defendant on September 15, 1981. Plaintiff’s counsel objected to this on the basis of relevancy, and this objection was sustained by the Court. Doctor Perer also had a written “report” to which plaintiff’s counsel objected and was sustained. This second sperm test result is irrelevant because it was done nearly four (4) months after the birth of the child involved. As noted supra, the child Christy was born on May 20, 1981. A birth at this time coincides with a period of probable conception in August or September of 1980. Thus, although the first sperm test in 1974 was relevant, the second performed in September of 1981 is clearly outside the period of conception and birth. Additionally, the record is devoid of any testimony that the defendant was aspermatic at the time of probable conception, or that he suffered from a continuing condition from 1974 until the time of conception which rendered him physically unable to father a child, or what caused defendant’s aspermatic condition.

It is well settled that the admission of evidence tending to establish a condition subsequent to the time in question, i.e., August-September 1980, is within the discretion of the trial court. Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1965). Evidence of a condition at a prior or subsequent time is admissible if accompanied by proof that the condition has not changed, Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 219 A.2d 357 (1966), citing, Brandon, supra, but in the instant case, the record is totally devoid of any such evidence. See also, Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970).

Defendant’s next contention is that this Court should not have admitted plaintiff’s diary, and certain testimony from the plaintiff regarding said diary. The transcript of Notes of Testimony, however, reveals that defendant’s counsel did not object to the admission of the diary. (N.T. 97-100). Defendant’s trial counsel did object to plaintiff’s reading of entries in the diary, and this Court prohibited its reading with the exception that, in the interest of time, plaintiff’s counsel was permitted to indicate the entries of April 1 and 2, 1981, as being of particular significance since the jury would have the exhibit to read in its entirety.

Defendant’s contention that this Court erred in admitting certain correspondence from defendant’s daughter is wholly without merit. Objections to these exhibits were sustained, and these exhibits were not admitted. (N.T. 146-147).

Defendant’s next contention concerns itself totally with inadequate representation by defendant’s trial counsel. Defendant claims, inter alia, that his trial counsel was incompetent and ineffective, made incorrect stipulations, failed to conduct adequate discovery, incorrectly elicited testimony, and failed to file a pre-trial statement. Hindsight is always 20/20. While reasonable men might differ as to appropriate trial strategy, we find no incompetency of trial counsel that prejudiced any rights of the defendant.

Defendant’s other contentions on appeal concern the matters set forth in his exceptions to the recommendation of the Hearing Officer following a support hearing. Basically, defendant claims that this Court failed to consider plaintiff’s earning capacity, food stamp and welfare benefits, and plaintiff’s potential income. Defendant also claims that the order for support retroactive to the date of plaintiff’s initial complaint is improper and further complains of the assessment of One Thousand One Hundred ($1,100.00) Dollars against him for blood tests and expert witness’ fees.

Pa.R.C.P. 1910.17(a) answers defendant’s claim of error in setting a support award retroactively to the date of the filing of plaintiff’s initial complaint. Rule 1910.17(a) indicates:

“An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.”

A review of the transcript of the support hearing before the Hearing Officer clearly indicates that the Hearing Officer was well informed of the amounts of food stamps and public assistance received by the plaintiff for herself and the child. (N.T. of Support Hearing 2-5).

In addition, plaintiff testified as to her previous employment and the fact that her child is now less than two (2) years old and requires her care. There is no question that it is proper to permit a custodial parent to remain home and raise a young child without the necessity of seeking full-time employment. Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977); Urban v. Urban, 298 Pa.Super. 224, 444 A.2d 742 (1982). The instant case is clearly one in which the doctrine of Wasiolek is applicable.

Defendant’s last claim is that he should not be put to the expense of paying for the blood test and expert witness fees engendered by his denial of paternity. In Allegheny County, such costs and fees are generally advanced by the County in cases where a defendant denies paternity. The ultimate responsibility for payment of these costs and fees is set forth in Title 42 Pa.C.S.A. § 6135, known as the Uniform Act on Blood Tests to Determine Paternity, 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978. Section 6135 provides, in pertinent part:

“The compensation of each expert witness appointed by the Court shall be fixed at a reasonable amount. It shall be paid as the Court shall order. Subject to general rules, the Court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the County and that after payment by the parties or the County, or both, all or part or none of it be taxed as costs in the action.”

This Court is therefore within its authority to order the defendant to bear the costs and expenses engendered by his denial of paternity.

Further, defendant has not been required to pay any amounts on the blood test costs or expert witness fees until June 1983 at the earliest at which time his employment status will be reviewed.

Thus, in light of the foregoing, this Court entered the order of January 28, 1983.

Filed: March 31, 1983

      . Dr. Perer’s report consisted entirely of one sentence relating that defendant was aspermatic.

      . The jury could well have disbelieved Dr. Perer’s testimony and, in fact, this Court had serious doubts as to his credibility, particularly in light of the long friendship between defendant and Dr. Perer and the absence of any records.

      . The failure to file a pre-trial statement pursuant to Allegheny County R.C.P. 212 did not prejudice the defendant as Dr. Perer was permitted to testify to the relevant sperm test occurring in 1974. Additionally, trial counsel’s failure to file timely post-trial motions did not prejudice defendant, as this Court allowed him to file post-trial motions nunc pro tunc.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    490 A.2d 472
    William E. THOMPSON and Ruth Thompson, his wife, and Catherine J. Thompson, Appellants v. Seymour A. SIKOV and Sikov & Love, P.A.
    Superior Court of Pennsylvania.
    Argued Dec. 19, 1984.
    Filed March 22, 1985.
    As Modified April 29, 1985.

      Leonard E. Price, Pittsburgh, for appellants.
    James R. Schadel, Pittsburgh, for appellees.

      Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which granted a demurrer to the complaint filed by plaintiffs-appellants, William Thompson and his wife, Ruth Thompson, and their daughter, Catherine Thompson. We affirm.

On July 20, 1977, William Thompson sustained permanent injuries when he received an electric shock from a power line when the crane boom owned by Anthony Crane Rental collided with the power line.

William and his wife filed a trespass action against West Penn Power Company and Anthony Crane Rental, Inc. and, after a seven day trial, the jury entered verdicts of $500,000 for William Thompson and $150,000 for his wife. Following the discharge of the jury, appellants alleged that Attorney Sikov, counsel for the insurance carrier of the defendant, Anthony Crane Rental, Inc., approached the plaintiffs and shouted words to the effect that they would not see any of the money and that he was going to file an appeal to the verdict. Counsel then again shouted after he had collided deliberately with William Thompson that he was going to appeal the verdict. According to the appellants, William Thompson then telephoned his wife to inform her of the good news since she had not attended the trial. William also told his wife what Sikov had said. Thompson’s wife “became almost paralyzed so that she was unable to continue the conversation and she became nauseaus [sic].” Appellants’ Complaint Allegation at No. 34. Appellants then filed an action of intentional infliction of emotional distress.

Accepting as true the factual averments set forth by the appellants, we conclude that the trial court properly granted the demurrer.

Appellants argue that (1) the trial court erred in restricting its scope of review to its own determination of what constitutes outrage; (2) the trial court erred in determining that the conduct of the attorney was not sufficiently outrageous to raise a question for the jury to decide; (3) the trial court erred in restricting its analysis of outrageous conduct solely to comment d of the Restatement of Torts (Second), Section 46, rather than reading that comment in tandem with the other comments to the section and with the current case law; and (4) the wife of the injured victim is a proper plaintiff to this lawsuit. We must reject appellants’ contentions.

The tort of intentional infliction of emotional distress is an actionable wrong for conduct which is “ ‘of an extreme outrageous type.’ ” Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 126, 437 A.2d 1236, 1238 (1981) (quoting Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1976); Restatement (Second) of Torts § 46 (1965). Additionally, our own Supreme Court has said that “much of what is said with respect to the right of privacy is also applicable to the intentional infliction of emotional distress. Judicial recognition of a cause of action for the unwarranted invasion of one’s right of privacy is of comparatively recent vintage.” Forster v. Manchester, 410 Pa. 192, 195-196, 189 A.2d 147, 149 (1963). Recently, our own Court held that an out-of-court communication which was sent to opposing counsel was privileged absolutely and “immune from financial liability even if his statement is a knowing and malicious falsehood.” Post v. Mendel, 336 Pa.Super. 467, 476, 485 A.2d 1176, 1181 (1984). In this connection we said the following:

... the general rule is that whatever is published by counsel in a legal proceeding, material, pertinent, or relevant to the matter in controversy is absolutely privileged and no action can be maintained on it, even though false and actuated by improper motives, or vituperative and exaggerated____
* * * * * *
... it is not absolutely essential, in order to obtain the benefits of the privilege, that the language be spoken in open court or contained in a pleading, brief, or affidavit; and the privilege has been held to extend to a latter written by counsel to an opposing party relating to discontinuance and release of the cause of action, even though such letter was written spontaneously, and not in response to any communication received. (Footnotes omitted)

Id., 336 Pa.Superior Ct. at 474, 485 A.2d at 1180, (quoting 53 C.J.S., Libel and Slander, § 104(7) (“Communications by Counsel”). We also recognize that the rule of absolute immunity for libel is applicable when the matters which are the subject of inquiry are “relevant and pertinent to the matters to be inquired into by the court.” Id., 336 Pa.Superior Ct. at 475, 485 A.2d at 1181. All doubts should be resolved in such case in favor of relevancy and pertinency. Id. With respect to the tort of intentional infliction of emotional distress, the Restatement similarly states that “[t]he conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances.” Restatement (Second) of Torts, supra, § 46, Comment g. (Emphasis added).

When the above standard is applied to the instant case, we conclude that the attorney’s alleged remarks which were made in the courtroom were privileged. The alleged remarks concerned the fact that the attorney was going to file an appeal, which he is under our Pennsylvania Constitution legally entitled to do. See Const. art. V, § 9. Although the attorney’s alleged conduct may have been heartless, which we do not condone, the words used cannot form the basis of a cause of action of intentional infliction of emotional distress. The Restatement cites the following example:

A and her children are destitute, ill, and unable to pay their rent. B, their landlord, calls on A and threatens to evict her if the rent is not paid. Although B’s conduct is heartless, he has done no more than the law permits him to do, and he is not liable to A for her emotional distress.

Restatement (Second) of Torts, supra, § 46, Comment g, Illustration 14. Similarly, we conclude that the alleged threat which the attorney made also is not actionable. The following observation which we made in Post, supra, is applicable to the instant case:

There has likely never been a practitioner [or individual] who has not experienced chagrin, distress and outrage at the hands of an adversary. Certain adversaries are particularly skilled at triggering such a reaction and even rely upon it as an instrument of the profession. However, it ill serves the profession generally, outraged counsel specifically, and his cause particularly, when retort is served in so reprehensible a fashion.
We are, therefore, somewhat inclined to observe that while the communique of counsel is privileged, we do not condone and, in fact, view with disfavor the manner of his expression of his grievance.

336 Pa.Superior Ct. Pa.Super. at 478 ftn. 1, 485 A.2d at 1182 ftn. 1.

Accordingly, we affirm the order of the trial court which granted appellee’s demurrer.


author: WICKERSHAM, Judge: MONTEMURO, Judge,

text:
    490 A.2d 832
    COMMONWEALTH of Pennsylvania v. James MERSCHEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed Feb. 15, 1985.
    Reargument Denied April 29, 1985.

      Paul G. Hughes, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

On February 24, 1978, police arrested appellant, James Merschen and charged him with aggravated assault, possession of'an instrument of crime and unlawfully carrying a firearm without a license, Information Nos. 262-264, April Term, 1978. Those charges arose out of the shooting of Arthur Hoffman by appellant on February 24, 1978 at approximately 4:15 p.m. in the City of Philadelphia where both men were employed. Immediately after the shooting, Mr. Hoffman was taken to the Hospital of the University of Pennsylvania where he was admitted in guarded condition and treated for a gunshot wound of the abdomen. Following surgery Mr. Hoffman remained in the hospital three days and thereafter required continued outpatient treatment for permanent disability resulting from the shooting (N.T. Sentencing 1/10/79 at 14).

Appellant was tried before the Honorable Marvin R. Halbert of the Court of Common Pleas, Philadelphia County, sitting without a jury on June 29, 1978. Appellant did not deny shooting the victim; he instead claimed that he had acted in self-defense. Judge Halbert found appellant guilty of the above charges. He rejected appellant’s claim of self-defense, holding that while appellant may have believed he was acting in self-defense, the belief was unreasonable (Lower ct. op., 2/25/83 at 4). On January 10, 1979, after denying post-verdict motions, Judge Halbert sentenced appellant to a term of one week to twenty-three months imprisonment in the Forensic Unit of the Philadelphia County Prison with psychiatric supervision of probation for aggravated assault, a consecutive one year probation with psychiatric supervision for possessing an instrument of crime and a concurrent one year probationary period for carrying a firearm without a license. (Appellant served ten days imprisonment and was thereafter released on probation). Appellant was, in addition, ordered to pay $1500 restitution to the victim.

Appellant appealed from the judgment of sentence. On appeal he questioned the effectiveness of his trial counsel. Our court granted appellant’s petition for remand for an evidentiary hearing. Judge Halbert heard evidence on the effectiveness of trial counsel on March 13 and October 30, 1980. By opinion dated February 25, 1983, Judge Halbert denied relief, holding that appellant had received effective representation. Appellant appeals, seeking a new trial or discharge for ineffective assistance of counsel.

Appellant raises the following question on appeal:

Did Defendant have the effective assistance of counsel at trial where his lawyer failed to present available hospital records that would have bolstered Defendant’s claim he was injured by the complainant and was thus acting in self-defense when he shot the complainant; where his lawyer failed to interview a possible eyewitness to the incident, who is now deceased; and where his lawyer failed to present other evidence which would have cast a shadow on the complainant’s credibility?

Brief for Appellant at 3.

Based upon our review of the record, briefs of counsel and applicable law, we affirm. The opinion of the Judge Halbert, dated February 25, 1983, has appropriately dealt with the issue raised. As Judge Halbert wrote:

“This is an appeal from this Court’s denial of the Defendant’s Post-Trial Motions and from its imposition of sentence of one week to twenty-three months incarceration at the Forensic Unit of Philadelphia County Prison, to be followed by one year probation. The Defendant, after being found guilty by this Court sitting without a jury on the charges of aggravated assault, possession of an instrument of crime, and carrying a firearm on a public street without a license, filed this appeal. One of the issues raised on appeal by Defendant’s attorney, who was not the same attorney who represented him at trial, was that of ineffective assistance of counsel at trial. Accordingly, the file was remanded to this Court for an evidentiary hearing on the ineffective assistance claim.

“The case in chief was short and the facts were relatively simple. On February 24, 1978, at about 4:00 P.M., the Defendant, James Merschen, was an employee of the City of Philadelphia working as a foreman in a garage located in a City facility on Delaware Avenue. At about that time, another employee, a maintenance mechanic, Arthur Hoffman, the complainant in this case, approached Merschen and told him that a door was to be open because it was a fire hazard. Merschen’s version of the conversation, however, was different, and allegedly involved threats by Hoffman to Merschen. In any event, an argument ensued, and Hoffman began to pursue or follow Merschen from work area to work area at this facility. The exact nature of the argument did not appear to be particularly relevant, since at one point Merschen suddenly turned towards Hoffman, pulled a gun out which had been concealed on his person, and fired it at Hoffman. The bullet struck Hoffman in the lower left side near the abdomen. Hoffman fled the work area, clutching his side from which blood was pouring. He was taken to the hospital, and was in the intensive care unit for one and one-half days, and in the hospital for three days in all.

“Merschen took the stand in his own defense, and tried to raise the issue of self-defense. He stated that Hoffman had threatened him in the past, and on the day in question, threatened to ‘bash my head in.’ He further testified that Hoffman kept approaching him, and he turned away and tried to walk away from him, but Hoffman continued to follow. He stated that Hoffman was carrying a bag with a heavy object in it and an umbrella. As he continued to retreat from Hoffman, he felt a sharp pain in his leg, and as he turned around, he claimed to see Hoffman raising the bag toward him as if to do something with it. He claimed to have feared for his life, whereupon he pulled the revolver out and shot Hoffman.

“The Court, after having had the opportunity to observe these witnesses, and after having had the opportunity to hear the testimony of an additional witness, a Jacob Rubin, determined that the testimony of Merschen was totally unworthy of belief. Rubin testified that he was in the area at the time that this incident took place, and that despite Merschen’s claims of yelling and shouting of threats by Hoffman, Jacob Rubin heard no such screaming. Furthermore, he testified that he saw nothing in Hoffman’s hands, either prior to the shooting, and especially after the shooting. He observed Hoffman running from one of the work bays after having been shot, holding his abdomen with blood running on his hands. Merschen testified that even after the shooting took place, Hoffman still was carrying these objects. No such objects were ever produced at trial.

“Mr. Merschen was quite nervous throughout the trial. It was obvious that he had an excellent reputation in the community, as was evidenced by the character testimony presented. It was also quite apparent that he was a very excitable individual, and that this incident would or could cost him his job, despite the fact that he had been employed for over 20 years by the City of Philadelphia. This Court further felt that Merschen may actually have believed at the time that he was defending himself, but from the facts and circumstances which existed at the time of this incident, such a belief was unwarranted and unjustified. Looking at the circumstances in a light most favorable to Merschen, it can only be said that at the very least, his reaction was an over-reaction, and not rising to the level of self-defense based on the reasonable man standard.

“Each and every element of the crimes of aggravated assault, possession of an instrument of crime, and of carrying a firearm without a license, was proven beyond a reasonable doubt by the Commonwealth, and verdicts of guilty were entered on each charge.

“On remand, Defendant’s new counsel alleged that trial counsel was ineffective in failing to conduct an independent investigation into this incident. Counsel listed seven areas of investigation, which were not performed by trial counsel, and these areas were pursued at the evidentiary hearings. A copy of counsel’s letter of September 4, 1979, outlining these major points is attached to this Opinion.

“At the evidentiary hearings, the Commonwealth presented an officer referred to by Mr. Merschen, who investigated a prior incident between him and Hoffman; a co-worker who supposedly had information either about the incident or about Mr. Rubin’s alleged close friendship with Mr. Hoffman; and trial counsel, Stanley Bashman, Esquire. Mr. Bashman addressed the various issues which were raised in a manner which was quite satisfactory in explaining his conduct of trial to this Court. To summarize his position, which the Court feels basically reflects the entire conduct of this case, there was no question but that Merschen shot Hoffman. The only question was whether it was in self-defense or not. Apparently from the interviews of Merschen, eight to ten in number, Bashman formed the conclusion that it was a one-on-one occurrence, and that the case would be won or lost depending on the credibility of the witnesses, specifically Hoffman and Merschen. Merschen claimed that medical records should have been obtained and presented to substantiate the fact that he was struck on the leg during this incident. Bashman testified that the hospital stay in question took place approximately three weeks after the incident, and was, therefore, of very little probative value. Merschen himself testified that he was treated after his arrest at St. Mary’s Hospital, and immediately released since there was nothing wrong with his leg at the time, or so x-rays revealed nothing wrong with it.

“Merschen claimed that there was a witness, a fellow employee, Henry Oscar Newton, who was in the area at the time the incident occurred. Newton was in poor health, and since the time of the trial itself, has passed away. Bash-man never interviewed this individual, but based upon his interviews with Merschen, did not feel it was necessary to do so. Merschen wanted his supervisor interviewed, and possibly called as a witness, to show that his version of the dispute between himself and Hoffman was true, as opposed to what Hoffman said. He also wanted the time sheets obtained by Bashman, so that they could be used to show that he was on duty and Hoffman was off duty at the time this occurred, which would further detract from Hoffman’s credibility. Merschen also wanted Bashman to investigate a prior incident between himself and Hoffman, at which time the Philadelphia Police were called to the scene, and to talk with fellow employees to show that Jacob Rubin was actually a very close friend of Hoffman’s. At the evidentiary hearing, it became quite apparent to this Court that Mr. Merschen’s requests, if in fact actually made prior to trial, were in the nature of an extremely nervous client, who places extreme importance on very minor and insignificant things in hopes that somehow they will be the 'key’ to his case. Mr. Bashman’s many years of experience in dealing with all types of clients, including ones such as this, and as referred to by appellate counsel as a 'nervous Nellie,’ taught Bashman to proceed in the manner in which he proceeded in this case. He was the one who determined what efforts should be made pre-trial. At the evidentiary hearing, the officer was called who was involved in this prior incident that Merschen said would show the violent tendencies of Hoffman, and that officer was able to add nothing. He appeared as the result of a call, and if anything had taken place between these two individuals, it was over by the time he arrived at the scene, contrary to Merschen’s assertions. One of the individuals who was named in Appellate counsel’s letter who would be able to show that Rubin was a close friend of Hoffman testified and, in fact, stated just the opposite, that they were all nothing more than co-employees or friends at work.

“After taking testimony at this evidentiary proceeding, this Court was convinced that Bashman had investigated his case as much as would have been reasonable and responsible under the circumstances. Additionally, some of the points raised by Merschen, when presented at the hearing, appeared to be totally without basis and invalid. The very witnesses he claimed to have been so necessary added absolutely nothing to his case.

“Once again, Bashman’s assertion that the case simply boiled down to a one-on-one confrontation in which credibility would be a factor was an absolutely accurate assessment of this situation.

“Upon a further review of the entire record, this Court was convinced that not only was Defendant guilty beyond a reasonable doubt of the crimes charged, but that there were no prejudicial or reversible errors requiring a new trial. Further, from the evidentiary hearing, this Court was convinced that trial counsel was not ineffective in assisting Merschen in the defense of his case. Accordingly, the sentence imposed should stand.”

Lower ct. op. at 1-7.

Judgment of sentence affirmed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

Because I would agree with appellant that his trial counsel was ineffective in failing to secure, and produce at trial, hospital records allegedly favorable to the appellant’s claim of self-defense, I respectfully dissent.

In order to fully understand this allegation of ineffectiveness, it is necessary to briefly recount the circumstances leading to appellant’s conviction. The appellant was employed by the City of Philadelphia as a shop foreman at a garage on Delaware Avenue, between Snyder Avenue and Jackson Street. The complainant, Arthur Hoffman, was a maintenance mechanic employed at the same location. According to the evidence adduced at the evidentiary hearing, there was some animosity between the men stemming from an argument on February 9, 1978, which resulted in the police being called to the garage. Sometime after February 9, the appellant had blocked off a fire exit from the boiler room with approximately twenty (20) lockers. Hoffman took exception to this action because he felt it was a dangerous condition. Hoffman testified that on February 27, 1978, he went to the appellant’s work area in “Bay Three” of the garage to ask him to remove the lockers. As Hoffman approached, the appellant turned and ran through a large doorway into “Bay Two.” Hoffman followed him partway into “Bay Two.” As Hoffman reached the doorway, he saw the appellant opening the large overhead door (which was electric and opened by pressing a switch). When Hoffman was approximately forty feet away from the appellant, he turned and shot Hoffman with a .22 magnum pistol.

The appellant’s testimony is somewhat different. He related that on the afternoon of February 24, 1978, he was at his work area in the garage when Hoffman approached him. Hoffman was shouting and swearing, and was carrying an umbrella in one hand and something heavy wrapped in a shopping bag in the other.' The appellant turned and as he was about to walk away, he felt a sharp pain in his leg which caused him to stumble and fall. He got up, ran into “Bay Two” and pushed the switch to open the large overhead door. As he did so, he fell again. He turned again and saw Hoffman, now approximately twelve feet away, leap into the air and lunge toward where the appellant lay prone. At that point, the appellant drew the pistol from his belt and fired once. He stated that Hoffman ran away, still holding the umbrella and the object wrapped in the bag. The police never found either object.

This court, in determining whether a criminal appellant was afforded effective assistance of counsel will make an independent review of the record, Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Gray, 297 Pa.Super. 123, 443 A.2d 330 (1982). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309, 421 A.2d 737 (1980). However, it is only where the claim is of arguable merit that we must make an inquiry into counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

The appellant alleges that trial counsel was ineffective in failing to secure hospital records to produce as evidence at trial. The appellant contends that these records would show that he was treated for injuries sustained in the confrontation with Hoffman. At the evidentiary hearing, the appellant testified that on March 16, 1978 [actually March 6, 1978], he entered John F. Kennedy Hospital for treatment of his injured leg, and that he remained there for two and one-half weeks. He further testified that he had executed a medical release to enable counsel to secure the records of his treatment.

The appellant’s trial counsel, Stanley Bashman, Esquire, also testified. He stated that the appellant had informed him of the hospital stay and had shown him some type of record; however, he did not think the hospital records were necessary. Counsel stated two grounds for his decision.

First, he stated that, on the morning of appellant’s trial, he asked Mr. Rusek, the assistant district attorney, if either the umbrella or the bag containing a heavy object had been found at the scene. Upon receiving a negative response, counsel decided to “soft-pedal the issue completely, just have him say what he said and that’s it.” (N.T. October 30, 1980, at 99, 100). Counsel’s second reason was stated as follows: “I think they were a week or two later than the event, and that troubled me too.” (N.T. October 30, 1980, at 114). At trial, no mention was made of the appellant’s two and one-half week hospital stay.

I find that the appellant’s claim is of arguable merit in that the alleged medical records are relevant to the issue of whether the appellant acted in self-defense. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). Moreover, trial counsel’s explanations do not justify his failure to investigate the medical records or to obtain them for trial.

I begin with the proposition that the appellant’s defense was predicated upon a justifiable use of deadly force. Deadly force, as defined at 18 Pa.C.S.A. § 501, is “[f]orce which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.” The use of deadly force for self-protection is limited by the provisions of 18 Pa.C.S.A. § 505(b)(2), the requirements of which were explained by the supreme court in Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980):

To avail oneself of deadly force for self-protection, three factors must be found to exist. First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat. 18 Pa. C.S.A. § 505; Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979); Commonwealth v. Black, [474 Pa. 47, 376 A.2d 627 (1977)]; Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975).

Id., 491 Pa. at 512, 421 A.2d at 662.

Herein, if the appellant’s story is given credence, it meets the requirements set forth in Brown. The appellant asserts that: (1) he was attacked without warning and without provocation by Hoffman who was in an enraged state; (2) Hoffman was armed with some sort of disguised weapon; (3) Hoffman struck the appellant with that weapon, knocking him to the ground; (4) the appellant retreated until he fell [due to his injured leg]; and (5) the appellant, as he lay prone on the garage floor, shot Hoffman, who was still carrying the “weapons” lunging toward him.

The appellant’s failure to prevail on his claim of self-defense is attributable to the trial judge’s determination that Hoffman’s version of the incident was more credible. If the appellant had been able to demonstrate that he sustained an injury consistant with his version of the incident, a different result might have been reached. The medical records, had they been investigated and introduced at trial, might have demonstrated the type of injury and its severity consistent with the appellant’s story. Therefore, they were relevant to his claim of self-defense and appellant’s contention that counsel was ineffective in failing to investigate and introduce them is of arguable merit.

With regard to the question of whether trial counsel had a reasonable basis for his inaction, I find the reasons advanced by counsel to be inadequate.

Counsel contended that he did not investigate or obtain the records because of a discussion he had with the assistant district attorney on the morning of appellant’s trial wherein he learned that the police never found the umbrella or heavy object. This excuse is objectionable on several grounds. First, whether or not the police located the alleged weapons was irrelevant to the need to obtain the medical records. There are many possible reasons why the weapons might not have been located; not the least of which is that there is no indication that anyone ever looked for them. Thus, even if the alleged weapons were not located, the medical records would have supported the appellant’s defense.

Another reason that I find counsel’s excuse unreasonable was his reliance on the statement of the assistant district attorney that no weapons were found. Clearly, this reliance is no substitute for personal investigation. As stated in Commonwealth v. Mabie, supra, 467 Pa. at 474, 359 A.2d at 374:

... First, counsel discounted the defense of self-defense, as well as the possible mitigation of the crime, without questioning witnesses other than the defendant and his brother and without attempting to confirm Mabie’s account of the incident through the hospital records. Counsel testified that he did so based on information contained in the Commonwealth’s file to which he was given access. However, ‘[t]he Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however, conscientious and able those agents may be. Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision.’ Von Moltke v. Gillies, supra, 332 U.S. at 725, 68 S.Ct. at 324. Further, the prosecution’s file is not a substitute for an independent investigation by defense counsel. Since discussions with witnesses and a review of Mabie’s hospital records may have established a defense and the pursuit of such a possible defense was curtailed only upon the basis of information in the Commonwealth’s file, counsel’s decision not to investigate either or both avenues cannot be said to have a reasonable basis designed to effectuate his client’s interest. Cf. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971).

Furthermore, by waiting until the very brink of trial to make any inquiry, counsel effectively precluded any chance of obtaining the records [should he have decided at that point they were necessary], let alone giving the records-the proper analysis needed to prepare for their use at trial. Thus, the first reason advanced by counsel provides no basis for failure to investigate the records.

The second reason advanced by counsel — i.e., that he was disturbed by the time lag between the criminal incident and the onset of hospitalization — also fails to justify his omission. The case herein involved a confrontation between two men, each claiming the other as the aggressor. The appellant, however, appears in a bad light because of his use of a weapon which caused a serious injury to the complainant. Absent some supporting evidence, the appellant’s assertion that he acted in self-defense is little more than a bald assertion worthy of little credence, especially because appellant’s use of a gun in response to the situation is facially an excessive use of force. The medical records would support appellant’s allegation that his use of force was in response to an attack by the complainant. The time lag spoken of by counsel goes only to the weight which the court might put on the evidence. Thus, I similarly conclude that this reason fails to adequately explain counsel’s failure to investigate and to obtain the medical records.

Therefore, I would find that counsel was ineffective.

Consequently, I would vacate the judgment of sentence and remand the case for a new trial so that the appellant can be afforded the assistance of effective counsel.

      . Brief for Appellee at 1-3.

      . However, I note the following exchange which took place after cross-examination of the appellant:
      THE COURT: I have just a few.
      Sir, you have indicated that you injured your leg, and I assume, or I have the impression, that you were treated for it; is that correct?
      THE WITNESS: I was hospitalized.
      THE COURT: You were hospitalized after this matter?
      THE WITNESS: I had medical treatment that night while I was incarcerated.
      At eight ten I was taken to Saint Mary’s, and my leg was x-rayed, and they found no broken bones. And I was — they—and I was taken down and locked up.
      (N.T. June 29, 1978, at 77).

      . I note that the medical record in question was introduced at the evidentiary hearing below, but was not made part of the appellate record.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    490 A.2d 839
    Brenda MURRAY and Richard Murray, H/W, Appellants, v. UNIVERSITY OF PENNSYLVANIA HOSPITAL and Dr. Steven De Voe and Dr. John E. Hunt and Dr. Cynthia W. Cook and Dr. Luigi Mastroianni, Jr., Appellees. Brenda MURRAY and Richard Murray, H/W v. UNIVERSITY OF PENNSYLVANIA HOSPITAL and Dr. Steven De Voe and Dr. John E. Hunt and Dr. Cynthia W. Cook and Dr. Luigi Mastroianni, Jr. Appeal of UNIVERSITY OF PENNSYLVANIA HOSPITAL and Dr. Cynthia W. Cook.
    Superior Court of Pennsylvania.
    Argued March 13, 1984.
    Filed Feb. 21, 1985.
    Reargument Denied May 3, 1985.

      Brian R. Steiner, Philadelphia, for appellants (at 2899) and appellees (at 2968).
    Richard A. Kolb, Philadelphia, for appellants (at 2968) and appellees (at 2899).
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

The rules of law applicable to this action for breach of an express warranty given in connection with a tubal ligation are fairly well established. The manner in which they should be applied to the facts of the instant action is not so readily apparent because application is shrouded in procedural confusion.

A doctor and patient may, if they choose to do so, contract that a course of treatment will produce a specific result. If that result is not achieved, the patient may then have an action for breach of contract even though the doctor has exercised the highest degree of professional care. See: Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 486, 453 A.2d 974, 975 (1982). See also: Colvin v. Smith, 276 A.D. 9, 92 N.Y.S.2d 794 (1949); 61 Am.Jur.2d, Physicians & Surgeons § 161 (1981).

An action for breach of contract must be commenced within six years. Such an action is not controlled by the two year statute of limitations which is applicable to actions for professional negligence causing injury to another’s person. It has been held, however, that the two year statute applicable to causes of action for personal injuries cannot be avoided by the expedient of pleading in contract. Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A.2d 379 (1946). See also: Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982); Shadle v. Pearce, 287 Pa.Super. 436, 430 A.2d 683 (1981). In determining which statute will control, it is necessary to determine the nature of the damages sought to be recovered. If recovery is sought for the cost of completing performance of the contract or remedying defects in performance, the applicable statute of limitations is six years. See: Jones v. Boggs & Buhl, Inc., supra. See also: Colvin v. Smith, supra. If, however, the damages sought to be recovered are for personal injuries, the two year period of limitation is clearly applicable. Jones v. Boggs & Buhl, Inc., supra. See: Staiano v. Johns Manville Corp., supra; Shadle v. Pearce, supra; Sykes v. Southeastern Pennsylvania Transportation Authority, 225 Pa.Super. 69, 310 A.2d 277 (1973). It is applicable whether the pleaded cause of action sounds in contract or in tort.

Brenda Murray determined after the birth of her fourth child that she would have no more children. On August 12, 1970, she underwent a tubal ligation at the University of Pennsylvania Hospital to prevent further pregnancies. A jury found that Dr. Cynthia W. Cook, acting as agent for the hospital, had expressly warranted that the tubal ligation would prevent future pregnancies. However, in May, 1972, Mrs. Murray found that she was again pregnant. This pregnancy was subsequently terminated by therapeutic abortion. A second tubal ligation was performed on June 12, 1972.

Brenda Murray and Richard, her husband, commenced an action in assumpsit by praecipe for summons on August 6, 1976. In a complaint thereafter filed, they alleged a breach of the agreement guaranteeing a specific result. They requested damages to compensate them for the wife-plaintiff’s subsequent medical and hospital expenses. However, they also sought an award of monetary damages to compensate the wife-plaintiff for her personal injuries, including pain and suffering, and her husband for the loss of his wife’s consortium. Both defendants filed an answer in which they pleaded the two year statute of limitations as a complete defense to the action. At trial, the court instructed the jury that if the plaintiffs were entitled to recover, the wife-plaintiff should be awarded damages for pain and suffering. The defendants did not object to this instruction. The jury returned a verdict in favor of the Murrays and against Dr. Cook and the hospital. Damages were awarded to the wife-plaintiff in the amount of $21,000 and to Richard Murray in the sum of $5,300. Post trial motions were filed. The trial court denied the defendants’ motion for judgment n.o.v. but granted a new trial. It granted a new trial because “the jury was permitted to award damages for personal injuries resulting from an act which occurred two years before the plaintiff commenced the action____” The court apparently concluded that although the plaintiffs could recover the costs involved in correcting defendants’ failure to perform their contract, a claim for personal injuries was barred by the two year statute of limitations.

Although we agree that a claim for personal injuries against a physician, whether premised upon medical malpractice or breach of warranty, is subject to the two year statute of limitations, we disagree with the trial court’s application of the rule in this case. Here, the plaintiffs also had a cause of action for breach of contract to achieve a specific result. This cause of action was not barred by the statute of limitations. When it became necessary to instruct the jury regarding the damages to be recovered in the latter action, the court erroneously included pain and suffering and loss of consortium as recoverable damages. However, the defendants did not object to the trial court’s jury instructions allowing recovery for such damages. The error in those instructions, therefore, was waived. See: Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Tyus v. Resta, 328 Pa.Super. 11, 31, 32, 476 A.2d 427, 438 (1984); Tronzo v. Flohr Chevrolet, Inc., 231 Pa.Super. 455, 331 A.2d 555 (1974). The error in the trial court’s jury instructions regarding damages has also been waived because it was not asserted as a reason in support of defendants’ motion for new trial. See: Cherry v. Wilier, 317 Pa.Super. 58, 463 A.2d 1082 (1983). See also: Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 22-23 n. 4 & 5, 473 A.2d 584, 588 n. 4 & 5 (1984).

The only argument which defendants have preserved is that plaintiffs’ entire action is barred by the statute of limitations. The two year statute of limitations, they contend, is a complete defense to the plaintiff’s entire cause of action. They argue, as they did in the trial court, that plaintiffs are not entitled to recover any damages in this action. This contention, as the trial court recognized, cannot be sustained. Only the claim for personal injury is subject to the two year statute of limitations. Plaintiffs’ cause of action, although it requested damages for personal injuries, also sought recovery for the reasonable cost of achieving the result contracted for, i.e., prevention of conception; and the cost of remedying defendants’ failure to perform their contract, i.e., the cost of the therapeutic abortion. These claims are not barred by the two year statute of limitations. They represent true contract damages intended to give the injured parties the benefit of their bargain by awarding a sum of money that would, to the extent possible, put them in the same position as they would have been if the contract had been performed. Restatement (Second) of Contracts §§ 347, 348 (1979). Such an action is controlled by the statute of limitations applicable to contracts and must be brought within six years.

Plaintiffs’ complaint alleged that defendants had guaranteed that the tubal ligation which they had agreed to perform would prevent future conception. When this contract was breached, the plaintiffs sought damages. Some of the damages claimed were for personal injuries; others were intended to achieve for the plaintiffs the benefit of their bargain. At no time during pre-trial or trial proceedings was this distinction raised or called to the attention of the trial court. Defendants contended that the statute of limitations was a complete defense and that no damages, therefore, were recoverable. This, as we have seen, was incorrect. The case was submitted to the jury on instructions from the court to which neither party took exception. The jury, as they could properly do, followed the trial court’s instructions and, after finding a breach of contract, awarded damages consistently with the court’s instructions. If the jury awarded damages not properly included in a verdict for plaintiff, it was only because of jury instructions to which the defendants did not object. Because plaintiffs proved a valid enforceable cause of action for breach of contract, defendants are not entitled to judgment n.o.v. Because defendants failed to object to the court’s jury instructions pertaining to damages, they waived any error with respect thereto and are not now entitled to a new trial merely because the jury followed those instructions.

Dr. Cook and the hospital have also argued that the parol evidence rule is substantively applicable to prevent recovery on an alleged oral agreement to guarantee the wife-plaintiff’s tubal ligation. They contend that because the authorization and release which Mrs. Murray and her husband signed prior to surgery did not contain a warranty as to the success of the procedure and, in fact, purported to release the surgeon and hospital, they could not show a warranty agreement by parol. Whether this argument is valid must depend on whether the release was intended to be the entire agreement between the parties. Dunn v. Orloff, 420 Pa. 492, 495, 218 A.2d 314, 316 (1966); Friestad v. Travelers Indemnity Co., 260 Pa.Super. 178, 191, 393 A.2d 1212, 1218 (1978); National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 373-374, 381 A.2d 963, 965 (1977); 3 Corbin on Contracts §§ 573, 582 (1960). Whether the writing constituted the entire agreement between the parties was a question of law for the court. Walker v. Saricks, 360 Pa. 594, 599, 63 A.2d 9, 11 (1949); Haagen v. Patton, 193 Pa.Super. 186, 191, 164 A.2d 33, 35 (1960); Restatement (Second) of Contracts § 209(2) (1981). Parol evidence may always be considered by the court to determine whether the parties intended the writing to be a complete embodiment of their agreement. See: Rubin v. Lustro Tile Products Corp., 411 Pa. 549, 554, 192 A.2d 731, 733-734 (1963); International Milling Co. v. Hachmeister, Inc., 380 Pa. 407, 418, 110 A.2d 186, 191 (1955); Commonwealth, Department of Property & Supplies v. Berger, 11 Pa.Cmwlth. 332, 338-339, 312 A.2d 100, 104 (1973); Corbin, supra at § 582; Restatement (Second) of Contracts § 209(3). Parol evidence is also admissible to explain and supplement a written agreement where it is shown that the writing was not intended to and did not state the entire agreement between the parties. Dunn v. Orloff, supra 420 Pa. at 496, 218 A.2d at 316.

In the instant case, the trial court held that the authorization and release was not intended to be the entire agreement between the parties. We agree. “A release ordinarily covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given.” In re Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977). Accord: Restifo v. McDonald, 426 Pa. 5, 9, 230 A.2d 199, 201 (1967); Gateway Center Corp. v. Merriam, 290 Pa.Super. 419, 425, 434 A.2d 823, 826 (1981). Brenda Murray testified that she consented to the operation only because she had been guaranteed that she would not become pregnant again. Neither the meaning of the release nor the fact that tubal ligations sometimes fail, she said, had been discussed with her. She was told that she had to sign the authorization before the surgical procedure could be performed. Her husband said that he had signed the form solely for the purpose of permitting his wife to have the operation. Under these circumstances, the trial court could properly conclude that the authorization for surgery was not intended to be the entire agreement between the parties. Parol evidence was admissible, therefore, to show the existence of an oral agreement to guarantee the prevention of future pregnancies.

After the trial court awarded a new trial because damages had been awarded by the jury for personal injuries, it did not consider additional reasons asserted by Dr. Cook and the hospital in support of their motion for new trial. Because these include matters which are usually dependent upon the exercise of a sound discretion by the trial court, i.e., verdict allegedly excessive and against the weight of the evidence, we will remand to give the trial court an opportunity to consider the remaining issues raised by the motion for new trial.

Remanded for consideration of the remaining issues raised by Dr. Cook and the University of Pennsylvania Hospital in their motion for new trial. Jurisdiction is not retained.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I agree with the majority that the claim for personal injuries whether premised upon medical malpractice or breach of warranty is subject to the two year statute of limitations. I disagree, however, with the conclusion that appellants have waived any objection to the assertion of this claim by failing to object to the court’s instructions or asserting it as a reason in support of motions for a new trial.

Appellees have pressed a cause of action, the essential component of which is a claim for personal injuries. They successfully persuaded the trial court to submit this claim to the jury. As the majority concedes, appellants have preserved the argument that the entire action is barred by the statute of limitations. It seems to me that this is enough. Appellants, having duly resisted the flawed cause of action, should not be imposed with the additional burden of second guessing the trial judge by thereafter being obliged to enter objections to the charge which, if granted, would carve out a permissible claim. Since I believe that the majority opinion improperly awards appellees an undeserved windfall, I would agree with the trial court’s award of a new trial. However, since appellees have already successfully won the day on the liability issue, I would limit the new trial to damages only.

      . The statute applicable to this case is the Act of March 27, 1713, § 1, 12 P.S. § 31. That statute has now been repealed, but a comparable statute of limitations appears at 42 Pa.C.S. § 5527(2).

      . Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34, now repealed and reenacted at 42 Pa.C.S. § 5524(2).

      . Although the complaint also named other physicians as defendants, only Dr. Cook and the hospital were found liable, and only they remain as interested party defendants in the present appeal.

      . Also remaining undecided is the correctness of several points for charge submitted by Dr. Cook and the hospital, which the trial court rejected.


author: SPAETH, President Judge:

text:
    490 A.2d 845
    FOUNTAINVILLE HISTORICAL FARM ASSOCIATION OF BUCKS COUNTY, INC., Appellant, v. COUNTY OF BUCKS, and Neshaminy Water Resources Authority.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed March 22, 1985.

      Jack J. Hetherington, Chalfont, for appellant.
    Peter N. Harrison, Doylestown, for county, appellee. Charles F. Sampsel, Bristol, for Neshaminy, appellee.
    Before SPAETH, President Judge, and WIEAND and CHULLO, JJ.
   SPAETH, President Judge:

This is an appeal from an order striking a default judgment. Appellant contends that the judgment was properly entered under Pa.R.Civ.P. 1511(a). We find, however, that the notice required by Rule 237.1 was not given. Since this was a fatal defect apparent on the face of the record, the trial court properly ordered the judgment stricken.

On August 6,1981, appellant, Fountainville Association of Bucks County, Inc., filed a complaint in equity against appellee Neshaminy Water Resources and the County of Bucks. Neither the Authority nor the County filed an answer or otherwise pleaded to the complaint within the required twenty days. Pa.R.Civ.P. 1026. Although the record does not confirm the fact, appellant states that it sent a notice of default on November 10, 1981, pursuant to Pa.R.Civ.P. 237.1. Brief for Appellant at 3. Within the 10 days provided by the notice, the Authority and County jointly filed preliminary objections to appellant’s complaint. Appellant filed preliminary objections to the Authority’s and County’s preliminary objections. The trial court sustained appellant’s preliminary objections and granted the Authority and County twenty days within which to file an answer to the complaint.

An answer, signed only by counsel for the County and verified by the Chief Clerk of the County Commissioners, was timely filed. The answer referred to defendants, in the plural, but otherwise did not indicate that the answer was to be the Authority’s. On March 12, 1982, appellant filed preliminary objections to the Answer, also referring to defendants, in the plural. There was no indication that appellant was responding solely to a pleading of the County-

On June 30, 1982, appellant filed a praecipe for default pursuant to Pa.R.Civ.P. 1511(a), together with the November 10, 1981, notice. The praecipe stated that judgment should be entered “against the defendants [sic] NESHAMINY WATER RESOURCES AUTHORITY, INC. and in favor of Plaintiff, for Defendant’s failure to file an Answer to the Complaint within the time required.” Pursuant to the praecipe, the prothonotary entered the judgment in default here at issue.

On July 28, 1982, the Authority and County filed a joint Memorandum of Law on appellant’s preliminary objections to the answer that had been filed by the County. The memorandum, signed only by counsel for the County, stated: “We respectfully point out to the court that this memorandum is a joint memorandum on behalf of both defendants and that the Answer filed likewise is a joint Answer.” Memorandum of Law Contra Plaintiff’s Preliminary Objections to Defendant’s Answer at 2. Appellant’s reply memorandum, August 11, 1982, enunciated the issue that is now before this court — that the Authority had failed to sign the answer as required under Pa.R.Civ.P. 1023(a), and that therefore the timely answer signed by counsel for the County was not made by the Authority.

On September 9, 1982, the Authority filed a petition to strike the default judgment. It also filed with the prothonotary, on February 10, 1983, a notice adopting the answer filed by the County. The trial court granted the Authority’s petition to strike the default judgment on the ground that the prothonotary had no authority under Rule 1511(a) to enter it. The court held that despite appellant’s failure to sign the answer, “[a]n answer to the complaint had been filed and the answer not only speaks clearly and repeatedly for both defendants but was expressly so acknowledged by plaintiff’s preliminary objections thereto.” Slip op. of tr. ct. at 4. Alternatively, the court held that the prothonotary had no authority to enter the judgment because the circumstances did not indicate that “the alleged default was not, as the Rule requires, a ‘failure to plead within the required time to a complaint endorsed with a notice to plead.’ ” Id. In the court’s view, the circumstances of this case required that it, as opposed to the prothonotary, enter a default judgment, if a default judgment was appropriate. According to the court, the second sentence of the Pa.R.Civ.P. 1511(a) eliminated the prothonotary’s authority in cases where the trial court has' set a time period within which the defendants were required to answer the complaint. Slip op. of tr. ct. at 4-5.

When a fatal defect appears on the face of the record, a judgment may properly be stricken. Parliament Industries, Inc. v. William H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983); Academy House Council v. Phillips, 312 Pa.Super. 364, 458 A.2d 1002 (1983); Alderfer v. Pendergraft, 302 Pa.Super. 210, 448 A.2d 601 (1982). While we agree with the trial court that here a fatal defect does appear on the face of the record, and that consequently the prothonotary was without authority to enter the default judgment, we disagree as to what the defect was.

In a case in which there are codefendants, each with his own counsel, pleadings may not be presumed to be joint, even if prior and subsequent pleadings are expressly offered as joint. Counsel for one party is without authority to bind another. There must be an express statement that the pleading is intended to be a joint pleading, or a similar clear expression of intent, or the signature by counsel for the parties, or the parties themselves, if unrepresented. Here, none of these requirements is satisfied. We therefore may not hold that the Authority filed an answer to the complaint within the period set by the court. In passing, it may also be noted in this regard that no amendment of the answer was ever requested by the Authority. Pa.R.Civ.P. 1033. We therefore do not share the trial court’s view that the defect on the face of the record was that the prothonotary had entered a default judgment despite an answer having been filed by the Authority. In our view, an answer had been filed by the County only — not by the Authority.

We do not regard this conclusion as based on a hypertechnical construction of the rules. See Davis v. Safeguard Investment Co., 239 Pa.Super. 300, 361 A.2d 893 (1976). Pa.R.Civ.P. 1023(b) provides as follows:

The signature to a pleading constitutes a certificate that the person signing it has read it, that to the best of his knowledge, information and belief there is good ground to support it, and that it is not interposed for delay.

Nothing in the answer signed on behalf of the County indicates that the Authority had any part in it. The Authority’s failure to inform appellant and the trial court that the County’s answer was to be considered as its own until the memorandum of law on plaintiff’s objections to the answer, on July 28, 1982, and the note to the prothonotary, on February 10, 1983, was not a de minimis violation of the rules of civil procedure. Cf. Monroe Contract Corp. v. Harrison Square, Inc., 266 Pa.Super. 549, 405 A.2d 954 (1979) (defective verification under Pa.R.Civ.P. 1024 de minimis); Township of Chester v. Stapleton, 72 Pa.Cmwlth. 141, 456 A.2d 673 (1983) (failure to sign notice to plead and failure to attach verification to amendment of complaint de minimis).

We nevertheless shall affirm the trial court’s order striking the default judgment, for appellant’s November 10, 1981, notice to the Authority was defective. Thus a condition precedent to the prothonotary having authority under Rule 1511(a) to enter a judgment by default was not satisfied. See Academy House Council v. Phillips, supra.

Appellant argues that the November 10, 1981, notice was sufficient because it was directed at the default by the Authority in failing to respond initially to the complaint. Brief for Appellant at 9. The difficulty with the argument is that it ignores the fact, noted earlier, that the Authority and the County timely responded to the notice by filing joint preliminary objections within 10 days. The commentary to Rule 237.1 makes clear that “[t]he intent of the Rule is to afford a minimum of ten days after default within which the default may be cured.” Explanatory Note — 1979— Rules of Civil Procedure (emphasis added). Thus, the Authority and the County cured their initial default by timely filing joint preliminary objections. The Authority’s subsequent default, in not filing an answer after appellant’s preliminary objections to the Authority’s preliminary objections were sustained, could not be subject to judgment pursuant to Rule 1511(a) based on the prior notice for a cured default; the notice required by Rule 237.1, in other words, must be given when the party is in default, not before default. Id.

Affirmed.

      . Rule 1511(a) provides:
      (a) The prothonotary, on praecipe of the plaintiff, shall enter a judgment by default against the defendant for failure to plead within the required time to a complaint which contains a notice to defend. In all other cases of default or of admission the judgment shall be entered by the court.

      . Rule 237.1 provides:
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
      (b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.
      (c) The notice required by subdivision (a) shall be substantially in the following form:
      (CAPTION)
      To: ........................
      (Defendant)
      Date of Notice: ..................
      IMPORTANT NOTICE
      YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
      (Name of Office)
      (Address of Office)
      (Telephone Number)

        (Signature of Plaintiff or Attorney)
      (Address)

      . The County did not participate in this case on appeal "because the Bucks County Commissioners have no interest in the outcome.” Letter from Assistant County Solicitor to Prothonotary, Superior Court, filed August 15, 1983.

      . Rule 1026 is applicable to actions in equity. Pa.R.Civ.P. 1501 (except as otherwise provided, procedure in equity shall follow the rules relating to civil action).

      . For text of Rule 237.1, see footnote 2, supra. The notice was not addressed specifically to either or both defendants.

      . Rule 1023(a) provides:
      (a) Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name. A party not represented by an attorney shall sign his own pleading.

      . See footnote 1, supra.

      . Rule 1033 provides:
      A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.


author: WICKERSHAM, Judge:

text:
    490 A.2d 849
    Jerold D. WINGEART, Administrator of the Estate of John Jerold Wingeart v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed March 22, 1985.
    Petition for Allowance of Appeal Denied Sept. 4, 1985.

      George F. Douglas, Jr., Carlisle, for appellant.
    William C. Gierasch, Jr., York, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   WICKERSHAM, Judge:

State Farm Mutual Automobile Insurance Company [hereinafter referred to as “State Farm”] appeals from the order of the Court of Common Pleas of York County finding that the Pennsylvania Insurance Commissioner’s Regulations are not void as contrary to legislative intent; that Maryland’s no-fault statute does not qualify as a “state no-fault plan” under the Pennsylvania Insurance Commissioner’s Regulations; and that appellee Jerold Wingeart is entitled to proceed against State Farm for no-fault benefits under Pennsylvania’s No-fault Act. Jerold Wingeart cross appeals from the court’s partial denial of counsel fees.

The facts in the case at bar are neither contested nor complicated. The decedent, John Jerold Wingeart, a single man with no dependents, was domiciled in Parkton, Maryland. On May 18, 1976, while a passenger in a car operated by Suzanne M. Garrett and owned by her mother, he was killed in a one-car accident in York County, Pennsylvania. On December 6, 1977, decedent’s father and administrator, Jerold D. Wingeart, filed a complaint in York County seeking $15,000 in anticipated work loss under the Pennsylvania No-fault Motor Vehicle Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, art. I; 40 P.S. §§ 1009.101-.701. State Farm filed preliminary objections in the nature of a demurrer contending that the estate of a single person who left no dependents was not entitled to such work loss benefits. The York County Court of Common Pleas sustained State Farm’s demurrer and dismissed the administrator’s complaint. The administrator appealed to the superior court and requested that action on the appeal be suspended pending decision in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). Heffner established that survivors of deceased victims of vehicular accidents are entitled to recover work loss benefits. After Heffner was decided, State Farm still refused to pay work loss benefits, contending on appeal before the superior court that (1) despite Heffner, a decedent’s estate is not a “survivor” and, therefore, not entitled to recover work loss benefits under the No-fault Act and (2) in any event, the estate is only entitled to those benefits available under the law of the state of decedent’s domicile, Maryland. In Wingeart v. State Farm Mutual Automobile Insurance Co., 302 Pa.Super. 524, 449 A.2d 40 (1982), this court rejected State Farm’s first argument based on the decision in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), aff'd, 504 Pa. 218, 470 A.2d 958 (1983). Freeze held that the estate of a deceased victim is a “survivor” as contemplated by the No-fault Act and is entitled to recover work loss benefits. The court refused to address State Farm’s second contention because it was not raised in preliminary objections and was not considered by the trial court. The case was reversed and remanded for further proceedings.

State Farm then raised this “conflicts of law” issue— whether appellee’s only remedy was under Maryland law and not under the Pennsylvania statute — in the instant declaratory judgment action. Section 110(c)(1) of the Pennsylvania No-fault Act provides that the no-fault benefits available to a victim or a deceased victim who was domiciled in another state with a no-fault plan, would be paid in accordance with the state of domicile’s no-fault plan. If the state of domicile does not have a no-fault plan in effect, then the benefits are paid by the state in which the accident occurred. 40 P.S. § 1009.110(c)(1). Instantly, the lower court found that the Maryland No-fault Statute, 5A Annotated Code of Maryland, Art. 48A § 542, does not qualify as a state no-fault plan under Pennsylvania’s Insurance Commissioner’s Regulations, and therefore, appellee’s rights are governed by the Pennsylvania No-fault Act. The lower court also found that since State Farm originally rejected appellee’s claim solely on the ground that work loss benefits are not payable to a decedent’s estate, State Farm cannot now raise the “conflicts of law” issue. These two reasons formed the basis for the lower court’s decision to reject State Farm’s declaratory judgment action. State Farm then appealed to this court.

State Farm asks us to decide the following issue:

Is Maryland a state with a state no-fault plan for motor vehicle insurance under Pennsylvania law?

Brief for Appellant at 3.

Since we agree with the lower court that State Farm cannot now raise this issue, we need not reach its merits.

Section 106(a)(5) of the No-fault Act provides as follows:

(5) An obligor who rejects a claim for basic loss benefits shall give to the claimant written notice of the rejection promptly, but in no event more than thirty days after the receipt of reasonable proof of the loss. Such notice shall specify the reason for such rejection and inform the claimant of the terms and conditions of his right to obtain an attorney. If a claim is rejected for a reason other than that the person is not entitled to basic loss benefits claimed, the written notice shall inform the claimant that he may file his claim with the assigned claims bureau and shall give the name and address of the bureau.

Act of July 19, 1974, P.L. 489, No. 176, art. I, § 106(a)(5); 40 P.S. § 1009.106(a)(5) (emphasis added).

Instantly, the sole reason for denying appellee’s claim for work loss benefits given by State Farm in its rejection notice was that such benefits were not payable in death cases. In that rejection letter, dated November 11, 1977, State Farm never asserted that benefits were payable only under Maryland, and not Pennsylvania, law. On the contrary, the letter stated: “[T]he Estate of John J. Wingeart would be entitled to the basic loss benefits under the PA No Fault Act---- It is our Company policy to extend PA No Fault benefits to John J. Wingeart inasmuch as this accident occurred in the State of Pennsylvania.” Thus, it is clear that the argument now advanced by State Farm was not raised at the time of the initial rejection of appellee’s claim for benefits.

Furthermore, State Farm did not raise this reason for rejection in its preliminary objections in the nature of demurrer. Again, the only defense to appellee’s claim stated in State Farm’s preliminary objections was its position that work loss benefits were not payable in a death case. Of course, we do not hold that State Farm’s failure to raise the “conflicts of law” defense in its preliminary objections resulted in a waiver of that objection pursuant to Pennsylvania Rule of Civil Procedure No. 1032. Had the lower court not sustained State Farm’s preliminary objections, thus requiring State Farm to answer appellee’s complaint, State Farm could have raised the “conflicts of law” defense in its answer as new matter. See Pennsylvania Rules of Civil Procedure No. 1030. Nevertheless, we feel that State Farm’s failure to include the issue in its preliminary objections further solidified its position that its sole reason for rejecting appellee’s claim was that work loss benefits were not owed in this case.

Given the facts of this case, i. e., that the objection now asserted was not discussed in either the rejection letter nor State Farm’s preliminary objections; that, in fact, State Farm affirmatively stated that it was company policy to extend Pennsylvania No-fault benefits to the victim of a Pennsylvania automobile accident; and that the “conflicts of law” issue was first raised in State Farm’s appellate brief, three and one-half years after the claim was filed, we agree with the lower court that State Farm may not now raise this “conflicts of law” issue.

In his cross appeal, appellee raises the following issue:

Whether State Farm’s refusal to pay no-fault benefits after the Supreme Court decision in Heffner v. Allstate is without reasonable foundation such that State Farm must pay counsel fees incurred subsequent to said decision.

Brief for Appellee at 1.

Section 107(3) of the No-fault Act provides:

If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

Act of July 19, 1974, P.L. 489, No. 176, art. 1, § 107(3). This provision permits an award of attorney fees only if the insurer denied the claim “without reasonable foundation.” Instantly, the lower court

refuse[d] [appellee] counsel fees on the primary question in this case of whether or not [appellee] was entitled in the first instance to the $15,000 work benefits. We make that ruling because we felt that there was a legitimate issue involved and that [State Farm] had reason to believe that they would not have to pay the $15,000. They had a reasonable basis for refusing it and, therefore, especially since that issue of whether [the estate] in this instance are entitled to survivors benefits is on appeal to the Supreme Court in the Freeze case, secondly, and that is why we are not giving [appellee] counsel fees on that issue.
However, we do think that [appellee] is entitled to counsel fees on the secondary question of the conflicts of law referred to in our Opinion dated and filed September 28, 1982, because we held then in that Opinion and Order that [State Farm] waited too long to raise that issue and because it was raised, [appellee’s] counsel had to spend considerable amount of time researching it and filing briefs and so forth.

Appellee argues that he is entitled to be reimbursed for all counsel fees incurred since the decision in Allstate Insurance Co. v. Heffner, supra was decided. As already stated, Heffner held that survivors of deceased victims are entitled to recover work loss benefits. State Farm refused to pay such benefits to appellee even after Heffner was decided on the ground that an estate was not a “survivor” under the No-fault Act. This issue was resolved contrary to State Farm’s position in Freeze v. Donegal Mutual Insurance Co., supra. Appellee asserts that there is no fundamental difference between Heffner and Freeze and that therefore State Farm’s refusal to pay work loss benefits subsequent to Heffner is without reasonable basis. First, we note that Heffner did not address the issue of whether an estate was a “survivor” under the No-fault Act; this question was not resolved until the Pennsylvania Superior Court’s Freeze decision. Thus, until that decision was filed, we cannot say that State Farm’s refusal to pay benefits was unreasonable. See Hiers v. Keystone Insurance Co., 308 Pa.Super. 288, 454 A.2d 134 (1982); Hartleb v. Ohio Casualty Insurance Co., 305 Pa.Super. 231, 451 A.2d 506 (1982).

Appellee would argue further that he is at least entitled to counsel fees incurred after the superior court’s decision in Freeze; that is, State Farm should not have been entitled to await the outcome of the Freeze appeal in the Pennsylvania Supreme Court before paying work loss benefits. We disagree. The fact that the supreme court chose to consider the issue and discussed it at length even after the superior court’s prior decision, indicates that we should not find a lack of reasonable foundation in State Farm’s refusal to pay work loss benefits until the supreme court rendered its decision. See Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982).

Judgment affirmed.