author: MONTEMURO, Judge:

text:
    594 A.2d 345
    Jack FINK t/a Jack Fink Fish & Seafood, v. GENERAL ACCIDENT INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1991.
    Filed July 11, 1991.

      Michael A. Genello, Scranton, for appellant.
    Kevin Dempsey, Scranton, for appellee.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   MONTEMURO, Judge:

Plaintiff-appellee Jack Fink, trading as Jack Fink Fish and Seafood, instituted this action against appellant, General Accident Insurance Company (hereinafter “General Accident”), to recover insurance proceeds for property damage sustained by plaintiff’s business premises when an automobile crashed into the building; the complaint also includes a claim for loss suffered by theft when the building was burglarized approximately one week after the car accident. General Accident joined additional defendant, Gladys Wills, alleging that Wills was the driver of the automobile which caused the property damage and that General Accident therefore has a right of contribution against Wills. General Accident raises one issue on this appeal: whether the trial court abused its discretion in denying General Accident’s petition to open a default judgment. For the following reasons, we reverse.

The trial court aptly summarized the procedural background as follows:

... On September 13, 1989, a complaint was filed, and upon receipt of that complaint, an agent of [General Accident] contacted counsel for Fink and requested an extension of time to file an answer. An extension was granted, and counsel for Fink gave General Accident until October 31, 1989 to file its answer. The defendant confirmed this agreement in writing by way of a letter dated September 18, 1989. Although no additional extension was requested or discussed, the defendant failed to file its answer by the agreed-to date; the following day, Fink filed a praecipe to enter a default judgment. The defendant subsequently filed with this Court its answer and new matter, as well as the petition before us today; these documents were respectively filed on November 3 and 6 of 1989.

Trial Court Opinion, April 5, 1990 at 1-2. Following the trial court’s denial of the petition to open or strike the default judgment, General Accident filed a motion for reconsideration on April 23, 1990. The trial court did not rule on the motion for reconsideration prior to May 4, 1990; in order to preserve its appellate rights, General Accident filed a timely notice of appeal to this court on May 4, 1990 from the April 5, 1990 order denying the petition to open the default judgment. On July 25, 1990, the trial court reconsidered its previous order denying the petition to open default judgment and ordered that the default judgment be opened, thereby allowing General Accident to defend the case on its merits. Plaintiff Fink filed a petition for interlocutory appeal which this Court granted. In a per curiam opinion, this Court reinstated General Accident’s appeal of the April 5, 1990 order, holding that the trial court was without jurisdiction to enter the July 25, 1990 order in which the court reconsidered its April 5th order. Presently before us is General Accident’s appeal from the denial of its petition to open the default judgment.

A petition to open a default judgment is an appeal to the equitable powers of the court and will be granted where the court finds that three factors are met: (1) the petition has been promptly filed; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. Miller Block Co. v. U.S. National Bank in Johnstown, 389 Pa.Super. 461, 567 A.2d 695 (1989), appeal denied, 525 Pa. 658, 582 A.2d 324 (1990), citing Versak v. Washington, 359 Pa.Super. 454, 519 A.2d 438 (1986). The decision to deny the petition will not be reversed absent an abuse of discretion.

Importantly, this Court has stated:

“Without question, in many cases where we have found that one of the three requirements for opening a judgment was not met we have stopped without considering the arguments made with regard to the other two. [Citations omitted.] It is difficult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a petition to open, and the importance of balancing the prejudice to the sides____ The question is, Can a court make an “equitable determination” of what is “reasonable under the circumstances” without considering all of the circumstances of the particular case? We think not ... [W]here some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a watertight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in the light of all of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.

Miller Block, supra 389 Pa.Super. at 469-70, 567 A.2d at 699-70, quoting Provident Credit Corp. v. Young, 300 Pa.Super. 117, 129-130, 446 A.2d 257, 263-264 (1982) (en banc).

The trial court found that General Accident’s petition to open the default judgment was timely filed, as the petition was filed on November 6, 1989, five days after the default judgment was entered. Neither party disputes the timeliness of the filing of the petition.

The trial court also found that General Accident has asserted a meritorious defense to Fink’s underlying claim. In its answer to the complaint, General Accident alleges that its failure to honor Fink’s claim for coverage under the policy stems from Fink’s failure to comply with the appraisal provision of the policy and Fink’s failure to provide the proper documentation of the losses stemming from the burglary, that is, proof of purchase of inventory. In addition, General Accident alleges that the trial court lacks jurisdiction due to improper service of the complaint, and that Lackawanna County is not the proper venue for this case, as the accident occurred in Luzerne County. As the “ ‘requirement of a meritorious defense is only that a defense must be pleaded that if proved at trial would justify relief,’ ” we agree with the trial court that General Accident has sufficiently alleged a meritorious defense. Miller Block, supra 389 Pa.Super. at 471, 567 A.2d at 700, quoting Provident Credit Corp., supra 300 Pa.Super. at 128, 446 A.2d at 263.

With regard to whether General Accident had provided a reasonable explanation or excuse for the default, the trial court initially determined that General Accident had not met its burden of proof. The court stated:

... The defendant, who requested and without difficulty received but one extension of time from the plaintiff, did not file its answer within that extended time period, and apparently was fully aware that because of a clerical delay, the answer would not be filed by October 31, a date of mutual agreement. Cognizant of this looming difficulty, General Accident neither conveyed this problem to the plaintiff nor requested an additional extension of time, choosing to do nothing and file its responsive pleading several days beyond the already extended deadline.
While the argument has been presented to us that counsel for plaintiff acted in less than fair manner in moving to enter a judgment almost immediately after the October 31 deadline had passed, we cannot recognize or infer any impropriety from the swift action taken on behalf of Fink, whose claim for losses remains unpaid to this day.

Trial Court Opinion, April 5,1990 at 3. The court cited Eble v. Criterion Insurance Co., 225 Pa.Super. 159, 310 A.2d 418 (1973) in support of its conclusions.

We must conclude that the trial court’s analysis is defective, as the court failed to weigh all of the equities posed by all of the circumstances of this case. The court did not balance the prejudice to the two sides. Although the court recognized the fault with its initial decision and rendered an opinion in reconsideration whereby the court would have opened the default judgment, this revelation on the part of the trial court came too late, as General Accident had already filed its notice of appeal to this Court, thereby divesting the trial court of jurisdiction in this matter.

In its petition to open the default judgment, General Accident sets forth the circumstances which led to the delay in filing its answer; in support of its factual allegations, General Accident also attached to its petition the supporting affidavit of Ms. Karen Bell, a claims representative at General Accident. In its answer to the petition, Fink denied the truth of some of these allegations, thereby creating issues of material fact. Rather than take depositions on the issues of material fact, General Accident requested argument on the petition.

Fink argues that under our holding in Central Penn National Bank v. Williams, 362 Pa.Super. 229, 523 A.2d 1166 (1987), we must disregard those factual averments in the petition which Fink has denied in its answer. We agree that Central Penn requires us to disregard some of the factual averments set forth in the petition, as General Accident failed to prove the disputed facts through the taking of deposition testimony. In Central Penn, we held that where “the respondent effectively denies material allegations set forth in a petition to open, the petitioner must support its position with clear and convincing proof” by taking depositions on the disputed factual issues. Id., 362 Pa.Superior Ct. at 232, 523 A.2d at 1167, quoting Lazzarot ti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983). Where, as here, the petitioner orders the cause for argument without the taking of depositions, we must accept as true the facts pleaded in the respondent’s answer to the petition.

We note, however, that Fink admitted some of the factual averments set forth in General Accident’s petition, and on the basis of those admitted facts, read in light of our holding in Miller Block, we conclude that General Accident has sufficiently shown that the equities in this case require the opening of the default judgment.

The allegations set forth in the petition which were admitted by Fink, together with the docket entries, establish the following relevant information. The complaint was filed in the court of common pleas and mailed to General Accident on September 13,1989. Prior to the entry of appearance by counsel for General Accident, Fink’s attorney and General Accident agreed to extend the time in which to file an answer until October 31, 1989. Thus, General Accident was granted four extra weeks in which to file its answer, as under the rules of civil procedure, an answer must be filed within 20 days after service of the complaint. See Pa. R.C.P. 1026(a). General Accident failed to file an answer by October 31, 1989, and on November 1, 1989, Fink entered a default judgment against General Accident. The entry of the default judgment occurred without any prior notice to General Accident or to General Accident’s counsel. Despite a timely request, Fink has refused to strike the default judgment. General Accident filed its answer on November 3, 1989, three days after the date for filing set by the parties’ agreement.

In Miller Block, the parties agreed that the defendant Bank had an extension to file a responsive pleading by October 6,1987. On October 7,1987, one day after the date for filing had expired, default judgment was entered against the Bank. The Bank’s sole explanation for the default was lack of adequate notice of the plaintiff’s intent to take a default judgment. This Court noted that actual notice of the intent to take a default judgment was not necessary under the circumstances of the case; the Court reasoned that under Pa.R.C.P. 237.1, where a written agreement exists between the parties to extend the filing date, the usual requirement of Rule 237.1 that the party be given notice of the intent to file the default judgment at least 10 days prior to the date of the filing of the praecipe did not apply. However, although the Court in Miller Block noted that lack of adequate notice of the intent to take a default judgment, standing alone, was insufficient to warrant striking the judgment, the Court held that in view of all of the equities of the case, there was a reasonable excuse for the default. The Court relied on the fact that the plaintiffs, who were aware that the defendant Bank intended to defend against the claims asserted, entered a default judgment immediately upon the termination of the extension period. Id. 389 Pa.Super. at 472, 567 A.2d at 701.

As we perceive no substantial difference between the facts of this case and those posed by Miller Block, we also conclude that the equities here demand the opening of the judgment. Fink was well aware that General Accident intended to defend the case on the merits, as prior to filing of the complaint, General Accident had demanded proof of purchase of the allegedly stolen inventory, and had demanded that Fink comply with the appraisal provisions of the insurance contract. After service of the complaint, counsel for Fink and General Accident’s claims supervisor agreed to the extension of time in which to file the answer. In a letter confirming this agreement, the claims supervisor stated:

... We also need proof of purchase for this inventory claimed. Your client must keep records of place and date of purchase, this is important in properly evaluating this claim. As you are aware, the photocopies which are attached to this complaint are the first supportive doc-, uments which we have received concerning the inventory claim. We need better documentation and clearer copies.

Praecipe to Enter Judgment, Exhibit “A.” We also note that four months before the filing of the complaint, General Accident had issued a settlement draft to Fink in the amount of $14,548.85, representing General Accident’s estimate for the damage caused by the automobile accident. Fink apparently returned this draft to General Accident. As General Accident had made Fink well aware of the reasons for General Accident’s failure to honor the claim, we conclude that Fink knew that General Accident intended to defend the case on its merits. Nevertheless, Fink entered the default judgment immediately upon termination of the extension period, without notifying General Accident or its attorney that Fink was going to take a default judgment. In Miller Block, we held that the entry of a default judgment under these circumstances was a misuse of the default judgment procedure: “ ‘The rules permitting the entry of default judgments were designed to prevent a dilatory defendant from unreasonably thwarting plaintiff’s efforts to establish a claim. They were not intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation.’ ” Id., 389 Pa.Superior Ct. at 472, 567 A.2d at 701, quoting, Bildstein v. McGlinn, 320 Pa.Super. 416, 420, 467 A.2d 601, 603 (1983).

In consideration of the prejudice to the two sides, we find that the prejudice to General Accident in denying the petition to open outweighs the prejudice to Fink in granting the petition to open. The answer was filed three days after the agreed-upon date for the extension. Even before the filing of the answer, Fink was aware of General Accident’s defenses. We fail to perceive what, if any, prejudice will be suffered by Fink by the opening of the default judgment. On the other hand, General Accident will be greatly prejudiced by a denial of the opening of the default judgment, as General Accident will be denied any opportunity to proceed to a final resolution of the case on its merits; as noted above, General Accident has averred a meritorious defense to Fink’s claims.

In view of all of the circumstances of this case, including the three factors which we are to consider along with the prejudice to the parties, we conclude that the equities require opening of the default judgment and thus the trial court abused its discretion in denying General Accident’s petition to open or strike the default judgment.

Order reversed. Default judgment opened and case remanded for further proceedings. Jurisdiction is relinquished.

      . In a related appeal, General Accident challenges the trial court’s dismissal of the complaint filed against additional defendant, Gladys Wills, the driver of the automobile. See No. 02483 Philadelphia 1990.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    594 A.2d 349
    David McMAHON v. CARAVAN REFRIGERATED CARGO, INC. and Frances P. Teter and the Guaranty Insurance Guaranty Association. Appeal of PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION. David McMAHON, Appellant, v. CARAVAN REFRIGERATED CARGO, INC., Frances P. Teter and the Pennsylvania Insurance Guaranty Association.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1991.
    Filed July 12, 1991.
    Petition for Allowance of Appeal Denied Nov. 25, 1991.

      Lisa Luborsky, Philadelphia, for appellant (at 2167) and appellee (at 2168).
    James T. Vernile, Philadelphia, for appellant (at 2168) and appellee (at 2167).
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CAVANAUGH, Judge:

This dispute arises out of a traffic accident in which a tractor trailer owned by Caravan Refrigerated Inc. struck the automobile driven by David McMahon from behind. Mr. McMahon brought suit against the driver Frances Teter and Caravan seeking damages for his resultant injuries. Caravan’s insurer, Carriers Insurance Company, was subsequently adjudicated insolvent by the Iowa District Court of Polk County. Thereafter, Mr. McMahon and his wife sought relief through the Insurance Guaranty Associations of both Texas and Louisiana. Caravan was incorporated in Louisiana and its principal place of business is Texas. Louisiana refused to compensate the McMahons because it claimed Caravan was not a resident of that state. Texas rejected Mr. McMahon’s claim because the Texas Insurance Guaranty Association Act allows an offset for any insurance coverage—including Worker’s Compensation. The combined sum of Mr. McMahon’s uninsured motorist benefits and his projected worker’s compensation benefits exceeds the Texas statutory limit of $100,000. Mr. McMahon has filed suit in both Texas and Louisiana challenging the determinations of their respective insurance guaranty associations. He has brought this action after his claim submitted pursuant to the Pennsylvania Insurance Guaranty Association Act (the Act) was denied.

The parties stipulated that the damages suffered by Mr. McMahon were in excess of the $1,000,000 policy limit on the Carriers policy. Mrs. McMahon has received $100,000 from Texas (TIGA) for her loss of consortium claim. Mr. McMahon has received $40,000 in uninsured motorist benefits from his own insurer. The court below applied the $40,000 as an offset against the Pennsylvania statutory maximum recoverable and awarded Mr. McMahon $259,900. The court did not offset the award by the amount Mrs. McMahon recovered on her consortium claim. The parties have filed separate appeals. By stipulation, the Pennsylvania Insurance Guaranty Association (PIGA) is designated the appellant herein for procedural purposes.

The issues presented in these two appeals are the following: (1) Does the ACT require a claimant to obtain a final determination of his rights against another state’s Insurance Guaranty Association before being eligible for compensation by PIGA? (2) Does the Act require that any award to Mr. McMahon be offset by amounts received by his wife for loss of consortium? (3) Should this court reconsider Blackwell v. PIGA, 390 Pa.Super. 31, 567 A.2d 1103 (1989)? and (4) Are delay damages a proper remedy in this action?

Turning to the first issue, we agree with the trial court that the statute is clear: a claimant need not obtain a final adjudication of his claim against another state’s IGA as a prerequisite to obtaining benefits from PIGA. 40 Pa.S.A. § 1701.503(b) states:

Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured, except that if it is a first party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property. Any recovery under this act shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent. (emphasis added).

This is in contrast to § 503(a) which states:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy, (emphasis added).

As we said in Blackwell v. PIGA, 390 Pa.Super. 31, 567 A.2d 1103 (1989), “it is axiomatic that where the words of a statutory enactment are clear and unambiguous, courts must construe the statute according to its plain and obvious meaning.” (citations omitted). We hold that where a claimant pursues a claim against another state’s Insurance Guaranty Associations and has his claim rejected, he has satisfied his requirement by seeking recovery first from the other state’s association and he does not need to obtain a final adjudication on the claim. Mr. McMahon has sufficiently sought relief under the acts of Texas and Louisiana and therefore is entitled to relief under the Pennsylvania statute.

The next issue presented by appellant is the question of whether Mr. McMahon’s recovery is to be offset by his wife’s recovery for loss of consortium. Mrs. McMahon was paid $100,000 for her loss of consortium claim by the ancillary liquidator of Carriers in Texas. We hold that as Mrs. McMahon’s claim is separate and distinct from her husband’s, the amount recovered by her does not reduce her husband’s recovery under the act.

PIGA is charged with payment of “covered claims of an insolvent insurer.” A claim for loss of consortium, although it must be joined with the action for underlying damages, is a separate and distinct claim. Manzitti v. Amsler, 379 Pa.Super. 454, 550 A.2d 537 (1988), Butter more v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989). It has been stated that:

Injury to a wife, not resulting in death, confers upon her and her husband separate and distinct rights of action for which (when both are sued for) separate verdicts must be returned and separate judgments entered.

Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952). As Mrs. McMahon’s claim for loss of consortium was separate and distinct, the trial court was correct in deciding that any recovery by her husband under the Act is not subject to offset due to amounts paid to Mrs. McMahon.

Appellee relies on Vickodil v. PIGA, 356 Pa.Super. 325, 514 A.2d 635 (1986), alloc. den. 514 Pa. 639, 523 A.2d 346, and. argues that the consortium recovery from TIGA should reduce Mr. McMahon’s recovery from PIGA. We disagree. In Vickodil, this court held that while claims for loss of consortium are separate, the language of the policy in that case subjected both claims to the single person limit of liability. The policy subjected all damages whether direct or derivative to the single liability limit of the person suffering bodily injury. The court held that the terms of the policy determined the meaning of “covered claim” in the Act and if the claims were subject to the single person liability limit under the policy, they are subject to the single $299,900 statutory cap. As the instant insurance policy does not contain the Vickodil limiting language, that case is not dispositive here.

We are next invited by appellee to reconsider our holding in Blackwell v. PIGA, 390 Pa.Super. 31, 567 A.2d 1103 (1989), where we ruled that any uninsured motorist benefits recovered by a claimant were applied against the statutory maximum to reduce the amount recoverable. We see no reason to accept appellee’s invitation. The trial court properly subtracted Mr. McMahon’s uninsured motorist recovery from the $299,900 statutory cap.

Next, appellee asserts that he should be entitled to delay damages as his injuries are of the type typically justifying such damages. Rule 238 of the Pennsylvania Rules of Civil Procedure provides:

In a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages ...

As appellant points out this case is submitted on stipulated facts to determine the parties rights and obligations under the contract. The trial court concluded that this action did not allow for delay damages as it arose out of the contract between the insured and the insurer. We agree.

The original action was for bodily injuries suffered by appellee. A default judgment was taken by appellee there. This is a subsequent action submitted to the trial court on stipulations for the sole purpose of determining the parties rights under the contract and the statute. Thus, this action is distinguishable from one in which the insurer assumes the defense of a bodily injury action and refuses to settle. We conclude that this is not an action for bodily injury and therefor delay damages pursuant to Rule 238 are not proper.

Finally, relying on Verner v. Shaffer, 347 Pa.Super. 206, 500 A.2d 479 (1985), appellee requests this court to mold the verdict to include pre-judgment interest. However, appellant points out that the issue of pre-judgment interest was not raised in appellee’s post-trial motions. In Verner v. Shaffer, the issue had been raised below and was properly before the court on appeal. As appellee failed to raise the issue of pre-judgment interest before the trial court here, the issue is waived.

Judgment affirmed.

      . In reaching this conclusion we do not adopt the rationale of the trial court. The trial court reasoned that because the legislature used “amount payable," in § 1701.503(a) and "recovery” in § 1701.503(b) that the terms were intended to have distinct meanings. The court further concluded that since Blackwell restricted "amount payable” to the statutory cap, "amount recoverable" refers to the claimant's total damages. We do not share this view. We further note that under this rationale, any amount recovered from another state by Mr. McMahon would not be applied to offset the statutory limit $299,900. We think the Act is clear that any recovery elsewhere is to reduce the claimant’s recovery here.


author: TAMILIA, Judge:

text:
    594 A.2d 353
    Robert L. SANDERSON and Nola L. Sanderson, his Wife, Appellants, v. FRANK S. BRYAN, M.D., LTD.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed July 12, 1991.

      P. Daniel Altland, Harrisburg, for appellants.
    Charles E. Wasilefski, Harrisburg, for appellee.

      Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Robert L. Sanderson and Ñola L. Sanderson, his wife, take this appeal from the August 10, 1990, judgment in favor of appellee, Frank S. Bryan, M.D., against whom appellants had brought suit alleging medical malpractice and lack of informed consent.

In the spring of 1979 appellant/Robert, who suffered from back pain, was referred by his family physician to appellee, an orthopedic surgeon. When appellant’s back pain did not improve with conservative treatment, Dr. Bryan performed a laminectomy with disc removal on April 3, 1979. When appellant’s pain persisted, Dr. Bryan readmitted appellant on July 10, 1979, in order to ascertain the reason for appellant’s continued discomfort. The tests and examinations performed led to a second surgery on appellant/husband on July 26, 1979. He was discharged one month later. Appellant subsequently filed suit against appellee and the hospital where the treatment was rendered alleging Dr. Bryan was negligent in performing surgical procedures during both operations which exacerbated appellant’s physical problems. Appellants also argued Dr. Bryan did not obtain husband’s informed consent with respect to procedures performed during the July 26,1979, surgery. A jury found in favor of appellee on both counts, and appellants’ request for post-trial relief based solely on the informed consent issue was denied by Order dated July 5, 1990. Judgment was entered August 20, 1990, and this appeal followed.

Appellants contend the court erred by denying their motions for a new trial or a judgment n.o.v., arguing the verdict was contrary to the evidence in light of the fact there was no consent obtained for the nonemergency surgical procedures performed during the second operation. Specifically, appellants aver appellee performed two surgical procedures for which he did not obtain the patient’s specific consent either orally or in writing; intradural removal of adhesions and the intradural injection of Depo-Medrol. In addition, appellants allege Dr. Bryan failed to discuss with appellants the risks associated with either procedure. Appellants argues the only way for appellee to avoid liability is to prove either the surgery was performed in an emergency context, or that waiting to furnish the information in question to the patient before proceeding with the surgery would have had a serious adverse effect to the material detriment of husband’s health.

The sole duty of an appellate court upon an appeal from the trial court’s denial of a motion for judgment n.o.v. or a new trial is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference to be drawn from such evidence. Wenrick v. Schloemann-Siemag Aktiengesell-Schaft, 523 Pa. 1, 564 A.2d 1244 (1989). A judgment n.o.v. may only be entered in a clear case where the facts are such that no two reasonable persons could fail to agree the verdict is improper. Northwest Savings Assoc. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986).

Given this standard of review, our next consideration is the law of informed consent.

Consent to medical treatment is valid if: [T]he physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s, would deem significant in making a decision to undergo the recommended treatment ... the physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.

Moure v. Raeuchele, 387 Pa.Super. 127, 563 A.2d 1217 (1989), citing Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1979). In determining when a physician has breached his duty to his patient:

[t]he standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment. Festa v. Greenburg 354 Pa.Super. 346 [353], 511 A.2d 1371, 1375 (1986).

Moure, supra, citing Sagala v. Tavares, 367 Pa.Super. 573, 578, 533 A.2d 165, 167 (1987), alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1987).

Our prudent evaluation of the evidence necessitates a more thorough recitation of the testimony and facts than that set forth above. The preoperative plan for the July 26, 1979, surgery was to perform a decompression laminectomy and possible spinal fusion. Dr. Bryan testified he personally discussed this surgical plan and the attendant risks with the appellants and obtained their written authorization for the proposed procedures. Appellee testified the possible risks and complications that generally exist with regard to back surgery were included in the permit signed by appellants for the first surgery, and were discussed with appellants again prior to the second operation. The appellants both testified they were aware the same or similar risks as those encountered in the first operation also existed with regard to the second surgery (T.T. at 93-95, 142). As to reason for the second surgery and any proposed preoperative plan, appellant wife testified it was her understanding Dr. Bryan “hadn’t gone far enough up in the spine. He was going to do that. He was going to remove scar tissue, any adhesions.” (T.T., 4/18/90, p. 141.) Appellant husband testified likewise (Id. at 98-99).

Dr. Bryan testified that while husband was under anesthesia, he encountered significant scar tissue which was adherent to the dura and required dissection from both the dura and the nerve roots. Concededly, appellee could have decided to terminate the surgical procedure, wait until husband recovered from the anesthesia, discuss the problem encountered, and then re-operate to correct the condition. Dr. Bryan, however, decided the best course of action for his patient, the appellant, was to open the dura, lyse the adhesions and, in order to prevent inflammation, inject Depo-Medrol to prevent further scarring and adhesions within the dura. Appellee testified the procedure’s success rate was fifty per cent, but the operation’s success rate had the adhesions been left in place was zero. Dr. Bryan testified had he not performed the aforementioned procedures, husband’s symptoms would have been the same or worse than before the operation.

As noted in the trial court Opinion, appellants made no objection to the court’s charge on informed consent which was in conformity with the definition of informed consent provided in the Definitions section of Title 40, Insurance:

“Informed consent” ... That prior to the consent having been given, the physician ... has informed the patient of the nature of the proposed procedure or treatment and of those risks and alternatives to treatment or diagnosis that a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis. No physician ... shall be liable for a failure to obtain an informed consent in the event of an emergency which prevents consulting the patient. No physician ... shall be liable for failure to obtain an informed consent if it is established by a preponderance of the evidence that furnishing the information in question to the patient would have resulted in a seriously adverse effect on the patient or on the therapeutic process to the material detriment of the patient’s health.

40 P.S. § 1301.103 (emphasis added). When faced with the issue whether appellee erred by performing the objected to surgical procedures without appellant/Robert’s specific consent, the jury apparently decided terminating the operation without freeing the adhesions would have resulted in his symptoms becoming worse. Accordingly, we find the evidence supported the jury’s finding that terminating the operation and waiting until appellants’ express consent for the particular procedures coulc 3 obtained would have had a seriously adverse effect on h; band to the material detriment of his health.

Appellants rely heavily on the holding in Moure, supra. We find, however, the facts in Moure to be distinguishable from those presently before this Court. The plaintiff/appellant in Moure consented only to exploratory or diagnostic surgery and the physician took it upon himself to perform corrective surgery. Here, appellants had agreed to corrective, surgery, not merely an exploratory operation, and the appellee acted in his patient’s best interests. We find not all exigencies can be predicted or discussed prior to an operation and doctors must be permitted to exercise sound medical judgment in dealing with these contingencies. To do otherwise would increase the danger to the patient.

For the foregoing reasons we find the trial court properly denied appellants’ motions for judgment n.o.v. or new trial.

Judgment affirmed.

      . Appellant's suit against Carlisle Hospital was discontinued by Order dáted April 5, 1990.


text:
    594 A.2d 356
    ATLANTIC FINANCIAL FEDERAL v. ORIANNA HISTORIC ASSOCIATES, a Pennsylvania Limited Partnership, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1991.
    Filed July 15, 1991.

      Daniel J. Dugan, Philadelphia, for appellant.
    William J. MacDermott, Philadelphia, for appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order granting appellee’s motion for summary judgment in a case involving foreclosure of twelve mortgages.

Appellant is the developer of two condominium projects in the city of Philadelphia, known respectively as Smythe’s Store, which involved twelve mortgages, and Smythe’s corner, involving thirty mortgages. Both projects were financed by appellee. In October of 1989, appellee filed complaints in mortgage foreclosure on the Smythe’s Store project, asserting default, and these claims were consolidated for trial with foreclosure actions filed in July and August of 1990 as to the remaining thirty mortgages. In its Answer and New Matter, appellant denied being in default, and posited the existence of an agreement by appellee to forbear from instituting the foreclosure actions. Appellee denied that such an agreement had been made, and successfully moved for summary judgment. This appeal followed.

Prior to addressing the two issues raised by appellant, we reiterate the standard to be applied where the grant of summary judgment has been challenged.

We will uphold a grant of summary judgment only in those cases in which the pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). In reviewing a grant of summary judgment, we accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985).

Rosen v. Tessoro Petroleum Corporation, 399 Pa.Super. 226, 228-29, 582 A.2d 27, 28-29 (1990).

Appellant first argues that summary judgment was improperly granted because there existed a genuine issue of material fact as to the agreement to forbear, and because appellant had had no opportunity for discovery. However, deposition testimony of Scott Schaeffer, appellant’s representative, revealed that in fact appellant was in default, and that the putative agreement to refrain from foreclosure was not in writing. Moreover, appellee’s representative denied all knowledge of any such contract.

On the basis of the evidence presented, the agreement was found by the trial court, citing Eastgate Enterprises, Inc. v. Bank and Trust Company of Old York Road, 236 Pa.Super. 503, 345 A.2d 279 (1975), to be subject to the Statute of Frauds.

In the present case, the alleged oral agreement not to foreclose was between the mortgagor and mortgagee. As between these parties, the mortgage represented an interest in land. The agreement not to foreclose was therefore an agreement to surrender an interest in land. As such, the agreement was within the Statute of Frauds.

Id. 236 Pa.Superior Ct. at 508, 345 A.2d at 281. See also, Warden v. Zanella, 283 Pa.Super. 137, 423 A.2d 1026 (1980).

As the trial court pointed out,
[T]he only evidence proffered by defendants to establish the existence of an agreement to forbear foreclosure proceeding is a letter written two weeks after commencement of the instant action which purports to set forth defendant’s “understanding” that an enclosed check “will cause the suits between Atlantic Financial Federal and Orianna Historic Associates to be dismissed.”
This unilateral letter confirming an “understanding” which was not replied to, enclosing a check that was not negotiated is insufficient to satisfy the requirements of the Statute of Frauds.

Trial Court Opinion at 4.

Therefore, appellant’s contention that there was an issue of triable fact concerning the agreement to forbear was properly disposed of. Appellant’s unsupported, and related assertion that it was denied the opportunity for discovery is similarly meritless, as any evidence of the existence of the oral agreement would have been inadmissible under the parol evidence rule. Warden v. Zanella, supra.

Next, appellant argues that the applicability of the Statute of Frauds is itself a matter of factual dispute, rendering improper the grant of summary judgment. Citing Eastgate, supra, for the proposition that “Specific evidence that would make recission of an oral contract inequitable and unjust will take the contract out of the Statute of Frauds,” Id. 236 Pa.Super. at 506, 345 A.2d at 280, appellant argues that just such evidence exists in the instant case. As examples, appellant points to its course of dealing with appellee, its decision not to pursue legal remedies on its own behalf, and undocumented statements of appellee’s representative as proof that the Statute should not be applied. However, none of these is persuasive, as appellant’s course of dealing has led to foreclosure, the availability of legal recourse to a mortgagor in appellant’s position is doubtful, and its proof of any forbearance agreement is non-existent.

Further, appellant fails to include in its assertion that the putative contract here considered is not governed by the Statute for the reasons given by the Eastgate rule: to “reduce[s] the chances of fraud and perjury.” Id. Neither of these has been alleged herein. What is involved is appellant’s admitted failure to pay what was due and owing appellee under the terms of a mortgage. No written alterations to this document are even alleged to exist—appellant merely depends upon a unilateral expression of understanding. Given these circumstances, we find no error in the court’s determination that appellee’s motion for summary judgment should be granted.

Judgment affirmed.

      . The actions as to these mortgages are still before the trial court, and are not included in the instant appeal.

      . 33 P.S. § 1 et seq., provides that "no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in to or out of any messuages, manors, lands, tenements or herditaments shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law.”


text:
    594 A.2d 358
    COMMONWEALTH of Pennsylvania v. Scott A. KEPHART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 11, 1991.
    Filed July 15, 1991.

      F. Cortez Bell III, Clearfield, for appellant.
    Ray F. Gricar, Dist. Atty., Bellefonte, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and CERCONE, JJ.
   CAVANAUGH, Judge:

Appellant was involved in a fatal single vehicle accident in which his auto failed to stop at a “T” intersection. The car struck an embankment and overturned and the decedent was trapped between the roof and steering wheel of the auto. Appellant was charged as the operator of the vehicle with involuntary manslaughter, homicide by vehicle, homicide by vehicle DUI related, DUI, and driving at an unsafe speed. He entered a guilty plea to DUI, driving at an unsafe speed and homicide by vehicle (non-DUI related). The remaining charges were withdrawn. After being sentenced to consecutive terms of two and one-half years to five years for homicide by vehicle and six months to twelve months for driving under the influence, appellant sought to withdraw his guilty plea or, in the alternative, to have his sentence reduced. After the court denied his post-sentence motions, he took the instant appeal. Because we find no abuse of discretion, and no manifest injustice as a result of the guilty plea, the court’s denial of appellant’s motion to withdraw is affirmed. Because we find that the court did not properly consider the sentencing guidelines, the sentence is vacated in part and we remand for resentencing.

Initially, appellant contends that the lower court erred in denying his motion to withdraw his guilty plea. The burden placed on defendant in such a motion increases significantly after sentencing.

“In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in manifest injustice to the defendant. Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984). A defendant who attempts to withdraw a guilty plea after sentencing must carry the substantial burden of showing manifest injustice which is imposed in recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).”

Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). A demonstration of manifest injustice requires a showing that the plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982). When determining whether such a showing has been made, this court must look to the totality of the circumstances attendant on the entry of the plea. Commonwealth v. Shaffer, supra.

Appellant asserts that he should be permitted to withdraw his guilty plea in light of new evidence that supports his averment that the decedent was driving at the time of the accident. Appellant asserts that a woman witnessed the car being driven by the decedent just prior to the accident and that the Commonwealth had this evidence and did not turn it over to appellant. Appellant argues that this requires reversal pursuant to Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (The prosecutor has the duty to provide the defendant with any exculpatory evidence in his possession). We disagree. At the sentencing hearing, the witness stated that she saw two males in the car and that one of them was bearded. However, the witness testified that she could not determine whether the bearded male was the driver or the passenger. She further stated that she never told the police investigator that the bearded male was driving. In addition, the police investigator testified that his notes from interviewing the witness contained no reference to any statement regarding the identity of the driver. Based on this testimony, appellant’s Brady argument fails for two reasons; first, the testimony does not amount to exculpatory evidence and second, the Commonwealth had no reason to believe that the witness’s statement was exculpatory. After reviewing the record as a whole, we conclude that a manifest injustice does not result from the denial of appellant’s motion to withdraw his guilty plea.

Appellant next argues that the Commonwealth misled the court in stating that the alcohol content of appellant’s blood was higher than it in fact was. Appellant asserts “the facts of the instant case quite clearly establish that although the serum alcohol level of appellant was a .195, that the whole blood reading was a .161%.” There is absolutely no evidence in the record to support his assertion. Nowhere in the record is there any evidence that the whole blood reading was .161%. Without more, we cannot find that the court was misled. Additionally, Commonwealth v. Bullock, 359 Pa.Super. 150, 518 A.2d 824 (1986), relied upon by appellant, undermines his argument. In Bullock, the court found that use of the serum alcohol level was a proper test of alcohol by weight in blood, as required by 75 Pa.C.S.A. § 1547. Additionally, we note that in Bullock the defendant had presented expert testimony which explained the difference between the serum alcohol level tested and the whole blood alcohol content. There is no such testimony here. Finally, we note that appellant did not object to the alleged misleading statements made by the Commonwealth and therefore, waived this issue..

In issues 2 and 4 of his brief, appellant challenges the discretionary aspects of sentencing. We note that appellant failed to include a concise statement of the matters complained of setting forth a substantial question that the sentencing guidelines have been compromised as required by Pa.R.App.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Such failure precludes our review if the Commonwealth objects. However, in the instant case the Commonwealth failed to file a brief so the defect is effectively waived. Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989), Commonwealth v. Billett, 370 Pa.Super. 125, 535 A.2d 1182 (1988).

Appellant challenges his sentence for homicide by vehicle stating that the court did not sufficiently state its reasons on the record for deviating from the guidelines. We agree. This court has held that where a trial court imposes a sentence which is outside the guidelines, it must, at a minimum, state the permissible ranges of sentences under the guidelines and its specific reasons for deviating from the sentencing range. Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) aff'd, 522 Pa. 153, 560 A.2d 148 (1989).

Turning to the transcript from the sentencing hearing, the court stated:

It is my duty to state the reasons for my sentence. The sentence imposed should call for the minimum amount of confinement consistent with the protection of the public, gravity of the offense, and the rehabilitative needs of the defendant.
I have read the pre-sentence report and incorporate the same into the record as part of the reasons for my sentences in your case. I have considered statements made by your counsel, circumstances of the offense, your education, character, background, the other circumstances surrounding this, statements not only of your friends and relatives, but also of the victim. I have considered probation and rejected the same because I believe particularly all of the education and media coverage on drinking and driving that you knew or should have known that your actions could have caused serious harm or death to almost anyone on the highways; you were not acting under any strong provocation; the victim was not doing anything to induce or facilitate the commission of this crime; that you have not been able to compensate, nor will you ever be able to compensate, the victim for death and his injuries received in the accident. I have considered probation without verdict and have rejected the same for the above stated reasons. I have chosen total confinement as it is in keeping with the spirit of the law that was passed for driving under the influence homicides, and also because it falls within that mandatory law, although these are two separate actions.

Appellant's counsel argued that the recommended sentence under the guidelines would be zero to twelve months under the standard range, twelve to eighteen months under the aggravated range, and non-confinement under the mitigated range. The Commonwealth argued that although the homicide by vehicle—DUI related—had been withdrawn, that the court could sentence appellant to the same term as the withdrawn charge required. This the court did. Though the court noted that it had read the pre-sentence report, there is no indication that the court considered the guidelines at all.

The sentencing guidelines require the court to provide a “contemporaneous written statement of the reason or reasons” for deviating from the guidelines. 204 Pa.Code § 303.1(h) (1989). This requirement is satisfied when the sentencing judge states the reasons for his actions on the record and in the defendant’s presence. Commonwealth v. Smith, 369 Pa.Super. 1, 534 A.2d 836 (1987). Such an explanation was given on the record here.

In a recent case, this court vacated a sentence and remanded for resentencing because the sentencing court “neither advised appellant of the particular guideline ranges, nor stated its reasons for deviating from those guidelines.” Commonwealth v. Rich, 392 Pa.Super. 380, 386, 572 A.2d 1283, 1286 (1990). In that case this court noted that the rationale underlying the Supreme Court decision in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), did not apply. In doing so the court stated:

The “contemporaneous written statement” requirement applicable when a sentence deviates from the guidelines is distinguishable from the general requirement in both Superior Court case law and § 9721(b) that the record contain the reasons for any sentence imposed for a felony or misdemeanor. Thus the rationale underlying our Supreme Court’s decision in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), ... is inapplicable in this case.

Rich, 392 Pa.Super. at 384, n. 5, 572 A.2d at 1285 n. 5. In a more recent case, this court stated:

While we may affirm a sentence that is outside the guidelines provided it is reasonable, it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside them. Instantly we find that the lower court did not first correctly determine the appropriate sentence under the guidelines. Accordingly, we need not comment upon whether the reasons given by the trial court support its sentencing decision.

Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991) (citations omitted). In both cases, a pre-sentence report had been prepared but the court did not refer to the guidelines at sentencing. We found this improper and remanded. In Brown we stated:

If, upon remand, the court finds it appropriate to deviate from the proper sentencing range, it may do so by placing sufficient reasons on the record, subject to later review by this court.

Id., 402 Pa.Superior Ct. at 372, 587 A.2d at 8.

In this case, a pre-sentence report was prepared and considered by the court. However, the court failed to indicate what the recommended sentence under the guidelines would be. Instead, the court imposed a sentence “in keeping with the spirit of the law that was passed for driving under the influence homicides.” Though the facts may have supported a conviction for that offense, the Commonwealth had just withdrawn this charge in exchange for the guilty plea to homicide by vehicle (non-DUI related). There is no indication that the court identified the correct starting point under the guidelines for the offense charged. Therefore, as we did in Brown, we must do here; we vacate the sentence for homicide by vehicle and remand for resentencing. The sentence is affirmed with respect to all other counts.

For the above reasons, the judgment of sentence is vacated with respect to the homicide by vehicle offense and affirmed for DUI and driving at an unsafe speed; the case is remanded for resentencing on homicide by vehicle.

      . Appellant told the investigating officer on the scene that he was driving the car. In addition, appellant was seen driving the car moments before the accident occurred.

      . Appellant has no recollection of the time period just before the accident and now asserts that new evidence proves that the decedent was driving.

      . At the time of the accident the decedent was bearded and appellant was not.

      . It is always regrettable when the Commonwealth fails to provide us with a brief. It is particularly regrettable in a case such as this where we do not have the benefit of the Commonwealth’s explanation for adopting this position on sentencing.

      . We note in the transcript of the sentencing hearing, appellant’s counsel informs the court of an error in the "copy of the sentencing guidelines form from the Probation Department ... [The Department] carried the mandatory sentencing provisions of a DUI homicide by vehicle in [the form].” There is no indication in the record that the suggested corrections in the form had been made. As the court did not recite what the recommended sentence would be under the guidelines, we have no means of ascertaining whether the court used the proper starting point in this case.


text:
    594 A.2d 362
    CHER-ROB, INC., t/a Wertheimer Monuments v. ART MONUMENT CO., and B. Reibstein Monument Co. a/k/a B. Reibstein Memorials, Appellants.
    Superior Court of Pennsylvania.
    Argued June 13, 1991.
    Filed July 17, 1991.

      Barry M. Rothman, Philadelphia, for appellants.
    Linda s. Rosenblatt, Philadelphia, for appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   MONTEMURO, Judge:

Defendants-appellants, Art Monument Company and B. Reibstein Monument Co., appeal from an order awarding plaintiff-appellee, Cher-Rob, Inc. t/a Wertheimer Monuments, counsel fees and costs. We reverse.

Plaintiff and defendants are engaged in the business of providing cemetery monuments and memorials. Plaintiff brought this action in equity, alleging that defendants unlawfully distributed advertising brochures containing photographs of gravesite monuments. Some of the monuments depicted in the advertisements were produced and manufactured by plaintiff. Following a hearing, the parties entered into a consent decree placed in the form of a court order enjoining defendants “from publishing and distributing, or causing to be published and distributed any form of advertisement in which pictures of monuments produced and manufactured by Plaintiff are illustrated.” Order, November 19, 1990. The order also prohibited the defendants from publishing any advertisement containing the name of Wertheimer Monuments in any language, particularly Hebrew or Yiddish.

After briefing of the issue by the parties, the trial court awarded counsel fees to the plaintiff in the amount of $1,000.00 and costs in the amount of $150.00. Defendants brought this timely appeal.

The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of parties, or some other recognized exception. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975); Shapiro v. Magaziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965).

Mantell v. Mantell, 384 Pa.Super. 475, 488, 559 A.2d 535, 542 (1989). The trial court found authority for its award of counsel fees and costs in 42 Pa.C.S.A. § 2503, as interpreted in the case of Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983). The relevant provisions of § 2503 provide:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
******
(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.
******
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith ...

42 Pa.C.S.A. §§ 2503(7); 2503(9) (emphasis added).

Both § 2503(7) and § 2503(9) have been interpreted to apply to conduct of a party in commencing a proceeding or conduct during the pendency of an action. In McGarry v. Broadmoor Custom Homes, Inc., 387 Pa.Super. 43, 563 A.2d 934 (1989), this Court held that given the plain language of the statute, § 2503(7) applied only to dilatory acts occurring after the lawsuit is instituted, and therefore vacated the award of counsel fees which was premised on the defendants pre-litigation failure to respond to a request to arbitrate. See also White v. Redevelopment Authority, 69 Pa.Cmwlth. 307, 451 A.2d 17 (1982).

Our review of judicial interpretation of § 2503(9) also reveals that this statutory exception to the general rule applies to bad faith conduct related to the institution of the suit or occurring after the commencement of the suit. In Brenckle v. Arblaster, supra, this Court upheld an award of counsel fees where the appellants had delayed the resolution of the case by refusing to sign important documents at the last minute, asserting frivolous justifications for their behavior, and defying a court order to sign a deed. The Court held that the conduct of the appellants supported the trial court’s finding of “bad faith obstruction of a series of court orders,” and therefore justified the award of counsel fees. Brenckle, supra, 320 Pa.Superior Ct. at 95, 466 A.2d at 1079. Thus, the bad faith conduct occurred during the pendency of the litigation. In In re Estate of Roos, 305 Pa.Super. 86, 451 A.2d 255 (1982), the Court upheld an award of counsel fees in favor of a defendant where the plaintiff had brought an appeal from probate, alleging wrongdoings and improprieties on the part of the defendant in his role as the scrivener of the will of plaintiff’s mother. Plaintiff later dropped defendant from her appeal. Upon proof that plaintiff’s conduct was arbitrary and vexatious in commencing the lawsuit, the trial court awarded counsel fees to defendant; this award was upheld on appeal. Id., 305 Pa.Superior Ct. at 94, 451 A.2d at 259. See also Martin v. Martin, 386 Pa.Super. 328, 562 A.2d 1389 (1989), allocatur den’d. 524 Pa. 629, 574 A.2d 70(1990) (trial court has power pursuant to § 2503(9) to award counsel fees where frequent custody modification petitions are filed in bad faith to harass and annoy); Santilo v. Robinson, 383 Pa.Super. 604, 557 A.2d 416 (1989) (trial court did not err in denying claim for counsel fees pursuant to § 2503(9) where plaintiff dropped defendant from lawsuit after discovery, and record did not show that plaintiff acted in an arbitrary or vexatious manner or in bad faith in commencing the suit); Jackson v. Modern Mailers, Inc., 371 Pa.Super. 178, 537 A.2d 878 (1988) (court awarded counsel fees incurred on appeal where legal issue presented on appeal was well-settled and therefore appeal was frivolous). The common thread in all of these cases is that counsel fees are recoverable for conduct occurring after the litigation has begun. In White, supra, the Commonwealth Court interpreted the language of § 2503(9) which reads “conduct of another party in commencing the matter or otherwise” to refer to the initiation of an action or a party’s conduct in raising defenses. 69 Pa.Cmwlth. at 314, 451 A.2d at 20. We find that this interpretation is reasonable, as the statute sets forth an exception to the common law rule and therefore is intended to be interpreted narrowly.

In support of its award of counsel fees in this case, the court stated that defendants

1. Misappropriated the trademark and property of the plaintiff.
2. Failed to desist from same when requested to do so by the plaintiff.
3. Fraudulently misused the work product of the plaintiff, claiming it as their own.
4. Acted in bad faith regarding its use of plaintiff’s work product.

Trial Court Opinion, January 15, 1991 at 1-2. The court further noted that the acts of defendants “import insult, bad faith, and outrage and appear to have been committed in contempt of plaintiffs rights.” Id. at 2. In essence, the award of counsel fees rested on the fact that the plaintiffs proved their case on the merits at the hearing. Importantly, the defendants did nothing during the pendency of the action to delay its ultimate resolution or to obstruct justice. In fact, the record reveals that the complaint was filed on October 22, 1990, a temporary restraining order was granted on that same date, and a hearing was held three days later on October 25, 1990, during which the parties reached a settlement agreement, leaving open the question of counsel fees. On November 28,1990, the court entered its order of November 21, 1990 awarding counsel fees to plaintiff. Thus, the case was resolved in roughly a month. The fact that plaintiffs succeeded in the case does not warrant an award of counsel fees. We find that the trial court erred in holding that counsel fees were warranted under § 2503.

There is no statutory or contractual basis to support the trial court’s award of counsel fees; nor does this case fall within any other exception to the general rule that attorney’s fees are not recoverable. We therefore conclude that the trial court abused its discretion in granting the award of counsel fees and costs. We reverse the order of the trial court and vacate the award of counsel fees.

Reversed and vacated.


author: OLSZEWSKI, Judge:

text:
    594 A.2d 365
    Mary Ann CLAYTON and Robert G. Clayton, Her Husband, Appellants, v. George SABEH, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued June 4, 1991.
    Decided July 17, 1991.
    Petition for Allowance of Appeal Denied Dec. 13, 1991.

      Harry S. Cohen, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for appellee.
    Before OLSZEWSKI, HUDOCK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying a post-trial motion requesting a new trial. Mary Ann Clayton, now deceased, and her husband, Robert Clayton, brought suit against Doctor George Sabeh, alleging that Dr. Sabeh’s failure to order breast cancer screening procedures resulted in delay in diagnosing Mrs. Clayton’s cancer, thereby increasing the risk that the cancer would prove fatal. Following trial, the jury returned a verdict in favor of Sabeh. Timely post-trial motions were filed and denied. This appeal followed.

On appeal, the Claytons argue that the trial court’s charge to the jury was inherently contradictory and confused the jury, which, they contend, rendered an inconsistent verdict. Having reviewed the charge complained of and the applicable law, we find no error and so affirm the trial court’s order.

The evidence which bears on the issue appealed may be summarized as follows. The Claytons presented expert testimony that Dr. Sabeh’s failure to perform a breast cancer screening procedure upon Mrs. Clayton increased her risk of allowing such a cancer to go untreated. (Reproduced Record [R.R]. at 37a.) Further, that given early detection, Mrs. Clayton had a reasonable chance of surviving breast cancer. (R.R. at 21-23a.) The Claytons admit that Dr. Sabeh presented expert testimony that Mrs. Clayton would have died of the cancer even if the breast cancer screening procedure advocated by the Claytons’ expert had been performed. (Appellants’ brief at 6.) It is undisputed that Mrs. Clayton died as a result of a breast cancer which metastasized to her spine.

Initially, we note our role when examining a challenge to the trial court’s charge to the jury. Alleged errors in jury instructions must be considered in relation to the entire charge and in light of the evidence presented. Brennan v. St. Luke’s Hospital, 446 Pa. 339, 344, 285 A.2d 471, 474 (1971) (citation omitted); Albert v. Albert, 252 Pa.Super. 203, 216, 381 A.2d 459, 466 (1977) (citations omitted). If the charge has a tendency to mislead or confuse rather than clarify a material issue, a new trial is indicated. Glider et ux v. Commonwealth Dept. of Highways, 435 Pa. 140, 151, 255 A.2d 542, 547 (1969) (citation omitted). The trial court has a responsibility to charge on all relevant issues. Berry v. Friday, 324 Pa.Super. 499, 504, 472 A.2d 191, 193 (1984) (citations omitted). With these standards in mind, we examine the Claytons’ claim.

While charging the jury, the trial court delivered Pennsylvania Suggested Standard Jury Instruction 10.03B(Civ), which reads as follows:

The defendant-physician, such as Dr. Sabeh, is legally responsible or liable for the injuries suffered by his patient if the defendant’s negligent conduct is a legal cause of those injuries. In order for the negligent conduct to be a legal cause, that conduct must have been a substantial factor in bringing about the injuries in question. If the injuries in question would have been sustained even if the physician had not been negligent, then the negligent conduct of the defendant physician would not be a substantial factor in causing the injuries in question.
Stated differently, the negligent conduct of the defendant physician is a substantial factor in causing his patient’s injuries if the injuries would not have been sustained, had the physician not acted in a negligent manner.
When a defendant physician, such as Dr. Sabeh, negligently fails to act or negligently delays in employing indicated diagnostic or therapeutic measures and his negligence is a substantial contributing factor in causing injuries to his patient, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented his injuries in question. If a defendant-physician’s negligent action or inaction has effectively terminated his patient’s chances of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of avoiding injuries and the defendant has destroyed that possibility, he is liable to the plaintiff. A causal connection between the injuries suffered and the defendant’s failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the defendant’s negligent conduct. The law recognizes that it is rarely possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.

(Trial transcript [T.T.] at 474-76.) During deliberations, the jury requested clarification on the issue of professional causation. The trial court repeated the above-listed charge. (T.T. at 525-26.)

The Claytons complain that subsection (b) of the suggested instruction given (the third paragraph recited above) is meant to apply to a different factual situation from that which requires subsection (a) (the first two paragraphs recited above). Thus, the Claytons conclude that it was erroneous for the trial court to include both subsections in its charge. We do not agree.

The essence of the Claytons’ argument is that once evidence has been presented establishing conduct by a defendant-physician which increased a risk of a specific harm to the patient-plaintiff along with evidence indicating that the specific harm did in fact occur, causation has been proven. This position overlooks one key element of the increased risk line of cases. Those cases allow a jury to find that the conduct which gave rise to an increased risk was the legal cause of a plaintiff-patient’s injuries, but they do not require the jury to do so. Once a plaintiff has established conduct giving rise to an increased risk of harm, “such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.” Hamil v. Bashline, 481 Pa. 256, 272, 392 A.2d 1280, 1288 (1978). “[I]t becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.” Id., 481 Pa. at 269, 392 A.2d at 1286. The evidence of increased risk merely makes out a prima facie case of liability. Id., 481 Pa. at 273-74, 392 A.2d at 1289.

Our Supreme Court’s latest pronouncement in this area reaffirms the requirement that the jury must find the increased risk to be a substantial factor in the resultant harm before liability attaches:

[Ojnce a patient-plaintiff shows that a physician-defendant’s negligence increased the risk of harm and that harm actually occurred, sufficient evidence has been offered to submit the case to a jury. The jury must then decide whether the increased risk is a substantial factor contributing to the injuries sustained.

Mitzelfelt v. Kamrin, 526 Pa. 54, 63, n. 1, 584 A.2d 888, 892, n. 1 (1990) (citation omitted).

In light of the current state of the law in this area, it is clear that the trial court’s charge was not erroneous. The portion of the charge complained of explained what is and is not a substantial factor. The answer to the verdict interrogatories establishes that the jury found an increased risk brought about by Dr. Sabeh’s conduct. Nonetheless, the jury was still required to determine whether such an increased risk was a substantial factor in Mrs. Clayton’s death. Bashline, supra. Thus, the instruction explaining how the jury was to reach this determination was proper. The trial court’s apt analogy is directly on point:

Best understood as distinct determinations working together toward a single conclusion, the elements of proof envisioned by Hamil, and discussed in the charge of this Court, are in no way contradictory. One measure exists to define the standard of causation as a “burden of proof” while the second defines the quality of evidence required to meet it as a “burden of production.” Like little more than a description in a cookbook, the first part tells what it is and how to make it, while the second lists the ingredients.

(Trial court opinion at 6, emphasis in original.) The Honorable Livingstone M. Johnson correctly noted that, “the charge at issue reflected the holding of Hamil in relaxing the Plaintiffs burden to produce evidence of medical certainty, while at the same time assuring the requisites of causation were still observed.” Id., at 7.

The charge at issue was especially appropriate in light of the evidence presented by Dr. Sabeh. That expert testimony stated that Mrs. Clayton’s death would have occurred despite any testing ordered by Dr. Sabeh. Thus, Dr. Sabeh presented a defense to the increased risk theory specifically contemplated in Hamil. “[D]efendanf s failure to provide adequate treatment to [patient-plaintiff] was a substantial factor in bringing about his demise and thus defendant is liable unless it can be shown that death would have resulted regardless of the action or inaction of defendant.” Hamil, supra, 481 Pa. at 268, 392 A.2d at 1286 (some emphasis added). Thus the evidence clearly put at issue whether the increased risk brought about by Dr. Sabeh’s failure to test was a substantial factor in causing Mrs. Clayton’s death. As noted above, a trial court has a duty to charge a jury on all relevant issues. Thus, it was not error for the trial court to deliver the instruction defining how the jury was to determine whether Dr. Sabeh’s omission was a substantial factor in causing Mrs. Clayton’s death.

Judgment affirmed.


author: FORD ELLIOTT, Judge:

text:
    594 A.2d 368
    INDIANA COBRA, INC., a Pennsylvania Corporation v. UNITED FOOD AND COMMERCIAL WORKERS LOCAL NO. 23, on Behalf of Itself and All of its Members and Employees, and Individually Carl Huber, President of Local Union No. 23 of United Food & Commercial Worker, Individually on Behalf of Local Union No. 23, and James Bono, Secretary-Treasurer of Local Union No. 23 of United Food & Commercial Workers, Individually and on Behalf of Local Union No. 23, and all of its Members and Employees Individually, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1991.
    Decided July 19, 1991.

      Richard D. Gilardi, Pittsburgh, for appellants.
    Scott Livingston, Pittsburgh, for appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order entered July 18, 1990, in the Court of Common Pleas of Indiana County which granted appellee’s motion for a preliminary injunction.

On appeal, appellant raises the following issues:

1. Whether the Labor Anti-Injunction Act applies in a case involving a labor dispute where peaceful informational picketing did not result in a seizure of [appellee’s] property?
2. Whether the [trial] court erred in granting an injunction which limited informational picketing in a labor dispute without finding that each of the prerequisites for injunctive relief set forth in the Labor Anti-Injunction Act had been proved?
3. Whether [appellants] are entitled to attorney’s fees, costs and expenses under the Labor Anti-Injunction Act where the [trial] court improvidently granted an injunction?

Appellant’s Brief at 5. For the reasons which follow, we reverse the order of the trial court.

The trial court provided the following summary of the facts:

[Appellee] is the owner and operator of a Giant Eagle supermarket located at the corner of South Seventh Street and Locust Street in the Second Ward of the Borough of Indiana, Indiana County, Pennsylvania. Giant Eagle has operated in this location for several years and within the past year or two, the size of the store has expanded. There are two entrances to the parking lot and two exits, one from Seventh Street and the other from Locust Street. There is only one entrance and one exit from the store and they are side by side. There is a partially enclosed veranda at the entrance and exit from the store which causes the space before the entrance and exit to be quite'narrow. It is also not in dispute that the employees of Giant Eagle are non-union.
In June of 1990, pickets from [appellant] began appearing at the location of the supermarket apparently to pass out leaflets and to advertise that [appellee] is a non-union store.
The only testimony introduced at the hearing was that produced by [appellee]. The testimony indicated that as many as 10 or 12 pickets would show up at [appellee’s] premises. They would block the exit from the store by turning their backs, thereby compelling customers to either push through them or to walk on the road (Seventh Street) which is a busy thoroughfare. There was testimony that the carryout boys had to go out on the street and those pushing carts also had to walk on the street to avoid physical confrontation with the pickets. There was testimony that on at least one occasion, a customer pushing his wife in a wheelchair was blocked in such a way that he could not get his wife to the store nor return her to his car. There was testimony that the pickets used threatening language and gestures toward customers and employees when the pickets appeared in such numbers.

Trial Court Opinion at 1-2. After hearing all of the testimony, the trial court stated that it “was of the opinion that there was danger of public disorder, irreparable harm and an attempt, through coercion and intimidation, to seize appellee’s property.” Id. at 3. The trial court stated that it did not believe that there need be bloodshed prior to granting a preliminary injunction.

The trial court then issued an order limiting the number of pickets to one at each entrance to the parking lot and one at the entrance/exit from the store. The trial court reasoned that if the purpose of the picketing is to advertise and handbill, then this number of pickets at these locations is more than adequate to confront each and every customer who enters or leaves the store or the parking lot.

Before examining the issues raised by appellant, we note that the scope of appellate review of the entry of preliminary injunctions is to determine whether there were any apparently reasonable grounds for the action of the trial court. Coatesville Development Company v. United Food Workers, 374 Pa.Super. 330, 542 A.2d 1380 (1988). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was misapplied will we interfere with the decision of the chancellor.” PHK-P, Inc. v. United Food and Commercial Workers Union Local 23, 381 Pa.Super. 544, 554 A.2d 519, 520 (1989).

As indicated previously, the first issue raised by appellant asks this court to decide whether the Labor Anti-Injunction Act applies in a case involving a labor dispute where peaceful informational picketing did not result in a seizure of appellee’s property. In the present case, appellant union’s picketing activities come within the meaning of a labor dispute as defined in the Pennsylvania Labor Anti-Injunction Act. See 43 P.S. § 206c(a) and (c). Appellee states in its brief that Section 206d of Pennsylvania’s Anti-Injunction Act provides that its provisions shall not apply

where in the course of a labor dispute as herein defined, an employe, or employes acting in concert, or labor organization, or the members, officers, agents, or representatives of a labor organization, or any one acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining.

43 Pa.S.A. § 206d(d) (emphasis supplied). Appellee contends that a seizure of its store occurred in the instant case. While we agree with appellee that an actual seizure of its property would be sufficient to take a labor dispute outside the scope of the Anti-Injunction Act, 43 P.S. § 206d(d), a review of the record and relevant case law reveals that no such seizure occurred in the instant case.

In support of their argument that no seizure occurred, appellant’s cite Frankel-Warwick Ltd. v. Local 274, 334 Pa.Super. 47, 482 A.2d 1073 (1984). In Frankel-Warwick, twenty-five (25) pickets occupied the sidewalk in front of the main entrance to a hotel. The pickets were eighteen inches apart, and persons seeking to enter the hotel had to pick their way through spaces in the picket line. Some pickets were four inches from the bottom step of the hotel entrance. The pickets talked in loud voices. One hotel patron had to be escorted by a security guard through the picket line. Moreover, arriving guests had to get out of taxis in the street and not on the curb, in order to enter the hotel. This court held that the picketing of the hotel did not constitute a seizure. As stated in Frankel-Warwick,

[T]he evidence established of record falls short of that amounting to a seizure or to violence which would qualify within the exception to the Labor Anti-Injunction Act. Mere difficulty of passage ... owing to the large number of pickets absent an intent to prevent their entrance and egress cannot be termed ‘seizure’ of the hotel.

334 Pa.Super. at 53, 482 A.2d at 1076. A review of the record in the instant case reveals that despite the presence of the picketing-appellant’s members, all of the customers who testified in the injunction hearing said they were able to go into the store, do their shopping, and leave. Notes of Testimony, July 17, 1990, at 14, 19, and 24. In addition, a store manager testified that the store’s volume of business was only down two (2) percent since the inception of the picketing. Id., 334 Pa.Superior Ct. at 47, 482 A.2d 1073.

Appellee urges a different interpretation of Frankel-Warwick and cites the following passage from that case:

while the presence of the pickets may have made travel on the sidewalk somewhat difficult, we do not perceive from the record any instance of threats, intimidation, or physical restraint to constitute a seizure.

Frankel-Warwick, supra, 334 Pa.Superior Ct. at 53, 482 A.2d at 1076. Appellee contends that the elements missing in the Frankel-Warwick case are present in the instant dispute. Appellee states that the picketing was “replete with threats to customers and employees, intimidation to customers and employees, and on at least one occasion, physical restraint in the form of placing a hand on a customer.” Appellee’s Brief at 9. We cannot agree. There exists no evidence of record that physical interference which amounted to a seizure took place. The only evidence that could even remotely be viewed as a threat was in response to provocative language by witness John Sweeney. But, there is no evidence that this incident occurred with the intention of compelling appellee to accede to appellant’s demands as required by the seizure exception to the Anti-Injunction Act contained in 43 Pa.S.A. § 206d(d). For the foregoing reasons, we find no support for the trial court’s conclusion that there was an attempt “through coercion and intimidation, to seize appellee’s property.”

We now turn to the issue of whether the trial court erred in granting an injunction which limited informational picketing in a labor dispute without finding that each of the prerequisites for injunctive relief set forth in the Labor Anti-Injunction Act had been established. As noted above, no seizure of appellee’s property occurred in the instant case. As a consequence, the Labor Anti-Injunction Act applies and correspondingly constrains the jurisdiction of the trial court. As set out in PHK-P, Inc. v. Local 23, supra, 381 Pa.Superior Ct. at 548-549, 554 A.2d at 521:

With limited exceptions, the Act provides that a court is without jurisdiction to enter a preliminary injunction enjoining picketing activity growing out of a labor dispute. The exceptions under which injunctive relief may be granted are set forth in Section 206i of the Act and provide that before issuing an injunction the court must find:
(a) That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no temporary or permanent injunction or temporary restraining order shall be issued on account of any threat or unlawful act, or actually authorizing or ratifying the same after actual knowledge thereof.
(b) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted.
(c) That, as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief.
(d) That no item of relief granted is relief which is prohibited under section six of this act.
(e) That complainant has no adequate remedy at law; and
(f) That the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection.
43 P.S. § 206i.

Instantly, the record reveals that the court failed to make the requisite findings under 43 P.S. § 206i(a), (b), (c), (e), and (f) which are necessary to bestow jurisdiction upon it for the purpose of enjoining labor picketing. As indicated previously, the trial court opinion merely stated in a conclusory fashion that it was “of the opinion that there was danger of public disorder, irreparable harm and an attempt, through coercion and intimidation, to seize appellee’s property.” Having already found that there was no seizure, even if this statement was sufficient to satisfy subsections (a) and (b) of Section 206i of the Act, no findings were made with respect to subsections (c), (e), and (f). In the absence of the trial court’s findings with respect to each of these subsections, the court lacked jurisdiction to grant injunctive relief.

Moreover, the record makes clear that there exists no factual basis to support the findings required to justify enjoining appellant’s informational picketing activities. For example, there is no evidence that “substantial and irreparable injury to complainant’s property will follow” as required by 43 P.S. § 206i(b); nor that “greater injury will be inflicted upon [appellee] by the denial of relief than will be inflicted upon [appellant] by granting of relief” as required by 43 P.S. § 206i(c); nor that appellee has no adequate remedy at law, as required by 43 P.S. § 206i(e). Additionally, there exists no evidence sufficient to support a finding that “public officers charged with the duty to protect [appellee’s] property are unable to furnish adequate protection” as required by 43 P.S. § 206i(f).

We conclude that the trial court erred by not making specific findings pursuant to subsections (a) through (f) of Section 206i of the Act.

The final issue which appellant raises asks this court to decide whether appellant is entitled to attorney’s fees, costs, and expenses under the Labor Anti-Injunction Act where “the [trial] court improvidently granted an injunction.” The Pennsylvania Labor Anti-Injunction Act provides that:

Upon denial by the court of any injunctive relief sought in an action involving or growing out of a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee.

43 P.S. § 206q (emphasis added).

Having determined that the injunction was improperly granted, we must remand this case for a determination of an award of attorney fees and reasonable costs and expenses incurred by appellant in defending this suit. See PHK-P, Inc. v. Local 23, 381 Pa.Super. 544, 554 A.2d 519 (1989).

Order Reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . This appeal was filed timely on August 13, 1990.

      . As the parties do not dispute this, we need not explain the provisions contained within this section.

      . Mr. Sweeney was not prevented from entering appellee’s store. Notes of Testimony, July 17, 1990, at 14.

      . In support of its contention that a seizure occurred, appellee cites Bloomsburg Mills, Inc. v. Local Union No. 667, 78 D & C 549 (1950), and Prudential Insurance Co. v. Local No. 33, 42 Luzerne L.Reg. 78 (1952). Upon review of these cases, we do not find them to be persuasive in the instant matter.


author: PER CURIAM

text:
    594 A.2d 373
    Jeffrey PERKINS and Sandra Perkins, Appellees, v. TSG, INC. d/b/a Combeau Ind., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 25, 1989.
    Filed Jan. 12, 1990.
    Reconsideration Denied July 26, 1991.
   ORDER

PER CURIAM

AND NOW, to-wit, this 26th day of July, 1991, upon consideration of the appellees’ petition for reconsideration nunc pro tunc filed in the above-captioned matter, the same is hereby DENIED.


author: HESTER, Judge:

text:
    594 A.2d 373
    COMMONWEALTH of Pennsylvania v. Jeffrey James FUSCO, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 15, 1991.
    Decided Aug. 5, 1991.

      Theodore J. Krol, Asst. Public Defender, Hollidaysburg, for appellant.
    David Gorman, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before CIRILLO, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence imposed February 11, 1991, following a plea of guilty to possession and possession with intent to deliver a controlled substance. The sole issue on appeal is whether the trial court abused its discretion in imposing an excessive sentence. We vacate the fine imposed and remand for resentencing.

The complaint reveals that appellant sold Detective Young and Patrolman Panagoplos of the Altoona Police Department four small blocks of hashish for $40.00 on March 23, 1990, although the particulars of the sale are not in the record. Appellant entered into a negotiated plea to the above charges, and the Commonwealth agreed to recommend a sentence in the mitigated range. The court accepted the plea and sentenced appellant to nine to twenty-three and one-half months imprisonment, ordered restitution to the City of Altoona in the amount of $40.00, and assessed a $15,000.00 fine to be paid within twelve years from the date of sentencing. Appellant contended in his motion to modify sentence and asserts on appeal that the $15,000.00 fee was excessive, unreasonable, and an abuse of the trial court’s discretion.

This is an appeal from the discretionary aspects of sentencing. As such, Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), require appellant to include in his brief a separate statement \}f reasons relied upon for this appeal. While appellant has included a section in his brief entitled, “REASONS FOR ALLOWANCE FOR APPEAL,” he erroneously states, “Pursuant to Pa.R.A.P. 341 the appeal is being taken as of right with notice of appeal filed in accordance with Pa. R.A.P. 902.” Obviously, appellant has not complied with the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, supra.

However, in its brief, the Commonwealth has not objected to this lack of a proper statement. Accordingly, we have decided to exercise our discretion and determine whether a substantial question is raised as to the appropriateness of the sentence based on the allegations in the brief. Commonwealth v. Kephart, Pa.Super., 594 A.2d 358, 360-361 (1991). Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).

Appellant’s contention is that the sentencing court failed to inquire as to his ability to pay a fine in violation of 42 Pa.C.S. § 9726(c)(1). We have discussed the types of allegations that must be raised in order to establish that there is a substantial question that the sentence imposed is inappropriate under the Sentencing Code. In Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987), we stated:

[Wjhat constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

See also Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989).

Since appellant’s allegation does suggest that a specific provision of the Sentencing Code was violated, a substantial question is raised under Losch. See also Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988). Therefore, we will proceed to consider the merits of appellant’s argument. Appellant contends that the sentencing court’s failure to inquire into his ability to pay the fine imposed violates the Sentencing Code and the relevant precedent. We are constrained to agree. The applicable provision of the Sentencing Code provides, in pertinent part,

(b) Fine as additional sentence.—The court may sentence the defendant to pay a fine in addition to another sentence, either involving total or partial confinement or probation,____
(c) Exception.—The court shall not sentence a defendant to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the fine;

42 Pa.C.S. § 9726(b) and (c) (emphasis added).

We have read the sentencing transcript and agree with appellant that no inquiry was made as to his ability to pay the fine imposed. The sentencing court was informed that appellant had been unemployed during the preceding year but would have a job working for his father upon his release from prison. The court had no other pertinent information before it, including the amount of money appellant would earn at this potential employment. Moreover, the case law requires even more information that this.

In Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980), the only information the sentencing court had concerning the defendant’s financial background was that he sold $980.00 in illicit drugs and had a job working for his father at a weekly net pay of $150. We held that the judge did not have enough information to make an intelligent finding as to the defendant’s ability to pay the $10,000.00 fine imposed, as required by 42 Pa.C.S. § 9726. In the present case, the court knew only that appellant had a potential job with his father upon his release; even the weekly salary was not ascertained. Moreover, there was no pre-sentence investigation.

The Commonwealth emphasizes the fact that the sentencing court gave appellant twelve years in which to pay the fine. This fact indeed will have an impact on the court’s determination of a fine once it has the pertinent financial information, but it is inconsequential in light of the inadequate record presently before us. Moreover, the cases cited by the Commonwealth in which large fines were upheld by this court, such as Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982), Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980), and Commonwealth v. Kinkead, 257 Pa.Super. 307, 390 A.2d 836 (1978), are all distinguishable in that the courts therein either had pre-sentence reports containing pertinent financial information or were otherwise apprised of the defendants’ situations.

We believe that the present record was insufficient to permit a proper determination of appellant’s ability to pay the fine imposed. Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1984); Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982); and Commonwealth v. Reardon, 297 Pa.Super. 193, 443 A.2d 792 (1981). Accordingly, we must vacate that portion of appellant’s sentence and remand for further proceedings.

Judgment of sentence as to fine is vacated and case remanded for proceedings consistent with this Opinion.

      . It is not significant that appellant waived a pre-sentence report. The court in Commonwealth v. Schwartz, id., dismissed any significance to such a waiver and any implication that defense counsel bore the burden of elaborating on the defendant’s financial background by stating, ‘‘[A]s we read the Sentencing Code, the sentencing judge was required to determine, before imposing the fine, that appellant was able to pay it.” Id., 275 Pa.Super. at 116, 418 A.2d at 639 (emphasis in original).

      . In light of our determination, we make no finding concerning appellant’s claim that the amount of the fine was inappropriate in light of the dollar amount involved in the offense, but note that the offense is punishable by, inter alia, a fine of $250,000.00.